National Consumer Disputes Redressal Commission New Delhi

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1318 OF 2014

(From the order dated 14.11.2013 in First Appeal No. 1495/2009 of State Consumer Disputes Redressal Commission, Rajasthan,Jaipur )

1. Manager, Bajaj Allianz Life Insurance Co. Ltd. Kota (Rajasthan)

2. Branch Manager Bajaj Allianz Life Insurance Co. Ltd. Baran (Rajasthan)

3. Manager Bajaj Allianz Life Insurance Co. Ltd. Pune, Maharashtra

…Petitioners

Versus

Mrs. Raj Kumar R/o Baran (Rajasthan)

…Respondent

BEFORE:

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

HON’BLE DR. S.M. KANTIKAR, MEMBER

For the Petitioner : Mr. Pankul Nagpal, Advocate PRONOUNCED ON 01st MAY, 2014 ORDER

PER DR. S. M. KANTIKAR, MEMBER 1. The present Revision Petition has been preferred against the impugned order dated 14.11.2013 in Appeal No. 1495/2009 passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’) allowing the Respondent’s appeal. The Appeal was filed in the State Commission against the judgment dated 13.10.2009 in Consumer Complaint No. 81/ 2008 passed by the District Consumer Disputes Redressal Forum, Baran (in short, ‘District Forum’) whereby the District Forum dismissed the complaint.

2. The brief facts of the case: Mr. Kalyan Singh, the deceased husband of the Complainant, took a Bajaj Allianz Unit Gain Plus Gold Life Insurance Policy from Bajaj Allianz Life Insurance Co. Ltd., the OP-1 (hereinafter referred to as “the Insurance Company”). Premium of Rs.25,000/- was paid. The policy was in force from 28.12.2007. The husband of the Complainant, died on 24.04.2008. A claim was submitted before the Insurance Company, which was repudiated on the ground that the insured obtained the policy after concealment of material facts about his previous illness. Hence, alleging deficiency in service, a complaint was filed before the District forum. 3. The District Forum dismissed the complaint. However, keeping in view the facts and circumstances of the case, allowed the refund of Rs.25,000/- deposited by deceased policyholder, with the OP . 4. Against the order of District Forum, the complainant filed the first Appeal No.1495/2009 before the State Commission, Jaipur. The State Commission allowed the appeal and directed the Insurance Company to pay to the Complainant Rs.2,50,000/- with interest @ 9% per annum, plus compensation of Rs.25,000/- towards mental agony and costs. 5. Aggrieved by the impugned order of the State commission, the OP preferred this revision. 6. We have heard the counsel for the petitioner at the admission stage. He has invited our attention to the Proposal form, various medical records of the deceased. 7. We have perused the evidence which was recorded by the District Forum. Two doctors, W-1 Dr. Laxmi Nath Meena and W-2 Dr. Sharad Paruthi were examined before the District Forum. Both the doctors admitted that the certificates dated 06.08.2008 and 25.07.2008 (Ex.-A1) were issued by them, however, Dr. L. N. Meena also admitted that it was not within his knowledge, as to, on what basis the certificates were issued. Dr. Meena further accepted that Kalyan Singh was admitted in the hospital on 4.3.2008, but on the basis of the report of the Central laboratory, Kota, it could not be said with certainty that the patient was suffering from Blood Cancer. Another witness, W-2, Dr. Sharad Paruthi deposed that he issued the discharge ticket dated 07.03.2008, which revealed that the patient was suffering from Anaemia, some problem relating to kidney and he was found positive for Typhoid. He further stated the patient was treated for Typhoid & Malaria. The Blood Cancer could not be diagnosed at the time of discharge on 07.03.2008. He stated that the record of the Monilek Hospital also did not disclose as to how long

the patient was suffering from Multiple Myeloma and that he was not sure whether the patient himself knew that he was suffering from Multiple Myeloma. It was diagnosed on the basis of previous record, when the patient was again admitted in the Hospital on 24.04.2008 and that there was no record in the file of the patient prior to 07.03.2008. 8. Therefore, we are of considered view that, there is no proof of any previous illness or ailment of the deceased/insured, prior to 07.03.2008, when the insured was first discharged from the Government Hospital, Baran. He was treated only for Typhoid and Malaria during hospitalisation. The renal insufficiency and Multiple Myeloma was undiagnosed till the deceased was admitted in Monilek Hospital on 08.04.2008 and discharged on 19.04.2008. Hence, it cannot be presumed that the insured/deceased Kalyan Singh was aware of his aforesaid ailments and he concealed the previous illness, at the time of submission of proposal form, on 27.12.2007. 9. Usually, the authorised doctor of the Insurance Company examines the insured, assesses the fitness and, after complete satisfaction, then only the policy will be issued. Therefore, we feel the OP was wrong in repudiating the claim of complainant. 10. Further, we have perused the medical records of Monilek Hospital, the pathology test reports during the period of admission of Kalyan Singh (8.4.2008 to 19.4.2008). The patient was treated for fever-Typhoid. Thereafter, Dr. Vijay Kaul, the Pathologists, issued the Histopathology report of Bone marrow biopsy dated 16/4/2008, which confirms the diagnosis of Plasma Cell Myeloma. Hence, the patient was unaware of his disease, at the time of filling of proposal form. We have referred to several medical text books on Hematopathology, Surgical Pathology and Mayo-Clinic Medical Articles, which clearly mention that, Multiple myeloma often doesn’t have symptoms at first. This can make it difficult to diagnose in the early stages. Signs and symptoms of multiple myeloma can vary from person to person. Early in the disease, the condition may not cause any symptoms (smoldering multiple myeloma). As the disease progresses, the signs and symptoms appear. The OP has made unflappable efforts and just relied upon the certificate issued by Dr. Sharath Parthy of Govt Hospital, Bara, which is not much convincing. However, even, if we presume that the patient was suffering from Multiple Myeloma /Blood Cancer for the past 2 to 3 years, the OP should have produced some cogent evidence to prove that the Complainant had taken treatment from some other Cancer Hospital.

11. Therefore, on the basis of forgoing discussion, we do not find any reason to interfere with the well reasoned order of the State Commission. The revision petition is devoid of merit, and is, therefore, dismissed. Parties are directed to bear their own costs. ..………………………… (J. M. MALIK, J.) PRESIDING MEMBER ..………………………… (DR. S. M. KANTIKAR) MEMBER Mss/21 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(Against order dated 01.11.2013 in First Appeal No. 1056/2012and Revision of the State Consumer Disputes Redressal Commission, UP, Lucknow)

WITH IA/1249/2014 (Stay)

1. Mahindra & Mahindra Ltd. Farm Equipment Sector, Swaraj Division, B-2, Sector-A, Mahanagar, Lucknow, U.P.-226001

2. Rajendra Singh Ajmani Proprietor, Ajmani Tractors, Mela Road, Lakhimpuri Khere U.P. …Petitioners Versus

Ram Lakhan R/o Hamlet Muda Bujurg, Village, Chotanipurba, Post- Gulari Purba, Tehsil- Nighasan District- Lakhimpur Khrei, Uttar Pradesh ...Respondent

BEFORE:

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

For the Petitioners : Mr. Atishi Dipankar, Advocate

For the Respondent/Caveator : Mr. Nikhil Jain, Advocate

PRONOUNCED ON 01st MAY, 2014 ORDER

PER DR. S.M. KANTIKAR, MEMBER 1. The present Revision Petition has been filed before this Commission under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 01.11.2013 in Appeal No. 1056 of 2012 passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’). The State Commission dismissed the Appeal and allowed the order passed by the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’) in Complaint No. 173/2011. 2. Brief Facts of the case are that on 01.06.2011, the Complainant/Respondent Sri Rama Lakhan purchased a Tractor Swaraj 735 F. E., for a total cost of Rs.4,70,000/- from Mahindra & Mahindra Ltd., the OP-1. It was purchased by making an advance payment of Rs.70,000/- in cash and Rs.4,00,000/- through Cheque/Demand Draft drawn on Punjab & Sindh Bank, Branch Jhandi, District Khiri, the OP-3. The OP 1 & 2 assured the Complainant of one year warranty, for change and repairing of the tractor, in the event of any problem. On very same day, when the Complainant took the tractor to his residence, he noticed Mobil leakage from the silencer. Therefore, on next day (2.6.2011) Complainant returned the tractor to OP-1 and the OP-1 after having a talk with OP-2, promised to provide a new tractor, on the next date. The Complainant also informed to OP-3 bank, regarding the said problem in tractor and OP-3 also wrote a letter to OP-1, for change of tractor. After several oral and written communications, the OP-1 called the Complainant to take the delivery of the tractor, by paying Rs.20,000/- towards repair charges for the tractor. As, the tractor was under warranty period, complainant refused to pay the charges, hence OP did not deliver the tractor. The complainant filed a complaint before District Forum, Lakhimpur, Khiri, alleging negligent attitude of OP-1, due to which he suffered loss in crop, further burden of bank interest on the loan, and mental agony. 3. The District Forum directed the OP to return the cost of tractor, granted interest @ of 18% per annum, compensation of Rs.1,00,000/- and costs of Rs.5,000/-. 4. Against the order of District Forum, the OP filed a First Appeal 1056/2012 before State Commission. The State Commission dismissed the appeal. 5. Aggrieved by the impugned order of State Commission, this revision petition has been filed. 6. We have heard counsel for both the parties. The counsel for OP submitted that the said tractor was sold to the complainant, on 25.03.2011 on credit basis. It was a practice in rural area, that Agriculturists purchase tractors before crop season and pay from their earnings, during season. The seller facilitates to get loan from the banks. Thereafter, the complainant used the tractor and took it to OP for two free-services, on 3.4.2011 and on 19.05.2011. Again, on 01.06.2011, the Complainant complained of only leakage of Mobil oil from silencer. It was a minor repair which was done on very next day i.e. 2.6.2011, by replacing the package made of cardboard with iron inside, it was to seal the silencer. The package costs were charged at Rs.10/- to Rs.15/- approximately. Therefore, the tractor was ready for delivery on 02.06.2011. However, the Complainant has failed to take delivery of the same since 02.06.2011. 7. We have perused the agreement letter, the tractor delivery Challan dated 25.03.2011 and the job cards for 1st and 2nd free services done on 19.5.2011 and 22.05.2011. Also perused the receipt. No.312 dated 1/6/2011 towards the payment of Rs.4,70,000/-. We are of considered view that, an apparent error has been committed by the both fora below, who have not taken any opinion/evidence of any handwriting expert, but concluded that complainant’s signatures are forged by the OPs. In our observations, the State Commission and District Forum have not held that the tractor suffered from any manufacturing defects. Both the Fora did not take any opinion or did not appoint any approved agency to test the tractor. Therefore, we are of considered view that, the order of fora below to replace or of cost of tractor is not sustainable. So far as replacement of tractor is concerned, we clap no importance to these arguments. We place reliance upon following decisions of this commission and the Hon’ble Supreme Court, namely,  Maruti Udyog Ltd Vs Susheel Kumar Gabgotra & Anr,I(2006)CPJ 3(SC)  Maruti Udyog Limited Vs Hasmukh Lakshmichand & Anr, III(2009)CPJ 229 NC,  Classic Automobiles Vs Lila Nand Mishra & Anr I(2010)CPJ 235(NC)  SLP Civil Appeal No 19967 of 2013 decided on 12/7/2013 Hiralal Vs MGF Toyota Gurgaon Capital Vehicles Sales Ltd, in the Revision Petition No 4654/2012.

8. We are of the opinion that, the OP is liable for deficiency in service, because the OP has not supplied the tractor to the complainant, after repair which was during warranty period, but OP demanded Rs.20,000/-. Therefore, on the basis of foregoing discussion, we set aside the orders passed by both the fora below and partly allow this revision petition, with the following order: The OP-1 is directed to hand over the tractor with proper repairs completely with a warranty for one year from the date of delivery. As, complainant deserves for proper compensation who has suffered crop loss and mental agony, accordingly, the OP-1 is directed to pay Rs.50,000/- with interest @ 9% per annum, from 01.06.2011 till payment. OP-1 shall comply this order within 90 days, from the date of receipt of this order, otherwise the amount will carry further interest @ 9% p.a., till it’s realization.

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

..………………………… (DR. S. M. KANTIKAR) MEMBER Mss/17 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 217 OF 2012 (From the order dated 27.09.2011 in First Appeal No. 480/2009 of State Consumer Disputes Redressal Commission, Tamil Nadu, Chennai)

State Bank Of India Main Branch, Cantonment, Tiruchirapalli-I …Petitioner Versus 1. M/s Sri Easwari Vaccines & Om Vaccine Clinic, Partnership Firm, Rep. By its Managing Partner, S. P. Ashok S/o M. Ponnan Having office at: B-6, A & B, Chitra Complex, Chinthamani, Trichy-2

2. The New India Assurance Co. Ltd. No. 666, WB Road, Trichy-8 …Respondents

BEFORE:

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

For the Petitioner : Mr. S. L. Gupta, Advocate Mr. Arjun Gupta

For the Respondent No.-1 : Ms. Lavana Shanker, Advocate For the Respondent No. 2 : Ms. Harshlata Advocate For

Ms. Manjusha Wadhwa, Advocate

PRONOUNCED ON MAY, 2014

PER DR. S.M. KANTIKAR, MEMBER 1. The present Revision Petition has been filed under Section 21 (b) of the Consumer Protection Act, 1986 against the impugned order dated 27.09.2011 in FA/480/2009 passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’), Chennai, Tamil Nadu. The State Commission partly accepted the Appeal and reduced the compensation amount from Rs.2,59,512/- to

1,29,756/-, while upholding the rest of the order passed by the District Consumer Disputes Redressal Forum (in short, ‘District Forum’). The District Forum directed the Petitioner Bank to pay compensation of Rs.2,59,512/- to the Respondents herein, along with Rs.10,000/- as damages and Rs.1,000/- towards cost. 2. Brief facts in this case are that, on 11.03.2004, M/s Sri Easwari Vaccines & Om Vaccine Clinic, the Complainant, availed a loan of Rs.5,00,000/- from State Bank of India, the OP-1, on the basis of trade and business, with the loan account No. 01563/071131. There was a tie up with The New India Assurance Co. Ltd., the OP-2, to insure the goods/stock of the Complainant to the guarantee of the loan. On 25.11.2005, the Complainant’s clinic was completely damaged due to heavy inundation, caused by floods from River Cauvery. Thereafter, the Surveyor of OP-2 conducted the spot inspection and estimated the damages. The OP-2 repudiated the claim, since there was no renewal of policy. The Complainant came to know this fact from OP-1 on 29.11.2005, which the renewal of the policy was not at all made in March 2005 for the subsequent period. Several correspondences between complainant and both the OPs took place, but no avail. Hence the Complainant filed a complaint, claiming relief under several heads. 3. The District Forum allowed the complaint, and directed the OP-1 to pay Rs.2,59,512/- towards insurance claim and Rs.10,000/- as damages and Rs.1,000/- as costs. 4. Aggrieved by the order of District Forum, the OP-1 preferred a First Appeal before State Commission. The State Commission modified the order of the District Forum by reducing the amount payable from Rs.2,59,512/- to Rs.1,29,756/- while rest of the order remained same. 5. Against the order of the State Commission, the OP-1 preferred this revision petition. 6. We have heard the counsel of the parties. The counsel for the OP-1, the bank, invited our attention to clause 10/8 of the sanction letter and contended that it was the duty of the Borrower to get insured the hypothecated assets purchased with the money advanced by the Bank. The Insurance Clause is reads as under:- Insurance: The equipment/machinery and other assets covered by this advance should by fully covered against fire risks and if necessary, insurance cover for riot and strike will have to be taken as and when called upon be the Bank to do so with an insurance company approved by the Bank in joint names of the Bank and the unit. You should make punctual payment of all Premia and not to do or suffer to done any act which would invalidate insurance during the policy of the advance.

7. The Counsel for the Complainant vehemently argued that the original insurance policy, the terms and conditions etc. were in possession of bank, he was not informed about renewal. It was the duty of the Petitioner Bank to renew the Insurance policy when it had expired on 30.03.2005. Though, the loan account was closed before the date of occurrence, the Bank should have renewed the Insurance policy. Had the Bank renewed the same, Complainant would have got the compensation/claim from the Insurance Company. 8. We have perused the MOU, entered between SBI and the New India Assurance Co. Ltd. It was for tie-up of direct insurance business being a corporate agent for the insurance coverage of all the advances made by the SBI to its loan borrowers. Accordingly, SBI took two insurance policies, as one-year annual policy, and debited the premium amount from the borrower’s account. Thereafter, these policies were not renewed, after 30.03.2005. 9. We have given a thoughtful consideration to the fact that the OP bank advanced loan and it was to protect its own interest by remitting the insurance premium to the OP-2. There was a MOU also between OP-1 and OP-2. When the banker, OP-1 was in possession of entire loan documents, including the policy, it was the obligation of OP-1 to renew the policy on due date, i.e. 30.03.2005. Similarly, the complainant also appears to be not prudent enough, as he had closed the term loan account, on 27.10.2005. However, the damage to the machineries has taken place on 25.11.2005. It is pertinent to note that at the time of closure of loan account, the Complainant had not verified all documents. It was a clear lapse on the part of complainant. Also, the complainant should have questioned and sought clarification from the OP-1 about non-renewal of his policy. Hence, it is a contributory negligence on the part of complainant. Therefore, we are of considered view that there is no illegality in the order passed by the State Commission. 10. Hence, we confirm the order passed by the State Commission order and dismiss this revision petition. The parties are directed to bear their own cost.

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

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

REVISION PETITION NO. 1434-1435 OF 2014 (From the order dated 13.12.2013 in First Appeal No. 674/2012 of State Consumer Disputes Redressal Commission, West Bengal, Kolkata)

Piramal Enterprises Limited (Previously Known as Piramal Healthcare Limited) Nicholas Piramal Tower, Peninsula Corporate Bank, Ganpat Rao Kadam Marg, Lower Parel, Mumbai-400013 …Petitioner Versus 1. Sh. Sukhdev Mustafi R/o 109, Swinho Lane, Kolkata-700028

2. Shyam Shakti Vyapaar Private Limited 49, Taratala Road, Kolkata-700028

3. Arijit Chaterjee C & F Agent of Shyam Shakti 49, Taratala Road, Kolkata-700028

4. Partha Mustafi Proprietor of Medico Distributor 52, S. V. Sarani, P.O. & P.S. Ranaghat, Naria 5. Manager, Allahabad Bank Nasra Branch, P.O. & P.S. Ranaghat, Naria …Respondents

BEFORE:

For the Petitioners : Mr. Nitin Bhatia, Advocate

PRONOUNCED ON 01st MAY, 2014

PER DR. S.M. KANTIKAR, MEMBER 1. The Petitioner has filed the present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 being aggrieved by the order dated 13.121.2013, passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’), whereby the State Commission was pleased to uphold the order dated 30.08.2012 passed by the District Consumer Disputes Redressal Forum (in short, ‘District Forum’).

2. The Complainant/Respondent -1 Mr. Sukhdev Mustafi, a self-employed, started a dealership for his own livelihood with name of “Medico Distributor” .He is a dealer of several renowned pharmaceuticals including Nicholas Piramal India Ltd., the OP-1. The OP-2 is the clearing and forwarding agent of OP-1, within the territory of the West Bengal and OP-3 is the Customer Service Manager who is engaged to deal with the customer i.e. the Distributors, within the territory of West Bengal. On 23.08.2005, complainant sent a Demand Draft for a sum of Rs.1,90,263/- in favor of the OP-1, for the purpose of supply of stock of medicine. It was sent through the Customer Service Manager (OP-3). Due to some business problems, on very next day, i.e. on 24.8.2005, the complainant issued a letter to the OP-3, and requested to stop the consignment. Thereafter, around 13.3.2007 the complainant requested the Manager of OP-2 to supply the statement of account for the accounting year 2005 to 2006 and 2006 to 2007. There was no response, complainant served registered notices on OP-1 on 22.03.2007 and 05.05.2007 to provide him the account statement and also to refund the amount of Rs.1,90,263/-. Thereafter, the OP-1 through OP-3, started threatening the complainant, with dire consequences, over telephone. Hence, alleging deficiency in service for not supplying the statement of account and intentionally avoiding the refund of amount of Rs.1,90,263/-, the complainant filed complaint before the District Forum. 3. The District Forum allowed the complaint, and holding the OPs liable, jointly and severally, except OP-4, and directed them to pay Rs.1,90,263/- along with interest @ 9% p.a. till the payment of its realization, Rs.15,000/- towards mental agony and litigation cost of Rs.5,000. 4. Aggrieved by the order of District Forum, the OP-1 filed First Appeal No. 860 of 2012 and First Appeal 674 of 2012 was filed by the Complainant praying for modification of the impugned order so as to include OP-4 Partha Mustafi in the decree before the State Commission. 5. The State Commission dismissed both the appeals. 6. Against the impugned order of State Commission, the Petitioner/OP-1 filed this revision petition. 7. We have heard the counsel for the petitioner/OP at admission stage. He has submitted that, on 28.09.2005 the Petitioner/OP-1 made payment of Rs.1,90,263/- by a cheque drawn on HDFC Bank, in favor the firm “Medico Distributor” which was duly enchased on or around 02.03.2006. He further argued that the Complaint is not maintainable, as per Section 2(1)(d) of the Consumer Protection Act, and that the complainant is not a Consumer as the goods purchased

by the complainant were for commercial purpose, not for his consumption. 8. We have perused the evidence on record which reveals that, in the year 1980, the Complainant, with his brother, Mr. Gopal Mustafi, started a partnership firm of medicine distributorship. In the year 2001, the said partnership was dissolved by executing one registered deed of dissolution of partnership and thereafter the said business was run as proprietorship business. The complainant obtained trade license from the office of the Ranaghat Municipality as proprietor of Medico Distributor and obtained Drug License and wholesale license from the concerned Drug Control authority. The State Commission has made the following observations:- “ We have heard the submission made by both sides and perused the papers on record. Admittedly, OP-1 had issued a Demand Draft amounting to Rs.1,90,263/- in favour of ‘Medico Distributor’. It is also an admitted fact that the OP-4 had opened a new account in his own name and he encashed the amount byputing his signature as the proprietor of ‘Medico Distributor’. The Complainant has filed the trade license and drug license standing in his name which indicate the bonafide of his claim. In the cause title of the petition of the complaint, the Complainant has been described as the proprietor of ‘Medico Distributor’.”

9. We are surprised to note that, the Petitioner/OP-1 did not produce any cogent evidence on record showing the receipt of cheque by the Complainant. Even otherwise, OP-1 has not produced any document or bank account statement, to prove that the complainant has deposited the HDFC cheque for Rs.1,90,263/- which was issued by OP-1. The observations made by State Commission clearly show that the cheque was deposited by Partha Mustafi, the OP-4, in his account in Allahabad Bank (OP-5). It was a blatant mistake and amounts to deficiency in service by Bank/OP-5 which, negligently and arbitrarily credited the cheque in the personal account of Partha Mustafi, which was issued in the name of firm “Medico Distributor”. The Partha Mustafi was neither partner nor proprietor of Medico Distributor. It appears that all OPs 1 to 5, except OP No.4, have worked in cahoots with each other. Hence, the complainant deserves the refund of the amount of Rs.1,90,263/- with interest and compensation and costs, as directed by the District Forum. 10. On the entirety of facts, we do not find any illegality or infirmity in the order passed by the State Commission. The revision petition is sans merit. Hence, dismissed.

…...………………………… (S. M. KANTIKAR) MEMBER Mss/8 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2868 OF 2013 (From the order dated 22.01.2013 in First Appeal No. 330/2012 of State Consumer Disputes Redressal Commission, Kerala, Thiruvananthapuram)

United India Insurance Company Ltd. Through its Deputy Manager R.O. 1, Kanchenjunga Building, Barakhamba Road, New Delhi …Petitioner Versus N. T. Babu, Proprietor Toy Palace, Court Road, Palakkad …Respondent

BEFORE:

For the Petitioner : Mr. Ravi Bakshi, Advocate

For the Respondent : Mr. Tom Joseph, Advocate

PER DR. S. M. KANTIKAR, MEMBER 1. The Complainant Sh. N. T. Babu, took a shopkeeper policy for the sum assured Rs.5,25,000/-. On 20.04.2003, an advertisement board which was installed on the roof of adjacent building got uprooted from its foundation and fell on the shop of the Complainant, resulting in damages to his shop, including furniture and electric fittings, etc., and he intimated it toUnited India Insurance Company Ltd., the Petitioner/OP. The OP deputed a surveyor, Mr. P. Sugumaran, who assessed the loss at Rs.56,767/-. The OP offered Rs.40,765/-, after deducting the salvage value of Rs.6,000/- and policy Excess of Rs.10,000/-. The Complainant declined the offer and filed a consumer complaint before the District Consumer Disputes Redressal Forum (in short, ‘District Forum’), Palakkad, claiming a compensation of Rs.4,92,456/- and damages of Rs.54,750/- with 12% interest from 21.05.2003 till the date of payment. 2. The District Forum allowed the claim and directed the insurance company to pay a sum of Rs.3,44,016.50/- with 12% interest from the date of filing till the date of realization along with a costs of Rs.3,000/-. 3. Aggrieved by the order of District Forum, the OP filed first appeal before State Consumer Disputes Redressal Commission (herein after, ‘State Commission’). The State Commission dismissed the appeal. Hence, against the order of State Commission, this revision was filed. 4. We have heard the Counsel for both the parties. The counsel for the petitioner explained, satisfactorily, the reasons for delay of 26 days in filing this revision petition, hence this delay is condoned. The Counsel for OP further argued on merit, that the surveyor made his report on the basis of actual verification of stocks during spot inspection and on the basis of the damaged items list, submitted on 25.04.2003, by the complainant to the tune of Rs.60,990/- . Since the insurance company got the loss assessed as per law, the burden was upon the Complainant to prove his claim by producing documentary evidence. Hence, the survey report can be taken as the basis to access the loss. Hence, there was no deficiency by OP. 5. The learned Counsel for the complainant vehemently argued on the point of the quantum of damages occurred. He contended that, the officials of the Palakkad Branch of South Indian Bank had inspected the shop on April 8, 2003 and in their report in Ext. X1, total stock was shown as Rs.5 lakhs. The incident took place on April 20, 2003 and it was an admitted case that entire stock was damaged. The Surveyor in his report mentioned the Ext. B3, the stock statement taken on 25.04.2003, as the value of total stock as Rs.2,83,026.50/- and the value of damaged item as Rs.60,990/- in Ext. B2. 6. We have perused the photographs available on file produced by the Complainant and the report of the surveyor, which shows that entire stock had been damaged in rain, hence the value of the total articles comes to Rs.3,44,016.50/-. It is surprising to note as to, how the OP arrived at the conclusion that the admissible claim is Rs.40,765/- only. It is a meager amount and is not acceptable. The Surveyor report is not a final word, we place reliance upon the following authorities: a. National Insurance Co. Ltd. Vs. Giriraj Proteins IV (2012) CPJ 151 (NC). b. Mahinder Bansal vs. UHBVNL IV (2012) CPJ 154 (NC). c. Noor Ali Vs. National Insurance Company Limited (2009) 17 SCC 565. d. Nifty Chemicals Private Limited Vs. Union of India & Ors. (2009) 17 SCC 566. 7. The arguments advanced by the Counsel for OP are devoid of merit, hence, we dismiss this revision petition. No orders as to costs.

…...………………………… (S. M. KANTIKAR) MEMBER Mss/5

REVISION PETITION NO. 3723 OF 2013 (From order dated 20.08.2013 in First Appeal No. A/12/289 of the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai) WITH IA/6615/2013 (STAY)

M/s Vyas Enterprises Through its Proprietor, Sh. Mahendra Jayantilal Vyas 1, Paras Apartment, Ground Floor Rokadia Lane, Boivali (West) Mumbai – 400092 … Petitioner Versus Das Darshan Co-operative Housing Society Ltd. Holy Cross Road, IC Colony Borivali (West), Mumbai – 400103 … Respondent

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

For the Petitioner : Mr. S.B. Prabhavalkar, Advocate

PRONOUNCED ON 1ST MAY, 2014 O R D E R JUSTICE J.M. MALIK 1. On 05.05.1982, a partnership firm in the name and style of “Vyas Enterprises” purchased the plot in dispute from Sh. Sadashiv Musle and others. The said partnership firm was dissolved on 01.04.1996. Sh. Mahendra Vyas, one of the partners of the said partnership firm became the sole owner of this plot, who retained the same name. 2. M/s. Vyas Enterprises constructed six-storey building which was sold to different intending buyers through various agreements. Those buyers formed a Co- operative Housing Society, by the name of M/s. Das Darshan Co-operative Housing Society, the complainant, in this case, on 06.01.2003.

3. The grouse of the Society is that opponent has not conveyed the property under MOFA Act, in favour of the Society for which the Society, from time to time, requested the opponent to do the needful. However, the opponent did not care a fig. A legal notice was sent to the opposite party on 01.12.2007. Ultimately, this complaint was filed before the District Forum, on 21.06.2008. The District Forum partly allowed the complaint. It directed the opposite party to execute the conveyance deed within three months, otherwise the opposite party shall pay for the delay period, a compensation of Rs.1,000/- per week, to the complainant. The District Forum also imposed costs of Rs.10,000/- upon the opposite party. The District Forum, however, did not accept the other prayer wherein it was prayed that debris and waste materials lying in stilt parking Nos. 1 and 2 of the building be removed by OP and restore the premises to original plan. 4. Aggrieved by that judgment, the OP preferred First Appeal before the State Commission. The State Commission dismissed the appeal on 20.08.2013.

5. We have heard the counsel for the petitioner/OP. Learned counsel for the petitioner pointed out that the original owner of the land, Sh. Sadashiv Musle is a necessary party. He has invited our attention towards the affidavit filed by Sh.Mahendra J. Vyas, which runs as follows:- “ I state that the complainant have filed the above complaint against this OP for conveyance. The OP is ready and willing to give conveyance, however the land owners are not the party to the said complaint and the OP is having non-registered power of attorney. The complainant is opposing the same saying that the OP should have registered power of attorney. Therefore, OP had also requested the complainant that they should make landowners as party to the complaint”.

6. It was argued that the petitioner is not the owner of the property. He was the Power of Attorney simpliciter. He has also filed on record, irrevocable Power of Attorney, which mentions that it will continue for ten years.

7. Now, we turn to the agreement entered into between the complainant and the OP. Paras (iii), (iv), (v), (vi), (vii) and 2 of the said agreement, read as under :- “ iii) By an agreement dated 5th May, 1982, the said owners agreed to sell the said property to the sellers herein at the price and on the terms and conditions set out therein. iv) Pursuant to the said agreement between the owners and the sellers herein, the sellers have entered into possession of the said property for construction of building/bungalows and to sell the flats/ garages/ bungalows therein on ownership basis to the prospective buyers. v) The sellers have decided to commence the construction of the building on the said property described in the first schedule hereunder written, consisting of flats, garages (the garage shall mean and include covered as well as uncovered and/or open car parking spaces) bungalows, etc., with a view to sell the same on ownership basis. vi) In pursuance of the said agreement, the owners have also executed in favour of the sellers, a power of attorney conferring upon the sell, transfer, alienates, dispose of flats, garages, bungalows, units, constructed on the said property. vii) By virtue of the said agreement and the power of attorney, the sellers sole and exclusive right to sell the flats, garages, units, bungalows, open/closed car parking spaces, in the said building to be constructed by the sellers on the land and to enter into agreement with the purchasers of the said flats, garages, bungalow and unit, open/closed car parking spaces and to receive sale price in respect thereof;

2. The Buyer hereby declares that before execution of this Agreement, the Sellers have made full and complete disclosure and the buyer has taken full and free inspection of particulars and disclosure of inter alia, the following”.

8. There is not even an iota of evidence to show that the complainants knew about irrevocable Power of Attorney. The OP has made misrepresentation before the complainants/consumers. He is estopped from taking another plea.

9. It appears that the original owners and builder have got a dispute inter se. The consumers/complainants have to do nothing with it. There is no privity of contract between the owners and the complainants. The builder/promoter/person holding the Power of Attorney has to solve his/her problem with the owners only. The OP alone is answerable to the complainant. The action of the OP is below the belt. His motive is to feather his own nest, i.e., to make the profits at the instance of others. He is trying to adopt a Fabian policy. Will this policy come to his rescue?. He has not even a scintilla of remorse after putting the lives of so many people at stake. This is a lamentable position.

10. The second submission made by the petitioner was that the Society has no locus standi to file this case. There is no privity of contract between the Society and the OP. The case was not filed in accordance with Section 2(1)(m) of the C.P. Act, 1986.

11. We see no merit in this argument. The buyers can subsequently form a Society, as well. We find no force in this argument. 12. The last argument urged by the counsel for the petitioner was that it is a time barred case. The complaint should have been filed within two years’ from the date of the agreement. 13. This issue is also bereft of merit. This is a continuous cause of action, as was held by this Commission, in RP 3097 of 2012, decided on 04.09.2012, as under :- 9.The learned State Commission brushed aside the argument regarding delay in filing the complaint by placing reliance on the judgment in B.Venu Madhav Vs. National Consumer Disputes Redressal Commission, Represented by its Registrar, New Delhi & Ors, in W.P. No. 30394 of 2011, dated 18.01.2012 reported in CDJ 2012 APHC 421, wherein it was held that “when there is immovable property and the amenities promised by the opposite party were not provided, the National Commission held that it can be construed as continuing cause of action and it cannot be said to be barred by time. 10. This discussion tips the scale in favour of the complainant and, as such, the revision petition filed by the OP, is dismissed.

14. Against the above said order dated 04.09.2012, a Special Leave to Appeal (Civil) No. 35805 of 2012, was filed before the Hon’ble Apex Court, titled Raghava Estates Ltd. Vs. Vishnupuram Colony Welfare Association, wherein the Hon’ble Apex Court, vide order dated 07.12.2012, was pleased to dismiss the same.

15. Similar view was taken in another judgment of this Commission, in RP 668 of 2013, titled as Bhagyalaxmi Construction Vs. Monoranjan Basak, decided on 31.05.2013, wherein in para No.5, it was held as under :- “ Coming to the issue of limitation, raised before the fora below on behalf of RP/OP. The State Commission has agreed with the finding of the District Forum that it was a case of continuing cause of action. The question of the complaint being barred by limitation did not arise. From a perusal of the records and from the arguments of the counsel for the revision petitioner, I find that it is a case where existence of an agreement between the parties for purchase of a flat is not denied. Receipt of consideration for the same is also not denied. I, therefore, find myself in agreement with the fora below that the cause of action had continued to exist because neither the possession was delivered nor the conveyance was executed in favour of the complainant”. 16. Aggrieved against the above said order dated 31.05.2013, a Special Leave to Appeal (Civil) No. 28910 of 2013, was filed before the Hon’ble Apex Court, titled Bhagyalaxmi Construction Vs. Monoranjan Basak & Ors., wherein the Hon’ble Apex Court, vide order dated 11.11.2013, dismissed the same.

17. It is thus clear that if one has the blue sky ideas, he/she has it, at his/her own peril. The OP has committed an egregious mistake by making a wrong representation that he was the owner of the said property. He should not have led the complainant, up the garden path, unless and until, he had full authority. On one hand, he says that he is the owner, vide agreement, and on the other hand, the counsel for the OP admitted that he did not file any suit for specific performance, as per his own stand taken in the agreement with the complainant.

18. The counsel for the petitioner argued that the order passed by the District Forum is very harsh. We see no merit in this argument. It is only the ‘wearer of the shoe, who knows, where the shoe pinches’. Without Conveyance Deed, the position of the consumer is like that of a ship, without a radar. The revision petition is dismissed. However, we refrain from imposing any other costs upon the petitioner. The order of the District Forum be complied with, strictly. Consumer fora cannot make it a case of title between the petitioner and the owner.

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

.....…..………………………… (DR. S. M. KANTIKAR) MEMBER dd/6 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

ORIGINAL PETITON NO. 85 OF 1999

1. Sri Priyaluckshmi Garments Represented by Mrs. G. Mahalakshmi, Partner 73A, J. G. Nagar, 60 Feet Road, Kumaranathapuram, Tirupur 641602

2. Sri Priyaluckshmi Exports Represented by Mr. P. Gopal, Partner 73A, J. G. Nagar, 60 Feet Road, Kumaranathapuram, Tirupur 641602

3. Sri Priyaluckshmi Apparels Represented by Mr. P. Gopal, Partner 73A, J. G. Nagar, 60 Feet Road, Kumaranathapuram, Tirupur 641602 … Complainants

Versus

1. The Oriental Insurance Co. Ltd. Oriental House, A-25/27, Asaf Ali Road, New Delhi – 110002

2. Divisional Manager, The Oriental Insurance Co. Ltd. Suguna i, Avanashi Road, Coimbatore 641037

3. The Oriental Insurance Co. Ltd. 76, Kumaran Road, Tirupur – 641601 … Opposite Parties

BEFORE:

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

For the Complainants : Mrs. V. Mohana, Advocate

For the Opp. Parties : Mrs. Sakshi Gupta, Advocate

Pronounced on 1st May, 2014 O R D E R

JUSTICE J. M. MALIK, PRESIDING MEMBER

1. This is a case against insurance company where the goods were damaged in fire and sums of Rs.2,14,01,500/-, Rs. 46,35,000/- and Rs.72,45,000/- were claimed by the complainants No. 1, 2 and 3, respectively, with interest and costs. The case, of all the three complainants, namely, Sri PriyaluckshmiGarments, Sri Priyaluckshmi Exports and Priyaluckshmi Apparels, respectively, which was filed before this Commission on 19.3.1999, is as follows.

2. All the complainants had three separate partnership firms having the common partners in all firms. They transact the business of fabrics, garment and hosiery items and are in export business. The complainants obtained six insurance policies for fire ‘C’ floater policies from the three opposite parties representing the Oriental Insurance Co. Ltd. 3. Unfortunately, on 21.2.1998 at about 10.45 p.m., a fire broke out in the factory premises of the complainants, who have got the same place, mentioned above, for transacting their business. It is averred that it was a devastating fire and the reason for it is suspected to be an electric short circuit. Eight fire tenders viz. eight lorries of water were required to put off the flame in the kiosks and premises. Lot of goods were suspected to be stolen from the premises. The fire damaged stocks, stock- in-process and other material stored in the premises. A police complaint was lodged on 22.2.1998. The complainants informed about the fire to their respective banks on 23.2.1998. The insurance company was also informed about this mishap.

4. The complainants made the claim before the insurance company. Mr. G. R. Raj, their preliminary surveyor assessed the loss. All the necessary documents were produced. On 23.2.1998, the opposite parties appointed another surveyor Mr. P. S. Ramanathan, who checked 866 files and met with the employees of banks. The complainants assisted the surveyor as per the letter dated 3.3.1998 sent by the complainants to the opposite parties. The certificate from District Fire Officer was also placed on the file. The complainants requested the surveyor Mr. P. S. Ramanathan for removing the salvage but they were not given clearance from the surveyor till July, 1998. A lot of salvage was lost in this period, which was exposed to wind, rains and theft. There was correspondence between the surveyor and the complainants vide annexure VIII (Colly) and annexure IX (Colly). It is alleged that there was some delay on the part of the opposite parties as they were not settling the claim. The complainants have informed their banks vide letter dated 16.7.1998 and 30.7.1998, Annexure XV (Colly). The surveyor promised that he would finalise the claim within a month vide annexure XV-A (Colly). In the meantime, the Surveyor met with an accident. He had a fracture in the left hand. In the end of August, the complainants met the surveyor in his house and they were assured that the surveyor will send the report within 10 days vide annexure XVI (Colly) but no action was taken even after the lapse of three months.

5. The complainants have placed on record Annexure XVII sent by the creditors. The matter could not be settled till January, 1999. All the documents were provided to the Surveyor again. The Surveyor again sent a letter dated 29.1.1999 and put the blame on the complainants vide his letter dated 29.1.1999. In between, correspondence continued between the parties. Due to delay, the complainants have to suffer a lot. Their entire business came to stand still due to huge loss. They were unable to restart their business. 6. It was explained that the complainants have thus incurred a direct loss of Rs.2,58,94,000/-. The bank interest comes to Rs.43,87,500/- as on 28.2.1999. They have spent Rs. 5 lakh towards legal expenses, telephone calls, telefaxes, courier etc. incurred by the complainant. They have also claimed Rs.15 lakh towards incidental loss incurred by the complainants No. 1, 2 and 3 at the rate of Rs. 5 lakh each.

Defenece of the Opposite parties.

7. The opposite parties have enumerated the following defences in support of their case. Each complainant has different cause of action and they ought to have filed separate complaints. This Court has no jurisdiction to entertain this complaint. The complainants did not produce the documents as required by the opposite parties. Preliminary surveyor, Shri G. R. Raj visited the manufacturing units on 22.2.1998, 23.2.1998, 25.2.1998, 2.3.1998, 13.3.1998, 15.3.1998, 31.3.1998, 20.4.1998, 2.5.1998, 15.5.1998, 23.5.1998 and 1.6.1998 and carried out preliminary survey. The complainants did not submit the accounts and statement in the first week of April, 1998. They promised through their letter dated 6.4.1998 to submit the accounts within 15th April, 1998. Even on 15.4.1998, they did not submit the above said documents. Another letter was sent on 21.4.1998 to the complainants to submit the necessary papers, financial statements and supporting documents at an early date for finalizing the survey.

8. A number of correspondences went on between the parties. The allegation of the opposite parties is that numerous delay was caused by the complainants. Vide letter dated 29.1.1999, final opportunity was given to the complainants to produce various documents. The opponent did not co-operate but the final report was issued by the surveyor, Shri P. S. Ramanathan finally on 4.4.1999 and 3.5.1999.

9. Ultimately, the claim of the complainant was repudiated vide their letter dated 29.6.1999. The relevant portion of the said letter runs as follows:

“Dear Sirs,

RE : FIRE POLICY ‘C’ CLAIM IN RESPECT OF FIRE LOSS SAID TO HAVE TAKEN PLACE ON 21.2.1998.

With reference to the subject claim we have thoroughly investigated and after due consideration of the survey report of the preliminary survey and the final surveyor wish to place on record that the claim is not admissible for the following reasons. The policy in question bearing No. 11817/98 dated 30.6.1997 is in respect of 17 specific locations as more particularly set out therein. The premises said to have been affected by fire is not held covered under the policy in question. In as much as the reported loss occurred in a location which is not held covered, we were not at risk and consequently no claim is payable under the policy in question, for an alleged loss which took place in a location which is not covered.

Without prejudice to the aforesaid position it is noticed (a) no damage has occurred to the stock in a manner attributable to accidental outbreak of fire (b) you have been unable to submit any documentation to support the quantity or value of the stock in the aforesaid premises despite repealed opportunity and adequate notice given to you by the surveyors. (c) you have been unable to submit the supporting documentation in respect of the summarized records whereby it is established that your presentations are without any basis whatsoever, (d) you have been unable or unwilling to produce any records showing the stock holding at various locations declared in the policy which is an essential and basic document for the purpose of establishing your claim.

In view of the above, your claim under the policy is inadmissible and hence repudiated.”

10. It was denied that three complainants were insured by three banks. It was stated that fire was not accidental. The final surveyor requested that a clear set of 12 photos be taken and submitted with negatives. Best offer may be obtained for the salvage and sold after intimation to the surveyor.

11. Before discussing the submissions made by learned counsel for both the parties, it is necessary to go through the order dated 12.2.2007 passed by our previous Bench headed by Hon’ble Mr. Justice M. B. Shah:

“Again on 1.3.99 the complainants wrote a letter to the Insurance

Company stating that their claims had not been settled. Thereafter, the complaint was filed on 19.3.99 before this Commission and sent information on 24.3.99 to the Insurance Company about filing of the complaint before this Commission. Subsequently, the final survey report was alleged to have been prepared on 2.4.99, and, the Insurance Co. repudiated the claim by letter dated 29.6.99. It has been pointed out that ignoring the aforesaid details the Surveyor assessed the loss on the physical debris available after a lapse of 4 months, i.e. after heavy rains. Further, considering the nature of the goods it is difficult to assess its value on the basis of the debris. Assessment of loss on the basis of debris cannot be relied upon for reimbursing the loss suffered by the Complainant. He has assessed the loss for Priyalucksme Garments at Rs.37,56,976/- and deducted a large amount and assessed the net loss at Rs.24,34,578/-. He has ignored all the financial details given by the Complainants. Similarly, he has assessed the net loss to the machinery at Rs.2,07,477/- and the stock for loss of other two factories at Rs.1,69,751/- and Rs.5,25,799/-.

Considering the aforesaid record it appears that the Insurance Company was not justified in repudiating the claim on the ground that the insured failed to submit the relevant records demanded by the Surveyors. The Surveyor for the reasons best known to him assessed the loss on the basis of physical debris and on accounts/documents produced by the complainant. However, at present, it would be difficult for us to reassess the same on the basis of various documents which are sought to be relied upon by the complainant.

Hence, it is directed that firstly, the Insurance Co. shall pay to the Complainant the sum assessed as loss by the Surveyor i.e. in all Rs.33,37,605/- with interest at the rate of 12% per annum.

Secondly, in such circumstances and in view of the foregoing discussion, we have two options, namely:

(i) to direct the Insurance company to appoint a Chartered Accountant or a Surveyor having knowledge of accountancy to reassess the loss on the basis of the records which were produced and were handed over to the Surveyors by the Complainants. (ii) To direct the complainant to approach the Civil Court for claiming the remaining amount.” “In our view, after a lapse of 10 years, if we direct the complainant

to approach the civil court, it would be totally unjustified and it would cause further harassment to the consumer. So, we adopt the first alternative and direct the Insurance Company to appoint another Surveyor who is also a Chartered Accountant to assess the loss on the basis of the records already submitted to the previous Surveyor.

In the result, we for the time being direct the Insurance Company to pay to the Complainant:

(i) Rs. 26,42,05/- (ii) Rs.1,69,751/- (iii) Rs.5,25,799/- Rs.33,37,605/- as assessed by the previous Surveyors.

In all Rs.33,37,605/- with interest at the rate of 12% p.a. from 6 months after the date of fire, i.e. from 21.8.1998 till its payment. The insurance company is directed to make the said payment within six weeks from the date of this order.

The Insurance Company is also directed to appoint a Surveyor who is a Chartered Accountant to assess the loss on the basis of the records which are produced by the Complainant with the previous Surveyor and direct him to assess the loss not on the basis of the debris but on the basis of the stock which was in existence as reflected in the account books and other documents.”

12. Aggrieved by that order, the opposite parties approached the Supreme Court of India. The Supreme Court of India admitted the appeal but permitted the complainants to withdraw the amount. Civil appeal filed by the opposite parties was dismissed on 12.2.2007. Ultimately, the surveyor was appointed for assessing the loss, who filed their report on 15.12.2010. The Surveyor assessed the amount in the sum of Rs.52,65,423/-, Rs.14,94,827/-, Rs.60,40,069/- for the respective three firms. There was again inordinate delay in submitting this report which has to attributable to the opposite parties.

Submissions of the Advocate 13. We have heard the learned counsel for the parties. Learned counsel for the complainants vehemently argued that the Surveyor and Loss Assessor assessed the loss at a lower quantum by adopting erroneous method of assessment based on assumptions and conjectures. He did not take the records and books of accounts and other documents in entirety. The complainant also submitted a brief tabulated statement before this Commission summarizing the objection to the loss assessment report. Though this Commission had directed that the loss has to be assessed on the basis of stock and account books and other documents submitted by the complainants, the Surveyor has adopted varying standards and has applied several deductions without any scientific basis to reduce the claim. The complainants took main objection to the method adopted by the assessor in computation. It was argued that in the case of Priyalakshmi, the surveyor stated in their report at page 69 that the purchase of yarn and cloth for 1997-98 were verified with copies of purchase invoices furnished by the insured and found to be in order, yet, he has still assessed the claim on the basis of stock statement. It was contended that it is common factor that sometimes all the invoices may not be entirely reflected in the stock statement and there may be variance in the stock details given to the bank. It was further pointed out that assuming that the assessors are taking the stock statement as basis for their calculation, they should have adopted the same method for all the three firms. The surveyors have not assessed it uniformly. In one firm, they took the stock statement as the basis and ignore the invoices showing the entire purchase, while in other two, he took the invoices alone ignoring the stock statements. The reason for this is wherever the value is less, the surveyor has adopted the same, which is arbitrary and unfair.

14. It was also objected that assessors have not calculated the manufacture of cloth which involves several procedures when yarn is purchased and made into cloth. As a matter of fact, complete flow chart was filed by the complainant before this Commission to show the movement for the cloth from the yarn till the stage of finished products. Again semi-finished and finished goods were given values separately. Again the assessor did not take the documents for the period from 1.2.1998 to 21.2.1998 since the accident had occurred on 21.2.1998. During those 21 days, there was hectic activity for purchase and processing.

15. Again the surveyor committed a mistake in stating that there is a variable cost in respect of the material and processing between 1996 and 1998. There is no major variation. There is no basis shown by the surveyor. The cost has been arbitrarily reduced. The Surveyor has arrived at the cost of yarn and cost of fabrics on his own assessment.

16. It was also argued that the surveyor has valued the semi-finished and finished goods at actual average realization per piece during 1997-1998 less un-incurred expenses which is improper. He has reduced 26.14% per piece as un-incurred expenses which includes transport and freight and also bank interest. The Surveyor has failed to see that the bank interest is payable on working capital loan and the same is included to the cost of production whether it is transported or not. Again, without any scientific basis, it has deducted 10% towards export surplus and export rejects. The export rejects and export surplus are not more than 2% in hosiery field. It was also submitted that surveyor erred in assuming that the insured does not carry out any activity in its own premises. It is a mere assumption of the surveyor because some goods were laying outside the affected premises for carrying out some job work. The complainant submitted that the entire movements of the goods have been shown by them to the surveyor and less than 5% of the total goods would have been lying outside the factory for job work. However, the surveyor has estimated the goods lying outside the job work as 20% without any basis and deducted a huge amount.

17. Moreover, the surveyor has erroneously fixed the cost by replacing the machineries at a lower site which is even contrary to the earlier surveyor’s report. It was prayed that the complainants had submitted that they are very short simplified summary of difference in assessment with headings “For each of the three firms separately” alongwith his written submissions. The claim of the petitioner (less sum of Rs.33,37,605/-) should be allowed. A time of 16 years have elapsed from the said occurrence.

FINDINGS:

18. It is apparent that the complainants have raised all the objections merely for the sake of cavil. The report dated 7.12.2010 given by M/s Professional Surveyors & Loss Adjusters Pvt. Ltd. through Shri R. Srivatsan, Director appears to be without guiles. This must be borne in mind that he was engaged/appointed vide order passed by this Commission dated 12.2.2007, which observation was approved by Hon’ble Supreme Court. The said Surveyor has taken all the necessary facts into consideration. The opposite party appointed M/s Professional Surveyors and Loss Adjusters Pvt. Ltd., who is also a Chartered Accountant to assess the loss on the basis of record produced by the complainant in conjunction with the reports of previous Surveyors. The opposite parties have already deposited the excess amount as assessed by the 3rd Surveyor dated 7.12.2010 and this Commission has permitted the complainant to withdraw the same.

19. The Surveyor placed reliance on stock figures, which were the audited accounts and the stock statements submitted to the bank. To our mind, this is the solid and unflappable evidence. Although, there were certain discrepancies in the stock statement, yet, the Surveyor placed reliance upon them. The last stock statement before the fire was as at 31.1.1998. No evidence was adduced to show that there was purchases till 21.2.1998. Instead of rejecting the complainants’ books of accounts, which are of dubious nature, the surveyor placed reliance on the stock statement. It is not explained why there was difference between the books of accounts and stock statement.

20. The complainants could not produce any evidence to show that cutting waste of 1% from any of their records. The complainants mixed semi-finished and finished goods, which is not possible. The complainant could not show that export surplus would be only 2% and could be disposed of at 70 % of cost. Export surplus and rejects arise out of extra production to avoid shortage in exportable goods in the last minute, quality and line rejections etc. and as per industry specialists it would be more than 10%.

21. The complainants failed to show the quality of goods lying with job workers. The complainants gave out material on job work virtually for all processes like fabrication, cutting, dyeing, bleaching, screen printing, steam calendaring, embroidering etc. These stocks were outside with job workers. Consequently, 20% deduction for goods with job workers is fair and reasonable.

22. We find considerable force in the arguments urged by the learned counsel for the opposite party that accepted cost accounting practice take 50% of the conversion cost as production cost. It is not fair to take 100% production costs. The Surveyor had applied production costs only on “Cloth”. The Surveyor cannot include “Screen Printing Expenses” and “Printing Wages” which are incurred after the cloth is converted into garments. The complainants production cost of Rs.169.26 per kg is wrong. If the activities are carried out on job work it is but natural that more stocks would be lying outside with job workers. Learned counsel for the opposite parties contended that in fact goods with job workers would have been more than 20% but the Surveyor has more than reasonably considered only 20%. The books of accounts of the complainants do not show that they had only 5% of stocks, which were lying outside.

23. In the case of Sri Priyalakshmi Exports , the Surveyor has verified the record upto 21.2.1998. According to the opposite party, the complainant could not explain why there was difference between the books of accounts and the stock statement submitted to the Bank in respect of yarn and cloth. Again, the complainant could not show that they did not export 14275 garments when they had a stock of 17,388 pieces from July 1997. We find considerable force in the argument urged by the learned counsel for the opposite party that this clearly means that the alleged stock of 17,388 peces were either non existent or non-exportable.

24. The records of Priyalakshmi Apparels were also verified upto 21.2.1998. The complainant did not produce the original purchase bills. 25. It must be mentioned here that the 3rd Surveyor assessed the loss after the expiry of 12 years. Due to lapse of time, some discrepancies could be there but there is no solid or concrete proof which may lead to the rejection of the report in its entirety. All in all, we agree with the finding given by the 3rd Surveyor. However, we will consider this fact while awarding the compensation. The Fabian policy adopted by the opposite party which is double edged sword is another factor which requires consideration at the time of awarding compensation.

26. We direct the opposite parties to pay the complainants a sum of Rs. 74,69,331, Rs. 14,25,073, Rs. 9,08,459/-, respectively, within a period of 90 days from the receipt of this order with interest @12% per annum from the date of incident i.e. 21.2.1998. The amount including interest which has already been deposited or paid shall be adjusted. We also impose compensation in the sum of Rs. 5,00,000/- [Five Lakh Only] which be paid within 90 days from the receipt of this order else it will carry interest at the rate of 12% p.a. till its realization.

27. The complaint stands disposed of. .…..…………………………

(J. M. MALIK, J) PRESIDING MEMBER

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

Naresh/17 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1617 OF 2014 (From the order dated 27.09.2013 in First Appeal No. 329/13 of the State Consumer Disputes Redressal Commission, A.P., Hyderabad) WITH IA/2154/2014 IA/2155/2014 (STAY, CONDONATION OF DELAY)

Regional Provident Commissioner, Guntur Through Asstt. P.F. Commissioner (Legal), Delhi 28, Bhavishya Nidhi Bhawan, Wazirpur Industrial Area Delhi-110052 … Petitioner

Versus S.Siva Sankar Rao S/o Vekanteswarlu R/o H. NO. 12-17-9472, Repalle, Dist. Guntur … Respondent

REVISION PETITION NO. 1618 to 1620 OF 2014

REVISION PETITION NO. 1645 and 1796 OF 2014

For the Petitioner : Mr. Shivanath Mahanta, Advocate

Pronounced on : 1st May, 2014

O R D E R

JUSTICE J. M. MALIK, PRESIDING MEMBER 1. This common order shall decide above detailed six revision petitions. We have taken the facts from revision petition No. 1617 of 2014 titled as Regional Provident Fund Commissioner, Guntur through Asst. P.F. Commissioner-Legal, Delhi vs. S. Siva Sankar Rao. 2. The State Commission had decided 50 cases through one common order. Before us, revision petitions were filed against 38 appeals. However, out of 38 revisions, 28 revision petitions were dismissed as withdrawn. Now, 13 revision petitions are pending before us. 3. Out of these revision petitions, we have issued notices in Revision Petitions No. 1588, 1644, 1795, 1781, 1782 and1783 of 2014. 4. There is a delay of 61 days in filing the revision petitions No. 1617, 1618, 1619, 1620 of 2014. Also, there is a delay of 62 days in filing revision petition No. 1645 of 2014. There is a delay of 78 days in revision petition No. 1796 of 2014. In each revision petition, an application for condonation of delay has been filed. Each case has the same ground for condonation of delay. 5. The delay has been explained in paras, 3, 4, 5, 6, and 7 of the application for condonation of delay moved in revision petition No. 1618 of 2014 titled as Regional P.F. Commissioner Guntur through Asst. P.F. Commissioner (Legal) Delhi vs. Ch. Nageswara Rao, which read: “3. That on 21.10.2013, certified copy of the order got ready by the

registry of the State Commission, and on 31.10.2013, Certified copy was received by the office of the Sub- Regional Office Guntur. 4. That thereafter on 10.01.2014, after verification of the order in respect of 50 appeals RPFC-Guntur communicated the office of RPFC-Delhi to file revision petition in respect of 12 caes. 5. That after receiving communication from SRO-Guntur Regional Office further examined the case in view of the circular issued by the department and judgments’ passed by this Hon’ble Commission in identical matters, hence it took time to take decision. 6. That thereafter on 20.02.2014 Panel counsel engaged for filing Revision Petition and after receiving the required documents from RPFC-Guntur this petition got prepared. 7. That as the three offices one at Guntur, 2 nd one at Hyderabad and third one at Delhi are involved in decision making process this delay in filing the instant revision petition.”

6. We are not satisfied with the reasons given in the application for condonation of delay. The Apex Court has already held that departmental delay cannot be made a ground for condonation of delay. The expression ‘sufficient cause’ cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach, which would defeat the very purpose of Section 5 of the Limitation Act and defeat the very purpose of Consumer

Protection Act. There must be some cause which can be termed as sufficient one for the purpose of condonation of delay.

7. Recently the Supreme Court of India in an authority reported in case of Office of the

Chief Post Master General & Ors. Vs. Living Media India Ltd. &Anr. 2012 STPL(Web) 132

(SC) held:

“13. In our view, it is the right time to inform all the government

bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there

was bonafide effort, there is no need to accept the usual

explanation that the file was kept pending for several months/years

due to considerable degree of procedural red-tape in the process.

The government departments are under a special obligation to

ensure that they perform their duties with diligence and

commitment. Condonation of delay is an exception and should not

be used as an anticipated benefit for government departments. The

law shelters everyone under the same light and should not be

swirled for the benefit of a few. Considering the fact that there was

no proper explanation offered by the Department for the delay

except mentioning of various dates, according to us, the

Department has miserably failed to give any acceptable and cogent

reasons sufficient to condone such a huge delay.

Accordingly, the appeals are liable to be dismissed

on the ground of delay.”

8. It is also pertinent to mention here that in these cases, day to day delay was not explained. The cases are barred by limitation.

9. This view neatly dovetails with the following authorities. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011)

CPJ 63 (SC),R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT

701=2009 (2) Scale 108, Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme

Court 361, and Bikram Dass vs. Financial Commissioner and Ors. AIR 1977 SC 1221.

10. The latest view taken by the Supreme Court is in Civil Appeal No. 19896 of 2013 in the case “M/s Ambadi Enterprise Ltd. Vs. Smt. Rajalakshmi Subramanian”, decided on 12th July 2013 wherein SLP was dismissed upholding the judgment of this Commission, where the delay of 78 days was not condoned. 11. Again the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 33792 of 2013 in Chief Officer, Nagpur Housing & Area Development Board &Anr. V. Gopinath Kawadu Bhagat, decided on 19.11.2013, upholding the order of this Commission where 77 days delay was not condoned. 12. Above all, in Sanjay Sidgonda Patl Vs. National Insurance Co. Ltd. & Ors.,decided by the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 37183 of 2013, decided on 17.12.2013, upholding the order of this Commission wherein delay of 13 days was not condoned.

13. Consequently, we find that the case is barred by time. However, we refrain from giving the view on the merits of this case.

14. Now let us advert to the merits of this case. 27 identical matters have been decided by this Commission on 09.04.2014. The main revision petition is revision petition No. 765 of

2014 titled as Assistant Provident Fund Commissioner vs. Vasant Madhav Kerur decided on

9.4.2014. The issues raised therein are almost similar to the issues raised in these revision petitions.

15. However, the facts of revision petition No. 1618 of 2014 titled as Regional

P.F. Commissioner through Asst. P.F. Commissioner (legal) Delhi vs.

Ch.Nageswara Rao are these. The complainant worked as a conductor in the Andhra

Pradesh State Road Transport Corporation, Repalle Guntur District. He had rendered 10 years’ service upto 15.11.1995 and till his retirement, he served total service as 25 years. The complainant was a member of family pension Scheme 1971 and paid his hard earned money under such pension scheme. His past service contributions were not calculated. The complainant opted the Employees’ Pension Scheme 1995. The Regional

Provident Fund Commissioner, opposite party No. 1 and Assistant Provident Fund

Commissioner, opposite party No. 2 failed to give weightage of two years under para 10(2) of the Employees’ Pension Scheme 1995 and wrongly fixed the pension as Rs.1656/- instead of

Rs.2378/-.

16. The complaint was filed before the District Forum. The District Forum allowed the complaint and directed the opposite parties to fix the pension of the complainant at Rs.2023/- per month raising from Rs.1656/- the earlier fixed pension w.e.f. 1.12.2010. The opposite parties were directed to pay arrears of provident fund @ 367/- per month till fixation of pension at Rs.2023/-

17. Aggrieved by this order, the opposite parties preferred an appeal before the State

Commission. The State Commission dismissed the appeal of the complainant alongwith 49 other appeals. 18. Learned counsel for the petitioner argued that these cases are different from six other cases in which the notices were issued by this Commission. In these cases, the ‘past service’ is also included in pensionable service and two years weightage was extended. Further while doing so, following provisions were not taken into consideration. It was argued that ‘past service’ and ‘actual service’ is to be added only to decide eligibility for pension and EPS 1995 explicitly provides for the same.

19. Again, past service i.e. contributory service under EFPS 1971, prior to 16.11.1995 the contribution rate was only 1.16 % + 1.6% + 1.16%, whereas it is 8.33% +1.16% under EPS-

1995. Consequently benefits cannot be the same for different contributory rates, therefore, the provisions of EPS-1995 specifically provides different benefits for past service and pensionable service. Consequently these persons are not eligible for second years’ weightage.

20. All these arguments are bereft of merits. Para 10(2) of the EPS 1995 clearly, specifically and unequivocally provides that ‘who superannuates on attaining the age of 58 years and who had rendered 20 years pensionable service,’ his pensionable service shall be increased by adding a weightage of two years. The pensionable service is a service for which contributions are received or receivable under new Scheme [Para 2 (xv)] whereas ‘past service’ means service rendered by an existing member from the date of attaining till

15.11.1995 [ Para 2(xii)].

21. The State Commission has placed reliance on the above detailed judgment passed by this Bench III (2013) CPJ 244 NC between Assistant Provident Fund

Commissioner, Raichur vs. Vasant Madhav Kerur and Others, another judgment of this

Commission reported in Regional Provident

Fund Commissioner vs. Mallikarjun Devendrappa Varapur, in revision petition No. 3970 of

2009 dated 29.6.2010.

22. For the reasons detailed above and the reason given in the case of Assistant Provident

Fund Commissioner vs. Vasant Madhav Kerur, we hereby dismiss the revision petitions. It is always desirable that the pensioners should be treated with kid-gloves but it is unfortunate that in our times, there are exasperated by senseless delay. The department is always interested in wasting more money and time when it is involved in such like frivolous and vexatious litigation. Therefore, we dismiss all the revision petitions with costs of Rs.10,000/- each under Section 27 of the Consumer Protection Act, 1986, which be paid to the respondent/complainant through demand draft within 90 days otherwise it will carry interest

@12% p.a. till its realization. .…..………………………… (J. M. MALIK, J) PRESIDING MEMBER

.…..………………………… (S. M. KANTIKAR) MEMBER Naresh/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3884 OF 2013 (From order dated 27.08.2013 in First Appeal No. 536/2012 of the State Consumer Disputes Redressal Commission, Tamil Nadu, Chennai) WITH IA/6918/2013 (STAY)

Canara Bank Through its Manager West Mambalam Branch 23 Postal Colony, 3rd Street, Chennai-600033 … Petitioner

Versus Mrs. S. Vasudharini F-1 “Renga Vilas” 11/1 (old-6) Postal Colony 2nd Street, West Mambalam Chennai- 600033 … Respondent

For the Petitioner : Mr. Rakesh Pathak, Advocate

For the Respondent : Mr. V. Chokalingham, Advocate

Pronounced on : 1st May, 2014

JUSTICE J. M. MALIK, PRESIDING MEMBER 1. Counsel for the parties present. Arguments heard. Mrs. S. Vasudharini, the complainant obtained Kamadhenu Deposit Scheme on 10.10.2006. According to her, she made a deposit of Rs. 1,00,000/-, for which she made a payment of Rs. 50,000/- by way of cash and for the balance amount of Rs. 50,000/- she paid the same through cheque. The Canara Bank- the Opposite Party issued the Kamadhenu Deposit Scheme i.e. FDR in favour of the complainant in the sum ofRs. 1,00,000/-. On maturity, she got back Rs.1,00,000/- together with interest in the sum of Rs. 7187/-. 2. In the month of September 2009, it transpired that the complainant had not deposited Rs. 50,000/- in cash. The Canara Bank/OP unilaterally debited the sum of Rs.

61,383/- without any written communication. She approached the Bank and it replied that the amount paid in cash on 10.10.2006 was not credited in her account book and it is to be presumed that no cash in the sum of Rs. 50,000/- was paid by her in cash. 3. The defense set up by the petitioner/OP is that she could not produce the receipt of deposit of Rs. 50,000/- or any other evidence to show that the she paid the amount of Rs. 50,000/- in cash. The Bank admits that it realized the mistake and debited the amount of Rs. 61383/-. The contention raised by the counsel for the petitioner is that prior notice was sent to her. The notice was given by the Bank on 25.09.2009. On the same day the petitioner had suo moto debited the amount without hearing the complainant. The District Forum dismissed the complaint. 4. However, the State Commission allowed the complaint and directed the Opposite Party to return a sum of Rs. 61,383/- with interest @ 9% p.a. alongwithcompensation in the sum of Rs. 1,00,000/- for causing mental agony. 5. We have heard the counsel for the petitioner. He submits that this is a bonafide mistake on the part of the Bank. Although, this stand was not taken in the written version, yet, the counsel for the petitioner submits that there was a mistake due to upgradation in the computer system. He further submits that a departmental enquiry was held against two persons, namely, N. Kalyanaraman and Meena Chandrasekar but no action was taken against them as is apparent from the order itself. There is no evidence that the matter was reported to the highest authorities. The counsel for the petitioner lastly, pleaded that if the respondent produces the receipt or any other evidence, she would have a very good case. In the absence of the evidence, the case of the complainant falls flat. 6. All these arguments have left no impression upon this Commission. OP has committed an egregious mistake. First of all, how they gave the KamadhenuFDR without receiving the sum of Rs. 50,000/-. The story propounded by it does not just stack up. Secondly, no action was taken against the wrong doers. It appears that the Senior authorities were working in cahoots with the Junior Officers. As a matter of fact junior officers are liable to pay a sum of Rs. 25,000/- each for the negligence, inaction and passivity on their party. Again, there is no evidence that such matter was reported to the highest authority of the Canara Bank. It appears that the Bank is terribly remiss in discharge of its duty. The attitude of authorities adds a shocking dimension to the situation. Whether the facts of this case have been hidden from the in-charge of the Bank? 7. Again, there is another deficiency on the part of the petitioner i.e. they remained silent for a period of three years. No action was taken by them. They did not know that the amount was not paid for the last three years. Perhaps there is no audit examination. All the matters are done in a happy go lucky manner.

8. Again the amount of Rs. 61,383/- was suo moto debited from the account of the petitioner arbitrarily and capriciously. The Bank had no courtesy to inform the complaint that this mistake was committed by them and they were going to rectify the same. No show cause notice was given before the amount was debited. The suo moto action was taken on the same day when the notice was authored. 7. The arguments put forward by the counsel for the petitioner that he should have produced the receipt of deposit of Rs. 50,000/-. Is bereft of merit. Can one keep the receipt for such a long time? Receipts are preserved for a week or two. Counsel for the petitioner argued that she did not embolden her case with any other evidence. We are fail to understand, what is any other evidence. It must be borne in mind that it is a Bank and nobody else, but the bank itself has to carry the ball in proving its case against the complaint. The State Commission has rightly held :- “ Though the Fixed Deposit has been discharged even during 2007 itself, the

opposite party had an audacity to recover a huge amount ofRs. 61383/-, claiming that there is no entry in the ledgers, for the payment of cash of Rs. 50,000/- during 2006. When specific questions were asked to the opposite party about the contemporaneous materials and about the action initiated against the erring officials, the reply was negative. We can safely conclude that therefore some officials, who were handling the cash transactions during the relevant period, would have failed to make an entry in the ledger and committed misappropriation, and shifting blame on the customer, without intimation and unilaterally debited a huge amount. Banking system is based on trust and faith. The Banks act as custodian of

public money and they are accountable. They have acted in an irresponsible and negligent manner. The Opposite party is a Public Sector nationalized Bank performing public duties and they should function fairly. If not, it will definitely erode the image of the Bank and demolish the confidence of the public in the Banking system, which is not good for banking institutions and general public. And again it mentions in Para No. 9:- “ 9. This is a classic case of fraudulent transaction by the bank. We do not

want to leave the case as such. Though we can forward the allegations made in the complaint, to one of the police investigating agencies to proceed with the bank and its officials, we leave the option open to the complainant to proceed with the bankers for the alleged fraud committed.” 8. The order passed by the State Commission cannot be faulted. The compensation granted in the sum of Rs. 1,00,000/- is correct. The Revision Petition is dismissed but there will be no orders as to costs.

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

.…..………………………… (S. M. KANTIKAR) MEMBER Jr/12 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3614 and 3615 OF 2013 (Against the order dated 08.11.2012 in First Appeal No. 817/2008 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh) WITH IA/6420 and 6421/2013 (CONDONATION OF DELAY)

1. Sunil Kumar 2. Sonit Kumar Both sons of Ramesh Kumar C/o Parkash Chand Ramesh Kumar, Karyana Merchant, Anaj Mandi, Sangrur ...... Petitioners Versus The Administrator, New Mandi Township, Punjab, SCO No. 2437-38, Sector 22-C, Chandigarh …….Respondent

For the Petitioner : Mr. Harish Bhardwaj, Advocate For the Respondent : NEMO

Pronounced on : 1st May, 2014 O R D E R JUSTICE J. M. MALIK, PRESIDING MEMBER 1. This common order shall decide both the revision petitions, detailed above, which are between the same parties as common question of law and facts of law arise. 2. There is delay of 196 days in filing both the revision petitions. In both the cases, the petitioner has moved applications for condonation of delay. The delay is explained in paras 2, 3, 4 and 5, which are reproduced as under:

“ 2. That the petitioner is aggrieved since the State Commission passed said impugned order dated 08.11.2012, whereby it has disposed of the appeal filed by the petitioner on the statement made by the counsel for the respondent that wires in dispute will be got shifted by the Respondent within 6 months and the grievance of the Petitioner will be redressed.

3. That it is pertinent to mention here that the counsel for the respondent had made a statement during the course of the First Appeal No. 817 of 2008 qua the fact that the wires in dispute will be got shifted by them within a period of six months. The petitioners kept on waiting for the removal of the wires, electric poles and transformer within six months. Though the petitioner had removed the wire on 04.08.2013 but the electric poles and transformer have still not been removed. The petitioner approached to the respondent and requested them to comply with the order in its true letter and spirit but they kept on assuring the petitioner that they will comply with the order.

4. That the period of six month granted to the respondent expired on 07.05.2012 thereafter the period of limitation commenced on 08.05.2013 and the same expired after lapse of mandatory 90 days ( i.e. 05.08.2013) consequently a delay of 65 days has occurred in filing this revision petition since the petitioner repeatedly approached the respondent for compliance of the impugned order dated 08.11.2012 as the respondent deliberately avoided the compliance of the said Order even after the expiry of the 6 months period specified in the impugned Order and on persistent efforts of the petitioner, the respondent just before the expiry of the mandatory 90 days, on 04.08.2013 removed only the wires leaving the poles and the transformer on the said land rendering it unusable.

5. That the petitioner again after vigorously perusing with the respondent for complying with Impugned Order for 30 days from the date of removal of the wires (i.e. 04.08.2013) subsequently approached his counsel at Chandigarh, who in turn after drafting the present petition send it to his Associates for filing this petition with this Hon’ble Commission. The aforesaid delay has occurred due to the facts stated above and the circumstances beyond the control of the petitioners and the petitioners will suffer a lot if the aforesaid delay is not condoned.

3. This must be pointed out that the petitioners had purchased the houses in an open auction held on 4.10.2006. The District Forum allowed the complaint. The State Commission partly admitted the claim. The State Commission vide its order dated 8.11.2012 passed the following short order:

“ Sh. Sandeep Singh, Assistant Advocate General, Punjab alongiwth Sh. Joginder Singh, Law Officer of the respondent made a statement that the wires in dispute will be got shifted by the respondent within six months as the respondent had already received the Estimate from the P.S.P.C.L. vide letter dated 12.10.2012. The counsel for the appellants also made that the appeal may be disposed off as per the statement of Sh. Sandeep Singh, Advocate.

The counsel for the respondent requested that the compensation and costs awarded by the District Forum may be waived off.

As the counsel for the respondent made the statement that the wires will be got shifted within six months and the grievance of the appellants will be redressed, as such, the compensation and costs awarded by the District Forum is waived off.

The appeal is accordingly disposed of.” 4. In support of the case, on both these issues i.e. on condonation of delay and on merits, learned counsel for the petitioner has placed heavy reliance on the judgment of this Commission in the case of Haryana Urban Development Authority & Anr. Vs. Suneja & Sons, revision petition NO. 2951 of 2009, decided on 18.8.2011. In para 22 of the judgment, it was held: “ 22. There is considerable force in the submissions of Mr. Pattjoshi regarding insufficiency of the grounds cited by the petitioners for condoning the long delay of 144 days in filing this revision petition. Prima facie, the causes cited by the petitioners in their application are to better than mere narration of the labyrinthine journey of the file/s in the process of decision-making, without any supporting documentation and cannot be said to constitute “sufficient cause”, under Section 24A of the Act, to warrant condonation of such a long delay. However, the revision petition raises some important points of law that have wider ramifications and it would be desirable in the interest of the consumers as well as the Development Authorities like the petitioners to address these points. It is with this view that I am inclined to condone the delay in this case, subject to the petitioners depositing a sum of Rs.10,000/- with the Consumer Legal Aid Account of this Commission and paying a like cost to the complainant within four weeks of the date of this order.”

Again in clause (ii) of para 24 of the judgment while distinguishing that case with the case of UT Chandigarh Administration vs. Amarjeet Singh II (2009) CPJ 1 (SC), it was further held:

“(ii) This is so in view of the explicit provisions of Clause 6 of the letter of allotment, already reproduced above, according to which the Development/Housing Authority like the petitioner/s unambiguously promised to offer possession of the auctioned plot of land “on completion of development works in the area” In a situation like this, the auction purchaser of an existing site/plot/house will certainly be a “consumer” of, an accord with the provisions of Section 2(1)(d)(ii) of the Act, the promised developmental “service” of the Authority in question, from the date of the letter of allotment till such time the promised service/s is/are delivered to the satisfaction of the purchaser, in accordance with the service provider’s i.e. the Authority’s commitment in this behalf. The ruling of the Apex Court in the UT Chandigarh case does not, in my respectful view, cater for a situation where an auction purchaser buys an existing plot of land, not on “as is where is” basis but with an explicit commitment on the part of the original owner/auctioning entity to offer possession after completion of development works in the area. It is also true that in neither of the two cases quickly following the UT Chandigarh case (as cited by Mr. Pattjoshi, vide paragraph 22(ii) above) did the Apex Court find it fit to disentitle an auction purchaser to its simultaneous identity of a “consumer” under the Act. Therefore, the principal legal ground on which this revision petition is based has to be firmly rejected.” 5. Learned counsel for the petitioners fairly admitted that no commitment or promise was made in the allotment letter in their case as in the case of Haryana Urban Development Authority & Anr. Vs. Suneja & Sons, revision petition No. 2951 of 2009. However, learned counsel for the petitioners submitted that learned counsel for the opposite party had given an undertaking that opposite party would remove the wires and which were actually removed. That claims already stand satisfied. Moreover, this was not a commitment made in the allotment letter. It was the compromise matter settled between the parties before the State Commission. 6. We are of the considered view that the present case is squarely covered under the Apex Court authority in UT Chandigarh Administration vs.Amarjeet Singh II (2009) CPJ 1 (SC). The petitioners are not the consumers. 7. Now we turn to the question of limitation. The State Commission vide its order did not adjudicate other matters. The question of removal of two electric poles inside the plot and transformer in front of the plot was not adjudicated. The question of interest was not decided. The petitioner should have lost no time in filing the present revision petition to get relief about the same. However, there is delay of 196 days, which remains unexplained. The reasons given by the petitioners are not satisfactory. They should have filed the revision petition within 90 days from the order of the State Commission dated 8.11.2012, except for wires which have already been removed. The other causes of action were not adjudicated. Even if, the version of the petitioner is admitted there is no specific explanation as to why there was delay of 65 days. The day to day delay was not explained. The case fully dovetails with the supreme court authorities reported in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108 and Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, Bikram Dass vs. Financial Commissioner andOrs. AIR 1977 SC 1221. 8. Even the delay of 65 days is fatal. The revision petition are, therefore, dismissed as barred by time and with the observations that the consumer fora has no jurisdiction to try the cases of open auction. However, the petitioner can agitate this question before the appropriate forum as per law but the question of limitation is being kept upon.

9. Both the revision petition are hereby dismissed. .…..………………………… (J. M. MALIK, J) PRESIDING MEMBER

.…..………………………… (S. M. KANTIKAR) MEMBER Naresh/reserved NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

CONSUMER COMPLAINT NO. 89 OF 2014

1. Niloba Ghanshyam Naik 2. Mrs. Yogita Niloba Naik

Both R/at A-501, Shivam-2, Raheja Complex, Malad (East) Mumbai – 400097 … Complainants Versus 1. Lodha Pranik Developers Pvt. Ltd. (Earlier known as Pranik Landmark Associates)

2. Mr. Mangal Prabhat Lodha, Chairman Lodha Group, 3. Mr. Abhishek Lodha, M.D. Lodha Group, 4. Mr. Abhinandan Lodha, Dy. M.D. Lodha Group Having address at : Lodha Excelus, Apollo Mills Compound, N.M. Joshi Marg, Mahalaxmi, Mumbai – 400011 … Opposite Parties

BEFORE:

For the Complainants : Mr. Nagaraj V. Hoskeri, Advocate

Pronounced on : 1st May, 2014 O R D E R

JUSTICE J. M. MALIK, PRESIDING MEMBER

1. There is a delay of 207 days in filing the instant complaint. The complaint was filed on 1.4.2014, whereas the cause of action had arisen on 21.12.2010 and at the most on 6.11.2011.

2. Learned counsel for the complainants has filed an application for condonation of delay, which also contains the facts of this case on merits, as well. Mr.Niloba Ghanshym Naik and Mrs. Yogita Niloba Naik, husband and wife, respectively, booked 4 BHK flat with the Lodha Pranik Developers Pvt. Ltd.-opposite party No. 1 and its Chairman, Mr. Mangal Prabhat Lodha, opposite party No. 2, M.D. of Lodha Group, Mr. Abhishek Lodha, opposite party No. 3 and Mr.Abhinandan Lodha, Dy. M.D. Lodha Group, opposite party No.4. The consideration of the said flat was Rs.4,90,73,850/- in the building known as “Exclusive Tower-Fiorenza” at Lodha Fiorenza, Goregaon East, Mumbai and accordingly paid a sum of Rs.9 lakh by cheque on 13.11.2010 as part of the total consideration amount and the opposite parties had issued receipt of the same. 3. However, the opposite parties did not execute the registered agreement for sale of the said flat and violated the provisions of Section 4 of the Maharashtra Ownership Flats Act, 1963. ( in short, ‘MOFA’). Several requests were made orally as well as in black and white but the request made by the complainants fell on deaf ears.

4. The succinct facts of the case are as follows. The complainants paid a sum of Rs. 9 lakh by cheque dated 13.11.2010 to the opposite parties. The complainants sent email to the opposite parties requesting them to give time to make payment till 10.1.2011 and not to charge interest for the same on 21.12.2010. The opposite parties replied through email informing that they want some more time to discuss with the superior officers for the grace period. On the next very day i.e. on 22.12.2010, the opposite parties through email informed the complainants that they would give only 3 days grace period for depositing the amount. The complainants replied that 3 days’ time was not sufficient for depositing the huge amount of Rs.40,07,385/- and the opposite parties were making fun of their request. They asked for refund of the earnest amount of Rs. 9 lakh by cancelling the booking. On 23.12.2010, the complainants sent email to Mr. Ashutosh Khatawakar, Deputy General Manager of Lodha Group and requested him to look into the matter and allow him to make payment on or before 10.1.2011 otherwise their booking should be cancelled and the amount be refunded.

5. Till 11.1.2011, the opposite parties did not respond. Due to frustration, the complainants wrote letter to the opposite parties for refund of the earnest money after cancelling the booking on 11.1.2011. On 30.8.2011, the complainants sent another email to the opposite parties and once again requested for refund of the earnest money. On 6.9.2011, the opposite parties informed the complainants that the amount of earnest money was forfeited.

6. Vide letters dated 2.10.2011 and 14.6.2013, the complainants asked the opposite parties to execute the agreement for sale of the said flat or in the alternative refund the earnest money because there was deficiency on their part and unfair trade practice. The said letter was replied by opposite parties on 7.10.2013 denying all these facts. Legal notice was issued on 11.11.2013. It is explained that under the circumstances, there is no delay in filing the present complaint. However, as an abundant precaution, the application for condonation of delay has been filed on record.

7. It is further explained that on 2.2.2014, the father of the complainant No. 1 expired and due to his sudden demise, he could not file the complaint in time as he was busy with the last funeral rites of his father at his native place. Immediately after his arrival in Delhi, he signed the complaint on 28.3.2014. It is explained that in the reply notice dated 7.10.2013, the opposite parties for the first time came with a case that flat booked by the complainants stood cancelled and the amount of Rs. 9 lakh was forfeited. It is contended that cause of action arose on 7.10.2013.

8. The learned counsel for the petitioner argued that there is deficiency on the part of the opposite parties, firstly, they did not execute the agreement and secondly they delayed the matter for one reason or the other. He argued that above all, the opposite parties have tried to grab the amount of Rs.9,00,000/- belonging to the complainants. He contended that this is not a case of recovery of Rs.90,000/-. The prayers made in the complaint runs as follows:

“a. To hold and declare the Opp. Parties to be guilty of deficiency in

service and unfair trade practice as per the provisions of the Consumer Protection Act.

b. To direct the Opp. Parties to execute registered agreement for sale in respect of Flat No. 2501, having four luxurious bed in the Building known as “Exclusive Tower-Fiorenza” at Lodha Fiorenza, Goregaon East, Mumbai (3150 Satt) in favour of the complainants and after accepting the balance consideration amount of the said flat, as per the progress of the construction as per the provisions of MOFA, the vacant and peaceful possession of the said flat be handed over to the complainants along with proper documentation and do the incidental thing thereafter.

c. In the alternative, it is prayed that the opp. Parties may be directed to hand over identical flat for same agreed price in the same locality in case of any technicality in handing over the originally booked flat.

d. In case of failure to hand over the possession of the said flat for any technical reason beyond the control of the opposite parties, as mentioned in prayer clause (b) and (c), then the Opp. Parties may be directed to refund the entire amount of Rs.9,00,000/- received bycheque dated 13th November, 2010 as part of the consideration amount, and also pay an additional amount of compensation of Rs.1,25,00,000/- along with 18% interest per annum on the said amount from the date of filing of the complaint as per para 10 of the complaint.

e. To pay compensation of Rs.2,00,000/- towards mental torture, harassment, inconvenience etc. caused to the complainants and the legal and other allied expenditure.

f. To pay Rs.1,00,000/- towards the costs of the complaint.

g. Any other relief/s as this Hon’ble Commission may deem fit and proper may be awarded in favour of the complainants.”

9. Learned counsel for the complainants has also submitted the written arguments as well and cited six authorities. In Lata Construction and Ors. Vs. Dr.Rameshchandra Ramniklal Shah and another AIR 2000 SC 380, wherein agreements were executed. Second agreement was also executed. It was held that this cause of action in regard to claim for possession was continuing cause of action. It is thus clear that this authority does not apply to this case. The facts of this case in hand are peculiar. There may be some deficiency on the part of the opposite parties. However, we are not discussing deficiency on the part of the opposite parties. That question is being kept open. In the instant case, no agreement was executed. No brochure was produced. There was no question of forfeiture of the amount in the cited authority. No such contract was entered into between the parties. Likewise another authority reported in Meerut Development Authority vs. Mukesh Kumar Gupta IV (2012) CPJ 12 (SC) is also not applicable to this case. In that case, there was allotment of plot. He has also cited another authority of this Commission reported in Meerut Development Authority vs. Ashok Kumar Sood, revision petition No. 2267 of2012 decided on 3.9.2012 authored by one of us (Hon’ble Justice J. M. Malik), which is also not applicable to this case. The facts of that case also do not match with this case. He has also referred to another authority of Mumbai High Court reported in S. Irani (Sorkhab) vs. M/s Dinshaw & Dinshaw 1999 ALL MR (Cri) 57 wherein it was held that offence under Section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 is a continuing offence under the criminal law. There is also judgment in first appeal No. A/10/744 of the MaharasthraState Consumer Disputes Redressal Commission. The facts of this case are altogether different. 10. The complainants have placed a number of correspondences on the file in regard to the request to extend the time for payment of Rs.40,07,385/-. There is another letter dated 22.12.2010 sent by the complainants which is reproduced as under:

“Dear Sarina,

I am surprised to see your mail reply and granting me 3 days grace time.. Is this a fun of my request or what? Can you give me the name of some senior person to whom I can meet tomorrow and understand your entire process of making balance payments in regular intervals because when I booked the flat all these things are not explained to me and even I am not very clear when the property will be ready for possession…. No brochures were also available to see…. Also please let me know if I cancel the deal then when I will get my money back so that it will help me to take the decision accordingly. Pl. treat this as urgent because every time getting you contacted on phone is also very difficult which you can see from my yesterday’s mail…. If this is how the beginning happens then I don’t know what will be the approach for remaining five years. Any way reply me urgently.”

There are other correspondences between the parties but the letter dated 6.9.2011 is crucial, which is produced:

“Dear Mr. Naik,

Greetings from Lodha Group !

Further to your below email, kindly note I have checked and can confirm that we will not be refunding the booking amount.

This is as per the terms and conditions of the application form,

which you have signed at the time of booking the said residential flat. It states “ in the event, the Applicant wishes to withdraw from/cancel this application for any reason whatsoever prior to allotment of the said residential flat, the Booking Amount paid by the applicant shall stand forfeited.”

The complainants sent another letter dated 2.10.2012, which runs as follows:

“Ms. Sneha, Lodha Group

Mumbai

Dear Ms. Sneha,

Thanks for your call day before yesterday and it was nice talking to you. As suggested by you in order to enable you to initiate the refund process, I am sending herewith the soft copy of the letter which I have already submitted for cancellation of the booking of flat bearing NO.2501 in Lodha Fiorenza, Exclusive Tower, Goregaon East.

As agreed, I request you to process the papers urgently and refund the earnest amount of Rs. 9 lakh paid by me.”

Appreciate your cooperation !!

Thanks & regards”

11. For the following reasons, we find no merits in the arguments urged by learned counsel for the complainants. There is no allotment letter. It is not known whether the terms and conditions were settled between the parties. It is also difficult to fathom why the opposite party had asked the complainants to deposit a sum of Rs.40,07,385/- within a period of 3 days. There is no inkling about any such term or condition. In absence of this kind of evidence the position does not begin to jell. It may be correct that the opponent was deficient in not executing the agreement but it should have been executed on 22.12.2010 when the first alleged installment was handed over to the opposite parties. The cause of action had arisen on 22.12.2010. It was just like putting the cart before the horse. The petitioners should have insisted the opposite parties to furnish them the terms and conditions or execute the agreement on 22.12.2010 itself. It may be a contributory negligence. There is not even an iota of evidence on record to reveal that any house was allotted in favour of the complainants.

12. Again, the complainants were bound by the oral term raised by the opposite parties that if they did not pay the said amount within three days, the opposite parties would have no option but to cancel the booking. Why did the opposite parties raise a demand within three days?. Was it a condition of allotment? Dallops of mystery surround this fact. The complainants have elliptically spoken on this subject. Therefore, the cause of action started w.e.f 23.12.2010. 13. Last but not the least, the complainants were told in black and white that their earnest money was forfeited as per the terms and conditions on 6.9.2011. Consequently, at best, the cause of action had arisen on 6.9.2011. The case was not filed within two years. It is well settled that the correspondences, representations and legal notice do not extend the time of limitation. The Consumer Protection Act, 1986 attracts the litigants a lot because only a nominal court fee is payable for filing a complaint. The litigants are aversed to file the cases before the civil court and rightly so. The earnest money of the complainants was forfeited on 6.9.2011. The complaint is barred by time. However, they are not remediless. They can file the case before the civil court till 5.9.2014. However, the case under the Consumer Protection Act, 1986 is barred by time. Consequently, we refrain from giving our piece of mind to other issues at this stage. The emphatic view taken by the Apex Court is available in following authorities. In a recent authority, the Supreme Court in Dolphin Offshore Enterprises (India) Ltd. vs. United India Insurance Co. Ltd., SLP No. 9307 of 2013 decided on 8.3.2013 it was held:

“We have heard learned counsel for the petitioner and perused the record. In our opinion, the reasons assigned by the State Commission and the National Commission for holding that the complaint was barred by time are correct. It is not in dispute that the claim made by the petitioner was repudiated by the respondent vide communication dated 30.10.2002 and the complaint was filed on 25.5.2006 i.e. after three years and five months of repudiation of the claim. Therefore, there is no escape from the conclusion that the complaint was barred by time. This view finds support from the judgment of this Court in HUDA vs. B. K. Sood (2006) 1 SCC 164, SBI vs. B. S. Agricultural Industries (I) (2009) 5 SCC 121, Kandimalla Raghavaiah vs. National Insurance Company (200) 7 SCC 768 and V. N. Shrikhande (Dr.) Vs. AnitaSena Fernandes (2011) 1 SCC 53.

The case is barred by time. Therefore, the same is hereby dismissed. There lies no rub for the complainants to seek remedy of their grievances from the appropriate forum as per law.

.…..……………Sd/-……………

(S. M. KANTIKAR) MEMBER

Naresh/17 NATIONAL CONSUMER DISPUTES REDRESSALCOMMISSION NEW DELHI

REVISION PETITION NO. 769 OF 2014 (Against order dated 22.10.2013 in First Appeal No. 879 OF 2010 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow)

Sanjay Nag, Son of late Sri Lalji Nag, Proprietor – Nag Marketing, Resident of 538/GHA/230, Vivek Nagar, Patauraganj, Daliganj Railway Crossing, Sitapur Road, Lucknow …Petitioner Versus

1. Hari Om Masala Industries, 123/436, Factory Area, Fazalganj Kanpur, Through its Managing Director Shri G.P. Srivastava

2. Gyaneshwar Pd. Srivastava, Son of Shri Rikeshwar Pd. Srivastava, Partner – Hari Om Masala, Resident of 203/3, J.K. Colony Jajmau, District Kanpur Nagar

3. Narendra Dwivedi, Son of Shri Ram Vilas Dwivedi, Partner – Hari Om Masala, Resident of 1089 / A & 4, Rajiv Nagar, District – Kanpur Nagar

4. Hari Om Masala Industries Area Office Marketing Plot No.2, B.M. Road, Lucknow, Through its Area Manager, Shri Rajesh Bajpai …Respondents

BEFORE:

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

HON’BLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner : Mr. B.K. Upadhyay, Advocate

For the Respondent No.1&2/ Caveator : Mr. Nikhil Jain, Advocate

PER DR. S.M. KANTIKAR, MEMBER

1. The present Revision Petition has been filed under Section 21 (b) of the Consumer Protection Act, 1986 against the impugned order dated 22.10.2013 passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’) in First Appeal No. 879 of 2010, allowing the Appeal and setting aside the order dated 21.04.2010 passed by the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’) in Complaint No. 342 of 2008. 2. Facts in brief: The Petitioner/Complainant Mr. Sanjay Nag, an unemployed youth, deposited Rs. 5,00,000/- with Hari Om Masala Industries, the OP, for the purpose of being a stockiest of spices products. Due to substandard quality of products, the OP factory could not be run. Therefore, Complainant made several requests to OP and sought return of Rs.43,226/- the advance balance and security amount of Rs. 5,00,000/- deposited with the OP, but no avail. Hence, the complainant filed the complaint before the District Forum. 3. The District Forum partly allowed the complaint and directed the OP to pay back the security amount of Rs. 5 lacs to the complainant along with interest thereon @ 9% p.a. within 60 days from the date of receipt of the order and allowed Rs. 2,000/- on account of cost of litigation. 4. Aggrieved by the order of District Forum, the OP filed a first appeal before the State Commission 5. The State Commission allowed the appeal and dismissed the complaint. 6. Against the impugned order of State Commission, the complainant filed this revision petition. 7. We have heard the counsel for the parties. The counsel for the OP argued that the Complainant is already the proprietor of “Nag electrical & Electronics” which is still running, therefore he is not unemployed. The complainant started the work of a stockiest of the OP products under stockiest agreement; it’s a commercial purpose to earn profit and not for earning his livelihood. Hence, the complainant is not consumer of the OP. The said matter is for a recovery of amount; hence Civil Court has the jurisdiction. Also, a case, Crime No. 182/08, pertaining to this very matter is pending before Chief Metropolitan Magistrate’s court, Kanpur Nagar. The complainant himself is a service provider and the transaction of goods done by him was for commercial purpose. The security amount deposited by the complainant was deposited under stockiest agreement. The work of a stockiest and a dealer is a commercial activity and the complainant is not consumer of the OP. 8. We have perused the evidence on record, and place reliance upon the following case laws to conclude this revision petition which are fully applicable to the instant matter- a. Monto Motors Ltd. Vs. Sri Sai Motors & Anr. IV (2013) CPJ 372 (NC). b. Prashant Nag Vs. Oriental Siramax & Industries Ltd. IV(2011) CPJ (NC). c. Diamond Cement Jhansi Vs. Manoj Kumar & Ors. III (2002) CPJ 319 has been filed. 9. On the entirety of the forgoing discussion, it is clear that Complainant has not approached the forum with clean hands and the issue is of commercial purpose, hence not maintainable, under the Consumer Protection Act 1986. We do not find any infirmity in the order of State Commission. Hence, this revision petition is lame of strength, and, accordingly, it is dismissed. The Petitioner is allowed to approach the Civil Court, as per law. The Petitioner can also seek help from the Hon’ble Supreme Court’s Authority inLaxmi Engineering Works vs. P.S.G. Industrial Institute (1995) 3 SCC 583, on the point of limitation. No order as to costs.

.…..………………………… (DR. S. M. KANTIKAR) MEMBER Mss/5 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 4579 OF 2012 (From order dated 21.08.2012 in First Appeal No. 1320 of 2011 of the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur) WITH IA/01/2012 (FOR STAY) IA/74/2014 (FOR PRE-PONEMENT OF DATE) & IA/43/2014 (FOR BRINGING ON RECORD LEGAL HEIRS)

Rajasthan Housing Board Through Secretary Head Office : Jyothi Nagar Jaipur, Rajasthan … Petitioner Versus Smt. Gyanwati Jain (since deceased) Through LRs 1. Sh. Manak Chand Gupta Husband of deceased 2. Sh. Manoj Kumar Gupta Son of deceased Both R/o. H.No.3/11, Parasram Nagar Daher, Key Balaji Sikar Road Jaipur, Rajasthan … Respondents

For the Petitioner : Mr. K. L. Janjani, Advocate With Mr. Ankit Gaur, Advocate

For the Legal Heirs : Mr. S. N. Bohra, Advocate With Mr. Manak Chand Gupta, Husband of deceased respondent PRONOUNCED ON 02.05.2014

O R D E R JUSTICE J.M. MALIK 1. Smt. Gyanwati Jain, the complainant applied for allotment of a MIG House in General Registration Scheme, 1982 of Rajasthan Housing Board by furnishing a Bank draft in the sum of Rs.3,000/- dated 08.12.1982. The complainant was allotted Seniority No.1198 in Sanganer Housing Scheme, floated by Rajasthan Housing Board, the OP, through lottery/draw on 28.12.1985. Thereafter, the Rajasthan Housing Board sent a reservation letter dated

31.12.1993, demanding seed money which the complainant paid in installments of Rs.10,000/- on 27.01.1994, Rs.7,500/- on 23.06.1994 and Rs.7,500/- on 30.01.1995.

2. The Rajasthan Housing Board issued a Circular dated 02.08.1994, in which it asked all the applicants to give option to accept allotment on outright sale basis keeping in view the huge amounts of installments remaining outstanding. The priority of the complainant was not disturbed. The amount of three-seed amount/money installments @ Rs.17,000/-, Rs.15,000/- and Rs.15,000/- as per the rate prevalent on 06.07.1998, on higher purchase basis was sent. However, the complainant could not deposit the said amount and the installments as per the demand. The priority number 1198 of the complainant was for the allotment of a house on hire- purchase basis which was to be matured in the year 1999. However, the priority number 1198 of the complainant, could not be matured in the year 1999. The complainant had failed to pay the amount. She was required to pay the amount by 06.02.1999. The possession letter was given to her on 28.09.1999 and she was required to receive possession upto 14.11.1999 by depositing the initial amount + interest @ Rs.72,052/-. The OP fixed Rs.3,152/- as monthly installment payable before 15.11.1999 as she had opted for hire-purchase basis.

3. The complainant did not deposit the demanded amount till 18.05.2001. Consequently, her registration was cancelled on 18.07.2001. However, the complainant filed a complaint before the District Forum with the following prayers :- “ a) That the aforementioned deficiencies present in the service of the opposite party be removed, and the amount of Rs.27,350/- mentioned illegally in the column of interest on outstanding seed money exhibit – 16 of the allotment letter be cancelled. b) That the opposite party adopted evading attitude, kept optional view of eligibility of the complainant, treated the complainant defaulter of seed money, at the time of allotting house in 1995 to the persons having equivalent seniority, but did not allot the house in favour of the complainant, negligently treating the seniority in 1999 and issuing the allotment letter appendix-16, compensation of Rs.80,528/- mentioned in para 10 of the plaint of the suit (dispute) be ordered to be given to the complainant on the same cost on which the house was given to the applicants having 01197 the seniority before the seniority number of the complainant 01198 or having later seniority number 01199. On the same price the house number 160/62 Pratap Nagar Sanganer or any other house of 90 square meter area in Sanganer be ordered to be given to the complainant. c) That the court be pleased to order to give the compensation of Rs.1,00,000/- against mental torture and other tortures to the complainant as mentioned in para No.11 of the dispute suit. d) That cost of the dispute suit and the cost of taking action in the matter being Senior citizen for spending time, labour and money and advocate fee Rs.11,000/- be ordered to pay to the complainant. e) That in this case, the liability be fixed against all the departmental officers and employees found guilty. f) That the court be pleased to order grant any other relief which deem suitable and fit, in favour of the complainant”.

4. The District Forum allowed the complaint and directed the OP to make available to the complainant a house in two months, situated in Sanganer Pratap Nagar Scheme at the value and rate prevalent in 1995 and ordered to pay an amount of Rs.25,000/- as compensation and Rs.3,000/- as costs of the suit to the complainant.

5. The State Commission modified the order of the District Forum to the extent that the day, the house No.160/62 was allotted to the complainant on 28.09.1999, be again allotted or similar house be allotted to her on the said date at the value and rate prevalent on the said date and a new allotment letter and possession letter be issued to her. Rest of the orders were not disturbed. 6. We have heard the counsel for the parties. The learned counsel for the complainant admitted that till now, the petitioner has paid a sum of Rs.25,000/- only. He admitted that no other installments were deposited. The counsel for the petitioner further admitted that registration of the allotment was cancelled on 18.07.2001.

7. It is, thus clear that this case is barred by time. The present complaint was filed, five years’ after the house in question was cancelled. The case is barred by time. This view is further emboldened by the Hon’ble Supreme Court in the following judgments. (1) Special Leave to Appeal (Civil) No.9307 of 2013, decided on 08.03.2013 (Dolphin Offshore Enterprises (I) Ltd. Vs. United India Insurance Co. Ltd.) (2) Special Leave to Appeal (Civil) No.29487 of 2012, decided on 10.10.2012 (Sunil Kumar Vs. B.M.Sahara Commercial

Corporation Ltd.) (3) Special Leave to Appeal (Civil) No.39938, decided on 21.01.2013 (Tapan Kumar Ghosh Vs. Manager, Sh.Krishna Builders & Developer). The aforesaid authorities were followed in (4) O.K. Guar Vs. Choithram Hospital & Research & Centre (Special Leave to Appeal (Civil) No.1115 of 2013), decided on 07.01.2013, by which, the Hon’ble Supreme Court dismissed the Special Leave Petition filed against the order of this Commission passed on 09.03.2012, in RP No.447 of 2010. Hon’ble Apex Court took the same view in (5) Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd. & Anr., 2009 CTJ 951 (SC) (CP) and (6) State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP).

8. It must be borne in mind that the petitioner herself had agreed to purchase the house on hire-purchase basis. She did not pay the money at one go. Installments were fixed as per her own request. There is not even an iota of evidence that she paid the monthly installments from the year 1991 to 2001. She was required to pay a sum of Rs.3,152/- , p.m., but there was no compliance of this condition. The counsel for the petitioner also admitted that the complainant could not deposit three- seed money in the year 1998 in the sum of Rs.17,000/-, Rs.15,000/- and Rs.15,000/-. Under these circumstances, no deficiency of service can be attributed upon the petitioner.

9. The complainant’s attempt to make bricks without straw does not bring the desired result. In view of this discussion, we hereby accept the revision petition, set aside the orders passed by the fora below and dismiss the complaint, filed by the complainant/ respondent. However, the petitioner is directed to return the sum of Rs.25,000/- or whatever total money the opposite party has obtained, to the complainant, with interest @ 10% p.a., from the date of deposit, till its realization, within a period of 90 days, from the date of receipt of this order, otherwise, the interest shall stand enhanced to 15% p.a., after 90 days of the receipt of this order from the date of this judgment, till compliance of the order.

10. Costs imposed on the petitioner on 16.04.2014 has since been paid to the Legal Heir, Sh. Manak Chand Gupta, husband of the deceased respondent, on 01.05.2014. The decretal amount be also paid to Shri Manak Chand.

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

.…..………………………… (DR. S. M. KANTIKAR) MEMBER dd/20 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 638 OF 2014 (From order dated 18.12.2013 in First Appeal No. 467 of 2013 of the State Consumer Disputes Redressal Commission, UT, Chandigarh ) WITH I.A. No. 233 OF 2014 (Stay)

Regional Institute of Cooperative Management (Through its Director), Sector-32-C, Chandigarh … Petitioner Versus Naveen Kumar Chaudhary S/o. Shamsher Singh Q.No.RE/III-71/B, Old Railway Colony Kota, Rajasthan … Respondent

REVISION PETITION NO. 645-646 OF 2014 (From order dated 01.10.2013 in First Appeal No. 347 & 396 of 2013 of the State Consumer Disputes Redressal Commission, UT, Chandigarh ) WITH I.A. No. 270 OF 2014 (Stay)

REVISION PETITION NO. 655-656 OF 2014 (From order dated 01.10.2013 in First Appeal No. 394 & 343 & 391 of 2013 of the State Consumer Disputes Redressal Commission, UT, Chandigarh ) WITH I.A. No. 283 OF 2014 (Stay)

REVISION PETITION NO. 657-658 OF 2014 (From order dated 01.10.2013 in First Appeal No. 344, 393 of 2013 of the State Consumer Disputes Redressal Commission, UT, Chandigarh ) WITH I.A. No. 284 OF 2014 (Stay)

For the Petitioner in all cases : Mr. Pankaj Chandgothia, Advocate

For the Respondents : Mr. Deepak Aggarwal, Advocate

PRONOUNCED ON 02.05.2014

O R D E R JUSTICE J.M. MALIK 1. This common order shall decide the above detailed six cases because these cases involve similar law points and facts. We would take the facts of the case from revision petition No.638 of 2014.

2. Regional Institute of Co-operative Management, Chandigarh, the petitioner in this case, made a notification through advertisements, etc., and assured about its outstanding reputation as per publicity brochure, etc. It assured 100% job placement guarantee. Its prospectus mentioned for the batch 2010-12 that the Post Graduate Diploma in Management which would provide was equivalent to Masters of Business Administration (MBA) and recognised by the Association of Indian Universities. It was also represented that it was funded by the Ministry of Agriculture, Government of India.

3. Placing reliance on these representations, all the six complainants, took admission in its two years’ full-time Post Graduate Diploma in Management (Agriculture Business), for the year 2010-12 batch. The Opposite Party (OP) also contested that it was having healthy relations with VaikunthMehta National Institute of Co-operative Management, Pune University and considered it as its parent institute. The complainant deposited a sum of Rs.4,53,500/- as per the payment schedule. The complainants completed the aforesaid Post Graduate Diploma in Management (Agriculture Business). They were issued certificates which reflected that those certificates were recognised by the All India Council for Technical Education, Ministry of Human Resources & Development, Government of India. However, it was not mentioned that the said Diploma was recognised by the Association of Indian Universities as equivalent to Masters of Business Administration Degree, meaning thereby that it was only a Post Graduate Diploma in Management. It also did not show that it was equivalent to Masters of

Business Administration Degree. Consequently, the complainants could not get enrolled themselves for Ph.D course as according to the UGC norms, it allowed admission only if the Diploma course was certified by the Association of Indian Universities, as equivalent to Masters of Business Administration Degree. The Teachers were not employed as promised.

4. Consequently, complaints were filed with the prayer to refund the amount of Rs.4,53,500/- along with interest @ 18% p.a. and compensation in the sum of Rs.2,00,000/- mental agony and physical harassment, punitive damages to the tune of Rs.1,00,000/-.

5. The OP contested all these cases. It listed the following defences. The case was barred by time. The students were informed at the beginning of the Session, vide a notice, placed on the Notice Board that the Association of Indian Universities had not recognised the Diploma in question equivalent to Masters of Business Administration Degree. However, the students continued their studies without demur. The case was bad for necessary parties. It is admitted that due to inadvertence it was mentioned in prospectus that the Diploma in question was recognised by the Association of Indian Universities as equivalent to Masters of Business Administration Degree. It is explained that the OP had already applied to the Association of Indian Universities for grant of recognition to the Diploma in question as equivalent to Masters of Business Administration Degree which was expected at any time. it is Denied that any assurance was given to the complainants.

6. The complainants filed complaints before the District Forum. The District Forum allowed the complaints and compensation in the sum of Rs.1,00,000/- with interest @ 12% p.a. was also granted.

7. Aggrieved by that order, the complainant filed a First Appeal before the State Commission. The State Commission placed reliance on various authorities reported in Aashirwad Health and Education Trust & Anr. Vs. S.L.M. Ahmed & Ors., 2013 (2) CPC, 323, Bihar School Examination Board Vs. Suresh Prasad Sinha, 2013 (4) CPR 394 (SC), wherein it was held that the complainant did not fall within the definition of

‘consumer’. The State Commission explained that the facts of this case are different. The State Commission also placed reliance on Buddhist Mission Dental College and Hospital Vs.Bhupesh Khurana & Ors, I (2009) CPJ 25 (SC) and allowed the appeal partly.

8. We have also heard the counsel for the petitioner/OP. He has cited few authorities. He has cited an authority reported in Controller, VinayakMission Den. Col. Vs. Geetika Khare, III (2010) CPJ 26 (SC), wherein it was held that education – refund of fee with interest and compensation for loss of academic year and mental harassment, - there was deficiency in service and the OP was liable to pay the compensation. He has also invited our attention towards Maharshi Dayanand University Vs. Surjeet Kaur, (2010) 11 SCC 159, wherein it was specifically held that the statutory function involves holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates. In para No. 13, the Hon’ble Apex Court in MaharshiDayanand University (supra) held that as decided in Bihar School Examination Board (Supra) it clearly lays down the law in this regard, with which we find ourselves in full agreement with it.

9. We have perused the Bihar School Examination Board Vs. Suresh Prasad Sinha, (2009) 8 SCC 483, wherein it was held that statutory Board does not provide any service in the sense, the term is used in the Act and examinee is not a consumer. It was held that Board is not a service provider. In para 11 of the said judgment, it was held as under :- “The Board is a statutory authority established under the Bihar School Examination Board Act, 1952. The function of the Board is to conduct school examinations. This statutory function involves holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates. The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative”.

10. The learned counsel for petitioner has also referred to the judgment of Hon’ble Apex Court titled P.T.Koshy & Anr. Vs. Ellen Charitable Trust & Ors., in Civil Appeal No. 22532/2012, decided on 09.08.2012, wherein it was held as under :-

“ In view of the judgment of this Court in Maharshi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159 = 2010 (2) CPC 696 SC, wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in the matter of admission, fees, etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986. In view of the above, we are not inclined to entertain the special leave petition. Thus, the Special Leave Petition is dismissed”.

11. Thus, it is clear that the case rather supports the OP. In both the judgments, mentioned above, the same view was taken.

12. He has also cited few old authorities of this Commission, as well.

13. In a recent judgment in Civil Appeal No. 697 of 2014, titled Indian Institute of Bank & Finance (IIBF) Vs. Mukul Srivastava, dated 17.01.2014,passed by the Hon’ble Apex Court, the Hon’ble Apex Court has also referred to the judgments reported in Bihar School Examination Board Vs. Suresh Prasad Sinha, 2009 (8) SCC 483, Maharshi Dayanand University Vs. surjeet Kaur, 2010 (11) SCC 159 and Jagmitter Sain Bhagat Vs. Director, Health Services Haryana & Ors, 2013 (!0) SCC 136, holding that the student, under such circumstances, is not a ‘consumer’.

14. The whole gamut of all facts and circumstances proved on record leans on the side of petitioner/OP. We, therefore, accept the revision petitions and set aside the orders passed by the fora below. However, the complainants shall have liberty to seek their grievances before the proper forum or civil court, as per law. They can seek help for condonation of delay in accordance with law laid down in Laxmi Engineering Works Vs. PSG Industrial Institute – 1995(3)SCC 583.

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

...…..………………………… (DR.S. M. KANTIKAR) MEMBER dd/13-15 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

ORIGINAL PETITION NO. 25 OF 2002

Mrs. Sucheta Sanyal W/o Sh. Santosh Sanyal P.O. Rangia, Distt. Kamrup Assam …Complainant Versus 1. Dr. Meghnad Bhowmik Alokon Eye Care Center 162/A, Lake Town, Calcutta- 700089 West Bengal 2. St. Mary’s Nursing Home, Old Station Road Alipurduar, Distt. Jalpaiguri West Bengal …Opposite Parties BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER For the Complainant : Mr. Feroze Ahmad, Advocate and Mr. R. S. Sharma, Advocate

For the Opposite Party No. 1 : Mr. Ranjan Mukherjee, Advocate and Mr. S. Bhowmik, Advocate

For the Opposite party No. 2 : Nemo

PRONOUNCED ON 5th MAY, 2014 ORDER PER DR. S.M. KANTIKAR, MEMBER 1. The outcome of the cataract surgery, usually is not caused by negligence or even poor practice. However, defending bad outcomes is rarely easy. In this complaint, the complainant, Smt. Sucheta Sanyal alleged negligence that the opposite party Dr. Meghnad Bhowmik (OP-1) Eye Surgeon, failed to recognize and treat endophthalmitis one day postoperatively (cataract surgery) which resulted in the enucleating of her right eye. The OP-1 maintained that the complainant was properly treated. The complainant contended that the OP, Dr. Bhowmik, had appropriately treated her on the first postoperative day, she would not have suffered the loss of her right eye. 2. Facts of the Complaint: The complainant, Smt. Sucheta Sanyal, aged about 65 years is a Primary school Teacher at Rangia, Assam, (herein referred as “patient”). The Opposite Party (OP-1) Dr. Meghnad Bhowmik, an eye specialist, a resident of Calcutta used to visit and work in Alipurduar for three days a week at St Mary’s Nursing Home Opposite Party-2 (OP-2). On 17.7.2001, the complainant consulted the OP-1, who, after examination, advised cataract surgery of Right eye (Exhibit CW1/1). Further, the OP-1 expressed urgent surgery, otherwise there would be possibility of damage to the said eye. Accordingly, complainant got admitted in hospital (OP-2) and the OP-1 performed an operation at 7 pm on 18.7.2001, and was discharged at 9 p.m., on the same day. OP told her at the time of discharge, that there was nothing to worry, as it was a simple “Phaco surgery”. As a follow up, on 19.7.2001, patient visited OP-1, who removed the eye bandage, prescribed medicines and advised rest for 1½ months. Due to unbearable pain in her Right eye, on 20.07.2001, i.e. on next day, she visited OP-1 clinic at Alipurduar (Ext CW1/2), where Dr. Sankar was present in place of Dr. Bhowmik. He examined her and prescribed medication. He advised her to visit Calcutta and seek further treatment from the OP-1. Accordingly, on 24.07.2001, she visited OP-1 at Alokon Eye Centre, Calcutta. (entry made on CW1/1). The OP-1, along with a team of doctors, examined her and admitted her for cleaning of eye. She was discharged on 27.07.2001, with a diagnosis of Endophthalmitis in Rt. eye. (Discharge summery CW1/3) Thereafter, OP-1 prescribed some medication, he has not disclosed her about the seriousness and real condition of her Rt eye. Complainant returned back to her place in Assam, but her condition worsened, for which she visited OP-1 clinic at Alidurpur, on 28.7.2001, and again at Calcutta, on 4.8.2001 (CW1/4), who prescribed only medicines, but, the OP-1, did not inform the serious condition of her Right eye. There was no improvement; therefore, she was forced to consult another Eye Surgeon at Sri Sankaradeva Nethralaya Medical Research Foundation (SNMRF), Guwahati, Assam. There, it was diagnosed as post-operative Endophthalmitis, (i.e. inflammation/infection) Schleral & Limbal necrosis (death of part) and conjunctival sloughing (shedding of skin) The prescription dated 05.09.2001 and 07.09.2001 (Ext CW1/5 and CW1/6) of Sankaradeva Nethralaya and the case summary mentioned about complete damage to Right eye, and also there was Schleral & Limbal necrosis which needed surgical removal. Accordingly, she was advised for surgical removal of the eye and other risk factors to her life. 3. Thereafter, the Complainant, again visited the OP Doctor on 10.09.2001, but he turned a deaf ear to the findings of Sankaradeva Nethralaya and told the Complainant to continue the medicines, as he prescribed. With an apprehension of the foul play of Dr. Bhowmik(OP-1), and since her condition of eye was worsening, she visited Dr. Amal Deb, a Senior Consultant Ophthalmologist, Retina Specialist, IOL & Phaco Micro Surgeon at Cooch Behar, on 11.09.2001. On examination, he informed her that in Phaco-surgery, there should be no stitch in the eye, whereas, a stitch was observed in her Right eye. He further told her to remove her Rt. eye (evisceration under local anesthesia) immediately,otherwise, there was possibility of brain hemorrhage. Thus, unfortunately, her right eye was removed on 29.09.2001 at Shankar Netralaya, Chennai, its discharge summary is dated 3.10.2001. Thereafter, the Complainant returned to Rangia, Assam and noticed that pus was coming out from her mouth, eye and nose. She again, on 16.09.2001 visited the Sankaradeva Nethralaya at Guwahati, and at last visited Sanakara Nethralaya at Chennai on 22.09.2001, then her eye was removed on 25.09.2001 and discharged on 3.10.2001 (Discharge Summery-Ext CW1/9). She was advised to revisit on 08.12.2001, for glass implantation. Complainant was examined as CW1 and it was substantiated by her husband as CW2. She filed the medical records marked as Exhibits CW-1 to 9). 4. Hence, the Complainant alleged deficiency of service on part of OP-1, for failure to diagnose and treating the serious complications. Also, alleged negligence on part of OP-1, who put the stich for Phaco surgery, and ignored another surgeon’s findings about seriousness and failed to advise her properly, which resulted her in losing her right eye. She became visually handicapped and suffered mental agony and filed this complaint praying for Rs.30,00,000/- as total compensation. 5. Defense Of Dr. Meghnad Bhowmik (Opposite Party - OP-1)

Dr. Bhowmik has admitted about the examination of complainant and his performing of Cataract surgery, but has denied all the allegations made by the Complainant. In the affidavit evidence of OP-1, it is submitted that on 18.07.2001, he had satisfactorily conducted operation on right eye, he did follow-up checkup on next day and found that the complainant’s right eye was satisfactory. He prescribed medicines and called her, for further checkup, after 2 weeks and issued a post- operative care and instructions card in local Bengali language. On 21.7.2001, complainant attended his clinic and was examined by Dr. S. K. Sankar, who is also an Ophthalmologist. He prescribed few medicines and informed him telephonically about the condition of patient (complainant). Thereafter, on 24.07.2001, the patient visited him at Alokon Eye Center, Kolkata. After examination, he has suspected it, as a case of post-operative endophthalmitis. At that time, his ophthalmologists colleagues who were present there Dr.(Prof) Debnath Chottapadhyay, Dr. Abhrit Chatterjee, Dr. P. Pasha and Dr. Ashish Chottapadhyay also clinically examined the patient’s operated Right eye and suspected her to be a case of endophthalmitis. After explaining the facts, on the same evening, “anterior chamber cleaning and intravitreal antibiotic and antifungal injections” was performed with assistance of other colleagues. The complainant was admitted in Alokon Eye Centre. Her condition was improved and on 27.7.2001 was discharged with necessary follow-up instructions. Thereafter, the OP-1 examined the patient on 4.8.2001, at Kolkata and on 28.8.2001 at Alipurduar, and found that the condition of Right eye was steady, and advised to continue medicines to avoid any deterioration. On 10.9.2001, OP-1 examined Complainant’s Right eye, and noticed deterioration. He explained her about prognosis and prescribed medicines. He further submitted that Complainant did not show the prescription dated 5.9.2001. Thereafter, the complainant did not consult him further, any more. OP-1 denied about putting a stitch in right eye during Phaco-surgery on 18.07.2001, but applied one stitch in limbus, on 24.07.2001, during cleaning of anterior chamber of operated eye, by virectomy cutter. Therefore, OP-1, in his evidence, denied that due to his negligent surgery, complainant had lost her eye. Endophthalmitis is a known complication, he has treated the patient with his fellow ophthalmologists, with care and best of his skills.Also contended that, the other doctors (colleagues) who treated the Complainant, have not stated any negligence on his part. OP-1 acted as per standards of medical practice, hence no medical negligence; therefore he should not be liable for any claim against complainant, and the complainant failed to prove the deficiency and negligence on the part of OP-1, hence, prayed for dismissal of complaint. 6. In support of OP-1’s affidavit, evidence and cross examination of three eye surgeons namely Dr. (Prof.) D. N. Chottapadhyay, Dr. Pashu Pati. Saha and Dr. Abhrajit Chatterjee were recorded. In their evidence, it is expressly stated that Dr. Bhowmik (OP-1) has treated Mrs. Sanyal (complainant) as per medical norms and without any shortcomings.

7. Arguments:

We have heard rival arguments of the counsel for both the parties, who also filed their written arguments. The Counsel for the Complainant Mr. Feroze Ahmad and Mr. R. S. Sharma vehemently argued that throughout the treatment, the OP-1 was found negligent. The OP-1 failed to diagnose the complications and occurrence of

Endophthalmitis during the second day of follow up. Hence, the condition of right eye got worsened further. The OP-1 went on prescribing the same medicines, again and again, without considering the deteriorating condition of the eye of the Complainant. It was further argued that Dr. Bhowmik failed to monitor the Endophthalmitis, which resulted into pus discharge, from the nose, eyes and from the mouth of the Complainant. For this, she consulted two other Eye Specialists, who warned her of the possible danger to her life, if the eye is not removed. Therefore, in the entirety, it was due to negligence of OP-1, that she lost her right eye and suffered mental agony, for which she deserves for proper compensation, as prayed. The counsel for complainant relied upon the case of H.S. Sharma Vs. Indraprastha Apollo Hospital & Anr., II (2007) CPJ 21 (NC) in OP No. 36 of 1998.

8. The Counsel for the OPs argued that the OP-1 is qualified Eye Surgeon practicing, since 1987, with high reputation. During his professional career, till now, 8,000 Cataract surgeries were performed by him. The fact that in spite of the best treatment in case of endophthalmitis, the patient may became blind, is also well accepted in the medical sciences. He has put reliance upon the medical text, Cataract Surgery and its Complications – Norman S. Jaffe 4thEdn. “Although the incidence of intraocular infection after cataract surgery has sharply declined during the past 30 years, it is still one of the most catastrophic complications of surgery. Although newer antibiotic agents are available that combat heretofore highly resistant organisms, numerous instances of fulminating infections that defy all therapeutic efforts still occur”. ( Annexure F)

Clinical Ophthmology _ A Systematic Approach (3rdEdn.)– Jack J. Kanski at Page 300.

“Acute endophthalmitis is a devastating complication that occurs in about 1 in 1000 cases. Despite early treatment, about 50 % of eyes become blind.”(Annexure G)

9. Counsel further argued that, the issues involved in this complaint are complicated and medical negligence is a very highly technical subject which needs voluminous evidence. Hence, the Civil Court will be the proper court and accordingly Consumer Forum has no jurisdiction. The counsel for OP-1 relied upon the following authorities:

a) Bhupendra Nath Das Vs. Maharaj Ram Krishna Mission Seva Pratisthan

& Ors., I (1998) CPJ 377.

b) Air Commodore Satyanarayana Vs. L. V. Prasad Eye Institute & Anr., I (1998)

CPJ 110.

C) Hari Prasad Chunkai Vs. Mannulal Jagannath Trust Hospital & Ors., IV (2003)

CPJ 15. Discussion:

10. We have perused the entire medical records on file, the evidence of both the parties. The statement of complainant recorded before the Local Commissioner. On 28.1.2002, this commission directed the complainant to submit the expert opinion or extract of some book, through which, opinion can be drawn, that the eye surgeon committed mistake in operating the eye of the Complainant.

11. Accordingly the Complainant filed following documents: i) the certificate of Dr. Ashok Kumar Bhuyan.(Annexure A) ii) an extract from “SUSWATHYA,” a Bengali magazine on health, dated 15th July 2002 issue. There is opinion of Dr. Dalip Kumar Barman about micro surgery and Phaco surgery and its translation (Annexure B). iii) an extract- medical book “PARSONS’ DISEASES OF THE EYE”, WRITTEN” Page 301 and 302,( Annexure C). iv) The some reports on cataracts that the said surgery is a no-stitch, small incision procedure- download (Annexure D)

12. We recollect the sequence of events as, on 21.07.2001, the patient had suffered unbearable pain in her operated Right eye, i.e., on 3 rd post-operative day, for which Dr. S. K. Sanakara advised medicines and further, as per his advice, she went to Calcutta, on 24.07.2001 to meet the OP-1. At Alokon Eye Care, she was diagnosed as Endophthalmitis in operated eye, and accordingly, on 24.07.2001, after AC (Anterior Chamber) was cleared with virectomy cutter, given intravitreal antibiotic and antifungal injections. She was discharged on 27.07.2001. We agree with the contentions of OP-1 that the patient, on examination, on 24.07.2001 found to have PL + PR; which should be treated with intravitreal antibiotics, as per medical science (Copy of Extract – Annexure E). The reference will indicate that depending upon the visual capacity, the treatment should be extended. This contention was also supported by his fellow colleagues. Thereafter, patient was examined twice, by the OP-1, at Calcutta on 4.8.2001 and at Alidurpur on 28.8.2001.

13. The important issue in this case is that the patient/complainant-1 suffered post- operative Endophthalmitis in her Right eye and subsequently, within a span of two months, hersaid right eye was eviscerated. The issue is, whether, the OP-1 was negligent or Not? After careful perusal of entire medical records and the sequence of events, we have given thoughtful consideration. On perusal of brief case summery dated 5/9/2001 of Sri Sankaradeva Netralaya, Guwahati and the Case Summery of Shankar Netralaya, Chennai dated 3.10.2001, it cleared our doubts. The relevant observations on affected Right Eye are reproduced as follows: From: Sankaradeva Netralaya, Guwahati – Dated 5/9/2001 Brief Case Summary Complaint: Redness, Pain & watering-(OD) for last11/2 months. H/O Phaco + IOL Surgery-(OD) done on 18-07-01 elsewhere. Vision: OD: PL ‘+’ Acceptance: OD: N.I. ADD: OD: N.I. OCCULAR MOTALITY: OD: FOM SLIT LAMP EXAM: OD: Sloughed out conjunctiva, selera & cornea With exposure of uveal tissue. Collapsed Ant. Chamber with organized exudates in the cornea & ant. Chamber. Conjunctival congestion & chemosis. Ciliary congestion. Conj. Discharge.

INTRAOCULAR PRESSURE: OD: Soft D. T.

GONIOSCOPY: OD: No done.

FUNDUS: OD: No view.

INVESTIGATION: --

DIAGNOSIS: OD: Post-operative Endophthalmitis. Scleral & Limabal Necrosis. Conjuctival Sloughing.

TREATMENT: Conservative Treatment. Adv:- Surgical removal of eye. Visual status & risk factors explained.

Also, we have perused the Shankar Nethralaya, Chennai’ Case Summery dated 3rd October 2001, the relevant para 2 is reproduced as below:

14. From Shankar Netralaya, Chennai dated 3.10.2001 Case Summary (relevant para) Mrs. Sucheta Sanyal (Our MRD No. 514145), a 56 year old lady was seen by us on 22.09.2001. She gave a history of undergoing phacoemulsification with intraocular lens implantation in the right eye under local anesthesia on 18.07.2001. Subsequently she was diagnosed to have postop endophthalmitis in the right eye and was treated for the same. She came here for further management. On examination, her best corrected visual acuity was perception of light with accurate projection of rays in the right eye and 6/6; N18 in the left eye. Extraocular movements were full. Slit lamp examination of the right eye extensive pseudo cornea with scleral melt superiorly 4mm from the limbus, the left eye was normal. Applanation tension was 12 mm of Hg in the left eye. There was no view of the fundus in the right eye. Fundus examination of the left eye was unremarkable. Ultrasound examination of the right eye revealed multiple low reflective echoes in the vitreous cavity and was suggestive of endophthalmitis. She was advised to undergo evisceration in the right eye under general anesthesia. She was also referred to Dr. Parveen Sen, Vitreo retinal surgeon who agreed the findings and management. She underwent evisceration with scleral frill excision in the right eye on 25.09.2001. Post-operative period was uneventful. Subsequently she was reviewed here on 26.09.2001. The socket was healthy. She was advised to continue the medication and was advised to come for glass appointment on 08.12.2001.

Therefore, referring both the para supra(12 & 13), On the basis of medical texts it is clear that there was perception of light in Right eye, hence the line of treatment adopted by OP-1 was correct. The occurrence of scleral and limbal necrosis was not due to phaco-surgery procedure, but was a sequel of endophthalmitis after a period more than one month. 15. Even, the Ext. CW1/8, produced by the complainant, i.e. a prescription slip issued by Dr. Amal Deb on 11/9/2001 is not supportive to her case. Dr. Deb put a diagrammatic sketch of patients operated right eye with markings of one stitch, sloughing and loss of eye integrity. We have referred to several medical texts and are of considered view that the Stitch was put after proper clearing of anterior chamber, on 24.07.2001, and not during the Phaco-surgery, as alleged by the complainant. It was necessary for early healing of wound. Even otherwise, according to the medical science, there is no absolute bar for applying stitches in case of Phaco surgery.

16. After, 5/9/2001, patient met the OP-1 on 10.09.2001, but she did not disclose the doctor about the findings of Shankar Netralaya. But, on the basis of clinical examination for perception of light (PL), OP-1, further advised medical treatment, which is not negligence. We do not agree that there was delay in diagnosis and management of Endophthalmitis by Dr. Meghnad Bhowmik. OP-1 has acted as per standard of practice and we do not find any deviation. There is no act of omission or commission by the OP- 1, hence no negligence. The annexure A, the opinion of ophthalmologist Dr. Asoka Kr Bhuyan, has no evidentiary value, it was issued without any examination details of patient. It was issued without application of mind and any scientific basis. 17. Before concluding, we would like to refer several decisions of Hon’ble Supreme Court and this commission on medical negligence.

The Hon’ble Supreme Court in in Indian Medical Association Vs V.P.Shantha [(1995) 6SSC 651], and Jacob Mathew V State of Punjab & Anr, (2005) 6 SSC 1= III (2005) CPJ 9 (SC) had concluded that, “ a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.”

It is worthwhile to mention here the Bolam’s case (Bolam Vs. Frien Hospital

Management Committee (1957) 1 WLR 582 it was also held that a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view. Essentially three principles are applied to decide negligence of doctor.

In the instant case, OP-1 Dr. Bhowmik, is a qualified doctor, having experience and skills in his specialty, and he used his best professional judgment and due care in treatment of patient, during post-operative period.

18. Therefore, for the reasons stated above and on the entirety of the case, we are of the considered opinion that OP-1, Dr. Bhowmik has treated the patient, both, during pre and post-operative period, with due care and caution, as per standards of medical practice. We do not find any deficiency in the services and negligence. Accordingly, we dismiss the complaint, without any costs.

…...………………………… (S. M. KANTIKAR) MEMBER Mss NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

CONSUMER COMPLAINT NO. 144 OF 2011 WITH

INTERIM APPLICATION NO. 4016 OF 2013 (FOR DIRECTIONS)

1.Subhash Chander Mahajan S/o. Late Gian Chand Mahajan R/o. 2921-A, Block –C-1 Sushant Lok-1, Gurgaon – 122001

2. Ritu Mahajan D/o. Sh. Subhash Chander Mahajan R/o. 2921-A, Block –C-1 Sushant Lok-1, Gurgaon – 122001 … Complainants

Vs. Parsvnath Developers Ltd. Through its Managing Director 6th Floor, Arunachal Building 19, Barakhamba Road, New Delhi … Opposite Party

CONSUMER COMPLAINT NO. 200 OF 2011 WITH INTERIM APPLICATION NO. 4947 OF 2013 (FOR DIRECTIONS)

Abhishek Kumar Dwivedi S/o. Babu Lal Dubey (Through Power of Attorney Holder Babu Lal Dubey) R/o. 47, Dharamveer Nagar Colony Susuwahi, Varanasi – 221005 (Uttar Pradesh) … Complainant

Vs. Parsvnath Developers Ltd. Through its Managing Director 6th Floor, Arunachal Building 19, Barakhamba Road, New Delhi … Opposite Party

For the Complainants in both cases : Mr. Saurabh Jain, Advocate For the Opposite Party in both cases : Ms. Rosetta, Advocate

PRONOUNCED ON _05.05.2014

ORDER JUSTICE J.M. MALIK

1. This order shall decide two cases detailed above. The facts of both the cases and law points involved herein are similar. Therefore, both these cases are being decided through a common judgment.

2. The case of the complainants, Sh. Subhash Chander Mahajan and Sh. Aditya Mahajan, in complaint No. 144 of 2014 is this. They booked a Three-BedRoom residential Flat No. 1402, measuring 1855 sq.ft in the Parsvnath Privilege Complex situated in Plot No.11, Sector P- 1, Chauraisin Estate, Greater Noida. Both the complainants were issued a provisional allotment letter dated 23.02.2007. It was agreed that the flat would be completed within a period of 36 (thirty-six) months from the date of commencement of construction. The Agreement has been attached as Ex.P-2, in this case. It was also agreed that if there was delay in construction of the flat, beyond the period, as stipulated, the Parsvnath Developers/OP would pay to the complainants Rs.5/- per sq.ft, per month, for the period of delay of the agreement. The complainants made full payment towards the flat in question in May, 2007, under the Down Payment Plan, Plan-A. “A provision for 10% rebate was also provided at the very start.” It is alleged that the construction of the said premises was stopped in January, 2008 for the reasons best known to the OP. The complainants took loan of Rs.20.00 lakhs in May, 2007 from HDFC Bank for the purpose ofmaking payment towards the above said booked flat. They have already paid the interest from 01.04.2007 to 31.03.2012 in the sum of Rs.6,97,230/- vide receipts, annexed as Annexure P-3 (colly).

3. OP vide letter dated 10.06.2010 admitted that there had been a delay in the construction of the project. The OP itself, vide its letter dated 22.05.2007, informed HDFC Bank that the loan was required by the complainants. The factum of loan was in the knowledge of the OP. The complainant wrote a number of letters vide Annexure P-5 (colly) (about 15 letters approximately), requesting it to explain the status report of the project.

4. It was stipulated in the agreement that an interest @ 24% p.a. would be charged in case of default in payment by the complainants. It is contended that the OP is also liable to pay the same interest @ 24% p.a. as calculated from July, 2011, in the sum of Rs.80,74,423/- besides the principal amount of Rs.50,708,998/-. The OP has caused mental agony, harassment in not handing over possession of the flat to the complainants. Consequently, it is also liable to pay Rs.20.00 lakhs towards damages, harassment and mental agony caused to the complainants due to the acts of OP. The complainants are sharing their residence with their daughter in Gurgaon after retirement of complainant No. 1. The complainants had made up their mind to stay in their own house after retirement of complainant No. 1.

5. As per Clause 10(c) of the Flat Buyer Agreement, it was agreed by the OP that in case of any delay, the OP shall pay to the complainants a compensation @ Rs.5/- per sq.ft., per month, for the period of delay and therefore, a sum of Rs.1,02,025/- accrued towards compensation from September, 2010, till July, 2011. It is contended that the amount of Rs.5/- per sq.ft. is unjust and OP has exploited the complainants by delaying the construction work. The complainants visited the premises in dispute, a number of times till 29th June, 2011, but did not find any progress at the premises. They demanded the refund but the same was not given. Consequently, the complainants have filed the complaint with the following prayers :-

“ a. Grant a sum of Rs.1,31,53,421/- (towards principal amount of Rs. 50,78,998/- along with interest of Rs.80,74,423/-) at the rate of 24% per annum compounded along with pendent lite and future interest at the rate of 24% per annum compounded till the date of actual realization of the payment.

b. Grant a sum of Rs.1,02,025/- towards compensation at the rate of Rs.5 per sq.ft., per month on the flat having super area of 1855sq.ft. along with pendent lite and future compensation at the same rate till the date of actual realization of the amount.

c. Grant a sum of Rs.6,95,817/- towards interest on loan paid to HDFC along with pendent lite and

future interest, till the date of actual realization.

d. Grant a sum of Rs.20 lacs towards exemplary damages detailed above in the complaint.

e. Grant cost of litigation to the complainants.

f. Any other order, relief or direction which this Hon’ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the complainants and against the respondent”.

The complainant No.1 is a senior citizen of 75 years old.

6. In complaint No.200/2011, Sh. Abhishek Kumar Dwivedi, is the complainant in this case. The facts of this case are almost similar to that of complaint No.144/2011, detailed above. However, the complainant is not a senior citizen. He also got booked residential flat from the same OP on 15.11.2007. He paid the entire money. As per the Agreement dated 24.12.2007, filed as Annexure P-2, wherein it was explained that construction was to be completed within a period of 36 months. It was also stipulated in para 10(a ) of the Agreement that if there is a delay, the OP would pay a compensation @ Rs.5/- persq.ft., per month. He also took loan from the bank and paid interest in the sum of Rs.14,74,756/- on loan to ICICI Bank. Home Loan approval letter and statement of interest on loan are also annexed as Annexure P-3 to the complaint. There was delay in handing over the possession, like in the previous case, though, the complainant had paid total amount of consideration @ Rs.56,02,399/-. Ultimately, this complaint was filed with the following prayers :-

“a. Grant a sum of rs.1,23,37,627/- (towards principal amount of Rs. 56,02,399/- along with interest of Rs.67,35,228/-) at the rate of 24% per annum compounded along with pendent lite and future interest at the rate of 24% per annum compounded till the date of actual realization of the payment. b. Grant a sum of Rs.74,200/- towards compensation at the rate of Rs.5 per sq.ft., per month on the flat having super area of 1855 sq.ft.along with pendent lite and future compensation at the same rate till the date of actual realization of the amount. c. Grant a sum of Rs.14,84,756/- towards interest on loan paid to ICICI along with pendent lite and future interest, till the date of actual realization. d. Grant a sum of Rs.20 lacs towards exemplary damages detailed above in the complaint.

e. Grant cost of litigation to the complainants.

f. Any other order, relief or direction which this Hon’ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the complainants and against the respondent”.

7. We have heard the counsel for the parties. The learned counsel for the OP made only one submission. She vehemently argued that this Commission had no jurisdiction. The amounts were inflated by both the complainants. This case comes within the jurisdiction of the State Commission. She pointed out that on one hand, both the complainants are claiming interest at more than Rs.80.00 lakhs and Rs.67.00 lakhs @ 24% p.a., respectively, and on the other hand, they are also claiming compensation @ Rs.5/- per sq.ft., per month. Both these facts are contradictory. The complainants are not entitled to interest @ 24% p.a. They must abide by the agreement and should not go beyond it. In support of her case, she has cited few authorities. This Commission, in case Kumari Fenny & Ors. Vs. Kavitha V.K. (Dr.) & Ors. , I (2013) CPJ 34 (NC) (a medical case), decided by a Bench consisting of (Justice J.M. Malik and Sh. Vinay Kumar, Member) and authored by Hon’ble Sh.Vinay Kumar, Member, held that considering the material examined above, we have no hesitation in holding that the prayer made in the complaint petition is highly exaggerated and not borne out by the material placed on record. Therefore, the complaint petition is dismissed, reserving liberty to the complainant to seek remedy before an appropriate Fourm of competent jurisdiction.

8. Counsel for the OP also placed reliance on V.K. Agarwal (Dr.) Vs. Infosys Technologies Ltd. & Ors., (2013) CPJ 373 (NC), which pertains to shares and has no application to this case.

9. On the other hand, the counsel for the complainant has placed reliance on the following eight authorities :-

1. M/s. Sunil Mantri Reality Ltd. Vs. K. Sreelatha, RP No.2432 of 2012 (NCDRC)

2. Sanjay Goayl Vs. Unitech Ltd. & 3 Ors., CC No. 344 of 2012

3. Shivalik Vihar Sites Pvt. Ltd. & Ors. Vs. Gurcharan Singh, RP No.1413 of 2012 & RP No.1414 of 2012 (NCDRC)

4. M/s. Omaxe Limited Vs. Amit Mishra, RP No. 2280 of 2012 (NCDRC)

5. Mrs. Veena Khanna Vs. M/s. Ansal Properties & Industries Ltd., First Appeal No.155 of 2006 (NCDRC)

6. The Secretary, South Western Railway Vs. K. Velayudhan, RP No.454 of 2011 (NCDRC)

7. Sh. J.L. Sethi Vs. Senior Citizen Home Complex, RP No. 3129 of 2005 (NCDRC)

8. Ghaziabad Development Authority Vs. Balbir Singh, Civil Appeal No.7173 of 2002, (2004) 5 SCC 65”.

10. We find force in the arguments raised by the counsel for the OP, in a measure. The complainants cannot claim interest @ 24% p.a. They are bound by the agreement entered into between the complainants and the OP. It is to be assumed that the parties had signed the agreement with open eyes and after understanding its each and every covenant. However, we are aware of a case where the Apex Court had granted interest @ 18% p.a., wherein the money in respect of the flat was returned. This was so held by the Apex Court in the case of K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012. Even if the value is calculated at the rate of 18% p.a., it will be more than Rupees One Crore.

11. It must be borne in mind that there is a huge delay in handing over the possession of the premises in dispute, i.e., about four years. The OP has made attempt to feather its own nest i.e., to make profits for itself at the expense of others. The grant of Rs.2.00 lakhs or Rs.3.00 lakhs for such a huge delay will be unjust and unfair. The complainants Subhash Chander Mahajan and his wife are compelled to live in the house of their daughter. They do not have any independent house to live in. Their harassment and mental agony cannot be equated by payment of a few pea nuts. The OP has played fast and loose with the consumers.

12. It is true that an amount of Rs.20.00 lakhs is wee bit on the higher side. However, the principal amount plus interest @ 18% p.a. plus few lakhs of compensation will squarely bring these cases within our jurisdiction. So we decide this point in favour of the complainants in both these cases and against the OP.

13. On our enquiry, the counsel for the OP submitted that they will allot the flat to the complainants in the month of June, 2015. This is a huge delay. The learned counsel of OP did not make any other submission.

14. Keeping in view the facts and circumstances of these cases, we accept both these complaints, partly, and direct the OP, in CC No.144/2011, to pay a sum of Rs.50,78,998/- with interest @ 18% p.a., from the date of deposit, till its realization. It is further directed to pay compensation in the sum of Rs. 7.00 lakhs, (@ Rs. 1,00,000/- per year, from 2007 onwards) within a period of 90 days from the date of this order, for harassment, mental agony, anguish, frustration, anger and sadness, otherwise, after the expiry of 90 days’, it will carry interest @ 24% p.a. till its realization. We also grant a sum of Rs.2,00,000/- towards costs of this case.

15. In the case of Complaint No.200/2011, we direct OP to pay the complainant, Sh. Abhishek Kumar Dwivedi, a sum of Rs.56,02,399/-, along with interest @ 18% p.a, from the date of deposit, till its realization. He is also granted compensation in the sum of Rs. 7.00 lakhs, (@ Rs. 1,00,000/- per year, from 2007 onwards) within a period of 90 days from the date of this order, for harassment, mental agony, anguish, frustration, anger and sadness, otherwise, after the expiry of 90 days’, it will carry interest @ 24% p.a., till its realization. We further grant him a sum of Rs.2,00,000/- towards costs of this case.

.…..………………………… (DR. S. M. KANTIKAR) MEMBER dd/1 & 2 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1742 OF 2007 (From the order dated 17.01.2007 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad, Circuit Bench, Tirupati in Appeal no. 304 of 2006)

United India Insurance Co. Ltd. Divisional Ofice 1, P B No. 50 R R Apparao Street Vijayawada – 1 Through Senior Divisional Manager Petitioner

Versus

1. P Sreenivasulu Son of P Eswaraiah Kuppam Medical College Resident of D no. 7/95 Rani Vanam Yerraguntla Mandal Kadapa District

2. The Branch Manager United India Insurance Co. Ltd. Dwaraka Towers, 7 Roads Kadapa 1 Respondents

BEFORE:

HON'BLE MR. JUSTICE V. B. GUPTA PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA MEMBER

For the Petitioner Mr S M Tripathi, Advocate

For the Respondent Mrs K Radha, Advocate

PRONOUNCED ON 5th May 2014

REKHA GUPTA Revision Petition no. 1742 of 2007 has been filed by the petitioner who was the opposite party no.1 against respondent no.1 who was the complainant and respondent no. 2 who was the opposite party no. 2.

2. The brief facts of the case as gleaned from the record of the file are as follows: 3. The complainant/ respondent no. 1 took one Group Personal Accident Policy from United India Insurance Co. Ltd., with premium of Rs.1,700/- on 22.09.2003 at N T R Health University, Vijayawada. The policy period was 4 ½ years equivalent to MBBS course. In case of accidental death of earning parent the petitioner – Insurance Company had to pay Rs.3,00,000/- to the respondent no. 1 apart from the tuition and boarding fees paid to the college by the United India Insurance Co. Ltd. The mother of the respondent no. 1 P Lakshmi Devi died due to heart attack suddenly on 27.11.2004, while she was talking to one Mr Dr M Sheshadri Reddy, Proddatur. The said doctor informed that respondent no.1’s mother died due to heart attack. One month later the respondent no.1 approached the petitioner to settle the claim. The mother of the respondent no. 1 was doing cloth business at home. The respondent no. 1 got issued notice through advocate and the petitioners received the same, but did not sent any reply. Therefore, the petitioners committed deficiency of service and adopted unfair trade practice. Thus the complaint may be allowed. 4. Petitioner – insurance company filed a counter admitting that the Group Personal Accidental Policy for medical students of N T R University of Health Services, Vijayawada was issued to the students. In case of accidental death of students it was for Rs.2,00,000/- and to the earning parent of the student against accidental death it was Rs.3,00,000/-. The policy was issued to the respondent as a medical student. The claim would be entertained by the petitioner – insurance company in case of death of earning parent accidentally. There was no liability to the insurance company to pay the insured sum, in case the death was not due to accident. Lakshmi Devi died on 27.11.2004 due to heart attack confirmed by doctor at Proddatur. Heart attack was a natural cause of death and not an accidental death. There was no liability on the part of the insurance company to pay the amount. Lakshmi Devi was not an earning member. The father of the petitioner was an earning member and was alive. It was not correct that the deceased was doing cloth business at her home. It was invented and created for purpose of the case. It was not shown in the legal notice. It was not correct that respondent no. 2 was the branch of petitioner. Respondent no. 2 was under the control of Divisional Office, Kadapa. Respondent no. 2 was not concerned with the Group Personal Accidental Policy for medical students issued exclusively by the petitioner – insurance company. The complaint was bad for misjoinder of unnecessary party i.e., - petitioner – insurance company. Thus, the complaint may be dismissed with costs. 5. Respondent no. 2 filed a counter separately with the same facts stated by petitioner – insurance company. The petitioner – insurance company has stated that the policy was taken from petitioner and from Respondent no. 2. Hence, respondent no. 2 was not a necessary party to the complaint. Respondent no. 2 has been shown as party as respondent no. 2 in order to save the jurisdiction of complaint. Petitioner was only a competent party to settle the claim. Respondent no. 2 was the branch under the control of Divisional Office, Kadapa it had no connection with the Divisional Office, Vijayawada, i.e., petitioner – insurance company, the complaint may be dismissed with costs. 6. District Consumer Disputes Redressal Forum, Kadapa (‘the District Forum’) after hearing the counsel and perusing the materials on record allowed the complaint with following observations:

“In the result, the complaint is partly allowed without costs and compensations, with directions to R 1 to deposit Rs.3,00,000/- in the name of the complainant in a nationalised bank, Kadapa and to pay monthly interest only to the complainant by 10th every succeeding month, and to pay the principal amount of Rs.3,00,000/- after completion of 4 ½ years course. Until then the complainant is not entitled to receive the principle amount of Rs.3,00,000/-. The complaint against R 2 is dismissed without costs. R 1 is directed to pay only tuition fees directly to the college for the remaining 2 ½ years course”. 7. Aggrieved by the order of the District forum, the petitioner filed an appeal before the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad, Circuit Bench at Tirupati. The State Commission vide its order dated 17.01.2007 dismissed the appeal.

8. Hence, the present revision petition.

9. The main grounds for the revision petition are as follows:  Hon’ble Fora have failed to appreciate that the word ‘accident’ is without doubt used with the intention of excluding the operation of natural causes including congenital or insidious disease or natural profession of some constitutional physical and mental defects. If a medical condition which leads to a death has to construe as ‘accident’ than in other words we are replacing the word ‘accident’ with ‘death’. Every death has unforeseen reasons; somebody may die because of a heart attack, cancer, or old age as every human being is born with seeds of mortality. But natural failures of one’s body cannot be termed as accidental.  The State Commission has committed an error in considering the death by heart attack as accidental death.  The State Commission erred in applying the interpretation of the word ‘accident’ as given under the Workmen Compensation Act whereas the case was not a workman but a beneficiary of a contract of insurance.  The State Commission was not justified in awarding benefits of the policy in the absence of the proof that the deceased mother was an earning parent.  The State Commission erred in not appreciating that there was no loss to the studies of the claimant on account of mother’s death who was alleged to be an earning parent as it was proved that the expenses of the studies of the claimant were being borne by his father being an earning parent who is still alive.  As per the logic applied by the State Commission in respect of accidental death by this definition and logic no death would amount to a natural death. 10. We have heard the learned counsels for the parties and have also gone through the records of the case. 11. A perusal of the insurance policy shows that it is a Group Personal Accidental Policy for first year MBBS Student of the NTR Health University. As per the special exclusion in the event of death of earning parent due to accident, tuition and boarding fee up to prescribed limit will be payable. It also clear from the document signed by the Senior Divisional Manager, i.e., the Group Personal Accident Policy for Medical Students was to cover specifically loss of valuable life’s due to ‘fatal accidents’. As per the features of the policy which read as under:

(i) To insure the 1st year students studying MBBS and other medicine related course in the colleges affiliated to the NTR University of Health Sciences, against accidental death only for a sum insured of Rs.2 lakh. (ii) To insure the earning parent of the student (name to be specified) against accidental death only for Rs.3 lakh. (iii) In the event of a claim due to the accidental death of the earning parent, tuition and boarding fee (up to prescribed limits) will be paid to the college authorities to ensure that the students complete his course. 12. It was designed to help the student who “might become hapless victims of accidents which occur due to the negligence or someone’s negligence”. 13. It is apparent from the same that the Group Personal Accident Policy for medical students was designed to give financial help in case of death of the earning parent who was supporting the education of the student and due to the fatal accident the students to continue their education to complete the course. In the instant case, it is an admitted fact that the mother of the student died due to heart attack, while talking to one Dr M Sheshadri Reddy of Proddatur. It is also a fact that father of the complainant was an earning parent and is still alive. 14. It is not the case that the heart attack resulted due to any accidental mishap. It is also nowhere on record that the mother of the complainant was paying for the education of the complainant through her business. If all deaths, due to medical reasons are to be taken as death due to accident there would be no need for a separate accidental policy as one policy, i.e., Life Insurance Policy would cover all eventualities. Even in a Life Insurance Policy the double benefit scheme for death in an accident is separately provided for as an additional option with an add on premium. 15. Counsel for the respondent has cited a Supreme Court judgment titled – Life Insurance Corporation of India and Another vs Hira Lal ( 2011) 14 SCC 445. The facts of the case are not applicable to the case on hand. 16. For the reason mentioned above, the revision petition is allowed and the orders of the State Commission and the District Forum are set aside and the complaint is dismissed with no order as to costs.

.………………………………

[ V B Gupta, J.]

……………………………….. [Rekha Gupta]

Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3251 OF 2013

(From the order dated 09.07.2013 in Appeal No. 866/2013 of the U.P. State

Consumer Disputes Redressal Commission, Lucknow)

Oriental Insurance Co. Ltd. Through its duly Constituted attorney Manager Oriental Insurance Co. Ltd. Head Office, 88, Janpath, Connaught Place New Delhi – 110001 …Petitioner/Opp.Party (OP) Versus Shyam Sunder S/o Sh. Bahori Lal R/o Purana Thana City & Distt. Hathrash Mahamayanagar …Respondent/Complainant

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. Abhishek Kumar, Advocate

For the Respondent :Mr. Niraj Kr. Jha, Advocate Mr. Anup, Advocate

Mr. Shyam Sunder, In person

PRONOUNCED ON 5th May, 2014

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 09.07.2013 passed by the U.P. State Consumer Disputes RedressalCommission, Lucknow (in short, ‘the State Commission’) in Appeal No. 866/2013 – The Oriental Insurance Co. Ltd. Vs. Shyam Sunder by which, while dismissing appeal order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent’s Tempo U.P. 86 H 9845 was insured by OP/petitioner for a period of one year from 23.5.2011. On 12.7.2011, complainant along with his son Puneet Kumar were coming to Agra from Aligarh along with goods and owner of the goods, the complainant stopped his vehicle under the jurisdiction of Police Station Khair, where he and his son came out of the vehicle to attend natural calls and parked the vehicle on the road and in the meantime, owner of the goods fled away with the vehicle. FIR was lodged with the Police Station Khair and claim was submitted to the OP, but OP repudiated the claim. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP resisted complaint and submitted that the complainant committed negligence by leaving the key in the vehicle while going to ease out and 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 Rs.3,50,000/- along with interest and Rs.2,000/- for mental agony and Rs.2,000/- for litigation charges. Appeal filed by the petitioner was dismissed by the 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 in spite of changed version regarding theft of vehicle and leaving ignition key in the vehicle by the complainant, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. Perusal of record clearly reveals that in FIR lodged by Puneet S/o complainant on 12.7.2011 mentioned that when he was coming from Agra with some unknown person along with his goods at 9.00 P.M. he stopped the vehicle on the road side and went for easing out and when returned back, found that unknown person fled away with the vehicle. In claim form submitted by the complainant with the OP, complainant gave short description of the accident:

“My son was coming from Agra with goods and the goods owner, who was unknown person. He took my son near the bypass for taking goods from there, he snatched the vehicle on a gun point. On the way that unknown person allowed two more goons to enter into vehicle. They all tied the driver i.e. Puneet and thrown him alongside the road. Those goons took all the documents like insurance, drivinglicence etc. which were lying in the vehicle along with the vehicle”.

6. Perusal of this statement reveals that vehicle was snatched by three persons on gun point after tiding Puneet and throwing him alongside the road. In intimation to OP, complainant affirmed contents of the FIR lodged by his son Puneet. On the contrary, in complaint filed before District forum, complainant submitted that he along with his son Puneet were coming with goods and his owner from Agra and in the way he and his son Puneet went to ease out and in the meanwhile, owner of the goods fled away with the said vehicle.

7. Thus, it becomes clear that complainant himself has shown his presence in the vehicle at the time of accident, but FIR, intimation to OP and claim form does not show his presence. In this way, the complainant has tried to improve earlier statement and has inserted his presence, though; he was not present on the spot. Not only this, in the FIR, intimation to Insurance Company and in the complaint it has been pleaded that while going for easing out and left key in the vehicle, the vehicle was taken away by owner of the goods, who was sitting in the vehicle, whereas in the claim form complainant tried to justify the fact that the vehicle was snatched by owner of the goods along with 2 persons at gun point by tiding Puneet and throwing him out of the vehicle. Looking to the different statements of the complainant, version of the complainant does not inspire confidence and it appears that complainant has not come with clean hands. Learned Counsel for the petitioner has placed reliance on judgment of Hon’ble Apex Court delivered in SLP (C ) No. 8479 of 1999 – United India Insurance Co. Ltd. Vs.Rajendra Singh & Ors. in which it was observed that :

“ Fraud and justice never dwell together.(Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper over all these centuries. Lord Denning observed in a language without equivocation that no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything( (Lazarus Estate Ltd. Vs. Beasley 1956(1) QB 702.)

No one can possibly fault the Insurance Company for persistently pursuing the matter up to this court because they are dealing with public money. If they have discovered that such public fund, in a whopping measure, would be knocked off fraudulently through a fake claim, there is full justification for the Insurance Company in approaching the Tribunal itself first. At any rate the High Court ought not have refused to consider their grievances. What is the legal remedy when a party to a judgment or order of court later discovered that it was obtained by fraud?

8. In the light of above judgment it becomes clear that a party who has not come with clean hands cannot get relief from Consumer Forum and complaint is liable to be dismissed. 9. Learned Counsel for the petitioner further submitted that as complainant himself left the key in the vehicle and went for easing out, he violated Condition No. 5 of the policy, which runs as under: Condition No. 5:“The insured shall take all reasonable steps to safeguard the vehicle from loss of damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk”.

10. Perusal of aforesaid condition makes it clear that complainant’s son was under an obligation to take key of the vehicle with him while going to ease out. While he himself had left the key in the vehicle, he violated Condition No. 5 of the policy and in such circumstances; OP has not committed any deficiency in repudiating claim of the complainant.

11. Learned Counsel for the respondent has placed reliance on judgment of this Commission in R.P. No. 375 of 2013 - Sukhwinder Singh Vs.Cholamandalam & Anr. in which it was held that if driver was in the hurry to answer the call of nature and the driver forgot to remove keys from the ignition switch, he cannot be said to have committed willful breach in violation of Condition No. 5 of the policy. In the case in hand, there is no averment in the FIR, complaint etc. that Puneet Kumar along with his father complainant were in hurry to answer the nature of call and the driver forgot to take key with him. Rather, in motor claim form, complainant tried to justify that the vehicle was taken away at gun point. In the aforesaid judgment Sukhwinder Singh (Supra), judgment of this Commission reported in IV (2010) CPJ 297 (NC) – National Insurance Co. Ltd. Vs. Kamal Singhal was also referred in which it was observed that driver is not expected to carry key of the vehicle with him while going to answer the natural call, particularly, when the vehicle was within his sight. In case in hand, we do not find any averment in the complaint that vehicle was within the sight of complainant and his son when they went for easing out. In such circumstances, Sukhwinder Singh case does not help the respondent and we hold that learned District Forum committed error in allowing complaint and learned State Commission committed error in dismissing appeal inspite of the fact that the complainant or his son were negligent in leaving the key in the vehicle and changing their version and not coming with clean hands before District Forum and impugned order is liable to set aside.

12. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 09.07.2013 passed by the State Commission in Appeal No. 866/2013 – The Oriental Insurance Co. Ltd. Vs. Shyam Sunder and order of District forum dated 5.2.2013 passed in Complaint No. 21 of 2012 – ShyamSunder Vs. The Oriental Ins. Co. Ltd. & Ors. is set aside and complaint stands dismissed with no order as to costs.

………………Sd/-……………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER k

(From the order dated 11.07.2012 in Appeal No. 2892 of 2012 of A.P. State Consumer Disputes Redressal Commission, Hyderabad)

The Andhra Pradesh Eastern Power Distribution Company Ltd. [APEPDCL] Represented by: (Through its Superintending Engineer, Operation, Dasannapeta, Vizianagaram), Andhra Pradesh …Petitioner/Opposite Party (OP)

Versus 1. Smt. Puvvala Savitri W/o Late Puvvala Bavaji 2. Puvvala Prasad S/o Late Bavaji 3. Puvvala Srinivasa Rao S/o Late Bavaji 4. Puvvala Govinda Rao S/o Late Bavaji 5. Puvvala Seshagiri S/o Late Bavaji

All Resident of:

Village : 11-71, Katamdoravalasa (V), Kurupam (Post), Therlam Mandal, Vizianagaram District, Andhra Pradesh …Respondents/Complainants

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr. Sunil Kumar Ojha, Advocate For the Res. Nos. 1 to 5 : Ex-parte

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 11.07.2012 passed by the A.P. State Consumer Disputes RedressalCommission, Hyderabad (in short, ‘the State Commission’) in Appeal No. 2892 of 2012 – The Superintending Engineer & Ors. Vs. Smt. Puvvala Savitri & Ors.by which, appeal was dismissed as barred by limitation.

2. Complainants/Respondents filed complaint before District Forum for grant of compensation of Rs.5,00,000/- on account of death of husband of complainant no. 1 due to electrocution. OP/petitioner contested the complaint and learned District Forum after hearing both the parties allowed complaint partly and directed OP to pay Rs.1,75,800/- with interest and cost of Rs. 2,000/- and Rs.15000/- as consortium against which, appeal filed by the petitioner was dismissed against which, this revision petition has been filed.

3. None appeared for respondents even after service and they were proceeded ex- parte at admission stage.

4. Heard learned Counsel for the petitioner and perused record.

5. Learned Counsel for the petitioner submitted that learned State Commission committed error in dismissing application for condonation of delay of 150 days and consequently dismissing appeal; hence, revision petition be admitted.

6. Petitioner filed application before learned State Commission for condonation of 150 days delay and paragraphs 3, 4 and 5 of the application run as under:

“3. I submit that the copy of the order has been received through BLA in the month of February 2012. Thereafter the said copy has been sent to the corporate office for taking further action. The corporate office sent for legal opinion to the Local BLA and after receipt of the legal opinion, the corporate office sanctioned the statutory deposit to file appeal against the above said order. Immediately after sanctioning the amount filed the present appeal. But by that time the prescribed for appeal has been expired. Therefore, I am filing the present appeal with delay petition. The delay in filing the appeal is neither willful nor wanton, except the reasons mentioned above. In fact, we have got good case in the appeal unless the Hon’ble Commission may condone the delay in filing the appeal, the petitioner will be put to irreparable loss and hardship.

4. I submit that taking advantage of the order, the respondents herein filed execution petition No. 15 of 2012 and the said petition is coming for counter and hearing. Unless this Hon’ble Commission grant stays all further proceedings the petitioners will be put irreparable loss and hardship.

5. It is therefore prayed that this Hon’ble Commission may be pleased to condone the delay of 150 days in filing the appeal against the order in C.C. No. 110 of 2011 dated 07.12.2011 on the file of the District Consumer Disputes Redressal Forum, Vizianagaram and pass such other order or orders as this Hon’ble Commission may deem fit and proper in the circumstances of the case”.

7. Learned State Commission rightly observed in the order that no satisfactory explanation for condonation of delay was given by the petitioner. Petitioner has not cared to mention in the application when and on which date of February 2012 order of District Forum was received. He has also not mentioned when copy of order was sent to the corporate office for legal opinion and when legal opinion was received. Not only this, appeal filed by the petitioner on 12.6.2012 was returned to him on 13.6.2012, but as per application for condonation of delay file got mixed with other files and was traced on 27.6.2012 and was resubmitted on 2.7.2012 meaning thereby, again delay was caused in resubmitting appeal after return and no satisfactory explanation was given for not resubmitting appeal on 27.6.2012 when file was traced.

8. As there was inordinate delay of 150 days in filing appeal and again delay in resubmitting appeal, learned State Commission has not committed any error in dismissing application for condoantion of delay in the light of following judgments of Hon’ble Apex Court:

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. 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.”

11. 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.”

12. 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.

13. Hon’ble Apex Court in 2012 (2) CPC 3 (SC)

– Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed as under: “ It is also apposite to observe that while deciding an

application filed in such cases for condonation of delay, the

Court has to keep in mind that the special period of limitation

has been prescribed under the Consumer Protection Act,

1986, for filing appeals and revisions in Consumer matters

and the object of expeditious adjudication of the Consumer

disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the

Consumer Foras”.

Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 150 days and again delay in resubmitting appeal before State Commission. In such circumstances, application for condonation of delay was rightly dismissed.

14. Learned Counsel for the petitioner placed reliance on VIII (2013) SLT 725 – State of Rajasthan & Anr. Vs. Bal Kishan Mathur (D) Through LRs.

&Ors. in which Hon’ble Apex Court condoned delay of 6 days in filing appeal as High

Court accepted explanation for delay upto 2.11.2006, but appeal was filed on

8.11.2006. In the case in hand, there was delay of 150 days and further delay of 20 days in resubmitting the appeal without any explanation. He also placed reliance on VIII

(2013) SLT 95 – Esha Bhattacharjee Vs. Managing Committee of Raghunthpur Nafar Academy and Ors. in which Hon’ble Apex Court held that if there is only delay of few days, it should be condoned and order of High Court condoning delay of 1236 days was set aside. We agree with the principle laid down by the Hon’ble Apex Court, but in the case in hand as there was no explanation for condonation of 150 days delay, learned State Commission has not committed any error in dismissing appeal as barred by limitation.

15. We do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed.

16. Consequently, the revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.

………………Sd/-……………

( K.S. CHAUDHARI, J) PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2466 OF 2013

(From the order dated 27.02.2013 in First Appeal No. 787/2008 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

With IA/4107/2013 (Stay)

1. PUDA (Now Greater Ludhiana Area Development Authority), Through its Additional Chief Administration Officer, Ferozepur Road, Ludhiana

2. Estate Officer, PUDA, Ferozepur Road, Ludhiana …Petitioners/Opp. Parties (OP) Versus Dr. Santosh Arora D/o Sh. Basti Ram Arora, W/o Dr. Saubhash Batta R/o B-XX-1258, Krishna Nagar, Ghumar Mandi, Civil Lines, Ludhiana

… Respondent/Complainant

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioners : Mrs. Rachana Joshi Issar, Advocate

For the Respondent : Mr. J.S. Ahluwalia, Advocate

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 27.2.2013 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short, ‘the State Commission’) in Appeal No. 787 of 2008 – PUDA (Now Greater Ludhiana Area Development Authority) & Anr. Vs. Dr. Santosh Arora by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent was allotted Plot No.

3001, measuring 400 sq. yds. in Sector 38-39, Samrala Road, Ludhiana by

OP/petitioners vide allotment letter dated 13.10.1999 and entire sale price of the plot was paid. Complainant applied for no dues certificate, but OP vide letter dated

12.8.2005 raised an illegal demand of Rs.1,04,894/- for the period from 2003 to 2005 on account of non-construction against the rules and regulations. Alleging deficiency on the part of OP, complainant filed complaint for quashing the demand. OP contested complaint and submitted that complainant does not fall with the purview of consumer as demand of “extension fee” is not a deficiency. Allotment of plot was admitted, but it was submitted that as complainant was required to complete the building within the period of

3 years from the date of allotment letter and as he failed to comply with the terms and conditions, demand raised by OP was legal and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to charge non-construction fee in accordance with rule 13 of 1995

Act. 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.

4. Learned Counsel for the petitioners submitted that charging of “extension fee” does not fall within the purview of service and complaint was not maintainable and further submitted that petitioner was charging “extension fee” as per amended rules; even then, learned District Forum committed error in allowing complaint and learned

State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law, which does not call for any interference; hence, revision petition be dismissed.

5. First of all, it is to be seen whether charging of “extension fee” falls within the purview of service under Consumer Protection Act or not. Learned Counsel for the petitioner has placed reliance on judgment of Apex Court delivered in (2005) 2 SCC 479

– HUDA Vs. Sunita which has also been referred by learned State Commission in which it was held that :

“ 4. On the above finding, the National Commission had no

jurisdiction to go into the correctness of the demand of

“composition fee” and “extension fee” made by HUDA from

the respondent complainant.

5. On the National Commission’s own reasoning and the

interpretation of provisions of law with which we agree, this appeal deserves to be allowed. In our opinion, the National

Commission having held that it has no jurisdiction to go into

the correctness of the demands made by HUDA ought to

have set aside the orders of the District Forum and the State

Commission setting aside the demand of “composition fee”

and “extension fee”. We, therefore, allow this appeal

upholding the order of the National Commission. We set

aside the order of the District Forum and the State

Commission to the extent of quashing the demand of

“composition fee” of Rs.53,808 and “extension fee” of

Rs.6300/-.

6. We, however, make it clear that the respondent complainant

may resort to any other appropriate remedy for questioning

the aforesaid demands if they are not in accordance with

law. The appeal, thus, stands allowed in the manner and to

the extent indicated above”.

6. Thus, it becomes clear that charging of extension fee does not fall with the purview of service and Consumer Fora has no jurisdiction to go into correctness of demands made on account of “extension fee”. Learned Counsel for the respondent has placed reliance on judgment of this Commission in R.P. 2125 of

2006 – Narinder Singh Nanda Vs. P.U.D.A. in which while referring judgment of

Sunita’s case (Supra) and other cases it was observed that as PUDA has charged “extension fee” illegally under the Government notifications which were struck down prior to the date of deposit, the complainant was entitled to get interest from the date of deposit of amount of “extension fee” along with refund of

“extension fee”. This judgement has been referred by Apex Court in C.A. No.

8314-15/2010 – PUDA Vs. Narinder Singh Nanda.

7. As Hon’ble Apex Court in Sunita’s case (Supra) has held that Consumer Fora has no jurisdiction to go into the correctness of demand for “extension fee”, we hold that complaint was not maintainable before District Forum and complaint was liable to be dismissed.

8. As far as merits of the case are concerned, plot was allotted to the complainant on

13.10.1999 and 3 years period for completion of construction was provided. Construction was not completed within this period and in the light of

Notification dated 8.10.2001, amending rule 13, demand was raised. Learned District forum also directed OP to charge non-construction fee in accordance with rule 13 of the

1995 Act. As necessary amendment has been incorporated in rule 13, apparently, we do not find any error in raising demand in pursuance to amended rule 13 of the Act; even then, if complainant feels that such demand cannot be raised; he may have resort to any other appropriate remedy for quashing the aforesaid demand.

9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 27.2.2013 passed by learned State Commission in Appeal No. 787 of 2008

– PUDA Vs. Dr. Santosh Arora and order of District Forum dated 16.5.2008 is set aside and complaint stands dismissed with no order as to costs.

………………Sd/-……………

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION No. 4697 of 2013 (From the order dated 03.10.2013 of the Mizoram State Consumer Disputes Redressal Commission, Aizawl in State Consumer (Misc.) no. 01 of 2013) With IA No.7786 of 2013 (Stay)

M/s Auva Gas Agency Through: Mr Paul Roluahpuia Vairengte, Kolasib District Mizoram Petitioner Versus

Consumer Union Vairengte South Branch Kolasib District Mizoram Respondent

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

For the Petitioner Mr Prithu Garg, Advocate

Pronounced on 5th May 2014

REKHA GUPTA

Revision Petition no. 4697 of 2013 has been filed under section 21 (B) of the Consumer Protection Act, 1986 against the order dated 03.10.2013 passed by the Mizoram State Consumer Disputes Redressal Commission, Aizawl (‘the State Commission’) in State Consumer (Misc.) no. 01 of 2013.

2. As per the facts gleaned from the order of the Consumer Disputes Redressal Forum, Kolasib District, Kolasib (“the District Forum”) a written complaint from Consumer Union, Vairengte South Branch -respondent herein, signed by Pu K Sangbuanga, President and Pu Z Lalremliana, Secretary of the Consumer Union Branch was submitted to the President, District Forum Kolasib District on 22nd August 2012 against M/s Auva Gas Agency, Vairengte – petitioner. In support of their complaint, the respondent/ complainant furnished complaints which they had received in original from 42 aggrieved consumers. The following points were mentioned in the complaint.

(i) Excessive rate for new connection of LPG; (ii) Non-issue of receipt by agency; (iii) Inferior goods supplied; (iv) Non gas lighter is supplied; (v) MRP is not printed on the supplied materials; (vi) Excessive charge (Rs.300/-) for the loss of Green card; and (vii) Relatives of consumers from Saipum and Saiphai area are refused to buy LPG even with green cards.

3. The demands made by the respondent/ complainants were as follows:

(i) Refund of excess amount collected by opposite party to all consumers; (ii) Petitioner/ Opposite party should bear all monetary and physical expenses to appear before the District Forum; (iii) A sum of Rs.200/- shall be paid to all consumers as compensation for mental agony; and (iv) All other expenses of the leaders of Consumers Union should be borne by the petitioner/ opposite party.

4. The District Forum vide its order dated 07.12.2012 allowed the complaint and gave the following order:

(i) The respondent M/s Auva Gas Agency, Vairengte should return a sum of Rs.770/- to each existing customer on production of consumer card, for excessive price collected from them, within one month from the date of issue of judgment and order; (ii) The respondent should pay a sum of Rs.1960/- to the complainants – Consumer Union, Vairengte South Branch to cover the travelling expense of 14 persons at the rate of Rs.140/- to and from Kolasib, within a month from the date of issue of Judgment and Order; (iii) The respondent should from now onwards, issue receipts to all their customers at the time of giving a new connection and for any other transaction with the customers; (iv) The respondent shall repair defective materials supplied by them free of cost or exchange with new ones. They should also ensure that the materials supplied are of good quality. (quality assured); (v) The respondent should sell LPG to representatives of consumers on production of consumer cards and letter of representation countersigned by their respective VCPs; (vi) The respondent shall never sell at prices exceeding MRP nor collect charges higher than IOC guidelines; and (vii) Failure of payment within stipulated time will entail interest at a rate of 12% per annum.

5. Aggrieved by the order of the District Forum, the petitioner/ appellant filed an appeal before the State Commission. Along with the appeal a miscellaneous application for condonation of delay. The reasons given in the application for condonation of delay were as follows:

“On receiving the copy of the judgment and order dated 7th December 2012 on 17th December 2012, and being aggrieved by the said judgment and order, the appellant/ opposite party has been preparing without delay for this appeal but due to some unavoidable circumstances, the instant appeal could not be filed within 30 days from the date of judgment and order dated 7th December 2012, Hence, the instant application”.

6. The State Commission vide its order dated 3rd October 2013, dismissed the petition with the following observations:

“ We have considered the statements made in paragraph 1 and 2 of the petitioner. In paragraph 1, it is said that the judgment and order was received by the petitioner/ appellant on 17.12.2012. It is also indicated in paragraph 2 of the petitioner that after receipt of judgment and order dated 12.12.2012 appeal was prepared but the same could not be filed due to some unavoidable circumstances. Except this statement there is nothing in the petitioner. We therefore find no good ground to accept this petitioner and condone the delay.”

8. The main grounds for the revision petition are as follows:

 The State Commission has failed to appreciate that a minimal delay of 15 days (actual delay was of 5 days) did not warrant dismissal of the appeal filed by the petitioner herein, more so when the delay was unintentional, bona fide and was not actuated by mala fide intentions. The said act is a benevolent legislation and its provisions must be construed strictly so that substantial justice can be meted out by the Consumer Forum in every individual case.  The State Commission ignored the settled position of law that procedural law, particularly that pertaining to statutory limitation period, must be construed liberally, more so when such delay is unintentional and bona fide and is not actuated by malice, negligence, inaction or carelessness of the litigant. It was held that procedural laws are handmaid of justice and should be interpreted with a liberal approach wherein the intention of the court must be not to prevent a litigant from pursuing his legal remedies and an opportunity must be given to him to contest a matter. Procedural law is subservient to substantive law and procedural irregularities, particularly those which are as minor as in the present case, must give way to substantial justice to be delivered to the parties to the litigation.  The State Commission ignored the proposition of law that a party to the litigation cannot be punished or made to suffer because of a fault or an inadvertent error on the part of his / her counsel. The fact that the application for condonation of delay, being State Consumer (Misc) No. 1 of 2013, was inaptly drafted was an inadvertent and a bona fides error of the then counsel for the petitioner who was only one year into the profession and in any case was not the fault of the petitioner himself. In such circumstances, the petitioner being the litigation could not have been allowed to suffer on account of the error on part of its counsel and the State Commission should have condoned the delay, more so because the delay was of merely five days which cannot in any circumstances be termed as “inordinate delay” requiring a detailed explanation by the petitioner.  The said appeal filed by the petitioner before the State Commission was accompanied by an application for condonation of delay which the local counsel drafted in the mistaken belief that the delay in filing the said appeal was of 15 days. The said counsel was under the impression and wrong legal notion that the statutory period of limitation would commence from the date of pronouncement of the order, i.e., 07.12.2012, whereas in view of the law laid down by the Hon’ble Supreme Court in the case of Housing Board Haryana vs Housing Board Colony Welfare Association (1995) 5 SCC 672, the period of limitation would commence from the date of receipt of the said order, i.e., 17.12.2012. Hence, there was a delay of merely five days in filing the said appeal and not of fifteen days as argued by the said counsel in the court in the application for condonation of delay filed before the State Commission.

9. We have heard the learned counsel for the petitioner and have also gone through the records of the case. Counsel for the petitioner failed to give any supporting evidence regarding the date on which they received the order of the District Forum dated 17.12.2012. The reasons given in the application are vague. No date wise justification has been given and the only justification given was that “due to some undue circumstances, the instant appeal could not be filed within 30 days”. The application does not even mention the number of days of delay. As per the grounds of delay, the delay stated to be five days, whereas the State Commission has noted the delay of 15 days.

10. Counsel for the petitioner also argued that according to him there was a delay of five days whereas the State Commission has noted the delay by 15 days, but he could not sustain same without any evidence. He also tried to argue that the litigant cannot be allowed to suffer on account of the error on the part of its counsel. However, nowhere in the application for condonation of delay before the State Commission has the role of the counsel of the counsel or his contribution to the delay been mentioned

11. At the same time, it is also well settled that “sufficient cause” with regard to condonation of delay in each case, is a question of fact.

12. The Apex Court In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has laid down: “ It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”. 13. In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held: “ The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”.

14. 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.”

15. 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 twofora.”

16. Thus, there is no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, two Fora below have given a detailed and well-reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Accordingly, the present revision petition is hereby, dismissed with a cost of Rs.5,000/- (Rupees five thousand only).

17. Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer Legal Aid Account of this Commission’ within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 4th July, 2014 for compliance. Sd/- ..……………………………… [ V B Gupta, J.]

Sd/- ……………………………….. [Rekha Gupta]

Satish NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 31.08.2012 in First Appeal No. 1423/2007 of Punjab State Consumer Disputes Redressal Commission)

1. The Oriental Insurance Company 88, Janpath, New Delhi

2. The Oriental Insurance Co. Ltd. Divisional Office 32, G.T. Road, Jalandhar

3. The Oriental Insurance Co. Ltd. Divisional Office Roshan Road, Hoshiarpur through Shri S.S. Bahri Manager The Oriental Insurance Co. Ltd. Regional Office, SCO 109-110-111, Sector – 17, Chandigarh

... Petitioners/OPs

versus

Seema w/o Shri Rajiv Kumar r/o H. No. 234, Sector 3, Central Town, Arewali Gali, Sutehri Road, Hoshiarpur

BEFORE

APPEARED AT THE TIME OF ARGUMENTS

For the Petitioner(s) Mr. Manish Pratap Singh, Advocate

For the Respondent Mr. Vipin Gogia, Advocate

PRONOUNCED ON : 6th MAY 2014 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 31.08.2012, passed by the

Punjab State Consumer Disputes Redressal Commission (for short ‘the State

Commission’) in FA No. 1423/2007, “Oriental Insurance Company versus Seema,” vide which while deciding the appeal, the order dated 19.09.2007 in consumer complaint no.

172 dated 28.05.2007, passed by the District Consumer Disputes Redressal Forum,

Hoshiarpur, allowing the said complaint, was modified.

2. Briefly stated the facts of the case are that the respondent/complainant was the owner of a Mahindra Pick-up Jeep bearing registration no. PB07-Q-372, which was comprehensively insured with the petitioner/OP Insurance Company for the period from

17.08.2006 to 16.08.2007. It has been stated in the complaint that the complainant had purchased the jeep for her own use, but the said vehicle had been registered as a commercial vehicle with the registering authority. The complainant employed Ramesh

Chand s/o Santosh as driver on her jeep. The said Ramesh Chand was the holder of a driving licence for Light Motor Vehicle (LMV). The jeep suffered damage in an accident on 21.09.2006, when Ramesh Chand was driving the vehicle. The complainant informed the insurance company, which deputed a surveyor to assess the loss. The jeep was got repaired at Hoshiarpur vide job card no. 1020 dated 28.10.2006, and a sum of ` 1,29,000/- was paid by the complainant herself. Thereafter, a claim was lodged with the petitioner/OP, but the same was repudiated by the OP, vide their letter dated 15.05.2007, on the ground that the vehicle was registered as LMV (goods- carrying vehicle), whereas the driver had licence for LMV only and hence, he was not holding a valid and effective driving licence for driving the said commercial vehicle. The complainant filed the consumer complaint in question before the District Forum which was allowed vide order dated 19.09.2007, and the OP was ordered to pay a sum of `

1,21,000/- (`_1,29,000/- minus salvage value of ` 8,000/-), as assessed by the surveyor, vide his report alongwith interest @9% p.a. from the date of complaint till payment, and a further sum of ` 1000/- as cost of litigation. The District Forum held that there was no requirement of law that the licence for driving LMV should bear endorsement to the effect that driver is competent to drive a transport vehicle as per section 2(21) of the

Motor Vehicles Act, 1988. An appeal was filed against this order by the OP before the

State Commission, which was decided vide impugned order dated 31.08.2012. The

State Commission held that as per the amendment in the Motor Vehicle Rules made effective from 28.03.2001 by substituting GSR 221 (E), the licence held by the driver, cannot be held invalid in law, as Light Transport Vehicle was also covered under the definition of LMV. The State Commission, however, modified the award of the District

Forum and stated that a sum of ` 96,015/- as assessed by the surveyor should be paid to the complainant, alongwith an interest of 7.5% p.a., instead of the amount of `

1,29,000/- awarded by the District Forum. It is against this order that the present petition has been made.

3. At the time of arguments before us, the learned counsel for the petitioner stated that the delay of 43 days in filing the petition had taken place because the matter had to be referred for legal opinion and some time was lost in correspondence between the

Regional Office and the Head Office. There was no deliberate delay on the part of the petitioner in filing this petition. The delay should be condoned in view of the position explained in the application for condonation of delay.

4. Learned counsel argued that the vehicle in question is a transport vehicle, but as admitted by the complainant, the driver had licence for driving the LMV only. A copy of the licence is also on record which shows that there was no endorsement on the licence for driving a commercial vehicle. The State Commission, while passing their order, had wrongly placed reliance on the judgement of the Supreme Court in the case of

“NATIONAL INSURANCE CO. LTD. versus ANNAPPA IRAPPA NESARIA & ORS.”

[reported in IV 2008 ACC (169) SC.]. After the amendment that had taken place in the

Central Motor Vehicles Rules in the year 2001, it was mandatory to have an endorsement on the licence to the effect that the driver was permitted to drive a transport vehicle.

5. In reply, the learned counsel for the complainant/respondent vehemently argued that the vehicle in question was a Jeep, which was covered under the definition of LMV and hence, the driver had a valid and effective licence to drive the vehicle. The learned counsel produced various citations in support of his arguments, referring to the orders passed by the Hon’ble Supreme Court and this Commission in a number of cases. Referring to the order passed by the Hon’ble Apex Court in “NATIONAL

INSURANCE CO. LTD. versus SWARAN SINGH & OTHERS” [as reported in (2004) 3

SCC 297], the learned counsel argued that the onus to prove that there had been some breach of conditions of the Policy was on the Insurance Company itself, but they had failed to discharge the same. On the other hand, the complainant had taken the necessary precautions to check the driving licence of the driver Ramesh Chand before providing him employment. Further, the accident in question had nothing to do with the driving licence of the driver. The State Commission and the District Forum had rightly observed that a person who holds a valid driving licence to drive LMV, also has the authority to drive a light transport vehicle. The State Commission and District Forum have placed reliance on a number of judgements in support of this assertion. The learned counsel argued that if the Insurance Company had any reservation about the nature of licence possessed by the driver, they could very well have cancelled the said policy. The learned counsel also referred to a judgement passed by the Hon’ble High

Court of Delhi in “NEW INDIA ASSURANCE CO. LTD. versus SANJAY KUMAR,” MAC

Application No. 28/2005 and other similar cases decided on 17.04.2007 in support of his argument, saying again that the onus was on the insurance company to prove that the driver had no valid driving licence. The National Commission in their order passed on

10.12.2012 in RP No. 1225/2002 held that the claim should be paid, when there was no nexus between the incident and the driving licence. In Revision Petition No. 1503/2004,

“G. Kothainachair versus The Branch Manager, United India Insurance Co. Ltd. & Ors.,” decided on 29.10.2007, it was held that an Insurance Company can repudiate the claim only when there is a fundamental/material breach of terms and conditions of the policy. The impugned order was, therefore, in accordance with law and the same should be upheld.

6. After the conclusion of the arguments, the learned counsel for the petitioner have submitted copies of the orders passed in the following cases in support of his arguments:- 1 United India Insurance Co. Limited versus Davinder Singh [as reported in (2007) 8 SCC 698]

2 Premkumari and others versus Prahlad Dev and Others [as reported in (2008) 3 SCC 193]

3. National Insurance Co. Ltd. versus Meena Aggarwal [as reported in (2009) 2 SCC 523]

4. New India Assurance Co. Ltd. versus Prabhu Lal [as reported in AIR 2008 SC 614]

5. National Insurance Co. Ltd. versus Saheb Singh [(2010) 14 SCC 776]

6. National Insurance Co. Ltd. versus Om Prakash Jain [Civil Appeal No. 6248/2009 decided on 14.09.2009]

7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. There is a delay of 43 days in filing the revision petition. An application for condonation of delay has been filed by the petitioner saying that the said delay was not intentional and it occurred because of official formalities. For the reasons mentioned in the application for condonation of delay as well as in the arguments before us, the delay in filing the revision petition is ordered to be condoned.

8. The basic fundamental issue involved in the present revision petition relates to the proposition, whether the driving licence issued by the Licensing Authority for Light

Motor Vehicle (for short ‘LMV’), was a valid and effective licence for driving a light commercial vehicle (goods carrying vehicle) as well, or some kind of an endorsement from the Licensing Authority was required to be made on the said licence. The admitted facts of the case are that the Mahindra Pick-up Jeep in question was registered as light commercial vehicle (goods-carrying vehicle), whereas the driving licence of the driver was issued for a light motor vehicle (LMV). The State Commission and the District

Forum concluded that the driving licence for LMV was sufficient for the purpose of driving a light commercial vehicle. The State Commission also stated that the definition of LMV covered both light passenger-carrying vehicle and light goods-carrying vehicle.

9. In this regard, it shall be worthwhile to have a look at the provisions contained in the Motor Vehicles Act, 1988 as amended from time to time and the Central Motor

Vehicles Rules, 1989 concerning the definition of the Motor vehicles, both transport and non-transport, and then to examine at the provisions, governing the grant of licence to drivers of motor vehicles.

10. Section 2(21) of the Motor Vehicles Act, 1988 states as follows:- “(21) “light motor vehicle” means a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms”

11. Further, section 2(47) of the Act describes the transport vehicle as follows:- “(47) “transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle”

12. Section 2(35) of the Act defines a public service vehicle as follows:- “ (35) “public service vehicle” means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage”

13. Section 2(14) gives the definition of “goods carriage” as follows:- “(14) “goods carriage” means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods”

14. Further, section 2(25) of the Act defines a “motorcab” as follows:- “motorcab” means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward”

15. From the above definitions, it is clear that a transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private vehicle and it includes a maxicab, motorcab, etc. The vehicle in the present case is a Mahindra

Pick-up jeep and is admittedly registered as a Light Motor Vehicle/goods-carrying vehicle.

16. Now, coming to the licence of drivers of Motor Vehicle, section 3(1) of the Act says as follows:- “ 3. Necessity for driving licence. - (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle ; and no person shall so drive a transport vehicle [other than a motorcab or motor cycle] hired for his own use or rented under any scheme made under sub - section (2) of section 75] unless his driving licence specifically entitles him so to do.”

17. It has been clearly mentioned in the above section that a person shall not drive a transport vehicle hired for his own use or rented, unless his driving licence specifically entitles him to do so.

18. Further, section 4 of the Motor Vehicles Act says as follows:- “4. Age limit in connection with driving of motor vehicles. – (1) No person under the age of eighteen years shall drive a motor vehicle in any public place:

Provided that a motor cycle with engine capacity not exceeding 50 cc may by driven in a public place by a person after attaining the age of sixteen years.

(2) Subject to the provisions of section 18, no person under the age of twenty years shall drive a transport vehicle in any public place.” ……………………………………………………………

19. It is evident from the above provision that the minimum age for driving a transport vehicle has been prescribed as 20 years, meaning thereby that the holder of a driving licence for non-transport vehicle cannot be permitted to drive the transport vehicle till he attains the age of 20 years.

20. Section 7(1) of the Act, says as follows:- “ 7. Restrictions on the granting of learner’s licences for certain vehicles. - (1) No person shall be granted a learner’s licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year.”

21. It is clear from above that even a learner’s licence to drive a transport vehicle cannot be given unless a person is holding a regular licence to drive an LMV for at least one year.

22. Section 8 of the Act says as follows:- “8. Grant of learner’s licence. -……. …………………………………………………… (3) Every application under sub-section (1) shall be accompanied by a medical certificate in such form as may be prescribed by the Central Government and signed by such registered medical practitioner, as the State Government or any person authorised in this behalf by the State Government may, by notification in the Official Gazette, appoint for this purpose.

[Provided that no such medical certificate is required for licence to drive a vehicle other than a transport vehicle.]

………………………………………………………….”

23. It is clearly provided that if a learner’s licence is applied for a transport vehicle, a medical certificate has to be furnished whereas there is no such requirement for licence to drive the vehicle other than transport vehicle.

24. Section 10(2) of the Act says as follows:- “ (2) A learner’s licence or as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely :-

(a) motor cycle without gear; (b) motor cycle with gear ; (c) invalid carriage ; (d) light motor vehicle ; 1(e) transport vehicle ;] (i) road-roller ; (ii) motor vehicle of a specified description.”

25. It is provided that at the time of applying for a licence on the prescribed form, the

LMV and the Transport vehicle are listed in separate categories.

26. Section 14(2) of the Act says as follows:- “(2) A driving licence issued or renewed under this Act shall – (a) in the case of a licence to drive a transport vehicle, be effective for a period of three years :

Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus ; and

(b) in the case of any other licence -

(i) if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of fifty years on the date of issue or, as the case may be, renewal thereof –

(A) be effective for a period of twenty years from the date of such issue or renewal ; or

(B) until the date on which such person attains the age of fifty years,

whichever is earlier.

27. The above provisions makes it abundantly clear that the licence to drive a transport vehicle shall be effective for three years only, whereas licence for the other vehicles shall be valid for 20 years or till the age of 50 years, whichever is earlier.

28. Section 15 of the Act deals with the renewal of the driving licence and lays down that a medical certificate shall always be required for the renewal of licence for a transport vehicle, but for driving other vehicles, such certificate will be required only if the applicant had attained the age of 40 years.

29. Now, coming to the provisions of the Central Motor Vehicles Rules, 1989, it has been stated in Rule 5 that an application for the issue of learner’s licence or a driving licence to drive a transport vehicle shall be accompanied by a medical certificate, whereas in other cases, a self-declaration to physical fitness is sufficient.

30. Rule 8 of the said Rules prescribes the minimum educational qualification for driving transport vehicle and says as follows:- “ 8. Minimum educational qualification for driving transport vehicles.- The minimum educational qualification in respect of an applicant for obtaining a licence to drive a transport vehicle shall be a pass in the eighth standard:”

31. Rule 10 (d) says that in the application for getting learner’s licence for transport vehicle, the regular driving licence held by the applicant has to be attached. It is provided in Rule 18 regarding the renewal of driving licence that when the driving licence authorised the holder to drive a transport vehicle as well as any other vehicle, the licensing authority shall renew such licence for the appropriate period as defined in

section 14(2) of the Act.

32. Further, in the form prescribed under the Central Motor Vehicles Rule, for

example, in Form 2, Form 4 etc., the LMV and transport vehicle have been listed in

separate categories.

33. From the above statutory provisions contained in the Motor Vehicles Act, 1988

and the Central Motor Vehicle Rules, 1989, it becomes distinctly clear that the

requirements of age, qualification, medical examination, period of licence etc. for getting

a licence for driving a transport vehicle are different from those for getting a licence for

non-transport vehicle. In nutshell, the distinct differences/requirements for the grant of

licence for transport vehicle and other vehicles can be summed up as follows:- Transport Vehicle Non-Transport Vehicle 1. Age The minimum age for the grant of a licence toThe minimum age for grant of licence drive a transport vehicle is 20 years for non-transport vehicle is 18 years (Section 4 of Motor Vehicles Act) 2. Medical Certificate Always required for grant or renewal ofMedical Certificate may not be required. licence (Section 8 of Motor Vehicles Act) 3. Educational Qualification No qualification is prescribed. The minimum qualification required for(Rule 8 of Central Motor Vehicles obtaining licence is 8th standard Rules) 4. Validity of licence The driving licence for driving a transportThe licence is valid for 20 years or till vehicle is valid for three years only. the person attains the age of 50 years, whichever is earlier. (Section 14(2) of Motor Vehicles Act) 5. No person can be granted a learner’s licenceA person cannot appear in the driving unless he has held a driving licence to drivetest unless he has held a learner’s light motor vehicle for at least one year licence for at least thirty days. (Section 7(1) of Motor Vehicles Act) (Rule 15 of Central Motor Vehicle Rules)

34. It is evidently clear from the above provisions laid down in the Motor Vehicles Act,

1988 / Central Motor Vehicle Rules, 1989 that the basic requirements of age,

qualification, medical certificate, period of licence etc. are entirely different for the grant

of a licence for a transport vehicle. It is true that the definition of LMV in section 2(21) of the Act says that LMV means a transport vehicle, but this definition does not say that the holder of a licence for any vehicle is authorised to drive a transport vehicle as well. Had it been the intention of the Legislature that a person holding a licence for

Light Motor Vehicle is authorised to drive a light commercial vehicle (Light transport vehicle), they would not have prescribed entirely different set of conditions/requirements for the grant or renewal of a licence for a transport vehicle.

35. The natural corollary of this discussion leads to the irresistible conclusion that a person having a licence for LMV only is debarred from driving a transport vehicle unless he has the proper authority or endorsement to this effect from the competent transport authority. The said transport authority is legally bound to verify the facts regarding age, qualification, medical condition, etc. in accordance with the statutory provisions before giving authorisation for driving such a vehicle. It is clear, therefore, that without such authorisation, a person cannot be stated to be in possession of a valid and effective driving licence for driving a transport vehicle.

36. In some recent orders issued by this Commission, similar views have been stated, saying that if the holder of a licence for LMV vehicle wants to drive a transport vehicle, a specific endorsement from the licencing authority to this effect is required. In

Revision Petition No. 1067/2014, “Sandeep Kumar versus IFFCO Tokio General

Insurance Co. Ltd. & Ors.”, the National Commission in their order dated 04.03.2014, have referred to the order passed by the Hon’ble Supreme Court in “ORIENTAL

INSURANCE CO. LTD. versus ANGAD KOL & ORS.” [as reported in 2009 (2) RCR

(Civil) 419] and it has been concluded that the necessary endorsement to drive a transport vehicle will be required on a licence for LMV. In order passed In Revision

Petition No. 2450/2010, “Reliance General Insurance Co. Ltd. versus Shivakumara S.”, this Commission again took a similar view and placed reliance on the following judgements:-

“ Oriental Insurance Co. Ltd. Vs. Angad Kol and Ors. III (2009) SLT 586, New India

Assurance Co. Ltd. Vs. Prabhu Lal (2008) CPJ 1 (SC), National Insurance Co. Ltd. Vs.

Kusum Rai II (2006) CPJ 8 (SC), General Assurance Society Ltd. Vs. Chandanmall Jain and Another (1996) 3 SCR 500 and Ashok Gangadhar Maratha Vs.Oriental Insurance

Co. Ltd. (1999) 6 SCC620.”

37. From the above discussion, it becomes abundantly clear that a person who is holding a licence to drive a Light Motor Vehicle, does require the requisite endorsement from the licensing authority to enable him to drive a transport vehicle, including a light commercial vehicle. In the absence of such endorsement, he cannot be stated to be in possession of a valid and effective driving licence for driving a transport vehicle. In the present case, therefore, we do not agree with the conclusion arrived at by the State

Commission and the District Forum that the holder of licence for LMV did not require any authorisation from the licensing authority for driving a commercial vehicle in question. Obviously, there has been a violation of terms and conditions of the policy on the part of the complainant by employing a driver, who did not have proper authorisation to drive that vehicle. We, therefore, agree with the contention raised by the petitioner that the orders passed by the Fora below are perverse in the eyes of law and suffer from a patent legal error. The revision petition is, therefore, allowed; the orders passed by the State Commission and District Forum are set aside and the consumer complaint in question is ordered to be dismissed. There shall be no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

MEMBER RS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 350 of 2009 (Against the order dated 02.12.2008 in Complaint Case No.C-44/2001 of the Delhi State Consumer Disputes Redressal Commission)

United India Insurance Co. Ltd., Delhi Regional Office-1, 8th Floor, Kanchenjunga Bldg., 18, Barakhamba Road, New Delhi-110001 .....Appellant

Versus

National Heart Institute, Through its Director, 49, Community Center, East of Kailash, New Delhi- 110065 ...... Respondent

BEFORE HON’BLE MRS. VINEETA RAI, PRESIDING MEMBER HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner : Mr. Abhishek Kumar, Advocate

For the Respondent : Mr. Satyakam, Advocate

PRONOUNCED ON: 6th May, 2014

PER MR. VINAY KUMAR, MEMBER The matter in this appeal arises from the letter of 27.3.2000 in which the appellant/United India Insurance Co. Ltd. repudiated the insurance claim of complainant/respondent, All India Heart Foundation, New Delhi. The claim itself had arisen from an alleged incident of fire on 18.6.1999 in the Cardiac Catheterization Lab, resulting in damage to the HT Transformer and four connected Printed Circuit Boards (PCBs). In the consumer complaint before the State Commission, the complainant claimed indemnification of loss of Rs.12,23,750/- with compensation of Rs.1 lakh. The claim comprised Rs.3,43,750/- for the four PCBs and Rs.8,80,000/- for replacement of the transformer.

2. The State Commission, in its decision of 2.12.2008, held that the claim for the transformer was not admissible under the policy and only the claim for four PCB/PCs was covered. Therefore, it allowed Rs.3,43,750/- with 9% interest and Rs.50,000/- as compensation. The claim for Rs.8,80,000/- towards the transformer was disallowed.

3. The United India Insurance Co. Ltd. filed this appeal against the above order of the Delhi State Consumer Disputes Redressal Commission with delay of 79 days. Considering the explanation in the application, the Commission condoned the delay on 22.1.2010. The appeal was dismissed for non-prosecution on 9.9.2013, restored on 17.1.2014 and finally heard on 25.2.2014. The two sides have been heard and the records carefully considered. 4. The main ground of challenge to the impugned order is that— “ Because the Ld. State Commission did not consider that on inspection by the surveyor, there was no evidence of fire as such was found. The damage, if any, was only due to the breakdown caused by electric faults (sparking or short circuit) within the transformer. This is specifically excluded under exclusion no.6 of the policy, which states that ‘loss or damage to any electrical machine, apparatus etc. arising from or occasioned by over running, excessive pressure, short circuiting, arching, self heating, or leakage of electricity from whatever cause etc.’ is not covered under the policy.”

From the wording itself it is evident that the reference is to the manner in which damage to the transformer had occurred. It ignores the fact that the claim for indemnification of loss/damage to the transformer has already been disallowed by the State Commission and the respondent/complainant has not challenged the decision. Therefore, the scope of this appeal gets limited to the remaining part of indemnification i.e. for loss/damage to the Printed Circuit Boards, for which the claim has been allowed by the State Commission.

5. The Memorandum of Appeal says that the photographs taken by the Surveyor clearly showed “that there was no sign of external fire on the transformer or the PCB or at the location where these were installed”. The report of the Surveyor, J N Sharma & Co. itself shows that the fire/loss had occurred on 18th June 1999 while the visit of the Surveyor was on 24.6.1999 i.e. after one week. Yet, it says “The report of M/S Siemens No. MED/378564 dated 26.7.1999 does not speak about any “Fire” but only a burning smell which was certainly not there when we visited the Lab on 24.6.1999”. This is a strange argument. We wonder what smell was required to continue at the site, one week after the incident, for the surveyor to acknowledge the loss. More so, when the same report, mentions that “while the angiography on Mr Naresh Kapoor was in progress, a loud blast was heard and some smoke was allegedly seen coming out from the Switch Board enclosure located next to the Transformer in the monitoring room of Cath Lab.”

6. In this behalf, learned Counsel for the appellant referred to the letter of 26.5.2000 addressed to it by to the Divisional Manager, United India Insurance Co in which it was stated that the case was of “damage in the Cardiac Catheterisation Lab due to short circuit in the HT Transformer”. He therefore forcefully argued that the case was one of internal short circuit within the transformer and hence covered under Exclusion Clause 6. The counsel relied heavily on the report of the Surveyor where it was claimed that there was no fire and no fire brigades.

7. It was argued on behalf of the respondent/complainant that claim under the policy was made for two indemnifications— i. the High Tension Transformers, and ii. the PCBs

The report of the surveyor also mentions these two items in the claim. But, neither this report nor the counsel for the appellant, have explained how the claim for the PCBs could be treated as inadmissible.

8. The impugned order has placed considerable reliance on the Technical report of 26.7.1999 from M/S Siemens Ltd, while examining the applicability of Exclusion Clause 6 to the claim and arrived at a finding that while claim for the HT Transformer was not available under the insurance policy, it was available for replacement of the four PCBs. The Siemens report clearly stated that— “ On 18th June 1999 at 11.45 A.M., it was reported to us that Cath Lab is not working and smoke coming from the High Tension Transformer. On checking, it was found that there was a burning smell and smoke coming from the High Tension Transformer. The Transformer had gone defective and it is irreparable. Due to the burning of the High Tension Transformer and 4 nos. of PCB Boards have also been damaged. The Boards are also irreparable. We have replaced the High Tension Transformer and the PCB Boards. Cath Lab is working satisfactorily now.”

Thus, it is clear that damage to the PCB Boards was caused by burning of the Transformer and that the PCB Boards had also become irreparable. The Transformer and the PCBs had both been replaced.

9. The Exclusion clause, relied upon by the appellant reads— “ 6. Loss or damage to any electrical machine, apparatus, fixture or fitting, (including electric fans, electric household or domestic appliances, wireless sets, television sets and radios) or to any portion of the electrical installation, arising from or occasioned by over-running, excessive pressure, short circuiting, arcing, self-heating or leakage of electricity from whatever cause (lightning included), provided that this exemption shall apply only to the particular electrical machine, apparatus, fixture, fitting or portions of the electrical installations so affected and not to other machines, apparatus, fixtures, fittings, or portions of the electrical installation which may be destroyed or damaged by fire so set up.”

However, it is not the case of the appellant that damage caused to the four PCBs was due to any reason independent of the burning of the Transformer. There is nothing in the report of the Surveyor to show that the PCBs had not suffered damage and had not become irreparable, as opined in the Siemens Report. For this reason, the claim for damage to the PCBs would be clearly covered under the proviso contained in the Exclusion Clause. Therefore, in our view, the State Commission was right in allowing the claim for damage to the PCBs.

10. Yet another ground raised in the Memorandum of Appeal is that the State Commission has wrongly allowed Rs.3,43,750, while the Surveyor had assessed the loss at Rs.2,61,250 only. This contention is not factually correct. The Surveyor’s report refers to the claim of Rs.3,43,750 for the four PCBs and of Rs.8,80,000 for the Transformer. While recording its assessment of the loss, the report makes a deduction of Rs.4,40,000 i.e. 50% for the Transformer, on the express ground of being second hand. No reduction is proposed for the PCBs. With the adjustment of 50% for the Transformer, the total loss is assessed at Rs.7,83,750. The State Commission has referred to this assessment of the Surveyor. The figure of Rs.2,61,250, relied upon by the appellant, is after reduction for under insurance. It is not the assessed loss for PCBs, as argued. We therefore, reject this argument as being factually wrong.

11. For the reasons detailed above we hold that the impugned order is based on complete and correct appreciation of the evidence before the State Commission. FA No 350 of 2009, filed by United India Insurance Co Ltd, is therefore held to be devoid of any merit and is dismissed for the same reason. No orders as to costs. …..………Sd/-…….……. (VINEETA RAI) PRESIDING MEMBER

…..…………Sd/-….…….… (VINAY KUMAR) MEMBER S./-

REVISION PETITION NO. 2137 OF 2008 (From the order dated 08.02.2008 in Appeal No.1971/2003 of the Delhi State Consumer Disputes Redressal Commission)

Shahid M/s Asia Art Printers 2356, Bazar Chitli Qabar Turkman Gate Delhi-110006 ... Petitioner Versus

K.P. Dharmaian M/s Surjeet International 377-A, Pocket-II, Phase-I Mayur Vihar Delhi- 110094 … Respondent

BEFORE

HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON’BLE MRS. VINEETA RAI, MEMBER HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner : Mr. Kanwal Chaudhary, Advocate For the Respondent : Mr. K. George Chacko, Advocate

Pronounced 6th May, 2014 ORDER PER VINEETA RAI, MEMBER

1. This revision petition has been filed by Mr. Shahid, Petitioner herein and Opposite

Party before the District Consumer Disputes Redressal Forum, ISBT, Delhi (for short

“the District Forum”) being aggrieved by the order of the Fora below, which in their concurrent findings have allowed the complaint filed against him by Mr. K.P. Dharmaian,

Respondent herein and Complainant before the District Forum.

2. In his complaint before the District Forum, Respondent/Complainant, who is a registered exporter of handicraft items, contended that on receipt of an order from a foreign buyer for supply of 50,000 notebooks, he contacted Opposite

Party/Mr. Shahid of M/s Asia Art Printers. After approving a sample shown by the

Opposite Party and on his agreeing to manufacture the said notebooks by a stipulated date, he placed an order in writing for the same and also paid him an advance amount of Rs.4,40,000/-. Petitioner/Opposite Party, however, failed to supply the notebooks by the stipulated date for delivery and requested for a further period of two weeks, which was agreed to. However, despite this assurance, the required notebooks were not supplied, leading to cancellation of the order by the foreign buyer and consequently resulting in loss to the Respondent/Complainant. Respondent/Complainant, therefore, sent a legal notice to the Petitioner/Opposite Party seeking recovery of the aforesaid amount of Rs.4,40,000/- alongwith interest @ 18@ per annum from the date of receipt of the said amount upto the date of recovery. On not receiving a response, Respondent filed a complaint before the District Forum and requested for refund of the amount paid by him alongwith interest @ 18% per annum.

3. Petitioner/Opposite Party on being served admitted placement of the order for

50,000 notebooks by Respondent/Complainant and advance payment of Rs.4,40,000/- in installments. However, he vehemently controverted the allegation that the notebooks as per the approved sample were not ready by the stipulated date and stated that it was because of a problem between the Respondent/Complainant and the foreign buyer that the order was cancelled, which in fact had caused loss to him.

4. The District Forum, after hearing the parties and on the basis of evidence filed before it, allowed the complaint. It directed the Petitioner/Opposite Party to pay the

Respondent/Complainant a sum of Rs.4,40,000/- alongwith interest @ 12% per annum from the date of receipt of each installment till the date of payment and also Rs.1000/- as litigation expenses.

5. Aggrieved by this order, Petitioner/Opposite Party filed an appeal before the Delhi

State Consumer Disputes Redressal Commission (for short “the State Commission”), in which he reiterated that the notebooks were ready on time and had also been inspected and approved by an agent of the foreign buyer and that it was the

Respondent/Complainant who did not accept/left the delivery of the goods within the stipulated period. Further, the District Forum failed to appreciate that the

Respondent/Complainant being a registered exporter of handicraft items the transaction was of a commercial nature involving resale of goods. Therefore, on both counts

Respondent is not a ‘consumer’ as per the definition of ‘consumer’ in Section 2(1)(d) of the Consumer Protection Act, 1986. In this connection, Counsel for the

Petitioner/Opposite Party cited judgments of the Hon’ble Supreme Court in KalpavrukshaCharitable Trust V. Toshniwal Brothers (Bombay) Pvt. Ltd. & Ors. [AIR

1999 SC 3356] and Laxmi Engineering Works vs.PSG Industrial Institute [(1995) 3 SCC

583]. Thus, Respondent/Complainant’s remedy lay before a Civil Court. 6. The State Commission dismissed the above contentions of the

Petitioner/Opposite Party and concluded that the differences between the facts in the instant case and those in the above cited judgments “sticks out for miles” and are, therefore, not applicable to this case. The State Commission while doing so observed as follows: “10. The respondent is a single man who is engaged in obtaining the orders. Merely because there was some legal requirement of permit etc. does not mean that he is engaged in commercial activities. Receiving of such an order is the only source of livelihood and therefore by no stretch of imagination the contract in question between the parties can be stretched to a commercial transaction or the contract. The respondent had sought refund of the amount received by the appellant because of its failure to supply the goods by the due date resulting in cancellation of the order received by it.”

The State Commission also did not accept the contention of Counsel for the

Petitioner/Opposite Party that the Respondent/Complainant’s remedy lay before the

Civil Court by stating: “12. Hon’ble Supreme Court has also taken a view in Fair Air Engineers Pvt. Ltd. and Anr. Vs N.K. Modi 1996(6) SCC 385, that remedy under Consumer Protection Act 1986, is additional and independent remedy irrespective of the proceedings having been initiated under any law including Indian Arbitration Act. It is only under Consumer Protection Act that a consumer is entitled for compensation as to the mental agony, harassment, physical discomfort and other injustice done to him in addition to actual loss or injury suffered by him.”

Regarding the factual matrix of this case, the State Commission observed that the

District Forum had returned a finding of fact based on documentary evidence which does not call for any interference. The State Commission, therefore, dismissed the appeal of the Petitioner/Opposite Party but set aside the order of the District Forum regarding payment of interest @ 12% per annum on the amount of Rs.4,40,000/- and in lieu directed the Petitioner/Opposite Party to pay the Respondent/Complainant compensation of Rs.20,000/- apart from Rs.1000/- as litigation costs awarded by the

District Forum.

Being aggrieved, the present revision petition has been filed before us.

7. Counsel for both parties made their oral submissions.

8. Counsel for the Petitioner/Opposite Party reiterated that the State Commission reached an erroneous conclusion of deficiency in service against him by not fully appreciating either the facts of the case or the legal issues involved. On facts he pointed out that the Fora below failed to take note of the evidence before them that the foreign buyer had placed an order for the notebooks on 20.04.1998 to be delivered within 30 days but Respondent/Complainant had belatedly placed the orders only on

15.07.1998 and, therefore, the foreign buyer cancelled the orders because of this ab initio delay in placing the orders by the Respondent/Complainant and not because of any deficiency on the part of Petitioner/Opposite Party in the timely delivery of notebooks. Further, in his letter dated 23.04.1999 Respondent/Complainant himself had admitted that the Delhi agent of the foreign buyer had indicated that 834 cartons, each containing 60 notebooks, totally 50,000 notebooks had been packed in cartons within the specified date and also that one Ganesh (a representative of the foreign buyers) who had inspected the notebooks on 15.09.1998 had not indicated that there were any defect in these notebooks. There was, therefore, no deficiency of service on the part of Petitioner/Opposite Party who had manufactured and packed the 50,000 notebooks which were, however, not picked up by Respondent/Complainant.

On legal issues, counsel for the Petitioner/Opposite Party reiterated that since the goods had been purchased for resale by Respondent/Complainant (since admittedly they were to be again sold to a foreign buyer), he was not a ‘consumer’ in terms of

Section 2(1)(d) of the Consumer Protection Act, 1986, wherein a consumer does “not include a person who obtains such goods for resale or for any commercial purpose”. Respondent/Complainant’s legal remedy, therefore, lay before a Civil

Court.

9. Counsel for the Respondent/Complainant on the other hand stated that the Fora below had correctly appreciated the facts of the case, which confirmed that the

Petitioner/Opposite had failed to supply the required number of notebooks as per the approved sample by the stipulated date even though substantial payment for the same had been made in advance.

Regarding the legal issue that Respondent/Complainant is not a ‘consumer’ as per Section 2(1)(d) of the Consumer Protection Act, 1986, it was stated that since the

Respondent/Complainant was availing the facilities and services of the

Petitioner/Opposite Party to manufacture and supply notebooks as per particular specifications, it was not a sale per se and consequently not a resale. It was a facility of service and, therefore, is not covered by the exclusionary clause of Section 2(1)(d) of the Act, which is limited only toservices free of charge and contract of personal service. The judgment of the Hon’ble Supreme Court in Rajeev Metal Works and others

V. The Mineral & Metal Trading Corporation of India Ltd. [AIR 1996 SC 1083] cited by the Petitioner/Opposite Party in support of his case is not relevant to the present case.

Counsel for the Respondent/Complainant further contended that the present revision petition was barred by limitation as the appeal against the order of the State

Commission was preferred beyond the period of limitation, which ended on 04.04.2008 i.e. more than 30 days after the certified copy of the order had been issued to the

Petitioner/Opposite Party by the State Commission on 05.03.2008.

10. We have considered the submissions of learned Counsel for both parties and have also gone through the evidence on record. So far as the facts of the case are concerned, we note that these have been carefully gone into by the District Forum and endorsed by the State Commission and we see no reason in our revisional jurisdiction to intervene with the same more so when there is credible evidence on record that despite having received almost 90% of the total amount as advance payment,

Petitioner/Opposite Party did not deliver the required number of notebooks as per the approved sample within the stipulated period, including the extended grace period. The contention of Counsel for the Petitioner/Opposite Party during his verbal arguments that the foreign buyer had actually placed the order with the Respondent/Complainant on

20.04.1998 for supply of notebooks within 30 days (i.e. 20.05.1998) is not borne out by the evidence on record since admittedly on 30.08.1998 the representative of the foreign buyers had carried out an inspection of the notebooks, which clearly indicates that the order had not been cancelled at least upto that date.

Petitioner/Opposite Party had raised a legal issue before the State Commission that the Respondent/Complainant was not a ‘consumer’ within the meaning of Section

2(1)(d) of the Consumer Protection Act 1986, which excludes “commercial purpose” as also “resale”. The State Commission has dealt with this issue at length and cited various judgments of theHon’ble Supreme Court and thereafter concluded that since the Respondent/Complainant was a single person engaged in obtaining orders for his livelihood, he was obviously not engaged in commercial activities. Further the nature of the consumer dispute involved services availed by the Respondent/Complainant and was not merely a question of outright sale. We agree with these findings of the State

Commission. As has already come in evidence, the notebooks were not purchased “off the shelf” by the Respondent/Complainant from the Petitioner/Opposite Party but had been manufactured/fabricated by the Petitioner/Opposite Party on the basis of particular specifications indicated by the Respondent/Complainant. It was, thus, not a “sale” and consequently not a “resale” as defined under the exclusionary clause of Section 2(1)(d) of the Act but was in the nature of services which the Respondent/Complainant availed of from the Petitioner/Opposite Party. We also agree with the finding of the State

Commission that this is not a case to nonsuit the Respondent/Complainant on the ground that the transaction was of a commercial nature. No doubt

Respondent/Complainant was a registered merchant exporter under the Export

Promotion Council for Handicrafts but, as has been observed by the State Commission, he was a single individual involved in earning his livelihood by placing and procuring orders for the purpose of export and is, therefore, very much a ‘consumer’ as upheld by the Hon’ble Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute

[(1995) 3 SCC 583].

Counsel for the Respondent/Complainant in his arguments before us had contended that the present revision petition should be dismissed as barred by limitation since it was filed beyond the statutory period of 30 days from the date of obtaining the certified copy of the order by the State Commission. It appears that Counsel for the

Respondent/Complainant has erroneously applied Section 19 of the Consumer

Protection Act, 1986 while making this submission, which is not applicable in the case of revision petitions. This case is covered by Regulation 14 of the Consumer Protection

Regulations, 2005, wherein a revision petition can be filed within 90 days from the date of the order or the date of receipt of the order, as the case may be. In the instant case, the revision petition was filed well within the period of 90 days provided for filing the revision petitions. 11. To sum up, we uphold the order of the State Commission and dismiss the revision petition. Petitioner/Opposite Party is directed to pay the

Respondent/Complainant Rs.4,40,000/- in addition to Rs.20,000/- as compensation and

Rs.1000/- as cost of litigation awarded by the Fora below within a period of one month from the date of receipt of this order. No order as to costs.

Sd/- (D.K. JAIN, J.) PRESIDENT

Sd/- (VINEETA RAI) MEMBER

Sd/- (VINAY KUMAR) MEMBER Mukesh NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2387 OF 2012 (Against the order dated 14.3.2012 in First Appeal No.A/10/363 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

Japjeet Singh Chadda 22nd Dilip Nivas, DD Sathe Marg Opera House, Mumbai-400004 …..... Petitioner Versus

1. United India Insurance Co. Ld. Cmbatta Building, 3rd Floor, M.K. Road, Churchgate, Mumbai-400020

2. Srivatsan Surveyors Pvt. Ltd. Through the United India Insurance Co. Ltd. Cmbatta Building, 3rd Floor, M.K.Road, Churchgate, Mumbai-400020 …...... Respondents

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

For the Petitioner : Mr. Ravi Gopal, Advocate

For the Respondents : Mr. V.S. Chopra, Advocate PRONOUNCED ON : 06th MAY, 2014 ORDER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision petition is directed against the order of the State Consumer Disputes Redressal Commission Mumbai ( in short, the ‘State Commission’) dated 14.03.2012 whereby the State Commission allowed the appeal of the respondents opposite parties against the order of the District Forum on the point of limitation and dismissed the complaint as barred by limitation.

2. Briefly stated facts leading to filing of this revision petition are that the petitioner complainant obtained Burglary and House Breaking Insurance Policy for Rs.6.00 lacs from respondent no.1 for the stock and trade at his business premises. The period of insurance was w.e.f. 03.12.2002 to 02.12.2003. On the night intervening 20- 21st January, 2003, shop of the petitioner was burgled. According to the petitioner, mobile phones stocked in the shop worth Rs.6.00 lacs were stolen. Matter was reported to the police vide FIR No. 18 of 2003 dated 21.01.2003 at P.S. D.B.Marg Mumbai. Respondent no.1 was also informed about the accident. Respondent no.2 was appointed Surveyor to inspect the subject premises and assess the loss. Respondent no.2 visited the premises of the petitioner on 24.01.2003 and submitted his report after inspection, wherein it was opined that the story of the burglary put forth by the petitioner appeared to be false. Consequently, the insurance claim was petitioner was repudiated vide letter dated 29.03.2004. It is the case of the petitioner that he responded to the repudiation letter vide Advocate’s notice dated 15.04.2004 wherein respondent no.1 was requested to review its decision of repudiation of claim. Respondent no.1 vide its letter dated 28.12.2004 intimated the petitioner that complaint was registered in Grievance Cell and the claim filed by him was being reviewed. Despite of that respondent no.1 failed to pass any effective order for the request of review. This led to the filing of the complaint.

3. Respondent insurance company in its reply admitted the issuance of insurance policy It was also admitted that on the receipt of information, Surveyor was appointed. Stand of the respondent is that the independent surveyor in its report doubted the correctness of story of burglary resulting in theft of mobile phones put forth by the complainant. Thus in view of the investigation report, the insurance claim was rightly repudiated. The respondent also took the plea that in view of Section 24A of the Consumer Protection Act, 1986 ( in short, ‘the Act’), the consumer complaint is barred by limitation as it has been filed after the expiry of two years from the date of repudiation of the claim.

4. The District Forum South Mumbai on consideration of the pleadings and the evidence led by the parties allowed the consumer complaint and directed respondent no.1 to pay to the petitioner a sum of Rs.4,14,608/- with 9% interest thereon w.e.f. 29.03.2004. Besides, the petitioner was awarded Rs.2000/- as compensation for harassment and Rs.1000/- as litigation expenses.

5. Being aggrieved of the order of the District Forum, respondents opposite parties approached the State Commission in appeal. The State Commission accepted the plea of limitation raised by the respondents and allowed the appeal. Consequently, the complaint was dismissed as barred by limitation and not maintainable in view of the following contract:

“It is also hereby expressly agreed and declared that if the Company shall disclaim liability to the Insured for any claim hereinunder, and such claim shall not within 12 calender months from the date of such disclaimer have been made the subject matter of a suit in a court of law, then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.”

6. Shri Ravi Gopal, Advocate for the petitioner has contended that order of the State Commission is based upon incorrect appraisal of facts. Expanding on the argument, learned counsel for the petitioner contended that State Commission while dismissing the complaint had failed to appreciate that the repudiation of the claim of the petitioner had not become final as it was reopened on the request of the petitioner for review of the claim. In support of this contention, learned counsel for the petitioner has drawn our attention to the letter dated 28.12.2004 written by Manager United India Insurance Company Limited ( Ex.’G’) addressed to the petitioner company. It is further contended by learned counsel for the petitioner that State Commission has misinterpreted the ratio of the judgment of the Supreme Court in the case of Kandimalla Raghavaiah & Co. Vs. National Insurance Company Ltd. III (2009) CPJ 75 (SC) and failed to appreciate that it is case of continuous cause of action. Learned counsel for the petitioner has thus urged us to accept the revision and remand the matter back to the State Commission for dismissal of appeal on merits.

7. Shri V.S.Chopra, Advocate for the respondent on the contrary has argued in support of the impugned order. He has contended that claim of the petitioner was rejected vide repudiation letter dated 29.03.2004. Just because the petitioner sought review of the order and he was conveyed vide letter dated 28.12.2004 that his claim was being considered, it cannot be said that it is a continuous cause of action. Learned counsel thus submitted that State Commission has rightly dismissed the complaint as time barred in view of the ratio of the judgment of the Supreme Court inKandimalla Raghavaiah & Co.(supra) as also in the matter of H.P.State Forest Company Ltd. Vs. United India Insurance Co. Ltd. I (2009) CPJ 1 (SC).

8. From the submission of the parties, it is clear that issue which needs determination in this revision petition is whether final cause of action arose on 29.03.2004 when the insurance claim of the petitioner was repudiated or the cause of action is still continuing because of the fact that review of repudiation is still not decided.

9. There is no dispute on facts in this case. It is not disputed that the insurance claim of the petitioner was repudiated vide letter dated 29.03.2004. The respondents in their written statement have not denied that they issued letter dated 28.12.2004 to the petitioner. The contents of the letter are reproduced as thus: “Dear Sir Re : Claim No. 2554/2002 Burglary Insurane (Business Premises) Non L.R. Policy No. 021800/46/03/11/110054/02 Date of Loss 21.01.2003 We refer to your letter dated 17.12.2004 on the captioned subject. We have registered the complaint under Grievance Cell and the claim file is being reviewed. You will be hearing from us very shortly. Thanking you.”

10. On reading of the above, it is clear that respondent insurance company informed the complainant on 28.12.2004 that they have registered his complaint with Grievance Cell and his claim file was being reviewed and he would not be informed of the outcome shortly. This implied that the insurance company after the repudiation of the claim had reopened the same. Therefore, in our considered view, the repudiation of claim had not become final. Thus we find merit in the plea of the petitioner that this is a case of continuing cause of action. Counsel for both the parties have relied upon decision of the Supreme Court in the case of Kandimalla Raghavaiah & Co. (supra). Hon’ble Supreme Court while dealing with “Cause of Action” in the above said matter has observed thus:

“The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as "bundle of facts", which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action" means the cause of action for which the suit is brought. "Cause of action" is cause of action which gives occasion for and forms the foundation of the suit. (See: Sidramappa Vs. Rajashetty & Ors., (1970) 1 SCC 186). In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.

11. On analysis of the facts of this case in the context of the above observations of the Hon’ble Supreme Court that cause of action first arose on the date of which alleged burglary took place, the cause of action for filing of the complaint again arose when the insurance claim was repudiated by the insurance company vide letter dated 29.03.2004. The respondent, however, before the expiry of limitation of two years from the date of repudiation vide its letter dated 28.12.2004 registered the protest of the complainant against the repudiation of the claim and intimated him vide letter dated 28.12.2004 that his claim file was being reviewed. This obviously gives an impression to the petitioner that his request for review was accepted and his claim file was under consideration. Therefore, he was justified for awaiting the outcome of the review instead of rushing for judicial remedy. Since the review has not been decided, we are of the view that given the peculiar facts of this case, the cause of action is still continuing. The State Commission has failed to appreciate the above aspect of the matter and consequently fallen in error. Thus, in our view, the order of the State Commission dismissing the complaint as barred by limitation in view of section 24-A of the Act and also in view of violation of the term of the insurance contract, is not sustainable particularly when the final decision to disclaim the liability to the insured is yet to be taken.

12. In view of the discussion above, the impugned order of the State Commission is not sustainable. Revision petition is, therefore, allowed, impugned order is set aside and the matter is remanded back to the State Commission to decide the appeal on merits after hearing the parties. Since this is an old matter, the State Commission is requested to decide the appeal preferably by the end of this year. Parties are requested to appear before the State Commission on 02.07.2014.

………………………….Sd/- (AJIT BHARIHOKE, J) (PRESIDING MEMBER)

………………………….Sd/- (SURESH CHANDRA) (MEMBER) Am NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO.852 OF 2013 (From the order dated 22.11.2012 in Appeal No.274/2012 of the UT Chandigarh State Consumer Disputes Redressal Commission, Chandigarh)

Col. T.S. Bakshi Retd. R/o H.N. 12, Sector 8-A, Chandigarh-160009 Attorney of Jaspreet Singh Bakshi S/o Col. (Retd.) T.S. Bakshi ...…. Petitioner Versus Star Health & Allied Insurance Co. Ltd. Through the Branch Manager, Star Health & Allied Insurance Co. Ltd. SCO 257, 2nd Floor, Sector 44-C, Chandigarh ..... Respondent

BEFORE: HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER For the Petitioner : In person

For the Respondent : Mr. S.M. Tripathi, Advocate

PRONOUNCED ON: 06th MAY, 2014

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

Petitioner being aggrieved of concurrent findings of the Foras below resulting in dismissal of his claim has preferred this revision petition.

2. Briefly stated facts relevant for the disposal of the revision petition are that the petitioner is the power of attorney holder of Jaspreet Singh Bakshi. Jaspreet Singh

Bakshi obtained medical insurance for self, his wife and his son Sahaj Singh from the opposite party. Insurance cover was valid from 21.7.2010 to 20.7.2011. Sahaj Bakshi developed signs of Dengue fever on 14.8.2010. He was rushed to Ashlok Hospital,

Safdarjung Enclave, New Delhi. On confirmation of Dengue fever Sahaj Bakshi was taken to Chandigarh and was admitted in Fortis Hospital, Mohali on 15.8.2010. Cost of the treatment amounted to Rs.83,570/-. The Insurance claim filed by the insured was repudiated by the opposite party claiming that as per exclusion clause-2 of the insurance policy the insurance company was not liable to make payment under the policy if the insured person contracted any disease during the first 30 days from the date of commencement of the insurance policy. Being aggrieved by the repudiation the petitioner filed the consumer complaint before the District Consumer Forum-II, Chandigarh in his own name describing as the attorney of the insured Col. Jaspreet

Singh Bakshi. Consumer complaint was contested by the opposite party.

3. The District Forum by Majority of 2 : 1 came to the conclusion that the opposite party was right in repudiating the claim in view of exclusion clause-2 of the insurance contract. Being aggrieved of the order of the District Forum the petitioner preferred an appeal before the State Consumer Disputes Redressal Commission, UT Chandigarh.

The State Commission concurred with the Majority decision of the District Forum and dismissed the appeal. Relevant observation of the State Commission are reproduced thus: - “ The question for determination before us, is whether dengue is a disease or not. In our view dengue is a disease spread by mosquitoes bite, transmitting the virus to human body, which causes infection, owing to which the person suffers from high fever and gets ill/sick which in some cases may cause death. The dictionary meaning of the disease is an unhealthy condition of the body ( or part of it) or the mind; illness, sickness. It cannot be ruled out that a person suffering from dengue becomes unhealthy / sick and may even die. Therefore, we do not hesitate in holding that dengue is a disease. Since, in the present case, the insured namely Sahej Bakshi suffered from dengue, within 20 days of the commencement of policy, his claim was not covered under the medical insurance Policy, as per exclusion clause 2 thereof. Exclusion clause 2 clearly provides that the insured shall not be entitled to any amount spent by him for the treatment of disease contracted by him during the first 30 days from the date of commencement of Policy. The appellant, who himself placed on record, the terms and conditions of the Policy could not say that he was not aware of the exclusion clause. Therefore, the claim of the insured was rightly denied by the opposite party.

If we see the case from another angle that dengue is not a disease as held by Lady Member of the District Forum, then, the insured Sahej Bakshi could not claim any amount under the Medical Insurance Policy because under the said policy he could only claim the expenses incurred by him, on his medical treatment for the disease, suffered by him. Therefore, the appeal is liable to be dismissed, as, the majority order passed by the District Forum, is perfectly legal, and valid, and the same does not suffer from any perversity.

4. The petitioner has contended that the State Commission has committed a grave error in failing to appreciate that at the time of issue of insurance policy the terms and conditions relied upon by the opposite party for repudiating the claim were not disclosed or explained to the insured. It is submitted that the aforesaid terms and conditions were conveyed to the insured later after the encashment of the cheque for the premium. The

State Commission has failed to appreciate that the insurance contract came into force on accepting of the cheque amount and, therefore, the opposite party had no right to unilaterally introduce the terms and conditions which were not made known to the insured. It is also contended that the exclusion clause-2 specifying 30 days limit after which the liability of the insurance company to indemnify in respect of a disease contracted by the insured is unfair and illegal.

5. Learned counsel for the opposite party on the contrary has argued in support of the impugned order. He has contended that the Foras below have rightly appreciated and interpreted the insurance contract and there is no jurisdictional error or material illegality in the impugned order which may call for interference by this Commission in exercise of revisional powers. 6. Learned counsel for the OP on the contrary has argued in support of the impugned order. He has contended that the consumer complaint filed by the petitioner in his name is liable to be dismissed because there is no privity of contract between the petitioner and the OP. Secondly, it is contended that even on merits, the petitioner has no case. The foras below have rightly appreciated and interpreted the insurance contract. There is no jurisdictional error or material irregularity which may call for interference by this Commission in exercise of its revisional powers.

7. We have considered the rival contentions and perused the record. Admittedly, the insurance policy was obtained by Jaspreet Singh Bakshi for self, his wife and son Sahaj Singh. The petitioner is neither the insured nor the beneficiary under the insurance contract. Therefore, technically speaking he could not have maintained the consumer complaint in his name. However, on perusal it is clear that the consumer complaint was filed by the petitioner claiming himself to be the attorney for Jaspreet Singh Bakshi who purchased the medical insurance policy. From this, it is evident that for all intent and purposes, the complaint has been filed by Col. T.S.Bakshi in his capacity as attorney on behalf of the insured. Therefore, we do not find any reason to non suit the petitioner on the technical plea of maintainability raised by the respondent opposite party.

8. Coming to the merits of the case. On perusal of the impugned order, we find that both the foras below have rejected the claim of the petitioner under the insurance policy in view of Exclusion Clause (2) under the heading “Exclusions” in the terms and conditions of the insurance policy. 9. It is well settled that an insurance contract is a species of commercial transactions and while deciding the dispute between the insured and the insurer, the terms and conditions have to be construed strictly. Similar question came up before the Supreme Court in (2009) 5 SCC 599 titled as Vikram Greentech India Ltd. & Anr. Vs. New India Assurance Co. Ltd, wherein Hon’ble Supreme Court observed thus:

“An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of uberimma fides i.e. good faith on the part of the insured. Except that, in other respects, there is no difference between a contract of insurance and any other contract. The four essentials of a contract of insurance are, (i) the definition of the risk, (ii) the duration of the risk, (iii) the premium and (iv) the amount of insurance. Since upon issuance of insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the insurance policy, its terms have to be strictly construed to determine the extent of liability of the insurer. The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in re-writing the contract or substituting the terms which were not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy. [General Assurance Society Ltd. Vs. Chandumull Jain and another, Oriental Insurance Co. Ltd. Vs. Sony Cheriyan and United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal]. Document like proposal form is a commercial document and being an integral part of policy, reference to proposal form may not only be appropriate but rather essential. However, the surveyors’ report cannot be taken aid of nor can it furnish the basis for construction of a policy. Such outside aid for construction of insurance policy is impermissible.”

10. Relevant Exclusion Clause (2) relied upon by the foras below reads thus:

“ Any disease contracted by the insured person during the first 30 days from the commencement date of the policy. This exclusion shall not apply in case of the insured person having been covered under any health insurance policy (individual or Group Insurance policy) with any of the Indian Insurance Companies for a continuous period of preceding 12 months without a break.”

11. On reading of the above, it is clear that if the insured contracts a disease within first 30 days of the commencement of insurance policy, the insurance company shall not be liable to indemnify the insured for expenses unless it is shown that the insured had a continuous health insurance policy with some Indian Insurance Company just prior to taking of insurance cover. In the instant case, there is nothing on the record to suggest that the insured Sahej Singh had a previous health insurance cover for a continuous period of 12 months. Therefore, in view of the law laid down by the Apex Court, the foras below were right in dismissing the claim of the petitioner under the insurance contract in view of the Exclusion Clause. 12. The petitioner has tried to wriggle out of the Exclusion Clause by taking a plea that he was not explained the terms and conditions of the contract and terms and conditions were supplied to him after the encashment of the cheque issued for payment of premium. The above submission of the petition is misconceived. On perusal of para 3 & 4 of the consumer complaint filed in the District Forum, we find that according to the petitioner, Jaspreet Singh Bakshi submitted proposal form for obtaining the medical insurance cover on 21.07.2010 alongwith cheque for payment of premium dated 21.07.2010. The insurance policy was issued on 26.07.2010 mentioning the period of coverage from 21.07.2010 to 20.07.2011. From this, it is evident that the insurance contract came into being only on 26.07.2010 when the policy document was issued. Even if the plea of the petitioner that insured was not explained the terms and conditions of the insurance policy is accepted for the sake of arguments, then also, the petitioner has no case because clause 10 of the insurance contract under the heading “Conditions”, “Free Look Period” was given to the petitioner with option to seek cancellation of policy if he was not agreeable to the terms and conditions of the insurance policy. Relevant clause 10 providing for “Free Look Period” reads thus: “ A Free Look Period of 15 days from the date of receipt of policy is available to the insured to review the terms and conditions of the policy. In case the insured is not satisfied with the terms and conditions, the insured may seek cancellation of the policy and in such an event the Company shall allow refund of premium after adjusting the pre-acceptance medical screening, stamp duty charges and proportionate risk premium for the period concerned provided no claim has been made until such cancellation. Free look cancellation is not applicable at the time of renewal of the policy.”

13. On reading of the above, it is clear that if the insured was not agreeable to the terms and conditions, he had an option to seek cancellation of the policy with refund of his premium. The insured had not opted for cancellation of the policy. Therefore, now he cannot be allowed to claim that he is not bound by the Exclusion Clause because it was not explained to him when he remitted the cheque for payment of insurance premium. 14. In view of the discussion above, we do not find any jurisdictional error or material irregularity in the impugned order, which may call for interference by this Commission in exercise of revisional jurisdiction. Revision petition is accordingly dismissed.

…………………..………..Sd/- (AJIT BHARIHOKE, J.) PRESIDING MEMBER

……………….……………Sd/- (SURESH CHANDRA) MEMBER Am/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 783 OF 2008 (Against the order dated 20.11.2007 in Complaint Case No.1552/2006 of the State Commission, Kartanaka)

ORIENTAL INSURANCE CO.LTD. HEAD OFFICE ORIENTAL HOUSE, A-25/27, ASAF ALI ROAD NEW DELHI – 110002 AND ALSO DIVISIONAL OFFICE IST FLOOR, N.G. COMPLEX OPP. MINI VIDHANA SOUDHA GULBARGA – 585102

...... Petitioner

Versus

1. IRAWATI W/O SAIBANNA HALLI

2. SATISH S/O SAIBANNA HALLI BOTH R/O MANNUR VILLAGE AFZALPUR TALUK GULBARGA – 585102 …... Respondents

BEFORE:

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

HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Pradeep Gaur, Advocate

For the Respondent : Already ex-parte

Pronounced on : 7th May, 2014

REKHA GUPTA

Revision Petition No. 783 of 2008 has been filed by the petitioner – Oriental Insurance Company Ltd. against the order dated 20.11.2007, passed by Karnataka

State Consumer Disputes Redressal Commission, Bangalore (short, “State Commission”) in First Appeal No.1552 of 2006.

2. The facts of the present case as per complaint are that the complainants/respondents are the owners of the agricultural lands bearing Sy. Nos.594/2 and 594/1 respectively situated at Mannur village in Afazalpur Taluka. The respondent no.1 is the mother and respondent no.2 is the son. The said lands being very fertile are suitable for growing advanced crops. Hence, respondents with the active assistance of daughter by name Meenaxi A.Agharkhed thought of growing advanced crops especially the Tissue Culture Banana, since the lands are very much suitable for the said crop. In this respect soil and water source reports were obtained from the competent authorities.

3. During 2000-01, respondents have successfully raised/grown Tissue Culture Banana (TCB) for the first time in the said lands. This Tissue Culture Banana being an advanced variety requires huge investment for purchasing plants, fertilizers and other aid materials and for preparatory of the land to suit the same for the crop. Apart from this, the cost of growing/maintaining of the crop is also very high and hence, respondents have taken required financial assistance from the State Bank of India, Mannur branch by hypothecating the crops as well as by furnishing land security by both the respondents and of Meenaxi A.Agharkhed. Before/while advancing the loan, the said banker had meticulously verified/investigated all the records. Later the said banker had duly visited and investigated the lands, preparations/facilities, assured the viability of the growth of the said crop with the technical assistance from experts. It is only on the entire satisfaction of the banker, the banker had approved the proposal for assistance and had assisted the respondents. As per the financial assistance norms, the banker on its own as a mandatory obligation ought to have insured the hypothecated crop, but in his case has failed to do so for the reasons best known to it. As per the Govt.’s scheme of finance, this mandatory provision shall have to be complied with by the banker. It is also a norm suggested by technical committee that the premium required for insuring crop should be sanctioned to the loanee in addition to the crop loan.

4. Regarding respondents’ efforts in order to grow the TCB successfully is concerned, respondents have provided water through interlinked pipelines connected to 6” high yielding bore wells (3 in each of the lands). The entire plantation is provided with inter connected sophisticated drip system. The arrangements for providing soluble fertilizers and other materials through drip lines were made by providing ventured system. Accordingly, the land was made absolutely fit for growing the T.C.Banana.

5. The respondents have come to know through an advertisement of the petitioner insurer about the crop for availing benefits of its insurance plan against various crop perils. Reading the advertisement, daughter of respondent no.1 Smt. Meenaxi A.Agharkhed approached the petitioner to enquire about the crop insurance scheme. On approached and on taking down the technical details, petitioner insisted the said Meenaxi A.Agharkhed to go in for the TCB crop insurance with it. In addition, the petitioner assured Meenaxi A.Agharkhedthat the petitioner company will serve with utmost concern especially to the farmers. Hence, having been induced by the tall claims of the petitioners, respondent no.1, MeenaxiA.Agharkhed made up her mind to go in for T.C.Banana crop insurance with the petitioner. Accordingly, on receiving the proposal form from the petitioner, submitted her proposal for insurance to the petitioner during August 2002 by furnishing all the required minute details for insurance. It was also made clear that the sum assured is based on the minimum cost of cultivation (as assessed by District Technical Committee, Gulbarga) as the insurance is opted at least to save the minimum cost of cultivation in case of contingencies. Thereafter, on verifying all the records pertaining to the lands, crops, facilities and even on visiting the land and on observing the crop by its technical staff and on satisfying with all the norms, informed the respondent, Meenaxi A.Agharkhed to pay Rs.60,000/- by its letter dated 30.10.2002 as premium for T.C.Banana ratoon crop spread over 25 acres at the rate of Rs.11,25,000/-. At that time fresh crop of 5 acres was in the budding stage. It is pertinent to note here that after submission of the proposal, petitioner took more than two months’ time to verify the proposal form from all the angles and it is only thereafter insurer has decided to insure the same for the total sum assured of Rs.11,25,000/-. Though, the premium rate was very high, but still the same was paid in order to breathe safely. Petitioner insurer has accepted the premium during Dec., 2002. At this juncture, respondents had to obtain further assistance for insurance premium payment from the banker as per the guidelines. When respondents felt that further assistance may take some time, the respondents told the banker to pay the premium amount to the petitioner from the undisbursed balance of Rs.60,000/- in order to avoid further delay.

6. In the acceptance letter, petitioner had mentioned that the acceptance is subject to the approval of its higher ups. Immediately on receipt of this qualified acceptance, MeenaxiA.Agharkhed approached the petitioner and expressed concern over the qualified acceptance. However, petitioner made it clear that this was only a formality that too incase of new areas of insurance like Tissue Culture Banana crop etc.

7. It seems there was correspondence between various offices of the petitioner regarding respondent’s crop insurance. At one stage, Meenaxi A.Agharkhed, the daughter of respondent, was informed by the petitioner’s Delhi Office that its Bangalore Zonal Office had strongly recommended for accepting the proposal of insurance as the same was kept pending for inordinate span of time. 8. Later, the respondent learnt that the petitioner had sent (after long time) the premium amount back to the banker despite the fact that the banker has nothing to do with the contract of insurance as it has not insured the crop and much less there is no privity of contract in between the banker and the insurer. (It is a clear case that the respondents through their Meenaxi A.Agharkhed insured the crop independently). At this juncture, they have been told to accept the policy for Rs.10,000/- per acre instead of Rs.45,000/- per acre. It was apparent from the letter that absolutely there is no coordination between the petitioner’s officers, since this recent information through the banker was contrary to its Delhi office information. Accordingly, Meenaxi A.Agharkhed the daughter of respondent no.1 wrote a letter dated 30.4.2003 requesting to issue the policy as per the proposal.

9. The banker had kept the DDs with himself and later it seems had returned it to the petitioner. The premium amount was with the petitioner insurer even to this day. It is further submitted that the petitioner has all along been postponing the issuance of policy for no reason.

10. In the meanwhile the entire insured T.C.Banana crop came was hit by strong summer wind during the second week of June, 2003, and on account of this violent natural calamity the T.C.Banana crop (insured) collapsed in toto resulting in 100% loss. It is submitted that during this period various farmers in the neighborhood have also lost their crops. The news of the natural calamity had been widely covered in the media. It is specifically submitted that Meenaxi A.Agharkhed, the respondent no.1’s daughter had later immediately informed to the petitioner the loss of insured crop due to the occurrence of natural calamity. This fact was also informed to the banker. Petitioner’s officials did not issue endorsement for having received the information and hence, Meenaxi A.Agharkhed the daughter of respondent no.1 was forced to write a letter informing the fact in writing, a day later to avoid unnecessary complications. On account of this natural calamity, respondent’s entire insured crop has been lost. The lost insured T.C.Banana crop being a ratoon crop was expected to yield very high returns as stability, vigor is naturally more comparing to the first crop in the ratoon crop. In the first year itself, respondents had grown 500 tons of banana.

11. After information, the respondents asked the petitioner to furnish claim form for lodging the same with the petitioner for compensating the loss. It is pertinent to note here that on getting the information of the loss of insured crop, petitioner wrote a letter dated 14.6.2003 to the banker stating that respondents may please be persuaded to accept the insurance for Rs.10,000/- per acre instead of Rs.45,000/- acre as per the proposal. However, on information petitioner appointed its own panel members to verify the loss occasioned to the insured crop. As per the petitioner’s officials/ investigators requisition respondents got supplied/furnished the information as requisitioned. In fact, on one occasion the information sent through RPAD to the investigator of the petitioner which was returned as ‘refused’. In the meanwhile, revenue department horticulture department officials of the Government of Karnataka had also conducted the spot inspection to assess the loss caused to the T.C.Banana crop.

12. On receipt of the loss of insured crop information by Meenaxi A.Agharkhed through the letter dated 6.6.2003, petitioner on that very day informed that it has already rejected the proposal for insurance hence, the insurance company was not liable. However, Meenaxi A.Agharkhed, the daughter of respondent no.1 requested the petitioner to kindly consider all the factual/legal aspects concerning the insurance contract and to come to the right conclusion.

13. Later on non-hearing from the petitioner, respondents strongly protested for its inaction in not considering their request in the right perspective. It is under these pressures, petitioner disclosed that it is not liable to pay the claim as there is no privity in between. The rejection/repudiation of the respondents claim as a matter of fact, the non-issuance of the claim form itself amounts to per se deficiency in service as defined u/s 2 (1) (g) of the CP Act, 1986 since the rejection is wholly unjust improper and illegal as petitioner has not at all wholly rejected the acceptance, but systematically kept it under the consideration mostly favorable for almost 8 months (for insuring the crop for one year). Hence, keeping the premium for more than half of the insurance period without issuing the policy giving an impression that the policy will be issued and later rejecting the claim on the ground that there is not privity, will also definitely amounts to deficiency in service as defined u/s (2) (1) (g) of the CP Act, 1986. It is submitted that respondent by its letter dated 17.6.2003 has filed away the respondent’s claim falsely saying that it does not merit any action to be taken at its end.

14. In the said letter, petitioner has falsely stated that it has made clear that it will assume the risk only after receiving the approval of the competent authority and accordingly, the amount remitted by SBI was kept under deposit vide receipt dated 23.12.2002. Petitioner has further falsely averred in that letter that on being advised by its regional office to refund the deposit amount as the proposal was not acceptable expediently refunded the amount of Rs.60,000/- held in the deposit to SBI branch vide 2 DDs for Rs.30,000/- each. It is further falsely averred in the letter that Meenaxi A.Agharkhed is aware of all these developments. It is specifically denied that insurer had never communicated the advices of assuming risk of the plantation, as also that the amount held in deposit was already refunded and hence, the question of issuing the policy does not arise at all etc. All these averments are just contrary to the correspondence/communications between the parties. Hence, it is quite clear that the petitioner has acted unscrupulously while dealing with the innocent consumers.

15. The petitioner if it was not willing to insure the crop nothing prevented it to straight away return the premium to the respondents as the insurance contract is independent of the banker. As bonafide respondents never anticipated the possibility of rejecting the proposal for insurance throughout the period. On the contrary, the petitioner has given an impression that it has accepted the proposal and however, the policy will be issued soon on getting some minor clarification from the higher authority. Accordingly, even to this day, the premium amount is lying with the petitioner itself. Hence, it is mischievous and absurd to contend that the insurer is not liable etc. These lapses of the insurer certainly constitute unfair trade practice also as defined u/s 2 (1) (r) of the Act. Alternatively, it is submitted that if the petitioner was not willing to accept the insurance at the rate of Rs.45,000/- per acre as proposed, then nothing prevented it to accept the premium at the rate of Rs.10,000/- per acre rate. Then, the respondents would have thought of insuring the crop elsewhere, or petitioner ought to have directed the respondents to pay premium required to be paid @ Rs.10,000/- per acre sum assured. If it had any reservations then also petitioner ought to have informed the insured that the premium received at the rate of Rs.45,000/- per acre sum assured for 25 acres banana plantation is kept under abeyance till approval. But, however, insurer without doing observing/taking any steps to secure the interest of the consumer has acted recklessly so as to the per se detriment of the innocent consumers. These lapses are also constitutes deficiency as well as unfair trade practice by the petitioner.

16. The petitioner – Company has corresponded within its circles for accepting the proposal and at no point of time rejecting it. On one occasion, respondents was misguided by petitioner regarding accepting the insurance for Rs.10,000/- sum assured per acre. However, the said acceptance was immediately withdrawn. It is pertinent to note here that the premium amount received in the month of Dec., 2002 is for issuance of policy for the sum assured of Rs.11.25 lakhs i.e. @ 45,000/- per acre for 25 acres. This amount has been paid at the instance of the petitioner and the same had not been remitted back by the insurer. The inordinate delay either in accepting or rejecting the proposal also constitutes an actionable wrong under COPRA 86.

17. Receiving the premium from the insured and keeping it with the company for an inordinate period giving an impression that the issuance of policy is under active consideration and subsequently when it comes to claim, rejecting the claim by posing the reason that there is no insurance, is also an unfair trade practice and equally constitutes deficiency on the part of the insurer. In this case also, the petitioner has acted in a callous negligent manner in handling the respondents insurance.

18. The petitioner/opposite party in their written statement before the District Forum denied all the facts contained in para 5 of the complaint and stated as follows;

“ That contents of para no.5 of the complaint are false, baseless, hence denied in toto. It is denied that the complainants have come to know through an advertisement of the respondent insurer about the crop for availing benefits of its insurance plan against various crop perils. It is denied that on the basis of the Glancing advertisement, daughter of the complainant no.1, Smt. Meenaxi A.Agharkhed approached the respondent to enquire about the crop insurance scheme. It is denied that on approached and on taking down the technical details, respondent vehemently insisted the said Meenaxi A.Agharkhed to go in for the TCB crop insurance with it, in addition, the respondent assured the said Meenaxi A.Agharkhed that the respondent company will serve with utmost concern especially to the farmers, hence, having been induced by tall claims of the respondent the complainant no.1 Meenaxi A.Agharkhed made up her mind to go in for TCB crop insurance with respondent. It is denied that on receiving the proposal form from the respondent, submitted her proposal for insurance to the respondent during August, 2002 by furnishing all the required minute details for insurance. It is denied that the respondent made clear that the sum assured is based on the minimum cost of cultivation as the insurance is opted at least to save the minimum cost of cultivation in case of contingencies. It is denied that the respondent after verifying all records pertaining to the lands, crops, facilities and even vesting the land and on observing the crop by its technical staff and on satisfying with all the norms, informed the complainants (Meenaxi A.Agharkhed) to pay Rs.60,000/- by its letter dated 30.10.2002 as a deposit premium for TCB ratoon crop spread over 25 acres at the rate of Rs.11,25,000/-. It is denied that the respondent took more than two months’ time to verify the proposal form from all the angles and it’s is only thereafter, insurer has decided to insure the same for the total sum assured of Rs.11,25,000/-. It is denied that the respondent insurer has accepted the deposit premium during Dec., 2002, and at that juncture, the complaints had to obtain further assistance for insurance deposit premium payment from the banker as per the guidelines. It is denied that the complainants told to the banker to pay the deposit premium amount to the respondent from the undisbursed balance of Rs.60,000/- to the respondent in order to avoid further delay”.

18. District Forum vide their letter dated 25.5.2006 allowed the complaint and passed the following order ;

“ Complaint is partly allowed. Complainants are entitled to recover a sum of Rs.5,00,000/- with interest @ 6% from the date of filing of this complaint till the date of realization from opposite party. Complainants are also entitled to recover a sum of Rs.5,000/- towards mental agony and costs of this proceedings from opposite party. Further, opposite party is directed to pay the said amount within one month from the date of this order.”

19. Aggrieved by the order of the District Forum, petitioner filed an appeal before the State Commission vide their order dated 20.11.2007 while allowing the appeal in part observed as follows ;

“Admittedly, the insurance company has not issued the policy accepting the proposal form filed by the complainant even though it received the amount of Rs.60,000/-. If that is so, there was no concluded contract so as to pay on the basis of the loss of crop. But at the same time, the complainant is entitled for compensation because of the negligence/lapses on the part of the opposite party in not considering the proposal form within a reasonable time. When the complainant has paid a sum of Rs.60,000/- in the month of December, 2002 along with the proposal form necessarily the opposite party ought to have considered the same within the reasonable time.

In the instant case for about two months, no decision was taken by the opposite party. But ultimately on 13.3.2003 the insurance company returned the sum of Rs.60,000/- under two demand drafts to the SBI, Mannur Branch. This unreasonable delay on the part of the opposite party in not taking a decision on the proposal form filed by the complainant itself amounts to deficiency in service because of its lapses. Therefore, we are of the view awarding a sum of Rs.1,00,000/- as compensation would meet the ends of justice in view of the fact that even if the insurance company had taken immediate steps and issued the policy on receipt of the premium, in all probability, the complainant could have got the compensation on the basis of the actual loss suffered by him”.

20. State Commission thereafter, modified the order of the District Forum as under ;

“Appeal is allowed in part.

The appellant/opposite parties are directed to pay Rs.1,00,000/- to the complainant with interest @ 6% per annum from the date of filing of the complaint till realization.

The appellant is also directed to pay Rs.5,000/- to the complainant towards costs and mental agony suffered by the complainant.

The appellant in this appeal has deposited a sum of Rs.5,00,000/- before this Commission. Hence, the office is directed to transfer the amount of Rs.1,00,000/- with interest as ordered above to the District Forum to enable the District Forum to pay the amount to the complainant as per the order passed after due notice to the complainant.”

21. Hence, the revision petition.

22. The main grounds for the revision petition are that ;

 Because Hon’ble State Commission has failed to consider the fact that the provisional premium received by the insurance company was subject to approval from the Competent Authority of the petitioner company. It is further submitted here that in its letter dated 30.10.2002, the insurance company intimated to the GPA of the respondents that the risk will be assumed only on receipt of approval from the Competent Authority of the petitioner company at Bangalore. It is further submitted here that the insurance company refunded the provisional premium of Rs.60,000/- to the banker of respondents due to advise of non-approval of the insurance risk from the competent authority of the petitioner company vide letter dated 23.1.2003. As such the order is liable to be set aside.  Because the Hon’ble State Commission has failed to consider the fact that the insurance company has already refunded the provision insurance premium vide cheque for Rs.60,000/- in favour of the respondents as per the letter dated 24.1.2003 to the banker of the respondents, who issued the provisional premium cheque of Rs.60,000/- infavour of the insurance company. It is submitted here that the said banker vide its letter dated 21.12.2002 also mentioned that in case of release of any amount, it may be directly forwarded to the Bank. When the approval on the proposal form was not received by the insurance company, the insurance company prepared a cheque of Rs.60,000/- in the name of GPA of respondents and forwarded to the banker of the respondents vide letter dated 21.1.2003 dispatched on 24.1.2003. As such it is liable to be set aside.  Because the Hon’ble State Commission wrongly reached to the conclusion that the amount of Rs.60,000/- i.e. provisional insurance premium was refunded by the insurance company only on 13.3.2003. However, it is submitted here that the provisional insurance premium was refunded to the bank first time on 24.1.2003 by the petitioner insurance company. As such, the order is liable to be set aside.  Because while holding the deficiency on the part of the insurance company, the State Commission did not rightly rely upon the documents and evidence available on the record. However, it is submitted here that the insurance company had already filed the letter issued by the State Bank of India regarding acceptance of refunded provisional insurance premium amount vide letter dated 4.2.2003 as such the order is liable to be set aside.  Because the Hon’ble State Commission failed to consider the fact that the insurance company rejected the proposal form much prior from the receipt of the intimation of loss i.e. 16.6.2003 and accordingly refunded the provisional insurance premium in favour of respondent in January, 2003 because the proposal form was not accepted by the Competent Authority of petitioner insurance company, as such the order is liable to be set aside.  Because the amount awarded by the Hon’ble State Commission is on the higher side because there was no privity of the contract between the insurance company and the respondents/their GPA. It is submitted here that the Hon’ble State Commission had clearly observed and held that there was no insurance contract between the parties, as such the order is liable to be modified.  Because the Hon’ble State Commission has awarded the interest @ 6% from the date of filing the complaint till its realization. However, it is submitted here that the subject provisional premium of Rs.60,000/- was refunded within 35 days from the receipt of the provision insurance premium which was conditionally accepted by the insurance company. As such the order is liable to be modified.

23. It is an admitted fact that the respondents had submitted their proposal form for insurance in August, 2002. After considering the same, petitioner vide their letter dated 13.10.2002, petitioner/Divisional Officer had written letter to GPA of the respondents that they were arranging for inspection of the farm by one of their veterinary doctors and requesting to remit the provisional premium of Rs.60,000/- stating that they were referring proposal to the Regional Office for acceptance. This certainly conveyed that the proposal has been approved by the divisional office and hence, forwarded to higher authority for acceptance. The respondents had requested their Bank, SBI, Mannur to remit the amount of Rs.60,000/- on their behalf from their account. The petitioner has made much of one line in the letter of the Bank dated 21.12.2002 forwarding the DD for Rs.60,000/- which reads as “incase of release of any amount, it may be directly forwarded to the Bank.” It may be noted here that this line pertains to any release of any amount and not refund. Thereafter, the Bank vide letter dated 21.1.2003 to the Divisional Office of the petitioner returned the cheque no.0324574 dated 22.1.2003 for Rs.60,000/- as the name of the payee has been wrongly mentioned. The forwarded letter of the Bank clearly stated as follows ;

“4.2.2003

Dear Sir, Banana Plantation – Return of Insurance

Premium – Cheque No.0324574 dated 22.1.2003

With reference to your letter dated 21.1.2003. We acknowledge the receipt of cheque No.0324574 dated 22.1.2003 for Rs.60,000/- However, we are returning the cheque No.0324574 dated 22.1.2003 for Rs.60,000/- as the name of the payee is wrongly mentioned as Smt.M.A.Agarkhad instead of Smt. IravatiHalli and Sri Satish S.Halli. Kindly make suitable alterations in the cheque. A copy of one letter is dated 21.12.2002 is also enclosed for your personal. Since, the insurance is at the option of the borrower. Kindly forward the cheque to Meenaxi A.Agharkhed (PA holder) drawn as SBI Mannurs – …………………..

Yours faithfully,

For State Bank of India

Branch Manager, Mannur”

24. Thereafter, two demand drafts for Rs.30,000/- in the name of Irawati Halli and Sri Satish S.Halli were sent vide letter dated 4.2.2003 to the Branch Manager, SBI, Mannur instead of to Meenaxi A.Agharkhed. No letter has been placed on record to state as to why Rs.60,000/- was being refunded to the respondents. Thereafter, on 30.5.2003, Mrs. MeenaxiA.Agharkhed wrote a letter to the Divisional Manager of the petitioner – Company stating that ;

“From :

Meenaxi A. Agharkhed

W/o Anandrao Agharkhed

Plot No.267, Mahaveer Nagar,

Gulbarga

Dated : 30.5.2003 To,

The Divisional Manager

Oriental Insurance Company Ltd.

M.G. Complex, Ist floor,

Opp. Mini Vidhan Soudha, Gulbarga – 582102

Sub : Return of premium DD in respect of Insurance of

Tissue Culture Banana

Respected Sir,

I am herewith returning the original demand drafts bearing No.606185 for Rs.30,000/- and DD bearing No.606186 for Rs.30,000/- which has been wrongly sent by your office. I request you to receive demand drafts and issue the policy as per the proposal submitted by me from the date of proposal. Kindly acknowledge the receipt of the same.

Thanking you,

Yours faithfully

(Meenaxi A.Agharkhed

R/o Gulbarga”

25. When nothing was heard from the Divisional Office of the petitioner – Company, they requested for pay out for insurance company which was sent vide letter dated 16.6.2003 sent by Meenaxi A.Agharkhed, stated as under ;

“From :

Meenaxi A.Agharkhed

W/o Anandrao Agharkhed

Plot No.267, Mahaveer Nagar,

Gulbarga – 585102

Dated : 16.6.2003

The Divisional Manager

Oriental Insurance Company Ltd.

M.G. Complex, Ist floor,

Opp. Mini Vidhan Soudha, Gulbarga – 582102

Respected Sir,

I undersigned Smt. Meenaxi Anandrao Agarkhed R/o Mahaveer Nagar, Gulbarga the P.A.Holder of Smt. Veeravathi Saibanna Halli and Sri Satish SaibannaHalli both residents of Mannur Tq.Afzalpur, regret to bring it to your notice that our insured 25 acre Banana Crop has been destroyed in toto, due to storm and other natural calamities struck during last 2-3 days. Hence, I request you to kindly arrange to give me a claim form and do the needful to compensate the loss at least to the tune of the sum assured amount of Rs.11.25 lakhs.

Sir, I have yet not received the Banana Crop insurance policy copy despite several requests and reminders. Please send the policy copy also at the earliest.

This is for your information.

Thanking you,

Yours faithfully

(Meenaxi A.Agharkhed)

R/o Gulbarga”

26. On record, the first letter stating that perhaps the insurance company has agreed to give insurance that was sent vide letter dated 16.6.2003. In the letter addressed toM.A.Agarkhed, stated as follows ;

“Dept. : RID 17.6.2003 To,

Smt. Meenaxi A.Agharkhed

No.267, Mahaveer Nagar,

Gulbarga – 585102

Madam,

Re : Loss of Banana Crop due to storming and other Natural Calamity

We are in receipt of your letter dated 16.6.2003. The following is our reply :

1. We made it abundantly clear to you vide our letter dated 30.10.2002 itself that we will be assuming the risk only after receiving the approval of our competent authority at our Regional Office, Bangalore and accordingly, the amount remitted by SBI, Mannur Branch was kept under deposit vide our receipt dated 23.12.2002. 2. And on being advised by our Regional Office to refund the deposit amount as the proposal was not acceptable expediently, we refunded the amount of Rs.60,000/- held in deposit to SBI, Mannur Branch vide two DD’s bearing Nos.606185 & 606186 for Rs.30,000/- each. You are very well aware of all these developments.

Since, we have never communicated our advices of assuming the risk of Banana plantation insurance, as also that the amount held in deposit was already refunded, the question of our issuing the policy does not arise at all.

Under the above circumstances your letter dated 16.6.2003 is filed away as it does not merit any action to be taken at our end.

Thanking you,

Yours faithfully,

(Divisional Manager)”

27. Petitioner/opposite party in its written statement admitted that the demand drafts sent vide order dated 4.6.2003 were returned to the petitioner on the ground that the respondents had refused to receive the same.

28. Counsel for petitioner failed to explain the provision, guidelines or scheme under which they had asked for provisional premium of Rs.60,000/-. They also failed to explain how the money was kept in deposit till Jan., 2003. Counsel for petitioner also failed to explain as to why the amount was returned to the Bank and not to the respondents who had asked for the insurance. It was not the Bank who was taking insurance. They had merely forward the premium amount on behalf of the respondent. Counsel for petitioner could show no evidence that the respondents had been informed at any point of time that their proposal for insurance had not been accepted and the reasons thereof. While there was an implicit admission that it had been accepted at the divisional office level, they, thereafter, failed to convey the rejection of the proposal by the higher authorities and the reasons thereof. The respondents, hence, cannot be faulted for believing that they had not received the insurance policy due to delay in processing of the proposal by the petitioner – Company. Had they been informed about the rejection of the proposal they could have made alternative arrangements towards insuring their crop. On the other hand, it is apparent from the documents on record that the petitioner – company indulged in unfair trade practice and committed grave deficiency in service in not only asking for the provisional premium but keeping the amount for many months and thereafter, casually returning the same without interest to the Bank and without informing the respondents about the fate of the proposal for insurance.

29. 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.”

30. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, State Commission has given detailed and reasoned order which does not call for any interference nor it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby, dismissed with cost of Rs.15,000/- (Rupees Fifteen Thousand only). 31. Petitioner is directed to pay the cost of Rs.5,000/- (Rupees Five Thousand only) to each of the respondents by way of demand draft in their names and remaining cost of Rs.5,000/- (Rupees Five Thousand only) to 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, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization. 32. List on 4.7.2014 for compliance.

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

…………………...………. (REKHA GUPTA) (MEMBER)

Sonia/

REVISION PETITION NO.1572 OF 2011 (Against the order dated 23.2.2011 in Appeal No.1625/2007 of the State Commission, Rajasthan)

1. M/s. Citi Communications, S.C. Road, Jaipur

2. Shri Arvind Kumar Bhatnagar, 4/221, Mansarovar, Distt- Jaipur

3. Shri S.C. Verma, S/o Shri F.C. Verma, Guarantor M/s. Citi Communications, Jaipur

…Petitioners

Versus

1. The Bank of Rajasthan Limited Merged in ICICI Bank, Regional Manager Sanjay Gupta – Ahinsa Circle, C-Scheme, Jaipur Through Shri Ramjilal Vijay, Manager The Bank of Rajasthan Ltd. Sindhu Camp, Jaipur R/o House No.53/16, Mansarover, Jaipur

2. Shri B.D. Vijay S/o Shri Prabhudayal Vijay, Manager, The Bank of Rajasthan Limited, Sindhu Camp, Jaipur R/o House No.F-16, Major Shatan Singh Colony, Jaipur

3, Shri Surenra Chelawat D.G.M., The Bank of Rajasthan Limited, Stock Exchane Building, Malviya Nagar, Jaipur R/o H. No.55, Malap Nagar, Tonk Road, Jaipur

…Respondents

BEFORE:

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

For the Petitioners : Mr. Suresh Chandra Verma,

Petitioner No.3 in person and on behalf of Petitioner No.2,

For the Respondent(s): Mr. K. Bhatnagar, Advocate

Pronounced on: 7th May, 2014

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

In this revision petition, there is challenge to order dated 23.2.2011 passed by

State Consumer Disputes Redressal Commisison, Circuit Bench Jaipur, Rajasthan (For Short ‘ StateCommission’) in (Appeal No.1625 of 2007).

2. Brief facts are that Arvind Kumar Bhatnagar- Petitioner no.2/Complainant No.2 had obtained loan for self-employment to procure one EPABX Unit from the Respondent-Bank in which Petitioner No.3-S.C. Verma/Complainant No.3 was a Guarantor. It is alleged that Bank did not credit the amount in their loan A/c which was paid to the Bank by the Principal Debtor. Respondent mortgaged the Title Deed valued at Rs.4,00,000/-(Rupees Four lacs only) for the loan. Petitioner No.2/Complainant No.2 instructed the Respondent-Bank to sell the EPABX Unit to repay the loan amount completely. Thus, Petitioner no.2 had to incur huge expenditure for the upkeeping & maintenance of EPABX unit. It is further stated that Respondent- Bank had recovered Rs.3,38,055/- from Petitioner No.3 on 14.12.2004 when no amount payable was ever outstanding against the loan dues. The loan dues were finally paid as per agreement by surrendering the loan security of Rs.2,75,000/- to the Respondent-Bank on 9.10.2000. Even then the Respondent-Bank recovered Rs.3,38,055/- from Petitioner no.3 by coersion and force on 14.12.2004. However, Respondent –Bank did not return the Title Deed. Therefore, interest @ 14% on Rs.3,38,055/- may be given being the loss sustained for not selling the EPABX Unit, incurring expenditure for its maintenance &upkeeping, Godown rent etc. may be allowed to be given by the Respondent Bank and Rs.10,000/- may also be ordered to be given for litigation expenses plus loss to the petitioner.

3. Respondents in their written statement asserted that petitioners are not consumers. Therefore, they are not entitled to file complaint in the consumer court. It is further stated that respondent had filed recovery suit in the Court of Additional District Judge. This fact has been suppressed by the petitioners. When the recovery suit was pending in Civil Court, the respondent had filed suit before the Debt Recovery Tribunal (D.R.T.) under the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It is stated that D.R.T. had ordered on 17.11.2004 to take possession of the Guarantor’s property. The petitioner no.3 as a compromise in writing paid the amount of Rs.3,38,000/- on 14.12.2004 to Respondent Bank. Thereafter, respondent had withdrawn the Recovery Suit. Thus, petitioners have suppressed all such facts.

4. District Consumer Disputes Redressal Forum, Jaipur dismissed the complaint of the petitioners on 25.8.2007.

5. Aggrieved by order of the District Forum, petitioners filed an appeal before the State

Commission, which dismissed the same vide its impugned order.

7. We have heard the Petitioner No.3 who had appeared in person and also on behalf of Petitioner No.2 as well as learned counsel for the respondent. We have also gone through the written arguments submitted by the petitioners. 8. Petitioners in the entire complaint have nowhere mentioned about the litigation pending before the Civil Court. Nor they have mentioned anything about the proceeding initiated against them, under the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

9. District Forum in its order has held;

“ The Bank has filed a civil suit in the ADJ Court to recover its dues.

This fact has been suppressed by the complainant. The bank during the pendency of civil suit in ADJ Court had filed one new case under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 was filed in the Tribunal. Order was passed on 17/11/2004 by the Tribunal to take possession of the hypothecated property and land and building of the non applicant. When the bank was taking possession of the hypothecated property, the Guarantor paid Rs.3,38,055/- demanded by the bank at that point of time. Therefore, the bank had withdrawn the recovery suit Under Order 23 Rule 1 of CPC. The ADJ Court allowed the request of the Bank and dismissed the recovery suit by withdrawal on 14/4/2005. Thereafter, Title deeds were returned to the guarantor. All these facts are suppressed in the complaint filed before the District Forum on 4/5/2005. Therefore, there is no deficiency in service of the Bank parties.”

10. The State Commission while dismissing the appeal, in its impugned order observed;

“ It is clear that the factual dispute is for repayment of the loan which

had been decided before on 14.4.2005 by withdrawal order of ADJ Court. The Bank has not recovered the amount by force. The appellant have not been able to prove the deficiency in service of the Bank, therefore appeal

is dismissed.”

11. Hence, it is apparent from the record, that the petitioners had suppressed the material facts from the District Forum since they did not mention in their complaint that Respondent-Bank had filed a recovery suit against them in the Civil Court. Further, Petitioners had also not mentioned this fact that they had entered into a compromise in writing with the respondents and respondents had withdrawn the recovery suit. 12. It is well settled, that any litigant while approaching any judicial fora has to mention the true and correct facts. Suppression of the material facts will lead to the dismissal of the petition at the threshold itself. Both the fora below have given a finding of fact that petitioners had suppressed the material facts about the earlier litigations pending between the parties. Moreover, as per the facts and circumstances of the case, petitioners do not fall within the meaning of ‘Consumer’ as defined under the Consumer Protection Act, 1986 (for short, ‘Act’).

13. 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.

14. Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 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 that 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 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 finding of two fora.” 15. Therefore, we hold that the present revision petition is most bogus and frivolous one, which has been filed just to waste the time of this Commission. Accordingly, present revision petition stand dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).

16. Petitioners are directed to deposit the cost by way of demand draft in the name ‘Consumer Legal Aid Account’ of this Commission, within six weeks from today.

17. In case, petitioner fails to deposit the cost within the prescribed period, then they shall be liable to pay interest @ 9% p.a., till realization.

18. List for compliance on 4.7.2014.

…………………………………….J

(V.B. GUPTA) PRESIDING MEMBER

……………………………………………

(REKHA GUPTA) MEMBER NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

Vijay Dutt Through his wife Dr. (Mrs.) Veena Dutt 12, Film Colony, Indore …Complainant Versus 1. Dr. R.D. Nagpal Consultant Neuro-Surgeon Jaslok Hospital and Research Center 15, Dr. G. Deshmukh Market Mumbai- 400026 2. Jaslok Hospital and Research Centre 15, Dr. G. Deshmukh Market Mumbai- 400026 …Opposite Parties BEFORE: HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER For the Complainant : Mr. S.K. Sharma., Advocate For the OP No. 1 : Dr. M.S. Kamath, Authorized Representative For the OP No. 2 : Nemo

PRONOUNCED ON 7th MAY, 2014 ORDER PER DR. S.M. KANTIKAR, MEMBER

1. No one ever knows what the outcome would have been had the other treatment modality been used. While everyone believes they know the recipe for their best personal series, no one knows what the best treatment would be for patients facing the dilemma. However, doctors cannot give a warranty of the perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of treatment, if he is skilled and has worked with a method and manner best suited to the patient, he cannot be blamed for negligence if the patient is not totally cured. Thus, in the cases of Brain Aneurysms, it will be usually a conflicting issue, if the justification offered by surgeons to clip or having coil an aneurysm. 2. The Complainant Mr. Vijay Dutt, a healthy middle aged successful businessman of M/s Dutt & Company, resides at Indore. He was suffering from Migraine and was under treatment of a well-known Neuro-physician Dr. (Mrs.) Nadkarni at Indore. Since, his migraine continued despite medication, Dr.(Mrs.) Nadkarni advised him for CT scan of brain and higher investigations; which then, revealed Aneurysm in the right side of the brain. Thereafter, Dr. (Mrs.) Nadkarni advised the Complainant to undergo Angiography of the brain for the proper diagnosis and further management. Accordingly, on 30.03.2000, he visited the Jaslok Hospital and Research Centre Bombay (Mumbai) for consultation with the OP-1 Dr. Nagpal. The OP No. 1 and his fellow professional colleagues there, examined the Complainant. Thereafter, the OP-1 impressed upon the Complainant to get himself admitted in Jaslok Hospital (OP-2) for treatment and assured of best medical treatment for Aneurysm there. Believing those words of appraisal, on 23rd March, 2000 the Complainant (herein referred as “Patient”) got himself admitted at OP-2 under the treatment of OP-1. Dr. Srinivas B. Desai, at Jaslok Hospital (the OP-2) conducted Cerebral Angiography along with CT Scan which confirmed the existence of Bilateral Middle Cerebral Artery (MCA) Aneurysm. Accordingly, the OP-1 advised and insisted the Complainant to undergo a surgery immediately or otherwise he would die soon, of rupture of aneurysm. Due to repeated emphasis by OP-1 about the sudden death, the Complainant was forced to agree for immediate surgery of aneurysm. The OP-1 and complainant discussed line of best available treatment for MCA aneurysms. Thereafter, to arrange the finances for the expensive surgical treatment, the patient went back to his hometown at Indore. On 02.05.2000, the patient got admitted to the OP No.-2 hospital under the treatment of OP No.-1. After a discussion again, about the method of treatment with OP-1, the patient, his wife and other accompanied family members expressed their willingness for the ‘Coiling method’ as their choice of the treatment. But, same request was blatantly turned down by the OP-1, and he insisted that he would perform the operation by employing the ‘Clipping Method’. According to him, the Clipping Method has permanent cure as compared to the Coiling Method where relapse of Aneurysm occurs after a passage of time. Therefore, on such persuasion and insistence of OP Nos.-1 & 2, the Complainant was left with no option but to accept the Clipping Method. Hence, the Complainant literally signed the consent under coercion. On 03.05.2000, OP-1 performed the operation by the Clipping Method. Postoperatively, immediately, after ex-tubation, the patient noticed difficulty in his speech, and right hemi paresis with right side paralysis. Angiography study was performed immediately, which showed the non-filing of the middle cerebral artery beyond the clip. Thereafter, OP-1 re-operated upon the patient on the same day, removed the clip, and re-applied the same. Later on, the patient learnt that, at the time of the first surgical procedure, the OP -1 had wrongly clipped the MCA at the wrong place,therefore, it resulted in stoppage of the blood circulation to his brain, for almost three hours. It has led to impairment of speech and Right side paralysis. The Complainant was in a semi-coma condition for seven days, thereafter was kept in the Intensive Care Unit (ICU) for ten days, the next seven days in semi-ICU of the hospital(OP-2). The Complainant’s hospitalization was for almost 40 days. After the discharge from the hospital, the Complainant was under constant medical treatment and supervision. He further incurred regular monthly expenses of Rs.4,000/- for physiotherapy, and Rs.1,500/- per month, for speech therapy. The Complainant produced opinion/reports from two doctors from Indore, Dr. Apoorva Pauranik, Consultant Neurologist and Dr. Sunil Athale, Neuro-Physician (Page No.182) and at (Page No. 183). Further, on 18.07.2000 the complainant consulted Dr. O.P. Bajpai of Indore, who advised him to undergo special physiotherapy treatment, abroad. 3. Complainant’s main allegations on the OP No.-1 & 2, that they were guilty of medical negligence and deficiency in service as OP-1 applied wrongly the clip on the artery instead of the aneurysm. Due to such negligence, he suffered severe impairment of speech and Right sided paralysis. He incurred heavy medical expenses for operation, the physiotherapy, and speech therapy. He suffered mental agony. Therefore, the Complainant, Vijay Dutt filed this complaint through his wife Dr. Mrs. Veena Dutt seeking relief in the sum of Rs.52,46,199.80/- towards the reimbursement of expenditure, loss of earnings and damages. He also prayed for Rs.1,00,000/-, as lump sum amount towards future expenditure like medical treatment in India/abroad, domiciliary expenses etc.

The complaint is supported by affidavit evidence and Annexures A to E.

Defense:

4. Dr. Nagpal, a Neurosurgeon, the OP-1 from Jaslok Hospital, Mumbai (OP-2) filed the written version and affidavit evidence. OP-1 submitted that around mid-March 2000, the patient, Mr. Vijay Dutt, from Indore, was referred by his Neurologist and Family Physician Dr. Nadkarni. For his long-standing headache and giddiness, he was investigated by CT scan and diagnosed as a case of left middle cerebral artery aneurysm (a swelling on the blood vessel of the brain) at Indore. OP-1 examined him, after taking detailed history. He reviewed the CT scan report and confirmed the diagnosis of left Middle Cerebral Artery (MCA) aneurysm in the brain. OP-1 submitted that, over an hour long discussion took place with the complainant regarding further investigations, like angiography of brain to ascertain the size, location of aneurysm, the implications of the diagnosis, and it’s complications, if not treated in time. Despite the real danger of a hemorrhage, the patient chose to return home. Thereafter, the Complainant discussed his problem with the OP on the phone, at least twice, from Indore, seeking clarifications on some points and indicated that he was waiting for his wife to return from America. He finally returned after a month, with his wife and sister and got admitted to Jaslok Hospital on 28th April, 2000. 5. At the time of admission at OP-2, digital subtraction angiography (DSA) was carried out. It showed middle cerebral artery aneurysms on both sides, the left one being large, wide neck. Further, OP-1 explained in detail, about two surgical methods of treatment, one by Coiling and another by Clipping method, the success rates and, about all potential complications, like intra-procedural rupture of the aneurysm, occlusion of a major artery, death, and hemiplegia and speech disturbance. The Complainant got himself discharged on 29th April, 2000, and requested for some time to think over, about the treatment. 6. Thereafter, on 02.05.2000, the Complainant got himself admitted in OP-2. Again, another round of detailed discussions took place between OP-1 and Mr. Dutt, his wife and his sister, Shabana. OP-1 explained about the location of the aneurysm (swelling in the artery) at the MCA Territory, due to its large size and wide neck, endovascular route (coiling) was not suitable for occlusion, and therefore clipping surgery was the ideal method of choice. The complications of surgery were also discussed again. OP-1 submitted that, he had suggested the name of Dr. S. B. Desai, a Neuro-radiologist, from OP-2, who performs non-surgical endovascular treatment (coiling), if so desired, the Complainant may approach him, but patient refused it, and expressed his choice of treatment by surgical method. OP-1 submitted that, each time, the patient and his relatives sought assurance about the success of surgery. 7. On 03.5.2000, OP-1 conducted the Clipping operation, in conjunction with Senior Neuro-surgeon, Dr. S. K. Pandya. The operation was performed with utmost care, applied clip at the correct position, i.e. on the neck of the aneurysm and it was confirmed that the MCA and its branches were all outside the clip. Post-operatively, the patient had slight weakness on the right side of the body, with speech problem, which was detected, after he awoke, in the operation theatre, itself. An immediate DSA was done, which showed non-filling of the middle cerebral artery, hence the patient was re-operated and re-checked the position of clip. He found that the clipping was proper, MCA was not caught by the Clip and all the branches of arteries were found, free of the clip. OP-1 submitted that those findings are mentioned in Operative Notes of patient’s indoor case papers of the Jaslok Hospital. Thereafter, on 6.05.2000, the patient was shifted to post-operative intensive care unit (ICU), for complaining difficulty in breathing, intubation was done. Over a period of time, i.e. in the next month, the patient slowly recovered due to dedicated care, physiotherapy and speech therapy. The notes in case paper, on 25.05.2000, by Speech Therapist Mrs. Parulkar, mentioned that, patient was able to speak “spontaneous, single common words”. At the time of discharge from Jaslok Hospital, he was walking with little support, understood oral commands. The OP-1 filed the affidavits of two doctors, who were part of entire management of the patient. OP-1 furnished Annexure A, about his qualification and Annexure B –the text book and Journal references. OP-2, Jaslok Hospital submitted in its evidence that the Complainant and his family members had been duly informed about the costs of treatment during the pre-surgery consultation sessions and thereafter the Complainant had given his consent to such surgery. Hence, OP-2 denied that the patient was charged exorbitantly and the Complainant is entitled for any refund. Hence, prayed for dismissal of complaint. 8. We have heard the arguments of both the parties, the written arguments are also placed on file. Counsel for the complainant vehemently argued that OP-1 had committed medical negligence, he has not properly informed about the management of his aneurysm. He had performed the Clipping surgery, despite request from patient and his relatives, who preferred the Coiling method. The clipping was wrongly applied; hence patient suffered loss of speech and developed paraplegia of right side. OP-1 is represented by an authorized representative, Dr. Kamath, a medico-legal consultant. He advanced arguments to prove that OP-1 acted as per Standards of medical practice, there were several pre-operative detailed discussions Pros and Cons of surgery and counseling sessions took place between OP-1 and the patient, his sister and wife. After convincing only, the patient agreed for the said surgery. He performed the Clipping Method for the MCA aneurysm, it was wide neck aneurysm. It was admitted by the OP-1 that the Complainant had speech difficulty and developed slight paralysis immediately, post-operatively, and also the post-operative DSA showed an occlusion of right Middle Cerebral Artery. The OP-1 took up the Complainant for re- operation, at which the artery was found free of the clips. Further submission was that the said artery had gone into spasm (or unexplained contraction), which was the main cause of the complication that arose in this case. The allegation that the Clip was wrongly applied and/or that the surgery leads to any type of complications, is not correct as per the record and the findings on re-operation are totally false and presumptuous. This is further supported by the affidavit of Dr. Sunil Pandya, an Eminent and Senior Neurosurgeon, who was assisting the OP-1, during the surgery. 9. Findings and Discussion:

On perusal of the Degree and Experience Certificates of OP-1 present on file, it is true that OP-1, Dr. R. D. Nagpal is and experienced Super Specialist, Neuro- Surgeon, working in OP-2 hospital, the relevant paras are reproduced as under:

a) I say that Dr. Ranjit Nagpal, OP-1 in this matter had approached me on 26th April, 2000 for a Joint Consultation regarding the case of the Complainant. I say that at that tome Dr. Nagpal had explained the complete history and circumstances of the case to me. I further say that at that time I had reviewed the films of the Digital Subtraction Angiogram (an X-ray to view the arteries of the brain) of the patient Mr. Dutt.

b) I say that on reviewing the same, I notices that the said Angiogram showed that the patient was having two aneurysms (swelling of the wall of the artery), a large wide-necked aneurysms on the left middle cerebral artery and a smaller one on the right middle cerebral artery. In my opinion, both these needed treatment, particularly the larger one, as early as possible.

c) I say that I was later on informed by Dr. Nagpal that the patient had agreed for surgery on the aneurysm, which was scheduled for 3rd May 2000. On this day I assisted Dr. Nagpal for the surgery. The said left middle cerebral artery aneurysm was carefully isolated. The neck of the aneurysms was identified and clipped. Before this it was made sure that the middle cerebral artery and its branches were free and not occluded by the clip. Post-operative right sided weakness, and speech disturbance was noted in the operation theatre as soon as the patient was awake. To clarify the situation an immediate digital subtraction angiogram was performed. This showed non-filling of the middle cerebral artery and the aneurysm. The patient was shifted to the operation theatre immediately. Re-exposure of the operated area confirmed that the clip was on the neck of the aneurysm and the middle cerebral artery and its branches were free. Following this, the operation was terminated. The probable cause for non-filling of the middle cerebral artery was either spasm or thrombosis of the vessel.

To enlighten our medical knowledge, we have perused several medical text books in Neuro-surgery, the literature on this subject of MCA aneurysms and it’s management.

10. Therefore, it was not an accident or mishap during or after surgery. The witness, Dr. Srinivas Desai, an Interventional Neuro-radialogist also opined that the surgical clipping is the preferred method of choice in wide neck aneurysms.

11. The Medical Board Report from AIIMS, New Delhi, dated 23.06.2012 opined that the OP adopted correct method of surgery and adopted proper treatment during emergency re-surgery. The relevant Extract is reproduced as below:

a) Both procedures i.e. coiling or clipping are possible in such cases. Final decision depends on anatomy of the aneurysm, patient’s choice, clinical expertise and facilities available at the centre. Decision of treating doctor to clip large aneurysm was justified.

b) The surgeon’s decision to conduct surgery/clipping seems justifiable as per the information available to us. Regarding complications and second surgery can be stated that hemiparesis (weakness of one half of the body) is a known complication of MCA aneurysm surgery/coiling and emergency re-surgery may be required in certain circumstances. In the case, second surgery seems to be justified.

c) No.

12. To enlighten our medical knowledge, we have perused several medical text books on Neuro-surgery, the research articles on this subject of MCA aneurysms and it’smanagement. 13. A brain aneurysm, also called a cerebral aneurysm, is a weakened area of a blood vessel's wall, according to the National Institute of Neurological Disorders and Stroke. Brain aneurysms can rupture, causing bleeding in the brain. The aneurysms are acquired lesions caused by a combination of hemodynamic stresses (luminal factors) and defective vessel wall responses (abluminal factors). Brain aneurysm patients can undergo microvascular clipping, a procedure in which a surgeon places a clip on part of the aneurysm. For patients harboring an un-ruptured cerebral aneurysm, treatment options vary and may include surgery, endovascular (Coiling) treatment, or no treatment at all. The Neurosurgical clipping is still an important therapy for MCA aneurysms, especially for aneurysms, with very wide necks or complicated geometry. 14. Choosing the method treatment for an aneurysm:

Each aneurysm is different in each patient. Doctors must evaluate the risk factors that favour treatment vs. non-treatment and decide which technique may be best suited. It’s important to consult with experts in this field having different expertise and training backgrounds. This should include a discussion with a cerebrovascular neurosurgeon whospecializes in surgically clipping aneurysms, a neurosurgeon with endovascular expertise, a Neuro- interventionist, or a Neuro-radiologist who specializes in the less invasive treatment of cerebral aneurysms by coiling.

15. Treatment of an aneurysm:

The best treatment depends on many things, including, whether the aneurysm has ruptured or not. A ruptured aneurysm usually requires treatment right away, because the re-bleeding rate remains quite high. However, the treatment time and options for treatment, depend on the size, location and shape of the aneurysm, as well as the patient’s overall medical condition. If an aneurysm hasn’t ruptured, the treatment decision depends on its size, location and shape, and the patient’s symptoms.

16. Several research and review articles describe the Advantages of Clipping (Surgical) over Coiling (endovascular) method:

“Surgical clipping as the preferred treatment for aneurysms of the middle cerebral artery” Acta Neurochir (Wien). Nov 2011; 153(11): 2111–2117. The relevant paragraph is reproduced as below:

“ This contemporary study confirms that good results are achieved with clipping of MCA aneurysms. All attempts to treat MCA aneurysms endo- vascularly, often with the use of novel (not clinically tested) endovascular devices, are unjustified in a situation where an excellent surgical solution is at hand”.

However, for the middle cerebral artery (MCA) aneurysms, endovascular coiling is less likely to be applied as routine. However, application of endovascular coiling to MCA aneurysms has shown higher procedural failure rate and unfavorable results when compared to the application to the aneurysms at other sites. [(ISAT group, Lancet 2002), (Suzuki S, Neurosurgery 2009)]. 1. J Cerebrovasc Endovasc Neurosurg. 2012 December; 14(4):289~294

Middle cerebral artery (MCA) aneurysms are easily accessible via surgical approach because of their relatively superficial location and configuration, but are usually not suitable for endovascular coiling. Surgical treatment thus seems to be preferred over endovascular treatment in this setting. The surgical clipping is considered as the gold standard. We believe that surgical clipping of un-ruptured small MCA aneurysms results in favourable clinic-angiographic outcomes. Therefore, surgical clipping may be safely recommended for patients with small un-ruptured MCA aneurysms

2. Stroke. 2013; 44: 988-994

Published guidelines for the treatment of un-ruptured cerebral aneurysms recommend that “microsurgical clipping rather than endovascular coiling should be the first treatment choice in low-risk cases.” Presumably, all patients treated with clipping in the Perspective database were offered clipping because the treating surgeon thought that it was a reasonably low-risk procedure related to coiling.

3. Complication:

Vasospasm and Stroke (MayoClinic.com)

The complication of brain aneurysm clipping is vasospasm, in which the blood vessel's width changes. With vasospasm, the width can widen and narrow rapidly, which affects blood flow explains that a blocked blood flow from vasospasm can lead to an ischemic stroke, which causes severe headache, sensation changes and mood changes. Patients may experience decreased alertness and might even lose consciousness. Vision problems can occur, such as decreased vision, double vision and loss of vision.

17. Further, we put reliance upon several decisions of the Hon’ble Apex Court.

 In a key decision on this matter in the case of Dr. Laxman Balkrishna Joshi v Dr. Trimbak Bapu Godbole, held that if a doctor has adopted a practice that is considered “proper” by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong. Doctors must exercise an ordinary degree of skill.  In Achutrao Haribahau Khodwa and Ors. Vs. State of Maharashtra and Ors., MANU/SC/0600/1996. The Hon’ble Supreme Court noticed that in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.  It is worthwhile to mention here the Bolam’s case Bolam Vs. Frien Hospital Management Committed (1957) 1 WLR 582 it was also held that a doctor is not negligent if he is accordance with standard practice merely because there is a body of opinion who would take a contrary view. In Hucks v. Cole (1968) 118 New LJ 469, Lord Denning stated that a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. 18. Therefore, in the entirety of forgoing discussions and considering the medical literature, the opinion from the Medical Board of Experts at AIIMS, we are of considered view that, OP-1 has adopted the Clipping method, as one of the best choice, it was performed with another Neuro-Surgeon, Dr. Pandya. We do not find any negligence committed by OP-1, during, and/or after operation. Accordingly, we dismiss the complaint. Parties are directed to bear their own costs.

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

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(S. M. KANTIKAR) MEMBER

Mss/13 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

CONSUMER COMPLAINT NO. 117 OF 2014 WITH INTERIM APPLICATION NO. 2748 OF 2014 (FOR SEEKING RELIEF OF POSSESSION AND DAMAGES)

Shailaja Finance Ltd. Through its Authorised Signatory Block DB-80, Salt Lake City, Sector-I, Kolkata Also at : J-1/B-1, Mohan Co-operative Industrial Area Main Mathura Road, New Delhi – 110044 … Complainant Vs.

1. GTM Builders & Promoters Pvt. Ltd. GTM House, G-5, Pushkar Enclave Outer Ring Road, Paschim Vihar New Delhi – 110063

2. M/s. Sargam Estates Pvt. Ltd. G-5, Pushkar Enclave, Outer Ring Road Paschim Vihar, New Delhi – 110063 … Opposite Parties

For the Complainant : Mr. Joy Basu, Sr. Advocate With Ms. Kartika Sharma, Advocate

PRONOUNCED ON 7TH MAY, 2014

ORDER JUSTICE J.M. MALIK 1. The key question is, whether, the complainant is a ‘consumer’ and falls under Section 2 (1) (d) (ii) and the Explanation appended to it?.

2. The present complaint has been filed by a company, known as Shailaja Finance Ltd., Kolkata. The Opposite Parties, GTM Builders & Promoters Pvt. Ltd. and M/s. Sargam Estates Pvt. Ltd., OPs 2 & 3, respectively, are the joint owners/developers of the land measuring 58 bighas, situated at Village Mokhampur Khurd, Paragana Parwa Doon, Dehradun, Uttaranchal. The complainant company purchased nine apartments in ‘GTM Forests & Hills’, from the OPs. The said flats were purchased by the complainant company to use them for residential purposes only, for its Directors and Staff members, and for the Directors of M/s. Radico Khaitan Limited. It is explained that the complainant is the promoter of M/s. Radico Khaitan Limited which has its office in Dehradoon. The OPs did not handover the flats to the complainant. Consequently, the present complaint has been filed with the following prayers :-

“(i) Direct the Opposite Parties to hand over the possession of the 9 flats in Towers bearing Nos. FH-08 (Flat No. 201), FH-15 (Flat No.201), FH-17 (Flat Nos. 102, 201, 202, 203), FH-18 (Flat Nos. 102, 201, 202) immediately, in a completely ready and finished state;

(ii) Direct the Opposite Parties not to create any

third party rights and/or interests with respect to the aforementioned 9 flats;

(iii) Direct the Opposite Parties to recall their illegal demand letters dated 18.07.2012, 21.09.2012, 08.11.2012, 31.12.2012 and declare them null and void;

(iv) Direct the Opposite Parties to pay an interest at the rate of 18% per annum, compounded monthly, to the complainant pendent lite on the total amount of Rs.2,34,71,323/- paid to the opposite parties for the entire period of delay till the handing over of the flats;

(v) Direct the Opposite Parties to pay an amount of Rs.18,00,000/- (Rupees Eighteen Lakhs only) to the complainant as damages due to delay in handing over possession of the flats;

(vi) Direct the Opposite Parties to pay to the complainant the costs of the present proceedings; and

(vii) Pass such other order or further orders as this Hon’ble Commission deems fit and proper in the facts and circumstances of the case”. 3. We have heard the learned counsel for the complainant at the stage of admission of this case. The counsel for the complainant has invited our attention towards the Board Resolution dated 13.03.2008, which runs as follows:-

“Resolved further that the flats shall be utilized for residential purposes of the Directors/ Employee of the Company or its Group Companies and such other purposes and deemed suitable by the Board”. 4. We have also gone through the Agreement dated 15.05.2008, which does not mention which flat was taken and for whom. The names of the Directors are conspicuously missing. 5. The learned counsel for the complainant has cited an authority reported in Karnataka Power Transmission Corporation Vs. Ashok Iron Works Pvt. Ltd., 2009 (3) SCC 240. We are of the considered view that that authority is not applicable to this case. In that case, the cause of action had arisen on 01.02.1991 as is apparent from para 2 of the judgment.

6. The Amendment Act 1993 and 2002/03 were not brought into force till then. We are to decide this case in accordance with the law which prevails here as under. The word ‘consumer is defined in Section 2 (1) (d) (i) and (ii), 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. Counsel for the complainant has cited another authority in Mostrea Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd., IV (2010) CPJ 299 (NC). In para No.5 of the said authority, it was held as under :-

“Complainant alleges that it has availed of the services of the opposite party for providing space in the Mall and paid Rs.33,01,740/- towards sale consideration. Even if the complainant, a private limited company is treated as a ‘person’, the purchase of space cannot be for earning its livelihood by means of self-employment within the meaning of the explanation nor such a case has been specifically pleaded in the complaint. Purchase of space was for commercial purpose. Complaint, therefore, deserves to be dismissed being not maintainable under the Act. Dismissed as such”. 8. It is, thus, clear that this authority, far from being supporting the case of the complainant, goes against the complainant company.

9. He has also cited a judgment of this Commission reported in Travel India Bureau Pvt. Ltd. Vs. HUDA & Ors., II (2008) CPJ 329 (NC). In this case too, the cause of action had arisen in the year 1991. Consequently, this authority is not applicable to this case. 10. Counsel for the complainant also cited Padma Sundara Rao (Dead) and Ors. Vs. State of T.N. and Ors., (2002) 3 SCC 533, wherein it was held that the decision of the court should be understood in the fact situation of the case.

11. First of all, for the reasons mentioned hereinwith, we clap no importance to these arguments. These arguments were relevant before the amendment of the C.P.Act, 1986. After the Apex Court passed the order in Laxmi Engineering Works vs. PSG Industrial Institute – (1995) 3 SCC 583, the definition of ‘consumer’ stood changed as per the new amendment. At para 11 of its judgment, the Hon’ble Apex Court held as under :-

“11. Now coming back to the definition of the expression ‘consumer’ in Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promises, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression “resale” is clear enough. Controversy has, however, arisen with respect to meaning of the expression “commercial purpose”. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. “Commercial” denotes “pertaining to commerce” (Chamber’s Twentieth Century Dictionary); it means “connected with, or engaged in commerce; mercantile; having profit as the main aim” (Collins English Dictionary) whereas the word ‘commerce’ means “financial transactions especially buying and selling of merchandise, on a large scale” (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit” he will not be a ‘consumer’ within the meaning of Section 2(1)(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion – the expression “large scale” is not a very precise expression – Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/ Amendment Act, 1993. 12. This Commission in the case of Jag Mohan Chhabra & Anr. Vs. DLF Universal Ltd. IV (2007) CPJ 199 (NC), held, as under :-

“ in a somewhat similar case, had held that the complaint was not maintainable under the Consumer Protection Act, 1986. It had, therefore, disposed of the complaint with liberty to the complainant to approach Civil Court. 13. A Special Leave Petition (Civil) Appeal Nos.6030-6031 of 2008 was filed before the Hon’ble Supreme Court against the above said order. The Hon’ble Supreme Court upheld the order of this Commission and dismissed the SLP vide its order dated 29.09.2008. 14. In M/s.Purusharath Associates Pvt. Ltd. Vs. M/s. Uppal Housing Ltd. & Anr., Consumer Complaint No.112 of 2012, decided by National Commission, on 05.07.2012, it was held that :

“Learned counsel for the complainant argued that these flats will be used for the officers of the Company. Learned counsel for the complainant could not deny that those officers would transact the commercial activity. A bare-look on this Resolution clearly goes to show that these flats would be meant for ‘commercial purposes’. 15. Against the said order of this Commission, Special Leave Petition (Civil Appeal Nos.8990-8991 of 2012, M/s. Purusharath Associates Pvt. Ltd. Vs. M/s. Uppal Housing Ltd. Plaza & Anr.) was filed before the Hon’ble Supreme Court. The Hon’ble Apex Court dismissed the said Special Leave Petition, vide order dated 07.01.13.

16. In Satish Kumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India) Ltd., & Anr., Consumer Complaint No.296 of 2011, decided by this Commission, on 03.07.2012, 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. 17. Against the said order of this Commission, Special Leave Petition (Civil Appeal No. 6229 of 2012, Satish Kumar Gajanand Gupta Vs. Srushti Sangam Enterprises (I) Ltd & Anr.) was filed before the Hon’ble Supreme Court. The Hon’ble Apex Court dismissed the said Special Leave Petition, vide order dated 14.09.2012.

18. In view of the above, we dismiss the instant complaint at the time of admission, with no order as to costs. However, there lies no rub for the complainant to seek remedy before any other appropriate forum or civil court as per law.

REVISION PETITION NO. 4575 OF 2012 (From order dated 03.09.2012 in Case No. FA-925/09 of the State Consumer Disputes Redressal Commission, Delhi)

Krishanpal Singh S/o. Late Sh. Nihal Singh R/o. E-37, Radhakunj, Brij Vihar Ghaziabad, Uttar Pradesh … Petitioner Vs. 1. Tata Motors Limited Passenger Car Business Unit Unit No.402, 4th Floor Tower-A, Signature Towers South City-1, NH-8, Gurgaon – 122001 Registered Office : 24, Homi Modi Street Fort, Mumbai

2. HIM Motors Pvt. Ltd. 338, FIE, Patparganj Industrial Area Delhi – 110092 … Respondents

REVISION PETITION NO. 4787 OF 2012 (From order dated 03.09.2012 in Case No.FA-925/09 of the State Consumer Disputes Redressal Commission, Delhi)

Tata Motors Limited V/s Krishan Pal Singh & another

For Tata Motors Ltd. : Mr. Aditya Narain, Advocate with Mr. Saurabh Seth, Mr. Shashank Bhushan & Ms. Anushree Narain, Advocates

For Krishanpal Singh : Dr. Vijendra Mahndiyan, Advocate With Ms. Pallavi Awasthi, Advocate

For HIM Motors Pvt. Ltd: NEMO

PRONOUNCED ON 7th MAY, 2014

O R D E R

JUSTICE J.M. MALIK

1. This common order shall decide two revision petitions detailed above which arise from the same common order rendered by the State Commission, Delhi, passed in two First Appeals, one filed by the complainant, Sh. Krishanpal Singh and the other by

Tata Motors Ltd.

2. The complainant, purchased a Tata Indigo Car from HIM Motors Pvt. Ltd., OP2, the Dealer of Tata Motors Ltd, which was arrayed as OP1, in the original complaint. The complainant paid a sum of Rs.4,63,341/- and took the delivery of the same on 15.12.2006. From the very start, the car was malfunctioning and revealed the symptoms of basic defect of the product. On

05.08.2008, the complainant informed M/s. Tata Motors Pvt. Ltd, OP3 that the said car had a number of defects. He also referred to the previous complaints made by him to the OPs. Again, a reminder was sent on 20.08.2008. The complainant also prayed that its cost should be returned.

3. On 18.07.2008, the complainant handed over the car to OP1 for repairs. OP1 assured that in addition to the change of gear box and fuel pump, any other defective part would be repaired, if so required. OP also informed the complainant that it would pay the charges of the taxi. The complainant also received a letter from OP2 expressing regret in respect of inconvenience, on 11.08.2008.

4. The complainant listed the following defects in the car:- “a. Leakage of engine oil which could be rectified only after opening engine chamber 3-4 times. b. Frequent failure of power system of the vehicle resulting in break/steering failure while driving which could have turned out to be major accident. c. Failure of AC/Heater system. d. Disbalance of Kamani ultimately leading to replacement of shocker. e. Failure to meet pollution specifications f. Low mileage”.

5. The complainant claimed that some of the problems faced are repetitive in nature, which included the following :-

Sl.No. Complaint No. of times attended 1. Brake jam 7 times 2. Steering jam 5 times 3. Gear problem 5 times 4. AC/Heater failure 7 times 5. Engine leakage 4 times 6. Poor pick-up 10 times 7. Low fuel average 4 times 8. Excessive smoke 5 times 9. Clutch problem 3 times 10. Noise in engine 3 times

6. Ultimately, the complainant filed a complaint before the District Forum, with the following prayers :-

“ 1. Issue an appropriate order and direction thereby directing the respondent to pay the cost of said car Rs.5,46,119/-. 2. Issue an appropriate order and direction thereby directing the respondent to pay Rs.25,000/- (inadvertently/wrong mentioned as Rs.2,500/- in legal notice), for and on account of expenses incurred by the complainant for accessories/addition parts fitted in the car. 3. Issue an appropriate order and direction thereby directing the respondent to pay the sum of amount of Rs.3.00 lakhs in lieu of Taxi charges from dt. 18.07.2008 till date at the rate of Rs.2,000/- per day. 4. Issue an appropriate order and direction thereby directing the respondent to pay Rs.10,00,000/- on account of harassment, inconveniences, mental agonies, financial losses suffered by the complainant and his family members”.

7. The District Forum partly allowed the complaint and passed the following order :- “Keeping in view the facts above, we find this is a fit case for ordering replacement of the car or refund of the cost thereof. It is noted by this Forum that in such type of cases, this Forum as well as Hon’ble State Commission have been taking a view that cost of the goods should be refunded so as to end the dispute once for all as replacement of any defective goods by new goods is not a solution as such replacement of the goods may not be up to the satisfaction of the consumer and this may relegate the parties to a second bout of litigation. Further, since vehicle in question has already run for more than 37,000 kms. It is for consideration for this Forum whether OP can be ordered to refund full cost of the vehicle. In a similar situation, in the case supra of M/s. Hyundai Motors India Ltd. Vs. M/s. Affiliated East West Press (P) Ltd., National Commission observed as under :- “ It is also contended by the learned counsel for the petitioner that the car was used by the complainant for more than one year and, therefore, appropriate deduction in the amount payable to the complainant be made. In our view, this submission cannot be accepted because the complainant has also invested money for purchase of the said car and on the same amount he has lost interest. The car was required to be used after its repeated repairs. In such a case, it was the duty of the petitioner to replace the car as they were not in a position to rectify the defect”.

Keeping in view above, we direct OP2 and OP3 jointly or severally to refund to complainant Rs.4,63,341/- (Rs. Four lacs sixty three thousand forty one only) towards cost of the vehicle along with a compensation of Rs.50,000/- (Rs. Fifty thousand only) for the harassment caused to the complainant and also Rs.10,000/- (Rs. Ten thousand only) towards litigation cost.

In compliance of this order, the complainant will not have claim on the car in question lying with the OP1 and he shall complete formalities for transfer of ownership of the vehicle to OPs/their assignees. The OPs shall comply with the above orders within one month”.

8. Aggrieved against the order of District Forum, two First Appeals were filed by Tata Motors Ltd., before the State Commission. The State Commission partly allowed the appeal and while holding that there was no manufacturing defect, passed the following order :- “The appeal is partly allowed and the impugned order dated 18.11.2009 is modified to the extent that the appellant shall pay Rs.3.00 Lac (Rupees Three Lac only) to the respondent being the refund of the price after depreciation. The appellant shall also pay Rs.50,000/- to the respondent as compensation for mental agony, harassment and sheer suffering and Rs.10,000/- as the litigation cost. The vehicle in question shall be delivered by the complainant to the appellant. We direct accordingly”.

9. Both the parties filed revision petitions against this order.

10. Learned counsel for TATA Motors Ltd., the petitioner, made the following submissions. The State Commission came to the conclusion that there was no manufacturing defect. There was no report of the Expert to bolster the case of the complainant. There is not even an iota of evidence that the vehicle suffered from manufacturing defect. He admitted that, however, some parts were not working and as soon as the vehicle was taken to the workshop of the petitioner, the defects were rectified. It was also argued that the dealings between the manufacturer and the dealers, are on a ‘principal-to-principal’ basis and there is no privity of contract between the petitioner and the respondent/complainant. Consequently, there is no privity of contract between the complainant and the petitioner/manufacturer. Again, the complaint is conspicuously silent about any manufacturing defect.

11. It was contended that manufacturing defect has been defined by this Commission in Maruti Vs. Hasmukh Lal, (2009) 3 CPJ 229, Para 21, as a defect as a result of which the vehicle cannot function and results in a complete and total breakdown. The manufacturer is liable only in case of manufacturing defect. The complainant has filed service history and Tax Invoices relating to servicing of the vehicle, inter alia, by HIM Motors, besides other Dealers. This Commission, in the following authorities, has observed that, only the Dealer to be liable in cases where no manufacturing defect is established. He has referred to :- i) Tata Motors Vs. Hind Motors & P.K. Marwaha, order dated 24.05.2010. ii) Hind Motors Vs. K.K. Kalsi – order dated 24.05.2010 iii) Hind Motors Vs. Balwinder Singh, order dated 24.05.2010 iv) Hind Motors Vs. Bhupinder Singh, order dated 24.05.2010.

12. It was also argued that no findings can be arrived at in the absence of foundation being laid down in the pleadings. The counsel has referred to Supreme Court’s authority reported in DVVG Satyanarayana Vs. S.V. Raghavaiah, AIR 1987 SC 406. It was also contended that, moreover, the vehicle is lying abandoned since the year 2008. The respondent has not cared to take away his vehicle. In order to embolden his arguments, the counsel for thepetitioner cited authorities reported in Manager, Premanchal Motors Pvt. Ltd. and Punjab Tractor Ltd. Vs. Ramdas, Telco Vs. Bachi Ram Dangwal and Tata Motors Vs. Ashok Saraf, decided on 12.01.2009.

13. It was also submitted that the vehicle had limited problem of break-failure and starting-failure, at four times. The service history and Tax Invoice filed by the complainant did not show any starting failure, even though, there is a reference to cold starting problem on 07.02.2008. From the service history and tax invoices, it is clear that break jam was returned on 26.12.2006 and 13.12.2007 and not on seven occasions, as wrongly held by the consumer fora below. Thecomplainant has distorted the symptom of steering noisy on 04.03.2008 and steering hard on 10.03.2008 by misrepresenting steering jam/fail, which shows how minor maintenance issues have been exaggerated and distorted. The petitioner was willing to replace the gear box as a gesture of goodwill even though the warranty had expired. Numerous visits to the workshop does not amount to manufacturing defect. Onus of proof is always on the complainant to lead cogent evi dence and expert report. This Commission in Classic Automobiles Vs. Lila Nand Mishra & Anr., I (2010) CPJ 235 (NC) and Tata Motors Vs. Kushal Singh Thakur, vide order dated 21.08.2009 in RP No. 1153 of 2005, held that provisions of Section 13(1) (c) had to be complied with for appointment of Expert who could give a report as to whether the vehicle was suffering from manufacturing defect of the vehicle.

14. It was argued that Expert opinion is a condition precedent for establishing manufacturing defect, as was held by this Commission in EID Parry Vs. Baby Benjamin, I (1992) CPJ 279, Tata Motors Vs. Sunil Bhasin, 2008 (II) CPJ 111, Chandreshwar Vs. Telco, I (2007) CPJ 2, Diamond Cement Vs. RaiPrexim India Pvt. Ltd., I (2003) CPJ 1, Lovely Vs. Harmesh Lal, I (2007) CPJ 312.

15. It was further argued that the petitioner/complainant has concealed some material facts. Firstly, the complainant abandoned the vehicle at the workshop. It is lying with the workshop since the year 2008. The complainant was informed vide letters dated 30.07.2008, 04.08.2008, 11.08.2008, 22.08.2008 and 14.09.2008 that the vehicle had been attended to and to take delivery of the same. The petitioner/complainant was also informed telephonically, but he did not come forward to take the vehicle back. On 14.09.2008, the Dealer made a proposal to the complainant, through a letter, for offering of replacement of gear box as a gesture of good will and also offered the reimbursement of Rs.550/- per day, applicable to his previous visits to workshop, when the vehicle got stranded for more than one day due to major running repairs. The complainant tried to mislead the Forum by not disclosing the fact that he has not taken delivery of the car since the year 2008. The complainant purchased the car on 15.12.2006 and has filed the complaint before the District Forum on 13.01.2009, i.e. beyond the warranty date, i.e., 15.06.2008.

16. It was also argued on behalf of the petitioner that after the warranty period, no right to demand any damages or compensation for loss or inconvenience lies with the consumer. In Bharati Knitting Vs. DHL Courier, (1996) 4 SCC 704, the Hon’ble Supreme Court held that the parties are bound to follow the contract entered into and signed by them. In Maruti Vs. S.K. Gabgotra, (2006) 4 SCC 644, the Hon’ble Apex Court set aside the order of replacement of vehicle. This order was followed by this Commission.

17. The vehicle in question has covered 36,000 kms and one-and-a-half years have elapsed. Consequently, the question of manufacturing defect cannot arise in view of Telco Ltd. Vs. Gajanan Mandrekar, AIR 1997 SC 2774 and Tata Motors Vs. Kushal Singh Thakur (supra). Both the fora below have wrongly concluded that the vehicle was having manufacturing defect. The complainant had not availed the second free service and waited for two years to file the complaint after covering 40,000 kms. The complainant failed to show having suffered any loss or injury on account of negligence by the petitioner. As perHon’ble Supreme Court’s authority, reported in Consumer Unity & Trust Society Vs. Chairman & Managing Director, Bank of Baroda, (1995) 2 SCC 150 and Union of India Vs. Seppo Rally, (1999) 8 SCC 357 , Godfrey Philips Vs. Ajay Kumar (3) 2006 CPJ 178 (NC) and Ghaziabad Development Authority Vs. Balbir Singh, (2004) 5 SCC 65.

18. The learned counsel for the petitioner contended that the complainant had exaggerated the number of visits for repairing purposes. According to the petitioner, the complainant did not visit the premises for about 53 times and at another stage for about 35 times. However, the counsel for the petitioner admitted at Bar that the complainant visited for 26 times, for which the petitioner is ready to compensate @ Rs.550/- per visit.

19. We find force in the arguments canvassed by the counsel for Tata Motors Ltd. The job cards, Annexure P-1 (colly) are attached with the file. It goes to show that there was brake jam after 10 kms., low pick up, defect in regulator handle checkup and steering wheel was found to be centralised. Service card still reveals that “brake and starting fail, B1 brake grabbling/jam, replace brake pad (paid), brake cleaning, Misc., N, cooling, a/c cooling low check down”. Another history card shows that “steering noisy, noise from Engine, steering system hard. There are number of job cards”. All these facts clearly go toshow that the complainant visited the Service Station, time and again, for the rectification of above said defects. The complainant claimed that he visited the Service Station for 53 times. The opposite party has denied this fact but admitted that he must have gone for getting the service and defects removed, for as many as 26 occasions. The admission of the facts comes out from the horse’s mouth itself. The opposite party, Tata Motors Limited issued a letter dated 11.8.2008 to the complainant, wherein the relevant extract runs, as follows: “We sincerely regret the inconvenience that you had to go through. However please be assured of the quality of jobs that have been carried out by our dealer. As we are concerned on the performance of your car, and accordingly we have got the car checked by our representative as well. We once again would request you to please take the delivery of the car and be assured of the best possible support from us in the future.

Vide letter dated 14.09.2008, issued by HIM Motors (P) Ltd, to the complainant, it is apparent that the petitioner has replaced the Gear Box and Fuel Injection Pump, etc.

20. Dr.Vijendra Mahnidyan, learned counsel for Sh. Krishan Pal Singh, the complainant, has argued that the life of the complainant and his family was put in danger. The opposite parties made repeatedly fake assurances after each repair to the effect that the vehicle would run smoothly thereafter. However, the defects could not be cured. The vehicle remained in the garage of the opposite party whereas the complainant had to pay the installments of car loan as well as the interest thereon. The complainant, vide his letter dated 05.08.2008, which letter runs into five pages, made the following request to the opposite parties, addressing one Mr. Rajiv Dubey, (President-Vehicles), Tata Motors Limited, Mumbai. The relevant extract germane to this controversy, runs as follows:

“ Sir, when a person buys a car, he makes sure that he will benefit from the car in terms of physical exertion, relaxing, mental peace, business and this car would help him to expand business and bring growth to lives but buying this car from Tata motors, I have been losing my mental peace and faced financial loss and now it’s nearly unbearable and I request you to fulfill my loss (mental and financial), else I will have to go to court and media. Hence, I again kindly request you to understand my unbearable problem as a quite high post officer, who is working for big multinational company and oblige you’re your efforts will be highly appreciated”.

21. He wrote another letter dated 20.08.2008. In both these letters, the complainant discussed the defects prevalent in the car. In the end of this letter, he requested the opposite parties to refund the amount paid by him to Tata Motors and also to repay the cost for spending the money on the additional car accessories.

22. According to the complainant, the OP had tried to settle the matter. The document was prepared by the opposite parties, as a condition precedent to be signed by the complainant before taking delivery of the vehicle.

23. The learned counsel for the complainant has cited an authority reported in Tata Motors Limited. Vs. Lachia Setty I (2008) CPJ 151 (NC), whereinthe opposite parties could not rectify the manufacturing defects despite repeated complaints and taking the vehicle to workshop, this Commission held that deficiency in service stood proved. In that case, it was held that the complainant after being fed up with the defects, surrendered the vehicle within three months of purchase. The order passed by the fora below to replace the car or pay the cost of the car was upheld. It was argued that in the judgments relied upon by the petitioner in Sushila Automobiles Private Limited through its Manager Shri Kamlesh Kumar Singh vs. Dr. Birendra NarainPrasad, Revision Petition No. 1652 of 2006 decided on 7.5.2010 1652 of 2006 and Classic Automobiles vs. Lila Nand Mishra & Anr. I (2010) CPJ235 (NC), there were only minor defects.

24. It must be borne in mind that the car is lying with the opposite party/ dealer since the year 2008. A number of requests, either in writing or in oral, were made to the complainant to take the car back. The contention of the complainant that he had written two letters, dated 5.8.2008 and 20.8.2008, does not absolve him from his liability to take the car back.

25. On the other hand, the case of the opposite party also smacks of negligence when the car was having so much problem. The Manager should have issued a letter that the vehicle was roadworthy. However, needful was not done. It appears to be a case of contributory negligence. If the assurance was given by the opposite parties to the complainant , then he could have taken his car back, with confidence.

26. This must be borne in mind that this is a peculiar case and where the complainant had to visit the service station, according to him, for 53 times and according to the opposite party, for 26 times. Normally, in such like situation, the onus of proof should be shifted to the side of the OP when the manufacturing defects are visible on its face and the OP has no explanation to make, the manufacturing defect, ‘must be assumed’. Section 13 (1) (c) is wee bit unfavourable to the consumers. The consumer is a poor fellow. He cannot be equated with OP1. Whenever there is a complaint of manufacturing defect, it should be the bounden duty of the people, like OPs, to appoint their own Experts who are always available at their beck and call to prove that the car does not suffer from any manufacturing defect. The General Manager of Tata Motors should certify that the vehicle is road-worthy and it will not endanger the life of the complainant or his family members.

27. However, we are bound by the law laid down by the Hon’ble Apex Court in several authorities, cited by the counsel for the petitioner/Tata Motors. The car can neither be replaced nor its amount can be refunded. Keeping in view these facts and circumstances, we hereby modify the order passed by the State Commission and hereby order that no refund be made as already ordered by the District Forum and the State Commission. It is hereby ordered that the vehicle which is lying with HIM Motors Pvt. Ltd., OP2, shall be repaired and the General Manager of Tata Motors will issue a certificate to the effect that the car is roadworthy and it will not endanger the lives of the complainant and his family members. The roadworthy car be handed over to the complainant/ consumer, within a period of 30 days from the receipt of this order. Thereafter, the warranty period shall stand extended by 12 months. This will be one of the conditions on the warranty card issued to the complainant.

28. This is an admitted fact that the complainant visited the service station for 26 times. He will get compensation in the sum of Rs.5,000/- per visit, total being, Rs.1,30,000/-, payable within 30 days from the receipt of this order. The complainant will also get litigation charges and costs of this case, including the Advocate’s fee, in the sum of Rs.50,000/-, within a period of 30 days from the date of receipt of this order. Order shall be complied with accordingly. Otherwise, the said amounts will carry interest @ 9% p.a., after 30 days, till their realization, against both the OPs, jointly and severally.

29. If the car is not repaired within the above said period of 30 days, both the OPs will have to pay penalty in the sum of Rs.500/- per day, jointly and severally, till the complainant gets the possession of the same. The car should be handed over, without any defect.

30. Before concluding, we must mention that although, the District Forums are quick in passing the orders in favour of the consumers, irrespective of the fact, whether the case of the complainant is bolstered by cogent and plausible evidence, or not, yet the said forums never take the trouble to adhere to Section 13(1)(c) of the C.P. Act. If District Forums follow the law, most of the problems will come to an end. If the consumer is to be helped permanently, the provisions enshrined in Section 13(1)(c) should be followed, strictly. In that event, it would be easier for the fora to winnow truth from falsehood. The revision petitions stand disposed of.

.…..………………………… (DR. S. M. KANTIKAR) MEMBER dd/14 & 15 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

FIRST APPEAL NO. 115 OF 2009

(From the order dated 05.11.2008 in Consumer Complaint No. 64 of 2005 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

1. Usha Lakshman W/o late Sh. S. Lakshmanaswamy 2. Meghashree D/o Late Sh. S. Lakshmanaswamy 3. Madhushree D/o Late Sh. S. Lakshmanaswamy LRs’ of Late Sh. S. Lakshmana Swamy All Residents of: House No. 6, MIG-II KHB Colony Kanakpura, Bangalore, Karnataka …Appellants/Complainants Versus 1. Dr. N. Chandrashekar Neuro Surgeon K R Hospital Mysore, Karnataka 2. CSI Holdsworth Memorial Hospital Post Box No. 38, Mysore – 21, Karnataka … Respondents/Opp. Parties (OP)

BEFORE

For the Appellants : Mr. Abhinav Bajaj, Advocate

For the Respondents : NEMO

PRONOUNCED ON 7th May, 2014 O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

Appellant has filed this appeal against the order dated 5.11.2008 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ‘the State Commission’) in Consumer Complaint No. 64 of 2005 – Usha Lakshman & Ors. Vs. Dr. N. Chandrashekar & Anr., by which, complaint was dismissed.

2. Complainants/Appellants filed complaint before State Commission for compensation due to negligence in conducting second surgery of deceased S.Lakshmana Swamy. Both parties led evidence before the State Commission and after hearing both the parties, complaint was dismissed against which, appellant filed this appeal and also filed application under Order 41 Rule 27 CPC for seeking permission to lead additional evidence.

3. Respondents did not appear and submitted reply by post.

4. Heard learned Counsel for the appellant and perused reply submitted by respondent.

5. Appellant submitted that during pendency of complaint, complainant expired on 5.5.2008 after a prolonged illness and legal heirs of the complainant which included his widow and daughters were left in a state of financial and emotional lurch and it was not possible for them to pursue the case. Consequently, important evidence of Dr. Swarup Gopal, Neuro Surgeon and Dr. Venkatesh Krishnamurthy could not be placed before State Commission. In such circumstances, application may be allowed and he may be permitted to lead additional evidence at this stage. Respondent submitted that parties led their oral evidence through affidavits and interrogatories were also served on them and opportunity was granted. Appellant led evidence, but appellant never made a request expressing their inability to secure evidence of aforesaid witnesses. In such circumstances, now, appellant cannot be permitted to lead evidence of aforesaid doctors. It was further submitted that in memo of appeal appellants have mentioned that due to bonafide mistake of the Counsel for the Appellant, the aforesaid doctors were not examined. In such circumstances, application deserved dismissal.

6. Perusal of record clearly reveals that number of opportunities were given to the appellant to file affidavit evidence and complainant filed his evidence and also cross- examined OP and his witness. Complainant never requested learned State Commission for calling Dr. Swarup Gopal, Neuro Surgeon and Dr.Venkatesh Krishnamurthy. Perusal of order sheets further reveals that after completion of evidence of both the parties on 6.12.2007, matter was fixed for arguments on 31.1.2008 and from time to time number of adjournments were granted and in such circumstances, it cannot be inferred that on account of death of complainant on 5.5.2008, legal heirs of the complainant could not examine Dr. Swarup Gopal, Neuro Surgeon and Dr. Venkatesh Krishnamurthy.

7. Perusal of order sheets clearly reveals that sufficient opportunity was granted to the complainant to lead evidence and he chose not to examine aforesaid witnesses and in memo of appeal, it has clearly been mentioned that due to bonafide mistake of the Counsel for the appellant, doctors could not be examined. Order 41 Rule 27 CPC cannot be invoked for fulfilling lacuna and additional evidence can be led only if either that was not in the knowledge of the parties or even after exercising of due diligence could not be produced by him before the Trial Court. In the case in hand the complainant had full knowledge of evidence of both the aforesaid witnesses and has filed their medical opinion and intentionally not produced them before State Commission and in such circumstances, now he cannot be permitted to fill up lacuna and application under Order 41 Rule 27 CPC is liable to be dismissed.

8. Learned Counsel for the petitioner placed reliance on III (2005) CPJ 64 (NC) – HUDA Vs. Kamaljit Kaur Ahluwalia & Ors. in which in first paragraph of the order it was observed as under:

“ We further reiterate that proceedings before the Consumer Fora are not adversary litigation but are inquisitorial and hence even if points were not highlighted by the parties, even then, it was a duty/function of the consumer fora to appreciate the evidence brought on record and to arrive at a just and proper conclusion”.

9. We agree with the aforesaid observation, but this observation does not help to the petitioner as petitioner was having knowledge of evidence of Dr.Swarup Gopal, Neuro Surgeon and Dr. Venkatesh Krishnamurthy and he intentionally not examined these witnesses before the State Commission. State Commission appreciated the evidence brought on record by both the parties and passed impugned order.

10. In such circumstances, application for additional evidence under Order 41 Rule 27 CPC filed by the Appellants is dismissed.

11. Put up for final arguments on 30.9.2014.

………………Sd/-……………

……………Sd/-………………

( DR. B.C. GUPTA) MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 17.08.2013 in Appeal No. 456 of 2012 of Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

Oriental Insurance Co. Ltd. KPK Rialton, Near Kotacherry Pump, Thana, Kannur – 670012 Through Manager Oriental Insurance Co. Ltd. Head Office 88, Janpath New Delhi …Petitioner/Opposite Party (OP) Versus K.K. Valsalan, S/o Sekaran Karayil House,P.O. Chovva, Mundayad, Playavoor, Kannur Dt. …Respondent/Complainant

BEFORE

For the Petitioner : Ms. Sakshi Gupta, Advocate For the Respondent : Mr. Vishnu P., Advocate

O R D E R

This revision petition has been filed by the petitioner against the order dated 17.08.2013 passed by the Kerala State Consumer Disputes RedressalCommission, Thiruvananthapuram (in short, ‘the State Commission’) in Appeal No. 456 of 2012 – Oriental Insurance Co. Ltd. Vs. K.K. Valsalan by which, appeal filed by the petitioner was dismissed and order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent’s Lorry No. KL-07/AP- 4543 was insured by OP/petitioner. During currency of insurance policy, vehicle was stolen on 18.3.2007. Claim filed by the complainant was repudiated by OP. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP resisted complaint and submitted that theft occurred due to negligence of the driver who left the key in the vehicle and left the vehicle unattended and thus violated Condition No. 5 of the policy and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to pay Rs.5,38,500/- and further pay Rs.1000/- as cost of litigation. 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 inspite of proof of violation of Condition No. 5 of the policy, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, leaned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petit6on be dismissed.

5. Learned Counsel for the petitioner submitted that admittedly, complainant’s driver left both the ignition keys along with vehicle’s documents in the vehicle and left the vehicle unattended and violated Condition No. 5 of the policy. Condition No. 5 of the policy runs as under:

Condition No. 5:

“ The insured shall take all reasonable steps to safeguard the vehicle from loss of damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk”.

6. Perusal of aforesaid condition makes it clear that driver was under an obligation to take ignition key of the vehicle with him while going to nearest hotel to take tea. Admittedly, he returned after half an hour and found that the vehicle was missing. Leaving both the ignition keys in the vehicle and going to hotel in the mid-night for taking tea and returning after half an hour can be said that complainant’s driver left the vehicle unattended without proper precautions and thus, has violated Condition No. 5 of the insurance policy and learned District forum committed error in allowing complaint.

7. Learned Counsel for the respondent submitted that Coordinate bench of this Commission has allowed complaint in such circumstances and has placed reliance on judgment of this Commission passed in R.P. No. 375 of 2013 - Sukhwinder Singh Vs. Cholamandalam & Anr. in which it was held that if driver was in the hurry to answer the call of nature and the driver forgot to remove keys from the ignition switch, he cannot be said to have committed willful breach of Condition No. 5 of the policy. In the case in hand, nowhere it has been pleaded that driver was in a hurry to take tea. Not only this, no one would leave both the ignition keys in the vehicle and will go inside the hotel in the mid-night and will return after half an hour and will leave the vehicle unattended. In such circumstances, aforesaid judgment does not help to the respondent. He has also placed reliance on another judgment of this Commission in R.P. No. 3434 of 2012 – National Insurance Co. Ltd., New Delhi Vs. Ajay Kumar Amichand Kheera in which driver and cleaner parked truck near National Highway where several other vehicles were parked in the night and went for their meals at a ‘Dhaba’ and order allowing complaint was upheld. In the aforesaid case, ignition key and other papers along with cash was kept in the tool box in the cabin of the bus and bus was parked where other transport buses and tourist buses were parked. We do not find any pleadings in the case in hand that the vehicle was parked at a place where other vehicles were also parked. We do not find any averment in the complainant that ignition key was put in tool box. From the complaint it can be inferred that both ignition key were left in the vehicle which amounts to negligence on the part of driver and it can be inferred that driver left the vehicle unattended without proper precaution.

8. Normally, both ignition keys are never kept together in the unattended vehicle and theory of theft of the vehicle is suspicious. Petitioner has not committed any deficiency in repudiating claim and learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and Revision Petition is to be allowed.

9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 17.08.2013 passed by the Learned State Commission in Appeal No. 456 of 2012 – Oriental Insurance Co. Ltd. Vs. K.K. Valsalan and order of District Forum dated 17.2.2012 in CC No. 147 of 2010 – K.K. ValsalanVs. The Div. Manager, Oriental Ins. Co. Ltd. is set aside and complaint stands dismissed with no order as to costs.

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( DR. B.C. GUPTA ) MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 15.06.2012 in Appeal No. 698 of 2011 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

1. M/s. Saptami Kuries & Loans. Victory Building, Pattambi Road, Kunnamkulam, Thrissur District Kerala State Rep. by Managing Partner V.R. Praveen 2. V.R. Praveen, Managing Partner, M/s. Saptami Kuries & Loans, S/o Raghavan, Vallikkattiri House, Cheruvanthani, Anjoor P.O. Thrissur District, Kerala State 3. Sajesh (partner), M/s. Saptami Kuries & Loans, S/o Vasudevan, Kodathoor House, Anjoor P.O., Thrissur District Kerala State …Petitioners/Opp. Parties (OP) Versus

Jayan M.R. S/o Ramachandran P.O. Kottapadi, Pokkode, Chavakkad Taluk, Rep. by Power of Attorney Holder Nisha V.A., W/o Karosh Babu, Vattiyapurackal House, Cheruvanthoni P.O. Thrissur District, Kerala State …Respondents/Complainants BEFORE

For the Petitioners : Mr. Tom Joseph, Advocate For the Respondents : Mr. Nishe Rajen Shonker, Advocate

O R D E R

This revision petition has been filed by the petitioner against the order dated 15.06.2012 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, ‘the State Commission’) in Appeal No. 698 of 2011 – M/s./ Saptami Kuries & Loans & Anr. Vs. Jayan M.R. & Anr. by which, appeal filed by the petitioner was dismissed and order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainants/respondents deposited Rs.50,000/- with OP/petitioner no. 1 on 25.6.1997 for a period of 8 years who promised to pay interest @ 12% p.a. and issued fixed deposit receipt no. 40. OP paid interest for 2 years and thereafter neither principal amount nor interest was paid on maturity. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP resisted complaint and submitted that alleged receipt no. 40 was a forged one and further submitted that receipt no. 40 was related to one T.R. Sindhu who deposited Rs.20,000/- on 20.9.1994 and that amount was returned on maturity on 26.9.1995. It was further submitted that complaint was filed by the Power of Attorney which was also a fake document and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to return the amount of FDR with 9% p.a. interest. Appeal filed by the petitioner was dismissed by learned State Commission against which, this revision petition has been filed.

4. Learned Counsel for the petitioner submitted that inspite of proof of the fact that so-called receipt no. 40 issued in favour of complainant was forged one, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. Learned Counsel for the petitioner submitted that receipt no. 40 was issued in favour of T.R. Sindhu who deposited Rs.20,000/- on 20.9.1994 which was repaid on 26.9.1995. Perusal of refund order dated 26.9.1995 reveals that only 20,000/- has been refunded, whereas as per deposit receipt dated 20.9.1994, Rs.20,000/- were to be refunded with 12% p.a. interest. In such circumstances, no reliance can be placed on alleged FDR dated 20.9.1994 for Rs.20,000/- and payment voucher.

6. Petitioner has not adduced any evidence in support of his contention that FDR No. 40 for Rs.50,000/- issued in favour of complainant was forged one. Onus was on the petitioner to prove that aforesaid FDR was forged one and as he failed to discharge his onus, learned District Forum rightly allowed complaint and learned State Commission rightly dismissed appeal filed by 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.

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( DR. B.C. GUPTA ) MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2057 OF 2012

(From the order dated 10.02.2012 in Appeal No. 155/2012 of Haryana State Consumer Disputes Redressal Commission, Panchkula)

New India Assurance Co. Ltd. Through Manager Regional Office-1, 5th Floor, Jeevan Bharati Building, Connaught Circus, New Delhi – 110001 …Petitioner/Opposite Party (OP)

Versus Maha Singh S/o Shri Gopala R/o Village Bhaini Jatan Tehsil Bawanikhera District Bhiwani, Haryana …Respondent/Complainant

BEFORE

For the Petitioner : Mr. Maibam N. Singh, Advocate For the Respondents : Mr. Ajit Kumar Pande, Advocate

O R D E R

This revision petition has been filed by the petitioner against the order dated 10.2.2012 passed by the Haryana State Consumer Disputes RedressalCommission, Delhi (in short, ‘the State Commission’) in Appeal No. 155 of 2012 – The New India Assurance Co. Ltd. Vs. Maha Singh by which, appeal filed by the appellant was dismissed against the order of District Forum allowing complaint.

2. Brief facts of the case are that complainant/respondent’s tractor HR 21A 6330 was insured by OP/petitioner for a period of one year from 2.5.2002 to 1.5.2003. Complainant sold this tractor to Wazir Singh. On 16.1.2003, tractor was stolen by some unknown person, so, FIR was lodged on 11.2.2003 and intimation was given to OP. Complainant submitted claim before OP, which was repudiated. It was further submitted that Wazir Singh, purchaser of the tractor filed Complaint No. 487 of 2004 before the District Forum which was decided on 2.12.2007 and complaint was dismissed with liberty to the complainant to file fresh complaint. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP resisted complaint and submitted that as tractor had already been sold by complainant to Wazir Singh on 28.8.2000 and tractor was being used for transportation of stones for commercial purposes and as complainant had no insurable interest in the tractor at the time of theft and as intimation of theft was given to OP on 1.5.2003 by State Bank of Patiala, OP has not committed any deficiency in repudiating the claim and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to pay Rs.1,80,000/- along with interest and further awarded Rs.2,200/- as litigation charges. 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 and perused record.

4. Learned Counsel for the petitioner submitted that inspite of violation of conditions of the policy and complainant having no insurable interest at the time of accident, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by leaned State Commission is in accordance with law; hence, revision petition be dismissed.

5. It is admitted case of the complainant that tractor was stolen on 16.1.2003 and FIR was lodged on 11.2.2003 and intimation of theft was given to OP on 1.5.2003 meaning thereby, there was delay of 26 days in lodging FIR and delay of 3½ months in giving intimation to Insurance Company, which amounts to violation of the conditions of policy. In F.A. No. 321 of 2005 – New India Insurance Co. Ltd. Vs. Trilochan Jane, decided by this Commission on 9.12.2009, claim of the complainant was dismissed, as FIR was lodged after 2 days and intimation to Insurance Company was given after 9 days. In the light of aforesaid judgment it becomes clear that on account of delay in lodging FIR and intimation to Insurance Company, there was a clear violation of the conditions of the policy and learned State Commission committed error in dismissing appeal.

6. Learned Counsel for the petitioner further submitted that complainant had no insurable interest. It is admitted case of the complainant that complainant sold the tractor to Wazir Singh on 11.12.2001; even then, obtained policy of insurance in his own name from 2.5.2002 to 1.5.2003 without any insurable interest in the vehicle. Merely because vehicle’s registration certificate stood in the name of complainant, complainant cannot be held to have insurable interest after sale of the vehicle. As insurance policy obtained by the complainant was without any insurable interest, OP rightly repudiated the claim and learned State Commission committed error in dismissing appeal.

7. Learned State Commission while dismissing appeal placed reliance on the decision of this Commission in R.P. No. 1034 of 2011 – Subhash Singh Vs.Oriental Insurance Co. Ltd. & Anr. in which insurable interest was found in the complainant, as agreement for sale was cancelled meaning thereby, vehicle was not found to have been sold to other party. Learned State Commission also placed reliance on the judgment of this Commission in R.P. No. 2262 of 2007 – National Insurance Co. Ltd. Vs. Jai Pal Singh & Anr. in which insurance policy was not transferred in the name of complainant; though, registration certificate stood transferred in his name. Facts of aforesaid case are not applicable to the present case, as in the present case complainant had already sold the vehicle to Wazir Singh long before the accident and obtained insurance policy without any insurable interest which was void ab initio.

8. In the light of above discussion, revision petition is to be allowed and impugned order is liable to set aside.

9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 10.2.2012 passed by the State Commission in Appeal No. 155 of 2012 – The New India Assurance Co. Ltd. Vs. Maha Singh and order of District Forum dated 2.11.2011 passed in Complaint No. 79 of 2008 - Maha Singh Vs. The New India

Assurance Co. Ltd. is set aside and complaint stands dismissed with no order as to costs.

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(From the order dated 26.05.08 in Appeal No. 07/905 of State Consumer Disputes Redressal Commission, Delhi)

State Trading Corporation of India Ltd. Jawahar Vyapa Bhawan 1, Tolstoy Marg, Janpath, New Delhi – 110001 …Petitioner/Opposite Party (OP)

Versus

H.C. Goel, Advocate Chamber No. 311-312, Civil Side, Tis Hazari Court, Delhi – 110054 Through his legal heirs 1. Smt. Leela Goel wife of late H.C. Goel 2. Sh. Rajesh Goel son of Late H.C. Goel 3. Smt. Rajni Goel Daughter of Late H.C. Goel

All Residents of: D-162, Ramprastha Colony Opposite Vivek Vihar, Ghaziabad – 201011 …Respondents/Complainants

BEFORE

For the Petitioner : Mr. Saran Suri, Advocate For the Respondents : Mr. Rajesh Goel, Advocate/Res. No. 2 (LR) in person and Counsel for other LRs.

O R D E R

This revision petition has been filed by the petitioner against the order dated 26.05.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in Appeal No. 07/905 – State Trading Corporation of India Ltd. Vs. H.C. Goel by which, appeal was partly allowed and order of District Forum allowing complaint was modified.

2. Brief facts of the case are that complainant/respondent H.C. Goel retired as Chief Legal Adviser on 31.7.1988 from the office of the OP/petitioner and complainant was extended all the benefits including reimbursement of medical benefits. Complainant was operated in emergency and incurred expenses of Rs.18,965/- in operation conducted at Surksha Nursing Home. He further submitted that he was entitled to Rs.5,000/- per year and later on Rs.8,500/- per year in place of submission of bills, cash memos, etc. Complainant was entitled to receive from the OP Rs.18.965/- on account of expenditure incurred on operation and Rs.18,500/- on account of fixed amount, but was not paid to him by OP. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that complainant took treatment in a non-panel hospital; hence, he was not entitled to reimbursement of Rs.18,965/- and further submitted that complainant was not entitled to receive Rs.18,500/- for 3 block years, as this provision was replaced by actual expenditure incurred and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.37,465/- and further awarded compensation of Rs.20,000/- and cost of Rs.5,000/-. Appeal filed by the petitioner was partly allowed and compensation of Rs.20,000/- was reduced to Rs.10,000/- and rest of the order was affirmed against which, this revision petition has been filed.

3. Heard learned Counsel for parties and perused record.

4. Learned Counsel for the petitioner submitted that payment as per the order of learned State Commission has already been made to the respondent, but this revision petition has been filed for expunging observations in the order of the State Commission as mentioned in paragraph 2 of the Revision Petition. He further submitted that learned State Commission committed error in making aforesaid observations contrary to Rules; hence, Revision Petition be allowed to this extent and objection be struck down. On the other hand, learned Counsel for the respondent submitted that observations made by learned State Commission are in accordance with law; hence, revision petition be dismissed.

5. Leaned State Commission in paragraph 6 of the order observed as under:

“ a) The aforesaid circular referred to by ld. Counsel for the petitioner (appellant therein) was applicable to persons who are on the employment and not to ex-employees”.

6. According to the learned State Commission circular dated 8.10.1997 was applicable to persons who were in employment and not to ex-employees. Apparently, this observation is not correct. Perusal of circular dated 8.10.1997 clearly reveals that this circular is applicable to the retired employees or the employee who joins services of the Corporation from other public sector organizations and has served the Corporation for a minimum period of 2 years. Thus, it becomes clear that, in general, this circular was applicable to ex-employees of the OP and not to the serving employee of the OP except the employee who joins service from other public sector organization and served the OP for a minimum period of 2 years. In such circumstances, this observation of learned State Commission is liable to struck down.

7. Learned Counsel for the petitioner does not press Item No. 2 (b) of the memo of revision and admits that complainant falls within purview of consumer.

8. Learned Counsel for the petitioner further submitted that learned State Commission committed error in observing in paragraph 8 of the order as under:

“ As regards the allegations of respondent having given legal advice to the employees against the interests of the appellant company, this was applicable only if the respondent was indulging in this activity during service of the appellant. After having retired from the appellant organization, no rule prevented him from giving any advice or otherwise”.

9. Perusal of circular dated 8.10.1997 clearly reveals that retired employee who indulges in any activity which goes against the interest of the Corporation shall be debarred from availing medical facilities after retirement. Thus, it becomes clear that learned State Commission erroneously observed in the order that after retirement, no Rule prevented to the retired employee from giving any advice against the interest of the Corporation for availing medical benefits. Whether this circular dated 8.10.1997 is in accordance with law or not is not to be seen by Consumer Fora, but has to be applied strictly and according to this circular if retired employee indulges in any activity against the interest of the Corporation, he can be debarred from availing medical facilities subject to right of appeal to CMO. Learned State Commission had committed error in observing that after retirement no Rule prevents retired employee from giving any advice or otherwise and to this extent, observations made in paragraph 8 are liable to struck down.

10. Consequently, revision petition filed by the petitioner is partly allowed and observations made in paragraph 6 and 8 of the impugned order dated 26.5.2008 passed in Appeal No.07/905 – State Trading Corpn. of India Vs. H.C. Goel is set aside with no order as to costs.

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ORIGINAL PETITION No. 207 OF 2000

1. Rajmal Singh (LR)

2. Varun Singh, Minor Through Father Mr. Rajmal Singh

3. Deepak Singh, Minor Through Father Mr. Rajmal Singh

4. Amit Singh Through Father Mr. Rajmal Singh

5. Ankur Singh Through Father Mr. Rajmal Singh

6. Gaurav Singh, Minor Through Father Mr. Rajmal Singh

All Reside at: SC-158, Shastri Nagar Ghaziabad, U. P.

.. Complainants Versus 1. Dr. Madhu Gupta R/o SE-12, Shastri Nagar Ghaziabad 2. Navjeevan Nursing Home R/o SE-12, Shastri Nagar Ghaziabad

3. Dr. Atul Aggarwal R/o R-3/4, Raj Nagar, Ghaziabad 201002

4. Shivam Hospital & Heart Centre, R/o R-3/4, Raj Nagar, Ghaziabad-201002

... Opposite parties

BEFORE:

For the Complainant : Mr. Abhay Anand Jena, Advocate For OP-1 & 2 : Ms. Kumud L. Das, Advocate Mr. Manoj Singh, Advocate For OP-3 & 4 : Mr. M. C. Gupta, Advocate

1. Surgeons/Gynaecologists take utmost interest and care of the patients suffering from abdominal and pelvic diseases. They are aware of the different varieties of atypical hernias and know that unusual symptoms may denote an early phase of herniosis. Otherwise, the old maxim regarding incomplete knowledge will become operative .

“What the eye doesn't see, and the mind doesn't know, does not exist.” 2. The Complaint was filed in the year 2002, by Rajmal Singh, Complainant-1 and his 5 minor sons, as Complainant Nos.- 2 to 6. It was alleged that due to negligence of the Dr. Madhu, OP-1, of Navjeevan Hospital, OP-2 and Dr. Atul Aggarwal, OP-3, of Shivam Hospital, OP-4, Smt. Krishna Singh, wife of Complainant-1 died. The complainant-1 died during the pendency of this case, hence, the LR’s are brought on record. The Facts: 3. Mrs. Krishna Singh, (herein referred to as, “Patient”) was suffering from abdominal pain, she was told by some doctors about the removal of uterus. Hence, in May 1999, she visited Dr. Madhu Gupta (the OP-1) who advised her ‘not to worry and that there was no need, for the present, for removal of uterus (Hysterectomy) and advised medication. Thereafter, again on 14.08.1999 she, with her son visited OP-1 at Navjeevan Hospital (OP2) due to severe stomach pain. After performing ultrasound of lower abdominal at Shivam Nursing Home OP-1, reported as “possibility of Twisted Ovarian mass cannot be entirely ruled out sonographically and needs to be investigated further (Annexure -3). The OP-1 admitted her for observations, administered painkillers, IV fluids and discharged her on the same evening. Severe pain again started at 1.00 AM of 15.08.1999, the patient was again admitted to OP-2 at 6 am. The OP-1, on examination insisted to perform urgent surgery, but the Complainant no.1 did not consent to the same. He left his wife in the care of OP-1, along with his minor son, and went to Meerut to bring his mother-in-law, but on his return in the evening, he was surprised to know that OP-1 had operated his wife at 2 PM, who,landed her in an extremely serious condition. The OP-1, in collusion with OP-3, performed operation, without anybody’s consent, it was performed in the Labour Room at OP-2, without having any proper facilities, hence, developed septicemia and became more critical. Hence, on the same evening, at 11 p.m., the patient was shifted to ICU at Shivam Hospital, the OP-4. The discharge slip of OP-2 is Annexure-5. She was in ICU, kept on ventilator in OP-4, from 16.8.1999 to 10.09.1999. As, there was no improvement at OP- 4, the complainant no.1, shifted his wife to Batra Hospital, New Delhi on 10.9.1999. Unfortunately, after 10 days, on 20.9.1999, she expired due to septicemia. The death summary dated 20.9.1999 (Annexure -6) confirmed that there was overwhelming sepsis with MODS. The Complainant No. 1, sought entire medical records from OP- 1, through his letter dated 14.02.2000 (Annexure 7), but there was no response. Complainant alleged negligence on the OP-1 to OP-4, that the death of his wife was due to the surgery which was done unnecessarily, the diagnosis was wrong; operation was performed in labour room, without any consent. There was imperfection, shortcoming and inadequacy in nature and performance of operation and also in post-operative care. Complainant filed a complaint before this commission against the OPs and prayed to fix the contractual and tortuous liability, jointly and severally. Complainant prayed for compensation of Rs.24,79,453/- as detailed in Annexure 8, along with interest @ 24% per annum, from the date of filing of this complaint. Also, prayed for interim directions to produce medical records and to appoint a local commissioner to examine labour room of OP-2. Defence:

4. The Opposite parties doctors OP-1 and OP-3 resisted the complaint, filed their versions and affidavit evidences. They have denied any negligence or lapses on their part during diagnosis, operation and post-operative management. The death occurred due to septicemia after about 1 month at Batra Hospital, hence they should not be held liable, and prayed for dismissal of complaint. 5. In the affidavit evidence of OP-1 Dr. Madhu Gupta, submitted that, the patient was examined by her in the month of May 1999 during consultation. The patient had got herself examined elsewhere, and produced 2-3 ultra sound reports and on OPD papers of other doctors advised her hysterectomy for a tumor in the uterus. The OP-1, carefully examined the patient, which revealed that the patient had a small mass in the left fornix (ovarian cyst) with normal size uterus. Hence, OP-1 advised her of no necessity for any surgery, immediately, however cautioned her that, she may have to undergo an operation in case the size of the ovarian cyst increases or if there is any twisting of the cyst or if there arises any menstrual problem leading to acute pain. On 14.08.1999, she had acute abdominal pain; her husband brought her to OP-1. After examination, OP-1 treated her by IV fluids and by analgesics and discharged her on same day. Since the patient was not in a condition to move, a portable ultrasound machine from Shivam Ultrasound Centre was arranged .The ultrasound was performed and it revealed, that the “possibility of Twisted Ovarian mass cannot be entirely ruled out sonographically and needs to be investigated further” (Annexure -3). 6. Again, on the next day, i.e. 15.08.1999, patient’s husband brought her to OP-2, nursing home, at 6 am in serious condition, with complaints of severe abdominal pain, sweating and vomiting. The patient and her husband insisted the OP-1 to do surgery to relive her pain. Thereafter, her husband without botheration, left her, all alone, in the nursing home, under the care and custody of OP-1 at OP-2. Meanwhile, OP-1 carried out all necessary investigations, blood tests and thorough physical examination of the patient. Despite painkillers and intra venous fluids, condition of the patient was not stabilizing and she continued to be in deep pain, agony. OP-1 sought assistance of OP- 3, after going through previous history and USG report; they arrived at a conclusion, that the patient had a twisted ovarian cyst, which warranted for an emergency laparotomy operation. As, further delay could prove fatal for the patient, the OP-1 and OP-3, took a bonafide decision and proceeded for the surgery, without waiting for the relatives to give their consent. According to OPs, they have acted, as per medical ethics, hence no negligence. OP-1 and OP-3 submitted their clinical and operative findings, in their affidavit, produced the hospital records. 7. OP 1 and 3 submitted that, while performing the operation, it was found that the patient had a strangulated hernia. Mere physical examination or by carrying the investigatory tests, it was not possible, for OP-1 or for any other qualified medical practitioner, to have detected and diagnosed a strangulated hernia. On further examination, it was aggravating in nature, which demanded emergent care, therefore, the hernia was cured and the said operation was performed by OP-3, who is a qualified General Surgeon, duly experienced and competent to perform such emergency operations. Therefore, it was farsightedness and bonafide attempt by the OPs, which saved valuable time. The operation was successfully performed; the condition of the patient was improved, after the operation. Some post-operative complications are normal and do take place, generally. 8. OP-1 submitted that during post-operative stage, patient had some respiratory discomfort, for which, she was provided oxygen support. However, OP-1 and OP-3, after clinical assessment, suspected that she may land up in endo-toxic shock and associated complications. Therefore, the patient was advised to be shifted to Shivam Hospital and Heart Centre on 16.08.1999, at 8.00 p.m., for further post-operative care and treatment. Hence, on the same evening, at 11 pm, the patient was shifted to ICU at the Shivam Hospital, the OP-4, and in ICU, she was kept on ventilator and her treatment was continued up to 10.09.1999. However, on 10.09.1999, at the request of the Complainant/husband, the patient was discharged from the Shivam Hospital; however, the patient and the Complainant were duly explained of the consequences of shifting her to another hospital. Thereafter, her husband shifted her to Batra Hospital, wherein she died on 20.09.1999. Hence, OP-1 & 3 submitted that there was no nexus between the performance of the operation by them and the death of the patient at Batra

Hospital. At the Shivam Heart Care Center (OP-4), the patient had shown signs of improvement, and was able to perform all her normal activities, on her own. The patient had not expired due to septicemia, resulting from the operation, performed on 15.08.1999, but expired, after a long gap, of more than a month, from the date of the operation, due to multiple causes. 9. The OP-1 further submitted that all the treatment, as detailed above, was offered by her, at free of cost and on humanitarian grounds. The OP-1 further submitted that her nursing home (OP-2), has well, past record of successfully performing various minor and major operations. Therefore, there is no negligence by the OP-1 and OP-3, in treating the patient and during the postoperative care.

ARGUMENTS:

10. We have heard the arguments, vehemently advanced by the Counsel for both the parties. The counsel for complainant stressed the point that, “The OP 1 has conducted the operation, without consent, which resulted in septicemia and death, was due to consequences of unhygienic hospital/labour room conditions of OP-2. The OPs are negligent, who have not followed the standards of medical practice. The counsel for the complainant brought our attention to the letterhead of OP-2 (Annexure 4/Ex.CW1/2) which describes OP-2, as a Centre of family planning procedures. Also, submitted few medical literatures on the subject of Diagnosis of Incision Hernia, the Septicemia shock. The Counsel for the Complainant relied upon few Judgments of Hon’ble Supreme Court, which are as follows: a) V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr (2010) 5 SCC 513. b) Cipla Limited Vs. Commissioner of Central Excise, Bangalore (2010) 5 SCC 534. c) Ramesh Chandra Agrawal Vs. Regency Hospital Limited & Anr (2009) 9 SCC 709. d) PGIMER Vs. Jaspal Singh And Others (2009) 7 SCC 330. e) Savita Garg (Smt.) Vs. Director, National Heart Institute (2004) 8 SCC 56. 11. The counsel for the OP-1 vehemently argued that the OP-2/Navjeevan Hospital has got good reputation, fully equipped and was having facilities to conduct major and minor surgeries. Hence, totally denied that the operation was performed in the labour room. The Counsel brought our attention to the office copy, having performed operations, from July 1992 to December 1999; (Exhibit OP.1/3). He argued that both the OPs acted as per standards of medical practice, during the course of diagnosis, operation and follow up. Hence, there was no negligence. Arguments were further advanced on the point of “No Consent”. The counsel submitted that it was due to the careless attitude of the husband of patient, who left her in the hands of OP-1, without any attendant/family member. When, the condition of the patient critically aggravated, the OPs performed the emergency exploratory laparotomy operation, without waiting for Consent. It was done, in good faith of the patient and to protect her life. It was performed for therapeutic and diagnostic purpose. During surgery, it was found that the patient had strangulated hernia, which was not possible to diagnose earlier physical examination or by any other investigations or with the symptoms of the patient. The hernia was repaired by OP-3 with due care and precautions. Counsel submitted that due to the operation patient was saved from the pre-operative shock. 12. He further argued and denied that the said operation was a cause for Septicemia, which ultimately resulted into the death of the patient/deceased. There is no nexus between the performance of the operation and the death of the patient. In fact, the patient unfortunately expired, after a long gap, after performance of the operation due to multiple causes. The Counsel further contended that, her condition might have deteriorated further at the Batra Hospital, who failed to take proper care of the patient, hence developed the fatal conditions, like Pyopneumothorax, ARDS and MODF. It was the Complainant/Husband of patient who acted in collusion with the Batra Hospital. The Batra Hospital has not been impleaded as a party, who, in order to hide their own acts of negligence and misconducts. Hence, OPs could not be held responsible. 13. To prove his contentions ,the counsel for OPs brought our attention to Dr. Kadam’s Expert opinion (Annexure R-2) dated 6.2.2012, produced an extract from Bailey and Love’s Text book of Surgery, 12th edition, page 1078 and Farquahrson’s Textbook of Operative Surgery(Annexure 4). He relied upon several judgments of Hon’ble Supreme Court namely; i. State of Punjab Vs. Raj Rani (2005) 7 SCC 22. ii. State of Punjab Vs. Shiv Ram (2005) 7 SCC 1. iii. INS. Malhotra Vs. Dr. Prabha Manchanda (2008) 4 SCC 705. iv. Martin F D’Souza Vs. Md. Ishfaq (2009) 3 SCC 1. v. Samira Kohli Vs. Dr. Prabha Manchanda (2008) 2 SCC 1. vi. C. P. Sreekumar Vs. S. Ramanujan (2009) 7 SCC 130. vii. Jacob Mathew Vs. State of Punjab (2005) 6 SCC 1

14. The counsel for OPs further submitted that, the Complainant No. 1 passed away on 13.08.2006, without giving any evidence in the case, his affidavit only, is on record. The affidavit of Complainant No. 2, who was minor at the time of the incident, is a mere narration of facts, as already stated in Complaint. Therefore, no allegation in the complaint has been proved. The Complainant No. 2 has no personal knowledge of the averments or allegations made in the complaint. His affidavit of evidence is based on mere hearsay, which ought not to be considered at all. The evidence of OPs has gone un-rebutted. Hence, prayed for dismissal of the complaint.

Findings and Discussion: 15. We have perused the affidavit evidences on file, the hospital records like case sheet, discharge summaries, nursing notes, the opinion given by one, Dr. Kadam and the relevant medical literatures, submitted by the parties. It is worth to understand the sequence of events in this case which will lead us towards a conclusion. We have carefully perused the affidavit of OP-1 & 3 and the indoor Patient Record Slip of OP-2 (pages 1 to 9) submitted by OP-2. The clinical notes written by OP-1 are reproduced as: On Date 14.08.1999 3 pm Has come with small child, c/s severe pain lower abd-2 hrs. O/E: Marked tachycardia, Sweating ++. P/A: Tenderness all over the abdomen.BS +,No rigidity PV: Uterus size not made out, Tenderness on exam. Diagnosis: ? Torsion of ovarian cyst. Adv: Injection Diclonac , IM stat , to be kept under observation. She has given IV medications, adv urgent USG abdomen. In the evening discharged at 6 PM on request, and asked her to come if pain recurs. On Date 15.8.1999,

6 AM: Readmitted. C/o severe pain, vomiting for 2 hrs. O/E: Sweating +++, Dehydration, Pulse 120/min,BP-110/80. P/A: Tenderness over whole abdomen. Bowel sounds +; Heart & Lungs:NAD PV: same as on 14.08 Provisional Diagnosis: Torsion Ovarian Cyst … … xxxxxx……. Adv inj fortwin ,Phanargan,perinorm and aciloc, started IV Ampilox,Garramycin. Blood investigations advisied…..xxxx…… 10 am: Continuous bouts of pain and vomiting. Adv: Laparotomy after lab reports, relatives to be informed and Consent. At 2 PM: Laparotomy done under spinal anesthesia. Anesthetist: Dr. Ajay Agarwal Surgeon: Dr. Madhu Gupta and Dr. Atul Agarwal. Abdomen was opened by lower mid-line incision. On exploration, it was found there was hernia the bowel contents of which were discolored and hyperemic. Bowels observed for viability. Then those bowels were repo- sited back in the abdominal cavity and herniorraphy done. Catheterization and Rhyle’s tube. 16. After the operation, the patient was put on higher antibiotics, pain killers, with proper dosage, and maintained the nursing charts for pulse, BP, intake/output etc. At 5.30 : BP- 80/60, Pulse 140/min and dyspnea. Urine output was nil. Patient’s condition remained same, till 10 pm,

11 P.M. : Patient being shifted to Shivram Hospital for better intensive care.

17. It is pertinent to note from the clinical and operative notes as stated supra, the OPs came to know about existence of “Strangulated Incisional Hernia” during operation only. It was not a case of torsion of ovarian cyst. During final arguments, along with the counsel for OPs, the OP-1 and 3 were also present in person, to assist him and the Bench. To get more clarification on the diagnosis, the Bench posed a question to OP-3 surgeon, as under:- i) Whether, there is any difficulty in diagnosing case of Hernia Clinically, especially, Strangulated Incisional Hernia?

ii) Whether, a normal, reasonable MBBS doctor/Gynecologist /Surgeon can miss to diagnose hernia and Torsion ovarian cyst?

The OP-3 answered: It is commonly difficult to diagnose clinically, the Strangulated Hernia. 18. We have perused the written arguments submitted by the OPs, para (h), which is relevant, reproduced as below: “ Laparotomy revealed that the patient had a strangulated hernia, which could not be detected either by physical examination or by investigatory tests. It is possible that hernia goes undetected on physical examination. Laparotomy is thus an investigatory as well as curative method, and exactly determines the cause of abdominal pains”

We are not convinced, but rather surprised by such submissions made by OP-1 & 3 and their counsel. In addition, it is surprising and beyond our imagination that How, a qualified Sonologist has failed to diagnose, Hernia? his USG report dated 14.08.2000, is also erroneous one. It appears that mind of OP-1 was a prejudiced, hence she repeatedly diagnosed the patient as, “Torsion Ovarian Cyst” instead of Strangulated Hernia.

Medical Literature-Diagnosis of Hernia:

19. To ascertain, whether the diagnosis of incisional/ strangulated hernia is difficult, we have referred to standard medical books on operative surgery, and medical literatures,. The relevant extracts are reproduced below:

 HERNIA–Signs and Symptoms

A hernia is “the protrusion of an organ, organic part, or other bodily structure, through the wall that usually contains it.” Most hernias are diagnosed by the presence of a bulge in the abdominal wall. A physical change occurs in a patient's habitus. These persons usually have little discomfort or pain, unless the hernia is incarcerated or strangulated. However, a close review of their history will reveal that many persons with hernia have experienced vague pain or discomfort, particularly with physical activity.

 Diagnosing an Incisional Hernia Incisional hernias happen after an abdominal surgery and may seem to appear and disappear, which is referred to as a "reducible" hernia. The hernia may not be noticeable, unless the patient is involved in an activity that increases abdominal pressure, such as coughing, sneezing, pushing to have a bowel movement, or lifting a heavy object. The visibility of a hernia makes it easily diagnosable, often requiring no testing outside of a physical examination by a physician. The physician may request that you cough or bear down in order to see the hernia while it is "out".

Routine testing can be done to determine which area of the body is pushing through the muscle. If the hernia is large enough to allow more than the peritoneum to bulge through, testing may be required. When is, Incisional Hernia, an Emergency?

A hernia that gets stuck in the obstructed position is referred to as an incarcerated hernia. While an incarcerated hernia may not be an emergency, medical care should be sought, as it can become an emergency, quickly.

20. Thus, it is clear that the incisional strangulated hernia is easily diagnosable by the patient’s symptoms and signs. At, first instance, in the month of May 1999, the patient was examined by OP-1, having acute abdominal pain. Again, on 14.08.1999, patient was presented with acute abdomen with sweating and vomiting. She has relied entirely upon the USG report. Even, by Per vaginal (PV) examination, she concluded as a case of torsioned ovarian cyst. Hence, it is a case of failure to diagnose/wrong diagnosis. It is pertinent to note that, at the first instance itself, in May 1999, the patient’s abdominal pain was not properly assessed by OP-1. There might be possibility of incisional obstructed hernia at that time. Subsequently, there was recurrence on 14.08.2000, which further progressed to obstructive/ incarcerated hernia and finally presented as Strangulation, on 14-15.08.2000 leading an emergency situation.

21. We do not agree with the submissions made by OP-3 Surgeon, that, the diagnosis of hernia is difficult. It is not a prudent submission. In-fact, as per the literature (supra), it is a spot diagnosis, an ordinary doctor (Surgeon or Gynecologist) can diagnose, without any difficulty. His submission appears to support the OP-1 whose diagnosis was wrong. Hence, it is a deficiency in service.

22. It is further surprising to note that the OP- 1 & 3 have not adopted a standard surgical management in the case of Strangulated hernia. The operative notes and in affidavit it clearly mentioned that; “ On exploration, it was found there was hernia the bowel contents of which were discolored and hyperemic. Bowels observed for viability. Then those bowels were repo-sited back in the abdominal cavity and herniorraphy done.

23. We have also perused the medical text, Annexure R/3 produced by the OP, about “Strangulated Hernia”. Strangulated Hernias, a hernia becomes strangulated when the blood-supply of its contents is seriously impaired, rendering gangrene imminent. Gangrene may occur as early as five or six hours after the onset of the first symptoms of strangulation.

24. To know more about the Surgical Management of Strangulated Hernia, we have referred the Farquharson's Textbook of Operative General Surgery, Sabiston Text Book of Surgery, “hernia”, fourth edition, J.B. Lippin Cott Co., Chapter 17-

The classic signs of strangulation are continuous abdominal pain, tachycardia, fever and lack of bowel sounds, does not rule out the possibility of vascular compromise. Although strangulated hernias are uncommon, they are the most important type of hernia because of their high morbidity and mortality risk. Lack of blood supply results rapidly in gangrene (necrosis) because the ischemia usually is acute and local in nature. The bowel appears dark blue, green, or black. At this stage, restoration of blood flow cannot salvage the intestine, because of tissue death. The mucosal barrier to bacterial invasion breaks down, allowing gram-negative aerobic and anaerobic bacteria and endotoxin to invade tissue and blood. Segments of intestine that are returned to the abdomen in this condition usually perforate within 48 hours. This may occur spontaneously, resulting in spontaneous reduction followed by diffuse. The presence of abscess or intra-abdominal infection, necrotic tissue, or infarcted bowel may lead to bacterial translocation, endo-toxemia with systematic sepsis, or frank septic shock.

There are four goals for surgery for strangulated hernia: 1) To remove gangrenous tissue 2) To prevent further sepsis 3) To relieve obstruction 4) To repair the hernia defect.

Accordingly, the line of treatment and surgery should be very specific, if the loops are ischemic, proper assessment for viability is necessary, then the, loops be pushed in abdomen. If there is gangrene, resection of gangrenous part of intestine and followed by proper anastomosis, is the standard procedure.

But, in the instant case, the medical records on file did not show operative details, the procedure, details of assessment of viability.

25. Let us turn to the point of ‘The importance of obtaining informed consent.’

OPs admitted that the consent for operation was not taken in this present case, because of emergency. Counsel for OPs argued that, it was a case of an emergency; also at that time, the complainant-1(husband of patient) was not present and not traceable. The OPs performed operation to save the life of patient. Such arguments are bereft of merits. The medical records show that, OP-1, examined the patient at 10 am, and noted that, the patient had Continuous bouts of pain and vomiting. She advised for “Laparotomy after lab reports, relatives to be informed and Consent.”

26. The operation was conducted at 2 pm. There was sufficient time of 4 hours, in between. The patient was conscious and she herself was able to give consent. Therefore, in our view, the OPs failed to take the consent, it is a per se negligence. We place reliance upon Samira Kohli’s Case, in which the Hon’ble Supreme Court dealt extensively on the subject of “Consent”. Similarly, in this case, the patient was neither a minor nor mentally challenged or incapacitated. As the patient was a conscious and competent adult, there was no question of waiting for her husband or someone else, giving consent on her behalf. 27. Exceptions to the Informed Consent Doctrine, that The Courts have recognized four situations in which consent is required, but informed consent (that is adequate disclosure) is not necessarily required during (i) emergencies, (ii) the therapeutic privilege, (iii) patient waiver and (iv) treatment of criminal suspects or patients in custody. A right of action for lack of informed consent is limited to non-emergency treatment. An emergency situation has been defined as one, when the patient is incapable of consenting and the harm from the failure to treat is greater than any harm posed by the treatment. The existence of emergency may be a question of fact. 28. Constituents of Medical Negligence is now well established by a plethora of Rulings of the Hon’ble Supreme Court of India in Jacob Mathew vs State of Punjab[(2005) 6 SSC 1] and in Indian Medical Association Vs V.P.Shantha [(1995) 6SSC 651]. In the Bolam’s case (Bolam Vs. Frien Hospital Management Committee (1957)1 WLR 582) it was also held that a doctor is not negligent if he is acting in accordance with standard practice, merely because there is a body of opinion who would take a contrary view. To decide the case of medical negligence; essentially three following principles are applied; (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time. (ii) Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field. (iii) Whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated. 29. Our considered view on the point No (i) is YES, the OP-1 is Gynecologist and OP-3 is a Surgeon, who are qualified and possess medical skills. Regarding the point nos.(ii) & (iii), we opine as “ NO”, as both the OPs did not adopt standards of practice, in proper diagnosis and further surgical procedure. 30. In Hucks v. Cole (1968) 118 New LJ 469, Lord Denning stated that a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. 31. Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 observed that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is, whether, he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. 32. In Jacob Mathew as well as Martin F D'Souza case , Hon’ble Apex Court quoted with the approval the opinion of Mac Nair, J in Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118(QBD) : Wrong Diagnosis-Clinical and Ultra-sonography

33. On perusal of Ultrasound Report (USG) the relevant findings of ovary reproduced below: Right ovary is sonographically normal. A heteroechoic mass measuring approx. 8.9 cms. x 4.9 cms is seen at the left Hypo-gastric and & Umblical region, Sonographically, its origin could not be established. However, left ovary is not visualized separately. The possibility of twisted ovarian mass cannot be entirely ruled out sonographically & need to be investigated further. 34. The Sonologist Dr. Sanjay Sharma mentioned in his USG report that, a mass in Hypogastric & Umbilical region. It’s strange that, the Sonologist was also made wrong diagnosis. Hence, in our opinion the OP-4, the Shivaram Hospital is vicariously liable. Because of the USG diagnosis, on which the OP-1 relied upon, and also diagnosed it as a case of Torsion Ovarian Cyst.

35. We have perused the Annexure R-2 produced by OPs, dated 06.05.2012 issued by Dr. Vijay Kumar Kadam, MD/OBG, Medical Superintendent of Mother Child Hospital, GNCTD, Narsipur, Delhi. He has given the report on the basis of the medical records and expressed his opinion, that there was no medical negligence in diagnosis or management of this patient. The patient was treated as per established principles on the right lines. We are surprised and not convinced about the statement in the report issued by Dr. Kadam that,“Nobody could have diagnosed incisional hernia pre- operatively”

Cause of Septicemia – Death of patient:

36. It is revealed from the case notes dated 15.08.2000, that at 5.30 pm i.e. about 3½ hours, after the operation, the patient’s BP-80/60, Pulse 140/min and had dyspnea. The Urine output was nil. These are the cardinal signs of septicemic shock. Thereafter, to avoid further deterioration, the patient was shifted to Shivaram Hospital (OP-4) at 11 pm on 15.8.2000, from 16.8.2000 to 10.09.2000 treated in ICU. We have observed the discrepancies in the medical records and the submission made in the affidavit. It is pertinent to note that a certain discrepancy has crept in Medical record which shows that the patient was shifted on 15.08.2000 at 11 pm, but, the affidavit evidence of OP-3 shows that the patient was shifted on 16.08.2000. 37. “Men may tell lie, but documents cannot ”. Let us view the Death Summary issued by Batra Hospital, which is reproduced as below: Diagnosis: Postop Strangulated Hernia & Left sided pyopneumothorax, with

ARDS with overwhelming sepsis with MODF. “This lady operated for strangulated incisional hernia in a hospital at Ghaziabad,

developed septicemic shock and ARDS. She was intubated and ventilated, but as the patient was not settling, she was referred to this hospital on Ambu bag. The patient was tachypnea in poor general condition. She was intubated and ventilated. A large pyopneumothorax was detected in left side which was drained with a chest tube. But the overwhelming sepsis with MODS continued. She expired on 20.09.1999, at 9.55 a.m. despite all medical and resuscitative measures. Thus, it is a conclusive proof that, the condition of patient was not good, and at the time of shifting to Batra Hospital, she was on Ambu Bag. She was already a deteriorated case of septicemic complications, pyopneumothorax and progressing to MODS. 38. With reference to the medical literature supra, we are of considered view that, the primary cause was the undiagnosed Strangulated Incisional Hernia, leading to necrosis of bowel loops. Postoperatively she developed peritonitis, then to septicemia and further endo-toxic shock. The patient was in ICU at OP-4 for a month, never recovered in spite of treatment, and unfortunately died on 20.9.2000. Therefore, in the instant case, we are convinced that there are several shortcomings, – admittedly, both the OPs are qualified doctors, but they have not used their best professional judgment and due care during diagnosis and treatment of the patient. There was a delayed diagnosis and also it was a wrong diagnosis, by OP-1 and the Sonologist also, who failed to diagnose Strangulated Hernia correctly. We do not think that it was not an “Error of Judgment” committed by the team of doctors. 39. The treatment given to the patient was not as per the Standards of Practice. The hospital records lack several details pertaining to Operative notes, procedural aspects, etc. The OPs did not exercise reasonable competence in this case. The OPs tried to shift their onus on Batra Hospital, which is not acceptable one. We rely upon the decision of the Hon’ble Supreme Court in V.P.Shantha’s Case [(1995) 6SSC 651], and Jacob Mathew’s case, (2005) 6 SSC 1 wherein it had concluded that, “ a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.”

Another judgment of House of Lords/English Courts in Whitehouse vs. Jordan [(1981)1 All ER 267] the ruling that, "The true position that an error of judgment may or may not be negligent it depends on the nature of the error. If it is not one that would not have been made by a reasonable competent professional man professing to have the standards and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligence, if on the other hand, it is an error if such a man, acting with ordinary care, might have made, than it is not negligence".

40. Hence, with foregoing discussion, several medical literatures on the subject, we hold OP 1 and 3 liable for medical negligence as wrong diagnosis and for the surgical management of the patient which subsequently resulted into the death of patient. Further, the OPs are vicariously liable, due the negligence of Sonologist for wrong USG report. Accordingly, we pass the following order:-

The OP-1 and OP-3 are directed to pay the Complainants/LRs, jointly and severally, a total sum of Rs.10,000,00/- with interest @ 6% pa from the date of filing of this complaint, till realization. Also, OPs are directed to pay Rs.30,000/- to the Complainants/LRs, towards the litigation charges. The entire order should be complied within 90 days from the date of receipt of this order; otherwise it will carry further interest @ 9% pa, till its realization.

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

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

Mss/25 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1864 OF 2014

(From the order dated 8.1.2014 in Appeal No. 751 of 2013 of Haryana State Consumer Disputes Redressal Commission, Panchkula)

1. Shobhit Elhance S/o Gopal Elhance Flat No. 1204, Tower C Block, Delight and Slendors Freedom Park Life, Sector – 57, Gurgaon 2. Priayanka W/o Late Elhance Flat No. 1204, Tower C Block, Delight and Slendors Freedom Park Life, Sector – 57, Gurgaon …Petitioners/Complainants

Versus

1. M/s. Matrix Build Well Pvt. Ltd Through Chairman/Managing Director S.S. Group, 4th Floor, MGF, The Plaza MG Road, Gurgaon

2. M/s. Country Wide Promotions Pvt. Ltd. Through Chairman/Managing Director Regd. Office at M-11 Middle Circle, Connaught Circus, New Delhi – 110001

3. M/s. B.P.T.P. Ltd. Through Chairman/Managing Director Regd. Office at M – 11 Middle Circle, Connaught Circus, New Delhi …Respondent/Opp. Parties (OP)

(From the order dated 8.1.2014 in Appeal No. 755 and 757 of 2013 of Haryana State Consumer Disputes Redressal Commission, Panchkula)

Sanjay Kumar Singh and others Vs. M/s. Matrix Build & others

BEFORE

For the Petitioners : Mr. Rahul Sharma, Advocate

Mr. Muzamil Khurshid, Advocate

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER All these revision petitions contain common question; hence, decided by common order.

2. These revision petitions have been filed by the petitioners against the separate orders dated 08.01.2014 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 751 of 2013 – Shobit Elhance & Anr. Vs. M/s. Matrix Build Well Pvt. Ltd. & Ors., in Appeal No. 755 of 2013 – Sanjay Kumar Singh & Anr. Vs. M/s. Matrix Build Well Pvt. Ltd. & Ors. and in Appeal No. 757 of 2013 – Sanjeev Dhawan & Anr. Vs. M/s. Matrix Build Well Pvt. Ltd. & Ors. by which, while allowing appeals partly, order of District Forum was modified.

3. Brief facts of the case are that complainants/petitioners paid consideration amount for purchase of flat from OP/respondent inclusive of External Development Charges (EDC) @ Rs.261 per sq. ft. of the super area of allotted flats. It was further alleged that OP charged @ Rs.261 per sq. ft. as EDC charged above the amount of @ Rs.261 per sq. ft. already added in sale consideration. Complainants paid extra amount under protest in order to take possession of the flat. Alleging deficiency on the part of OP, complainants filed 3 complaints before District Forum. OP resisted complaints and submitted that amount was charged as per agreement and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaints and directed OP to refund Rs.2,50,000/- with 18% p.a. interest and further allowed Rs.5,000/- as litigation expenses. Both the parties filed appeals and learned State Commission dismissed appeal of OP vide order dated 7.11.2013 and allowed appeal of the complainant vide impugned order and directed OP to pay the amount of EDC charged in excess of the amount already charged as per agreement against which, these revision petitions have been filed.

4. Heard learned Counsel for the petitioners at admission stage and perused record.

5. Learned Counsel for the petitioner submitted that respondent paid EDC charges @ Rs.102.99 per sq. ft, whereas he has charged @ Rs.261/- per sq. ft. from the petitioner and learned State Commission committed error in not allowing refund of this amount; hence, revision petition be admitted.

6. Perusal of record reveals that in the complaint, complainant submitted that OP paid EDC charges to the Government @ 79.91 per sq. ft., but charged @ Rs.261/- per sq. ft. from the Complainant. On the contrary, in memo of revision petition complainant/petitioner submitted that OP deposited EDC charges @ Rs.102.99 per sq. ft. arrived on the basis of RTI information dated 23.10.2009. As per information dated 23.10.2009, interim rate of EDC on 30.11.2004 was Rs.78.46 lakhs per acre. By this RTI information it cannot be inferred that OP paid EDC charges @ Rs.102.99 per sq. ft. As per letter dated 23.10.2009, it was interim rate, what was the final rate is also not clear. In such circumstances, on the basis of RTI information dated 23.10.2009, it cannot be presumed that OP deposited EDC charges @ Rs.102.99 per sq. ft. with the Government and charged excess amount from the petitioner.

7. Paragraph 3 of the impugned order runs as under:

“ During the course of hearing learned Counsel for Matrix Build Well, on the instructions sought from them, has made a statement at bar that the EDC charged at the rate of Rs.261/- per sq. ft. that is, over and above of the EDC already included in the sale consideration, was charged in excess and the Matrix Build Well is ready to pay the amount charged in excess so far as the EDC amount is concerned. In the fact of it, learned Counsel for the appellants has stated that the appellants are satisfied if the said amount of EDC charged, that is, Rs.261/- per sq. ft. by Matrix Build Well is returned to them by way of draft within one month from the date of receipt of this order and as such do not press their complaint”.

8. Perusal of aforesaid paragraph makes it clear that learned Counsel for the petitioners admitted before learned State Commission that he will be satisfied if the excess amount of EDC above Rs.261/- per sq. ft. is returned by OP to them; they do not press their complaint. Learned State Commission passed impugned order on the basis of submission by Counsel for the petitioner which amounts to consent order against which, no revision petition is maintainable.

9. Consequently, revision petitions filed by the petitioners dated 08.01.2014 passed by the State Commission in Appeal No. 751 of 2013 – Shobit Elhance & Anr. Vs. M/s. Matrix Build Well Pvt. Ltd. & Ors., in Appeal No. 755 of 2013 – Sanjay Kumar Singh & Anr. Vs. M/s. Matrix Build Well Pvt. Ltd. & Ors. and in Appeal No. 757 of 2013 – Sanjeev Dhawan & Anr. Vs. M/s. Matrix Build Well Pvt. Ltd. & Ors. are dismissed at admission stage with no order as to costs.

………………Sd/-……………

..……………Sd/-………………

(From the order dated 17.12.2007 in First Appeal No. A-07/663 of Delhi State Consumer Disputes Redressal Commission)

Tata Motors Ltd. Unit No. 305, Signature Tower, Tower B IInd Floor, South City – 1, NH- 8, Gurgaon, Haryana

... Petitioners

Versus

1. Shri Manoj Gadi, H. No. 91, Pocket A-3, Sector-8, Rohini New Delhi – 110064.

2. Sanya Automobiles Pvt. Ltd. C-101, Mayapuri Industrial Area, Phase-II, New Delhi.

… Respondent(s)

BEFORE

For the Petitioner(s) Mr. Jasmeet Singh, Advocate

For the Respondent–1 Mr. Manoj Gadi, In person

For the Respondent–2 NEMO

Protection Act, 1986 against the impugned order dated 17.12.2007 passed by the Delhi

State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in

FA No. A-07/663, “Tata Motors Ltd. versus Manoj Gadi & Anr.”, vide which, the order dated 25.07.2007, passed by the District Consumer Disputes Redressal Forum, Sheikh

Sarai-II, in complaint no. DF-VII/117/07 was modified. The District Forum vide said order had allowed the complaint of complainant/respondent no. 1, directing the petitioner/OP No. 2 to replace the defective car with a new car of the same model with fresh warranty and also to pay a sum of `5,000/- as compensation for mental and physical harassment and `5,000/- as cost of litigation. The State Commission vide impugned order directed that instead of replacing the defective vehicle, the petitioner

M/s. Tata Motors shall refund the cost of the vehicle to the complainant on the return of vehicle, after completing the formalities of transfer of registration certificate in the name of the petitioner. It is against this order that the present petition has been made.

2. Brief facts of the case are that respondent no. 1 / complainant purchased a Tata

Indigo LS- Diesel Car on 29.06.2006 from respondent no. 2 M/s. Sanya Automobiles

Pvt. Ltd. According to the complainant, the petitioner and respondent no. 2 sold a second hand car to him that started giving problems immediately after purchase. He reported the matter to the OPs and he was assured that the defects in the vehicle would be removed. However, the problem could not be rectified, although the vehicle was subjected to repeated repairs. The power steering of the vehicle was changed, but still the problem continued. On 23.09.2006, the rack and pinion were changed; on

18.11.2006, steering column was changed; on 8.01.2007, power steering and pumps were changed, but the defects could not be rectified and noise continued from the steering as well as from the shockers. Within six months of purchase, the paint from the roof of the vehicle started peeling off, giving rise to the suspicion that an old car had been sold after repainting. The OPs denied the allegations levelled by the complainant. The District Forum after taking into account the evidence of both the parties, directed that the vehicle should be replaced with a new car by the petitioner and a sum of `25,000/- as compensation for mental harassment and `5,000/- as cost of litigation should be paid to him. The present petitioner preferred appeal before the

State Commission against this order. Vide impugned order, the State Commission modified the order passed by the District Forum and directed that the cost of the vehicle should be refunded to the complainant after completing the formalities of transfer of registration certification in the name of the petitioner.

3. During the course of hearing before us, notices were sent to complainant

/respondent no. 1 and respondent no. 2 dealer for appearance. The complainant/respondent no.1 appeared in person. None appeared on behalf of respondent no.2. On 08.08.2013, at the time of hearing before us, the complainant stated that he had already sold the vehicle, in question, on 25.12.2011.

4. The arguments in this case were finally heard on 18.09.2013. The learned counsel for the petitioner stated that the complaint was required to be dismissed, because the complainant / respondent no. 1 had already sold the vehicle without the permission of the Court. He has drawn our attention to the order passed by the

National Commission in “Rajiv Gulati versus M/s. Tata Engineering & Locomotive

Company Ltd. & Ors.” [FA No. 466 of 2008 decided on 23.04.2013]. In the said case, the National Commission observed that since the vehicle had been sold during the pendency of the proceedings before the consumer fora, the complainant was not entitled for any compensation in the absence of material evidence of manufacturing defect in the vehicle.

5. In reply, the complainant/respondent no. 1 stated that he had sold the said vehicle as it was getting rusted. He stated that there were defects in the vehicle from the very beginning. Many parts of the vehicle were changed by the OPs including the power steering. He was, therefore, entitled to get compensation for the defects in the vehicle.

6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The State Commission vide impugned order directed that the petitioner should refund the cost of the vehicle on the return of the vehicle after completing the formalities of transfer of registration certificate in the name of the petitioner. Under the present circumstances, when the vehicle has already been sold by the complainant/respondent no. 1, the execution of the order passed by the State Commission is not possible, because the vehicle no longer remains with the complainant.

7. The complainant/respondent tried to explain his action of selling the vehicle saying that he had to sell the same as the vehicle, being old, was getting rusted.

8. It may be observed that it may not be possible for the owner of a vehicle to retain the same for indefinite period or till the proceedings pending in the courts are finalised. The Transport Authorities also do not provide the registration certificate or fitness certificates beyond a particular age of the vehicle. It can also be stated that the status of complainant as consumer, vis-a-vis, the OPs has to be considered on the day of the cause of action or filing of the complaint and a person may not lose that status merely because of the sale of the vehicle due to any reason. However, in the current case, the facts and circumstances show that the respondent should not have sold the said vehicle during the pendency of the proceedings before the National

Commission. As observed above, it is not possible to have the order of the State

Commission executed because the vehicle no longer remains with the petitioner. The factum of any manufacturing defect being there or not, can also not be ascertained by any expert evidence at this stage. In the case of Rajiv Gulati versus M/s. Tata

Engineering & Locomotive Company Ltd. & Ors.” (supra), it has been clearly stated that when the vehicle had been sold, it was not possible to establish by cogent evidence that it suffered from any manufacturing defect. In this very case, it has been observed that the depreciated value of the vehicle is presumed to be less than the sale- consideration. This may not be the position in the present case but still, the complainant should have sought the permission of the court before selling the vehicle.

9. Under these circumstances, when the order of the State Commission cannot be implemented due to the sale of the vehicle by the complainant, this revision petition is liable to be allowed and we order accordingly. The consumer complaint is ordered to be dismissed with no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

MEMBER RS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2527 OF 2013

(From the order dated 17.05.2013 in First Appeal No. 377/2013 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

1. Shriram General Insurance Co. Ltd. Divisional Office E-8, EPIP, RIICO Industrial Area, Sitapura, Jaipur Through General Manager 2. Shriram General Insurance Co. Ltd. Shri Sanwaria Tower, Third Floor, 6 Kailash Colony, Near Bhagatsingh Circle Alwar through Branch Manager

…Petitioners/Opp. Parties (OP) Versus

Mangeram S/o Sh. Bhikharam R/o 8, Kharkari Road, New Lane, Bhiwani, Present R/o 397, Surya Nagar, Alwar

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioners : Mr. Naveen Kumar Chauhan, Advocate

For the Respondent : Mr. Pawan Kumar Ray, Advocate

O R D E R

This revision petition has been filed by the petitioners against the order dated 17.05.2013 passed by the Rajasthan State Consumer Disputes RedressalCommission, Jaipur (in short, ‘the State Commission’) in Appeal No. 377 of 2013 – Shriram General Insurance Co. Ltd. Vs. Mange Ram by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent’s motorcycle HR 16 G

8217 was insured by OP/petitioner for a period of one year from 29.12.2010 to

28.12.2011. Motorcycle was stolen on 30.01.2011. FIR was lodged, but FR was submitted which was accepted by the Court on 11.03.2011. Complainant intimated to

OP immediately and later on submitted claim which was repudiated on the ground of delayed information by 42 days to the OP. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP resisted complaint and submitted that as FIR was lodged after 7 days and intimation of theft of motorcycle was given after

42 days, complainant violated Condition No. 1 of the insurance policy; hence, 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 Rs.29,963/- and

Rs.2,000/- as litigation expenses. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed. 3. Heard learned Counsel for the parties finally at admission stage and perused record.

4. Learned Counsel for the petitioner submitted that order passed by learned State Commission is not a speaking order; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that as District Forum has already discussed all the facts, order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. Perusal of impugned order reveals that this order neither contains any fact, nor law, nor any reason for upholding order of District Forum. This order has not met with grounds raised in memo of appeal. Petitioner has taken the ground of delayed FIR and delayed information to Insurance Company. Learned State Commission ought to have dealt with all the contentions raised by the petitioner in the memo of appeal.

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

that the State Consumer Disputes Redressal Commission, Haryana

at Chandigarh is passing a standard order in the following terms:

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

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

legal infirmity in the detailed and well-reasoned order passed

by District Forum, Kaithal. Accordingly, we uphold the

impugned order and dismiss the appeal’.

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

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

refer to the pleadings of the case, the submissions of the counsel, necessary points for consideration, discuss the evidence and

dispose of the matter by giving valid reasons. It is very easy to

dispose of any appeal in this fashion and the higher courts would

not know whether learned State Commission had applied its mind

to the case. We hope that such orders will not be passed by the

State Consumer Disputes Redressal Commission, Haryana at

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

the Commission”.

7. In the light of above judgment, it becomes clear that Appellate Court while deciding an appeal is required to deal with all the arguments raised by the appellant and as learned State Commission has not dealt with arguments of the appellant, it would be appropriate to remand the matter back to the learned State

Commission for disposal by speaking order after dealing with all the contentions and arguments raised by the petitioner in memo of appeal.

8. Consequently, revision petition filed by the petitioners is allowed and impugned order dated 17.05.2013 passed by the learned State Commission in Appeal No. 377 of 2013 – Shriram General Ins. Co. Ltd. Vs. Mangeram is set aside and matter is remanded back to the learned State Commission for deciding it by speaking order after giving an opportunity of being heard to the parties.

9. Parties are directed to appear before the learned State Commission on 7.7.2014. A copy of this order be sent to the Rajasthan State Commission, Jaipur.

………………Sd/-……………

..………………Sd/-……………

REVISION PETITION NO. 1259 and 1260 OF 2014 (Against order dated 03.09.2013 in First Appeal No. 18/2010 of the State Consumer Disputes Redressal Commission, Punjab, Chandigarh) WITH IA/1395/2014 (Stay)

1. Worldwide Immigration Consultancy Services Ltd. (WWICS), SCO 2415-16, Sector- 22, Chandigarh

2. Worldwide Immigration Consultancy Services Ltd. (WWICS), Defense Colony, Jalandhar Through its represented through its Authorized Rep Sh. Bharat Lal

…Petitioners

Versus

Sh. Charanjit Singh SRA S/o Sucha Singh R/o B-20 MCH, Guru Nanak Avenue, Hoshiarpur ….Respondent

BEFORE:

For the Petitioners : Mr. Pradeep Dewan, Senior Advocate With Mr. Sunil Goyal, Advocate

PRONOUNCED ON 8th MAY, 2014 ORDER

PER DR. S.M. KANTIKAR, MEMBER 1. This judgment will decide two Revision Petitions which are filed against the impugned orders of the State Consumer Disputes Redressal Commission (in short, ‘State Commission’)in Appeal No. 18 of 2010 and Appeal No. 39 of 2010 .The State Commission dismissed the Appeal filed by the Petitioner and allowed the Appeal filed the Respondent for enhancement of compensation against order of the District Consumer Disputes Redressal Forum (in short, ‘District Forum’).

2. Facts in brief as; the OPs Company Worldwide Immigration Consultancy Services Ltd are service provider for immigration, and claimed themselves as experts in immigration to Canada. Accordingly, relying upon that representation, in July 2002, complainant Mr. Charanjit Singh approached the office of OP, with a request to forward his case for Canada Immigration. The complainant was working as CTO in Punjab and Sind Bank and was duly qualified for categories which could have applied for permanent residence in Canada, under Immigrating SKILLED WORKERS CATEGORY. The OPs, on 18.07.2002, got signed agreements from him at Hoshiarpur itself and as per their representation and the agreements, they were to prepare his case as per the categories which were entitled to file application for permanent immigration and to do correspondence with the Canadian High Commission (in short, “the CHC”). He paid fees of Rs.65,000/- and was told by the OPs that his case was likely to be finalized within two-three years and that he should wait for his number and that the status shall be reported to them by the CHC. He waited for three years and in the year 2005, approached the OPs and inquired about his status. He was told that since there were a large number of applications for immigration from India, his case was likely to take three more years. He received a letter dated 05.05.2008 from CHC, in which it was stated that the OPs were not authorized to represent his case before it. However, he was permitted to represent his case himself. When he approached the OPs, they did not pay any heed and had not given any satisfactory reply. Thereafter, he received a letter from the CHC, stating that he was not having sufficient experience in the categories in which the application had been made. He came to know that, OP has filed his application to CHC under wrong category. Hence, due to the deficiency in service by the OP; the complainant was made to wait for six long years, due to which he lost his chance and future prospects. Hence, complainant filed a complaint before District Forum for compensation to the tune of Rs.10, 00,000/-. 3. The District Forum allowed the complaint of the Complainant/Respondent and directed the OP to refund Rs.65,000/- along with interest @ 10% and compensation and litigation expenses of Rs.10,000/-. On January, 2010, the Petitioner and Respondent filed the Appeals before State Commission, Punjab. On 03.09.2013, the Appeal filed by the Petitioner was dismissed whereas the Appeal filed by the Respondent for enhancement of compensation was allowed and a sum of Rs.3,00,000/- was awarded as against a compensation and litigation expenses of Rs.10,000/- awarded by the District Forum. 4. Against the impugned order of State Commission, this revision petition was filed. 5. We have heard the counsels of both the parties. The counsel for the OP/Petitioner argued that, the complaint is liable to be dismissed on account of non-joinder of necessary parties as M/s GSBC to whom a payment of Rs.35,000/- was made, was not arrayed as the party before the District Forum. Therefore, the OP/Petitioner company has not received any amount , hence not liable to refund the said amount. He further argued that, the District Forum, Hoshiarpur has no jurisdiction, there is no office of the company in Hoshiarpur. The Contract of Engagement between the Complainant and the OP was signed at Chandigarh. However, the Complainant did not pay the balance amount of US $ 1400 to M/s GSBC and started dealing directly with the Canadian High Commission, in violation of the terms and condition of the Contract of Engagement, therefore, the OP should not be blamed for any adverse effect . 6. We have perused the evidence on record, the agreement dated 18.07.2002 on file of this case. As per the agreement, the OPs were to assist the Complainant, in submission of application for the Permanent Residence in Canada, by assessment of education (Academic and Professional) professional skills/training and experience and were to advise him about the Canadian Immigration Rules. As per the agreement, the OPs were duty bound, while submitting the application to CHC, to satisfy them that the Complainant was having the requisite experience, under the category the application was being filed. But, the OP filed an application, under category, which the complainant was not having the requisite experience, in respect of that category. Hence, the application was refused on the ground that he was not meeting the requirements of the Immigration and Refugee Protection Regulations. This conduct of OPs is a deficiency in service. OPs cannot grab the money of the complainant, without performing any work. Due to OPs deficiency; the complainant was kept waiting for six long years, wasted a crucial time and lost his chance of future prospects. 7. We are of considered view that, the revision petitions have no merits, hence dismissed. ..………………………… (J. M. MALIK, J.) PRESIDING MEMBER

..………………………… (S. M. KANTIKAR) MEMBER Mss/7-8 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1770-1771 OF 2014 (From the order dated 04.04.2014 in First Appeal No. A/11/973 & A/12/282 of State Consumer Disputes Redressal Commission, Maharashtra, Mumbai)

ICICI Prudential Life Insurance Co. Ltd. ICICI Pru Tower, 1089, Appa Saheb Maratha marg, Prabha Devi, Mumbai-400025 Also at: Jai Tower, 4th Floor, Plot No.154/5, Akurdi, Pune-411019 …Petitioner Versus

1. Ms. Rajshri Simant Sukale C/o Mr. Rohit Malwadkar, R/o 702, Kasba Peth, Pune-411011

2. Tejshri Simant Sukale C/o Mr. Rohit Malwadkar, R/o 702, Kasba Peth, Pune- 411011 (Minor represented through her natural Guardian, R-1)

3. ICICI Home Finance Co. Ltd. Pimpri- Chinchwad Branch, Old Mumbai, Pune Highway, Chinchwad Pune Pune-411033 …Respondents

BEFORE:

For the Petitioners : Mr. Avinash Kumar, Advocate

PER DR. S.M. KANTIKAR, MEMBER 1. The relevant facts in this revision are ; Mr. Simant Dattatraya Sukale, (since deceased), the husband of Smt Rajashree,

the Complainant No. 1, availed loan from ICICI Home Finance Company Ltd., He obtained two insurance policies from the OP/Petitioner herein, i.e., the ICICI Prudential Life Insurance Co. Ltd., for a loan amount as well as for securing his own life. Unfortunately, on 23.05.2009 i.e. during currency of policies, Mr. Simant expired. The OP honored the claim under the policy for securing home loan, but after considerable delay and paid a sum of Rs.4,57,888/- only to the Finance Company, but not paid the interest for delayed payment. With regard to another Life policy, for a sum assured of Rs.5,00,000/-, the OP refused to pay. Hence, aggrieved thereby the Complainants approached the District Forum, Pune through Consumer Complaint No 188/2010. 2. The District Forum partly allowed the complaint and held the OP liable for unfair trade practice and ordered to pay Rs.25,000/- as compensation, and to refund the premium amount of Rs.4,121/-, with interest @ 15% per annum, from 17.12.2009 and Rs.10,000/- as litigation expenses, to the complainants. 3. Aggrieved by the order of District Forum, the Complainants preferred First Appeal No. A/11/973 and the OP preferred A/12/282 before the State Consumer Disputes Redressal Commission, (State Commission) Maharashtra, Mumbai. The State Commission partly allowed the Appeal No. A/11/973 and dismissed the Appeal A/12/282. The State commission in its order, directed the OP to pay the Complainant a sum of Rs.5,00,000/- @ 9% pa from 17.12.2009, along with Rs.25,000/- for mental agony and Rs.10000/- towards costs. 4. Against the order of State Commission, the OP/Petitioner filed this revision. 5. We have heard the arguments of counsel for the petitioner at admission stage. He has submitted that the rejection of claim was proper, as the deceased Life Assured, was diagnosed of critical illness during the waiting period. Therefore, only the amount of premium was required to be refunded to the Complainants. 6. The Counsel for the OP vehemently argued that, the Crisis Cover policy was issued on 29.08.2008 and the waiting period ends on February 28, 2009. He also brought to our attention, the discharge summary of Aditya Birla Memorial Hospital dated 24.01.2009 that the deceased life assured was hospitalized and diagnosed with “Hepato Cellular Carcinoma”. He further submitted that it was first time diagnosed with the said illness, during/within waiting period, hence the claim was denied. We have perused the details of waiting period from Clause (5) of Crisis Policy, the relevant para is reproduced as: Death Benefit: 1. In the event of death of the Life Assured while the Policy is in force on the date of death, the Company shall pay the Sum Assured mentioned in the Policy Certificate less the amount earlier claim paid, if any, towards the Critical Illness Benefit. On the admission of a claim for this benefit, Policy shall stand terminated forthwith. 2. Where within the waiting period, the Life Assured had been diagnosed of any one of the stated Critical Illness or the Life Assured had suffered from sickness resulting in total & permanent disability for which a claim could have been made and then death of the Life Assured occurs any time during the Policy term, the Company shall refund the premium paid (without interest and excluding any extra premiums paid, if any). No other benefit shall be payable and the Policy shall stand terminated thereafter. 3. Subject to the Policy being in force on date of death and subject to what is stated in the above Clause, in case of death of the Life Assured while the Claim for Critical Illness or Total and Permanent Disability is under consideration, the Company shall pay only the Sum Assured less the amount of earlier claim paid, if any, towards the Critical Illness Benefit.

7. We need to analyze very carefully, Clause 2 of the said policy which is as follows: 2. Waiting Period for the purpose of receiving Claim benefit under the Policy: The benefit towards Critical illness or towards Total and Permanent Disability due to sickness shall be payable after a period of six months from the Policy Issue Date or after a period of three months from the Policy reimbursement where the Policy had been lapsed for more than three months.

Where the Policy is reinstated within six months from the Policy Issue Date the waiting period shall continue till the date on which a period of six months from the policy issue date ends or till the date on which a period of three months from the policy reinstated date ends, whichever is later. The waiting period shall not be applicable where the Claim has occurred as a result of , i) Critical illness or Total and Permanent Disability of the Life Assured due to an accident. ii) Death of the Life Assured.” 8. If we read and analyze Clause 5 (2), along with Clause 2, it is quite clear that the deceased suffered from critical illness, as “cancer” and died. The complainant did not askbenefit under Critical illness Total and Permanent Disability due to sickness; but she asked benefit towards Death Claim. Hence, the OP could not take benefit of Clause 5 (2) to refund the premium only. 9. Therefore, we are of considered view that, the repudiation of death claim by OP was a wrong decision. The OP is liable for such deficiency in service. We agree with the considered order rendered by the State Commission passed in FA- A/11/973, filed by the Complainant. Accordingly, the present revision petition is dismissed. Parties are directed to bear their own cost.

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

(Against order dated 10.07.2012 in First Appeal No. 899/2009 of the State Consumer Disputes Redressal Commission, Delhi)

Sh. Tarun Garg, S/o Sh. H.K. Garg, R/o H.no. 6/20, Street No.4, Vishwas Nagar, Shahdara, Delhi-110032 …Petitioner

Versus

Dr. R. K. Gupta 69/70, Gali No.5, Old Arjun Nagar (Beside PNB), Delhi-110051 …Respondent

BEFORE:

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

For the Petitioner : Mr. Gurdeep Singh, Advocate

For the Respondent : Mr. Sayid Marsook, Advocate

PER DR. S.M. KANTIKAR, MEMBER 1. The Complainant Mr. Tarun Garg, met with a road accident in Solan (HP) on 1/5/2006 afternoon at about 2 p.m. and got first aid there. On the next day Dr. R. K. Gupta, the OP at East Delhi Orthopedic Trauma Centre, performed a surgery for fixation of fracture Humerus of his left arm. The surgery went on for five hours. Alleging negligence on the part of OP that he used highly inferior and substandard implants, which resulted in complication in the recovery of the Complainant, hence, the complainant filed a complaint before the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’) claiming a sum of Rs.8,00,000/- towards the cost of expenditure, suffering mental agony and trauma. 2. The OP contested the case and denied any negligence. The District Forum on the basis of opinion from Department of Orthopedics UCMS and GTB Hospital ,held the OP for minor medical negligence, and directed the OP to pay Rs.30,000/- along with cost of litigation Rs.5,000/- to the Complainant. 3. Subsequently, First Appeal No. 10/49 by OP, Dr. R. K. Gupta for dismissal of complaint, and another First appeal No.09/899, by complainant for enhancement of compensation, were filed. The State Commission, Delhi allowed the FA 10/49 and dismissed FA 09/899. 4. Aggrieved by the order of State Commission, the complainant/petitioner preferred this revision. 5. We have heard the counsel for both the parties. The counsel for the complainant vehemently argued that there was negligence in the operation of fracture elbow, the OP is not qualified to do such operation, and he could have referred the patient to Elbow Specialist. Further submitted that the OP carried out redundant procedure that replaced smaller screw by another screw of the longer length during olecranon osteotomy, without anesthesia. Hence, the operation conducted by OP was wrong, due to which the patient/complainant developed ulnar nerve paralysis. He has brought our attention to the nerve conduction study report. On behalf of OP, Dr. R. K. Gupta himself also appeared with his Counsel. The Counsel for OP submitted that, OP has successfully treated the patient in emergent situation and he had recovered. The complaint was filed after lapse of more than 2 years, beyond the period of limitation, as provided under Section 24(A) of the Consumer Protection Act. Hence, the complaint was barred by time. The District Forum wrongly appreciated the reports from GTB Hospital and Sir Ganga Ram Hospital, which actually do not interpret any negligence by OP. Also, there is no relation between the Ulnar nerve damage and the nature of operation conducted by him. OP submitted that, he had performed the surgery meticulously with adequate precaution, which resulted in good quality fixation of all the fractured fragments. The Complainant had good post-operative recovery and was discharged, just after 2 days of the admission. 6. We have perused the evidence on record, and medical text books of Orthopedics for the olecranon osteotomy, Ulnar nerve injury. There is not even an iota of evidence to establish cause-effect relationship between the surgery conducted by him and the alleged damage caused to the body of the Complainant. Also, the operation, which was conducted in emergent situation, on 02.05.2006 saved the Complainant’s upper limb. Perusal of the Expert Report dated 01.03.2007, clearly mentions, “No significant entrapment is noted on electrophysiological study” and patient had received satisfactory treatment. 7. Even otherwise, the opinion from Department of Orthopedics UCMS and GTB Hospital about the treatment given to the Complainant shows that the patient had received satisfactory treatment. The OP has submitted that there was no question of compression of the ulnar nerve under the plate and screw. We have perused the lab report (annexure X-1) of Dr. D. K. Gupta which mentioned that, “No conduction block is seen across the elbow. Findings indicate left Ulnar Nerve axonopathy. No significant entrapment is noted on electrophysiological study”. The OP further submitted that, when Olecranon Osteotomy site showed early signs of loss of fixation, he performed an appropriate procedure, without any delay; it was a minor OPD procedure under local anesthesia. Thereafter, for a period of 8 months, the complainant sought opinion from several orthopedic surgeons, namely Dr. O. N. Negi, Dr. Shekhar Agrawal, Dr. Akhil Bhargava, Dr. Arun Goel, Rockland Hospital and Dr. R. P. Singla. We have perused the Consultation/Prescription slips available on file, none of them have opined about any Ulnar nerve damage and negligence by the OP. 8. The counsel for OP relied upon the case Post-graduate Institute of Medical Education and Research vs. Jaspal Singh (2009) 7 SCC 330: (2009)2 CPJ 92 (SC), in which it was held that there must be established casual (cause and effect) connection between breach of duty and injury suffered by the Complainant and the burden of proof lies on the Complainant. They further held that injury suffered must be sufficiently proximate to Medical practitioner’s breach of duty. 9. We have referred the case Achutrao Haribhau Khodwa and Ors. v State of Maharashtra and Ors ,MANU/SC/0600/1996, the Hon’ble Supreme Court held that, in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as, he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. 10. Also, it is worthwhile to discuss the Bolam’s case (Bolam Vs. Frien Hospital Management Committee (1957) 1 WLR 582 , which also held that a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view. In Hucks v. Cole (1968) 118 New LJ 469, Lord Denning stated that a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. 11. The another celebrated authority Kusum Sharma Vs. Batra Hospital (2010) 3 SCC 480: 1 CPJ 29 (SC), laid down that, Negligence cannot be attributed to a doctor so long as he performs his duties with a reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the Medical Profession. 12. We find that, the present complaint also suffers from the voice of Suppresio Veri and Suggestio Falsi that as the complaint filed lacks the relevant facts and only gives a partial picture. As per the medical literature, the injury to ulnar nerve is also likely to occur at the time of accident i.e. acute injury related and/or later on during the course of treatment i.e. delayed (Subacute or Chronic). Therefore, as per the foregoing discussion, we are of considered view that there is no record to establish any casual relation between the olecranon osteotomy surgery performed by OP and the numbness in the little finger of the Complainant. We do not find any merit in the arguments on behalf of petitioner. The OP is a competent orthopedic surgeon and had acted as a reasonable competent surgeon. We do not find any deficiency in service or negligence on the part of OP. Complainant has not approached this Commission with clean hands, but we refrain from imposing any punitive cost. Hence, the revision petition is dismissed. No order as to costs.

..………………………… (DR. S. M. KANTIKAR) MEMBER Mss/3 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI.

(From the order dated 04.09.2012 in First Appeal No. 617/2012 of State Consumer Disputes Redressal Commission, Haryana, Panchkula)

1. M/s Dharam pal & Sons, Janta Bhawan Road Sirsa, Haryana Through its Proprietor Dharam pal

2. M/s Daftri Agro Pvt. Ltd. Bazaar Road, Seloo, District Wardha Maharashtra

3. M/s Agri Clinic & Agri Business Centre, Naya bazaar, Bhiwani, Haryana Through its Proprietor Vishnu Dutt …Petitioners Versus

Som Prakash D/o Village Budha Bhana, Tehsil & Dist. Sirsa, Haryana …Respondent

BEFORE:

For the Petitioner : Mr. Avinash Kumar, Advocate For the Respondent : Nemo

1. The present Revision Petition has been filed before this Commission under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 04.09.2012 in Appeal No. 617 of 2012 passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’). The State Commission dismissed the Appeal. The Appeal was filed against the orders passed by the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’) in Complaint No. 516/2008, whereby the complaint was partly allowed. 2. The Complainant, Som Prakash, an Agriculturist on 30.05.2008, purchased 8 packets of PRH-10 brand paddy hybrid seed, having batch no. DD07 5003 from M/s Dharam Pal and Sons, Sirsa, the OP-1 and paid Rs.4,560/- The complainant sowed the seeds in 6 acres, as per prescribed specifications and incurred expenses of Rs.2000/- per acre. After few days, complainant was surprised to note different types of plants, therefore, he approached the dealer (OP-1), and requested him to inspect the field and pay compensation for the poor yield, but the OP-1, turned a deaf ear. Thereafter, complainant approached Deputy Director of Agriculture, Sirsa, with a request to inspect the field and access the loss. The officers of Agriculture department inspected the field of complainant and submitted report that there was 30% admixture of plants and there was loss of 50% in yield. The complainant expected yield of 80 mounds i.e. 32 quintals paddy, per acre, i.e. Rs.35,200/-. The Complainant, alleging unfair trade practice and deficiency in service on the part of the dealer, distributor and manufacturer, filed a consumer complaint, seeking compensation of Rs.1,17,600/- for loss of the crop, Rs.4,560/- the price of seeds, Rs.50,000/- for harassment, hardship, fatigue, mental tension, pain and agony etc. and Rs.5,000/- as costs. 3. The District Forum awarded compensation of Rs.39,425/- and Rs.2,075/- proportionate cost of seed, fertilizer, irrigation, etc. He was also awarded Rs.2,000/- as costs of litigation and Rs.1,500/- for mental pain and agony. 4. Against the order of District Forum, the OPs preferred the first appeal, before the State Commission, which was also dismissed. 5. Hence, aggrieved by the order of State Commission, OPs filed this revision petition. 6. We have heard the Counsel for the parties. The Counsel for the OP vehemently argued that neither the seeds were got tested from the laboratory nor any expert report showing that the seeds were taken by the Respondent and therefore both the Fora below committed perversity and illegality in passing the impugned order. He further argued that mandatory provision of Section 13 (1) (c) of the Consumer Protection Act has not been complied by the District Forum. Whether, the seeds manufactured by the Petitioner No. 2 and sold by the Petitioner No. 1 and 3 are of inferior or superior quality, has to be tested first, at the competent authority, which, in the present case, no verification or testing of the seeds, in question, were made, hence the District Forum and thereafter State Commission, both have acted without jurisdiction and thus committed illegality in passing the impugned order. Therefore, the impugned order is liable to be set aside. Also, both fora overlooked the provisions of Seed Act, 1968. Rule 23 A of Seed Act provides that, when a farmer makes a complaint, in writing, about the failure of his crop, due to the defective quality of the seeds, the seed inspector shall take the sample of the seed to investigate the cause of the failure of the crop and send the same to Seed Analyst for analysis. The counsel for OP put reliance upon the authority of Hon’ble Supreme Court in case titled“National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy & Anr.” 1(2012) CPJ 1(SC), wherein it has been observed by the Hon’ble Apex Court that District Forum can call upon the Complainant to provide sample of goods if it is satisfied that defect in goods cannot be determined without proper analysis or test. 7. We have perused the evidence on record, the report submitted by the committee constituted by the Deputy Director, Agriculture, Sirsa. The contents of report is reproduced as below:

To, Deputy Director, Agriculture Sirsa.

Sub: Inspection report of Paddy field of Sh. Som Prakash, S/o Sh. Devki Nand of Village Budha Bhana.

Ref: Your office letter No. 4904-05 dated 24.09.2008.

In compliance of the above orders, babu Lal-Quality Control Inspector and Sukhdev Singh-Subject Expert (Agronomy), Sirsa, has jointly inspected on 25.09.2008 in presence of above mentioned Complainant. Farmer has said that he, on 20.05.2008, purchased 24 kg. of PRH-10 Paddy Seed and sown in 6 acre of land but, when the small plants started growing from the seeds, due to mixture of different type of seeds, it caused loss to him. We, jointly had inspected the field, where he had sown the paddy in 6 acre of land. In the whole field, the small plants have grown and the said Paddy Field, was about to ripe. However, out of which, 28 to 30% plants were 1 to ½ feet longer than the main variety of plants and in that small plants started growing. In this way, upon seeing, it is clear that the said 28 to 30% plants were of different variety, because, while preparing the hybrid paddy seed, male and female plants are planted in rows and were propagated. If it is not looked after properly, then at the time of harvesting the seeds of the plants get mixed with the female seeds and may give the said results. In this way, there is a possibility of loss of about 28-30% due to the bad quality of the seeds. The report is submitted.

Sd/- Sd/- Quality Control Inspector, Subject Expert (Agronomy) Sirsa. Sirsa

8. Thus, as per the report, it is clear that the Complainant had suffered loss in his paddy crop, to the extent of 50%, on account of substandard quality of seed sold to him by the OPs. There is nothing to label it as any ill-will by the members of the joint inspection team and the seller of the seed. The facts are different in the present case from the case which the OP relied upon. 9. The arguments advanced by Counsel for OPs are bereft of merit. Therefore, we are of considered view that the complainant has substantiated his allegation with cogent and convincing evidence. The OP was deficient in providing service. We do not find any infirmity in the order of State Commission. Hence the revision petition is dismissed. No order as to costs.

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

REVISION PETITION No.2779 OF 2012 (Against order dated 01.05.2012 in First Appeal No. 773 of 2005 and 232 of 2006 of the

State Consumer Disputes Redressal Commission, Uttar Pradesh)

Meerut Development Authority Through its Secretary, Meerut (U.P.)

…..Petitioner

Versus

Smt. Manju Gupta, W/o Shri Raj Kumar Gupta r/o 449, Bakri Mohalla, Lal Kurti, Meerut Cantt. (U.P.)

.... Respondent BEFORE:

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

HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Ranbir Yadav, Advocate with Ms. Anzu K. Varkey, Advocate

For the Respondent : Mr. Nikhil Jain, Advocate

Pronounced on: 9th May,2014 ORDER PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

Present revision petition has been filed by the Petitioner/Opposite Party under Section 21(b) of the Consumer Protection Act,1986(for short, ‘Act’)against impugned order dated 1.5.2012 passed in (Appeal Nos.773 of 2005 and 232 of 2006), by the State Consumer Disputes Redressal Commission, Uttar Pradesh(for short, ‘State Commission’).

2. Respondent/Complainant filed a Consumer Complaint before District Consumer Disputes Redressal Forum, Meerut (for short,‘District Forum’) on the allegations that he submitted an application to the petitioner for registration of plot in Higher Income Group in the Housing Scheme of Petitioner. Respondent was allotted plot No.04/22, under ‘Rakshapuram Housing Scheme’ through lottery draw held on 12.7.1988. The estimated price of the said plot of 300 sq. meters was Rs.1,05,000/- at the rate of Rs.350 per sq. meter, out of which respondent deposited a sum of Rs.15,000/- at the time of registration and Rs.25,000/-at the time of allotment. Balance amount had to be paid in eight half yearly installments. Respondent in all had deposited a sum of Rs.61,400/-.After deposit of the aforesaid amount, petitioner cancelled the allotted plot without issuing any notice to the respondent and without undertaking the development work on the plot. It is further stated that respondent is ready to pay interest on the outstanding amount but no satisfactory reply was received from the petitioner. It is further alleged that petitioner has made allotment to the people of the same category after having recovered interest on the outstanding amounts but is adopting biased policy against the respondent. The respondent is entitled to get her own plot through allotment.

3. Accordingly, respondent filed a consumer complaint before the District Forum seeking directions to the petitioner to allot a plot of land to the respondent. In case, the plot is not available under the Scheme, then any other plot may be allotted in any other scheme on the same terms and conditions. Further, petitioner be also directed to pay Rs.50,000/-as compensation. In the alternative, if plot of land cannot be made available, then amount deposited by her be refunded along with interest @24 p.a. with sum of Rs.50,000/-as compensation.

4. In its written statement, petitioner took the plea that no cause of action has arisen in favour of the respondent. It is stated that final rate of the plot had been determined at Rs.400/- per sq. meter and intimation of which was sent to the respondent, vide letter no.2339 dated 25.08.1993. After adjustment of the registration and allotment amount, respondent was supposed to pay residual amount in eight half yearly installments about which respondent had been informed, vide letter no.2978 dated 11.01.1991 but respondent did not make the payment in time. It is further stated that it informed the respondent, vide letter no.8184 dated 25.6.2003 and letter no.504411 dated 09.09.1994 and letter no. 594111 dated 18.01.1995, through registered post for taking over possession of plot of land. However, respondent did not deposit the installments nor took over possession of plot no.4/22.The respondent stopped making payment of installments on her own, on which petitioner informed the respondent again and again for taking over possession but she did not take the possession. Thereafter, petitioner cancelled the allotment in the absence of payment of amount due. Information of the same was sent to respondent through registered letter no.8041 dated 16.12.1996.

5. Lastly, it is stated that on 09.08.2002 respondent submitted application for refund, affidavit and all original documents and sought the refund of her deposited amount. Accordingly, vide letter dated 04.10.2002, a cheque no.438184 dated 04.10.2002 for Rs.52,258/- was sent. The respondent after getting refund of her deposited amount, filed the complaint case with wrong and false submissions with intention to harass the petitioner. As such, the complainant is liable to be rejected.

6. The District Forum, vide order dated 11.4.2005, allowed the complaint and directed the petitioner to;

“ refund the amount deposited by the complainant i.e.Rs.61,400/- with interest at the rate of 15 percent per annum from the dates of deposits and to pay a sum of Rs.Five Thousand as cost of complaint and Rs.Ten Thousand be paid as compensation”.

7. Being aggrieved, petitioner filed an appeal before the State Commission. However, appeal was rejected vide the impugned order.

8. Hence, this revision petition.

9. We have heard the learned counsel for the parties and gone through the record.

10. It has been contended by the learned counsel for petitioner that respondent had concealed the material facts about getting of the refund from the petitioner, from all the Consumer Fora. Since, amount has already been refunded to the respondent, the consumer complaint of the respondent under these circumstances is not maintainable.

11. On the other hand, it has not been disputed by the learned counsel for the respondent that respondent had asked for the refund of the amount and which she got.

12. It is manifestly clear from the record that respondent herself had applied for the refund of the amount. In pursuance thereof, she had received a cheque of Rs.52,258/- from the petitioner. Moreover, the cheque had already been encashed by the respondent more than 12 years ago. However, respondent for reasons best known to her had concealed all the material facts from all the Consumer Fora. Once respondent had claimed the refund amount, then she cease to be a ‘Consumer’.

13. It is well settled that any litigant who approaches any judicial forum with un-clean hands and conceal the material facts, is not entitled to any relief in equity. Under these circumstances, since respondent had concealed the material and relevant facts, we have no option but to allow the present petition. Consequently, the complaint filed by the respondent before the District Forum is liable to be dismissed. Therefore, we allow the present revision petition with cost of Rs.10,000/-(Rupees Ten Thousand only).

14. Respondent is directed to deposit the cost by way of demand draft in the name of “Consumer Legal Aid Account” of this Commission, within four weeks from today.

15. In case, respondent fails to deposit the cost within the prescribed period, then she shall also be liable to pay interest @ 9% p.a., till realization. 16. List for compliance on 04.07.2014.

…………………………….J

(V.B.GUPTA) PRESIDING MEMBER

………………………. (REKHA GUPTA) MEMBER

REVISION PETITION NO. 3021 OF 2012 (From order dated 17.05.2012 in First Appeal No. FA/12/89 of the State Consumer Disputes Redressal Commission, Chhattisgarh, Raipur) WITH IA/2861/2014 (FOR DELETION OF RESPONDENT NO.2) & IA/2862/2014 (PERMISSION TO FILE WRITTEN ARGUMENTS)

Smt. Sulakshana Talan W/o. Govind Talan, Through Power of Attorney Sh. Govind Talan, Raipur, (C.G.) … Petitioner Versus

1. Branch Manager, M/s Shriram Transport Finance Co. Ltd. 2nd Floor, Crystal Tower, Opp. Minocha Petrol Pump P.S. Telibandha, Raipur (C.G.)

2. A.L. Meenakshi Sundram Legal Consultant M/s Shriram Transport Finance Co. Ltd. 2nd Floor, Crystal Tower, Opp. Minocha Petrol Pump P.S. Telibandha, Raipur (C.G.) … Respondents

For the Petitioner : Mr. Rahul Shrivastava, Advocate

For the Respondents : Mr. Lenin Singh Hijam, Advocate

PRONOUNCED ON_08.05.2014

O R D E R JUSTICE J.M. MALIK 1. Both the fora below have come to the conclusion that there lies a rub in entertaining this case, filed by Smt. Sulakshana Talan, the complainant, because this case pertains to the accounts simpliciter. Aggrieved by that order, the complainant, has approached this Commission.

2. The facts germane to the present revision petition are these. Vide Loan-cum- Hypothecation Agreement dated 30.03.2007, loan, in the sum of Rs.6,50,000/- was advanced to the complainant to purchase a vehicle, financed by OPs, M/s. Shriram Transport Finance Co. Ltd. It was stipulated in the agreement that the said amount would be repayable by the complainant, in 46 monthly installments. The OPs paid a sum of Rs.90,000/- to Sh. Sajid Bhai, the Seller of the vehicle. The complainant was in a position to pay only a sum of Rs.61,300/- and thereafter, she surrendered the vehicle in August, 2007, before OP1. She took the plea that it was not possible for her to pay the remaining installments regularly and to ply the vehicle. She further requested that an amount of finance of Rs.5,88,000/- be adjusted against the sale proceeds.

3. Thereafter, the complainant approached the opposite parties, a number of times and requested for statement of account, but it did not ring the bell. On 10.12.2010, the respondents sent a notice demanding that a sum of Rs.2,20,944/- was still due against the complainant. The said notice was given after three years and five months and was contrary to the provisions of law. The complainant filed the complaint with the following prayers :- A. The Opposite party may be directed to pay the amount of Rs.1,51,300/- along with interest of 18% from the ate August, 2007 to the complainant. B. The opposite party may be directed to cancel the claim of fraudulently issued outstanding of Rs.2,20,944/- (in words Two Lacs twenty thousand nine hundred and forty four Rs.) C. The opposite party may be directed to pay the amount of Rs.50,000/- (Fifty thousand only) to the complainant for compensation for mental agony caused. D. It may be directed to issue the NOC in favour of the complainant. F. The opposite party may be directed to pay the amount of Rs.25,000/- (Twenty five thousand only ) to the complainant due to unfair trade practice)”.

4. The defence set up by the OPs was that the complainant was a defaulter in payment of installments in time and, therefore, as per the terms of the agreement, an Arbitrator was appointed for settlement of dispute between the parties. One of the terms and conditions of the agreement was that the matter will be decided by the Arbitrator and as such, the consumer fora have no jurisdiction to try this case. It was further explained that as a matter of fact, the loan of Rs.6,50,000/- was given to the complainant vide hypothecation agreement dated 30.03.2007. The complainant was to pay the total amount of Rs.10,43,960/-, which also included the interest, in 46 monthly installments. It is explained that as a matter of fact, the petitioner vide its notice demanded outstanding debt in the sum of Rs.2,20,944/-, but in reality, the amount was wrongly typed. The same is, in fact, the amount of Rs.4,02,471/- which is required to be paid by the complainant. The complainant herself neglected the arbitration proceedings.

5. We have heard the counsel for the petitioner. He vehemently argued that this is a case of accounts and that only civil court has the jurisdiction to try this case. He explained that the vehicle was legally surrendered and legally sold. He could not state, what was the status of the case before Arbitrator or whether, the proceedings were pending again there.

6. All these arguments have left no impression upon us. The subject matter of this case is a vehicle. It is yet to be seen, whether, they are deficient in discharge of their service or have indulged in unfair trade practice. First of all, it was mentioned that an Arbitrator was appointed for settlement of dispute between the parties. Nothing was brought to the notice of this Commission as to what had happened there.

7. Secondly, the vehicle was surrendered in August, 2007, but notice of demand in the sum of Rs.2,20,944/- was sent on 10.12.2010. The recovery of that amount, after the expiry of three years and five months, is obviously, barred by time, so is the claim of the complainant. OPs have been negligent because they did not place any document to show as to what had happened in August, 2007. The vehicle was sold without giving notice to the complainant. On 02.04.2013, we passed the following order :- “Dated: 02.04.2014

Learned counsel for the respondents submits that both the fora have decided the case in his favour. The petitioner has tried to raise a new plea before the revisional court. Learned counsel for the petitioner has invited our attention to para 8 of the reply to the registered notice, which mentions that the complainant was not served with the notice and the vehicle was re-sold without giving notice to the complainant. This point can be raised at any time. Liberty is given to the respondent/opposite party to produce those documents before us. However, it is made clear that those documents should have been attached with the written version filed against the complaint. The question of late filing of those documents will be considered on the next date. Documents be filed. The matter is adjourned to 5.5.2014”.

8. The learned counsel for the OPs conceded that no notice for the sale of vehicle was sent to the complainant. He could not inform the Commission, for how much amount, the vehicle was sold. No document, no statement of accounts, no antecedents of the buyer, saw the light of the day. No clear picture begins to jell. It must be borne in mind that the vehicle was sold four months after its purchase. The opposite parties are not supposed to sell the vehicle for a song. The suppression of facts and necessary documents is pernicious to their case. The opposite parties have not come to the Commission with clean hands. They should have given prior notice to the complainant that they were going to sell the vehicle and if she was interested, she could also buy the same. However, the needful was not done. This clearly indicates default on their part and unfair trade practice. They did not disclose, for how much amount, the vehicle was sold and, on which date. How much money was adjusted and how much money was more or less, has not been disclosed. All these form necessary details, which were never disclosed.

9. Dallops of mystery surrounded the case of the opposite parties. Since there was delay of 4 months only, therefore, we assess the depreciation value of the vehicle at the rate of Rs.61,300/-, which already stands paid to the opposite parties. In the absence of solid and unflappable evidence, we hereby order that no amount is payable by any of the parties to the other. To this extent, the complaint is accepted and the notice dated 10.12.2010 is quashed. Both the parties have got no claim against each other. The matter stands disposed of.

REVISION PETITION NO. 2842 OF 2006 (Against the order dated 28.07.2006 in RBT No.197 of 2006 in Appeal No. 1045/2000 of the State Commission, UT, Chandigarh)

Dakshin Haryana Bijli Vitran Nigam Limited (Formerly Known as HVPN) Through its Sub Divisional Officer (Industrial Area Sub Division) DHBVNL, Sirsa, Haryana Secretary Dakshin Haryana Bijli Vitran Nigam Limited (Formerly known as HVPN) Sector – 6, Shakit Bhavan, Panchkula Haryana

The Superintending Engineer Dakshin Haryana Bijli Vitran Nigam Ltd (Formerly known as HVPN) Sirsa, Haryana

Junior Engineer Dakshin Haryana Bijli Vitran Nigam Ltd. Industrial Area Sub Divisional, DHBVNL, Sirsa Haryana

Petitioners

Versus

BHAGWAN DASS Son of Shri Honda Ram Resident of Anaj Mandi Road Near Shiv Chowk Sirsa, Tehsil and District Sirsa Haryana Respondent ALSO in Revision Petitions no. 2877 and 2878 of 2006

BEFORE:

HON'BLE MRS. REKHA GUPTA MEMBER

For the Petitioner Mr Sanjay Singh, Advocate

For the Respondent Mr Sanjeev Saroha, Advocate

Pronounced on 9th May, 2014 ORDER

REKHA GUPTA

Revision petition nos. 2842 of 2006, 2877 and 2878 of 2006 are filed against a common impugned order dated 28.07.2006. Since the State Commission and the District Forum have dealt all the three cases by a single order, we also propose to deal with these cases by a single order and the facts of the case are taken from RP no. 2842 of 2006.

2. Three complaints have been filed by the respondents against the petitioner before the District Consumer Disputes Redressal Forum, Sirsa (‘the District Forum’). The brief facts of the case as per the complainant/ respondent are as follows: 3. Shri Ram Ditta Mal son of Shri Himta Ram was running an Atta Chakki and Kiryana Shop under the firm and name M/s Ram Ditta Mal Bhagwan Dass, Near Shiv Chowk, Anaj Mandi Road, Sirsa and electric power connections bearing no. YM/2 and NMP 3/204 were obtained in the name of Shri Ram Ditta Mal for the said Atta Chakki and Kiryana Shop being run in the building situated near Shiv Chowk, Anaj Mandi Raod, Sirsa and owned by the complainant. Shri Ram DittaMal had left the business many years ago, the business continued to be run by the complainant/ respondent and his two sons namely, Ved Parkash and Satpal. On account of his old age, respondent stopped taking part in the business activities of the aforesaid firm and his son Ved Parkash started looking after the AttaChakki and Speller business in his capacity as proprietor of M/s Mehta Flour Mills and he had being paying consumption charges of electricity consumed through electric connection bearing no. YM/2. Similarly, Kiryana business was previously being looked after by Sat Pal (son of the complainant), who had died and after his death his son Prem Kumar started looking after Kiryana business being run in the ground floor portion of the building. Prem Kumar had been consuming electricity through electric connection bearing no. NKP 3 of 204 and he had been paying consumption charges to the petitioner – Board regularly. Shri Ram DittaMal died in 1996.

4. The said building has another electric connection for the residential portion/ first floor portion is in the name of respondent where respondent along with his family members are living and the respondent has been paying consumption charges to the petitioner – Board for the electricity consumed through the aforesaid electric connection and as such, respondent is a consumer of the petitioner – Board.

5. On the intervening night of 3rd and 4th July 1998 when all the family members were sleeping in the residential portion, which is in the first floor portion of the building in question, Shri Ved Setia son of the Shri Sham Lal Setia awakened them at about 02.00/02.15 a m and told that electricity wires which are coming from main pole to the meters of Atta Chakki and Kiryana Shop had caught fire due to sparking. The respondent along with other family members came down and saw the fire, which was heading towards the Kiryana Shopa and Atta Chakki being run at the ground floor portion of the building. The matter was reported to the concerned office of electricity department through telephone at once and the complaint was entered at no. 117 and the attendant/ employee of petitioner – Board was requested to get disconnected the wires coming to building from the pole. However, the employee of the Board namely Mr Ripandeep Singh showed his inability in doing so by pleading shortage of man- power/ line staff and further advised them to contact the concerned JE of the area namely Mr Hazoor Singh. Mr Lachhman Grover, relative of respondent rushed to the house of JE Shri Hazoor Singh but he also did not take any action on the said request. Seeing the conduct of the employee of petitioner – Board, the matter was reported to Deputy Commissioner, Sirsa and an assurance was given by the official of the Deputy Commissioner, Sirsa office and made arrangement immediately for the said purpose. However, no employee of Electricity Board came at the spot and due to their total negligence and failure in providing the required service, the construction of the building owned by the respondent suffered extensive damages. Besides it, some clothes and other house hold articles which were at the first floor residential portion, completely destroyed in the fire. The renovation/ construction work of the building would require at least Rs.1.30 lakh. The report of registered valuer/ architect is attached herewith, who has given the said report after actual spot inspection of the building. The value of the clothes and other house-hold articles which were destroyed in the fire was about Rs.20,000/-.

6. In the intervening period, though the fire brigade people along with their vehicles had reached at the site of fire, but rescue operations could not be undertaken by them as there was current in the shutters of Atta Chakki and Kiryana shop and they showed their total helplessness in starting rescue operations without first getting the electricity supply of the shop and Atta Chakki disconnected. The Fire Officer has also given the reasons for negligence of employees of HSEB for such extensive damage caused due to fire.

7. The Deputy Commissioner, Sirsa also got assessed the losses suffered by the respondent and his family members by revenue authorities and after spot inspection they also reported the losses suffered by the respondent on account of said fire, the losses could have been averted if the employees of HSEB would have discharged their public duties in time.

8. The negligence of the employees of HSEB is further clear from the fact that electricity connection of Atta Chakki, Kiryana Shop and residential portion were disconnected by them only at 08.45 a m on 04.07.1998 and by that time, the fire had already caused heavy damages not only to the constructions of the building but also to Kiryana Shop and Atta Chakki.

9. For the negligence of the employees of the Board, matter was also reported to the City Policy, Sirsa by the grandson of the respondent on 04.07.1998 itself and Rapat no. 3 dated 04.07.1998 was registered in the police station, City Sirsa.

10. The value of the loss suffered by the respondent is in the shape of extensive damage to the construction of the building and burning of cloths and other house-hold articles, is approximately Rs.1.50 lakh, besides it, respondent who had also witnessed the said tragedy, suffered mental shock, pain, agony etc., and on account of which the respondent has claimed Rs.50,000/- as damages. The respondent claimed a total sum of Rs.2.00 lakh as compensation on account of all kind of losses suffered by him due to the said negligence and deficiency in service on the part of Board Employees and its officers. The respondent is legally entitled to recover the said amount along with interest @ 18% per annum from the date of occurrence till the realisation of whole amount.

11. Petitioner in their written submission before the District Forum have denied that Shri Ram Ditta Mal and Shri Bhagwan Dass were running an Atta Chakkiand a Kiryana shop under the firm and name titled M/s Ram Ditta Mal Bhagwan Das. The electric connections in question were obtained in the name of Shri RamDitta Mal only, but it is denied that the said connections were obtained for the said Atta Chakki and Kiryana Shop being run in the building owned by the respondent. It is evident from the record with HSEB/ petitioner the said electric connections no. YM /2 and NMP 3/204 had been obtained in the name of ShriRam Ditta Mal on his applications for the purpose and after having complied with the conditions for the purpose and also having entered into an agreement with HSEB/ petitioner for the purpose. Electric Connection in question existed throughout in the name of Shri Ram Ditta Mal and they exist in that name even today. It was never brought to the notice of HSEB/ petitioner that Shri Ram Ditta Mal had been in any business with anybody and that he had left the business many years ago. It is denied that the said business continued to be run by the respondent and his sons namely Ved Parkash and Sat Pal. It is relevant to mention here that the respondent and/ or his sons had/ have nothing to do with the electric connections aforesaid and they could not consume electricity on the said connections for running the business as alleged. As such, the respondent and his sons have been using electric connections existing in the name of Shri RamDitta Mal wrongly and illegally. It is denied that said Ved Parkash had been paying consumption charges of electricity consumed through electric connection no.YM 2. Likewise, said Prem Kumar could not use electric connection no. NMP 3/204 without getting it changed/ transferred in his name after complying with the necessary conditions. It is denied that said Prem Kumar had been paying consumption charges through the respondent board regularly. The bills showing consumption of electricity on both the aforesaid electric connection have always been sent in the name of Shri Ram Ditta Mal and the same have always been paid in his name. Nothing was at any stage brought to the notice of HSEB contrary to that. These facts got to prove beyond doubt that it was Shri Ram DittaMal only and no one else who was/ is the consumer under HSEB. Both the said electric connections had not been obtained in the name of any firm and as such it is futile to talk of any firm allegedly existing between Ram Ditta Mal and the respondent. The story with regard to the alleged firms has rather been concocted and manufactured now to suit the case and the convenience of the respondent and his sons aforesaid.

12. As averred in the complaint Shri Ram Ditta Mal had left the business many years ago, the electric connections existing in his name required to be disconnected forthwith and if anybody else wanted to use the name, then it was incumbent upon such person/s to apply for the change of name in the record of HSEB on entering into a fresh agreement with HSEB for the purpose. In the absence thereof, a person consuming energy on these connections is guilty of violation of rules and law and also the terms and conditions for obtaining the same. None using those electric connections is entitled to get benefit, in any form, and make any claim with regard to any alleged loss from HSEB. In view of the same there has been no privity of contract/ agreement between the present respondent and his sons and grandsons and HSEB. The respondent or said Ved Parkash or said Prem Kumar has never been a consumer under HSEB vis-à- vis electric connections no. YM 2 and NMP 3/ 204.

13. The factum of said death of Shri Ram Ditta Mal in the year 1996 was never brought to the notice of HSEB. His death has come to the notice of HSEB only through this complaint and certain applications made to HSEB on and after the fire incident referred to in the complaint in hand. The complainant was guilty of concealing the factum of the death of Shri Ram Ditta Mal in the year 1996 and thereafter using electric connections existing in the name of Shri Ram Ditta Mal - deceased.

14. It was vehemently denied that electric wires coming from the main pole to the meters in question had caught fire due to sparking. It wastechnically well - nigh impossible for sparking to come from pole side to meter end side. There must have been sparking inside the premises owing to some internal defect in the wiring or some other defect, cause, quite unconnected with the main electric pole. It was quite relevant to mention here that the cable coming from the main pole to the meter side is even today is intact and safe. This fully proves that sparking was not from pole side, but was from inside the premises and hence, HSEB cannot be held liable in any manner, for any alleged loss, if any, suffered by the respondent. It was further relevant to state that there has been no loss or damage to the residential portion of the building at the first floor on account of the fire occurrence at the ground floor portion. It is denied that the fire was heading towards the Kiryana shop and the Atta Chakki being run at the ground floor portion of the building.

15. It is totally wrong and incorrect to allege that Mr Lachhman Grover, a relative of the respondent rushed to the house of Shri Hazoor Singh, JE. Said ShriLachhman Grover did not come to the house of the said J E nor did anybody else inform the said JE regarding the fire incident. The name of Shri Hazoor Singh JE has been dragged into the matter wrongly and malafidely by the respondent at the instance of said Shri Lachhman Grover who bore an old grudge and ill will against Shri Hazoor Singh J E. It once, so happened that on 22.02.1995 the industry premises of the said Shri Lachhman Grover, situated at village Ramnagria, having electric connection/ account no. S 2/1140 S/ P, were checked by Shri Hazoor Singh JE who had then detected unauthorised extension of load, i.e., connected load of 10.946 kw against the sanctioned load of 3.730 kw and as such the said consumer (Shri Lachhman Grover) was imposed a penalty amount to Rs.3330/- which was duly realised from him. It is since then and on that account that Shri Lachhman Grover bore ill-will against the said JE and that is why Mr Grover’s name figures in the present complaint as a witness of the respondent. Hence, it is wrong to allege that Shri Hazoor Singh did not take any action. Even otherwise, one fails to understand as to why the respondent and his men did not try to contact any other JE or official of HSEB instead of allegedly reporting the matter to Deputy Commissioner, Sirsa. One also fails to understand as to why the matter was allegedly reported to Shri Hazoor Singh only and not to any other JE while there were/ are some other JE’s also in the Industrial Area Sub Division, HSEB, Sirsa.

16. It was denied that due to the negligence and failure of employees of Electricity Board in providing required services, the construction of the building owned by the respondent suffered extensive damages. It was also denied that besides it, some clothes and other household articles as alleged were completed destroyed in the fire. As averred above, no damage, whatsoever, was caused to the residential portion at the first floor of the building. It was denied that the renovation/ reconstruction work of the building would require at least Rs.1.30 lakh. The impugned report of any valuer/ architect must have been falsely procured by the respondent in order to extract money from the petitioner. It is denied that the valuer has given the alleged report after actual spot inspection of the building. It was further denied that the value of clothes and other household articles allegedly destroyed in the fire was about Rs.20,000/-. The respondent suffered no such loss and if at all he suffered any loss, it must be owing to his own fault, negligence, carelessness and improper maintenance of internal wiring/ apparatus. HSEB and/ or any of its employees are/ is not responsible for causing any such loss to the respondent, nor has there been any negligence, failure or slackness in service on their part, nor can they afford to be negligent and deficient or inefficient in service towards the consumer. The respondents have not been at fault at any stage in any manner.

17. It was stated that on account of his cable having been burnt/ isolated inside the premises/ building due to fire, there could be no electric current in the shutters. It was at about 04.40 a m on 04.07.1998 that Shri Hazoor Singh JE received a telephonic message from Shri R N Jindal, SDO City Sub Division, HSEBSirsa, to the effect that he was reaching the place of the said fire occurrence and that he (Hazoor Singh) should also reach there. Shri Hazoor Singh JE at once left for the place of occurrence and reached there at 04.45 am when said SDO had already reached there. The S E, “OP” Circle, HSEB Sirsa, Shri M P Seth had also reached the spot along with Shri R N Jindal. The fire brigade men had already left the place after extinguishing the fire. It is thus clear that the HSEB employees/ officials reached the spot as soon as they learnt of the fire occurrence. It was denied that the Fire Officers had also given the reason as negligence of the employee of HSEB for the alleged damages. Impugned report of Fire Officer, if any, must be wrong and incorrect and also a procured one. It is reiterated that there was no negligence, whatsoever, on the part of the employees of HSEB.

18. It is, however, admitted that electric supply from the main pole was disconnected at 08.45 a m on 04.07.1998. It is, however, mentioned that two employees of HSEB namely Shri Hira Lal ALM and Shri Paan Singh ALM had visited the spot at 07.00 a m for the purpose of disconnecting the electric supply from the main pole, i.e., disconnecting cable from the main pole, but they were not allowed to do so by the respondent and his men who insisted that they should be given in writing as they desired before doing so. So that said HSEB employees came back and reported the matter accordingly to Shri R N Jindal, SDO. Then Shri Mani Ram J E was deputed for the purpose who visited the spot at 08.45 a m along with his staff and did the job. It is aptly notable that the cable inside the premises had already burnt and isolated and as such electric connection through the cable coming from the main pole was only up to the upper end of the building and as such even during the continuance thereof till 08.45 a m, it neither caused any loss, nor could it cause any loss in any manner. It is reiterated at the cost of repetition that whatever losses were suffered by the respondent, it must have been owing to certain defect in the internal wiring/ apparatus existing at the ground floor portion of the building where three electric meters stood affixed, connected to the Board supply line and in such an eventuality, it was the respondent who must have immediately disconnected such part of the internal wiring apparatus from the circuit and then should have informed the Board. The respondent in order to hide his own fault and negligence in the matter has put the blame upon the HSEB employees.

19. District Forum vide its order dated 19.06.2000 allowed the complaint and directed the petitioner to pay Rs.75,000/- to the complainant – Ved Parkash.

20. Aggrieved by the order of the District Forum, the petitioners filed three appeals no. 1045, 1046 and 1047 of 2000 before the State Consumer DisputesRedressal Commission, Union Territory, Chandigarh (‘the State Commission’) against the three respondents/ complainants. Vide order dated 26.07.2006 the State Commission upheld the order of the District Forum and dismissed the appeals. Hence, the present revision petitions.

21. The main grounds for the revision petitions are as under:

 The State Commission failed to appreciate that the complainant do not fall within the purview and definition of “consumer” as defined under section 2(d) of the Consumer Protection Act, 1986 so as to be entitled to approach the Consumer by way of a complaint under the Act.  The State Commission as well as District Forum failed to appreciate that the connection in question was taken in the name of Ram Ditta Mal and it was never brought to the notice of the petitioner that Ram Ditta Mal was running any business jointly. The complainant and his son had nothing to do with the above mentioned connections and they were not entitled to consumer any electricity from the said connections for running business as the same had been issued to aforesaid Shri Ram Ditta Mal, Ved Parkash and Prem Kumar could not use any electricity from electric connection no. YM 2 and NMP 3 of 2004 respectively without getting the same transferred in their name after compliance of necessary conditions.  The State Commission as well as District Forum failed to appreciate that technically it is impossible that sparking would start at pole and move to the meter. In fact, sparking must have taken place inside the respondent’s premises due to some internal defect in the wiring. The cable coming from the main pole to the side of meter was intact till date, therefore, the petitioner Nigam could not be held liable for any alleged loss caused to the complainant on account of fire that broke in his present.  The State Commission as well as learned District Forum failed to appreciate that the officials of electricity department went on the spot to switch off the supply at 07.00 a m but they were not allowed, to do so, therefore, they went again at 08.45 a m along with other staff members and did the job. The electricity department always gives proper and prompt service to its consumers but it had nothing to do with the internal wiring/ apparatus installed within the premises/ building of the consumer which is required to be maintained by the consumer itself. Since, there was negligence, deficiency in service on the part of the petitioner – Nigam, therefore, they are not liable to pay any amount of compensation as claimed by the respondent.  The State Commission failed to appreciate that District Forum failed to invite any technical expert for evidence, even a Local Commissioner was not appointed for the purpose on the application of the petitioner – Nigam. The petitioners were held negligent without there being any expert evidence on the issue as to whether the sparking. Even in the absence of any independent expert witness, the petitioner had led evidence particularly in the form of log sheet brought on record by way of evidence showing that there was no spark in the voltage on the day of occurrence of fire nor any report of sparking from any quarters.

22. We have heard the learned counsel for the parties and have carefully gone through the records of the case.

23. District Forum in their order on the question whether the respondents were consumers mainly stated that “after hearing both sides and gone through the case file and in view of the case law cited as above first of all we are of the considered view that all the complainants being beneficiaries, users of electricity supply and by paying of consumption charges are the consumer of the OPs”.

24. The State Commission also in its order of this issue whether the respondents were consumers stated that “the preliminary objections taken by the appellants that the complainants have no privity of contract and they are not the consumers of HVPN as the electricity connections have not been transferred in their name, we concur with the findings recorded by the District Forum. Various documents on record to prove that they are immediate family members of late Shri Gurditta Mal in whose name the electricity connections was issued initially. Since the payment of bills have regularly been accepted by the appellant electricity board from the complainants they at this stage cannot contend that they are not the consumers. Hence, District Forum rightly entertained the complaints rejecting this contention of the appellants and holding the complainants as consumers of electricity departments on the ground of being beneficiaries of electricity accounts in question. Coming to the moot point agitated in appeal regarding deficiency in services, a perusal of the evidence brought on record by the respondents/ complainants of which C 5 the fire report is an important piece of evidence, in which it is recorded that it took to hours and one minutes to extinguish the first in question. This report proves that the fire had engulfed the entire premises but the officials of electricity department even on being informed to disconnect the electricity supply arrived with considerable delay, which resulted in reducing the entire materials in Atta Chakki and Kiryana to ashes in the gutted premises. Had the officials of appellant department acted in time by disconnecting the electric supply, considerable materials probably could have been salvaged? It is proved from the record that call to the fire brigade was made at 0235 hours and the electricity department was informed prior to that. However, as per annexure C 7, signed by lineman Hira Lal and Pawan Singh, the disconnection has been recorded at 08.45 am on 04.07.1998 which admittedly proves considerable delay on the part of appellants in disconnecting the supply which is a deficiency in service on their part and the District Forum rightly, held them liable for the same. The respondent/ appellants also placed on record annexure C 22 a letter written by SDO address to Deputy Commissioner in which the aforesaid incident and lack of timely action on the part of appellant department has been mentioned. The aforesaid letter mentions clearly that in spite of being responsible to act promptly in such like situation, the appellant department was found wanting in doing the needful, which is regrettable. Without going into the other contents of these two documents, it is amply proved on record that a fire of the magnitude as averred in the complaint actually took place which resulted in massive loss to the materials in the complainant’s premises. The loss to the building also occurred and report of Shri R S Chugh, Architect detailing the same has been placed on record. In view of this positive evidence in support of averments of the complainants, we hold that the District Forum, Sirsa has rightly appreciated the facts of the case and accepted the complaint partly”.

25. It would appear from the record of HSEB that petitioner’s electric connection no. YM/2 and NMP 3/ 204 had been obtained in the name of Ram Ditta Mal.Shri Ram Ditta Mal died in the year 1996. This fact was never brought to the notice of the petitioner nor was any application made for the transfer of the said connection to any other person. It is also admitted that there were electric connections for residential portion/ first floor in the name of Bhagwan Dass, respondent no. 1, where he was living along with his family members. Petitioner had vehemently denied that the respondent were consumers stating that they have no privity of contract/ agreement with the petitioners for the two connections with regard to the connection for residential portion there was no damage to the same.

26. The Counsel for the respondents failed to explain as to how they were consumers under the Consumer Protection Act, 1986 and they also failed to support their case and further, they could not bring anything on record to show that Ram Ditta Mal had two electric connections in his name and the same were transferred to the respondents. They also failed to bring on record any documents that the respondents were bonafide beneficiaries of the three connections which were for the residence. It is also an admitted fact that there was no damage by fire to the residence. Hence, the respondents have failed to prove that they were consumers under section 2 (1) (d) of the Consumer Protection Act, 1986 and have any privity of contract with the petitioners.

27. Learned counsel for the petitioner have cited two judgments of the Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd., vs MunimaheshPatel (2006) 7 SCC 655 and Uttar Pradesh Power Corporation Limited and Ors. vs Anis Ahmad (2013) 8 SCC 491. The above quoted cases are not applicable to the case on hand. 28. In view of the foregoing discussion, we have no option but to allow the present revision petition. Consequently, the complaint filed by the respondents before the District Forum is liable to be dismissed. Sd/-

..………………………………

[ V B Gupta, J.]

………………………………..

[Rekha Gupta]

Satish

(From the order dated 10.10.13 in First Appeal No. FA/747/2012 of West Bengal State Consumer Disputes Redressal Commission)

Bechu Ram Chakraborty, s/o Sri Gour Mohan Chakraborty, 22D, Puddapukur Square, P.S. Watgunge, Kolkata – 700023.

... Petitioner/Opposite Party

versus

Mahesh Shaw, s/o Late Wajir Shaw, 23/1, Joy Krishna Pal Road, P.S. Watgunge, Kolkata – 700023.

BEFORE

HON’BLE DR. B.C. GUPTA, PRESIDING MEMBER

For the Petitioner Mr. Sanjoy Kumar Ghosh, Advocate

Mr. Prabir Basu, Advocate

Mr. Tarun Chakraborty, Advocate

For the Respondent Mr. Uday Chandra Jha, Advocate

Mr. Ved Sharma, Advocate

with respondent in person

PER DR. B.C. GUPTA, PRESIDING MEMBER

Protection Act, 1986 against the impugned order dated 10.10.2013, passed by the West

Bengal State Consumer Disputes Redressal Commission (for short ‘the State

Commission’) in

FA No. 747/2012, “Bechuram Chakraborty versus Mahesh Shaw”, vide which while dismissing the appeal, the order dated 28.06.2012, passed by the District Consumer

Disputes Redressal Forum, Kolkata in case No. 338/2010, allowing the consumer complaint in question, was upheld.

2. Brief facts of the case are that the complainant/respondent entered into an agreement on 29.09.2009 with the petitioner/OP for purchasing a flat at a consideration of ` 13 lakh, out of which he paid ` 1 lakh as earnest money at the time of execution of agreement. The petitioner/OP is the landowner and developer of the proposed building, situated at premises no. 22B, Paddapukur Square, Kidderpore, Police

Station Watgunge, Kolkata – 700023. As per the complainant, the flat having built-up area of 800 sq. ft., consisting of two bedrooms, one dining and drawing room, one kitchen and one bath together with balcony and facilities like sewerage, water supply, electricity etc. was to be sold by the OP to the complainant. The balance amount of ` 12 lakh was to be paid by the purchaser on or before the execution and registration of sale- deed which was to be held within three months from the date of execution of the said agreement. However, the OP failed to honour their commitment of providing the property within the stipulated period and asked the complainant to wait for another two months. The complainant sent a legal notice dated 28.07.2010 to the OP, asking them to hand over the possession of the flat and to execute the registration deed, but the OP sent reply to the notice on 19.08.2010, saying that the said agreement dated 29.09.09 had been cancelled. The complainant then filed the consumer complaint in question before the District Forum. In their written reply to the complaint filed before the District

Forum, the petitioner/OP stated that the complaint was not maintainable, because it was not a consumer dispute. The OP was not a service provider under the agreement. The complainant had not been able to make payment within the stipulated time. The District

Forum after taking into account, the evidence of the parties allowed the complaint and directed the OP to execute the registered deed of conveyance, together with delivery of possession and getting completion certificate and also to pay compensation of `

20,000/- for mental harassment and ` 5000/- as cost of litigation. The complainant was also directed to pay the balance amount on the date of registration. An appeal was filed before the State Commission against this order by the petitioner/OP which was dismissed vide impugned order. It is against this order that the present petition has been made.

3. At the time of arguments, the learned counsel for the petitioner vehemently argued that this was a case of ‘simplicitor sale’ of property only, and no service was required to be provided to the complainant by the petitioner/OP. The provisions of the

Consumer Protection Act, 1986 were, therefore, not applicable in this case, rather, it is a case for specific performance, for which the complainant should go to a civil court of competent jurisdiction. The learned counsel stated that there had been no hiring of service on the part of the complainant and hence, the question of any deficiency in providing service on the part of the petitioner/OP does not arise. The learned counsel stated that a perusal of the complaint itself makes it clear that specific performance of the agreement dated 29.09.2009 had been requested, by making direction to the OP to transfer the said flat as per the terms and conditions of the agreement. It has been stated in the complaint itself that the petitioner/OP decided to sell the said property due to urgent need of money and hence, the agreement was entered between the parties. The learned counsel invited attention to an order passed by this Commission in

“Municipal Board, Todaraisingh & Anr. versus Gopal Lal Sharma” [as reported in

2013(4) CPR 474 (NC)], saying that the cancellation of allotment of plot for non-deposit of the balance amount had been held to be in order as per this order of the State

Commission. Further, the West Bengal State Commission in,”Smt. Ramarani Kararversus Sri Sankar Ghosh” [FA/791/2012 decided on

24.03.2014], had also held that when there was agreement for purchase of land without the stipulation for rendering services, it was a case of sale-simplicitor and the complainant could not be stated before a ‘consumer’. The learned counsel also referred to judgement passed by the Hon’ble Supreme Court in “U.T. Chandigarh Administration and Anr. versus Amarjeet Singh &Ors.” [as reported in (2009) 4 SCC 660] saying that a consumer forum shall have jurisdiction only when the complaint is against a ‘buyer’ or

‘service-provider’. The learned counsel further argued that the petitioner had not been afforded proper opportunity to lead their evidence. As per order recorded on

12.06.2012 by the District Forum, a copy of the evidence given by the complainant was served to the Advocate for the OP and the arguments were also heard on the same day. The learned counsel has drawn attention to an order of the State Commission in

“Mathura Mahto Mistry versus Dr. Bindeshwar Jha & Anr.” [2008 (1) CPR 1 (NC)], in support of his arguments. Further, the District Forum had wrongly concluded that in the present case, the petitioner/OP was a service provider, whereas the complainant had just deposited only 8% of the consideration money with the petitioner/OP.

4. In reply, the learned counsel for the complainant/respondent stated that from the facts and circumstances of the present case, it could not be called a case of

‘sale simplicitor’, because there had been an agreement between the developer/promoter and the complainant and hence, it was not a case of simple sale/purchase of the property. It had been admitted by the petitioner/OP and stated in the agreement itself that the petitioner had purchased a piece of land through a registered sale-deed, upon which they had raised construction of two-storeyed building, after demolishing the existing structure, and after getting the necessary building plan approved from the Municipal authorities. It had also been stated in the agreement in detail that the services mentioned in the third schedule attached with the agreement like water supply, sewerage, drainage, electrical wiring, common facilities etc. shall be provided by the petitioner to the complainant. It was clear, therefore, that it was a case of development of property, in which the petitioner had agreed to sell one flat to the complainant. The learned counsel argued that even the execution of registered conveyance deed was covered under the definition of service. Regarding the balance payment to be made by the complainant, the learned counsel argued that the petitioner never asked for the payment of the balance amount and did not seek any interest etc. on the balance amount. There was no stipulation in the agreement about the exact date of payment, but it had been stated that the payment shall be made on the date of execution of sale-deed. When the petitioner failed to execute the sale-deed, the complainant sent a legal notice to him on 28.07.2010 in response to which the petitioner sent reply on 19.08.2010, saying that the said agreement had been cancelled. The petitioner could not have cancelled the agreement unilaterally and that also without sending any notice etc. to the complainant.

5. Referring to the case law, the learned counsel stated that the orders/judgements quoted by the petitioner related to simple purchase of land and they were not applicable to the facts of the present case. In the case decided by the National Commission

“Municipal Board, Todaraisingh & Anr. versus Gopal Lal Sharma” (supra), the cancellation of allotment of plot was held to be valid, because the allottee failed to make payment, even after being given numerous opportunities to pay the same. In the case ”Smt. Ramarani Karar versus Sri Sankar Ghosh” (supra), decided by West Bengal State

Commission, it was a case of simple purchase of land without rendering any services. The learned counsel referred to the order passed by the Hon’ble Supreme

Court in “Ganesh Lal versus Shyam” [as reported in 2013 STPL (Web) 892 SC], in which their Lordships had held as follows:- “ 6. It is submitted that failure to hand over possession of the plot of land simpliciter cannot come within the jurisdiction of the District Consumer Forum, State Commission or National Commission. We quite see merit in this submission of Mr. Lambat, particularly having seen the definition of 'deficiency' as quoted above. We may, however, note that when it comes to “housing construction”, the same has been specifically covered under the definition of 'service' by an amendment inserted by Act 50 of 1993 with effect from 18th June, 1993. That being the position, as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of landsimpliciter is concerned, and if there is any complaint, the same would not be covered under the said Act.”

6. It has been made clear in the above judgment that the subject of “housing construction’ was covered under the definition of ‘service’, as per amendment in the Act with effect from 18.06.93, by Act 50 of 1993.

7. The learned counsel for the complainant/respondent has further referred to the orders of the Hon’ble Supreme Court in the following cases:-

(i) Yunus Ali (Dead) through his LRs versus Khursheed Akram

[as reported in 2008 (7) SCC 292]

(ii) Pandurang Dhondi Chougule and others versus Maruti Hari Jadhav and

others [as reported in AIR (SC) 153]

(iii) Shyamal Kumar Roy versus Sushil kumar Agarwal

[as reported in 2006 (11) SCC 331]

(iv) Olympus Superstructures Pvt. Ltd.

versus Meena Vijay Khetan & Ors. [as reported in 1999 (5) SCC 651]

(v) Mr. France B. Martins versus Mrs. Mafalda Maria Teresa Rodrigues [as

reported in 1999 4 RCR (civ) 151]

8. Learned counsel also referred to a case decided by the High Court of Calcutta in

“Mandira Mookerjee versus District Consumer Disputes Redressal Forum” [as reported in [2005] 0 AIR(Cal) 108], saying that nothing in the Specific Relief Act provides that the relief under said Act cannot be had anywhere else, other than the Civil Court.

9. The learned counsel concluded his arguments, saying that it was not a case of

‘sale simplicitor’ as the agreement in question was a composite agreement, according to which services were to be provided by the petitioner alongwith the flat and hence, the consumer court was competent to hear the present case. Moreover, in revisional jurisdiction, there should not be re-appreciation of the evidence, because the scope of a revision petition was limited.

10. In reply, the learned counsel for petitioner stated that the common facilities were already there and no further construction of flat was to be done; hence it was a case of sale-simplicitor.

11. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced by the parties. The facts of the case as admitted by the parties are that the petitioner/OP purchased a piece of land through registered sale-deed and then, carried out construction on the same after demolishing the existing structure and raising a new building, after getting the building plan approved from the Municipal authorities. In the building so constructed, the petitioner entered into an agreement with the complainant to sell a flat on the second floor, alongwith the common facilities and proportionate share of land. The exact description of the property to be sold and also the common facilities to be provided have been explained in detail in the agreement itself. It has also been stated that the total consideration amount of the flat was ` 13 lakh, out of which a sum of ` 1 lakh was received by the petitioner by way of advance payment. It has been stipulated that the balance amount of ` 12 lakh shall be paid by the purchaser to the seller on or before the execution of registration of sale- deed which will be done within three months from the date of execution of the agreement, i.e., 29.09.2009. It has also been stated that time was the essence of this agreement. The complainant has taken the plea that he was willing to perform his part of obligation to complete the transaction by making payment of balance amount of ` 12 lakh and he requested the opposite parties from time to time, but the OP deferred the date of execution of conveyance deed, taking one plea or another. It has also been stated that after the expiry of the stipulated period of three months, the complainant met the OP at his premises on 10.01.2010 and requested him to complete the transaction, but the OP asked him to contact after two months. Ultimately, the complainant sent a legal notice through an Advocate on 28.07.2010 to the OP, in response to which, the

OP replied on 19.08.2010 that the agreement between them stood cancelled. On the other hand, the OP has taken the stand that the complainant did not pay the balance amount despite repeated requests and hence, the sale deed could not be executed. The petitioner duly conveyed to the complainant on 19.08.2010 through

Advocate that the agreement stood cancelled.

12. From the material on record, there is no document or proof to support the contention of the complainant or the petitioner whether they made specific efforts to complete the transaction in accordance with the agreement dated 29.09.2009. The fact, however, remains that neither payment was made to the petitioner nor the sale-deed was executed. It is clear, however, from the record that the petitioner sent his letter dated 19.08.2010 to the complainant, saying that the agreement stood cancelled, only in response to the legal notice dated 28.07.2010 sent by the complainant. There is nothing on record to say if any written communication was sent by the petitioner or show cause notice etc. sent before the cancellation of the agreement. It has been rightly held by the consumer fora below that it was a unilateral action on the part of the petitioner to cancel the agreement.

13. Now, coming to the issue of ‘sale simplicitor’ as raised by the petitioner, the orders/judgements quoted by the petitioner bring out that the facts of those cases are different from the facts of the present case. In the case “Municipal

Board, Todaraisingh & Anr. versus Gopal Lal Sharma” (supra), it has been clearly observed that numerous opportunities were given to the allottee to make the payment by the Municipal Board. Even after a lapse of 23 years, the Municipal Board asked the allottee to make the payment of balance amount of allotment money, but it was not done. It was held, therefore, that the cancellation of plot was in order. In the present case, there is no evidence that any notice etc. has been given to the complainant asking him to make the payment. Further, in the case of “Smt. Ramarani Karar versus

Sri Sankar Ghosh” (supra) decided by the West Bengal State Commission, it has been held that there was no stipulation for rendering service and hence, it was a case of sale simplicitor. In the present case, however, the services to be provided have been explained in detail in the agreement itself. It cannot be stated, therefore, that it was a case of simple sale of property. The position has been made absolutely clear in the orders passed by the Hon’ble Supreme Court in “Ganesh Lal versus Shyam” (supra), in which their Lordships have held that when it comes to ‘housing construction’, the same has been specifically covered under the definition of service by an amendment inserted by Act 50 of 1993 with effect from 18.06.1993 in the Consumer Protection Act,

1986. The facts of this case make it very clear that the petitioner raised a new building, after getting the necessary approval from the Municipal Authorities, a part of which he wanted to sell to the present complainant. It has also come on record that another flat in the building has already been sold to some other party and the sale deed duly executed in his favour on 12.03.2003. I, therefore, do not agree with the contention of the petitioner that it was a case of sale-simplicitor and hence, the consumer fora did not have jurisdiction to entertain the complaint.

14. The State Commission and the District Forum, after carrying out a detailed analysis of the facts and circumstances on record have given concurrent findings in favour of the complainant, I do agree with the contention raised by the complainant/respondent that in revision petition, the scope of interference is limited and the orders passed by the Consumer Fora below can be altered only if there is a patent error of jurisdiction. In the present case, no such patent error or perversity is there, which may call for interference at revisional stage. The order made by the Hon’ble Supreme Court in the case “Mrs. Rubi (Chandra) Dutta Vs. M/s. United

India Insurance Co. Ltd. [II (2011) 11 SCC 269]” supports this view.

15. In the light of the discussion above, it is held that there is no illegality, irregularity or jurisdictional error in the orders passed by the Consumer Fora below, which may merit interference at the revisional stage. The revision petition is, therefore, ordered to be dismissed and the orders passed by the Consumer Fora below are upheld. There shall be no order as to costs.

(DR. B.C. GUPTA)

PRESIDING MEMBER RS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 16.04.2010 in Appeal No. 2145 of 2008 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

1. Depot Manager, Rajasthan State Road Transport Corporation, At Churu (Rajasthan)

2. President Rajasthan State Road Transport Corporation Jyoti Nagar, Jaipur (Rajasthan) 3. Depot Manager, Rajasthan State Road Transport Corporation Sikar (Rajasthan)

…Petitioners/Opp. Parties (OP)

Versus

Smt. Manoj Meena D/o Late Prabhu Dayal W/o Rajesh Meena, R/o Patusari Tehsil &

Distt. Jhunjhunu (Rajasthan) Presently at: C/o Rachandra Meena R/o Ward No. 29,

Radhakishanpura, Tehsil and District – Sikar, (Rajasthan)

…Respondent/Complainant

BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

For the Petitioners : Mr. Amit Agrawal, Advocate For the Respondent : Mr. Pushpak Mahajan, Advocate

O R D E R

This revision petition has been filed by the petitioners against the order dated

16.04.2010 passed by the Rajasthan State Consumer Disputes RedressalCommission, Jaipur (in short, ‘the State Commission’) in Appeal No. 2129 of 2008 – Smt. Manoj Meena Vs. Depot Manager, Rajasthan State Road TransportCorpn. & Ors. and Appeal No. 2145 of 2008 - Depot Manager, Rajasthan State Road Transport Corpn. & Ors. Vs. Smt. Manoj Meena by which, while dismissing appeal of petitioner, appeal of respondent was partly allowed and order of District forum allowing compensation was modified and compensation enhanced.

2. Brief facts of the case are that complainant/respondent’s mother Parmeshwari Devi was travelling in Bus No. RJ 10P 2811 of OP/petitioner on 20.11.2005 from Churu to Guddha after purchasing ticket. When the bus reached near Jhunjhunu, Driver of the bus was driving the bus in rash and negligent manner and collided with a private bus and complainant’s mother died on the spot. Complainant is the only heir of her mother. It was further alleged that OP/petitioner charged Rs.2/- towards insurance premium along with ticket from the mother of the complainant and as per agreement, complainant is entitled to receive Rs.1,00,000/- from OP. Inspite of notice, payment has not been made. It was further submitted that claim before Motor Accident Claim Tribunal (MACT), Sikaris pending and order granting interim relief has been complied with, but that amount is not to be adjusted. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that prior to this complaint claim petition has already been filed before MACT, Sikarand as per order of the Tribunal, Rs.25,000/- has already been paid to the complainant. Complainant is entitled to compensation only from MACT, Sikar and not from any other court. It was further submitted that as per Traveler Accident Compensation Scheme, 2000, any amount given as interim relief is to be adjusted from final amount granted by MACT and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to pay Rs.25,000/- in addition to Rs.25,000/- awarded by MACT. Both the parties filed appeals before State Commission and learned State Commission while dismissing appeal of petitioner, allowed appeal of respondent and directed petitioner to pay Rs.50,000/- against which, this revision petition has been filed.

4. Learned Counsel for the petitioner submitted that petitioner has neither charged any amount for insurance nor Consumer Fora had jurisdiction to decide complaint; even then, learned District Forum committed illegality in allowing complaint and learned State Commission further committed error in dismissing appeal of petitioner and allowing appeal of respondent; hence, revision petition be allowed and impugned order be set aside and complaint be dismissed. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. It is not disputed that complainant’s mother while travelling in bus of OP met with an accident and on account of injuries, complainant’s mother died and complainant has filed claim before MACT Sikar.

6. The core question to be decided in this case is whether District forum had any jurisdiction to entertain complaint and whether petitioner charged any amount for insurance of the passenger travelling in the bus.

7. Learned Counsel for the petitioner submitted that Consumer Fora had no jurisdiction to entertain the complaint as held by Hon’ble Apex Court in (1995) 2 SCC 479 – Chairman, Thiruvalluvar Transport Corpn. Vs. Consumer Protection Council. In the aforesaid case, the Hon’ble Apex Court after referring Section 175 M.V. Act held that Claim Tribunal constituted for the area under Motor Vehicle Act had jurisdiction to entertain any claim for compensation arising out of the fatal accident and Consumer Protection Act is a general law and general law must yield to the special law. It was further held that National Commission was wrong in exercising jurisdiction and awarding compensation pertaining to fatal accident arising out of use of motor vehicle.

8. In the light of aforesaid judgment, it becomes clear that Consumer Fora has no jurisdiction to entertain complaint arising out of fatal accident while travelling in vehicle. Learned Counsel for the respondent could not place any citation in support of his contention that Consumer Fora has jurisdiction to entertain the complaint.

9. As complaint was not maintainable before District Forum, District Forum committed error in granting compensation and learned State Commission further committed error in enhancing compensation and complaint is liable to be dismissed.

10. Learned Counsel for the respondent submitted that petitioner has charged Rs.2/- towards insurance of passengers travelling in petitioner’s bus. Learned District forum observed in its order that ticket purchased by mother of the complainant was not placed on record. In absence of ticket and any endorsement on the ticket, learned District Forum should not have observed that Rs.2/- has been charged towards insurance of the passenger travelling in the bus. Learned Counsel for the respondent could not place any document in support of the contention that Rs.2/- were charged by petitioner towards insurance of complainant’s mother.

11. On the other hand, learned Counsel for the petitioner submitted that amount charged by the petitioner was towards fund established under Section 146 (3) of Motor Vehicle Act, as the petitioner has not taken insurance coverage of their vehicle. As per Traveler Accident Compensation Scheme, 2000, any amount under the scheme was payable only towards award passed by MACT. Thus, it becomes clear that whatever the amount charged by petitioner included in the passenger’s fare was not towards insurance of the passenger, but was towards contribution to fund established by petitioner for meeting liability arising out of awards passed by MACT and in such circumstances, respondent was not entitled to any amount in addition to compensation awarded by MACT, Sikar and impugned order and order of District Forum are liable to be set aside.

12. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 16.04.2010 passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, ‘the State Commission’) in Appeal No. 2129 of 2008 – Smt. Manoj Meena Vs. Depot Manager, Rajasthan State Road Transport Corpn. & Ors. and Appeal No. 2145 of 2008 - Depot Manager, Rajasthan State Road Transport Corpn. & Ors. Vs. Smt. Manoj Meenaand order of District Forum dated 18.9.2008 passed in Complaint No. 238/07 – Smt. Manoj Meena Vs. Rajasthan Road Transport Corpn. are set aside and complaint stands dismissed with no order as to costs.

……………….…Sd/-…………

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(From the order dated 11.04.2012 in Appeal No. 96 of 2012 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

1. Manager, Rajasthan State Road Transport Corporation, Beawar, Ajmer

2. Managing Director Ajmer Region, Rajasthan State Road Transport Corpn., Parivahan Marg, Jaipur …Petitioners/Opp. Parties (OP) Versus Mr. Kuldeep Singh S/o Late Sh. Amarjeet Singh R/o Chaudhary Mohalla, Sarwar, Distt. Ajmer …Respondent/Complainant

BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

For the Petitioners : Mr. Amit Agrawal, Advocate For the Respondent : Ex-parte

O R D E R

This revision petition has been filed by the petitioners against the order dated 11.04.2012 passed by the Rajasthan State Consumer Disputes RedressalCommission, Jaipur (in short, ‘the State Commission’) in Appeal No. 96 of 2012 – Manager, Rajasthan State Road Transport Corpn. & Anr. Vs. Kuldeep Singh by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent’s father Shri Amarjeet Singh was travelling in Bus No. RJ 14 9302 of OP/petitioner on 30.07.2008 from Nasirabad to Beawar after purchasing ticket no. 0070621. The said bus met with an accident near Annaporna Factory when the vehicle No. GJ 02 Z 2081 was coming from other side and complainant’s father sustained injuries and died on 31.07.2008. As per agreement, complainant was entitled to receive Rs.50,000/- from OP. Inspite of notice, payment has not been made. It was further submitted that claim before Motor Accident Claim Tribunal (MACT), Sikarwas pending and order granting interim relief has been complied with, but that amount is not to be adjusted. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that prior to this complaint claim petition has already been filed before MACT, Sikarand as per order of the Tribunal, Rs.25,000/- has already been paid to the complainant. Complainant is entitled to compensation only from MACT, Sikar and not from any other court. It was further submitted that as per Traveler Accident Compensation Scheme, 2000, any amount given as interim relief is to be adjusted from final amount granted by MACT and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to pay Rs.50,000/- in addition to Rs.10,500/- for mental agony etc. Petitioner filed appeal before State Commission and learned State Commission dismissed appeal of petitioner against which, this revision petition has been filed.

3. None appeared for the respondent even after service and he was proceeded ex- parte.

5. Learned Counsel for the petitioner submitted that petitioner has neither charged any amount for insurance nor Consumer Fora had jurisdiction to decide complaint; even then, learned District Forum committed illegality in allowing complaint and learned State Commission further committed error in dismissing appeal of petitioner and allowing appeal of respondent; hence, revision petition be allowed and impugned order be set aside and complaint be dismissed.

6. It is not disputed that complainant’s father while travelling in bus of OP met with an accident and on account of injuries, complainant’s father died and complainant has filed claim before MACT Sikar.

7. The core question to be decided in this case is whether District forum had any jurisdiction to entertain complaint and whether petitioner charged any amount for insurance of the passenger travelling in the bus.

8. Learned Counsel for the petitioner submitted that Consumer Fora had no jurisdiction to entertain the complaint as held by Hon’ble Apex Court in (1995) 2 SCC 479 – Chairman, Thiruvalluvar Transport Corpn. Vs. Consumer Protection Council. In the aforesaid case, the Hon’ble Apex Court after referring Section 175 M.V. Act held that Claim Tribunal constituted for the area under Motor Vehicle Act had jurisdiction to entertain any claim for compensation arising out of the fatal accident and Consumer Protection Act is a general law and general law must yield to the special law. It was further held that National Commission was wrong in exercising jurisdiction and awarding compensation pertaining to fatal accident arising out of use of motor vehicle.

9. In the light of aforesaid judgment, it becomes clear that Consumer Fora has no jurisdiction to entertain complaint arising out of fatal accident while travelling in vehicle.

10. As complaint was not maintainable before District Forum, District Forum committed error in granting compensation and learned State Commission further committed error in enhancing compensation and complaint is liable to be dismissed.

11. Learned Counsel for the petitioner submitted that amount charged by the petitioner was towards fund established under Section 146 (3) of Motor Vehicle Act, as the petitioner has not taken insurance coverage of their vehicle. As per Traveler Accident Compensation Scheme, 2000, any amount under the scheme was payable only towards award passed by MACT. Thus, it becomes clear that whatever the amount charged by petitioner included in the passenger’s fare was not towards insurance of the passenger, but was towards contribution to fund established by petitioner for meeting liability arising out of awards passed by MACT and in such circumstances, respondent was not entitled to any amount in addition to compensation awarded by MACT, Sikar and impugned order and order of District Forum are liable to be set aside.

12. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 11.04.2012 passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, ‘the State Commission’) in Appeal No. 96 of 2012 – Manager, Rajasthan State Road Transport Corpn. & Anr.Vs. Kuldeep Singh is set aside and complaint stands dismissed with no order as to costs.

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PRESIDING MEMBER

..…………….Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 2153 OF 2008 (Against the order dated 03.03.2008 in Appeal No.2135/2007 of the State

Commission, Karnataka)

1. DTDC Courier & Cargo DTDC House No.3 Victoria Road, Bangalore – 560047

2. M/s Sri Sourabha Enterprises Having its office at 54-2/52-B, G.R.K. Complex Opp. Sakthi Lodge, Bye Pass Road Hosur-635109, Tamil Nadu

...... Petitioners

Versus

1. M/s Caterpillar India Pvt. Ltd. Door No.401, Prestige Solitaire No.6, Brunton Road Bangalore – 560025

2. State Bank of India Having its office at Industrial Finance Branch 61, Residency Plaza, Residency Road Bangalore – 560025

…... Respondents

BEFORE:

For the Petitioner : Mr. M.K.Sinha, Advocate

For the Respondent : Mr.Vikram Dhokalia, Advocate for R-1

Mr.Rajiv Kapoor, Advocate for R-2

Pronounced on : 12th May, 2014 ORDER

REKHA GUPTA

Revision Petition No. 2153 of 2008 has been filed by the petitioners/opposite party nos.1 and 2 against the order dated 3.3.2008, passed by Karnataka State Consumer DisputesRedressal Commission, Bangalore (short, “State Commission”) in First Appeal No.2135 of 2007.

2. The facts of the present case as per complaint are that complainant/ respondent no.1 is a company registered under the Companies Act, 1956. The respondent no.1 is in the business of manufacture and sale of diesel engines and gensets and was previously known as M/s Hindustan Powerplus Ltd. The petitioner no.1/opposite party no.1 is a courier service provider and the petitioner no.2/opposite party no.2 is an agent and franchisee of the petitioner no.1.

3. One M/s Sangam Mechanical Engineering Works, Mysore (for short, ‘Sangam’) who is a supplier of components to the respondent no.1 raised an invoice on the respondent no.1 for a sum of Rs.1,82,645/- for supplies made. Towards payment of the said amount, the respondent no.1 made out a cheque bearing No.339549 dated 24.8.2006 drawn on respondent no.2/opposite party no.3 in favour of Sangam. The cheque was signed only at the foot of the same by Mr. V.Ramarathnam and Mr.Sudanshu Panigrahi, the two authorized signatories of the respondent no.1 – Company.

4. As Sangam was situated in Mysore the respondent no.1 entrusted the said cheque in a sealed cover to the petitioner no.1 through the petitioner no.2 at Hosur on the 25thAugust, 2006. The petitioner no.1 through the petitioner no.2 on receipt of the consignment, acknowledged the receipt bearing No.B-29527064 dated 25.8.2006. The petitioner no.1 was duty bound to ensure that the consignment reached Sangam at Mysore within a reasonable time.

5. The respondent no.1 was under the bonafide impression that the consignment was delivered in due course to Sangam by the petitioner no.1. In the interim, Sangam issued reminders to the respondent no.1 regarding the payment. Since, the respondent no.1 had already issued and sent the said cheque, the respondent no.1 wrote a letter dated 31.1.2007 to the petitioner no.2 seeking reasons for non-delivery of the consignment to the consignee. There was no immediate reply to this letter. The respondent no.1 after checking with its bankers informed Sangam that the amount was already debited from the respondent no.1’s Bank account on 22.9.2006. The respondent no.1 also wrote a letter to the respondent no.2 on 1.2.2007 seeking information regarding the cheque. At this point in time, the respondent no.2 confirmed that the cheque amount had been credited and on the request made by the respondent no.1 furnished the respondent no.1 with a copy of the encashed cheque for their perusal.

6. On a perusal of the copy of the cheque as furnished the respondent no.1 was shocked to observe that the name of the drawee, i.e. Sangam was obliterated and was substituted with the name ‘S.Ramakrisna’. The cheque was presented through ING Vysya Bank Ltd., R.T. Nagar, Bangalore and was cleared for payment on 22.9.2006 by respondent no.2. It was also observed by the respondent no.1 that forged signatures purporting to be that of the said authorized signatories of the respondent no.1 appeared on the face of the cheque as well as on the reverse of the same. The respondent no.1 wrote a letter to respondent no.2 regarding the said forgery and tampering of the cheque. The respondent no.2 by way of its letter dated 23.2.2007 replied stating that the respondent no.1 had approached the Bank after a lapse of four months and therefore, it could not apprehend the culprit.

7. The petitioner no.2 for the first time through its letter dated 3.2.2007 issued to the respondent no.1 stated that the consignment consisting of the cheque was lost by the delivery staff of the petitioner no.1 and also that an FIR had already been filed regarding the same. Further, the petitioner no.1 also wrote a letter dated 19.2.2007 to the respondent no.1 with the information about the loss of the consignment containing the cheque at Mysore and the petitioner no.1 also acknowledged that the cheque had been illegally encashed without reaching the consignee.

8. The petitioners/opposite parties in their written statement before the District Consumer Disputes Redressal Forum at Bangalore Urban, (short, ‘District Forum’) denied all the facts contained in para 6, 7 & 8 of the complaint and stated as follows;

“ 6. It is submitted that the complainant had entrusted the consignment to 2nd opposite party at Hosur on 25th Aug., 2006 bearing consignment No.B29527064 is true. But the opposite party was not aware of the contents and value of the consignment at the time of sending the consignment by the complainant, because the complainant has not disclosed the value & contents of the consignment at the time of entrusting to the opposite party.

7. The averments stated in para 5 and 6 of the complaint is not to the knowledge of the opposite party. For the same, the complainant is to strict the proof. The complainant observed the forged signatures purporting to be that of the said authorized signatories of the complainant appeared on the face of the chequeas well as on the reverse of the same may gave a complaint to the concerned police immediately, but instead of this they had approached the 3rd opposite party i.e. SBI after a lapse of four months was very very difficult to apprehend the culprit.

8. The averments stated in para 7 of the complaint that on enquiry with Sourabha, complainant was informed for the first time vide letter dated 3.2.2007 issued by 2nd opposite party that the consignment consisting of the said cheque was lost by the delivery staff of 1st opposite party and that an FIR had been filed with regard to the same, are not within the knowledge of the opposite party. The further averment that 1st opposite party also for the first time, vide letter dated 19.2.2007 informed the complainant that the consignment containing the said cheque was lost by them at Mysore may be true. Further, opposite party has not acknowledged vide said letter that the cheque had been encashed illegally without reaching the consignee.”

9. District Forum vide their letter dated 13.9.2007 partly allowed the complaint and passed the following order ;

“ 11. As far as the OP.1 & 2 are concerned, we are satisfied that the complainant is able to prove the deficiency in service on their part. There is gross negligence and carelessness on the part of OP.1 and 2. Complainant for no fault of his, is made to face both mental agony and financial loss. It would have been more fair on the part of OP.1 and 2 to intimate the complainant that they lost the consignment in transit and unable to deliver the same in time. If such intimation was given to the complainant, complainant would have requested the payee Bank to stop payment. Because of the negligence of OP.1 and 2 complainant is put to greater hardship. With all bonafidebeliefs complainant thought that the cheque has reached the consignee. He came to know about non-receipt of the cheque only after four months. Again the facts and circumstances speak loudly about the carelessness and deficiency in service on the part of OP.1 and 2. 12. Having taken note of the facts and circumstances of the case, we feel that complainant has not made a case so as to claim Rs.2,15,145/- even he cannot claim the amount mentioned in the cheque by way of damages. Complainant has to resort to some other mode for the recovery of the said amount under the due process of law. As the complainant has already initiated the criminal proceedings, he can also redress his grievance after the investigation and the submission of the final report. In our considered view as far as the non-delivery of the consignment and loss of the consignment in transit is concerned, the justice will be met by directing the OP.1 and 2 jointly and severally to pay compensation of Rs.10,000/- along with a litigation cost of Rs.1,000/-. With these reasons, we answer point nos.1 and 2 accordingly and proceed to pass the following :

The compliant is allowed in part. OP.1 and 2 are hereby jointly and severally directed to pay a compensation of Rs.10,000/- and a litigation cost of Rs.1,000/- to the complainant. This order is to be complied within four weeks from the date of its communication. The complaint against OP.3 is dismissed.”

10. Dissatisfied with the order of the District Forum, respondent no.1 filed an appeal for enhancement before the State Commission. State Commission, vide their order dated 3.3.2008 allowed the appeal and modified the order of the District Forum, which observed as under ;

“The grievance of the complainant in this Appeal is that the compensation awarded by the District Forum is on the lower side. The complainant has claimed compensation of Rs.2,15,145/-. It is a fact that the amount covered under the cheque is Rs.1,82,645/-. It is not in dispute that the cheque was lost in transit while it was in the custody of the Courier Service, since the Courier Service admits the said fact. It is not known whether the complainant is able to recover the amount covered under the cheque from the above said Ramakrishna by instituting any proceedings against him. Therefore, in our view, the Courier Service is liable to make good the loss suffered by the complainant to the extent of the amount covered under the cheque. But without considering this aspect of the matter, the District Forum has awarded compensation of only Rs.10,000/- in favour of the complainant. In the facts and circumstances of the case, we feel that if the Courier Service is made to pay the amount covered under the cheque to the complainant by granting some time, it would meet the ends of justice.

6. In the result, we pass the following order in modification of the order of the District Forum as follows;

(1) Ops No.1 and 2 - Courier Service are directed to pay jointly and severally Rs.1,82,645/- to the complainant within two months from today.

(2) If Ops No.1 and 2 fail to pay the said amount to the complainant within two months as directed above, Ops No.1 and 2 shall be liable to pay interest on the said amount at 6% per annum from the date of the complaint filed before the District Forum till realization.

(3) Parties to bear their own costs.”

 Because the Hon’ble State Commission grossly failed to appreciate that strong contention of the present petitioners, which were rightly appreciated by the learned District Forum about the limited deficiency in service on the part of the petitioners for non-delivery of the entrusted consignment.  Because the Hon’ble State Commission has not properly elicited the evidence and facts put by the petitioners before the learned District Consumer Forum during the trial.  Because the Hon’ble State Commission failed to appreciate that the respondent no.2 i.e. State Bank of India is the really deficient in the service ofencashing the forged cheque amount which is tantamount to gross negligence as per the provisions of the Banking Systems, Rules and regulations etc.  Because the Hon’ble State Commission has failed to appreciate the findings of the learned District Consumer Forum whereby the District Forum has rightly observed that the present respondent no.1/complainant has other remedy to recover the amount from the culprit for the forgery done by the said person.  Because the Hon’ble State commission have grossly failed to appreciate the settled principle of law that in absence of any declaration the service provider liability is limited to only Rs.100/- as passed by Hon’ble National commission in case Desk to Desk Courier and Cargo Ltd. vs. Kerala Education Development Ltd. 2004(CPJ), 442.”

13. We have heard the learned counsel for the petitioners as well as the respondents and have gone through the record.

14. It is an admitted fact that cheque bearing No.339549 dated 24.8.2006 drawn on respondent no.2 in favour of M/s Sangam Mechanical Engineering Works, Mysore and handed over to petitioner no.2 on 25.8.2006 did not reach its destination. It is only when the respondent no.1 received reminder for payment from Sangam in January, 2007 that they were became aware that cheque had not reached there. It is also an admitted fact that petitioner no.2 through its letter dated 3.2.2007 i.e. after five months admitted that cheque was lost by their delivery staff and an FIR has been filed regarding the same. It is thus, apparent and manifest that petitioners were most negligent in the first instance as due care was not taken and an article given into their custody for delivery was allowed to be stolen by a third party by the carelessness of their staff or in collusion with their staff. They did not inform the respondent no.1 for five months. Had they done so the respondent could have taken up the matter with respondent no.2 in time. In the facts and circumstances, of the case, we feel that Courier Service should be made to pay the amount covered under the cheque to the respondent no.1. State Commission has rightly allowed the complaint of the respondent no.1/complainant.

16. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, State Commission has given detailed and reasoned order which does not call for any interference nor it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only). 17. Petitioners are directed to deposit the cost of Rs.10,000/- (Rupees Ten Thousand only) by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case, petitioners fail to deposit the said cost within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization. 18. List on 4.7.2014 for compliance.

…………………..………J (V.B. GUPTA)

(PRESIDING MEMBER)

…………………...……….

(REKHA GUPTA)

(MEMBER)

Sonia/ NATIONAL CONSUMER DISPUTES REDRESSALCOMMISSION NEW DELHI

REVISION PETITION NO. 2938 OF 2012 (Against order dated 21.02.2011 in First Appeal No. 242 of 2011 and 923 of 2011 of the State Consumer Disputes Redressal Commission, Gujarat)

Shilaben Ashwin Kumar Rana R/o A/37, Vrundavan Society, Balasinor, Gujarat

…Petitioner Versus

1. Dr. Bhavin K. Shah Aneri Banglow-11, Gate No.-2, Opp. Drive in Cienema, Near Vaibhav Laxmi Temple, Thaltej Takra, Ahmedabad, Gujarat

2. Dr. Rajesh Agrawal, Gayatri Nagar Society, B/H, Sansthan School, District- Kheda, At Dakor, Gujarat …Respondents

BEFORE:

For the Petitioner : Mr. Pawan Kumar Ray, Advocate

For the Respondents : Mr. Sumeet Bhatia, Advocate

1. The present Revision Petition has been filed under Section 21 (b) of the Consumer Protection Act, 1986 against the impugned order dated 21.02.2011 passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’) in First Appeal No. 242/2011 and Appeal No. 923/2011, wherein the State Commission dismissed both the appeals and upheld the order of the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’). The District Forum partly allowed the complaint no. CC/130/2009 on 31.01.2011. 2. Both the Foras below held both the OPs, Dr. Bhavin K. Shah and Dr. Rajesh Agrawal liable. The District Forum, Nadiad partly allowed the complaint no. CC/130/2009 and directed the OPs to pay Rs.5,00,000/- to the Complainant, with the interest of 9% p.a., from the date of complaint, till realization and Rs.25,000/- towards mental agony and the expenses. 3. Subsequently, both the OPs, i.e. OP-1 Dr. Bhavik K. Shah filed FA 923/2011 and OP-2 Dr. Rajesh Agrawal filed FA 242/2011 before the State Commission, Ahmedabad. Both the appeals were dismissed, and State Commission has passed the modified order holding that, “The OPs shall pay Rs.5,00,000/- and Rs.10,000/- as costs to be paid to complainant, jointly and severally. 4. Aggrieved by the impugned order, the complainant filed this revision for enhancement of the compensation. 5. We have heard the counsel for both the parties. There was a delay of 76 days in filing this revision petition. The counsel for complainant explained it, to our satisfaction, accordingly, the application for condonation of delay is allowed. The counsel for the complainant submitted that, the complainant succeeded in proving the medical negligence on the part of OPs. The child suffered a lot, and its condition is in vegetative form due to gross negligence by the OP doctors. The compensation grated by fora below is very meager, hence argued that; this case deserves higher compensation for the child’s future life. The Counsel for the OP argued that, the award is justified and proper one. The OPs are ready to honour it, hence OP denied for the enhanced payment. He also submitted that, OPs have paid total Rs.1,30,000/-(Rs.80,000/- by OP-1 and Rs.50,000/- by OP-2) to the Complainant, on humanitarian ground. 6. This is a proved case of medical negligence. To ascertain the gravity of medical negligence, we have perused the evidence on file and find that it is an unfortunate medical mishap. On 25.12.2008, the OP-1, Dr. Bhavik Shah, a Surgeon with OP-2 Dr. Rajesh Agrawal, Anesthetist, performed Circumcision operation of the complainant’s child, Neel, aged about 2½ years. Post operatively, the child did not regain consciousness, who was taken to OT and thereafter shifted by car to SAL Hospital for emergency treatment in P.I.C.U. Later, child was shifted to Sterling Hospital, on 27.12.2008., who was retained there for 2 months 6 days and discharged on 6.3.2009.Therefter, till date, the child has not recovered completely and is still in vegetative form. 7. Considering the sequence of the events in this case, it is gross

negligence, due to which a child of 2½ years has to survive in vegetative form, throughout his lifespan. We have given thoughtful consideration to this case, as to whether the complainant deserves the enhancement of compensation? As per the submissions of counsel for the complainant, the child is at present 7 years old, and is still in vegetative form. We have perused several recent photographs of child produced by the Counsel for the complainant, which clearly show the precarious condition of Neel. To award enhanced compensation, we wish to refer the authority Nagappa vs. Gurudayal Singh [AIR 2003 SC 674] the Hon’ble Supreme Court held that, “ Firstly, under the provisions of Motor Vehicles Act, 1988, there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo is- it should be ‘Just’ compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence”. 8. Therefore, we apply the aforesaid principle. Thus, considering the tender age of Master Neel, who will remain in vegetative form throughout his life span, we are not sure whether there will be any improvement in his health condition in future or how much time will it take? The parents of Neel have to suffer lifelong, mental agony, due to negligence of the two doctors. Therefore, the Complainant certainly deserves for enhanced compensation. 9. We believe that the victims of medical negligence deserve support and compensation for the pain and suffering they’ve experienced, and to cover the costs of future treatment or medical care. Due to medical negligence, the complainant can recover the non-economic towards damages compensation for physical pain, emotional pain and suffering. When the patients have been genuinely harmed, they have every right to seek redressal against blatantly careless or incompetent medicos, who should be punished. 10. Consequently, it is also important to note that, except recent photographs of Neel, the counsel for the complainant did not produce any medical assessment certificate from reputed or Government Medical institute about the present health status of Master Neel. Therefore, we are of considered view, to award just and proper compensation to the complainant. We place more reliance upon the recent landmark judgment of Hon’ble Supreme Court in Anuradha Saha’s Case, Civil Appeal No.2867 of 2012, which has dealt with award of compensation in the case of medical negligence. It was the highest award for medical negligence in our country. We have further relied upon several other judgments of the Hon’ble Supreme Court namely Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia, AIR 1998 SC 1801, Charan Singh Vs. Healing Touch Hospital,2000(2) CPC 508 SC & Ors, Nizam Institute Vs. Prasant Dhananka, 2009(2) CPC 402 SC. 11. Hence, we do not agree with the State Commission which modified the order of District Forum and reduced the quantum of an award to the complainant. Keeping in mind, about the future of Master Neel’s welfare, the enhanced compensation in this case is justified. We found no justification of reduction made by the State Commission from the award of compensation from District Forum. Accordingly we set aside the order passed by the State Commission and partly allow this revision petition, with following order: The OPs are directed to pay a sum of Rs.10,000,00/- with interest @ 6% pa from the date of filing the complaint, along with Rs.30,000/- towards cost of litigation within 90 days from the date of receipt of this order, otherwise it will carry interest @ 9% pa till its realization to the complainant, jointly and severally. Out of this awarded amount, Rs.5,00,000/- be paid to the complainant and remaining amount be kept in Fixed Deposit (FDR) of State Bank of India (SBI), which will be utilized for Neel’s welfare and he will be able to withdraw it, after attaining the age of majority.

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

(From the order dated 14.05.2012 in First Appeal No. 130 of 2008 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla)

The Life Insurance Corporation of India Through its Senior Divisional Manager Division Office, SDA Complex Kasumpti, Shimla – 171009 …Petitioner/Opp. Party (OP) Versus 1. Yog Raj Chauhan S/o Sh. Jeet Ram R/o Village Sakroha, P.O. Tihra Tehsil Sarkaghat Distt. Mandi, H.P.

2. Smt. Tara Devi W/o Sh. Yog Raj Chauhan R/o Village Sakroha, P.O. Tihra Tehsil Sarkaghat Distt. Mandi, H.P.

3. Sh. Thakur Dass R/o Village Darwar, P.O. Sajao Piplu Tehsil Sarkaghat Distt. Mandi, H.P. Also present residing at: Sanyardhi, P.O.Tallyahar, Tehsil Sadar, Distt. Mandi (H.P.) (LIC Agent Code No. 00846167

…Respondents/Complainants

BEFORE

For the Petitioner : Mr. Rajesh K. Gupta, Advocate

For the Res. Nos. 1&2 : Mr. Abhishek Sood, Advocate For the Res. No. 3. : NEMO/Ex-parte

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER For the reasons mentioned in the application for condonation of delay, the delay of 28 days is condoned.

This revision petition has been filed by the petitioner against the order dated 14.05.2012 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (in short, ‘the State Commission’) in Appeal No. 130 of 2008 – Life Insurance Corporation of India Vs. Yog Raj Chauhan & Ors. by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that OP No.1/Respondent No. 3 was agent of OP

No.2/Petitioner. OP No. 1 visited Complainant No. 1 and apprised terms and conditions of investment in LIC. On15.6.2006, OP No. 1 was given Rs.3,00,000/- for investment in

‘Future Plus Scheme’ and again on 13.7.2007, OP No. 1 was given Rs.3,00,000/- for investment in ‘Market Plus Scheme’ of LIC. OP invested a sum of Rs.50,000/- each in favour of his two daughters and obtained two policies. It was further alleged that OP

No. 1 handed over premium receipt dated 24.10.2006 for Rs.1,00,000/- paid by the complainant to LIC for Policy No. 151959219 and this amount was stated to have been invested in ‘Market Plus Scheme’. OP No. 2/Petitioner did not issue policy of ‘Market

Plus Scheme’ and later on informed Complainant No. 2 that cheque for aforesaid Policy

No. 151959219 stood dishonoured; so, receipt dated 24.10.2006 may be treated as cancelled. OP no. 1 misappropriated and converted funds to his own use. It was further alleged that OP No. 1 later on refunded amount of Rs.3,00,000/- to the complainant as

OP No. 2 was bound by the act of its agent. Alleging deficiency on the part of OPs, complainant filed complaint before District Forum. OP No. 1 did not appear before

District Forum. OP No. 2 resisted complaint, but admitted status of OP No. 1 as agent of

LIC. OP No. 2 expressed ignorance of the entrustment of Rs.6,00,000/- by complainant to OP No. 1 and further submitted that cheque for Rs.1,00,000/- was dishonoured on account of insufficiency of funds and prayed for dismissal of complaint. Learned District

Forum after hearing both the parties allowed complaint and directed OP Nos. 1 & 2 to pay Rs.1,00,000/- jointly and separately with 9% p.a. interest and further allowed complaint and directed to recover Rs.1,00,000/- from OP No. 1 with cost of Rs.2,000/-

Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

3. None appeared for the Respondent no. 3 even after publication of notice in newspaper.

5. Learned Counsel for the petitioner submitted that; though, OP No.1 was agent of

OP No. 2; even then, OP No.1 was not authorized to collect premium on behalf of OP

No.2 and if there was any misappropriation of amount by OP No.1,OP No.2 was not responsible; even then, State Commission committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the Respondent Nos. 1&2 submitted that order passed by learned

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

6. It is not disputed that OP No. 1 was agent of OP No. 2. As per allegation in the complaint, complainant entrusted some money to OP No. 1 for obtaining insurance policies for the complainant and cheque issued towards premium of policy was dishonoured due to insufficiency of funds. As per allegation in the complaint,

Rs.3,00,000/- were returned by the OP No.1 to complainant, but some money was not refunded by OP No. 1 to the complainant.

7. Now, the core question to be decided is whether OP No. 2 was liable for the acts and misappropriation of funds by OP No. 1 acting as agent of OP No. 2. Learned

Counsel for the petitioner placed reliance on (1997) 5 SCC 64 – Harshad J. Shah and

Anr. Vs. L.I.C. of India & Ors. in which after referring clause 3 & 4 of the regulations framed by LIC, it was held that until and unless complainant proves that LIC by its conduct had induced complainant to believe that OP No. 1 acting as agent was authorised to receive the premium on behalf of LIC, LIC cannot be held responsible for the amount of premium received by agent. In the case in hand, nowhere it has been pleaded by complainant that LIC by its conduct induced complainants to believe that OP

No. 1 was authorised to receive premium on behalf of Respondent No. 2. In such circumstances, petitioner could not have been held liable for refund of so called premium amount received by OP No. 1 on behalf of the petitioner.

8. Learned Counsel for the respondent submitted that in good faith, this amount was entrusted to Respondent No. 3 for depositing with the LIC against the policies to be obtained. In the light of Harshad J. Shah and Anr. (Supra) judgment, no liability can be fastened on the petitioner for refund of amount received by his agent as premium for obtaining policies for complainants and learned District forum committed error in allowing complaint against the petitioner upto the extent of Rs.1,00,000/- and learned

State Commission further committed error in dismissing appeal and revision petition is to be allowed.

9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 14.05.2012 passed by the State Commission in Appeal No. 130 of 2008 –

Life Insurance Corporation of India Vs. Yog Raj Chauhan & Ors. is set aside and order of District Forum dated 18.3.2008 passed in Complaint Case No. 2/2008 – Yog Raj

Chauhan & Anr. Vs. Shri Thakur Dass & Ors. is partly modified and Petitioner/OP No. 2 is exonerated from making any payment to the complainant with no order as to costs. ………………Sd/-……………

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

(From the order dated 8.06.2012 in First Appeal No. 419/2010 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Jai Chand Supplier S/o Dhani Ram Bus Stand Village Chuhapur Kalan, Tehsil Chhachhrauli, District Yamuna Nagar, Haryana …Petitioner/Complainant Versus 1. M/s. Krishana Automobiles (Through its Partner of Proprietor) Village Khizarabad, Tehsil Chhachhrauli, Distt. Yamuna Nagar, Haryana.

2. M/s. Krishana Automobiles (Through its Managing Director Or General Manager) 125, Industrial Area, Phase I Chandigarh

3. JCB India (Through its Manager (Legal) Sanjay Gupta), 23/7, Mathura Road, Ballabh Garh (Faridabad), Haryana

4. M/s. Vishal Power System (Authorized Dealer of Kirlosker Oil Engines Ltd.) (Through its Managing Director Or General Manager), Plot No. 4, Sector 3, HSIDC, Indl. Area, Karnal – 132001 (Haryana)

…Respondents/Opp. Parties (OP)

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. Dharam Raj Ohlan, Advocate

For the Res.Nos. 1&2: Mr. Rajinder Saini, Branch Manager

For the Res. No.3 : Mr. Braj K. Mishra, Advocate

For the Res. No. 4 : NEMO

O R D E R

This revision petition has been filed by the petitioner against the order dated 08.06.2012 passed by the Haryana State Consumer Disputes RedressalCommission, Panchkula (in short, ‘the State Commission’) in Appeal No. 419 of 2010 – JCB India Vs. Jai Chand Supplier & Ors. by which, while allowing appeal, order of District Forum allowing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner purchased one JCB machine from the OPs/Respondents vide invoice NO.6810003651 dated 25.7.2008 for work to earn the livelihood for himself. The said JCB machine was under the warranty and guarantee of one year from the date of its purchase orupto 2000 working hours whichever occurs earlier. It was alleged that in the month of June, 2009 the said JCB machine became out of order and its engine seized, so the complainant took the said

JCB machine to the premises of OP NO. 1 and told about the defects. The OP No. 1 asked the complainant to leave the said JCB machine at the place of OP No. 1 and assured to repair the same or replace its engine free of costs within one or two days.

Thereafter, the complainant visited the premises of the OP No. 1 several times since

28.6.2009, but of no use. It was further alleged that the complainant sent a registered

AD legal notice dated 7.7.2009 to the OPs, but the respondents have not complied with. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP Nos. 1 & 2 resisted complaint and submitted that nature of defect was required to be handled by Kirloskar Oil Engine Ltd. OP No. 1 and 2 carried out the job of informing Vishal Power System effectively and efficiently. Decision whether the job is warrantable or not lies with KOEL/his authorized dealer i.e. Vishal Power System and not with OP No. 1 and 2. It was further submitted that the said machine was brought to the OP No. 1 & 2 atKhijrabad workshop with internal problem in engine and axle defect on 29.6.2008. Axle defect was attended on 30.6.2008 by Khijrabad workshop under warranty. However, engine internal problem was referred to Vishal Power System

(authorized dealer of Kirlosker Oil engines Ltd.) as per policy laid down by JCB India

Ltd. as Vishal Power System were competent to attend the engine internal problem and take decision whether job is warrantable or not. It was further submitted that on

2.7.2009, Vishal Power System conveyed the complainant that the job is not warrantable and prayed for dismissal of complaint. OP No. 3 resisted complaint and submitted that as machinery was purchased for commercial purposes, complainant does not fall within the purview of consumer and prayed for dismissal of complaint. OP

No. 4 did not appear. Learned District forum after hearing all the parties, allowed complaint and directed OP Nos. 3 & 4 to replace engine of JCB as early as possible and further directed to pay Rs.1000/- per day from 2.7.2009 till replacement of the engine. Appeal filed by the OP No. 3 was allowed by leaned State Commission vide impugned order against which, this revision petition has been filed.

3. None appeared for Respondent No. 4 even after service.

5. Learned Counsel for the petitioner does not press this revision petition against

Respondent nos. 1 &2 as he has not purchased JCB machine from Respondent Nos.

1&2 and District Forum has not allowed complaint against them and petitioner has not preferred any appeal against Respondent Nos. 1&2.

6. Learned Counsel for the petitioner submitted that inspite of averments in the complaint regarding purchase of JCB machine for earning livelihood for himself and his family members, learned State Commission committed error in allowing appeal on the ground that complainant does not fall within the purview of consumer; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned

Counsel for the Respondent No. 3 submitted that as complainant has not specifically pleaded that machine was purchased for earning his livelihood by means of self- employment. Order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

7. Complainant in paragraph 2 of the complaint mentioned that the complainant purchased the above said JCB machine from the respondents to do the concerned work with the same to earn the livelihood for himself and his family members which apparently indicates that complainant purchased JCB machine for earning his livelihood for himself and his family members by means of self-employment. Learned State

Commission has committed error in allowing appeal on this ground and it would be appropriate to remand the matter back to the learned State Commission to decide the appeal afresh after considering the averments in the complaint and on merits regarding direction to replace engine and grant compensation.

8. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 08.06.2012 passed by State Commission in Appeal No. 419 of 2010 – JCB

India Vs. Jai Chand Supplier & Ors. is set aside and matter is remanded back to the learned State Commission to decide appeal on merits including the aspect whether the complainant falls within the purview of consumer in the light of averments in the complaint.

9. Parties are directed to appear before the State Commission on 8.7.2014.

10. Learned State Commission may proceed with the appeal even in absence of OP

Nos. 1 & 2, as no relief has been granted by District Forum against OP Nos. 1 & 2 and complainant has not challenged order of District Forum before State Commission.

……………Sd/-………………

PRESIDING MEMBER

……………Sd/-………………

( DR. B.C. GUPTA )

(From the order dated 18.09.2013 in First Appeal No. 557/2012 of the Tamil Nadu State Consumer Disputes Redressal Commission, Madurai Bench)

Saroja W/o Dhas Pekkalanvilaiveedu Maniyarankuntu Amsi, Thengapattanam Post, Kanyakumari District Tamil Nadu …Petitioner/Complainant Versus Selvan, Proprietor M/s. Sudha Finance, Pilanthottam, Kuntravilaiveedu Painkulam Post, Kanyakumari District Tamil Nadu.

… Respondent/Opp. Party (OP)

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. T.R.B. Sivakumar, Advocate

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 18.09.2013 passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Madurai Bench (in short, ‘the State Commission’) in Appeal No. 557 of 2012 – Selvan Vs. Saroja by which, while allowing appeal, order of District Forum allowing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner pledged 120 grams of jewels with OP/respondent on 23.11.2004 and availed loan for Rs.65,000/-. Complainant paid

Rs.8,000/- on 29.01.2005 and later on paid Rs.30,000/-. As complainant was not in a position to redeem jewels within one year and 7 days, complainant approached OP.

Later on, the jewels could not be redeemed, as OP went to overseas countries in search of job. OP returned on 8.10.2010 and complainant approached for redemption and also sent legal notice. Alleging deficiency on the part of OP, complainant filed complaint before District Forum for return of jewels after receiving Rs.93,000/- and also claimed compensation. OP resisted complaint and submitted that complainant pledged 105 grams of jewels instead of 120 grams and further submitted that as complainant did not redeem jewels within time limit of one year and 7 days and inspite of notice dated

15.12.2005, complainant failed to redeem the jewels, they were sold in public auction. It was further submitted that complaint was barred by limitation and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to return 105 grams of jewels after receiving Rs.1,22,000/- from the complainant and further directed to pay Rs.5,000/- as compensation and Rs.1000/- as costs. Appeal filed by the OP was allowed by learned State Commission vide impugned order against which, this revision petition has been filed.

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

4. Learned Counsel for the petitioner submitted that inspite of the fact that the complaint was within limitation, learned State Commission committed error in dismissing complaint as barred by limitation; hence, revision petition be admitted.

5. Perusal of record clearly reveals that loan was obtained by the complainant after pledging jewels on 23.11.2004 and jewels were to be redeemed within a period of 1 year and 7 days. Admittedly, complainant did not pay full amount within the prescribed period and did not redeem the jewels and filed this complaint in the year 2010 on the basis of notice dated 18.10.2010.

6. Complaint was to be filed within a period of 2 years from the date of redemption, i.e, one year and 7 days from the date of pledging jewels or from date of auction. By that time, complainant neither paid full amount, nor requested OP to redeem jewels.

Complainant simply mentioned in the complaint that as OP was out of country for a long period, complaint was not filed and claimed limitation. Learned Counsel for the petitioner placed reliance on (2007) 3 SCC 142 –Transport Corpn. of India

Ltd. Vs. Veljan Hydrair Ltd. and has drawn our attention to paragraph 11 of the judgment which runs as under: “ 11. Section 24-A of the Consumer Protection Act, 1986 provides that

neither the District Forum nor the State Commission nor the National Commission shall admit a complaint unless it is filed within

two years from the date on which the cause of action has arisen.

The term "cause of action" is of wide import and has different

meanings in different contexts, that is when used in the context of

territorial jurisdiction or limitation or the accrual of right to sue. It

refers to all circumstances or bundle of facts which if proved or

admitted entitles the plaintiff (complainant) to the relief prayed for.

In the context of limitation with reference to a contract for carriage

of goods, the date of cause of action may refer to the date on which

the goods are entrusted, date of issue of consignment note, the

date stipulated for delivery, the date of delivery, the date of refusal

to deliver, the date of intimation of carrier's request to wait for

delivery as the goods are being traced, the date of intimation of loss

of goods, or the date of acknowledgement of liability”.

7. We agree with the legal position narrated by Hon’ble Apex Court, but this citation is not applicable to the facts and circumstances of this case at all. Complainant has not filed any application under Section 24-A for condonation of delay in filing the complaint. Limitation cannot be claimed by the complainant on the basis of notice dated

18.10.2010 and learned State Commission has not committed any error in allowing appeal and dismissing complaint being barred by limitation. 8. 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.

9. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.

………………Sd/-……………

..………………Sd/-……………

Dabur India Ltd. 8/3 Asaf Ali Road, New Delhi.

... Petitioner/OP

Versus

1. Harpreet Singh Oberoi, s/o Jagdish Singh r/o Laxmi Nagar, near Prabhat Chowk,

Hoshiarpur

2. Oriental Insurance Co. Ltd. Regional Office, SCO No. 109 to 111, Sector 17 – D, Chandigarh

3. Oriental Insurance Company Ltd. Mumbai City Divisional Office No. 4, Gresham Assurance House, 2nd Floor, Sir P.M. Road, Flrt, Mumbai – 400001.

4. Oriental Insurance Co. Ltd., Branch Office, near B.M.C. Chowk, Jalandhar

… Respondents/OPs

BEFORE

For the Petitioner Mr. Sudhir K. Makkar, Advocate

Mr. Sirikanth Nayak, Advocate

Mr. Himanshu Bhatia, Advocate

For Respondent 1 Mr. Harpreet Singh Oberoi, in person

For Respondent 2 to 4 Mr. Rajesh K. Gupta, Advocate

for Arkay & Arkay

Commission’) in FA No. 1250/2007, “Oriental Insurance Co. Ltd. & Ors. versus Harpreet

Singh Oberoi”, vide which the order dated 19.07.2007, passed by the District Consumer

Disputes Redressal Forum, Jalandhar, allowing the said complaint, was ordered to be modified.

2. Brief facts of the case are that the complainant/respondent no. 1, Harpreet Singh

Oberoi was working as sales representative with OP-3, Mirasu Mkt. Ltd., Mumbai at

Jalandhar (Now Dabur India Ltd., the petitioner). OP-3 purchased a personal accident insurance policy from the present petitioner with Policy No. 121300/42/2004/180. The complainant met with an accident on 07.06.2004 and received injuries on his body. He remained admitted in the hospital till 13.06.2004. The matter was reported to the local police and an FIR was registered at Police Station Adampur, District Jalandhar. Even after his discharge from the hospital, the complainant continued to be under treatment and as stated by him, he suffered 50% disability. The complainant filed insurance claim with the petitioner and presented the necessary documents, like bills, prescription slips, payment receipts etc. demanding a sum of `_1,85,000/-. As stated in the complaint filed before the District Forum, it was alleged that the petitioners/OP had neither settled the claim nor sent any reply to him. The complainant sought direction to the respondents/OPs to make payment of ` 1,85,000/- alongwith interest @9% p.a. and also compensation of ` 7,000/- as litigation expenses.

3. In their reply filed before the District Forum, OP-3 Mirasu Mkt. Ltd. stated that the complaint was not maintainable against them as there was no contract between the complainant and OP-3. OP-3 had written many letters to the complainant to pursue his case and supply documents to the insurance company. OP-3 further maintained that the complainant was not a consumer, vis-a-vis, OP-3. Further, the complainant used to work at Mumbai and hence, the District Forum at Jalandhar had no jurisdiction to take cognisance of the matter. The present OP 1 & 2 also filed their written version before the District Forum saying that the necessary documents were not supplied by the complainant to them and hence, the claim could not be decided. The District Forum after taking into account the evidence of the parties, directed vide their order dated

19.07.2007 that the Insurance Company should pay the claim amount of ` 1,85,000/- to the complainant, while OP-3, the employer should pay interest @9% p.a. on the amount of the claim and should also pay ` 5,000/- as compensation for non-supply of documents in time and ` 3000/- as cost of litigation.

4. An appeal was filed against the order of the District Forum before the State

Commission by the Insurance Company. No appeal was filed by the employer Mirasu

Marketing Limited. The State Commission vide impugned order came to the conclusion that the order dated 19.07.2007 required modification, because the employer/OP-3 had also done deficiency in service by not supplying the requisite documents. The State

Commission ordered that all three respondents including the Insurance Company and the employer would be jointly and severally liable to pay the entire amount of

`_1,85,000/-. They, however, maintained the order of the District Forum directing OP-3 to pay interest @9% p.a. on the claim amount of ` 1,85,000/-, ` 5000/- as compensation and ` 3000/- as litigation cost. It is against this order that the present petition has been made.

5. It has been stated by the petitioner in the revision petition that M/s Mirasu

Marketing Ltd. which was OP-3 in the complaint before the District Forum was amalgamated with M/s Femcare Pharma Limited in a scheme of arrangement, presented under section 391 to 394 of the Companies Act, 1956. The Scheme was accorded approval by the High Court of adjudicature at Bombay vide order dated

07.07.2004, passed in company petition no. 350/2008, etc. M/s Femcare Pharma

Limited was further amalgamated with the petitioner Dabur India Limited. In another similar scheme of arrangement, it was accorded approval by the Hon’ble High Court of

Bombay vide order dated 07.05.2010. Hence, the petitioner had stepped into the shoes of M/s. Mirasu Marketing Limited and had filed the present revision petition.

6. At the time of arguments before us, the learned counsel for the petitioner stated that the only dispute involved in the present case is the non-supply of two documents to the insurance company, namely, the salary certificate and the sanction order for the grant of leave to the complainant employee. In so far as the factum of issuance of

Policy and the liability of the insurance company to meet the claim under the policy was concerned, there was no issue raised in the case, that such a claim was not payable. In fact, the submission of these two documents was not in any way concerned with the payment of claim, as the claim was regarding the reimbursement of medical expenses incurred and these are payable under the terms and conditions of the Policy. In case, the petitioner failed to submit these documents, such documents could be submitted by the complainant himself. The complainant is supposed to be in possession of salary certificate or the sanction order for granting the leave. Moreover, the District Forum as well as the State Commission had observed in their order that the documents asked for by the Insurance Company were not relevant and the claim could be decided, even in the absence of these documents. The learned counsel further stated that as per direction given by the District Forum regarding the payment of interest on claim amount and compensation etc., the petitioner had already complied with the order, rather they never challenged this part of the order before the State Commission. The learned counsel argued that the order of the State Commission vide which the petitioner had been held to be jointly and severally liable for reimbursement of claim was perverse in the eyes of law. The liability to pay the claim amount rested solely with the insurance company and hence, the present petition should be accepted and order of the District

Forum upheld.

7. The learned counsel for respondent 2 to 4/ OP 1 & 2 Insurance Company stated that it had been admitted by the petitioner in the ‘synopsis’ and the ‘dates of events’ attached with the revision petition that the complainant/respondent no. 1 was guilty of non-performance of his duty as he did not ask for supply of requisite documents, which were required to be sent to the Insurance Company. The learned counsel stated that the claim had been rightly repudiated by the insurance company for supply of relevant documents. The details of the required documents had been provided in the circular dated 20.08.2004, issued by the insurance company. In a letter sent to the complainant dated 31.05.2003, it had been indicated that for settlement of claim, a certificate of leave/absence from duty was required. Since the petitioner/OP-3 had not supplied the documents, they were liable for joint liability. The order passed by the State

Commission was, therefore, in accordance with law and should be upheld.

8. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. There is no denying the fact that the insurance policy in question has been obtained by the complainant from the insurance company through his employer, who is the present petitioner, and under the said Insurance policy, the complainant is liable to get a claim of `_1,85,000/-. The

Insurance Company did not settle the claim on the ground that two documents, viz., certificate of absence from duty and salary certificate had not been made available to them. The District Forum, however, reached the conclusion that sufficient documents had already been given to the insurance company for deciding the claim and they could have made payment on the basis of those documents. The act and conduct of the

Insurance Company in demanding more documents was not justified and amounted to deficiency in service. The District Forum held that the insurance company was liable to make payment of claim of ` 1,85,000/-. They also held that for failure of OP-3/Petitioner in not supplying the documents, they were liable to pay interest on the said amount

@9% p.a., ` 5,000/- as compensation and ` 3,000/- as cost of litigation. The present petitioner did not challenge the order of the District Forum in so far as the grant of interest, compensation or litigation cost was concerned, and hence that part of the order has attained finality. The State Commission, on the other hand, in appeal filed before them by the insurance company, reached the conclusion that the entire controversy was created due to deficiency in service on the part of the OP-3 in not supplying the requisite documents and they held the petitioner/OP-3 to be jointly and severally liable for payment of the entire amount in addition to interest and other compensation imposed.

9. From the material on record, we do not find any justification to agree with the conclusion arrived at by the State Commission. The salary certificate etc. is required to calculate the temporary total disablement. In the present case, compensation for the expenses incurred on treatment of the complainant has been claimed by the complainant. The factum of his accident has not been denied by other party. It is quite clear that the Insurance Company have unnecessarily raised the issue of non-supply of two documents. We agree with the contention of the District Forum that sufficient documents had already been submitted to the Insurance Company and they were not justified in demanding more documents.

10. In the light of the position stated above, there does not seem to be any justification for putting liability on the petitioner for payment of the amount claimed jointly and severally with the Insurance Company. The District Forum ordered payment of interest on the amount claimed and some compensation by the petitioner and the said direction was not challenged by the petitioner and hence, it has attained finality. However, the direction of the State Commission to make payment of the claimed amount jointly and severally with the Insurance Company deserves to be set aside.

11. The present revision petition is, therefore, allowed in view of the facts stated above and the order passed by the State Commission is set aside, the order passed by the District Forum is confirmed. There shall be no order as to costs.

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

MEMBER RS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

1. The New India Assurance Co. Ltd. SCO No. 46 – 47, Phase – 2, SAS Nagar, Mohali, District Ropar – 160056.

2. Sh. Charanjit Singh, Assistant Manager (Development), The New India Assurance Co. Ltd. SCO No. 46 – 47, Phase – 2, SAS Nagar, Mohali, District Ropar – 160056 through The Manager, The New India Assurance Co. Ltd. Jeevan Bharti Building, Tower Two, 5th Floor, Connaught Place, New Delhi – 110001.

... Petitioners/Opposite Parties

Versus

Jaspal Kaur Shop No. 126, Jama Market, Phase 3 B-1, Mohali (Punjab)

BEFORE

For the Petitioner(s) Mr. S.M. Tripathi, Advocate

For the Respondent Mr. Shashi Mohan, Advocate

Commission’) in FA No. 1078/2008, “The New India Assurance Co. Ltd. versus Jaspal

Kaur,” vide which, while dismissing the appeal, the order dated 07.07.2008 in consumer complaint no. 66/2008, passed by the District Consumer Disputes Redressal Forum,

Ropar, allowing the said complaint, was upheld.

2. Brief facts of the case are that the complainant/respondent Jaspal Kaur is the owner of shop no. 126 at Janta Market, Phase 3B-1 at Mohali. She obtained fire and special peril policy for insurance of her stock and khokha for an amount of ` 3.25 lakh and ` 25000/- respectively from the petitioner. Policy No. 352300/11/06/00000441 was obtained by paying a premium of ` 2495/-. On 01.06.2007, fire broke out in the market where the said shop was situated and the stock as well as the shop was burnt. An intimation was given to the insurance company about the said incident, but the insurance claim was not paid, despite approaching the officials of the insurance company many a time. A registered notice was also sent to the OP Insurance

Company on 04.02.2008, but still, the claim was not paid. Smt. Jaspal Kaur, then filed the consumer complaint in question before the District Forum. In their written statement, filed before the District Forum, the petitioner insurance company stated that the complainant was the owner of the said khokha, but the stock within the premises of the shop, belonged to her son Harminder Singh, who was running the business in the name of M/s. Fashion Centre by combining three shops, i.e., Shop No. 125, belonging to Harminder Singh, Shop No. 126 belonging to Jaspal Kaur and Shop No. 319 belonging to Kamal Kumar. Since the stock belonged to Harminder Singh, Jaspal Kaur was not entitled to get the said claim. The District Forum, after taking into account the evidence of the parties reached the conclusion vide order dated 07.07.2008 that since there was stock lying in the said premises at the time of fire, the insured was entitled to get the claim, irrespective of the fact whether the stock belonged to her or not. Further,

Harminder Singh was the son of Jaspal Kaur and hence, they were liable to be given the claim. The District Forum directed the petitioner company to pay the claim amount of ` 2,91,440/- for shop no. 126 to the complainant alongwith interest @9% p.a. from the date, the surveyor’s report was submitted, till realisation. It was also ordered that a sum of ` 1000/- should be paid as cost of litigation to the complainant/respondent. An appeal was filed by the insurance company before the State Commission against this order of the District Forum dated 07.07.2008. Vide impugned order dated 31.10.2012, the State

Commission decided two appeals, FA No. 1077/2008, “New India Assurance Company and Ors. versus Kamal Kumar” and FA No. 1078/2008, “New India Assurance Company and Ors. versus Jaspal Kaur”. The State Commission accepted appeal no. 1077/2008 in Kamal Kumar’s case, set aside the order passed by the District Forum and dismissed the complaint filed by the complainants. However, in FA No. 1078/2008 relating to

Jaspal Kaur, the State Commission took a different view and dismissed the appeal of the insurance company and confirmed the orders passed by the District Forum. 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 Insurance

Company has drawn our attention to a report submitted by Sanjay Gupta, Surveyor and loss assessor, dated 28.07.2007, saying that it had been clearly brought out in the said report that the owner of the Shop No. 126, Jaspal Kaur, had given her shop to

Harminder Singh, son of the insured and the stocks in the premises belonged to M/s

Fashion Centre and hence, the insured did not have any insurable interest in the stocks. The surveyor stated that the insurer was liable to pay for damage to the Khoka only to the respondent/complainant. The learned counsel argued that this contention of the surveyor was supported by statement of Harminder Singh himself, in which he had clearly admitted that he was the proprietor of M/s. Fashion Centre, and doing his business from Shop No. 125, 126 and 319 at Janta Market, Phase 3B-1 at

Mohali. Harminder Singh had also stated that shop no. 126 was given to him by his mother Jaspal Kaur. The learned counsel stated that the view taken by the District

Forum that the complainant was eligible to get the insurance claim, even if the stocks did not belong to her, was not a correct view. The learned counsel also stated that although the State Commission had decided two appeals by one common order, but they had taken different views in the two cases and hence, the order passed by the

State Commission was not sustainable.

4. The learned counsel for the complainant/respondent stated that the insurance policy had been taken for the stock as well as for khokha. The insurance company was, therefore, liable to make payment for loss of stocks as well. The learned counsel has also drawn our attention to the orders passed by the Hon’ble High Court of Jammu &

Kashmir in “Oriental Insurance Company versus Sham Lal Mattoo” [as reported in (AIR

2006 J&K 103)], in which it has been stated as follows:- “A contract of fire insurance as in the present case requires an insurable interest in the subject matter and the test of determination of that interest is whether the loss of property would cause a pecuniary loss to the insured and whether he would have attained any pecuniary benefit or advantage from preservation of the insured property. If the insured would suffer the loss or derive the benefit he would be having an insurable interest in the subject matter of the insurance contract which was good enough to entitle him to the assessed loss. What was the extent of his interest and whether he was with full or part of the property was irrelevant for the purposes of settling his claim. Because the Insurance of the subject matter and its ownership may not necessarily go together. They may be insurance to cover the interest of others and the person insuring the interest may not be the owner of the property.”

5. The learned counsel argued that in the present case, the complainant/respondent could not be denied claim, saying that she had no insurable interest in the matter.

6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

7. From the facts on record, it is made out undisputedly that Harminder Singh who is the son of Jaspal Kaur complainant/respondent, is running his business at three shops, namely, shop no. 125, 126 and 319, in the name of Fashion House. Out of these premises, shop no. 125, belongs to Harminder Singh, shop no. 126 belongs to Jaspal

Kaur and shop no. 319 belongs to Kamal Kumar. Three different policies have been taken for three premises, namely, Policy No. 352300/11/06/00000440 for shop no. 125 of Harminder Singh, Policy No. 352300/11/06/00000441 for shop no. 126 of Jaspal Kaur and Policy No. 352300/11/06/00000442 for shop no. 319 of Kamal Kumar. Now, coming to the case of Kamal Kumar for shop No. 319, the District Forum allowed the complaint and directed the insurance company to pay ` 1,15,000/- for the stock in shop no. 319 to Harminder Singh alongwith interest @9% p.a. The said order was, however, reversed by the State Commission vide impugned order dated 31.10.2012 and the consumer complaint, in question, was ordered to be dismissed.

8. Regarding the other two premises no. 125 and 126, it is clear from the report of the surveyor Sanjay Gupta that he assessed the total loss for these two premises to be

` 6,90,000/-. The surveyor stated that the entire stock was equally divided in shop no.

125 and 126 and hence, the value of the goods lying in each of these shops was estimated to be ` 3,45,000/-. After making detailed calculations and provision for salvage, dead stock and liability for khokha, a sum of ` 2,91,440/- was worked out for shop no. 125 and the said sum was paid to Harminder Singh for shop no. 125. Harminder Singh has also given his statement that he received the sum of `

2,91,440/- as full and final settlement of claim for khokha no. 125 as per Policy No.

352300/11/06/00000440. The Insurance Company have also stated in their reply that

Harminder Singh received the said sum as full and final settlement.

9. Further, in so far as, shop no. 126 is concerned, it is an admitted fact that the said shop belongs to Jaspal Kaur, but the stock in the said premises belonged to her son

Harminder Singh. Harminder Singh has categorically admitted this fact during his statement that the entire stock in the three shops belonged to him. The District Forum vide their order dated 07.07.2008, concluded that even if the stock in premises 126 did not belong to Jaspal Kaur, she was entitled to be compensated for the loss by the insurance company to the same extent as permitted for shop no. 125 to Harminder

Singh. In appeal against this order before the State Commission, the said Commission vide impugned order dated 31.10.2012 dismissed the same and upheld the order passed by the District Forum, allowing a sum of ` 2,91,440/- to the complainant, Jaspal

Kaur. It is quite evident from the order passed by the State Commission, that on one hand, they have dismissed complaint relating to premises no. 319 of Kamal Kumar, saying that the claim was not payable as the stock in question did not belong to Kamal

Kumar. However, the State Commission applied a different logic for premises no. 126 and upheld the order of the District Forum, allowing the payment of claim to Jaspal

Kaur. We do not find any justification to agree with this order of the State Commission, when it is very clear that the policy was in the name of Jaspal Kaur, but the stock in question belonged to Harminder Singh. It is true that Harminder Singh is the son of

Jaspal Kaur, but being a son, does not entitle him to claim benefit under the policy taken by Jaspal Kaur. The order passed by the State Commission in FA No. 1078/2008 is not in accordance with law and deserves to be set aside. Jaspal Kaur is entitled to be compensated for loss/damage to Khokha only and not for damage to the stocks.

10. Based on the discussion above, the present revision petition is allowed and the order passed by the State Commission in Appeal No. 1078/2008 is set aside. The complainant/respondent is ordered to be entitled for payment of ` 25,000/- minus the excess clause of `_10,000/-, i.e., `_15,000/- alongwith interest @9% p.a. from the date of complaint till realisation. It is borne out from record that over a period of time, certain improvements have also been made in the said premises; hence the depreciated value for the shop is not being taken for payment of claim. It is held, therefore, that complainant/respondent Jaspal Kaur shall be entitled to receive a sum of ` 15,000/- from the Insurance Company alongwith interest @9% p.a. from the date of filing the complaint till realisation. There shall be no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

REVISION PETITION NO. 3054 OF 2013 (From order dated 29.04.2013 in First Appeal No. 1012 of 2008 of the Delhi State Consumer Disputes Redressal Commission, Delhi)

1. Mrs. Abha Sinho W/o. Dr. Sanjay Sinho 5/14, Punjabi Bagh Extension New Delhi – 110026

2. Mrs. Vilas Bhushan W/o. Dr. Vidya Bhushan 5/14, Punjabi Bagh Extension New Delhi – 110026

3. Dr. Vidya Bhushan 5/14, Punjabi Bagh Extension New Delhi – 110026

4. Mrs. Kum Kum Marwah W/o. Sh. K.D. Marwah 5/14, Punjabi Bagh Extension New Delhi – 110026 … Petitioners Versus

M/s. Ansal Buildwell Ltd. 118, UFF, Prakash Deep Building 7, Tolstoy Marg New Delhi – 110001 … Respondent

For the Petitioners : Mr. Raghunath Menon, Advocate For the Respondent : Mr. Gurinder Pal Singh, Advocate

O R D E R JUSTICE J.M. MALIK 1. There is delay of one day in filing the revision petition. Though, an application for condonation of delay has not been filed, but in the interest of justice, we condone the said delay.

2. On 31.05.1997, the complainants/petitioners, Mrs. Abha Sinho, Mrs. Vilas Bhushan, Dr. Vidya Bhushan and Mrs. Kum Kum Marwah booked a flat bearing F-242, Ground Floor, in the proposed project, named as Shalimar Residency, Sushant Lok-II, Gurgaon,

Haryana, with M/s. Ansal Buildwell Ltd., the opposite party. Its price was fixed at Rs.19,95,000/- with discount of Rs.50,000/- for initial booking. The complainants were promised that they would get the possession of the flat within three years, i.e. by June, 2000. The complainants visited the site in February, 1999, but found that no flat was made at the site. The complainants vide letters dated 09.02.99 and 20.04.99, requested the OP to pay interest on their deposit, but those were not responded.

3. On the pursuance of the OP, the complainants opted for some other flat in another Scheme of the OP, known as Royal Residency Floor, Sushant Lok-II, Gurgaon, Haryana, in September, 2000. By that time, the complainants had paid 85% of the total cost of the above flat, in the sum of Rs.10,31,957/-. The price of the second flat was Rs.13,75,000/- with rebate. The OP had promised to pay the complainants interest @ 15% p.a., on advance payment and Rs.30,000/- as discount payable for initial booking.

4. However, no possession was given till 18.03.2004. The complainants brought on record a letter dated 20.07.2001, written by OP to them, regarding Flat No.F-296/FF in Royale Residency Floors, Sushant Lok-II, which reads as follows :- “You have already been given credit of interest amount for all excess period of installment received against the said flat after deduction TDS amount as per rules under Income Tax Act vide our letter dated 25th September, 2000, which has also been confirmed to you vide our letter dated 3rd March, 2001. The work of D.P.C. of the said flat has been completed and an intimation of the next stage of construction i.e. completion of ground floor roof slab would be sent to you after completion of the same which is in progress. Please note the expected date of possession of the said flat is June, 2002”.

5. However, no possession was given till 14.03.2004. The complainants filed a complaint before the District Forum with the following prayers :- “In view of the submissions made above, it is most respectfully prayed that the respondents may please be called upon to hand over the actual physical possession of the above mentioned flat bearing No.F-296-FF in Royal Residency floors in Sushant Lok- II, Gurgaon, complete in all respects and refund the extra money with interest and adequately compensate the complainants. Such other or further relief as the Hon’ble Forum may deem fit and proper may also please be afforded to the complainants for the present case demonstrates the highly and unscrupulous conduct of the respondents and for the malpractice adopted by them. The respondents are guilty of deficiency in service and unfair trade practices. The mental agony the complainants have suffered calls for exemplary damages for the unfathomable harassment and torture the complainants have undergone be meted out to the complainants in which two of them are senior citizens and a pensioner having invested their life long savings with respondents since about eight years by now, when normally the money doubles in about five years. And compensate them with adequate litigation costs”.

6. The main defence set up by the OP was that they had offered the possession time and again, but the complainants did not come forward to take over the possession of the premises in dispute. The District Forum vide its order dated 26.09.2008, rendered the following orders :- “ 1. The OP will immediately handover flat No.296 FF in Royal Residency Scheme in Sushant Lok, Gurgaon, to complainants/ allottees, complete in all respects, after charging the balance amount of Rs.3,12,336/-. 2. OP has caused mental agony and was deficient in service by not fulfilling its promises and has used the money of the complainants for several years and on this account the OP will pay a compensation of Rs.15,00,000/- from which the balance amount of Rs.3,12,336/- may be deducted. 3. OP will pay Rs.20,000/- towards cost of litigation to the complainant. This order be complied within 30 days”.

7. Aggrieved by that order, the OP filed an appeal before the State Commission. The State Commission modified the order of the District Forum and came to the conclusion that the possession of the flat would be given to the complainants only after they have paid the entire sale price. The District Forum ordered that they are yet to pay Rs.3,12,336/- and as such they were not entitled for any compensation. The complainants had agreed that, if for any other reason, there is delay in handing over possession, no claim by way of damages, compensation, will lie against the OP.

8. We have heard the counsel for the parties. The learned counsel for the respondent vehemently argued that they had offered the possession of the flat in Royal Residency Floor, vide their letter dated 07.06.2004. Its relevant para runs as follows :-

“We are pleased to offer you possession of your flat. 1. An Up-to-date statement of account towards the price of the flat, electric connection charges, water/sewer & storm water connection charges, interest on delayed payment, wherever due, contingency deposit, registration fees and stamp duty charges, etc., are enclosed as per Annexure-I. All these charges are payable by A/c Payee demand draft within 15 days of the issuance of this letter”.

This letter further mentions that the petitioner was to pay a sum of Rs.4,40,970.90. This must be borne in mind that this letter was sent during the pendency of this case, before the District Forum. The complainants did not pay the amount as demanded by the OP, as the demand was on higher side.

9. The learned counsel for the OP further invited our attention towards second letter dated 05.01.2009 with the following subject matter :-

“ Possession in terms of order dated 26.09.2008 of District Forum-VI in complaint No.865 of 2004 filed by you and order dated 15.12.2008 of State Commission in the First Appeal No.1012 of 2008 filed by us”.

10. Revision petition was filed before this Commission in respect of interim application. The complainants wanted to pay the amount before this Commission as per the order rendered by the District Forum. However, we had restored the case and sent back the case to the State Commission. The possession was ultimately given after deposit of Rs.3,12,368/-, on 18.04.2013. Learned counsel for the OP argued that under these circumstances, no fault can be attributed to OP.

11. For the following reasons, we clap no significance to the arguments canvassed by the counsel for the OP. Flat F-296/FF was allotted subsequently, after September, 2001. The Flat No.242-GF was booked on 31.05.1997. No headway was made for about three years. Terms of the flat were not handed over to the complainants. In a case titled as Samarth Associates Eng. & Builders & Ors. Vs. Ramesh Ramachandra Lokhande RP No.4729 of 2012, dated 10.09.2013, this Commission held as under :- “ 7. The following deficiencies are apparent on the face of the record. First of all, it is not understood why the agreement was not executed at or about the execution of receipt of Rs.25,000/-. In Belaire Owners’ Association Vs. DLF Ltd. & Ors., Case No.19/2010,vide supplementary order dated 03.01.2013, the Competition Commission of India, held :- “ 31.The terms of the agreement to be entered into with the allottee were never shown to the allottee at the time of booking of the apartment. These terms and conditions of the agreement were prepared and framed by the company unilaterally without consulting the buyer. Once the company had already received considerable amount from the applicants/buyers, this agreement was forced upon the allottees and the allottee had no option but to sign the agreement, as otherwise the agreement provided for heavy penalties and deduction from the money already deposited by the allottees with the company, which itself was an abuse of dominance. The appropriate procedure would have been that a copy of the agreement which DLF proposed to enter with the allottee should have been made available to the applicants at the time of inviting applications”.

12. Aggrieved against the order of this Commission, dated 10.09.2013, Special Leave to Appeal (Civil) Nos.36667-68 of 2013, with the same cause title (Samarth Associates Engineers & Builders & Ors. Vs. Ramesh Ramachandra Lokhande) was filed before the Hon’ble Apex Court. The Hon’ble Apex Court, vide its order dated 16.12.2013, dismissed the same.

13. It is not explained as to why did the OPs withheld the money of the complainants, for such a long time, without any rhyme or reason. No compensation was given for those four years. Though, in the agreement, it was stated that the Petitioner would not compensate for the delay, yet, vide letter dated 25.02.1999, it was clearly, specifically and unequivocally mentioned by the OP, as under :- “Dear Sir, This has reference to your above said letter and noted the contents therein. Kindly note that interest @ 15% on all installments paid in advance shall be credited to your account after deduction of TDS, etc. Thanking you, Yours faithfully, For ANSAL BUILDWELL LTD. Sd/- P.VARSHNEY/DY. GENERAL MANAGER”.

Was this letter written in order to lead the complainants, up the garden path?

14. Secondly, we come to the offer letter dated 07.06.2004. Apparently, this was not a correct demand. Both the fora below have come to the conclusion that an amount of Rs.3,12,336/- was recoverable but the OP demanded a sum of Rs.4,40,970.90 ps, that too, during the pendency of this case. Consequently, we pin no value with such like offer. In view of the orders passed, subsequently, by the fora below, its demand letter pales into insignificance and has to be eschewed out of consideration.

15. At the time of admission, the State Commission Bench presided over by Justice J.D. Kapoor, passed the following order, on 15.12.2008 :- “ FA-08/1012 Merely on the allegations that the appellant withheld possession of the flat for non-payment of Rs.1,06,793/- against the total consideration of Rs.11,38,750/- which too is disputed by the appellant, the District Forum has vide order dated 26th September, 2008 directed the appellant to handover the possession of the flat after charging Rs.3,12,338/- as admitted by the appellant and also to pay Rs.15 lacs as compensation, appeal is admitted but subject to deposit of Rs.5 lacs towards compensation amount including statutory deposit. So far as direction to handover the possession is concerned, learned counsel undertakes to handover the possession against payment of Rs.3,12,338/- within one month. Appeal is admitted in respect of the compensation awarded by the District Forum. Re-list on 30.01.2009”.

16. Subsequent order passed by the State Commission, on 11.03.2013, reads as follows:- “FA-1012/8 During the course of the argument, it is revealed that State Commission vide order dated 15.12.2008 has directed the appellant to pay Rs.5 lakhs towards the compensation and also hand over the possession of the flat in dispute to which the counsel for the appellant also agreed and has given an undertaking. By this order, it is also directed that the respondent shall pay Rs.3,12,338/- , but it is very strange that more than 4 years have gone, this order has not been complied with. Now it is prayed by the counsel for the appellant that 30 days’ time be given to make the flat in question habitable and on the expiry of 30 days, the flat shall be handed over to the respondent. The respondent states that he is ready to pay the amount of Rs.3,12,338/- and has shown the DD for this amount to us. Put up on 15.04.2013 for further hearing and before this date, the appellant shall hand over the possession to the respondent as directed above. It is made clear that the DD of Rs.3,12,338/- shall be handed over to the appellant at the time of possession only and not before this". [EMPHASIS SUPPLIED]

It is thus crystal clear that the flat in question was not ready/ habitable till 11.03.2013. The possession was given on 18.04.2013.

17. The offer was made on 07.06.2004. There is a lot of difference between 31.08.1997 to the years 2004, 2009 and 2013. The prices of the land have increased by leaps and bounds. It is not difficult to fathom, why did the OP adopt a Fabian policy?, certainly, to feather its own nest, i.e., to make profits at the expense of others. Shalimar Residency floors were never made the headway towards its project. They should have worked against the clock. For the said twelve years, no lucid explanation is forthcoming.

18. The Hon’ble Apex Court in K.A. Nagamani Vs. Housing Commissioner, Karnataka Housing Board, Civil Appeal Nos. 6730-6731 of 2012, dated 19.09.2012, gave 18% interest to the consumer due to non-possession of the premises in dispute.

19. It must be borne in mind that the OP has itself stated in no uncertain words that it will pay interest @ 15% p.a. to the complainants on the delay. The prices have escalated more than ten times, since then. The complainants could get the fruit of their hard earned money only after sixteen years. Consequently, the order passed by the District Forum cannot be faulted. It is, therefore, ordered that order passed by the District Forum be complied with within 90 days from the receipt of this order, otherwise, it will carry interest @ 18% p.a., till its realization. The revision petition stands disposed of.

REVISION PETITION NO.2555 OF 2013 with I.A. No.4284 of 2013 (For Stay) I.A. No.1432 of 2014 (For Stay of Execution Application) (Against the order dated 27.3.2013 in Appeal No.641/2012 of the State Commission, Kerala)

1. World Wide Immigration Consultancy Services Ltd. (WWICS Ltd.) Head Office at A- 12, Industrial Area, Phase-VI, Mohali, Chandigarh – 160022 Rep. by Mr. Bharat Lal

2. World Wide Immigration Consultancy Services Ltd. (WWICS Ltd.) Branch Office at Kochi, Sonu Towers, Above Birla Sunlife Insurance, Jos Junction, MG Road, Ernakulam represented by Mr. Bharat Lal

…Petitioners

Versus

Jereena Job P. Vadakkethalakkal, Near Mahalakshmy 532B, AP2, Arthat P.O. Trichur, Presently residing at C/o Thomas John Onasseril House, Kottayathpara Thiruvamkulam, Ernakulam Dist. P.O. Kureekad

..Respondent

BEFORE:

For the Petitioners : Mr. Sunil Goyal, Advocate

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

In the present revision petition filed under Section 21(b) of Consumer Protection Act,1986 (for short, ‘Act’) by the Petitioners/Opposite Parties, there is challenge to order dated 27.3.2013 passed by State Consumer Disputes Redressal Commission, Kerala (for short, ‘Act’), vide which Appeal No.641 of 2012 filed by the petitioners against order dated 29.3.2012 passed by District Consumer Disputes Redressal Forum, Ernakulam (for short, ‘District Forum’) was dismissed.

2. Brief facts are that Petitioner No.1 is the Immigration Consultancy Services and Petitioner No.2 is its branch office at Kochi. It is stated that Respondent/Complainant entered into an agreement with the Petitioners on 29-01-2009 for immigration to Canada. Petitioners agreed to render the services to the respondent. As per the terms of agreement, respondent has to pay a total fee of Rs.50,000/-. Out of the said sum, an amount of Rs.30,000/- was payable at the time of signing of the agreement and balance sum of Rs.20,000/- within thirty days from the date of signing the agreement. Over and above, the professional charges, it was also agreed to pay a sum of 1700 US $ as visa processing fee and for meeting the initial expenses on arrival of the respondent at Canada. It was also agreed to refund 50% of the total fee collected or Rs.25,000/- whichever is less in case the respondent was declared disqualified. Respondent paid the entire amounts as agreed upon and submitted all the certificates. The certificate for job experience was obtained from the present employer of the respondent on the lines of advice given by the petitioners. The application submitted by the respondent was rejected by the High Commissioner of Canada vide letter dated 19-11-2009 stating that the job experience as per the experience certificate, was not sufficient for processing the application. After that, respondent requested the petitioners for refund of 50% of the professional charges paid and the Visa Processing Fee collected from him. But petitioners did not care to reimburse the amount. According to the respondent, she is entitled for the refund of 50% of the amount paid by her for professional services of Rs.50,000/- and full amount of visa processing fee collected from her of 1,700 US $ together with interest, compensation and costs. 3. Petitioner in its reply took the plea that respondent has not impleaded M/s. Global Strategic Business Consultancy, Dubai to whom respondent had paid a sum of US $ 1,700. They are necessary parties to the proceedings.

4. It is further stated that petitioners only to assist the candidates in the process which includes the preparation of his or her immigration file, verify their credentials, supply with required documents, communicate the case with Canadian authorities, doing the entire correspondence with the High Commission etc. and will not cover a 100% guarantee of migration to Canada, since sanction for migration is to be granted by the Canadian authorities. Respondent as per Clause 2 (a) of the contract was required to submit the complete documents within 30 days from the date of signing the agreement.

However, respondent in spite of the repeated requests failed to submit the complete documents along with experience certificates which resulted in rejection of her case by the Canadian high commission. In this case, petitioners have properly carried out their responsibilities efficiently and effectively. The last day for submitting the documents was, 20th of September, 2009. The respondent submitted only incomplete documents, mainly the experience certificate which does not contain detailed job duties. Further, petitioners never agreed to refund 50% of the fees. Moreover, as per Clause 10 of the contract it is clear that the services provided by the petitioner company being professional in nature, the entire fee is non-refundable. Respondent’s case was rejected not due to deficiency on the part of the petitioners but on the respondent’s failure. Hence, the complaint is to be dismissed with cost.

5. District Forum allowed the complaint in part and directed the petitioners jointly and severally to refund 50% of the amount of Rs.50,000/- as per Ext.A-2 and A-3 receipts and to pay Rs.84,230/- (1700 US $) as per Ext.A-4 together with 12% interest p.a. from the date of complaint till realization.

6. Being aggrieved, petitioners filed an appeal before the State Commission which dismissed their appeal and upheld the order of the District Forum.

8. We have heard the learned counsel for the petitioners and gone through the record.

9. It has been contended by learned counsel for the petitioners that M/s. Global Strategic Business Consultancy, Dubai was a necessary party as sum of US $ 1,700 was received by that company. Thus, the petitioners are not liable to pay that amount.

10. Other submission of learned counsel is, that as per the terms of the agreement, petitioners had already performed their duties and filed the case for permanent migration, but the same was rejected on the ground of lack of experience. Thus, no deficiency of services can be fastened on the petitioners.

11. District Forum in its order held;

“7. As per Exts. A2 and A3 receipts it is evident that the opposite parties have received a sum of Rs.50,000/- from the complainant. The opposite parties vehemently objected the receipt of 1700 US $ towards visa processing fee from the complainant. It was paid to M/s. Global Strategic Business Consultancy, Dubai vide D.D by the complainant. On a perusal of Ext. A4 copy of D.D and the receipt of Thomas Cook India Ltd. revealed that the D.D was taken in favour of WWICS Ltd. and in the foreign exchange application it is noted that the name of the complainant and C/o. WWICS. No evidence is before us to show that the said transaction of the complainant was directly with M/s. Global Strategic Business Consultancy, Dubai. Clause 2 in Ext. A1 agreement deals with the duties of the client and in which sub-Clause 2 (v) reads as follows [[“The client agrees that he/she shall correspond with the respective Visa Post/High Commission through the Company only and that he/she shall not change the correspondence address without seeking prior approval of the Company. A penalty of Rs. 25,000.00 (Rupees Twenty Five Thousand only) shall be charged if the Client is found to be dealing directly or through any other representative (other than WWICS Ltd.) at any address other than that of the Company. Besides, the Company shall be at liberty to take appropriate legal action against the Client to recover any unpaid amount if any out of the total fee. In the event of rejection of the application as a result of discrepancies caused due to direct dealing by the client, client shall be solely responsible for that and shall not be entitled to any refund thereafter.”

In the aforementioned reasons, there is no question for non-joinder of necessary party. In the above circumstances, the complainant is entitled to get 1700 US $ with interest from the opposite parties. Clause 1 in Ext. A1 discuss the duties of the opposite parties. Sub-Clause (h) it is stated that “Advice the client about any subsequent changes in the immigration laws and any subsequent conditions applicable to meet the selection criteria.” At the outset, the opposite parties ought to have verified the documents submitted by the complainant along with her application. It was the duty of the opposite parties to verify the same and reject the same then and there if the complainant is not qualified enough to submit an application for Visa in the concerned category. Had the opposite parties applied their mind at the threshold, this complaint would not have arisen. Instead of that the opposite parties a service provider processed the application and the Canadian High Commission had to reject the same based on their own rules and to cover up the lacunae the opposite party issued Ext. B1 belatedly.

8. The Canadian High Commissioner rejected the application of the complainant due to the above stated deficiency on the part of the opposite parties. Therefore, the complainant is entitled to get the entire amount with interest from the opposite parties, however, we are not to order refund of the entire amount, since the complainant has claimed only the 50% of the amount paid to the opposite parties as per Exts. A2 and A3 receipts. We are not ordering any compensation and costs, since we have already ordered interest for the amount collected by the opposite parties.”

12. The State Commission while dismissing the appeal of the petitioner, in its impugned order observed;

“ We have heard both the counsels in detail and perused the documents and are of the considered view that as per the agreement entered into between the parties, the respondent is entitled for 50% of the professional charges. The visa processing charges of 1700 US $ accepted from the respondent towards post entry expenses which was not utilized at all, the appellant is liable to refund the visa processing charges also. We find force in the argument put forth by the respondent who had already submitted the documents in time and assistance given by the appellant was not fruitful. The Canadian authorities rejected the application form on the sole reason of lack of details of job duties in the experience certificate and we find deficiency in service on the part of the appellants.”

13. 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.

14. Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 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 that 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 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 finding of two fora.”

15. As per the Contract of Engagement which is dated 29.1.2009 executed between the parties, amongst others the duties of the petitioner company are as under;

“1. Duties of the Company:

In consultation with its associates at various locations the Company shall provide the following services to its clients;

a) Assess the client according to the information provided by the client in the assessment form.

b) Assist the client in preparation of his/her immigration case;

c) Review and identify submission of required documents and supporting evidences; d) Submit the complete case with supporting documentation and evidence alongwith the submission report to the processing visa office on the receipt of all requisite documents from the client at WWICS Ltd., Head Office.

e) Handle all correspondence with the respective High Commission pertaining to client’s case.

f) Intimate the requirements sent by Processing Visa office during the progress of the Immigration case.

g) Assist the client in keeping his/her file up to date;

h) Advice the client about any subsequent changes in the immigration laws and any subsequent conditions applicable to meet the selection criteria.”

16. It is an admitted fact that High Commission of Canada, vide its letter dated 19.11.2009 has rejected the application form of the respondent on the ground that the job experience certificate was not sufficient.

17. Thus, it is manifestly clear that petitioners did not perform their above duties diligently and that is why the application form of the respondent was rejected. Under these circumstances, deficiency on the part of the petitioners is writ large in this case.

18. Consequently, we hold that both the fora below have rightly allowed the complaint of the respondent. Under these circumstances, the present revision petition being without any legal basis has no merit and has been filed just to waste the time of this Commission and to deprive the respondent the fruits of the award passed more than two years ago. Therefore, we dismiss the present petition with cost of Rs.10,000/- (Rupees Ten Thousand only). Out of the above costs, Rs.5,000/- be paid to the respondent by way of demand draft in her name and the remaining cost be deposited by way of demand draft in the name of “Consumer Legal Aid Account” of this Commission, within six weeks.

19. In case, petitioners fail to pay/deposit the aforesaid costs within the prescribed period, then they shall be liable to pay interest @ 9% p.a., till realization.

20. Costs awarded to the respondent be paid only, after expiry of the period of appeal or revision preferred, if any.

21. List for compliance on 11.7.2014. …………………………………….J

(V.B. GUPTA) PRESIDING MEMBER

(REKHA GUPTA) MEMBER NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

CONSUMER COMPLAINT NO.188 OF 2013 WITH INTERIM APPLICATION NO.2631 OF 2014 INTERIM APPLICATION NO.2632 OF 2014 (MAINTANABILITY OF COMPLAINT & CONDONATION OF DELAY)

1. Consumer Welfare Association (Regn. No.643/03 Mumbai) 402, B- Wing, Ashoka Complex, Justice Ranade Road, Dadar, Mumbai- 400028

2. Sri Mahendrakumar Mansinghka J-401, Kalpita Enclave, Sahar Road, Andheri (East), Mumbai-400069 … Complainants Versus M/s Webb Hill Resort Corporation 107, Kedia Chambers, S.V. Road, Malad (West), Mumbai- 400064 Through its partners Shri Damodaran S. Mudaliar Shri Sudhir Narsinha Deshpande Shri Surendra Shridhar Mazumdar Shri Shantilal Motilal Kothari Shri Vijaykant Motilal Kothari Shri Sudhir Narsinha Deshpande ..... Opp. Party

BEFORE: HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER For the Complainants : Mr. A. M. Mascarehas (Secretary of Complainant No.1-Association) Alongwith the complainant No.2 in person For the Opp. Party-1 : Mr. S.K. Pattjoshi, Sr. Advocate Assisted by Mr. Vikas Nautiyal, Advocate For the Opp. Party-2 : Deleted PRONOUNCED ON : 13th MAY, 2014 ORDER PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

The above noted complainants have filed the present consumer complaint alleging deficiency in service and adoption of unfair trade practice by the opposite party in respect of handing over the possession of bungalow No.A/3 admeasuring 636 sq. ft. located in Surveyor No.17/3B and 18/4B of villate Metgutad, Tal. Mahabaleshwar,

District Satara by stipulated period or till date. For the purpose of pecuniary jurisdiction the complainants have valued the complaint at Rs.1,27,60,000/-.

The opposite party in its written statement apart from the other pleas has taken a preliminary objection that complaint is not maintainable before the National Commission because the value of the relief claimed is much below the pecuniary jurisdiction of this

Commission. Learned counsel for the opposite party has submitted that the complainants with a view to short circuit the hierarchy of District Fora has inflated the jurisdictional value of the complaint. It is argued that as per the agreement dated

6.1.1990 between the parties the value of the subject bungalow is Rs.3,50,000/- and as per the valuation report submitted by the complainant in support of the complaint, the market value of bungalow is estimated to be Rs.24,00,000/-. Therefore, by no stretch of imagination this complaint could have been filed in the National Commission.

Learned counsel for the complainants on the contrary has submitted that the complainant has rightly valued the subject complaint at Rs.1,27,60,000/-. In support of this contention, he has referred to the inspection-cum-valuation report prepared by

M/s Doshi & Co. annexed to the complaint.

We have considered the rival contentions and perused the record. Undisputedly the parties entered into an agreement of sale of the subject bungalow on 6.1.1990. As per the agreement the estimated value of the bungalow to be constructed and provided by the opposite party was Rs.3,50,000/-. No doubt almost 24 years have gone by, therefore, the cost of the property has escalated. The question is what is the present market value of the bungalow in question. In this regard, the inspection-cum valuation report dated 27.4.2013 by M/sDoshi & Co., Chartered Engineers & Surveyors assumes importance. On perusal of the report we find that the value has estimated the value at Rs.1,27,60,000/-. The concluding remarks of the valuation report which are relevant, therefore, are reproduced as under: “CONCLUDING REMARKS: Based on the above information, location and size of the property (Bungalow A/3 and appurtenant land alongwith common areas and facilities (Ex. G & H of the Agreement) located in Webb Hill Resort (renamed Swiss Country Resort) the market value of this property is worked out as under:

i) Bungalow (G+1) 60 SM @ 40,000 = Rs.24,00,000”

ii) Surrounding Plot and Facilities 370 SM @ 28,000 = Rs.1,03,60,000

TOTAL VALUE = Rs.127,60,000

(Rupees One Crore Twenty Seven Lakh Sixty Thousand only)

On perusal of the photocopy of the agreement for sale filed alongwith the complaint it is clear that the opposite party had agreed to develop the project, construct the bungalow and deliver its possession to the complainant in consideration of

Rs.3,50,000/-. The valuer has arrived at the figure of Rs.1,27,60,000/- as estimated value of the bungalow constructed in 60 sq. mt. at the rate of Rs.40,000/- per sq. mt. at

Rs.24,00,000/-. Besides the aforesaid value he has added the value of surrounding plot and facilities at Rs.1,03,60,000/- There is no justification in adding the figure of

Rs.1,03,60,000/- to the value of the relief claim by the complainants particularly when the agreement with the opposite party was only in respect of bungalow constructed in

60 sq. mt. Thus, it is obvious that this is a clear case of inflating the value of relief with a view to bring this complaint within the pecuniary jurisdiction of this Commission which is not permissible under law. Thus, in our considered opinion and even as per valuation report the value of the relief sought in the complaint is not more than Rs.24 Lakhs.

Section 21 (a) of the Consumer Protection Act, 1986 provides that National Commission shall have jurisdiction to entertain complaint where the value of the goods/services and compensation, if any, exceeds rupees one crore. Therefore, this being the case filed with the inflated jurisdictional value does fall within the pecuniary original jurisdiction of the National Commission.

Complaint is, therefore, returned with liberty to the complainant to approach the Fora having pecuniary jurisdiction within one month. Consumer complaint is disposed of accordingly.

…………………..……….. (AJIT BHARIHOKE, J.) PRESIDING MEMBER

……………….…………… (SURESH CHANDRA) MEMBER Raj/

REVISION PETITION NO. 4463 OF 2012 (From order dated 08.08.2012 in First Appeal No. 1649 of 2007 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

M/s D. D. Tyres 301/1, Near Kulwant Motors, Hisar Road, Rohtak (Haryana), Through its Proprietor Sh. Pankaj Chaudhary … Petitioner Versus

The United India Insurance Co. Ltd. Branch Office, at 5 Circular Road, Bhiwani through its Divisional Manager, The United India Insurance Co. Ltd. D. Park, Rohtak (Haryana) … Respondent

BEFORE:

For the Petitioner : Mr. N. Choudhary, Advocate

For the Respondent : Mr. Abhishek Kumar, Advocate

Pronounced on : 15th May, 2014 O R D E R JUSTICE J. M. MALIK, PRESIDING MEMBER

1. On the night falling between 10-11h April, 2012, a theft took place in the shop of M/s

D. D. Tyres, the complainant, in this case. The complainant had obtained insurance policy from United India Insurance Company Limited, the opposite party. The case of the complainant is that 32 automotive tyres and tubes were stolen by the unknown person and in this regard, he had suffered a loss of Rs.3 lakh. The insurance company appointed a

Surveyor, who assessed the loss at Rs.1,96,950/-.

2. A complaint was filed before the District Forum. The District Forum granted a sum of

Rs.1,96,950/- in favour of the complainant alongwith interest @9% per annum from the date of filing the present complaint till its realization. It also awarded Rs.1,000 as litigation expenses to the complainant.

3. The State Commission dismissed the appeal filed by the complainant. The complainant has now filed the instant revision petition.

4. Learned counsel for the petitioner argued with vehemence that there were reports of two surveyors. It may also be mentioned here that besides the twosurveyors reports, a preliminary investigation report was filed by Shri P. Kumar Garg & Associates Pvt. Ltd.

Surveyors & Loss Assessors. He visited the spot on 11.4.2002 for the survey. He physically verified the stock and gave its details. The books of account and other stock record were not produced. Lastly he concluded that : “During our visit at the insured premises, the Branch Manager of the Insurers Mr. Virander Singh also reached the site. In his presence, the insured was advised to send the copies of the purchase and sales account to us on the next day, but the same have not been received by us till today inspite of our telephonic requests.”

5. There is the investigation cum surveyor’s report dated 15.2.2013 given by Soni &

Co. The said Surveyor mentioned in para 15 clause (9) that since the insured had not properly entered all the purchases of tubes and flaps it is not possible to ascertain the quantity lost on account of tubes and flaps. Hence we considered only the items of tyres for our loss assessment. It was further mentioned in para 19 : “We have considered a dead stock factor of 2.5% in this case, which is quite normal considering the fact that there are some items in the stock from more than one year and which have not been sold till the date of loss. So dead stock factor is most reasonable in our opinion.”

Lastly, he gave the opinion which runs as follows. “In our opinion the insured had incurred a loss of Rs.2,30,607.12 which is subject to the terms and conditions of policy and our investigations regarding clause proximity and its coverage under the policy and the Underwriters may take appropriate decision for close proximity based on our findings in the Report and confirmations on such findings at their end.”

This investigation report runs into 27 pages. It does not appear to be the

investigation report simpliciter.

6. Thereafter, another surveyor was appointed and it gave his report on

13.3.2003. Our attention was invited towards the following extract: “ We however are of the opinion that the purchase of truck tyres is made in such a manner that the Tyres, Tube and Flap come as a single fitted unit and it is because of this reason that the entry of tubes and flaps is not made separately by the insured. This aspect will also have an impact on the assessment of loss as the investigator had valued the loss by taking the rate of tyre only (excluding the rate of tube and flap) whereas the rate should have been taken for the Tyre/Tube/Flat which come as a fitted unit and were not reportedly lost as such.”

7. Learned counsel for the petitioner vehemently argued that both the reports are

not reliable and the claim made by the complainant should be sanctioned, which is

according to the books of accounts. He has also cited an authority reported

in Sri Venkateshwara Syndicate vs. Oriental Insurance Company Ltd. II (2010) CPJ 1

(SC). Its relevant para finds mention in the middle of para 22 which runs as follows. “……………..We also add, that, under this Section the insurance company cannot go on appointing Surveyors one after another so as to get a tailor-made report to the satisfaction of the concerned officer of the insurance company, if for any reason, the report of the Surveyors is not acceptable, the insurer has to give valid reason for not accepting the report. Scheme of Section 64-UM particularly, of Sub-sections (2), (3) and (4) would show that the insurer cannot appoint a second surveyor just as a matter of course. If for any valid reason the report of the Surveyor is not acceptable to the insurer may be for the reason if there are inherent defects, if it is found to be arbitrary, excessive, exaggerated, etc., it must specify cogent reasons, without which it is not free to appoint second Surveyor or Surveyors till it gets a report which would satisfy its interest………………”

8. The learned counsel for the opposite party/respondent laid emphasis on the fact that both the fora have placed reliance on the final report of Surveyor and first two surveyors simply investigated the case. He stressed that there is not even an iota of evidence on record which may go to show that the Surveyor was having bad blood with the complainant. He submitted that the enmity, ill will or malice between the surveyor and complainant did not stand proved and there is no other option but to accept his report.

9. We clap no significance to the arguments urged by the learned counsel for the opposite party. First of all, it must be mentioned here that there are two surveyors’ report on record. The first report dated 15.2.2013 is a long detailed report and even the books were checked. It clearly mentions that this is a survey report. No cogent and plausible reason was given by the opposite party as to why this report should be rejected. The opposite party also did not give any reason why there was need to appoint a second surveyor. Moreover, out of the two reports, which favours the complainant has to be relied upon. There is no inkling in the report given by Soni & Co. that another report will follow.

10. The complainant has failed to bolster its case that it suffered a loss of Rs. 3 lakh in absence of solid and unflappable evidence. The plea of the complainant to this extent cannot be accepted.

11. Consequently, we modify the orders passed by fora below and direct the opposite party to deposit a sum of Rs.2,30,607.12 with interest @ 9% per annum from the date of filing of this complaint.

12. The revision petition stands disposed of accordingly.

.…..…………Sd/-………………

.…..…………Sd/-……………… (DR. S. M. KANTIKAR) MEMBER

Naresh/17 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2510 OF 2012 (Against order dated 19.03.2012 in First Appeal No. 651/2010 of the State Consumer Disputes Redressal Commission, Andhra Pradesh, Hyderabad)

Consumer Guidance Society, Vijayawada Krishna District Andhra Pradesh, Representing: Smt. Ch. Dhana Lakshmi W/o Sri Raghavendra Rao (Late) Sole Proprietor of Sri Satyanarayana Rice Mill Vemanda-521311 Unguntur Mandal, Krishna District Andhra Pradesh …Petitioner Versus

1. The New India Assurance Co. Ltd. Rep by its Branch Manager B. O. 620801 14/305, Rice Millers Assn. Sidg., Post Office Road Gudivala-521301 Krishna District, Andhra Pradesh

2. The New India Assurance Company Limited Rep. By its Managing Director, Regd. & Head Office, New India Assurance Building, 37, Mahatma Gandhi Road, Fort Mumbai-400001 .…Respondents

BEFORE:

For the Petitioner : Mr. G. V. R. Choudhary, Advocate Mr. A. Chandra Sekhar, Advocate

For the Respondent : Mr. Amit Kr. Singh, Advocate

PER DR. S.M. KANTIKAR, MEMBER 1. The present Revision Petition has been filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 against the final order dated 19.03.2012 passed in First Appeal No. FA/651/2010 by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’) whereby the State Commission allowed the said appeal filed by the Respondent by setting aside the order dated 04.02.2010 passed in Consumer Complaint No. CC/48/2009 by the District Consumer Disputes Redressal Forum (in short, ‘District Forum’). 2. The Complainant, Smt. Dhanlaxmi who is the owner of the Sri Satyanarayana Rice Mill, at Vermanda, Krishna District, availed insurance Policy from The New India Assurance Co. Ltd, the OP, for a sum of Rs.6,00,000/-, for the period from 03.03.2008 to 02.03.2009. Due to torrential and devastating rains on 8 - 9 August 2008, the said Rice Mill was completely damaged and it was confirmed by the M. R. O. The OP-1 was informed about the damage, and later submitted claim form with all relevant documents. After several strenuous efforts were made by the complainant, the claim was settled by OP-1, belatedly. Thereafter, he got issued a legal notice on 27.02.2009, but the claim was not settled and hence he filed the complaint and prayed for Rs.6,00,000/- towards the insurance claim, with interest @ 18% p.a. and Rs.50,000/- towards compensation for mental agony and costs. 3. The District Forum allowed the Complaint and the OPs 1 & 2 were directed to pay Rs.4,49,000/- to the Complainant with interest @ 9% p.a. from the date of filing (07.01.2009) and to pay Rs.2,000/- towards costs. The State Commission allowed the appeal filed by the OP and dismissed the complaint. 4. Aggrieved by the order of State Commission, the complainant preferred this revision petition. 5. The Counsel for OP vehemently argued that the Survey was conducted by a private person who assessed the loss at higher side, there was no flood on 08 th, 09th and 10th of August, 2008 at the insured place, the policy does not cover the damage caused by rains, no premium was paid to cover the risk of floods and that the insured premises was in a dilapidated and collapsed condition. Hence, the claim was not admissible. 6. The Counsel for the complainant brought our attention to Ex.A2, A4, A5 and A6 issued by Revenue authorities, including that of the District Collector, Krishna District, Machilipatnam, and vehemently argued that those documents establish the genuineness, that there were floods during relevant time resulting in extensive damage to the Rice Mill. Further, he contended that Ex.B19 and B20 are based on scientific methods issued by Indian Meteorological Department; therefore the order of the District forum is sustainable. 7. After going through the evidence on record and the documents, we have given our thoughtful consideration to the fact that the Complainant did not examine her neighbours in support of her contention that on account of floods the property was damaged. The Ex.B19 and 20 issued by the Director, Meteorological Centre, Hyderabad Airport with regard to weather report at Gannavaram Observatory, situated near by the place where rice mill, were issued, based on scientific methods. The said documents reveal that there were thunderstorms with or without rain on the dates from 07.08.2008 at 08.30 hrs. to 10.08.2008, at 08.30 hrs. 8. We have also perused Ex. B.1, the non- agricultural tax receipt No. 0533019 dated 03.04.2008 which discloses that owner of the property is Chilkuri Raghavendra Rao. There is no document to show that the ownership of the property was transferred in her name. Hence, on the date of insurance, the property was in the name of Mr. Chilkuri Raghavendra Rao. Hence, the complainant, Smt. D. Dhanlaxmi, W/o Raghavendra Rao has no insurable interest at the time of the policy, it becomes void ab initio i.e., from the beginning. It is pertinent to note that the Complainant submitted that the Mill was not in operation, after 16th July, 2008. As per condition No. 3 of the policy, it was the duty of the insured to inform the insurer, if the rice mill was closed for 30 days or more, and even though, by then, the Complainant did not inform that the mill became defunct. The surveyor opined that on account of poor maintenance of Mill premises, it collapsed as sequel to heavy rains. Thus the Complainant did not establish her case against the OPs for any amount much less for Rs.4,49,000/-. Complainant did not produce gazette notifications issued by A. P. Government, showing flood affected village in which the said rice mill was situated. 9. Therefore, we put more reliance upon the scientific report of metrological department in this case. The Tehsildar/Revenue office report did not specify any extent of damage to the rice mill of the complainant. Therefore, there is no merit in this petition. Accordingly, no need to interfere with the order of State Commission. This revision petition is dismissed. No orders as to costs. ..………………………… (J. M. MALIK, J.) PRESIDING MEMBER

..………………………… (S. M. KANTIKAR) MEMBER Mss/16 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

1. Mrs. Parveen Gandhi

2. Master Bhavya Gandhi

3. Ms. Shivangi Gandhi

4. Sh. Chaudhary Lal Gandhi

All Reside at: C-3/120, Ashok Vihar, Phase-II, Delhi-110052 ... Complainants

Versus

1. Dr. K. N. Singla C/o Golden Century Hospital, A-11, Shahzada Bagh Extn., Main Road, Shashtri Nagar, Delhi-110052

2. Golden Century Hospital, A-11, Shahzada Bagh Extn., Main Road, Shashtri Nagar, Delhi-110052

... Opposite parties

BEFORE:

For the Complainants: Mr. Satender Sharma and Mr. Yudhvir Sharma, Adv For OP-1 : Mr. Anil Goel, Advocate For OP-2 : Nemo

The Facts in this Complaint:

1. Mr. Anil Gandhi (since diseased-herein referred as a “Patient”) aged about 37 years, was son of a business man having earning of Rs.10,000/- p.m. On 01.07.1999, as he was suffering from fever, got admitted in Golden Century Hospital, New Delhi (the OP-2), under treatment of Dr. K. N. Singla, on same day, at 11 p.m. (Annexure 1). He was given one bottle of Glucose, his condition was improved by next morning. Again, at 9 a.m. on the next day, another bottle of

glucose was administered, immediately the patient started shivering, his Blood Pressure (BP) collapsed, condition deteriorated for which the OP-1 and 2 advised the complainants to shift the patient to Jaipur Golden Hospital, New Delhi (the OP- 3), for further treatment (Annexure B). There, he was kept on artificial ventilation, but condition did not improve, he was declared dead at 12.45 pm. The complainant paid the hospital charges (total Rs.3705/-) vide three receipts (Annexures C, D, E). Thereafter, after lapse of two months, in September, the complainants came to know that the death of his son was due to administration of adulterated glucose and because of negligent treatment by the OP-1 at both hospitals OP-2 and 3. Despite several requests and visits by the complainant to get the medical records and document for cause of death, the OP 2 & 3 turned a deaf ear. The complainant alleged that the OP -1 & 2, just, in order to deny their liability of negligent act & lapses in the treatment has directed the patient to be shifted to Jaipur Golden Hospital. Hence, the complainants filed this complaint and prayed for the compensation of Rs.22,00,000/- and Rs.50,000/- towards mental agony and Rs.22,000/- as litigation costs. The complainant produced annexures A to E (only hospital bills), and filed affidavit evidences of himself and Dr. Anil Shandil.

2. Defense:

The OP-1 and 2 filed their written versions and the affidavit evidences. Denied the negligence, both in giving treatment to the complainant and while shifting to the Jaipur Golden Hospital.

3. Arguments:

We have heard the arguments of both the parties. The Counsel for the complainant brought our attention to the opinion of one witness Dr. Anil Shandyl, a Lecturer, in LLRM Medical College, Meerut, who has clearly stated that;

Para 5: “due to lack of necessary and requisite medical aid for shifting the patient was not available which was the foremost duty of Golden Century Hospital with OPs/parties & it was well in the knowledge of the doctor that “in absence of requisite & necessary medical aid could be fatal for the patient”. Para 6 : “This reflects the carelessness of treatment to the patient at Golden Century Hospital which was without requisite care and adequate facilities, which was to be given to the patient at Golden Century Hospital, which proved fatal for the life of the patient in absence of adequate, requisite and well equipped medical facilities”. The counsel for the Complainant supported his argument by referring concern medical literature 1. Principle of critical care medicine. 2. Mechanical Ventilator Support. 3. Provisions of critical care. 4. The Counsel further argued that, that life of the patient could have been saved, if timely, medical, surgical intervention with reasonable care and adequate medical facilities would have been provided by the Golden Century Hospital to the patient. Therefore, it was a carelessness approach by OP-1 and OP-2 who had no adequate facilities. 5. The counsel for OP argued that, the Complainants have deliberately suppressed the material fact that the patient was admitted as a case of high fever for 3 days, vomiting anddehydration, otherwise, he would have been given the required treatment. Complainants themselves purchased the glucose; the first bottle administration was uneventful. On the next day morning (i.e. 02.07.1999), the condition of the patient did not improve; fever was high at 103° F. All of a sudden, the patient had developed seizure and due to this, his condition kept on deteriorating, with decrease in respiratory effort, due to complications by aspiration of vomitus into the trachea/wind pipe. There was persistent fall in blood pressure, despite all measures and he was put on artificial ventilation. Hence, argued that the allegations of the Complainants are baseless, that around 9 a.m. another bottle of glucose was injected to the patient which resulted in serious complications, the said Glucose was brought by the complainants, from outside shop. Due to the serious condition, the patient was transported to OP-3 immediately, with all medical precautions and respiratory care (tracheal intubation and ambu bag). 6. Findings: In our observations, the patient was shifted to OP-3, when the patient’s condition started deteriorating. We have perused the medical records on file. The hospital treatment sheets at OP-3, recorded that the condition of the patient at 11 am, 11.30 am, was very serious and emergency treatment and necessary resuscitation and intubation was performed. But, we are surprised to note that, the admission slip shows the time of admission at 12:45 p.m. on 02.07.2009 to Jaipur Golden Hospital and subsequently declared dead at 12:45 p.m. on the same day.

7. We find that the complainant has not filed any police complaint at the time of death, the post mortem was not got conducted and no medical board was got constituted to determine the cause of death. There is no evidence to prove that the complainant has sent the glucose bottle for chemical analysis, no complaint was lodged against the chemist and the manufacturer of the said glucose. 8. We put reliance upon the Bolam’s Test and the several judgments of Hon’ble Supreme Court, as well this commission. In the case Achutrao Haribhau Khodwa and Ors. vState of Maharashtra and Ors (1996) 2 SCC 634, the Hon’ble Supreme Court, held that: “ in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.” In Hucks v. Cole (1968) 118 New LJ 469, Lord Denning stated that: “a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.” 9. Therefore, we of considered view that, the OP, Dr. Singla treated the patient of high grade fever with due caution and due to serious deteriorating condition, he referred the patient to another hospital, for further management. Referring the patient to another hospital, is not negligence; it is a standard of medical practice. We find no substance in the affidavit of Dr. Anil Shandyl and the medical literature also does not support this case. No doubt, the hospital records of Jaipur Golden Hospital show some discrepancies, in the timings, which, in our opinion, are unintentional, which were made during handling of dire emergent situation. Also, the complainant failed to prove negligence on the part of OP and also there was no post mortem, chemical analysis report of glucose bottle, in question. We cannot draw any presumption to hold the OP negligent in this case. Accordingly, we dismiss this complaint and parties are directed to bear their own costs.

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

Mss/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3520 OF 2013 From the order dated 24.06.2013 in Appeal No. 28/2013 of the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Aurangabad) WITH IA/7345/2013 (for exemption)

Ganesh Madhavrao Maslekar 15, “Rama Madhav”, Shinde Orchid Shambhu Nagar Near Gadia Vihar City Bus Stop Aurangabad – 431005 …. Petitioner Versus Assistant General Manager, State Bank Of India Retails Assets Small & Medium Enterprises City Credit Cell (RASME CCC) Administrative Cell, Plot No.79, N-5, CIDCO Aurangabad … Respondent

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

For the Petitioner : In person

For the Respondent : Mr. Siddharth Sangal, Advocate

PRONOUNCED ON_16.05.2014

ORDER JUSTICE J.M. MALIK 1. The State Bank of India, issued a pamphlet under the caption “Secure your Future with Home Loans”, which is in Question-Answer form. One of the Qsn&Ans, runs as follows :- “ Q. If all my papers are in order, within how much time, should the Home Loan be normally disbursed?. If all the papers are in place, then the time taken to disburse the loan should be ideally 15 working days from the time you apply for it, provided the property to be financed is clean. The disbursal of loan can be faster in case you have a pre-approval loan letter and if the propery concerned is pre- approved”.

2. This attracted attention of the complainant, Mr.Ganesh Madhavrao Maslekar. He thought that he would get the Home Loan till 30.06.2010 and save the Service Tax and VAT. He applied for loan on 11.06.2010. However, the loan was sanctioned on 09.07.2010, but was disbursed on 14.07.2010. The complaint was filed alleging that by publishing deceitful advertisement, the OP had committed unfair trade practice. He claimed a sum of Rs.1,00,000/- as compensation. The District Forum dismissed the complaint and the State Commission, too, dismissed the Appeal filed by the complainant.

3. We have heard the complainant/petitioner in person. He vehemently argued that due to negligence, inaction and passivity on the part of the OP, he had to pay a sum of Rs.41,200/- as the Service Tax & VAT which was introduced w.e.f. 01.07.2010. 4. We see no merit in these arguments. 5. The counsel for the respondent/OP argued that the said pamphlet is not mandatory, it is directory, it is the instructions given to the employees of Bank so that their bonafide may not be questioned. Again, we find that the word “ideally” cannot be equated with the word “mandatory”. There was no contract between the parties. This pamphlet was just an ‘offer’. There is not even an iota of evidence on the record to show that the petitioner has made it a condition precedent that it must be paid to him till 30.06.2010. Moreover, the advertisement talks about 15 working days. It was argued that if Saturday is counted as half working day, the 15 th working day will come to an end on 01.07.2010. In that event too, the petitioner had to give the service tax. There is not an element of mens rea in this case. It may not give rise to unfair trade practice or deficiency in service of the State Bank of India. Moreover, in SreeKanaka Durga Hatcheries Pvt. Ltd. Vs. State Bank of India, I (2003) CPJ 62 (NC), it was held that non-disbursement of loan does not amount to deficiency in service. It is well known, now-a-days that the borrowers do not pay back the loan amounts to the Banks, smoothly. For Bankers, it would be a matter of walking on eggs. The Bank has to make enquiries before sanctioning the loan. We do not find any flaw with the orders passed by the forabelow. The revision petition is, therefore, dismissed.

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

Kum. Sangita Tukaramji Rokde R/o. Fulchur (Ambatoli) Collector Office Road, Gondia Tehsil & Dist. Gondia ... Complainant Versus

1. Union of India Through Chairman, Railway Board Rail Bhavan, New Delhi

2. Union of India Through its General Manager, S.E.C.R. Bilaspur (C.G.), G.M. Building, Bilaspur

3. Sh. Pritpal, S/o. Lahanu Raipure TTE (SECR), R/o. Gondia, Tehsil & District Gondia Through its DCM Office, Nagpur Nagpur Div. Railways (SECR)

4. Sh. Arvind, S/o. Rajnathji Vishwakarma TTE, Nagpur Div. Railway (SECR) Through its DCM Office, Nagpur

5. Sh. Meena Saheb Now, through DRM Office Nagpur (SECR), Nagpur

6. Sh. Pradip Kumar, Sr.DCM Then Nagpur Div. Railway (SECR) Now, through GM Office, Bilaspur

7. Sh. Abdul Latif Saheb Enquiry Officer, Nagpur Div. Railway (SECR) Through its DCM Office, Nagpur

8. Sh. O.P. Jaiswal Nagpur Div. Railway (SECR) Through its DRM Office, Nagpur 9. Sh. Tondan Saheb, GM, SECR, Bilaspur, GM Building, Bilaspur

10. Sh. S.N. Varma Saheb DRM, Nagpur (SECR) Nagpur Div. Railway (SECR), Nagpur

11. Sh.Mukharji Saheb DCM, Nagpur (SECR) Nagpur Div. Railway (SECR), Nagpur

12. State of Maharashtra Through Superintendent of Police GRP, Nagpur (Itwari)

13. Sh. Mudaliyar (Guard), SECR R/o. Gondia, Tehsil & District Gondia Through its DCM Office, Nagpur Nagpur Div. Railway ... Opposite Parties

BEFORE:

For the Complainant : Mr. P. C. Tiwari, Advocate With Complainant, In person

PRONOUNCED ON_16th May, 2014

ORDER JUSTICE J.M. MALIK 1. The gist of this 76-pages complaint is as follows. Sh.Pritpal, TTE and Sh. Arvind, another TTE, who are arrayed as OPs 3 & 4, respectively, approached the complainant, Kum. Sangita Tukaramji Rokde, while she was traveling in the A/c Coach and demanded a sum of Rs.840/-. She asked for the receipt but they misbehaved with her and admitted that they were taking bribe from the complainant. The actual rate was only Rs.200-300/- . Other persons also witnessed the same, whose names were not disclosed for the moment. The complainant was accompanied by Mr. P.C.Tiwari, her escort. The complaint was also made to Mr. Mudliyar, Guard, OP13, but he did not pay any heed to her complaint.

2. When the OPs 3 & 4 found that Mr.Mudliyar was not taking any action, the complainant was thrown out of her compartment, by them. The complainant wanted to make a report before Sh. Meena, OP5, who was working as Dy. S.M., Gondia. First of all, he did not want to give the complaint book, but after much pressure, the complaint book was given to her. Complaint was also made to Mr. Pradip Kumar, Sr.DCM, OP6, Sh. Abdul Latif, Enquiry Officer, OP7, Sh. O.P. Jaiswal, Nagpur Division Service, OP8, Sh. Tondan, GM, OP9, Sh. S.N. Varma, DRM, OP10 and Sh. Mukharji, DCM, OP11, but no action was taken against them on the pretext that false complaint was lodged against them. They worked in cahoots with each other and made up their minds that she should not travel in A/c coach, in future. Consequently, this complaint was filed before this Commission, on 20.03.2014, with the following prayers :- 1. It be held that the respondents officers of railway have had intentionally committed negligence and deficiency in providing service to complainant and accordingly she be suitably compensated and oppositor railway officer/ authority be issued direction to provide facility and safety to complainant while on her future train journey as and when required in the interest of justice. 2. In the interest of justice and fair disposal the opposite parties be directed jointly and severally to pay to the complainant Rs.Five Crore (Rs. Five Hundred Lacs) for their extremely negligent attitude and for reason of continuous and consistence harassment to her and coupled with reason of not providing timely service to her and with the fact of denial of service to her despite of her readiness and for the reason of not providing safety and security to her while on train journey on various occasion and consistent and regular insult and humiliation of her in public place on number of times by different officer of railway cadres only for the reason that she is fighting against the corruption prevailed in railway and exposure of involvement of officers of railway. 3. That, any other relief deems fit in the circumstances of the case be kindly granted to applicant/complainant”.

3. We have heard the counsel for the complainant, at length, continuously, for two hearings. He contended that this is a case of corruption and whole of the railway department is involved. He argued that the complainant, Kumari Sangita Tukaramji Rokde, is a physically disabled person. She carries a certificate of being physically disabled, every now and then. A report with the CBI, Nagpur, was also lodged on 09.10.2013, which is attached along with this complaint. The matter was also published by the media and report of newspaper clipping of Dainik Bhaskaran, dated 01.07.2013 has been placed on record.

4. It was further submitted that the complainant is an Advocate and physically disabled and basically permanent orthopedically handicapped (disability of 40%). She is a permanent invitee of Lok Adalat and has attended many seminars and is pursuing to become a District Judge. She also cleared the examination for the post of Anganwadi Supervisor and exmaination of clerk. 5. The learned counsel for the complainant lastly submitted that he will have to examine at least 10-12 witnesses, to prove all these allegations. The complainant, on 15.05.2014, has also placed on record, various documents to support her case.

6. We have considered the complainant’s case thoroughly. He has admitted that the complainant is not an Income Tax Payee. For the meagre sum of about Rs.500/-, she is claiming Rs.5.00 crores, as compensation. This Commission,under the Consumer Protection Act, 1986, is a summary court. The examination of witnesses and their cross-examination is not permissible as such. She has lodged report with the CBI. The offence of bribe is yet to be proved. This Commission under the Consumer Protection Act, 1986, does not deal with the cases of bribery and fraud. These entail a lot of evidence and proper investigation. The offence must stand proved in accordance with law. Although, the pleadings are quite impressive, yet, the facts are yet to be discussed down the ground. The consumer fora cannot arrogate to itself the powers of a CBI Court or a Court under the provisions of Prevention of Corruption Act, 1988. It is too early to give our piece at this stage in absence of solid and unflappable evidence. All these allegations cannot be proved through mere affidavits or interrogatories. It is pertinent to know that cross examination of the witnesses is the life/blood of our legal system. It is the only way, a Judge can decide whom to trust and answer, during cross-examination, which may wreck one’s case. It is painfully apparent that it is impossible to gauge the real issue. This Commission is unable to winnow truth from falsehood. This Commission can go into the subject, only skin deep. It cannot be said at this stage, at which way the wind will blow.

7. In a recent authority Pesi Dady Shroff Vs. Boehringer Ingetheim Denmark & Anr., Civil Appeal No.9453 of 2013, filed against this Commission’s judgment and order passed in Consumer Complaint No.164, dated 10.07.2013, the Hon’ble Supreme Court was pleased to make the following observations :-

“Leaving the question of law open, as to whether in such a fact situation, provisions of Consumer Protection Act, 1986, are applicable, it is open to the appellant to approach the Civil Court for the simple reason that for the purchase price of Rs.4-5 lakhs in 2003, he has claimed a sum of Rs.73.35 crores. Such a claim can be adjudicated only after the assessment of evidence, etc., before the Civil Court and, therefore, it is a fit case where, even if the Consumer Protection Act, 1986, is applicable, the appellant must approach the Civil Court for appropriate relief.

With these observations, the civil appeal is disposed of”.

8. In Synco Industries Vs. State Bank of Bikaner & Jaipur and Others, (2002) 2 SCC 1, the Hon’ble Apex Court has held as under :-

“3. Given the nature of the claim in the complaint and the prayer for damages in the sum of rupees fifteen crores and for an additional sum of rupees sixty lakhs for covering the cost of travelling and other expenses incurred by the appellant, it is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event,

not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the civil court. This is an appropriate claim for a civil court to decide and, obviously, was not filed before a civil court to start with because, before the consumer forum, any figure in damages can be claimed without having to pay the court fees. This, in that sense, is an abuse of the process of the consumer forum”.

9. In view of the above discussion and rulings, we, therefore, dismiss this complaint, with liberty to the complainant to approach the Civil Court or Criminal Court, to get redressal of her grievance(s), as per law. The Interim Application (unnumbered) filed on 13.05.2014, by the complainant, for grant of Rs.40,00,000/- against OPs, is also dismissed, for the above said reasons.

………………….…………… (DR. S.M. KANTIKAR) MEMBER NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 07.10.2013 in First Appeal No. 146/2012 of Delhi State Consumer Disputes Redressal Commission)

Amit Goel, Sh. Raj Kumar Goel, 4, Mahavir Enclave, Post Office Majra, Dehradun Uttarakhand PIN – 248171

... Petitioner

Versus

1. M/s. Avlon Resorts Pvt. Ltd., Empire Estate, Sultan Pur, Mehrauli Gurgaon Road, New Delhi – 110030

2. M/s. Avlon Resorts Pvt. Ltd., SCO 29, Basement, Feroze Gandhi Market, Ludhiana – 141001

…. Respondent(s)

BEFORE

For the Petitioner(s) Mr. Prem Kumar Chugh, Advocate

For the Respondent(s) Ms. Manjira Dasgupta, Advocate

PRONOUNCED ON : 16th MAY, 2014

O R D E R

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

Protection Act, 1986 against the impugned order dated 07.10.2013, passed by the Delhi

State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in

First Appeal No. 146/2012, “Amit Goel Vs. Avlon Resorts Pvt. Ltd., vide which, while dismissing appeal, the order passed by the District Consumer DisputesRedressal Forum on 20.09.2011, partly allowing consumer complaint No. 591 of 2007, was upheld.

2. Briefly stated the facts of the case are that the petitioner/complainant is stated to have purchased “Time Share Membership” from the respondent/opposite party for 24 years by making payment of Rs.62,500/- on 01.07.2005 and further paying Rs.27,500/- on 05.07.2005, thus totalling Rs.90,000/-. It has been alleged that despite making payment, the opposite party failed to issue Time Share Certificates to the complainant within a period of ninety days from making payment, although an agreement had been entered between the complainant and the opposite party to this effect. The complainant requested the opposite party to cancel his membership and refund the amount deposited. However, vide letter dated 31.10.2006, the opposite party offered to refund

Rs.70,000/- only, after making deductions of Rs.10,000/- as administrative charges and

Rs.10,000/- as commission. The complainant declined the offer and filed the consumer complaint in question, seeking directions to the opposite party to refund Rs.90,000/-, along with interest @ 18% per annum from the date of receipt of the amount and a further sum of Rs.50,000/- as compensation against mental harassment and Rs.5,000/- as cost of litigation.

3. The District Forum vide their order dated 20.09.2011, observed that the opposite party had already returned a sum of Rs.70,000/- on 07.05.2009 and a sum of

Rs.20,000/- on 17.01.2011 during the pendency of the complaint. The District Forum ordered that a sum of Rs.10,000/- should be given by the opposite party to the complainant as lump sum interest. An appeal was filed by the petitioner against this order before the State Commission, which was dismissed vide impugned order dated

07.10.2013. It is against this order that the present petition has been made.

4. Heard the learned counsel for the parties and examined the record.

5. The learned counsel for the petitioner stated that the opposite party had indulged in deficiency in service towards the complainant because they did not issue the Time

Share-Membership within a period of ninety days from the date of deposit of money of

Rs.90,000/-. The learned counsel has drawn our attention to a letter dated 31.10.2006, issued by the opposite party in which they expressed their willingness to refund

Rs.70,000/- only after deducting Rs.10,000/- towards administrative charges and

Rs.10,000/- towards commission. The said offer was however, not acceptable to them and hence, they filed the consumer complaint in question. The learned counsel stated that they should be given 18% interest on the deposited amount, as demanded in the complaint.

6. The learned counsel for the respondent however stated that the order passed by the District Forum and duly confirmed by the State Commission were in accordance with law and should be upheld. They had also paid the amount of Rs.90,000/- to the complainant. The consumer fora had also allowed a sum of Rs.10,000/- as interest and nothing more was required to be paid. 7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. A perusal of the order passed by the District Forum reveals that the amount of Rs.90,000/- was returned to the complainant during the pendency of the consumer complaint before the District Forum. The only issue, which is left in the case, is regarding the payment of interest on the deposited amount. The District Forum allowed a sum of Rs.10,000/- as lump sum interest to the complainant. In their reply filed before the District Forum, the respondent/opposite party had taken the plea that as per the agreement, there was no provision for cancellation of the same. The amount deposited was also not refundable, but still they offered to refund a sum of Rs.70,000/-. In the letter dated 31.10.2006, also it has been stated that they were prepared to refund Rs.70,000/- as a special case. However, the whole amount of Rs.90,000/- was refunded during the pendency of the complaint before the District Forum. The District Forum further allowed payment of Rs.10,000/- as lump sum interest on the amount deposited. 8. In view of the position stated above, we find that there is no justification for enhancement of interest allowed on the deposited amount or for payment of any compensation on account of mental harassment etc. We therefore, do not find any ground for interference in the well-reasoned orders passed by the consumer fora below as there is no illegality, irregularity or jurisdictional error in the same. The present revision petition is therefore without merit and the same is ordered to be dismissed and the orders passed by the consumer fora below are upheld. There shall be no order as to costs.

..…………Sd/…………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..………Sd/……………………

(DR. B.C. GUPTA)

MEMBER SB/4 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 24.01.2013 in First Appeal No. 564/2011 of Delhi State Consumer Disputes Redressal Commission)

Punjab National Bank, through The Manager, Punjab National Bank, Sector-14 Branch, Gurgaon, Haryana Authorized Signatory

... Petitioner

Versus

Lt. Col. Jagdeep Gahlot (Retired), son of Lt. Chandan Singh, House No.37, Sector-17A, Gurgaon, Haryana – 122001

…. Respondent(s)

BEFORE

For the Petitioner Ms. Seema Sharma, Advocate

Mr. Vakul Sharma, Advocate

For the Respondent In person

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 24.01.2013, passed by the Delhi State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in First Appeal No. 564/2011, “The Manager, Punjab National Bank & Ors. Vs. Lt. Col. Jagdeep Gahlot”, vide which while dismissing appeal, the order passed by the District Consumer Disputes Redressal Forum on 08.09.2011, allowing consumer complaint No. 1638 of 2009, was upheld.

2. Briefly stated the facts of the case are that the complainant/respondent,Lt. Col. Jagdeep Gahlot (retired) filed the consumer complaint in question under Section 12 of the Consumer Protection Act, 1986 before the District Consumer Disputes Redressal Forum-VI, New Delhi, saying that he had two savings bank accounts with the Punjab National Bank (PNB), Sector-14 Branch, Gurgaon jointly with his wife Mrs.Sarla Gahlot. The version of the complainant is that on 04.11.2008, while he was on business trip to Chandigarh, he received a telephonic call from Mr. J.S. Beniwal, Dy. Manager of the petitioner-Bank, stating that two transactions had been made in his two accounts, one for Rs.26,000/- and the other for Rs.19,000/- on Internet Banking and the above amounts had been withdrawn from his savings accounts and transferred to some account in Punjab National Bank, Moradabad. On the next day, i.e. 05.11.2008, the complainant met Mr. J.S. Beniwal in the Bank and he was shown the account details, including photograph of the individual who had withdrawn money. He was informed by the Bank that his account had been frozen and his money was safe and was likely to be returned in due course of time. Thereafter, he made a formal request to the Bank on 06.11.2009, followed by reminders for the return of his money, but the Bank did not take any step to return money to his account. The bank lodged an FIR with the Police in the second week of August, 2009 and the investigation was still pending. The bank sent him a letter on 09.10.2009, stating that the fault was of the complainant and the bank was not accountable for the loss. The complainant filed the consumer complaint in question, requesting for the refund of his money along with interest @ 24% per annum and a compensation of Rs.2.00 lacs for mental harassment etc. and Rs.30,000/- as costs of litigation. 3. In their reply before the District Forum, Punjab National Bank denied allegations, saying that their Internet banking system had not been hacked by anyone and was working alright. On the contrary, the complainant had not been able to manage his Internet Log-in and Password properly in a secure manner, which resulted in transfer of money from his accounts and the Bank was not responsible for the loss in any manner. It has also been stated in the reply that for both the accounts, the Internet ID and passwords were duly delivered to the complainant on 01.09.2008 as per his instructions and acknowledgement for the same was also taken. The transfer took place to account of one Shri Sahil Mallick at Moradabad, Civil Lines Branch of Punjab National Bank, from where the money was withdrawn by the account holder on the same day from different ATMs. The transfer took place with the help of the authorized Log-in password only and the bank was not responsible for the transfer of the money. The bank also denied that their officer had made any call to the complainant. 4. The District Forum vide order dated 08.09.2011, allowed the complaint and directed the petitioner/OP to refund Rs.45,000/- along with 9% interest till realization, Rs.25,000/- as compensation for harassment and Rs.10,000/- as litigation charges. An appeal made against this order, was ordered to be dismissed by the State Commission vide impugned order. It is against this order that the present petition has been made. 5. Heard the learned counsel for the petitioner and the respondent in person and examined the record. 6. The learned counsel for the petitioner, at the outset, stated that the version given by the complainant in his complaint and the letter dated 06.11.2008 sent by him to the bank were different. In the letter dated 06.11.2008 from the complainant and his wife, it had been stated as following: “1. We had submitted our pass-books for the above two saving accounts to your bank on 05 Nov 2008 for updating. We find that some entries as listed below are unexplained. The amounts debited to our accounts have not been withdrawn by us, either in person or through issue of cheques to any third party: (a) Ac No. 4099000100007514 for Rs.19,000/- on 03 Nov 2008 (b) Ac No. 4099000100014846 Rs.26,000/- on 03 Nov 2008”. 7. It is made out from the above that the complainants learnt about the debit of the amounts of Rs.26,000/- and Rs.19,000/- from their accounts when the Passbooks were given to the bank for updating. In the complaint, however, it is stated that the complainant came to know about this transfer from a telephonic call from Mr. J.S. Beniwal on 04.11.2008, after which he visited the Bank on 05.11.2008. The two versions are entirely different. Further, the learned counsel argued that the bank had provided Internet Passwords for the two accounts of the complainant and his wife on 01.09.2008 as per his request and the complainant had signed the relevant receipt, a copy of which had been placed on record. Thereafter, on 05.09.2008, the Log-in Password as well as Transaction Password had been changed, obviously by the complainant himself. It was clear therefore, that the two payments in question had been made through Internet banking using the transaction password. No official of the bank was responsible in the matter in any manner; neither any employee had been named or prosecuted during police investigation. Learned counsel vehemently argued that if any fraud had been committed in the matter, it was the subject of criminal investigation only. The consumer foras were not concerned in any manner with the case as there has been no deficiency in service in any manner. The learned counsel stated that if the Internet banking system maintained by the bank had been hacked in any manner, it would have amounted to loss of crores of rupees, but in the present case, an amount of only Rs.45,000/- was involved. Learned counsel further stated that as per the terms and conditions governing Internet Banking, the Bank was not liable for any loss due to unauthorized transfer of funds through unauthorized access, phishing attacks, and hijack or by way of any other cyber-attacks etc. Learned counsel has also drawn our attention to the order passed by the State Commission, saying that the State Commission had taken an erroneous view while deciding the appeal in question. The orders passed by the District Forum and confirmed by the State Commission should therefore be set aside and the complaint should be dismissed. 8. In reply, the respondent stated in person that he was informed about the said incident by the Deputy Manager of the Bank as stated in his complaint and he had also gone to the bank the next day, when he was told that his money shall be returned. The respondent/complainant stated that the said transaction had not been carried out by him. He also stated that the person involved in the said incident had carried out two more such transactions in which the bank branch at Chennai was involved. The complainant also stated that he had received only one password from the bank and not the transaction password. He admitted that he had changed the Internet password received from the bank, but the transaction password was not received by him. The complainant has also drawn our attention to E-mail messages exchanged between him and one Vijaya Kumar about similar incident. He also referred to copies of the screen- shots about the Internet banking, saying that the bank had manipulated the same. 9. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The basic issue involved in the present case is regarding the transfer of amounts of Rs.26,000/- and Rs.19,000/- from the accounts of the complainant and his wife to some other accounts through Internet banking. The petitioner has taken the stand that they had provided the User-ID, and two passwords-one Internet Password and the other Transaction password for each account to the complainant. The petitioner has also produced documents to prove that the Internet password as well as transaction password were duly changed on 05.11.2008. The bank was therefore, not responsible for the transactions made on Internet banking. The complainant stated during the hearing before us that he had received only one password and the transaction password was to be allotted separately. However, the complainant has not been able to explain in any manner how the two passwords, including the transaction password were changed on 05.11.2008. The contention made by the complainant that the bank had manipulated the screen-shots etc., is not substantiated by any evidence or record. On the other hand, the bank has been able to give a convincing explanation that their Internet banking system was not hacked in any manner. Had there been any hacking etc., it would have resulted into loss of crores of rupees and not a small amount of only Rs.45,000/-. 10. In so far as, the lodging of FIR with the police is concerned, the said FIR was lodged in August, 2009 by the petitioner itself. It has been stated that the investigation into the same has not been completed yet. From the overall facts and circumstances of the case, however, it is clear that if any unauthorized transaction has been made by anybody, it is subject of criminal investigation only. Any deficiency on the part of the bank towards the complainant has not been proved anywhere and hence, it is not justified to provide relief to the complainant by the consumer fora. 11. Based on the discussion above, it is held that the District Forum as well as the State Commission have taken an erroneous view in the matter, resulting in injustice to the petitioner as any deficiency in service or negligence on their part has not been established. The contention made in the complaint that one Deputy Manager gave a telephonic call to the complainants has been denied by the petitioner; neither it has been proved by the complainant by means of any evidence. 12. In view of the above facts, the present petition is allowed and the orders passed by the State Commission and the District Forum are set aside. The consumer complaint, in question, is ordered to be dismissed. There shall be no order as to costs.

..……………Sd/………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..……………Sd/………………

(DR. B.C. GUPTA)

(From the order dated 11.04.2013 in First Appeal No. FA/12/513 of the Chhattisgarh State Consumer Disputes Redressal Commission, Pandri, Raipur)

Rakesh Kumar Goutam S/o Sh. Siddhanath Goutam R/o Behind Nandu Garage, Quarter of Lallu Kashyap Telipara, Bilaspur Chhattisgarh. …Petitioner/Complainant Versus General Manager South East Central Railway Zone Bilaspur Chhattisgarh.

… Respondent/Opp. Party (OP)

BEFORE

For the Petitioner : Mohd. Anis Ur Rehman, Advocate For the Respondent : NEMO

O R D E R

This revision petition has been filed by the petitioner against the order dated 11.04.2013 passed by the Chhattisgarh State Consumer Disputes RedressalCommission, Pandri, Raipur (in short, ‘the State Commission’) in Appeal No. FA/12/513 – General Manager, South East Central Railway Vs. Rakesh KumarGoutam by which, while allowing appeal partly, order of District Forum allowing complaint was modified.

2. Brief facts of the case are that complainant/petitioner was travelling on berth number 49-50 in sleeper Coach No. S-7 of Train No. 8204 on 5.4.2010 from Banda to Bilaspur. He put his suitcase below the berth and tied it with the chain and locked which was stolen by someone. The suitcase contained gold ornaments weighing

9 tolas, new clothes and Rs.15,000/- cash. Report was lodged with GRP Bilaspur and legal notice was also given to OP/respondent. Alleging deficiency on the part of OP, complainant filed complaint and claimed Rs.1,25,000/- towards value of stolen items and Rs.10,000/- towards mental harassment. OP/respondent resisted complaint and submitted that Railway cannot be held responsible for the articles which the complainant was carrying at his own risk as articles were not booked with OP and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.1,25,000/- and Rs.500/- for mental harassment and Rs.1,000/- as cost of litigation. Appeal filed by the OP was partly allowed by learned State Commission vide impugned order and order of District Forum was modified to the extent that OP will pay Rs.25,000/- instead of Rs.1,25,000/- against which, this revision petition has been filed.

4. Heard learned Counsel for the petitioner at admission stage and perused record. 5. Learned Counsel for the petitioner submitted that inspite of proof of loss of goods to the extent of Rs.1,25,000/-, learned State learned Commission committed error in reducing the amount awarded by District Forum; hence, revision petition be admitted.

6. Perusal of record reveals that complainant has not filed any cash memo or receipt relating to purchase of jewellery or clothes and has substantiated his claim only by his affidavit. Learned State Commission rightly reduced amount of compensation, as no other document in support of the claim was filed by the complainant before the District

Forum. Learned State Commission rightly observed that learned District Forum committed error in awarding amount claimed and rightly modified order of learned

District Forum.

7. We do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed at admission stage.

………………Sd/-……………

..……………Sd/-………………

( DR. B.C. GUPTA ) MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 887 OF 2013

(From the order dated 30.09.2013 in Complaint No. C-55/2012 of the State Consumer Disputes Redressal Commission, Delhi)

M/s. Omaxe Ltd. 7, Local Shopping Centre Kalkaji, New Delhi …Appellant/Opp.Party No.1 (OP) Versus 1. Ms. Iqbal Begum W/o M. Naseem Siddiqui R/o 3165, Kucha Tara Chand Delhi Gate, Darya Ganj, Delhi – 110002 … Respondent/Complainant

2. M/s. Nike India Pvt. Ltd. 701, Millenia Tower-B, Murphy Road, Ulsoor, Bangalore – 560008 …Respondent/Opposite Party No.2 (OP)

BEFORE

For the Appellant : Mr. Sukumar Pattjoshi, Sr. Advocate

Mr. Mukti Bodh and Mr. S.K. Dubey,

Advocates with him.

For the Respondent No.1 : Mr. D.N. Goburdhan, Advocate

Mr. M.A. Siddiqui, Advocate

For the Respondent No.2 : Mr. Subhash Bhutoria, Advocate

Appellant has filed this appeal against the order dated 30.09.2013 passed by the Delhi State Consumer Disputes Redressal Commission, (in short, ‘the State Commission’) in Complaint No. C-55/2012 – Ms. Iqbal Begum Vs. M/s. Omaxe Ltd. & Anr. by which, while allowing complaint, OP No. 1 was directed to pay Rs.69,31,411/- with 9% p.a. interest from 5.5.2008 till date of actual payment and further awarded Rs.25,000/- as cost and dismissed complaint against OP No. 2.

2. Brief facts of the case are that complainant/Respondent No. 1 was allotted commercial space by OP No. 1/appellant for a sum of Rs.72,96,222.23 for carrying out business of “Footwear and Sports. OP No. 1 agreed to pay Rs.70,000/- per month as rent till the time some leading brand take allotted space on rent. It was further alleged that OP No. 1 will arrange brands like ‘Nike’ and ‘Arrow’. Due to non-satisfactory construction made by OP No. 1, no brand name turned up to take commercial space on rent. Mall still is incomplete; so, the complainant gave legal notice dated 3.1.2012, but OPs have failed to fulfill their assurances. Alleging deficiency on the part of OPs, complainant filed complaint before State Commission. OP No. 1/Appellant resisted complaint, admitted allotment of space and receipt of 95% payment of the basic sale price, but submitted that remaining 5% of the basic sale price and other additional charges have so far not been paid by the complainant. It was further submitted that commercial complex was to be completed within 30 months from the date of agreement, i.e., 5.5.2008, but project has been completed by February, 2010, well before time. OP denied for arrangement of tenant. It was further submitted that as per agreement, OP paid a sum of Rs.17,81,506/- to the complainant and deposited TDS of Rs.1,92,604/-. It was further alleged that no deficiency can be imputed on the part of OP and OP is ready and willing to handover physical possession of the unit subject to receipt of balance sale consideration. It was further alleged that complaint was time barred and complainant was not a consumer, as property in question was commercial in nature and learned State Commission had no pecuniary or territorial jurisdiction to entertain the complaint and prayed for dismissal of complaint. OP No. 2 did not file written statement. Learned State Commission after hearing both the parties allowed complaint against OP No. 1 and directed him to pay Rs.69,31,411/- with 9% p.a. interest from 5.5.2008 till the date of actual payment and further awarded Rs.25,000/- as cost of litigation against which, this appeal has been filed.

4. Leaned Counsel for the appellant assailed impugned order on 3 counts – firstly, State Commission had no pecuniary jurisdiction; secondly, complainant was not consumer; and thirdly, there was no deficiency on the part of appellant and submitted that order passed by State Commission be set aside and appeal be allowed. On the other hand, learned Counsel for the Respondent No. 1 submitted that order passed by learned State Commission is in accordance with law; hence, appeal be dismissed. Learned Counsel for the Respondent No. 2 submitted that he has unnecessarily been dragged in the litigation.

5. Firstly, it is to be seen whether; learned State Commission had pecuniary jurisdiction to entertain the complaint. Prayer in the complaint runs as under:

“That in the interest of justice the opposite party No. 1 and 2 should be directed to pay the complainant as under:-

a. Rs.77,23,843.67 being price of the commercial space with interest @ 15% p.a.

b. Rs.15,000/- per day from 05.05.08 to the date of payment as compensation for the harassment, inconvenienced, frustration and mental agony suffered by the complainant.

c. Rs.1,00,000/- towards costs of legal notice and other expenses”.

As complainant claimed Rs.15,000/- per day from 5.5.2008 and complaint was filed in January, 2012, the amount of compensation comes to about Rs.3,97,00,000/- meaning thereby, complainant claimed Rs.77,23,843/- price of the commercial space and Rs.3,97,00,000/- as compensation and Rs.1,00,000/- as cost of the legal notice and further claimed 15% interest on Rs.77,23,843/-. If this amount is clubbed, total amount claimed by the complainant will be near about Rs.4,74,00,000. Section 17 (1) of the Consumer Protection Act runs as under:

“ Jurisdiction of the State Commission. — (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction —

(a) to entertain—

(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore;

meaning thereby, if complainant’s claim exceeds rupees one crore, State Commission has no pecuniary jurisdiction to entertain the complaint and complaint was maintainable only before the National Commission under Section 21 of the Consumer Protection Act. Learned Counsel for the Respondent No. 1 submitted that learned State Commission has not granted relief of Rs.15,000/- per day compensation; so, complaint was within pecuniary jurisdiction of learned State Commission. He further submitted that he can withdraw this relief even at the appellate stage to bring the appellant within pecuniary jurisdiction of the State Commission.

6. As far withdrawal of relief of Rs.15,000/- per day compensation from the complaint, respondent has not filed any application to this effect and in such circumstances, it cannot be said that Respondent No. 1 has withdrawn this prayer from the complaint. As far non-grant of relief of Rs.15,000/- per day by the learned State Commission, total compensation claimed does not stand reduced. Pecuniary jurisdiction is to be decided in accordance with the prayer made in the complaint and as complainant has claimed more than Rs. 4,74,00,000/-, complaint was not within pecuniary jurisdiction of State Commission and order passed by learned State Commission is nullity in the eye of law as held by this Commission in I (2013) CPJ 387 (NC) – Country Colonisers Pvt. Ltd. Vs. PritiKapur & Ors. and impugned order is liable to set aside.

7. We refrain ourselves from giving any opinion whether; complainant fall within the purview of consumer or whether any deficiency on the part of appellant as it may influence to the appropriate Forum while deciding subsequent complaint.

8. Consequently, appeal filed by the appellant is allowed and impugned order dated 30.09.2013 passed by learned State Commission in Complaint No. C-55/2012 – Ms. Iqbal Begum Vs. M/s. Omaxe Ltd. & Anr. is set aside. Complainant is given liberty to file new complaint on the same cause of action before appropriate Forum.

………………Sd/-……………

PRESIDING MEMBER

………………Sd/-……………

( DR. B.C. GUPTA)

MEMBER

k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1886 OF 2014 WITH (I.A. NO.2672 OF 2014, FOR STAY)

(Against the order dated 22.01.2014 in Appeal No.339/2013 of the State Commission, Uttrakhand)

Senior General Manager Government of India, Ministry of Defence Indian Ordance Factories, Ordance Factory Raipur, District Dehradun (Uttrakhand)

...... Petitioner

Versus

Mr. Anand Swaroop S/o Bholanath R/o 25-W, Ordance Factory Estate Raipur Road, District Dehradun (Uttrakhand)

…... Respondent

BEFORE:

For the Petitioner : Ms. Ruchika Pathak, Advocate with

Mr.Madhukar Pandey, Advocate

Pronounced on : 19th May, 2014

PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER In this revision petition, there is challenge to order dated 22.1.2014 passed in (First Appeal No.339 of 2013) by State Consumer Disputes Redressal Commission, Uttrakhand, Dehradun (short, “State Commission”).

2. Brief facts are that Respondent/Complainant had booked a Barat Ghar, “Milan Mandir” of Ordance Factory Estate, Raipur, Dehradun on 10.6.2010 for the marriage of his daughter, which was to be solemnized on 27.11.2010 and had paid a sum of Rs.500/- as an advance as per prescribed rules. It is stated that on 26.10.2010, respondent gave an application to the Petitioner/Opposite Party regarding the confirmation of the booking of “Milan Mandir”. The petitioner did not give any information regarding the cancellation of “MilanMandir”. It is further stated that vide notification dated 19.11.2010 published in the daily newspaper ‘Amar Ujala’, respondent came to know that a Three Days’ Convention of the All India Defence Employees Federation is going to be held in “Milan Mandir” from 25.11.2010 to 27.11.2010. After reading the newspaper, respondent gave a letter to the petitioner on 22.11.2010 to confirm the authenticity of above stated notification. Petitioner did not give any reply to the aforesaid letters and as such, he presumed that booking is confirmed in his name and he got busy for making arrangements for his daughter’s marriage.

3. It is further stated that on 27.11.2010 (the date of marriage), the respondent went to “Milan Mandir” for making arrangements for the Barat and stay of guests etc., he was shocked to see that “Milan Mandir” had been booked by the petitioner in the name of All India Defence Employees Federation, who were staying there. Respondent being disappointed and helpless and in order to avoid any untoward incident, went to several places in search of the venue of the marriage but could not find any vacant marriage venue. As a last resort, he got the marriage solemnized in the open compound of Junior Club located in Ordance Factory.

4. Thus, petitioner had committed grave negligence and respondent had to suffer grave mental, social and financial loss and had also to face grave mismanagement in making arrangements for the guests and baraties. Further, respondent had to spend an additional sum of Rs.50,000/- for this arrangement. It is also stated that guests and members of his Society went to attend the marriage at “Milan Mandir” which address was mentioned on the Invitation Card but officials of the Federation were staying there. Thus, all the guests returned back to their houses due to which the prepared food had gone waste. Hence, respondent suffered a financial loss of Rs.2,00,000/- and his social image has been badly affected. Accordingly, respondent had prayed that due to acts of breach of trust and the grave negligence on the part of the petiitoner, he had suffered a loss of Rs.4,80,000/-. Besides the financial loss, mental and social loss/shock has also been caused to him.

5. In its written statement, petitioner took the plea that respondent very well knew about the Three Days’ Convention of the Employees Federation. Petitioner had asked the respondent to use the alternative site and he was given the option to use, either Junior Club or Senior Club, as per his desire, for the purpose of the marriage of his daughter and the same was accepted by the respondent. Accordingly, the marriage took place in Junior Club. In such a situation, claim of respondent is not maintainable. It is further stated that respondent is a quarrelsome by nature and believes on legal battles because he had written several letters to his own department seeking all types of information under the Right to Information Act, which are not even concerning him. Respondent only wants to extract money from the petitioner. Moreover, “Milan Mandir” and Community Centre or Junior Club do not come in the category of consumer because these clubs are made available to the concerned departmental employees for their personal functions and whatever amount is received, it is spent on its maintenance. In such a situation, it does not come in the category of service.

6. District Consumer Disputes Redressal Forum, Dehdarun (short, “District Forum”) vide order dated 14.11.2013, allowed the complaint and directed the petitioner to pay a sum of Rs.25,000/- as compensation and cost of Rs.5,000/-.

7. Being aggrieved, petitioner filed an appeal before the State Commission, which dismissed the same.

8. Ms.Ruchika Pathak, the Authorized Counsel on behalf of the petitioner did not address the arguments in this case, instead she sought assistance of one Mr.Madhukar Pandey to advance the arguments at the time of admission hearing on her behalf.

9. As per Vakalatnama placed on record on behalf of the petitioner, it is clear that petitioner had engaged Shri Ashok Dimri, Shri Deepak P. Ahluwalia, Shri Kunal Seth, Shri AmitPrasad and Ms.Ruchika Pathak as its counsels. On 9.5.2014, when the matter was listed for admission hearing, Ms.Ruchika Pathak and Mr.Madhukar Pandey was present. Ms.Ruchika Patha k stated that Mr.Madhukar Pandey who is present will argue the matter.

10. Under such circumstances, we heard the arguments advanced on behalf of counsel for the petitioner. We fail to understand that when petitioner had engaged five advocates, why none of them except Ms.Ruchika Pathak were present on the date of hearing. Even then, Ms.Ruchika Pathak was not willing to address the arguments on behalf of the petitioner, though she had been engaged by the petitioner. Instead, she sought assistance of one Mr. Madhukar Pandey, Advocate to advance the arguments on her behalf.

11. We do not approve such practice when petitioner has engaged five counsels in this case, then why except for one counsel other counsels were not present. Even then, the Authorized Counsel for the petitioner declined to argue the matter. We hope that petitioner which is a Government Department, will henceforth take necessary action in this regard in future.

12. Be that as it may, it has been contended on behalf of the petitioner that it was within the knowledge of the respondent, that National Convention of the Employees Federation, was going to be held from 25.11.2010 to 27.11.2010 at the Community Centre. As such respondent’s claim that no intimation was given to him is a blatant lie. Moreover, the cancellation of allotment was not malafide but due to operational exigencies and as such no deficiency can be attributed to the petitioner. Lastly, consumer fora have no jurisdiction to entertain such type of complaint. In support, counsel for petitioner has relied upon the decision of Hon’ble Supreme Court in State of Orissa Vs. Divisional Manager, LIC and Anr., AIR 1996 SC 2519 and Kishore Lal Vs. Chairman, Employees State Insurance Corporation, Civil Appeal No.4965 of 2000, decided on 8.5.2007.

13. District Forum in its order has held ;

“The pleadings and the evidence show that the complainant had decided to get the marriage of his daughter solemnized in “Milan Mandir” and the opposite party had taken the rent of Rs.500/- for “Milan Mandir” 5 ½ months in advance. The marriage was to take place on 27.11.2010. In the marriage card, the venue of marriage is mentioned as “Milan Mandir”. It is also evident from the evidence that the complainant had accepted the alternative proposal of the opposite party and got the marriage solemnized in Junior Club and for getting the arrangement done, he had to get the tents etc., erected in the compound on which a lot of money was spent. The complainant has argued that in case the marriage had taken place in “Milan Mandir”, then the complainant would not have to make any expenditure on erecting the tents etc. It has also been stated that the distance between the “Milan Mandir” and the Junior Club is about 2.00 k.m.and it being an alternative arrangement, the complainant had to suffer a lot of difficulty and he had to face acute mental tension and trauma. It has also been clear from the evidence of the complainant that inspite of there being a previous booking, “Milan Mandir” was given for the meeting to All India DefenceEmployees Federation.

Admittedly, the opposite party has not issued any letter to the complainant regarding the cancellation of the booking. Due to the sudden change in the venue of the marriage, a lot of mental pain and anguish was caused to the complainant. The complainant had made by booking under question by paying the consideration amount for the same. In such a situation, the argument of the opposite party that the complainant does not come in the category of consumer is not liable to be accepted. The booking of the complainant was neither cancelled by the opposite party nor did it made available the venue booked by him for the marriage. Admittedly, the complainant had to incur a lot of expenditure for making arrangements of the marriage in the Junior Club.”

14. The State Commission while dismissing the appeal, in its impugned order observed ;

“We considered the submissions raised by the learned counsel for the appellant and respondent – Shri Anand Swaroop. The arguments advanced by the learned counsel for the appellant that the respondent is not a consumer of the appellant, is not sustainable because the appellant had charged a sum of Rs.500/- as an advance rent for the Community Centre. Once the appellant had received the rent in advance, the Community Centre’s booking is supposed to be confirmed. It the Community Centre was, later on booked for the Employees Federation’s National Convention, then the appellant should have informed the respondent with regard to cancellation of his booking and should have offered another space to him. There is no documentary evidence available on record that the appellant had informed the respondent well in time and had offered him alternative space. Thus, the deficiency in service on the part of the appellant is well proved and this appeal, being devoid of merit, is liable to be dismissed.”

15. Admittedly, in the present case, “Milan Mandir” had been booked for the marriage of respondent’s daughter only after taking the advance of Rs.500/-. The petitioner unilaterally cancelled the booking of Barat Ghar without giving any intimation in writing to the respondent, with the result the respondent suffered grave humiliation, mental agony and social trauma. This act on the part of the petitioner, certainly amounts to deficiency in service. Moreover, there is nothing on record to show that petitioner had refunded the amount of advance deposited by the respondent, till date. We are constrained to observe that petitioner has made certain uncalled extraneous remarks against the respondent in the revision petition which is having no bearing in this case. It appears, that the same has been done to cause prejudice to this Commission. We deprecate this conduct of the petitioner, as adopted in the present revision petition. 16. There are concurrent findings of facts given by both the fora below. It is well settled that under Section 21 (b) of the Consumer Protection Act, 1986 (for short ‘Act’), the scope of revisional jurisdiction is very limited.

17. 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.

18. 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.”

19. This Commission in M/s Contour Holiday Resorts Pvt. Ltd. Vs. K.N.Bhuvanendranatha Kamath, RP No.393 of 2012, decided on 7.3.2013 in similar circumstances, hadobserved ;

“ 13. It is manifestly clear from the record that booking done by respondent for marriage of his daughter was unilaterally cancelled by the petitioner just to accommodate another business associate. We can well imagine the trauma, pain and sufferings undergone by the respondent (being father of a daughter whose marriage was fixed) when venue of the marriage booked earlier was cancelled arbitrarily by the petitioner. It is not that respondent alone has undergone the mental agony due to illegal act of the petitioner but his other family members also on the solemn occasion of marriage have undergone trauma, pain and sufferings. The mental agony and sufferings undergone on such occasion by a family cannot be measured just in terms of money alone. The only purpose of the petitioner in cancelling the booking of respondent was just to oblige another business associate. This, act on the part of the petitioner was most inhuman and cruel.”

20. Thus, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act, since two fora below have given cogent reasons in their order, which do not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction. 21. It is not that every order passed by the fora below is to be challenged by a litigant even when the same is based on sound reasoning. The present case is a fit case, where punitive damages must be imposed upon the petitioner and same should be awarded to the respondent.

22. Accordingly, we dismiss the present revision petition with punitive damages of Rs.50,000/- (Rupees Fifty Thousand Only) to be paid to the respondent. 23. Petitioner is directed to deposit the amount of punitive damages by way of demand draft in the name of respondent with this Commission, within six weeks from today. The amount of punitive damages shall be paid to the respondent, only after expiry of period of appeal/revision preferred, if any. In case, petitioner fails to deposit the punitive damages within the prescribed period, then it shall be liable to pay interest @ 9% p.a. till its realization. 24. List for compliance on 18.7.2014.

…………………..………J (V.B. GUPTA)

(PRESIDING MEMBER)

…………………...………. (REKHA GUPTA)

(MEMBER)

Sonia/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 10.02.2012 in First Appeal No. 1567/2009 of Haryana State Consumer Disputes Redressal Commission)

The Sonepat Urban Cooperative Bank Ltd. through its Branch Manager New Subzi Mandi Sonipat (Haryana)

Versus

M/s Saini Machinery Store, through its Proprietor Hari Parkash Saini Near Daya Ram Hospital Murthal Road Sonepat.

BEFORE

For the Petitioner(s) Ms. Anu Bagai, Advocate

For the Respondent Mr. Jawahar Narang, Advocate

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

Act, 1986 against the impugned order dated 10.02.2012 passed by the Haryana State

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

1567/2009, “Sonepat Urban Cooperative Bank Ltd. versus Saini Machinery Store” vide which appeal against the order dated 22.09.2009 passed by District Consumer Disputes

Redressal Forum, Sonepat in consumer complaint no. 351/2008 was dismissed and the order of the District Forum allowing the complaint was upheld.

2. Brief facts of the case are that complainant/respondent M/s. Saini Machinery

Store, Sonepat is a proprietary concern and is engaged in the business of sanitary wares, CI pipes, water tank, GI pipes & fittings and CP fittings and other related goods. The firm is enjoying cash credit limit facility from the petitioner bank and against this facility, the properties and stocks lying in the shop of the complainant was mortgaged with the petitioner bank. As per the rules and regulations and instructions of the Reserve Bank of India, it is necessary to get the stock insured with any general insurance company. It is the case of the complainant that as per the rules and regulations and instructions of the RBI, the firm was free to get the stock insured on its own, but it was also mentioned in the said provisions that if the firm did not get the stock insured on its own, it was the duty of the bank to get the stock insured every year after debiting the premium amount from the account of the firm. On 08.06.2007, the premises of the complainant firm got fire which wascontrolled/extinguished by the fire brigade after struggle of about two hours. The matter was reported to the local Police vide daily diary register at serial no. 14 dated 09.06.2007 and the probable cause of fire was stated to be short-circuiting in the electric meter. The complainant wrote to the petitioner bank on 09.06.2007 itself about the factum of fire and requested them to depute a surveyor to assess the loss on the spot. The petitioner bank sent a letter dated 15.06.2007 to the complainant saying that the insurance of stock had expired on

20.02.2007. It is the case of the complainant that they were availing the cash credit limit for the last many years from the Bank and Bank used to get the stock of the complainant insured after deducting the payment of premium from the account of the complainant. However, sometimes complainant used to pay the premium in cash at the asking of the respondent to the agent of the insurance company. The complainant then appointed the surveyor himself who submitted his report on 16.09.2008, after assessing the loss to the tune of `_2,89,352/-. The complainant paid a fee of `_11,786/- to the surveyor for assessing the loss. When the petitioner refused to entertain the claim, the consumer complaint in question was filed before the District Forum. The District Forum allowed the complaint and directed the petitioner to make payment of `_2,89,352/- to the complainant along with interest @9% p.a. from 09.06.2007. Appeal filed before the

State Commission was dismissed by them vide impugned order. 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 stated that the job of the Bank was to provide the cash credit limit to the complainant. It was the duty of the complainant to get the stocks insured. The learned counsel invited our attention to the Manual for Urban Cooperative Banks issued by the RBI, saying that as provided in para10 of the said Manual, it was the duty of the borrower to have the goods insured. On the other hand, learned counsel for the complainant/respondent maintained that the Bank had been getting the stock insured for the last many years and their action in not getting the stocks insured in time amounted to deficiency in service. Hence, the orders passed by the District Forum and the State Commission were in accordance with law and should be upheld.

4. After the conclusion of hearing, the case was reserved for orders, but it was again listed for hearing to seek clarification on certain issues. At the time of re-hearing, the learned counsel for the Bank stated that during the year previous to the year in which the fire incident took place, the Insurance Policy was taken by the complainant on his own. The learned counsel for respondent also admitted that during the previous year, the policy was taken by the respondent himself, but during the preceding years, the policy was being taken by the Bank. The version of the Bank is that during certain years, the premium was debited to the account of the respondent whereas in other years, the premium was paid in cash by the respondent. It was also stated by the learned counsel for the Bank that the Bank had not obtained any Undertaking from the borrower to renew the policy by payment of premium after debiting the same from the account of the borrower. In response to this assertion, the learned counsel for the respondent stated that as laid down in “Manual for Urban Cooperative Banks,” issued by the Reserve Bank of India, it was the duty of the Bank to obtain such an Undertaking from the borrower and by not obtaining the same, they have committed an act of deficiency.

5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. It has been stated in the orders passed by the State Commission and the District Forum that since the Bank had been taking the Insurance Policy on behalf of the complainant during all these years, the

Bank had committed deficiency in not taking the policy for the period during which the fire incident took place. However, we do not feel inclined to agree with this view point, because the primary duty for obtaining an insurance policy is upon the person who is doing his business. In the process if the bank extends a facility to take the policy on behalf of the insured and debits the premium to his account, it does not mean that the obligation for taking the insurance has shifted upon the Bank. Therefore, if the Bank failed to get the insurance policy renewed for the period in question, it cannot be stated by any stretch of imagination that there has been any deficiency in service on the part of the Bank. Had the Bank taken the Undertaking from the insured for payment of premium regularly, it would have amounted to deficiency in service if the Bank had not obtained the policy for the period in question.

5. The “Manual for Urban Cooperative Banks” issued by the Reserve Bank of India,

Bombay says as follows:-

“Insurance of stocks

(j) The borrower should insure the goods for the full value against the risk of fire, burglary and riot in the joint names of the borrower and the bank with usual banker’s clause. The bank should ensure that the premium is paid by the borrower promptly before the due date and the warranties are fully observed. In case the borrower fails to renew the policy, there should be an undertaking obtained from the borrower to renew the policy by payment of premium debiting the borrower’s account. The bank should make suitable note of insurance policies in ‘insurance register’.”

6. A plain reading of the above provision shows that it is primarily the duty of the borrower to get the goods insured for full value and this insurance has to be in the joint name of the borrower and the Bank with usual bankers’ clause. It has also been made obligatory on the bank to ensure that premium is paid by the borrower promptly before the due date and the warranties are fully observed. The bank is also required to make suitable note of insurance policies in ‘insurance register’. In the present case, the respondent has taken the plea that the Bank had been getting the stocks insured and debiting the premium to the account of complainant for quite some time. During the year in question, when the fire incident took place, it is made out that neither the complainant nor the bank made efforts to get the insurance done. However, this does not mean that the entire responsibility to get the stock insured had passed on to the

Bank. It has been admitted by the complainant himself that during the year, previous to the year in which the fire took place, the Insurance Policy was taken by the complainant himself. It may not be fair, therefore, to say that for the period in question, it was the duty of the Bank alone to take the Insurance Policy.

7. In view of above discussion, we do not find any convincing reasons to agree with the orders passed by the Fora below, because the primary obligation is upon the borrower to insure the goods by taking a suitable insurance policy. This revision petition is, therefore, allowed and the orders passed by the State Commission and District

Forum are set aside. The consumer complaint is ordered to be dismissed. There shall be no order as to costs. ..……………………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..……………………………

(DR. B.C. GUPTA)

(From the order dated 30.04.2012 in First Appeal No. 510/2011 of Kerala State Consumer Disputes Redressal Commission)

Cox & Kings Ltd. Turner Morrison Building, 16, Bank Street, Fort, Mumbai – 400023

Versus

1. Roy Varghese Karikkottil House, Mekkadampu P.O. Kadathy Kara Velloorkunnam Village, Muvattupuzha Taluk, Ernakulam, Kerala

2. N. Hariharan, Manager, Cox & Kings (India) Ltd. 39/6822, First Floor, M.G. Road, Ravipuram, Kochi

3. Sujith Sreekumar, Manager, Cox & Kings (India) Ltd. 39/6822, First Floor, M.G. Road, Ravipuram, Kochi

… Respondents/Opposite Parties

(From the order dated 30.04.2012 in First Appeal No. 511/2011 of Kerala State Consumer Disputes Redressal Commission)

Cox & Kings Ltd. Versus Shaji Kuruvila & Biju Thottam

BEFORE

For the Petitioner Mr. Jitender Mehta, Advocate

Mr. Ashish Gupta, AR of the Petitioner

For Respondent-1 Mr. Arvind Kumar, Proxy counsel for

Mr. Jogy Scaria, Advocate

For Respondent-2&3 Exparte in RP 3416/2012 and Deleted in RP 3417/2012 & 3418/2012

PRONOUNCED ON : 20th MAY 2014

O R D E R

These three revision petitions have been filed under section 21(b) of the

Consumer Protection Act, 1986 against the impugned order dated 30.04.2012, passed by the Kerala State Consumer Disputes Redressal Commission (for short ‘the State

Commission’) in FAs No. 510/2011, 511/2011 & 512/2011, vide which, while partly allowing the said appeals, the order dated 31.12.2010 in consumer complaints no.

482/2008, 483/2008 and 484/2008, passed by the District Consumer Disputes

Redressal Forum, allowing the said complaints, was modified. This single order shall dispose of all three revision petitions and a copy of the same shall be placed on each file.

2. Brief facts are that the complainants/respondents No.1 in all three cases, filed the consumer complaints in question, alleging that they had booked foreign tour in the name and style, “European Discovery Tour” with the petitioner, but they had to suffer deficiency in service on the part of the petitioner for which they had claimed refund. In

CC No. 484/2008 filed by Roy K. Varghese (corresponding to RP No. 3416/2012), it was alleged that on 21.1.2008, the complainant and his four friends went to the office of the petitioner where the complainant and his friend/partner, Mr. Shaji Kuruvila (complainant in CC No. 482/2008) booked a tour and they were asked to pay `_12,53,990/- for the main tour and `_2,39,976/- for the optional tour under the family package consisting of total 8 members. The complainant and his partner Shaji Kuruvila paid `_3 lakh as advance for the tour on 28.01.2008, and then on

16.02.2008, they paid the balance amount of `_9,53,990/- for the main tour and

`_2,39,976/- for the optional tour. The places to be covered in the main tour were Italy,

Switzerland, France, etc. The optional tours selected by them were Glacier 3000,

Disneyland, River Siena Cruise, Lido show and London Delight. The tour started on

12.05.2008 from Kochi International Airport. The first optional tour was Glacier 3000 and that went on alright. However, they had bad experience with the next optional tour, which was for Disneyland. The complainants had paid 90 Euros per person for this tour against the actual price of 33 Euros per person. The tour manager of the petitioner/OP dropped the group at the parking area of Disneyland at 11:30AM and asked them to return at 3:00PM. The group went to the Park without any guide or instructions. They were not provided with any food and the children were put to untold hardships and miserables. Further, the tour manager failed to take them to River Siena Cruise for which they had paid 11 Euros per person. They were taken hurriedly for Lido Show, where they were provided seats at the last row of the hall and hence, could not see the show properly, although, they had paid 149 Euros per person for the Lido Show. They then asked the tour manager to cancel the next optional tour. The tour manager, Mrs. Marina also did not play her role properly. On their return, when they sent notice to the OP, pointing out the deficiency in service, they offered to pay

`_15,187.50 as full and final settlement, but the complainant claimed refund of

`_32,313.60 with interest @12% p.a. plus compensation of `_2 lakhs.

3. In complaint no. 482/2008, filed by Shaji Kuruvila (RP No. 3147/2012), similar facts have been stated and same relief has been asked for, as mentioned in the complaint filed by Roy K. Varghese.

4. In complaint no. 483/2008, filed by Biju Thottam, (RP No. 3418/2012), it has been stated that he booked the main tour for `_2,58,902/- and the optional tour for

`_59,994/-. The other facts mentioned in the complaint are similar as in the complaints mentioned above. The OP offered to pay him `_8470.40ps. but he demanded a sum of

`_16156.80ps. as refund and ` 2 lakh as compensation.

5. In their written reply before the District Forum, the petitioner/OP stated that all the terms and conditions were explained to the tour participants beforehand. Regarding the tour to Disneyland, there was no provision to provide a guide in the said Park. The petitioners however admitted that because of heavy traffic, they could not reach in time for the optional tour, River Seina Cruise. The cost of the River Siena Cruise was 7

Euros per person. It was stated that there was no complaint from other participants in the tour. There was no deficiency in service on the part of the petitioner/OP, but still they offered a sum of ` 15,187.50ps. per family, without admitting any deficiency in service. The complainants cancelled the tour to London Delight for the reasons best known to them. The petitioner/OP also stated that the amount being offered to the complainant was just a gratuitous offer and not intended as a refund of the amount for the optional tour London Delight. The OPs were required to meet the cost of the tour because withdrawal after having exercised the option given earlier was not permissible but still they offered to return the said amount.

6. The District Forum after taking into account the evidence of the parties partly allowed the complaint and directed relief as follows:- “I. In C.C. No. 482/2008

a. 228 Euros (for 4 Persons 57 Euros each) in equivalent Indian currency towards refund of ticket charge for Disneyland. b. 44 Euros ( for 4 persons 11 Euros each) in equivalent Indian currency for the cancellation of River Seina Cruise. c. 250 Euros (for 4 persons 62.50 Euros each) for the cancellation of London Delight tour. d. to pay compensation of Rs. 50,000/- for the reasons stated above.

II. In C.C. No. 483/2008 a. 114 Euros (for 2 Persons 57 Euros each) in equivalent Indian currency towards refund of ticket charge for Disneyland. b. 22 Euros ( for 2 persons 11 Euros each) in equivalent Indian currency for the cancellation of River Seina Cruise. c.125 Euros (for 2 persons 62.50 Euros each) for the cancellation of London Delight tour. d. to pay compensation of Rs. 25,000/- for the reasons discussed above.

III. In C.C. No. 484/2008 a. 228 Euros (for 4 Persons 57 Euros each) in equivalent Indian currency towards refund of ticket charge for Disneyland. b. 44 Euros ( for 4 persons 11 Euros each) in equivalent Indian currency for the cancellation of River Seina Cruise. c. 250 Euros (for four persons 62.50 Euros each) for the cancellation of London Delight tour. d. to pay compensation of Rs. 50,000/- for the aforesaid reasons.”

7. Three appeals nos. 510/11, 511/11 and 512/11 were made against the order of the District Forum by the present petitioner/OP and the State Commission vide impugned order held that the direction to pay ` 12,500/- as compensation to each person (` 50,000/- for four persons was not unreasonable. It was held, however, that the order of the District Forum for the refund of ticket charge for Disneyland was not in order and the same was set aside. The rest of the order of the District Forum regarding payment for River Siena Cruise 11 Euros per person and 62.50 Euros per person for cancellation of London Delight tour was upheld. It is against this order that the present petitions have been made, seeking relief that the consumer complaints should be dismissed.

8. During hearing before us, the learned counsel for the petitioner Cox & Kings

Limited stated that so far as the ‘Main Tour’ part of the programme was concerned, no deficiency had been alleged in the same by any of the complainants. The problem is stated to have occurred during the ‘Optional Tour’ part only, but the petitioner had not committed any deficiency in service. In so far as the tour to Disneyland is concerned, the allegation is that the services of a guide were not provided and the food was not given. In such tour, however, there was no provision for providing the services of a guide. The charges received from the complainants included visit to Disneyland and expenditure on travel to that place. The visitors are usually dropped at designated time and place, and then picked-up after a few hours. They were supposed to visit various events in Disneyland on their own.

9. Regarding ‘River Seina Tour’, the learned counsel stated that it was true that the complainants could not reach in time for the tour due to traffic jam etc. The learned counsel conceded that although, they were supposed to pay back 7 Euros per person, but they were ready to pay 11 Euros per person, as claimed by the complainants. He further stated that the complainant Roy Varghese and his party had not opted for the

RiverSeina cruise, but still the consumer Fora below had given them compensation for the same also and hence, their orders were not in accordance with the facts on record. The learned counsel further pointed out that the “Proof Affidavit” filed by the complainants in all the three cases were similar, although the factual position were different from case to case.

10. Regarding the ‘London Delight Tour’, the same had been cancelled by the complainants at the last moment, but still they had offered 50% of the amount charged to be refunded to the complainants.

11. The learned counsel for the respondents, however, stated that the orders passed by the Fora below were in accordance with law and should be upheld.

12. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

13. In the impugned order passed by the State Commission, it has been directed that a sum of 11 Euros should be refunded to the complainants for the cancellation of

‘River Seina Cruise’, 62.5 Euros each should be refunded for the cancellation of

‘London Delight Tour’ and a compensation of ` 12,500/- should be given as compensation for deficiency in service etc.

14. In so far as the ‘River Seina Cruise’ is concerned, the petitioners have conceded that since the complainant could not be made to reach in time for the said tour due to traffic jam, they were prepared to compensate them to the extent of 11 Euros each. It is seen that in RP No. 3146/2012, the complainants/respondents had not booked the said

‘River Seina Cruise, but still compensation has been awarded to them by the

ConsumerFora below. The direction to give compensation for ‘River Seina Cruise, 11

Euros each, is ordered to be set aside in so far as RP No. 3146/2012 is concerned. However, the said direction is upheld in the other two revision petitions.

15. In so far as the cancellation of ‘London Delight Tour’ is concerned, the petitioners themselves offered the refund of 50% of the booking amount, i.e., 62.5 Euros to each person for the said cancellation. The District Forum and the State Commission have ordered the refund of 62.5 Euros each for the cancellation of ‘London Delight Tour’ and the said direction is also upheld.

16. In so far as the ‘Tour to Disneyland’ is concerned, the State Commission have set aside the direction of the District Forum in ordering refund of 57 Euros each. The said part of the order of State Commission is also upheld.

17. Now, coming to the payment of compensation to the complainant, an examination of the facts and circumstances on record reveals that the only failure on the part of the petitioner/OP has been that the complainants could not participate in the

‘River Seina Cruise. The petitioners have given the explanation that due to traffic jam, it was not possible to reach in time for the tour. The State Commission have held that the complainants were entitled to a compensation of ` 12,500/- each because they were dissatisfied with respect to the facilities provided during tour. The State Commission also observed that the tour party was left in Disneyland without anyone to guide. However, the State Commission have set aside the direction to refund 57 Euros each for the tour to Disneyland. We do not find any justification to agree with the State Commission that the petitioners had committed any negligence in not providing a guide during tour to Disneyland. It is a matter of common experience that on tours such as visit to Disneyland, the guides are never provided and the persons have to visit the Park on their own. Moreover, the petitioners also did not commit anywhere that guide shall be provided during the tour to Disneyland.

18. In the light of the discussion above, it is observed that the petitioners have not performed such deficiency in service, which may lead to the grant of compensation to the complainants/respondents. The only fault that can be attributed to the petitioner relates to the ‘River Seina Cruise’, where the complainants could not be made to reach in time. The petitioners have explained that due to traffic jam, it could not be possible to ensure that the complainants could reach in time for the said Cruise. It is held therefore, that the direction to grant compensation of Rs.12,500/- each to the complainants is not justified and the same is set aside.

19. In the net analysis, revision petition No.3416/2012, Cox & Kings Ltd. versus Roy

Varghese & Ors., is partly allowed and it is held that the petitioner shall be liable to pay only a sum of 62.50 Euros each for the cancellation of the London Delight tour. The revision petitions No. 3417/2012 and 3418/2012 are also partly allowed and it is held that the petitioner shall be liable to pay 11.00 Euros per person for ‘River Seina Cruise’ and 62.50 Euros per person for the cancellation of the London Delight tour. There shall be no order as to costs.

..…………Sd/-…………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..…………Sd/-…………………

(DR. B.C. GUPTA)

Appeal Execution No.06 of 2014 With I.A. No.2761 of 2014 (For Stay) (Against the order dated 28.3.2014 in Appeal No.09/2013 of the State Commission, Kolkata, West Bengal)

United India Insurance Company Ltd. Branch Office Serampur 54, K.M. Saha Street, Serainpore, District Hoogly, West Bengal Having its Regd. & Head Office at 24, Whites Road, Chennai Through their Regional Office No.1, Kanchanjunga Building, Bara Khamba Road, New Delhi – 110001. …Petitioners

Versus

Oriental Rubber Works A Partnership Firm, 67/25 Straund Road Kolkata – 700006

Proforma Party The Union Bank of India Kolkata Branch 4, Narendra Chandra Dutta Sarni Kolkatta – 700001. ..Respondent

BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioners : Mr. V.S. Chopra, Advocate For the Respondent : Nemo

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

Above noted appeal has been filed by the Appellant/Opposite Party against order dated 28.3.2014 passed by State Consumer Disputes Redressal Commission, West Bengal (for short, ‘State Commission’) in (Execution Application No.09 of 2013). 2. On 5.5.2014, when the appeal came up for hearing, Mr. Dikshabrata Chowdhari, Advocate had appeared for Oriental Rubber Works/Complainant on its own. Thereafter, matter was adjourned to 12.5.2014 for admission hearing. On that date, Mr. V.S. Chopra, Advocate for appellant appeared, whereas none appeared for Oriental Rubber Works, even the matter was passed over twice. 3. Arguments advanced by learned counsel for appellant have been heard and we have perused the record. 4. The Complainant filed a Consumer Complaint (No.06 of 2007) before the State Commission against the appellant, since the insurance claim was not settled. 5. Appellant contested the complaint. 6. The State Commission vide its order dated 28.11.2008 while allowing the complaint, directed the appellant; “ to pay the amount of loss assessed by the Surveyor to the

complainant against the insurance policy, Rs.20,000/- as compensation and Rs.2,000/- as costs within a period of two months from the date of this order. In case the OPs fail to comply with the above direction, the complainant will be entitled to recover the entire amount in accordance with law alongwith interest @ 10% per annum for the entire period of default till realization.” 7. Being aggrieved, appellant filed (First Appeal No.23 of 2009) before this Commission. On 27.1.2009, while issuing notice to the respondent, this Commission passed following interim order; “ In the meantime, subject to the appellant, without prejudice,

depositing 50% of the awarded amount with the State Commission within a period of four weeks from today, the operation of the impugned order shall remain stayed. Respondent shall be free to withdraw the deposited amount on furnishing adequate security for restitution of the amount, to the satisfaction of the State Commission.” 8. In pursuance of the above order, appellant deposited a sum of Rs.16,95,977/- (Rupees sixteen lakh ninety five thousand nine hundred seventy seven only) with the State Commission. This fact has been admitted by the complainant in its Execution Petition by stating that “the amount deposited by the appellant is still lying with State Commission”. 9. Thereafter, vide order dated 7.5.2013 passed by this Commission, the (First Appeal No.23 of 2009) was finally disposed of by observing as under; “ We therefore uphold the order of the State Commission and dismiss

the present First Appeal. Appellant/Insurance Company is directed to pay the Respondent a sum of Rs.33,91,954/- as the loss assessed by the

Surveyor alongwith Rs.20,000/- as compensation and Rs.2,000/- as costs within a period of two months, failing which the amounts shall carry interest @ 10% for the period of default.” 10. Since, appellant did not comply the order dated 7.5.2013, the complainant filed an execution application before the State Commission praying that in view of the non- compliance of the order passed by this Commission, warrant be issued against the Senior Divisional Manager of the Appellant Company. 11. In reply, appellant stated that a sum of Rs.16,95,977/- is to be deducted from the amount claimed from the appellant. Further, interest is to be calculated from 8.7.2013 and not from December, 2008, as wrongly calculated by the complainant. 12. The State Commission, while disposing the execution application in its impugned order held; “The Dhr. has submitted a calculation assessing interest @ 10% from

December, 2008, whereas the calculation sheet filed by the Jdr. has been made showing that payment of such interest would be effective from 07.07.2013, which is found to be in accordance with the order dated 07.05.2013 passed in the First Appeal No.23/2009 by the Hon'ble National Commission,wherein it was stipulated, amongst others, that the interest @ 10% shall be for the period of default, which will take effect after two months. Regarding the less 50% deposited amount shown in the calculation sheet of the Jdr., it cannot be given benefit to the Jdr. as the same has been deposited in the name of the Commission, for which the Jdr. may approach the Hon'ble National Commission for refund/release. Accordingly, the Jdr. is directed to pay to the Dhr. Rs.33,91,954/- being the loss assessed by the Surveyor along with Rs.20,000/-as compensation and Rs.2,000/- as costs, and also interest @ 10% on such amounts from 07.07.2013 till the date of payment. Fix 11.04.2014 for payment by the Jdr. to the Dhr.”. 13. It has been contended by the counsel for the appellant that since a sum of Rs.16,95,977/- has already been deposited with the State Commission on 16.2.2009, the appellant is liable to pay only, the balance amount of Rs.18,03,937/-, as per calculation (placed at page 32 of the paper book). 14. It is an admitted fact that appellant had deposited a sum of Rs.16,95,977/- with the State Commission, in terms of order dated 27.1.2009 passed by this Commission. Accordingly, we direct the Appellant/ Insurance Company to comply with order dated

28.11.2008 passed by the State Commission forthwith. However, appellant shall get adjustment for the sum of Rs.16,95,977/-, already deposited by it, with the State Commission on 16.2.2009. 15. With these observations, the impugned order stand modified to this extent and present appeal stand disposed of accordingly. …………………………………….J (V.B. GUPTA) PRESIDING MEMBER

(REKHA GUPTA) MEMBER Sg. NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 18.02.2013 in First Appeal No. 1479/2008 of Punjab State Consumer Disputes Redressal Commission, Chandigarh)

Bachan Singh, son of Amarjit Singh, resident of Village Gulami Wala, Police Station Mallanwala, District Ferozepur

... Petitioner

versus

The Oriental Insurance Company Ltd., The Mall Ferozepur City, through its Branch Manager

…. Respondent

BEFORE

For the Petitioner(s) Mr. Mukand Gupta, Advocate

O R D E R

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

Commission’) in First Appeal No. 1479 of 2008, “Bachan Singh Vs. The Oriental

Insurance Co. Ltd.”, vide which, while dismissing appeal, the order passed by the

District Consumer Disputes Redressal Forum, Ferozepur, dismissing consumer complaint No. 334 of 2007, was upheld.

2. The brief facts of the case are that petitioner/complainant purchased a long-body truck, commonly known as Trolla, on 10.09.2003 for Rs.9,05,111/- from Sidh Motors

Private Ltd. and got it financed by Sundram Finance Ltd., Moga, who advanced an amount of Rs.8.50 lacs as loan. The said vehicle was registered with District Transport

Officer, Ferozepur vide registration No. PB-05-J-9703 and insured with the respondent/opposite party, vide cover Note No.829533 for the period 10.09.2003 to

09.09.2004. It has been stated in the complaint thatSahab Singh, brother of the complainant, is also the owner of the two such trucks, one 2001 model with registration

No. PB-05-G-9803 and other 2003 model with registration No. PB-05-J-9803. The three trucks were collectively insured by making payment of premium of Rs.58,114/- through cheque No. 011735 of 16.12.2004, drawn on Ferozepur Central Cooperative Bank,

Village Arif Ke, District Ferozepur for the period 17.12.2004 to 16.12.2005 and three separate policies were issued. It is stated in the complaint that the complainant and his brother Sahab Singh, with two trucks bearing Nos. PB-05-J-9703 and PB-05-J-9803 along with driver Balwinder Singh and cleaner Kala went to Amritsar and parked their trucks near Jagdambhey Transport Company at Amritsar-Tarn Taran Road, and slept there for the night intervening 3-4.06.2005. At about 3.00 A.M., on 04.06.2005, the complainant, his brother and driver went to Shri Harmander Sahib to pay obeisance while Kala cleaner stayed back. When they returned at about 6.30 A.M., they found that only one truck, bearing No. PB-05-J-9803 was parked at the site; whereas the other truck was missing. The cleaner, who was sleeping could not give any satisfactory answer. The matter was reported to the police post whereupon, the incharge police post, Varpal reached the spot and made enquiries, but FIR was not recorded immediately. The complainant informed the Development Officer of respondent/opposite party, who suggested that FIR should be got registered. The complainant again approached the police post, village Varpal, where he was told that the area was under the jurisdiction of police post Kot Mit Singh. The FIR was ultimately registered as FIR No.137 of 20.06.2005 under Section 379 IPC at police stationSultanwind, Amritsar. However, the truck remained untraced and a report to this effect was recorded by the police on 25.10.2006 and the case was closed as untraced. The complainant submitted copy of the FIR and the claim form to the respondent, which appointed an investigator, who found after enquiry that the truck was never stolen; rather it was disposed of fraudulently with malafide intention. The claim was repudiated by the insurance company, following which the consumer complaint in question was filed, claiming an amount of Rs.6.40 lacs from the opposite party, along with interest @ 18% per annum and Rs.50,000/- as compensation for mental harassment and Rs.1.00 lac as compensation for the loss of earnings and Rs.10,000/- as litigation charges. In their written statement filed before the District Forum, the insurance company denied that the complainant and his brother went to Amritsar and slept there for the night intervening 3-4.06.2005. The insurance company stated that the entire story given by the complainant was a concocted story. As per the report of the investigator, no theft had taken place and the FIR had also been manipulated. The truck in question had already been disposed of fraudulently with malafide intention. The insurance company had therefore, rightly rejected the claim.

3. The District Forum vide their order dated 24.09.2008 dismissed the complaint. An appeal was filed before the State Commission, which was also dismissed vide impugned order. It is against this order that the present petition has been made.

4. At the time of admission hearing, the learned counsel was asked to explain the delay in lodging FIR with the police and the delay in giving intimation to the insurance company. He stated that they had given information to the local police on 06.06.2005, but the police registered the FIR only on 26.06.2005, as there was confusion regarding jurisdiction of particular Police Station/Post. The complainant had also informed the

Development Officer of the insurance Company-Pardeep Dhingra on the same day, but proper intimation along with claim form was given only on 04.07.2005. The learned counsel stated that the consumer fora below had taken an erroneous view in the matter, relying upon the report submitted by the investigator, appointed by the insurance company.

5. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us. It is clear from the material on record that there has been delay in lodging the FIR and in giving intimation to the insurance company about the alleged incident. The FIR has been registered on 26.6.2005; whereas the incident is stated to have occurred on 04.06.2005. On this score, we are in agreement with the observations of the State Commission made in the impugned order that if the FIR was not registered by the police, even then the complainant should have moved some application to set the law in motion regarding the theft. Further, the learned counsel for the petitioner admitted during admission hearing that formal intimation was given to the insurance company on 04.07.2005, i.e. after a lapse of one month of the incident. The investigator appointed by the insurance company has commented adversely on the working of the Branch Manager, A.K. Wadhwa and Development Officer-

Pardeep Dhingra, recommending action against them. In view of the position brought out during the investigation, it is clear that the intimation was not promptly given to the insurance company. The State Commission have rightly relied upon the order passed by this Commission in “New India Insurance Company Vs. Trilochan Jane”, F.A. No.

321 of 2005, decided on 09.12.2009, saying that the claim was not payable in the present case. In the case quoted above, FIR was lodged two days after the theft and insurance company was given intimation after nine days and the said delay was found fatal to the payment of claim. We therefore, agree with the State Commission that the complaint is liable to be dismissed on the ground of the late registration of FIR and late intimation to the insurance company.

6. Further, the reports submitted by Shri D.S. Chadha, investigator appointed by the insurance company is a detailed one and brings out that that the factum of theft had not been proved from the circumstances on record. As per the own version of the complainant, the cleaner of the truck was present on the spot, but still, the truck was stolen, when he was very much present there.

7. In view of the facts stated above, we do not find any reasons to interfere with the well-reasoned orders passed by the State Commission and the District Forum. There is no illegality, irregularity or jurisdictional error in the said orders, which may require interference at therevisional stage. The said orders are therefore, upheld and the 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)

MEMBER SB/4

(From the order dated 22.04.2008 in First Appeal No. 935/2003 of Punjab State Consumer Disputes Redressal Commission, Chandigarh)

1. United India Insurance Company, Regional Office, SCO No. 123-124, Sector 17-B, Chandigarh through Its duly constituted Attorney

2. Sh. Brij Sayal, Regional Manager, United India Insurance Co., SCO No. 123-124, Sector-17-B, Chandigarh

3. United India Insurance Co., Divisional Manager, SCO No. 123-124, Sector-17-B, Chandigarh

4. United India Insurance Co. Branch Manager, Leela Bhawan, Patiala

... Petitioners /Opposite parties

Versus

Bhupinder Singh, son of Balwant Singh, resident of 211, EWS Sewa Singh Thikri Wala Nagar, Rajpura Road, Patiala as well as Attorney of Kamalpreet Singh

…. Respondent/Complainant

BEFORE

For the Petitioner(s) Mr. A.K. De, Advocate with

Mr. Zahid Ali, Advocate and

For the Respondent Mr. Rajesh Dwivedi, Advocate Mr. Mukand Gupta, Advocate with

Ms. Aparajita Sharma, Advocate

O R D E R PER DR. B.C. GUPTA, MEMBER This revision petition has been filed against the impugned order dated 22.04.2008, passed by the Punjab State Consumer Disputes Redressal Commission (for short ‘the

State Commission’) in First Appeal No. 935 of 2003, “United India Insurance Company

Vs. Bhupinder Singh”, vide which while dismissing appeal, the order dated 16.06.2003, passed by the District Consumer Disputes Redressal Forum, Patiala in consumer complaint No. 570 dated 28.11.2002, allowing the said complaint, was upheld.

2. Briefly stated the facts of the case are that Bhupinder Singh, the present respondent filed the consumer complaint in question on 28.11.2002, stating that he was the owner of the Tanker Ashok Leyland vehicle No. PB-11-G-2035, model 1995. The previous owner of the vehicle Kamalpreet Singh got it insured with the petitioner insurance company for Rs.5,30,000/- for the period 17.12.2000 to 16.12.2001. The said vehicle was stolen on 10.09.2001 for which FIR No. 770 dated 01.12.2001 was lodged with the police station Kotwali, Patiala. Intimation about the theft of the vehicle was given to the insurance company on 07.12.2001. The police had filed untraced report for the said vehicle. The complainant submitted all the requisite documents to the insurance company and also met their officials personally regarding the settlement of the claim, but the same was not settled. The complainant demanded a sum of Rs.5.00 lacs through the consumer complaint in question. In their reply before the District

Forum, the petitioner stated that the complaint was not maintainable as the complainant did not have any insurable interest in the matter. The insurance policy was in the name of Kamalpreet Singh. Moreover, the truck was taken away by employees of the complainant, which amounts to misappropriation and not theft. The insurance company also denied that the requisite documents had been provided to them. The investigator appointed by the insurance company also stated that the complainant had no insurable interest in the matter.

3. The District Forum vide their order dated 16.06.2003, allowed the complaint and directed the opposite party to pay a sum of Rs.3.20 lacs along with 9% interest per annum as assessed by the surveyor. The District Forum observed that the driver had taken away the vehicle with the intention to commit theft. In appeal filed before the

State Commission, the order of the District Forum was upheld, saying that the complainant was an Attorney of the original owner Kamalpreet Singh and he was liable to get the benefit from the insurance company. It is against this order that the present petition has been made.

4. Heard the learned counsel for the parties and examined the record.

5. Learned counsel for the petitioner stated that as per the complaint, the theft took place on 10.09.2001, but FIR was lodged with the police on 01.12.2001 and the intimation was given to the insurance company on 07.12.2001. It was clear therefore, that there was a delay of two months and 21 days in filing the FIR and a delay of two months and 27 days in sending intimation to the insurance company. The claim was liable to be dismissed on this ground alone. The learned counsel further stated that in fact, the said vehicle had been sold in collusion with the driver of the vehicle and it was not a case of theft at all. The complaint was not maintainable as the insurance policy did not stand in the name of the complainant and even the registration certificate was not in the name of the complainant.

6. The learned counsel for the complainant/respondent stated that the present complaint had been filed by Bhupinder Singhrespondent as Power of Attorney holder of the original owner-Kamalpreet Singh. In a number of decisions already pronounced by the National Commission, it had been held that an attorney was competent to file the complaint. The learned counsel referred to the order of the National Commission in Banowarilal Agrawalla Vs. National Insurance Co. Ltd. & Anr., as reported in IV

(2005) CPJ 110 (NC) and order of the National Commission in RP/2721 of 2007,

“Consumer Education & Research Society & Anr. Vs. New India Assurance Co. Ltd., pronounced on 13.12.2007. A copy of the special Power of Attorney from Kamalpreet

Singh in favour of Bhupinder Singh had been placed on record. The complainant,

Bhupinder Singh was therefore, the purchaser as well as the special Power of Attorney holder and hence, competent to file the case. The vehicle was purchased by Bhupidner

Singh on 02.5.2002 and the said power of attorney was executed on 08.05.2002. The learned counsel further explained that since the theft took place in 2001, the case was governed by the General Regulations No.10, according to which, there was an automatic transfer of insurance policy along with the transfer of ownership. Regarding the delay in filing the FIR and intimation to the insurance company, the learned counsel stated that since all the documents were taken away with the vehicle, he was not in a position to lodge an FIR or to inform the insurance company immediately. 7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. A plain perusal of the consumer complaint in question reveals that the complaint has been filed on 28.11.2002 by

Bhupinder Singh in his own name, although, in the heading to the complaint, the description of the complainant has been described as Bhupinder Singh himself, as well as Attorney of the Kamalpreet Singh. It has been clearly stated in the complaint that theft took place on 10.09.2001; whereas the FIR was lodged on 01.12.2001 with the police and intimation to the insurance company was given on 07.12.2001. It is evident from these facts that the intimation to the police was given late by two months and 21 days and intimation to the insurance company was late by two months and 27 days. This is clearly in violation of the terms and conditions of the policy, as such intimation is required to be given immediately to the insurance company. We are supported in this contention in the order of the National Commission in the case ““New

India Insurance Company Vs. Trilochan Jane,” in F.A. No. 321 of 2005 decided on

09.12.2009. In the said case, a delay of two days in lodging the FIR, and a delay of nine days in giving intimation to the Insurance Company was found fatal to the claim for payment.

8. It is also clear from record that the vehicle still stands in the name of the original owner, Kamalpreet Singh. The insurance policy also stands in the name of the original owner. It is clear therefore, that in so far as the complainant is concerned, he does not have any insurable interest in the matter. Although, it has been stated that the claim is being made as power of attorney holder, even then, the complaint itself says that the

Bhupinder Singh has filed the complaint in his own capacity as well as in the capacity of power of attorney holder. We have therefore; no reason to agree with the conclusion arrived at by the District Forum and duly upheld by the State Commission that the complainant was liable to get the claim from the insurance company. In fact, the State

Commission have not given any reasons for agreeing with the findings given by the

District Forum.

9. The learned counsel for the respondent has also drawn our attention to the order of the National Commission in “Shri Narayan Singh versus New India Assurance

Company Ltd.”, as reported in IV (2007) CPJ 289 (NC), in which it was held that the benefits under the policy automatically accrue to the new owner on transfer of the vehicle. The learned counsel also has drawn attention to order of the National Commission in “National Insurance Company Ltd. Vs. Subhash Chand Kataria & Anr., as reported in II (2008) CPJ 324 (NC), in which the same principle has been stated. In

“Oriental Insurance Company Ltd. Vs. Om Prakash Gupta & Anr.”, as reported in

I(2009) CPJ 183 (NC), the National Commission passed their order based on GR-10 issued by the Tariff Advisory Committee. However, all these orders passed by the

National Commission do not help the complainant/respondent at all, because the ownership of the vehicle has not been transferred to the complainant. The question of

‘automatic transfer’ of insurance policy arises only if the ownership is transferred, but the said vehicle stands in the name of the original owner only.

9. In view of the discussion above, it is held that the District Forum and the State

Commission have gravely erred in coming to the conclusion that the complainant is entitled to the insurance claim. The present revision petition is therefore, allowed and the orders passed by the State Commission and the District Forum are set aside. The consumer complaint in question is ordered to be dismissed. There shall be no order as to costs.

..……………Sd/-………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..…………Sd/-…………………

(DR. B.C. GUPTA)

MEMBER SB/4

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1823 OF 2012 (Against the order dated 29.02.2012 in FA No. 87/2011 of the State Commission Himachal Pradesh, Shimla)

Kalyan Singh Chauhan s/o Mehar Singh Chauhan r/o Bharat Bhawan Down Kothi Kasumpti Shimla ...... Petitioner

National Insurance Company Through Division Manager O/O New Land Estate Circular Road Shimla – 171001 ...... Respondent

BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER For the Petitioner : Mr. Pawan Kumar Bansal, Advocate For the Respondent : Ms. Sakshi Gupta, Advocate PRONOUNCED ON : 20th MAY, 2014 ORDER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the order of the Haryana Pradesh State Consumer Disputes Redressal Commission Shimla in FA No.87/2011 dated 29.02.2012 whereby the State Commission allowed the appeal preferred by the respondent opposite party against the order of the District Forum and dismissed the complaint of the petitioner.

2. Briefly stated the facts relevant for the disposal of this revision petition are that the petitioner insured his newly purchased Swaraj Mazda LCV with the respondent insurance company for own damage and the third party risk on 02.06.2008. The vehicle was insured as “Goods carrying commercial vehicle”. The policy was valid from 02.06.2008 to 01.07.2009. Unfortunately, the vehicle met with an accident on 15.07.2008. The insurance company was informed and the petitioner filed insurance claim for indemnification of the loss sustained by him on account of damage caused to the vehicle due to accident. The respondent insurance company repudiated the claim on the ground that petitioner was plying the vehicle at a public place in violation of the terms and conditions of the insurance policy without a valid registration as also a valid route permit. Claiming this to be deficiency in service, the petitioner filed a consumer complaint seeking indemnification of the loss sustained by him on account of damage caused to the vehicle. 3. The District Forum on consideration of the pleadings of the parties as also the evidence accepted the plea of the respondent opposite party that at the time of accident, the vehicle was being plied without a valid registration and a valid route permit which amounted to breach of terms and conditions of the insurance policy. The District Forum, however, concluded that the respondent was not justified in repudiating the entire claim because of the aforesaid breach and allowed the insurance claim of the petitioner on non-standard basis and directed the respondent insurance company to pay to the petitioner 75% of the loss suffered amounting to Rs.1,97,133/- with interest @ 9%. In addition to that, the respondent was directed to pay Rs.2500/- as litigation expenses.

4. Being aggrieved of the aforesaid order, the respondent preferred an appeal. The State Commission on consideration of record did not find any justification in grant of the insurance claim to the petitioner on non-standard basis. The State Commission thus allowed the appeal against the order of the District Forum and dismissed the complaint.

5. Learned Shri Pawan Kumar Bansal, Advocate, for the petitioner has submitted that the impugned order of the State Commission is not sustainable as it is against law laid down by the Supreme Court in the matter of Amalendu Sahoo Versus Oriental Insurance Company Ltd. (2010) 4 SCC 536.

6. Ms. Sakshi Gupta, Advocate, learned counsel for the respondent has argued in support of the impugned order. She has contended that respondent has rightly repudiated the claim of the petitioner because the petitioner was driving the insured vehicle without registration and a valid route permit, which violation is a fundamental breach of terms and conditions of the insurance policy. Undisputedly, the vehicle in question was insured and it met with an accident resulting in damage during the currency of insurance policy. It is not disputed that at the time of accident, the subject vehicle was not having a valid registration nor it was having a valid route permit.

7. Before adverting to the submissions made on behalf of the parties, it would be useful to have a look at the law on the subject. In the matter of National Insurance Company Ltd. Vs. Nitin Khandelwal IV (2008) CPJ 1 (SC), the insurance claim filed by the insured in relation to theft of his vehicle was repudiated on the ground that the vehicle was being plied in violation of the terms and conditions of the insurance policy as a taxi. In the said case, Hon’ble Supreme Court held thus :

“In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant insurance company ought to have settled the claim on non-standard basis. The insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft”.

Following the aforesaid judgment, in the case of Amalendu Sahoo vs. Oriental Insurance Co. Ltd., the Supreme Court held thus:

“In the instant case the entire stand of the insurance company is that claimant has used the vehicle for hire and in the course of that there has been an accident. Following the aforesaid guidelines, this Court is of the opinion that the insurance company cannot repudiate the claim in toto”.

In the matter of G.Kothainachiar Vs. United India Insurance Co. Ltd., the three members Bench of this Commission after analysing the law laid down by the Supreme Court in the matters of Oriental Insurance Co. Ltd. Vs. Sony Cheriyan II (1999) CPJ 13 (SC), New India Assurance Co. Ltd., Shimla Vs. Kamla & Ors.( 2001) 4 SCC 342, Jitendra Kumar Vs. Oriental Insurance Co. Ltd. (2003) 6 SCC 420, National Insurance Co. ltd. Vs. Swaran Singh (2004) 3 SCC 297, National Insurance Company Ltd., Chandigarh Vs. Nicolletta Rohtagi & Ors. (2002) 7 SCC 456, B.V. Nagaraju V. Oriental Insurance Co. Ltd., Divisional Officer, Hasan (1996) 4 SCC 647, held thus:

“From the settled law quoted above, it is apparent that the Insurance Company can repudiate the claim of the insured in case where there is a breach of the policy condition / conditions; and, the breach is fundamental or material so as to vitiate the insurance contract”.

8. In the context of the above noted settled legal position, we now proceed to analyse the facts of the case. Section 66 (1) of the Motor Vehicles Act, 1988 deals with “Necessity for permits”, which reads thus:

“Necessity for permits. (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used”.

9. From the above, it is clear that no transport vehicle can be used on any public place without a valid permit. In other words, a transport vehicle without a valid permit cannot be plied on the road. For the violation of the said provision, there is a penal liability provided under section 192 (A) of the Motor Vehicle Act, 1988.

10. On perusal of the Insurance Certificate, we find that at the bottom left corner, the insurance also provides “Limitations as to Use”, which reads thus:

“ The Policy covers use only under a permit within the meaning of the Motor Vehicles Act, 1988 or such a carriage falling under sub-section (3) of Section 66 of the Motor Vehicles Act, 1988. The policy does not cover use for (a) organised racing, (b) Pace making, (c ) Reliability trails, (d) Speed Testing.”

11. On bare reading of the above, it is clear that under the insurance contract between the parties, the insurance cover extended to the insured is subject to the use of the vehicle only under a permit within the meaning of Motor Vehicle Act, 1988. Undisputedly, at the time of accident, subject vehicle was being plied on a public road without a valid route permit. Therefore, it is clear that under the above noted condition of “Limitations as to Use” of the insurance policy which is reproduced above, the respondent complainant cannot claim indemnity in view of the violation of the expressed “Limitations as to Use” provided in the insurance contract. In our aforesaid view, we find support from the judgment of the Supreme Court in the matter of Vikram Greentech India Ltd. & Anr. Vs. New India Assurance Co. Ltd (2009) 5 SCC 599, while dealing with the question about the construction of an insurance contract has held thus :

“An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of uberimma fides i.e. good faith on the part of the insured. Except that, in other respects, there is no difference between a contract of insurance and any other contract. The four essentials of a contract of insurance are, (i) the definition of the risk, (ii) the duration of the risk, (iii) the premium and (iv) the amount of insurance. Since upon issuance of insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the insurance policy, its terms have to be strictly construed to determine the extent of liability of the insurer. The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in re-writing the contract or substituting the terms which were not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy. [General Assurance Society Ltd. Vs. Chandumull Jain and another, Oriental Insurance Co. Ltd. Vs. Sony Cheriyan and United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal]. Document like proposal form is a commercial document and being an integral part of policy, reference to proposal form may not only be appropriate but rather essential. However, the surveyors’ report cannot be taken aid of nor can it furnish the basis for construction of a policy. Such outside aid for construction of insurance policy is impermissible.”

12. Further, section 39 of the Motor Vehicles Act deals with necessity for registration of a motor vehicle and it prohibits driving of any motor vehicle at a public place unless the vehicle is registered. The section also casts an obligation on the owner of the motor vehicle not to permit the vehicle to be driven at a public place without registration. Admittedly, the vehicle in question was not having a valid registration at the relevant time. Thus, by permitting the vehicle to be driven without registration, the petitioner has committed violation of Section 39 of the Motor Vehicles Act, which also amounts to fundamental breach of insurance policy. 13. In view of the discussion above, it is clear that this is a case of fundamental breach of terms and conditions of the insurance contract. Therefore, we do not find any jurisdictional error or material irregularity in the order of the State Commission which may call for interference by this Commission in exercise of revisional jurisdiction. 14. Revision petition is accordingly dismissed with no order as to cost.

………………………….Sd/- (AJIT BHARIHOKE, J) ( PRESIDING MEMBER)

…………………………Sd/- (SURESH CHANDRA) MEMBER Am/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

Revision Petition NO. 1402 OF 2011 (Against the order dated 05.01.2011 in Appeal no. 2890 of 2010 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

State Bank of Mysore Maddur Branch Maddur Karnataka Petitioner

Mr Amitchandra Son of Late Dr S K Chandrashekar Resident of no. 1234 Gangothri Nivas M C Road, Maddur Mandya District Karnataka

Smt K S Parimala Wife of Late Dr S K Chandrashekar Resident of no. 1234 Gangothri Nivas M C Road, Maddur Mandya District Karnataka

Kumari Swetha M C daughter of late Dr S K Chandrashekar Resident of no. 1234 Gangothri Nivas M C Road, Maddur Mandya District Karnataka Respondents

BEFORE:

HON'BLE MR. JUSTICE V. B. GUPTA PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA MEMBER

For the Petitioner Mr S L Gupta, Advocate

For the Respondent Mr C B Gururaj, Advocate

Pronounced on 20th May 2014

ORDER REKHA GUPTA

Revision Petition no. 1402 of 2011 has been filed under section 21 (B) of the Consumer Protection Act, 1986 against the order dated 05.01.2011 passed by the Karantaka State Consumer Disputes Redressal Commission, Bangalore (‘the State Commission’) in Appeal no. 2890 of 2010.

2. The brief facts of the case as per the respondent/complainant are that respondent’s father late Dr S K Chandrashekar was an account holder of the petitioner – Bank. The respondent submits that his father passed away on 04.01.2008.

3. Petitioner is a Banking company and is having its branches at various places. Complainant submits that his father had sold his property in old Maddur, in the year 2006 and on the pressure and advice of the petitioner’s Manager, had kept fixed deposit of Rs.2,00,000/- in his name and Rs.1,00,000/- in the name of respondent’s mother K S Parimala and Rs.1,00,000/- in the name of respondent’s sister M S Swetha in the State Bank of Mysore, Maddur Branch. 4. Respondent further submits that the Bank Manager collected cash from his father from his residence and made them to sign on some pay-in-slip and otherchallans and form, as his father was bedridden, the respondent went along with the said Manager to the Bank and collected the fixed deposit Bonds from him.

5. Respondent’s father expired on 04.01.2008 and as the respondent had incurred loans for the treatment of his father, he immediately approached the Bank and submitted the death certificate of his father and gave requisition dated 07.02.2008, to close the fixed deposit of his father and to pay the deposited amount along with the interest. The Manager of the Bank started dodging the matter on one pretext or the other and finally he denied having collected any money. As the respondent was in urgent need of funds, he gave requisition dated 29.02.2008 to the complaint cell, Head Office, State Bank of Mysore, Bangalore, through a lawyer with a copy to the Maddur Branch.

6. The respondent did not receive any reply to the above said requisition or legal notice and finally the complaint cell gave a reply dated 13.03.2008, stating that the matter has been sent to Mysore Zone Office and they will enquire into the matter and inform the respondent.

7. The respondent again did not receive any communication or information from the Mysore Zone and hence, he issued a second legal notice dated 10.04.2008, through his lawyer to the complainant cell of the Petitioner – Bank.

8. Petitioner – Bank finally on 16.04.2008 sent a reply after a lapse of two months cooking up a story that the respondent has not paid the money towards the fixed deposits and they had issued the Fixed Deposits Bonds without collecting the money.

9. It is pertinent to submit that after receiving the legal notice the respondent approached the Ombudsman Authority in Bangalore, requesting them to enquire into the matter and to release his money. But even that authority without even giving any hearing to the respondent has unilaterally replied that they have confirmed that the deposits were issued without funding the same.

10. It is pertinent to submit that at the first instance, how the petitioner Bank issued the Fixed Deposit Bonds without collecting the money for the same and kept quiet for two longs years and now at the time of paying the amount they are giving all lame excuses. To show how casually Bank was taking the suffering of the common people this is the best example.

11. The respondent has produced the copy of the requisition which the Bank has denied in its reply notice. A fraud has been played by the petitioner – Bank, which is a public office with the respondent. Otherwise, what stopped the respondent from informing the respondent’s father about the payment of the money and till the respondent requested for the closure of the Fixed Deposit there was not a single communication to the respondent or his father about the payment of the money to the deposit. Now after two years after issuing the Bonds, the petitioner – Bank came up with this story to cheat the respondent. The contention of the Bank that they had forgotten about the collecting the money from the respondent’s father cannot be believed as the Bank is a registered company and is under the RBI and there must be regular internal audit and hence, the story of the Bank that they have not collected the money is unbelievable.

12. Petitioner – Bank has issued the Fixed Deposits Bonds only after collecting the money and after getting signatures of the deposit holders on some forms and now if they bring some lame excuses and rules to hide their act and to grab the money of the respondent. The petitioner Bank having covenanted and assured and having collected the amount from the respondent’s father are deficient in rendering the service to the respondent. Petitioner is a Banking company in the business of Banking and the respondent is a consumer, whose father had deposited the amount for fixed period of five years with the Bank. The petitioner has rendered deficiency in service by not closing the deposits and releasing the cash to the respondent.

13. The petitioner is a very experienced in Banking business and is very old. Hence, the Bank is aware of the Banking practice and RBI rules and regulations.

14. In their written statement before the District Consumer Disputes Redressal Commission, Mandya (‘the District Forum’), the petitioner Bank have stated that the father of respondent – Dr S K Chandrashekar was an account holder in the Bank. But the Bank was not aware of the date of death of Dr S KChandrashekar.

15. The allegations made that upon the pressure and advise of the petitioner – Bank’s Manager, his father had kept the fixed deposit of Rs.2,00,000/- in his name and Rs.1,00,000/- each in the name of K S Parimala and M C Swetha respectively who are the mother and sister of the respondent in the year 2006 was absolutely false and baseless.

16. The allegations made that the Manager of the Bank collected the cash from his father from his residence and made them sign on some pay-in-slips and other challans and Forms as his father was bedridden, and that the respondent went along with the Manager and collected the Fixed Deposits bonds from him are all absolutely false and untenable. 17. The petitioner admitted that a requisition was given on 29.02.2008 to the Head Office. It is also a fact that a reply was given to this respondent on 13.03.2008.

18. The allegations made that the Petitioner Bank had issued the fixed deposit bonds only after collecting the money and after getting signatures of the deposit holders on some forms and that now lame excuses and rules are being given to hide their act and to grab the money of the respondent are all absolutely false and myth. It is utterly false to state that the Manager of the Petitioner – Bank collected the amount from the respondent’s father, since there was no collection of money the question of deficiency in service to the respondent does not arise. Since there was no deposits as alleged by the respondent, the question of closing the deposits and releasing the cash to the complainant does not arise.

19. The case of the Petitioner/ opposite party – Bank is as follows: -

20. It is submitted that Dr S K Chandrashekar, his wife K S Parimala and daughter M C Swetha are the account holders of the petitioner Bank. SB Account nos., of Dr S K Chandrashekar is 54025501463, SB account of Parimala K S is 54025517768 and account number of M C Swetha is 64004217866. All the three account holders had sufficient credit balance in their S B Accounts to the extent of Rs.3,28,754/-, Rs.3,23,729/- and Rs.2,82,856/- respectively as on 24.08.2006. On 25.08.2006 father of the respondent and his mother came to the Bank and expressed their intention to keep money in fixed deposits to the extent of Rs.2,00,000/- in the name of Dr S K Chandrashekar and Rs.1,00,000/- each in the name of M C Swetha and Parimala K S. Considering their desire, the branch officers prepared the necessary debit slips to the concerned accounts for Rs.2,00,000/-, Rs.1,00,000/- and Rs.1,00,000/- to transfer the amount to the fixed deposit account from their respective S B Accounts and by keeping the slips, the concerned officers issued the deposit certificates, since father of the respondent was not so doing well and they expressed their urgency to return back to their home, and since the father, mother and sister of the respondents were good customers to the Bank, the Bank officers trusted them and issued the certificates. Thereafter, due to some problem in connectivity and server of the computers the amount was not transferred to the fixed deposit accounts from the SB accounts of all the three and due to inadvertence and due to the rush of work it was forgotten to transfer the amount from S B accounts to fixed deposit accounts of all the three. As per the procedure and RBI norms the deposits amount exceeds Rs.50,000/- cash will not be entertained and only transfer of amount from S B account to fixed deposit account is permissible. Since there was no funding to the fixed deposit account no transfer was made from SB accounts due to the above said reasons and thereafter knowing fully well the entire balance is in the S B account, the father, mother and sister of the respondent have withdrawn the amount through ATM and through cheques and they have not at all intimated anything to the Bank with regard to not transferring the amount from S B account. There was no practice of procedure in the Bank to go to the residence of the customer and collecting the money. If at all if any amount was paid then deposit receipts are issued and the transaction should be entered in the receipt scroll of the Bank which is maintained at all the counters of the Bank. The receipt scroll of the particular day was produced along with this counter which clearly goes to show that no cash was received from the father, mother and sister of the respondent. After receipt of the reply notice from the Bank, the respondent has set up a new theory stating that the Manager of the Bank went and collected the cash. In fact the Manager of the Bank has not at all visited the respondent’s house and has not collected any money. As a matter of fact the respondent came to the Bank with the receipt and requested the Branch manager to close the RID and to pay the money. At that time the branch was searched out the accounts and came to know that there was no funding made to the RID accounts from the SB Accounts and it was satisfactorily/ explained to the respondent with regard to the things happened and the reasons for issue of RID receipts without funding. At that time the respondent had agreed and undertaken to return the RID receipts within a week or two. Believing the words of the respondent the petitioner – Manager did not pressurise him to return the receipts for cancellation. Thereafter the respondent visited for some time and thereafter started to write letters and issue notices only with a mala fide intention to pressurise the Bank officers with a sole intention to blackmail the Public Financial Institutions. If really the cash was paid and remitted to the concerned account the respondent should have taken the counterfoils. Since, there was no procedure to take the cash directly to RID accounts the question of collecting the cash and issue RID receipts does not arise.

21. District Forum vide its order dated 07.05.2010 while allowed the complaint observed as follows:

“ Originally the complaint was filed by the 1st complainant. Admittedly, trial was conducted and both sides adduced evidence and after hearing both the parties, the complaint was dismissed. Complainant filed an appeal before the State Commission got remanded the matter for de novo trial and for impleading complainants no. 2 and 3 as parties.

In spite of notice, the opposite party did not appear and did not adduce any evidence afresh. But all the three complainants have filed affidavits. So though, the complaint was remanded with a direction to conduct de novo trial giving opportunity to both sides, the opposite party did not file any affidavit and did not got mark the documents as evidence. So we have to scrutinize the evidence adduced by the complainants which is not contested by the opposite party at all after remand.

Under Negotiable Instruments Act, every instrument like cheque, FD receipts or promissory note or demand draft have presumption that they are issued for consideration and the burden is on the person who alleges that actually those instrument are not supported by consideration. In the present case, the opposite party has not adduced any evidence after remand to rebut the presumption and not proved that FDR’s totally for Rs.4,00,000/- admittedly issued by opposite party Bank are not funded, i.e., not supported by consideration. Only after three legal notices for the first time on 16.04.2008, nearly after three years, the opposite party has contended that the FDR’s issued are not funded by cash. Under these circumstances, the complainants are entitled to payment of the FD amounts with interest and the opposite party has committed deficiency in service in not honouring the FD receipts issued by it”.

District Forum gave the following order:

“ The complaint is allowed, directing the opposite party Bank to release the amount with interest in respect of FD receipt no. 64006775975 in favour of 2ndcomplainant and to release the amount with interest in respect of FC receipt no. 64006774132 in favour of 3rd complainant. The opposite party is liable to pay the cost of Rs.1000/-“.

22. Aggrieved by the order of the District Forum the petitioner/ opposite party filed an appeal before the State Commission. The State Commission while the dismissing the appeal, on the issue relating to argument of the appellant that they were not issued notices by the District Forum and the case was decided ex parte, held as under:

“ During the course of arguments counsel for the appellant argued that after remand the District Forum has not issued notice to the appellant- Bank. But on perusal of the order sheet maintained by the District Forum, it is seen that the District Forum ordered for issuance of notice to both the parties on 08.01.2010 and the same returnable on 08.02.2010. In the note sheet maintained by the District Forum, it is seen that notice issued by the District Forum to both the parties were duly served on 19.01.2010. Therefore, the grounds urged by the appellant- Bank and the submission made by the counsel for the appellant does not hold water. Before the District Forum respondent/ complainant adduced further evidence on 16.04.2010 and on the day opposite party remained absent and the case was adjourned to 22.04.2010 for cross examination of the complainant by the opposite party if any. On that day also opposite party remained absent and failed to cross examine the complainants. The opposite party has also not filed the additional evidence. Therefore, the District Forum stating that opposite party evidence is taken as closed and posted the case for arguments on 28.04.2010. On 28.04.2010 also the opposite party remained absent. Therefore, the District Forum heard the arguments of the complainants and permitted them to file written arguments and posted for orders. Accordingly, the District Forum allowed the complaint and passed the impugned order under challenge. It is submitted that appellant/ OP received the copy of the impugned order dated 18.06.2010. Record indicated that after remand, notice was duly served on the OP on 19.01.2010 and the same was duly acknowledged with seal and signature of the OP Bank. Therefore, the grounds urged by the appellant that principles of natural justice has not followed by the District Forum cannot be accepted.

On the other hand, counsel for the respondents/ complainants submitted that since Dr S K Chandrashekar has maintained a huge balance in his SB Account the appellant Bank Manager approached him in his residence and requested for deposit the same in Fixed Deposit. There is a usual practice of the Managers in the Bank that they are required to show some targets in the deposits from their customers by honest and affiliate customers to keep their amount in FD. The contention of the respondents that the then Manager of the appellant Bank approached Dr S K Chandrashekar handed over Rs.4,00,000/- to deposit the same in Fixed Deposit in his name and in the name of respondents 2 and 3. Accordingly, three Fixed Deposit Certificates were issued in their respective names. After the death of Dr S K Chandrashekar the respondent no. 1 being one of the legal heir approached for encashment of the FDR’s but the same was not paid for the reasons best known to the OP. Therefore, the arguments advanced by the appellant in support of its contention cannot be acceptable. Considering the usual practice of the Manager of the Bank to approach the honest and affiliate customers to deposit the amount in FD to meet the target of deposits in their Bank. Therefore, we accept the arguments put forth by the counsel for the respondents. If really the amount in the SB account of the deceased Dr S K Chandrashekar would not be transferred to the FD account due to some connectivity problem, the Bank would not have issued the FDR’s and there was no urgency with the FDRs without transferring the amount from the SB Account. Since the respondent/ complainants have denied about the signatures in the withdrawal slips it could be said that the appellant fails to prove its defence taken in its version.

After the remand, though notice was served on the OP, OP remained absent and has not adduced further evidence. It seems that the appellant/ Bank intentionally avoiding to appear before the District Forum and contest the matter and also failed to cross examine the complainants. This goes to show that the appellant deliberately protracting the proceedings by not appearing before the District Forum. Of course, initially, complaint came to be filed by 1st respondent/ complainant and consequently respondents 2 and 3 have impleaded by filing an appeal. The respondents/ complainants have rightly contested the case by adducing further evidence. This Commission has recorded its finding that 07.02.2008 after the death of late Dr S K Chandrashekarthe complainants approached OP Bank requesting to close the Fixed Deposits of his father and to pay the deposit amount with interest. The three Fixed Deposits were made one in the name of deceased Dr S K Chandrashekar, one in the name of complainant no. 2 and another in the name of complainant no. 3 on 23.08.2006. Till 07.02.208 the OP Bank was not aware of the fact that the amount was not transferred to the FD account from out of the account of the deceased Dr Chandrashekar account due to some connectivity problem of the computer and the same was forgotten by the OP Bank. What efforts the OP Bank has made to recover the amount is not known and there is no document to show that whether the Manager of the appellant/ OP Bank went to the house of the respondent/ complainants and collected the amount. Therefore, we are of the opinion that there is a clear cut negligence on the part of the appellant/ Bank in not maintaining the accounts of its honest and affiliate customers in a proper and prospective manner. Taking all these facts and circumstances of the case and reasons assigned is in accordance with law which does not call for any interference. Therefore, we hold that the order under challenges is just and proper. Accordingly, the appeal is liable to be dismissed. Hence, we pass the following:

Appeal is dismissed.

The amount deposited by the appellant/ Bank in this appeal shall be transferred to the District Forum enabling the District Forum to pay the same to the complainants after due notice to them”.

23. The main grounds for the revision petition are as follows:

 The State Commission and the District Forum failed to appreciate that the petitioner Bank has not received the money for the Fixed Deposit and the money which was to be transferred to the Fixed Deposit was not transferred and remained in the Saving Banks account of the respondents and the said sum was admittedly withdrawn by the respondents.  The State Commission and the District Forum failed to appreciate that the petitioner Bank has produced before the District Forum the cash scroll of the said date which does not indicates the deposit of any cash by the respondent/ complainant.  The State Commission and the District Forum failed to appreciate that in the Bank there is no system according to which the Branch Manager of the petitioner Bank will visit the residences of the consequences convincing them for deposit and receiving the cash payments without issuing any receipts of the said cash.  The State Commission failed to appreciate the even if the petitioner Bank was not present during the de novo proceedings, it was the duty of District Forum to take into consideration the reply, oral evidence and documentary evidence filed by the Petitioner Bank. The District Forum has ignored everything and even the version of the Bank merely on the ground that the Bank has not participated in the proceedings.  The State Commission failed to appreciate that the petitioner Bank was not served with the court notice and the Bank had not received any court notice from the District Forum, this is why the Bank could not participate in the proceedings. Otherwise the Bank has a very good and strong case on merits, unfortunately Bank could not participate in the proceedings because the Bank was not served and Bank was not aware that any proceedings is going on in the District Forum at Mandya.

24. We have heard the learned counsel for the parties have gone through the records of the case carefully.

25. It is an undisputed fact that the petitioner had issued the FDs for Rs.2.00 lakh in the name of Dr S K Chandrashekar on 25.08.2006 for a period of five years and FD of Rs.1.00 lakh in the name of respondent no. 2 and Rs.1.00 lakh in the name of respondent no. 3. Petitioner in their written statement before the District Forum had admitted the same. The only dispute is regarding the manner by which the Bank has collected the amount for the Fixed Deposits. As per the respondents, the Manager of the Bank had himself visited the residence of Late Dr S K Chandrashekar and made them sign the pay–in slips and other challansand forms and collected the forms. Respondent no. 1 went along with the said Manager to the petitioner’s Bank and collected the FD Bonds from him. The version of the petitioner is that Late Dr S K Chandrashekar came to the petitioner and expressed his intention to keep the money in the Savings Accounts of himself, his wife and daughter in a Fixed Deposits and so the branch officers prepared the necessary debit slips and to the concerned saving account of Late Dr S K Chandrashekar. Respondent no. 2 and 3 also had sufficient credit balance in their Saving Bank Account to transfer the amount to the fixed deposit amount thereafter. It is their version that Late Dr Chandrashekar, father of respondent was not doing so well and expressed an urgency to return back. So the certificates were issued and handed over without carrying the debits in the savings bank accounts as there was some problems in the connectivity and server of the computer. Petitioner has unilaterally stated that “due to inadvertence and due to the rush of work it was forgotten to transfer the amount from SB account to fixed deposit accounts of all the three”. ……………………………………………………….. as a matter of fact that, complainant came to the Bank with the receipt and requested the Branch Manager to close the RID and to pay the money. At that time the branch was searching out the accounts and came to know that there was no funding made to the RID account from the SB Accounts and it was satisfactorily explained to the complainant with regard to the things happened and the reasons for issue of RID receipts without funding”. Petitioner has also stated that thereafter knowing fully well the entire balance in the saving bank account of father, mother and sister of the complainant have withdrawn through ATM and through Cheques and have not at all intimated to the Bank with regard to non- transferring of amount from SB account.

26. Learned counsel for the petitioner has admitted that no evidence to support the statement made above has been placed on record before the National Commission. The respondent’s requests to the petitioner for issue of FDs with instructions as to how the funding was to be done nor the account statements for the three savings accounts or any other paper indicating as to whether FDs were to be issued by debiting the amount to the saving account or by taking money in cash have been placed on record.

27. The respondents have established their case without any denial from the petitioner that three FDs have been issued in the name of Late Dr S KChandrashekar, Smt Parimala and Ms Sweta. It was for the petitioner to establish as to how it was to be funded and the circumstances under which the Bank departed from the prescribed procedure and issued the FDRs without ensuring that the amount of the FDs had been collected. It is also for the petitioner to explain as to how it has escaped notice at all levels in the Bank for over two years that FDs receipts had been issued without collecting the money. This is a very a serious matter. In the case of a public financial institution it would show that the laid down procedure and guidelines were not being followed by the Bank at any level and more particularly by the Manager. There was no internal audit and no checking of the balances in the saving accounts. Hence, deficiency of service on the part of the Bank is clearly established and onus of proof with regard to funding of FDs and the issuance of FDs without collecting the amount cannot be shifted by the petitioner on the respondent once the FDs have been issued and handed over to the respondent after a long gap of more than two years when the respondents have applied to encash their deposits. It is for the Chairman of the Bank to get an enquiry conducted and fix responsibility for this lapse. There, however, is no justification for the petitioner’s case that customers should be made to pay for the negligent careless and casual manner in which the Maddur Branch of State Bank of Mysore has functioned in the instant case..

28. In view of the foregoing reasons, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is accordingly dismissed with cost of Rs.20,000/- (Rupees twenty thousand only).

29. Petitioner is directed to pay Rs.5,000/- (Rupees five thousand only) directly to each respondents by way of demand draft and the balance amount of Rs.5,000/- (Rupees five thousand only) be deposited in the name of ‘Consumer Legal Aid Account’ of this Commission within four weeks from today. In case the petitioner fails to pay and deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

30. List on 18th July, 2014 for compliance.

Sd/- ..……………………………… [ V B Gupta, J.]

Sd/- ……………………………….. [Rekha Gupta]

Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3970 OF 2013

(From the order dated 19.08.2013 in First Appeal No. 1250/2008 of the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Auranabad)

With IA/7093/2013 (For Stay)

Arvind Pundlik Dhamne R/o C/o Dhamne Ploting Centre Prahlad Sankul, 1st Floor, Osmanpura, Aurangabad …Petitioner/Opp. Party (OP) Versus Raghuvir Wamnrao Joshi R/o Ramkuti Nageshwaradi Tehsil & Distt. Aurangabad Maharashtra

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. S.K. Pattjoshi, Sr. Advocate with Mr.

Mahaling Pandarge & Mr. S.K. Dubey, Advocates

For the Respondent : Mr. Shirish K. Deshpande, Advocate

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 19.08.2013 passed by the Maharashtra State Consumer Disputes RedressalCommission, Circuit Bench at Aurangabad (in short, ‘the State Commission’) in Appeal No. 1250 of 2008 – Arvind Vs. Ravhuvir by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent purchased two plots nos. 6

& 7 measuring 341 sq. ft. and 345 sq. ft., respectively on 4.7.1985 from OP/petitioner @

Rs.2/- per sq. ft. Complainant paid Rs. 8,000/- on that day and on 21.1.1986, complainant paid Rs.1,000/- for each plot. OP failed to give registered sale deed; so, complainant filed Consumer Complaint No. 160/2003 for directions to the OP to give sale deed executed in his favour. District Forum by the order dated 31.5.2005, disposed of the complaint, as parties remained absent with liberty to the complainant to file fresh complaint. Complainant filed fresh complaint for direction to execute sale deed. OP resisted complaint and denied that he agreed to sell two plots to the complainant and also denied receipt of amount. It was further submitted that as earlier complaint was dismissed, second complaint was not maintainable. It was further submitted that complaint was barred by limitation and complainant did not fall within the purview of consumer and matter could have been tried before the Civil Court and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to execute sale deed of the plots in favour of complainant and further awarded Rs.100/- per day as penal charges and further awarded

Rs.25,000/- as compensation and Rs.3,000/- as litigation cost. Appeal filed by the OP was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

4. Learned Counsel for the petitioner submitted that complaint was not maintainable for specific performance of the contract and; even though, complaint was hopelessly barred by limitation, learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned

Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. Perusal of record clearly reveals that part consideration for purchase of plots was given on 4.7.1985 and 21.1.1986, but complainant filed first complaint in 2003 and second complaint in 2005 meaning thereby, complaints were filed almost after 17 years and 19 years. At the time of contract for purchase of plots, Consumer Protection Act was not in force and in such circumstances; complaint was not maintainable under

Consumer Protection Act. Not only this, as complaints were filed after 17 years and 19 years without any application for condonation of delay under Section 24-A of the

Consumer Protection Act, the complaints were not entertainable by District Forum and learned State Commission committed error in dismissing appeal.

6. Learned Counsel for the petitioner submitted that as contract was purely for sale of plots, only suit for specific purpose in the Civil Court could have been filed. In support of his contention, he has placed reliance on judgment of the Apex Court in Civil

Appeal No. 331 of 2007 – Ganeshlal Vs. Shyam decided on 26.9.2013 in which it was held that where there is a sale of plot of land simpliciter, complaint is not covered under

Consumer Protection Act. Learned Counsel for respondent could not bring any citation in support of his contention that complaint for sale simpliciter of plots was maintainable before Consumer Forum that too in respect of the contract which was entertained before coming into force of Consumer Protection Act. This Commission in R.P. No.

1728/2010 – VasantDigamber Joshi Vs. Suryakalabai decided on 26.11.2010 in which while following judgment of this Commission referred in OP No. 12 of 1991

– E. Aboo &Anr. Vs. Tata Engineering & Locomotive Co. Ltd. & Ors. decided on

12.09.1991 observed that Consumer Protection Act does not have retrospective effect and it was further observed that as the cause of action had arisen in the year 1979 to

1981, and the Consumer Protection Act came into force in the year 1986, Consumer

Protection Act was not applicable and complaint was also barred by limitation.

7. In the light of aforesaid discussion, it becomes clear that both the complaints were time barred and complaint was not maintainable before the Consumer Protection Act for sale of land simpliciter, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision

Petition is to be allowed.

8. Consequently, Revision Petition filed by the petitioner is allowed and impugned order dated 19.8.2013 passed by learned State Commission in Appeal No. 1250/08

– Arvind Vs. Raghuvir and order of District Forum dated 28.7.2008 passed in Complaint

No. 180/2007 – Raghuvir Wamnrao Joshi Vs. ArvindDhamne is set aside and Complaint stands dismissed with liberty to the complainant to have recourse to the Civil Court for redressal of his grievance.

………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

With IA/2537/2014 (For Condonation of delay)

1. Didar Singh S/o Sh. Gurnam Singh R/o Bhullerheri, Tehsil Dhuri, Distt. Sangrur Punjab 2. Major Singh S/o Sh. Sadhu Singh R/o Bhadurpur Tehsil & Distt. Sangrur Punjab …Petitioners/Complainants Versus Reliance General Insurance Co. Ltd. Through its Regional Manager, Regional Office, SCO 212-214, Sector 34A, Chandigarh

…Respondent/Opp. Party

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioners : Mr. Karan Dewan, Advocate

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 30.09.2013 passed by the Punjab State Consumer Disputes RedressalCommission, Chandigarh (in short, ‘the State Commission’) in Appeal No. 1260 of 2010 – Reliance General Ins. Co. Ltd. Vs. Didar Singh & Anr. by which, while allowing appeal, order of District Forum allowing complaint was set aside.

2. Brief facts of the case are that Complainant No. 1/Petitioner No. 1 was owner of truck/trolla No. PB – 10-AT-4479, who purchased it after taking loan from the Bank.

Complainant No. 1 sold trolla to Complainant No. 2/Petitioner No. 2. The registration of vehicle could not be transferred in his name due to outstanding loan. Vehicle was got insured from OP/respondent for a period of one year from 6.9.2007 to 5.9.2008. Vehicle was stolen in the intervening night of 7/8.7.2008 and FIR was lodged on 8.7.2008, but vehicle was not traced. Claim submitted to the OP was repudiated on the ground that

Major Singh had no insurable interest on the date of theft. Alleging deficiency on part of

OP, complainants filed complaint before District Forum. OP/respondent resisted complaint and submitted that as there was no privity of contract between Major Singh and OP and original owner Didar Singh had transferred the vehicle to Major Singh without any intimation to the OP, 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 Rs. 4,50,000/- with interest to Major Singh. Appeal filed by OP was allowed by learned State Commission vide impugned order against which, this revision petition has been filed along with application for condonation of delay.

4. As there was delay of only 7 days in filing revision petition, we allow the application for condonation of delay for the reasons mentioned in the application and delay stands condoned.

5. Learned Counsel for the petitioner submitted that on account of outstanding loan, vehicle could not have been transferred in the name of purchaserinspite of sale of the vehicle before theft and learned District Forum rightly allowed complaint, but learned

State Commission committed error in allowing appeal; hence, revision petition be admitted.

6. It is admitted fact that Didar Singh purchased vehicle and transferred it to Major

Singh and intimation of transfer was not given by both the complainants to OP. It is admitted fact that vehicle was not transferred in the name of Major Singh after sale of vehicle by Didar Singh to Major Singh. Vehicle was stolen from the custody of

Major Singh, Major Singh had no insurable interest on the date of theft and learned

State Commission rightly observed as under:

“15. Admitted facts are that respondent no.1 Didar Singh sold

the vehicle in question to respondent no.2 and handed over the possession, but the insurance policy remained in the name of respondent no.1. Respondent no.2 was also delivered the physical possession and he lodged the FIR Ex.C-4 regarding the theft of the vehicle in question. The appellant got the matter investigated and the investigator gave the report Ex.R-6 and after investigation, concluded that the vehicle was purchased by Major Singh from the insured, but the insured did not get transferred the insurance cover in the name of said

Major Singh. The vehicle was stolen from village Benra and Major Singh only lodged the FIR and the theft was established. The investigator also recorded the statements and he produced the copy of the agreement Ex.R-7 vide which respondent no.1 has sold the truck in question to respondent no.2. Ex.R-8 is the receipt vide which he received the amount of Rs.1.50 lacs. Ex.R-9 to Ex.R-11 are the statements which further prove that the vehicle was sold and its possession was handed over by respondent no.1 to respondent no.2. The insurance remained in the name of respondent no.1 and respondent no.1 never intimated to the appellant about the transfer of the vehicle to respondent no.2. The handing over of the possession amounts to sale and it was obligatory on the part of respondent no.1 to intimate the appellant insurance company to get the insurance transferred in the name of respondent no.2. Respondent no.1 has violated the terms and conditions contained U/s 157 of the Motor Vehicles Act and GR-17 of India Motor Tariff as per which certificate of insurance has to be transferred in the name of the purchaser. GR-17 provides as follows:-

GR-17: Transfers:

“------

------

The transferee shall apply within fourteen days from the date of transfer in writing under recorded delivery to the insurer who has insured the vehicle, with the details of the registration of the vehicle, the date of transfer of the vehicle, the previous owner of the vehicle and the number and date of the insurance policy, so that the insurer may make the necessary

charges in his record and issue fresh Certificate of Insurance.

------”

16. The Hon’ble National Commission in similar circumstances in case “Om Parkash Sharma Versus National Insurance Company Ltd. & ors.”, 2009(1)CLT-29 (NC) observed in Para 3 as follows:-

“As by the time the car met with accident the petitioner had

not even applied for transfer of policy in his favour, he had no locus standi to file the complaint. Repudiation of claim by the insurance company cannot be termed as deficiency in service.”

17. In view of the above discussion and the law laid down, it is clear that the provisions of 157 of Motor Vehicle Act which are also on the same lines as that of GR-17 have not been complied with in the present case and the impugned order under appeal is against the law and is not sustainable”.

7. We do not find any illegality, irregularity or jurisdiction error in the impugned order and revision petition is liable to be dismissed at admission stage.

………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

(From the order dated 14.08.2012 in First Appeal No. FA/12/140 of the Chhattisgarh State Consumer Disputes Redressal Commission, Pandri, Raipur)

Oriental Bank of Commerce Nehru Complex, Vyapar Vihar, Bilaspur (Chhatisgarh) – 495224 (Through Branch Manager) …Petitioner/Opp. Party (OP) Versus 1. M/s. Shankar Chawal Udyog Prop. Ravi Kumar Agarwal S/o Sh. Shankar Lal Agarwal R/o Sakti Teh: Sakti, District: Janjgir Champa (Chhatisgarh)

2. State Bank of India Main Branch, Bilaspur (Chhatisgarh) (Through Branch Manager)

… Respondents/Complainants

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. H.P. Bhardwaj, Advocate

For the Res. No. 1 : Mr. B.P. Agarwal, Advocate

For the Res. No. 2 : Mr. Rajiv Kapur, Advocate

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 14.08.2012 passed by the Chhattisgarh State Consumer Disputes RedressalCommission, Pandri, Raipur (in short, ‘the State Commission’) in Appeal No. FA/12/140 – Oriental Bank of Commerce Vs. M/s. Shankar Chawal Udyog & Anr.by which, while dismissing appeal, order of District

Forum allowing complaint against petitioner was upheld.

2. Brief facts of the case are that Complainant/Respondent No.1 sold paddy to

M/s. Vinayak Agro Products, who issued account payee cheque of Rs.4,00,000/- on

3.8.2009 in favour of the complainant. Cheque was dropped by messenger in the drop box of the Bank/OP No. 2/Respondent No. 2. As cheque was not credited in the account of complainant till 10.8.2009, inquiry was made and it was found that someone made overwriting on the cheque and converted it into a bearer cheque and encashed it. FIR was lodged. Alleging deficiency on the part of OPs, complainant filed complaint before District Forum. OP No. 1/petitioner resisted complaint and submitted that if account payee cheque was issued in favour of the complainant then why was it not deposited in the account of the complainant and why was it handed over to employee of the broker Manish Trading Co. for deposit. It was further submitted that cheque was never received through clearance, but it was directly presented before its employee by a person after cancellation of endorsement of account payee so, payment was made as a bearer cheque and prayed for dismissal of complaint. OP No. 2 resisted complaint and submitted that cheque was neither presented before its employee, nor dropped in the drop box, otherwise, necessary entry would have been made in the ledger of the bank and prayed for dismissal of complaint. Learned District forum after hearing both the parties, allowed complaint and directed OP No. 1 to pay Rs.4,00,000/- along with 6% p.a. interest and further pay Rs.3,000/- as compensation and Rs.500/- towards litigation expenses. Appeal filed by the OP No. 1 was dismissed by learned

State Commission vide impugned order against which, this revision petition has been filed.

4. Learned Counsel for the petitioner submitted that complainant had no privity of contract with the petitioner and complainant did not fall within purview of consumer vis-

à-vis petitioner. It was further submitted that cheque was for commercial transaction; so, complaint was not maintainable. It was further submitted that complaint could have been filed only by M/s. Vinayak Agro Products and without impleading

M/s. Vinayak Agro Products as party, complaint was not maintainable. It was further submitted that as forgery was alleged and criminal case was still pending, learned

District Forum had no jurisdiction to decide the complaint and learned District Forum committed error in allowing complaint and State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the Respondent No. 1 submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed. Learned Counsel for the Respondent No. 2 submitted that no liability has been fastened on Respondent No. 2 by District Forum.

5. Admittedly, cheque was issued by Proprietor M/s. Vinayak Agro Products in favour of complainant M/s. Shankar Chawal Udyog which was an Account Payee cheque. As per version of the complainant, this cheque was dropped in drop box of

State Bank of India, whereas State Bank of India in its reply denied this fact and submitted that cheque neither presented before its employee, nor dropped in the drop box, otherwise, necessary entry would have been made in the ledger of the petitioner. Had the cheque been dropped in the drop box, it could have reached to

Petitioner Bank through clearance and there was no occasion for any person appearing before Petitioner Bank for crossing endorsement of Account Payee and signing the cheque as proprietor of M/s. VinayakAgro Products. In such circumstances, story of complainant is suspicious that the cheque was dropped in the drop box of State Bank of

India for clearance and someone cancelled endorsement of Account Payee cheque and got it encashed.

6. Section 2(d)(ii) of Consumer Protection Act reads as under: “ 2(d)(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes”.

Perusal of aforesaid provision makes it clear that services must be availed for consideration paid or promised to pay. In the case in hand, admittedly, complainant neither paid any consideration, nor promised to pay any consideration to the Petitioner

Bank for clearance of cheque issued by M/s. Vinayak Agro Products. Complainant was customer vis-à-vis State Bank of India, but he cannot be treated as consumer of

Petitioner Bank as aforesaid clearance of cheque was without any consideration paid or promised to be paid and in such circumstances, complaint filed by the complainant against petitioner was not maintainable. There was no privity of contract between the complainant and the Petitioner Bank. This Commission in Appeal No. 54 of 2007

– Himkasth Sales Depot Vs. Branch Manager, State Bank of Patiala endorsed the view taken by the State Commission that complaint filed by the complainant was not maintainable, as there was no privity of contract with OP/Respondent No. 1. This

Commission in (1997) 5 CompLJ 607 NCDRC – The Gauhati Co-operative

Urban Vs. Santosh Kumar Tewari & Ors. observed that as there was no hiring of service for consideration, complainant did not fall within the purview of consumer. In the light of aforesaid judgments, we are of the view that as complainant had not hired services of petitioner, complainant was not a consumer vis-à-vis petitioner and complaint was not maintainable against the petitioner. Only M/s. Vinayak Agro Products, who was account holder of petitioner could have filed complaint against the petitioner.

7. Learned Counsel for the respondent has placed reliance on the judgment of Hon’ble Apex Court delivered in M/s. Spring Meadows Hospital & Anr.

Vs.Harjol Ahluwalia in which it was held that beneficiaries can also file complaint. In the aforesaid case, complaint was filed by parents regarding medical negligence to their minor child, whereas in the case in hand, complainant cannot be treated as beneficiary of M/s. Vinayak Agro Products and in such circumstances, complaint filed by the complainant against the petitioner was not maintainable.

8. As per allegations in the complaint, someone crossed endorsement of Account

Payee cheque and got it encashed meaning thereby, forgery was alleged. It is also admitted that FIR was lodged and criminal case was still pending regarding this forgery. Learned District Forum and Learned State Commission have placed reliance on the report of Mr. M.N. Pandey, State Examiner of Questioned Documents, Govt. of

Chhattisgarh, Raipur, which was given in criminal case. He has not been examined before the Learned District Forum and petitioner had no opportunity to cross-examine him. In such circumstances, no reliance should have been placed on the report of Mr. M.N. Pandey and Learned District Forum and Learned State Commission committed error in holding that cancellation of endorsement Account Payee was forged one. Learned Counsel for the petitioner has placed reliance on (1993) 2 SCC 97

– Bank ofMahrashtra Vs. Automotive Engineering Co. in which it was held that petitioner is not liable on the ground of negligence merely because of its failure to scrutinise the cheque in ultra violet ray lamp. In such circumstances, no liability should have been fastened on the petitioner for encashment of cheque on the basis of forged cancellation of endorsement. Learned Counsel for the Respondent no. 1 has placed reliance on judgment of Hon’ble Apex Court in 1987 (2) SCC 666 – Canara Bank Vs. Canara Sales

Corporation in which it was observed in paragraph 42 as under: “ 42. The bank's business depends upon this trust. Whenever a

cheque purporting to be by a customer is presented before a bank

it carries a mandate to the bank to pay. If a cheque is forged there

is no such mandate. The bank can escape liability only if it can

establish knowledge to the customer of the forgery in the cheques.

In-action for continuously long period cannot by itself afford a

satisfactory ground for the bank to escape the liability. The plaintiff

in this case swung into action immediately on the discovery of the

fraud committed by its accountant as in the case before the Privy

Council.

This judgment does not help to the petitioner because as per aforesaid judgment, petitioner was under an obligation to pay amount of cheque to the bearer of cheque after cancellation of endorsement of Account Payee. No doubt, if the cheque was forged one, there was no such mandate to make payment, but by necked eye, it cannot be said that cancellation of endorsement of Account Payee was a forged one.

9. As there was allegation of forgery in the complaint and criminal case was also pending before the Court, learned District Forum should have dismissed complaint and directed complainant to approach to the Civil Court for redressal of his grievances and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed.

10. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 14.8.2012 passed by learned State Commission in Appeal No. FA/12/140 –

Oriental Bank of Commerce Vs. M/s. Shankar Chawal Udyog & Anr. and order of

District Forum dated 21.02.2012 passed in Complaint No. 93 of 2011 – M/s.

Shankar Chawal Udyog Vs. Oriental Bank of Commerce is set aside and complaint stands dismissed with liberty to the complainant to approach Civil Court for redressal of its grievance.

………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

FIRST APPEAL NO. 256 OF 2014

(From the order dated 24.03.2014 in Complaint Case No. 25 of 2013 of the Jharkhand State Consumer Dispu tes Redressal Commission, Ranchi)

With IA/2691/2014

(Exemption from filing the certified copy)

Ravindra Kumar Prasad S/o Sri R.K. Prasad R/o 274, North Office Para, P.O. & P.S. Doranda District Ranchi …Appellant/Complainant Versus 1. The Zonal Manager Bank of India, Pradhan Tower 2nd Floor, Main Road, P.O. & P.S. Chutia, District Ranchi

2. The Dy. Zonal Manager Bank of India, Pradhan Tower 2nd Floor, Main Road, P.O. & P.S. Chutia, District Ranchi

3. Sr. Branch Manager Bank of India Jharkhand High Court Branch P.O. & P.S. Doranda, District Ranchi …Respondents/Opp. Parties (OP)

BEFORE

For the Appellant : Mr. Kaushik Laik, Advocate

Appellant has filed this appeal against the order dated 24.3.2014 passed by the Jharkhand State Consumer Disputes Redressal Commission, Ranchi (in short, ‘the State Commission’) in Complaint No. 25 of 2013 – Ravinder Kumar Prasad Vs. The Zonal Manager, Bank of India & Ors. by which, complaint was dismissed.

2. Brief facts of the case are complainant/Appellant was having Bank Account with OP/Respondent. Complainant issued 8 cheques aggregating Rs.20,04,994/- as mentioned in paragraph 2 of the complaint. The cheques were presented in the Bank, but OP dishonoured cheques on the ground of insufficient fund, whereas complainant had Rs.17,45,925.17 in his account and OP was under an obligation to clear cheques to the extent of funds in the account and committed deficiency in dishonouring all the cheques. Alleging deficiency on the part of OP, complainant filed complaint before State Commission. Learned State Commission passed brief order which runs as under

“3. In our opinion also if on a particular date several cheques are presented, and the balance is less than the total amount of cheques, the Bank cannot choose to honour or dishonor one or the other cheque. Therefore, it appears that the Bank was justified in dishonoring the cheques in question.

In the circumstances we find no merit in this complaint, which is accordingly dismissed”.

against which, this revision petition has been filed.

3. Heard learned Counsel for the appellant and perused record.

4. It is not disputed that complainant issued cheques aggregating to Rs.20,04,994/- which were presented to OP on 7.4.2012 and on that day, balance in Complainant’s Account was Rs.17,47,925.70. As per OP’s letter dated 12.2.2013, the actual available balance with the Bank was only Rs.16,93,513.70. Admittedly, Bank could not have cleared all the cheques and it was not within the domain of the Bank to choose to honour some of the cheques and dishonor some of the cheques and in such circumstances, Bank’s action was right in dishonouring all the cheques and learned State Commission has not committed any error in dismissing complaint at initial stage.

5. Consequently, appeal filed by the appellant is dismissed at admission stage with no order as to costs.

………………Sd/-……………

……………Sd/-………………

( DR. B.C. GUPTA) MEMBER

k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2907 OF 2011 (Against the order dated 26.04.2011 in Appeal No.388/2005 of the State Commission, U.P.)

Meerut Development Authority Through its Secretary Meerut, (U.P.)

...... Petitioner

Versus

Smt.Rashmi Gahlot W/o U.K.Gahlot R/o Nirman Khand-II, Lok Nirman Vibhag McRoberts Ganj Kanpur (U.P.)

…... Respondent

BEFORE:

For the Petitioner : Mr. Anjani Kumar Singh, Advocate

For the Respondent : In person

Pronounced on : 21st May, 2014 ORDER

REKHA GUPTA

Revision Petition No. 2907 of 2011 has been filed by the petitioner/opposite party against the order dated 26.04.2011, passed by Uttar Pradesh State Consumer DisputesRedressal Commission, Lucknow (short, “State Commission”) in First Appeal No.388 of 2005.

2. The facts of the present case as per complaint are that petitioner/opposite party had announced for a Residential Scheme of Satabdi Nagar at Meerut and accordingly, in the year 1989 they had invited applications for registration of plots as well of houses in the Residential Scheme of Satabdi Nagar.

3. The respondent/complainant had applied for registration under Satabdi Nagar Residential Scheme on 8.12.1989 and had deposited the requisite amount of Rs.15,000/- videchallan No.0532.

4. The respondent was allotted the registration No.00079286.

5. The respondent was informed that now the allotment of plots shall be done by lottery. 6. The petitioner demanded an amount of Rs.30,000/- from the respondent vide their letter dated 20.2.1991 and in the same letter, it had also mentioned that the estimated cost of the allotted property would be Rs.1,44,000/- approximately and the reservation fee was Rs.30,000/- and the balance amount of Rs.99,000/- was to be paid in 8 equal installments each of Rs.12,375/- and the date of payment of installments were also mentioned in the said letter.

7. The respondent on receipt of the letter dated 20.2.1991 of the petitioner had deposited an amount of Rs.30,000/- on 30.4.1991.

8. In compliance of the letter dated 20.2.1991, the respondent has deposited the installment amount of Rs.12,375/- is five installments each totaling to Rs.61,875/- on different dates.

9. The petitioner vide their letter no.3139 dated 19.6.1992 then informed the respondent that the draw of lottery had taken place on 24.4.1992 and the respondent had been allotted a plot of land measuring 300 square yard, in type – B, Sector-05 bearing No.C-301 of the Satabdi Nagar Residential Scheme, Phase-02 and at the time of allotment of the estimated cost of the aforesaid plot of land was Rs.1,44,000/-.

10. The petitioner issued a notice to the respondent vide letter No.4531 dated 7.7.1993 and had informed the respondent that the final cost of the allotted plot of land is fixed as Rs.1,80,000/- and after adjusting the deposit amount of Rs.1,06,875/- the remaining amount to be paid is Rs.73,125/- and they could deposit the balance amount in six monthly installments with interest @ 16% p.a.

11. On receipt of the above said letter of the petitioner, the respondent in compliance of the same deposited the entire amount of Rs.2,01,117.50 within the stipulated time.

12. After depositing the entire amount, the respondent waited patiently for a fairly long time and made written requests time and again to the petitioner to give her possession of the land. But, the petitioner neither replied to any of the letters of the respondent nor gave the peaceful vacant possession of the plot of land bearing No.C- 301 of Satabdi Nagar to the respondent.

13. The respondent had written a letter to the petitioner on 17.12.1996 and informed the petitioner that the plot of land bearing No.C-301 was not in a developed area and therefore, the respondent should be given a plot of the same size in lieu of allotted earlier plot under the Ganga Nagar Scheme. 14. The petitioner vide its letter dated 1.1.1997 in response to letter dated 17.12.1996 of the respondent had informed the allottee that if she desired then the plot allotted underSatabdi Nagar Residential Scheme can be transferred to the Ganga Nagar Residential Scheme, Meerut but for this the allottee had to deposit the conversion charges along with the cost of the land.

15. The respondent vide her letter dated 7.1.1997, in response to the above said letter of the petitioner informed the respondent that she was desirous for conversion only because the plot of land allotted to her in Satabdi Nagar was not in a developed area and that the said plot No.C-301 was allotted to the respondent on 26.4.1992 and she should be given another plot in any other scheme on the same rate as was prevalent on 26.4.1992 and possession should be given to her.

16. The petitioner till date has not given the possession of the allotted plot No.C-301 of Satabdi Nagar Scheme, Meerut or any other plot from from any other scheme.

17. The factum of the fact is that with regard to the plot allotted to the respondent bearing No.C-301, there is no development even till today and it has come to the knowledge of the respondent that till today some farmers are doing farming on the aforesaid plot.

18. The respondent had deposited the last installment on 13.1.1996 with the petitioner. But from 1996 till today the petitioner had not been given the possession of the plot of land in question or any other plot in lieu of that and this is clearly deficiency of service on the part of the petitioner.

19. The petitioner had not given the possession of plot No.C-301 of Satabadi Nagar Residential Scheme to the respondent in time. Since, last number of years had the respondent got the house constructed on the plot No.301 of the Satabdi Nagar Residential Scheme, Meerut then her house would have been constructed at cost less than of Rs.3 lakhs than what it would cost her today. The respondent had to incur additional expenses in getting her house constructed and it is only due to deficiency of service on account of the petitioner.

20. The petitioner has earned a huge amount of profit out of the amount as deposited by the respondent with the petitioner.

21. Since, the petitioner had not given the possession of the plot of land bearing No.C-301 of the Satabadi Nagar Residential Scheme to the respondent therefore, they were liable to pay the interest on the amount deposited with the petitioner from the date, it was deposited till today and the detail of deposits made from time to time.

22. The respondent had prayed for the following relief ;

 That the respondent/complainant be given the peaceful possession of the completely developed plot No.C-301, Sector-5, under the Sataabdi Nagar Residential Scheme from the petitioner and in case the petitioner is not in a position to give the possession then the respondent is to be given the possession then the respondent is to be given the possession of other plot of land as per her choice at the rate of prevailing in 1989 by the petitioner.  The respondent be given the interest @ 18% on the amount deposited with the petitioner from the date of amount is deposited till the date payment is made.  The petitioner asked to pay an amount of Rs.2 lakhs to the respondent towards compensation for mental and physical harassment.  The petitioner be directed to pay an amount of Rs.15,000/- towards the cost of the petition to the respondent.

23. The petitioner/opposite party in their written statement before the District Consumer Protection Forum, Meerut (short, ‘District Forum’) accepted all the averments made in para1 to 12 of the complaint. With regard to the averments made in para 13 of the complaint, the petitioner had stated as follows;

“ 13. That the averments of clause 13 of the complaint are not acceptable. The opposite party can go for conversion of the house/plot of land only as per the rules and for conversion, the conversion fee is to be paid and the prevailing rate is to be charged. In pursuance of the said rules letter No.301-1 dated 21.7.2003 was issued to the complainant and the complainant was requested to give her consent on two issues and it was suggested to the complainant to give their consent at lease for one point latest by 20.8.2003 in the office of the authority. But the complainant has not forwarded their written consent as requested to them vide letter No.30-1 dated 21.7.2003 and have unnecessarily filed the present suit. Therefore, the contents of the statement of complainant are acceptable”.

It further stated that ;

“That the authority have informed the complainant vide their letter No.301-1 dated 21.7.2003 that the development work at the plot of land as allotted to her is yet to be completed and therefore, you can be given any other plots of any other scheme on the same term-n-condition or else you can withdraw your deposited amount with the maximum amount of interest. It was further requested to them to give their expressed written consent on either of the above said issues on or before 20.8.2003 but no written consent was given by the complainant.

That no pay any interest to the complainant is not justified.”

24. District Forum vide their order dated 5.2.2005, allowed the complaint and also after hearing counsel came to the conclusion that ;

“In the aforesaid circumstances, in the opinion of District Forum, it is proved that there is deficiency of service on the part of the defendant. Complainant’s this statement is also acceptable that since year 1989, during a period of 14-15 years there is huge rise in the pricing of urban residential property and cost of building materials as well as labour charges and due to all this it is clearly evident that the complainant will suffer heavy financial loss. In view of above stated facts and available evidence, in the opinion of District Forum it is proved that there is deficiency of service on the part of the defendant and the complainant is eligible for getting his payments, made by him to the defendant, back along with interest. Accordingly, complainant’s claim is liable to be admitted.

The District Forum then gave the following order ;

Hereby complainant’s claim is admitted and the defendant is directed to pay to the complainant her deposits along with 15% interest rate from the date of their deposits to the date of payment within one month. The defendant is also directed to pay to the complainant Rs.10,000/- towards fine and Rs.5,000/- towards litigation expenses. If this order is not complied in case of its being final then proceedings u/s 25/27 of Consumer Protection Act, 1986 will be conducted against the defendant.”

25. Aggrieved by the order of the District Forum, petitioner filed an appeal before the State Commission. State Commission, vide their order dated 26.4.2011, dismissed the appeal and held that ;

“ Besides the above the learned counsel for the respondent Shri Anil Kumar Mishra while opposing the arguments/statements of appellant and stating the District Forum’s decision/order in question as just and legal in support of his statements cited the judgments pronounced by Hon’ble Supreme Court in “Haryana Urban Development Authority & Ors. Vs.S.P.Gupta, (2004) (2) CPR 72 (SC), Civil Appeal No.5819 of 2002 dated 28.7.2004 and by National Consumer DisputesRedressal Commission, New Delhi in (1) Haryana Urban Development Authority Vs. Poonam Rehlen, 2004 CPC 11, Review Petition No.323/2003 dated 24.4.2003 ; (2) Malkit Singh Vs.Estate Officer, HUDA & Ors., 2003 (2) CPC 296, Review Petition No.1087/1998 dated 15.3.2002 ; (3) Smt. Veena Khanna Vs. M/s Ansal Properties and Industries Ltd. & Ors., First Appeal No.155/2006 dated 9.7.2007 and (4) Jagdish Ram Gupta Vs. Ghaziabad Development Authority through its Secretary, 2002(3) AWC 4.165 (NC), Review Petition No.1097/2001 dated 10.1.2002”. In all the above mentioned citations the Hon’ble Courts expressed that after allotment of plot/flat if there is incomplete development work or for any other reason possession is delayed or in case of allotment of alternate plot/flat charging of additional money or charging conversion charges at the prevalent price of alternate plot/flat by the Development Authority is improper and the complainant is eligible for getting refund his entire deposits along with an interest @ 15% - 18% per annum.

Therefore, in view of facts and circumstances of present matter, also in the light of above mentioned judgments passed by Hon’ble Supreme Court andHon’ble National Commission, we have the clear opinion that the District Forum’s decision/order in question being lawful, completely just and details does not require any interference and the present appeal being fact less and meritless is liable to be dismissed.

Appeal is dismissed. District Forum, Meerut’s decision/order dated 28.7.1998 passed in Suit No.234/1998 is confirmed.

Both the parties bear their respective expenses regarding the present appeal by themselves.

Both the parties be provided the certified copy of this order as per rules.”

 Because the State Commission has failed to appreciate the fact that petitioner was ready to make the allotment of another plot by way of the letter dated 21.7.2003 whereby the respondent was called upon to give her consent for alternative plot on old rates and secondly refund of the deposited amount coupled with interest at the prevailing rate, but the respondent failed to give her consent on either counts.  Because the fora below have failed to appreciate that in the year 2003 the interest rate of banks was between 6 to 7% and from no approach of the law and practice it can be held that interest rate would be 15%. It is submitted that the Hon’ble Supreme Court in the case of Meerut Development Authority VS.N.K.Mehta in Civil Appeal No.4637 of 2009 reduced the interest awarded from 18% to 10% per annum.  Because the petitioner is liable to make the refund of the deposited amount along with interest @ 10% from 21.7.2003 and not beforehand as the respondent has opted not to give any reply to that letter.  Because the State Commission should not be oblivious of the fact that the petitioner is not a profit making entrepreneur, it is a public undertaking and dedicated to the public service. Therefore, on the project being unsuccessful, the petitioner could be charged the interest at the prevailing rate of interest on saving account and not on the basis of lending rate of interest.

28. We have heard the learned counsels for the petitioner as well as the respondent and have gone through the record.

29. As per the revision petition during the pendency of the proceedings before the District Forum, the petitioner had issued a letter dated 21.7.2003 calling upon the respondent for compromise and two options were offered firstly, the respondent shall be allotted plot in any other scheme on the same terms and conditions if she consents, and secondly, she would withdraws the deposited amount coupled with the maximum amount of interest. However, respondent did not reply to the letter. Counsel for petitioner stated that they are willing to refund the amount as per order of the District Forum which was upheld by the State Commission. The only dispute is regarding the “rate of interest”. The District Forum has awarded interest @ 15% p.a. whereas before the State Commission, it was of the view that the respondent is eligible for getting refund of her entire deposits with interest @ 15% - 18% p.a. and dismissed the appeal of the petitioner.

30. Since, the respondent did not appeal against the order of the District Forum before the State Commission, her demand for plot cannot be entertained at this stage and the District Forum/State Commission order qua the respondent as their issue is final. 31. We would like to draw attention to para 9 of the complaint that the petitioner had issued a notice to the respondent vide letter dated 7.7.1993 and had informed the respondent that the final cost of the allotted plot of land is fixed as Rs.1,80,000/- and after adjusting the deposit amount of Rs.1,06,875/-, the remaining amount to be paid is Rs.73,125/-. She was asked to do deposit the balance amount in six monthly installments with interest @ 16% p.a. This statement of the respondent has been accepted by the petitioner. Further, in para 24 to their reply they had committed to refund the amount deposited with the maximum amount of interest.

32. The counsel for the petitioner placed on record a citation wherein the interest was reduced from 18% to 10% p.a in the case of “Meerut Development Authority Vs.N.K.Mehta in Civil Appeal No.4637 of 2009”. On the other hand, in the order of the State Commission while upholding the order of the District Forum which awarded the interest @ 15%, the State Commission has given various citations where the interest awarded was between 13% to 18% p.a. the rate would be depend upon the facts of the case.

33. In the instant case, as mentioned above, the petitioner had asked the respondent to deposit the balance amount with interest @ 16%. Hence, the order of the District Forum awarding the interest @ 15% does not seem excessive. Especially as though the petitioner had booked a plot in 1989, and deposited the last installment on 13.1.1996, yet, she was not been given possession of the plot allotted to her in April, 1992 nor had they refunded the money. It is only in 2003 that an alternative plot was offered and that too after a demand for payment of conversion charges and at the rate prevailing in 2003.

35. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, both the fora below have given detailed and reasoned orders which do not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).

36. Petitioner is directed to pay the cost of Rs.5,000/- (Rupees Five Thousand only) by way of demand draft in the name of the respondent and remaining cost of Rs.5,000/- (Rupees Five Thousand only) to 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, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization. 37. List on 18.7.2014 for compliance.

…………………..………J (V.B. GUPTA)

PRESIDING MEMBER

…………………...………. (REKHA GUPTA)

MEMBER

Sonia/

NATIONAL CONSUMER DISPUTES REDRESSALCOMMISSION NEW DELHI

(Against order dated 10.05.2013 in First Appeal No. 1599 OF 2011 of the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal)

Akhilesh Jain, Son of Sagarmal Ji, R/o 7B, Suraj Nagar Colony, Ujjain, Madhya Pradesh …Petitioner Versus

1. Nobel Hearing & Speech Therapy Clinic 8, South Tukoganj, 201-A, Ronak Plaza, In front of Nath Temple, Indore

2. Dr. Jagdish Jain, Clinic cum Residence, 13-B/4, Ratlam Kothi Kanchan Bagh Road Bank of India, Near Geeta Bhavan Square, Indore

…Respondents

BEFORE:

For the Petitioner : Mr. Anurag Gohil, Advocate Ms. Ruchika Gohil, Advocate

For the Respondents : Mr. Mohit Singh, Advocate

1. The present Revision Petition has been filed under Section 21 (b) of the Consumer Protection Act, 1986 against the impugned order dated 10.05.2013 passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’) in First Appeal No. 1599 of 2011, wherein the State Commission has erroneously appreciated the facts and grounds, and upheld the order of the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’). The District Forum dismissed the complaint no. CC/587/2011 on 21.10.2011. 2. Facts in brief: On 05.05.2009, the Petitioner Akhilesh Jain took his son, about 7 months age to ENT Specialist, Dr. Jagdish Jain, (OP-2). The OP-2 referred him to Nobel Hearing & Speech Therapy Clinic, the OP-1. The Brainstem Evoked Response Audiometry (BERA) test was conducted, and the report showed that the left ear was normal, whereas the right ear had minor hearing defect. The OP-2 assured the complainant that, the child would start hearing and talking very soon and there was nothing to worry about. However, as the child did not show any improvement, he consulted Dr. Satya Prakash Dubey at Bhopal who advised a CT Scan and another BERA Test. The BERA report showed that the child had profound sensory neural hearing loss in his left ear. Hence, the complainant/ Petitioner filed a complaint before the District Forum alleging that OP-1 and OP-2 are negligent in diagnosis, issued wrong report by which his child was deprived of specific treatment. 3. The District Forum dismissed the Complaint summarily on the basis of the report of the medical expert committee. The State Commission also confirmed the order of District Forum. 4. Aggrieved by the order of State Commission, the Complainant is before this Commission, through the present revision. 5. We have heard the Counsel for the parties. The counsel for the complainant vehemently argued about the different opinions in two BERA reports and made his best efforts to establish negligence of OPs. The counsel for OPs submitted that, on 05.05.2009, the 1st BERA test was conducted, thereafter, after lapse of two years, the complainant sought second opinion from Dr. Dubey at Bhopal, as per his advice the complainant got done the HRCT of Temporal Bone, on 03.05.2011; and BERA Test on 05.05.2011. 6. The counsel brought our attention to the prescription of Dr. Jagdish Jain, who asked the complainant to bring the child again for a follow up after 6 months and to get a Bone Conduction ABR to assess the cochlear function and ascertain the type of hearing loss. The complainant did not come for follow up and did not get done the tests after the lapse of two years. 7. We have perused all the reports dated 5.5.2009, 3.5.2011,5.5.2011 and the opinion of Medical Board of ENT Department, MGM Medical College and MY Hospital, Indore. The BERA test performed on 5.5.2009, shows that Left ear has hearing sensitivity within normal Limits, while the report dated 3.5.2011 shows clearly show that, the left ear has Profound Senorineural Hearing Loss and the HRCT report diagnosed as “Malformed external ear with aberrant middle ear cavity as described”. 8. It is important to note relevant paragraphs of medical board report which are reproduced as;  Complainant has not conducted Bone Conduction ABR and has also not done follow up after 6 month as suggested by Dr. Jagdish Jain, Mr. Salaj Bhatnagar who conducted the test is an Audiologist technician and not the Doctor.

 Children with left ear having inner ear normal as shown in Imaging, and with the time weak nerve of ear can also be developed with the time.

9. The counsel for OP relied upon few Judgments of Hon’ble Supreme Court and this Commission, namely: a) Mrs. Rubi (Chandra) Dutta vs. United India Insurance Co. Ltd., 2011 (3) Scale 654 b) ICICI Prudential Life Insurance Company Ltd. vs. Bimal Kanta Kharab, (2012) NC840. c) Vijay Kumar Jain vs. Union of India (2012) NC 261. d) Jacob Mathews vs. State of Punjab (2005) 6 SCC 1. e) Bolam vs. Frien Hospital Management Committee (1957) 2 {All ER 118}. f) Kusum Sharma vs. Batra Hospital, (2010) 3 SCC 480.

The above judgments are not similar to the facts of this case.

10. Therefore, we do not find any negligence caused by the OPs and there is no error in any of the reports. The complainant did not follow up the advice of OP-2. He had slept for 2 years, without any proper follow-up and check up of his child, for which we cannot hold the OP s liable.

11. On the basis of foregoing discussion, we do not find any merit in this revision, hence, endorse the view taken by both the fora below, without any interference and dismiss this revision petition. No order for the costs.

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

REVISION PETITION NO. 2481-2482 OF 2013 (From the order dated 06.02.2013 in First Appeal No. 24/12 & 25/12 of State Consumer Disputes Redressal Commission, Kerala, Thiruvananthapuram)

The United India Insurance Co. Ltd. Regd. & Head Office at 24, Whites Road, Chennai Through its Regional Office No. 1, 8th Floor, Kanchanjunga Building, 18, Barakhamba Road, New Delhi-110001

…Petitioner

Versus

1. Sheela W/o Late Mr. Kally Pilly Sasidharan, Vellani kara, Thrissur, Kerala

2. Sreejith S/o Late Mr. Kally Pilly Sasidharan Vellani Kara, Thrissur, Kerala

3. Ishwar Kallepilly (Minor) S/o Late Mr. Kalla Pilly Sasidharan Vellani Kara, Thrissur, Kerala

4. Anju K. Sasi (Minor) D/o Late Mr. Kalla Pilly Sasidharan Vellani Kara, Thrissur, Kerala (Respondent No. 3 & 4 through Smt. Sheela, Respondent-1 Being Mother and National Guardian) …Respondents

BEFORE:

For the Petitioner : Mr. V. S. Chopra, Advocate

For the Respondents : Mr. Raji Joseph, Advocate Mr. B. S. Sharma, Advocate

PER DR. S.M. KANTIKAR, MEMBER 1. The Petitioner has filed the present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 being aggrieved by the order dated 06.02.2013, passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’), whereby the State Commission allowed the First Appeal No. 24/12 & 25/12 which was filed against the order of the District Consumer Disputes Redressal Forum (in short, ‘District Forum’). 2. The complainant, Smt Sheela, the wife of deceased Kalleppilly Sasidharan along with her two sons and a daughter, filed a complaint before the District Forum alleging deficiency in service by the United India Insurance Company, Thrissur, the OP/Petitioner, who had repudiated the death claim under the Personal Accident Policy. The claim was repudiated contending that the deceased committed suicide, it was not accidental and that he was under influence of alcohol i.e. intoxicated, at the time of his death, on 17.01.2014. 3. The District Forum dismissed the complaint, but the State Commission allowed the appeal and directed the OPs to pay Rs.5,00,000/- being the policy claim, Rs. 2,500/- under clause-1(g) of the policy, Rs. 10,000/- under clause-(h) (b) of policy by 3rd and 4th Opposite Parties and Rs. 25,000/- as compensation and all the benefits under the policy. 4. Aggrieved by the order of State Commission, the petitioner preferred this Revision Petition. 5. We have heard counsel for the both the parties. The counsel for the complainants vehemently argued that, it was an accidental death, the deceased has not consumed alcohol. The Counsel for the OP centered his argument on the Chemical analysis repot from Chemical Examiners’ Laboratory, Ernakulum(Annexure P-11).He further submitted that, as per MV Act, Blood alcohol Concentration(BAC) more than 30 mg/100 ml of blood is intoxication. The BAC of deceased was very high, at 220 mg/100 ml of blood; hence, he was severely intoxicated. The counsel for OP prayed for opinion from AIIMS, if necessary. Hence, the repudiation was correct and prayed to set aside the order of state commission.

6. We have perused the evidence on record, the Chemical analysis report, Post Mortem report, Personal Accident Policy conditions and the investigation report issued by Mr. George Thattil (Insurance Investigator). The main crux in this case is, “whether, the cause of death is due to Drowning or by Alcohol Intoxication?.” The post mortem report (Annexure 8) clearly mentions that the final opinion as “ Post mortem findings were consistent with death due to drowning” It is also surprising to

note that, under the heading of other laboratory findings it was written as “The sample of blood and viscera contained 220 mg/ml of ethyl alcohol.” Further, we have noted several fatal errors in the Post mortem reports, like, name and age of deceased was mentioned as “Sasi, 44 years” instead of “Shashidharan, 42 years”. Also, same mistakes carried further, while sampling of all the specimens during postmortem. The final Post Mortem Certificate issued by Dr.Pleasnt Sunny, has also erroneously mentioned about the concentration of alcohol as “220 mg per ml”, instead of “220mg per 100 ml of blood”. Thus, it is very pertinent to note that the Head of Forensic Department, in this regard, issued two letters of corrections to the Sub Divisional Magistrate, Thrissur.

7. We have given thoughtful consideration after referring to the medical texts and literature on Alcohol Intoxication. Our views are that,

 the Ethyl alcohol was qualitatively detected in liver/kidney and blood samples, but it is not clear what the report is with regard to the stomach and intestine. The result appears to have been struck out with a pen.

 In fact, the autopsy is inconclusive about the cause of death because of absence of any significant/specific lesion on gross inspection, either internally or externally, except for "foul smell" in the stomach contents. Incidentally, alcohol does not produce "foul smell".

 The report did not specify about the exact methodology employed by the chemical examiner's lab in arriving at the concentration of 220 mg% of ethyl alcohol in the blood. It is essential to do so, the work sheets pertaining to the analysis have not produced.

 Therefore, even if the concentration is 220 mg% it cannot, on its own, be implicated as the cause of death. Pure ethyl alcohol ingestion is rarely associated with fatality, unless something else has been taken along with it to aggravate its effects or to produce added toxicity.

 As 4 months appear to have elapsed between collection of samples and toxicological analysis, the reliability of ethyl alcohol concentration can be questioned, as over a period of time alcohol can either get evaporated from samples or generated in samples (due to decomposition if preservation was not effective). If there is any sample of blood left over from the case, it is advisable to re-test it in a second laboratory (preferably an accredited lab).

 Dr. P.C.Ignatus who performed the PM does not appear to have taken samples of tissues of vital organs (heart, lungs, brain, etc) for histo- pathological examination to rule out illness that could have caused or contributed to death. 8. Further, we put reliance upon , a judgment of this Commission in, Life Insurance Corporation of India Vs. Smt. Ranjit Kaur 2011, (30) CPR 266 (NC) that mere presence of alcohol, even usually prescribed limits, is not a conclusive proof of intoxication. Further, in this case, there is also no evidence that there is nexus between the death caused by drowning and consumption of liquor. In the light of the principles laid down in the above decision, we are of the view that it is not proved that the deceased was under the influence of liquor at the time of the accident. Even the investigation report issued by Mr. George Thattil (Insurance Investigator) does not support the Petitioner/OP. 9. Hence, in entirety of our discussion, there is nothing suggestive of alcohol-related death, in the post mortem report. We have certain apprehension in allowing this revision petition, because it pertains to issue relating to non-payment of claim on account of alcohol being detected in substantial concentration in the blood. One need to be absolutely convinced about the reliability of the chemical examiner's analysis. It is unfortunate and it also appears that a responsible Forensic Medicine and Chemical Analysis department had made a causal approach to the PM investigations. The PM certificate is, with a lot of errors which raise many doubts. In such a situation, we are of considered view that the complainant should get benefits. Accordingly, we agree with the impugned order of State Commission, and dismiss this revision petition. No orders as to costs.

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

(S. M. KANTIKAR) MEMBER Mss/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1868 OF 2013 (Against order dated 05.02.2013 in First Appeal No. 378/2011 of the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur)

1. Regional (Zonal) Manager Sahara India, Sahara Chambers Tonk Road, Jaipur, Rajasthan

2. Branch Manager Sahara India, Near Bus Stand Bandar Road, Bhawani Mandi Rajasthan …Petitioners

Versus

Sudama Prasad Chaturvedi S/o Late Shri Gopal Lalji Chaturvedi In front of Sanskrit Pathshala, Station Road, Bhawani Mandi (Raj.)

…Respondent

BEFORE: HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER For the Petitioners : Ms. Amrita Narayan, Advocate

For the Respondent : Ms. Babita Verma, Advocate

PRONOUNCED ON 21st MAY, 2014 ORDER

PER DR. S.M. KANTIKAR, MEMBER 1. The present Revision Petition has been filed by the Petitioner under Section 21(b) of the Consumer protection Act, 1986 against the Impugned Order passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’), Jaipur, Rajasthan in First Appeal No. 378/2011 whereby the State Commission dismissed the Appeal. The Appeal was filed by the Respondent against the Order passed by the District Consumer Disputes Redressal Forum (in short, ‘District Forum’) in Consumer Complaint No. 5/06. The District Forum partly allowed the Complaint. 2. The Complainant, Sudama Chaturvedi, was a member of the Sahara Silver Year Benefit Scheme, by investing a sum of Rs.27,000/-, with the OPs. The Sahara Swaran and Rajat Yojna Scheme were launched by Sahara India Commercial Corporation Limited (the petitioners/OP), which provided various benefits to the subscribers. The company had taken a Group Insurance Policy for the benefit of its subscribers which could be availed by the subscribers at their discretion. The complainant suffered acute chest pain on 29.1.2005, took treatment at Siddhartha Hospital at Bhavani Mandi, and on 2.2.2005, at S.M.S. Hospital, Jaipur, thereafter, on 26.2.2005, Coronary Artery Bypass Surgery (CABG) was performed for him at Escorts Heart Institute at New Delhi. The complainant submitted a reimbursement claim for Rs.2,12,482/- towards critical illness cover from the OP, along with the bills of the expenses incurred. The OP denied the claim; hence the complainant filed a complaint before the District Forum. 3. The District Forum dismissed the complaint observing that, the Complainant was not a consumer, as the service was provided free of cost to the Complainant and secondly, that the critical illness cover was provided only for a period of one year and there is nothing on record to show that the same was valid for a period of 10 years. 4. Aggrieved by order of District Forum, the complainant approached the State Commission, Jaipur, Rajasthan, which, on 04.11.2008, remanded back the matter to the District forum, Jhalawar with certain directions. 5. The District Forum partly allowed the complaint and directed the OPs to pay the amount of Rs.2,12,482/- , with Rs.500/- as litigation charges to the Complainant, within a period of one month. 6. Aggrieved by the said order of District Forum, the Petitioner preferred the first appeal No. 378 of 2011 before the State Commission, which was dismissed. Against the order of the State Commission, this Revision Petition has arisen. 7. We have heard the counsel for the parties. The counsel for the petitioner/OP vehemently argued that OPs have not committed any deficiency in the service by rejecting the claim of the complainant, as the same has rightly been rejected as per the rules. The claim was time barred. The State Commission placed reliance on a pamphlet (leaflet) which admittedly was not even issued by the Petitioner. The Counsel for the OP-3 submitted that he has not issued the insurance policy to the complainant; hence OP-3 is not liable for the insurance claim. 8. We have perused the terms and conditions of the scheme, accordingly, the treatment expenses from Rs.1,00,000/- to Rs.10,00,000/- in case of critical illness was payable to the subscribers. As per the insurance company, the risk was covered for only one year, the petitioner/OPs did not renew it thereafter. Thus, there was no mistake on part of the complainant; it was the responsibility of the OP Company to renew the policy. The Counsel for the complainant brought our attention towards the advertisement published on 18.05.2010, in which it has been mentioned that, “A golden opportunity is being granted for getting better benefits with guarantee for the next 10 years upon investment of the deposited amount of the privileged subscribers in our housing scheme through Silver year Benefit Scheme with the purpose to give maximum benefits by the establishment in view of the interest at large of the privileged subscribers so that our privileged subscribers may obtain the following dividends for next 10 years for investment through booking under our popular Sahara Swaran/Sahara Rajat Scheme”. 9. The counsel for the Petitioner has placed reliance upon two judgments of the Supreme Court which are as follows: a) Polymat India P. ltd. & Anr. Vs. National Insurance Co. Ltd. & Ors. (2005) 9 SCC 174. b) Suraj Mal Ram niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd. & Anr. (2010) 10 SCC 567.

We are not convinced with the arguments of the Counsel for the petitioner. The facts in the cases referred supra are not similar to the facts of the case in hand. The Revision Petition is meritless, hence dismissed, with costs of Rs.10,000/- which is to be paid to the complainant, within 90 days from the date of receipt of the order. Otherwise, it will carry interest @ 9% pa, till its realization. (J. M. MALIK, J.) PRESIDING MEMBER (S. M. KANTIKAR) MEMBER Mss/3 NATIONAL CONSUMER DISPUTES REDRESSALCOMMISSION NEW DELHI

REVISION PETITION NO. 2597 OF 2013 (Against order dated 29.03.2013 in First Appeal No. 117 of 2013 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula)

Mrs. Kamla Devi Sagu W/o Sh. Mahinder Singh R/o Village and Post Office Satrod Kalan, Tehsil and District Hisar, Haryana …Petitioner

Versus

1. Metlife India Insurance Co. Ltd., Bridgage Seshamahal, 5, Vani Vilas Road, Basavanagudi, Bangalore-560 004 Through its Managing Director

2. Networth Wealth Solutions Ltd., 2nd Floor, D. C. Silk Mills Compound, Kondivita Road, Andheri (E) Mumbai-409059 Through its Managing Director

3. Networth Wealth Solutions Ltd., 120-121, 1st Floor, Commercial Complex, Opposite Sindhu Complex, Sector-15-A Hisar, Haryana …Respondents

BEFORE:

For the Petitioner : Dr. Sudhir Bisla, Advocate

For the Respondent No. 1 : Mr. Sachin Sharma, Advocate

For the Respondent No. 2 & 3 : Nemo

PER DR. S.M. KANTIKAR, MEMBER 1. The present Revision Petition has been filed under Section 21 (b) of the Consumer Protection Act, 1986 against the impugned order dated 29.03.2013 passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’) in First Appeal No. 117/2013, wherein the State Commission allowed the appeal and set aside the impugned order of the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’). 2. The brief facts are, that the Petitioner/Complainant Kamala Devi and her husband Mahinder Singh have obtained a Life Insurance Policy, No.20252649 of Metlife India Insurance Co. Ltd.(OP-1), through it’s authorized representative Networth Wealth Solutions Ltd., i.e. OP-2 and 3. The OP-2 is head office at Mumbai, and the OP-3 is the branch office at Hissar .The first premium receipt No.416650840 for Rs.89,000/- was issued by OP-3. Thereafter, the payment of second premium of Rs.89,000/- was made by complainant, to one Sarita, who was the agent of the OP-3. She issued the receipt for the same, but did not deposit the said premium amount of Rs.89,000/- with the OPs, hence the policy lapsed after the grace period of 30 days. The complainant filed a complaint for deficiency in service on the part of the OPs and sought the direction to keep the policy in force and to refrain from closing the same. 3. The District Forum allowed the complaint. Against it, the OP-2 filed a first appeal. The State Commission condoned the delay of 118 days in filing the appeal and accepted the first appeal by setting aside the order of District Forum. 4. Against this impugned order of the State Commission, the complainant filed this revision. 5. We have heard the counsel for the both the parties, perused the relevant documents like premium receipt, the terms and conditions of the policy and the letters of correspondence. The Counsel for the complainant brought our attention towards the letter which was issued with the signature of Sarita. It bears the name Networth Wealth Solutions Ltd., and Seal of OP-3 also. It clearly shows that, Rs.89,000/- has been received by Sarita towards renewal premium of policy No.20252649 in the name of MahenderSingh. The counsel for the complainant did not press for refund, but prayed for renewal/ revival of the said policy. 6. The rival arguments by the counsel for OP is that, the OP-1 has not received any amount. Also, argued that, as per Clause 3.1, all the amounts towards the premium payment were to be made at Corporate Office, Registered Office, Regional Office or any other office. Therefore, the Complainant has violated the terms and conditions of the Insurance Policy by giving the premium amount in cash, to one Sarita, agent of the OPs and therefore, is not entitled for any claim. He relied upon several decisions of Hon’ble Supreme Court in case cited as United India Insurance Company Ltd. vs. M/s Harchand rai Chandan lal IV(2004) CPJ 15, held as under : “…. Held, the terms of the policy shall govern the contract between the parties and they have to abide by the definition given therein, and all those expressions appearing in the policy have to be construed as it is and something cannot be assed, subtracted or substituted….”

Similar view has been taken by the Hon’ble Apex Court in case cited as Suraj Mal Ram Niwas Oil Mills (P) Ltd. vs. United India Insurance Company & Anr. IV (2010) CPJ 38 (SC). 7. It is well settled principle of law that an agent has no authority to accept the premium on behalf of Life Insurance Company. For this, we also place reliance upon the decision of this Commission in Life Insurance Corp. of India vs. Girdharilal P. Kesarwani & Anr. 1(2009) CPJ 228 (NC). 8. We also place reliance upon the decision of Hon’ble Apex Court in Harshad J. Shah & Anr. vs. LIC of India & Ors., III(1997) CLT 360 (SC)=AIR 1997 SC 2429, wherein the Hon’ble Supreme Court has held that an agent has no authority to accept the premium on behalf of LIC. 9. But, the facts and circumstances in this case are different from the facts of cases, discussed supra. It is very important to note that the investigation report submitted by OP-1, in which the OP-1 clearly admitted that the OP2 and 3 were their agents, but the Hisar branch of Networth was closed and the concerned person of Networth, who looks after this channel, is absconding. Hence, in such a situation, it was the duty of Metlife (OP-1) to inform the complainant and it’s other customers that the agent Networth is closed. The OP-1 should have passed the information through a public notice or emails to all of it’s customers to avoid such cheating by their agents. It is quite surprising that after receiving first installment on 31.01.2010, the OP-3 (authorized rep. Of the OP-1) again collected the 2nd installment of the said policy and also issued a receipt against Rs.89,000/- on 28.02.2011, but thereafter, trying to avoid it’s liability by expressing that the Networth is closed. It appears that the OPs are working in cahoots with each other and playing hideand seek game with the complainant. 10. Therefore, we are of considered view that, the OP-1 is vicariously liable for the acts of their agents. Also, there was a delay of 118 days in filing the first appeal before the State Commission; the delay was condoned by the State Commission, which we do not agree. Our view dovetails neatly with the following authorities reported in the case of  Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC),  Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. [2012] 1 SCR 1045,  R.B. Ramalingam vs. R.B. Bhavneshwari I (2009) CLT 188 (SC),  Ramlal & Others vs. Rewa Coalfields Ltd., AIR 1962 SC 361  Bikram Dass Vs. Financial Commissioner & Ors., AIR, 1977 SC 1221. 11. To sum up, we are of considered view that, on account of a huge delay in filing the first appeal before the State Commission and the arguments advanced on behalf of the OPs being bereft of merit, we accept this revision , set aside the order of State Commission and restore the order of District Forum. The parties are directed to bear their own costs. (J. M. MALIK, J.) PRESIDING MEMBER

(DR. S. M. KANTIKAR) MEMBER Mss/5 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

C & M Farming Ltd., C & M House N.D. Patel Road, Nasik – 422001 .... Complainant

Versus The New India Assurance Co. Ltd. 150702, Purti Bungalow, 2nd Floor Opp. Gadre Mangal Karyalaya Gole Colony, Nasik ... Opposite parties

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

For the Complainant : Mr. K.P.S. Rao, Advocate With Ms. A. Subhashini, Advocate

For the Opposite Party : Mr. Nikunj Dayal, Advocate

PRONOUNCED ON 21ST MAY, 2014

ORDER JUSTICE J.M. MALIK 1. The main controversy in this case swirls around the question, whether, the four 2000 MT Silos and four 200 MT Commercial bin Silos (15 ring), imported from USA, installed in the company of the Complainant, C & M Farming Ltd., were damaged by explosion/ implosion/centrifugal forces, for which the complainant would get compensation from the insurance company or for their non-presence, the complainant would not get any compensation?

2. The case of the complainant is this. The complainant got the above said silos installed at his feed Mill at Sawargaon Road, Village Gowardhan,

Near Nasik. The plant, machinery and stock of the complainant were insured with the New India Assurance Co. Ltd., OP. The relevant exclusion clause of the policy, runs as follows :- “In consideration of the insured named in the schedule hereto having paid to the New India Assurance Company Limited (hereinafter called the Company), the premium mentioned in the said schedule, THE COMPANY AGREES, (subject to the conditions and exclusions contained herein of endorsed or otherwise expressed hereon) that if after payment of the premium the property insured described in the said Schedule or any part of such property be destroyed or damaged by :- 1. Fire 2. Lightning 3. Explosion/implosion but excluding – Loss of or damage a) ….. b) caused by centrifugal forces”.

3. On 05.08.1998, while three Supervisors and six Workers were working during the night shift and while the main silo containing about 150 MT of Maize was in operation, at about 10.45PM, a big noise was heard out of blue. One of the silos containing maize was seen falling down on one of the Supervisors,Mr.Bachav, who was standing a few meters away from the silo outside the feed mill. The silo hit the North- East portion of feed mill, damaging the civil works, elevator, screw conveyer, two more feeding silos of 30 MT each, weigh hoppers, a store room, electrical installation, etc. The entire quantity of red maize from the main Silo was observed to have scattered and below the same, two workers were trapped. With the help of other supervisors and workers, Mr.Bachavpulled them out and made arrangements to send them to hospital.

4. Preliminary observations indicated that there can be an air bridge developed inside the silos when the material was being drawn through the weigh hopper, which has a pneumatic opening. The silo was filled to full capacity for night shift pressure on the walls of silo. When maize was drawn, the air bridge exerted pressure on the walls of silo. This must have caused the explosion of silo.

5. The matter was reported to the police authorities and the OP. The complainant’s letter dated 06.08.98 to the OP was proved on record as Annexure –C, where the initial claim of Rs.60.00 lakhs was made. On 12.08.1998, the OP carried out an inspection. The complainant sent a letter dated

14.08.1998, which was proved on record as Annexure D. Thereafter, correspondence was exchanged. 6. Mr.R.V.Dixit, preliminarily investigated the case and came to the conclusion that there was a sudden fall of processing Silo, causing further damage to feed mill wall, roof, two small silos containing feed ingredients. The report also indicated that failure of mill processing silo had taken place of its own and it did not consider the cause of damage as ‘explosion’.

7. Again, the police recorded the Panchanama and statements of nine workers/staff members. There is no inkling in the statements of these witnesses that the said incident took place due to explosion.

8. The Expert, Dr.W.D.Patwardhan, Ex-Director of Explosive Research & Development Laboratory, visited the site on 26.08.1998, and submitted his report dated 11.12.1998. Dr. W.D. Patwardhan, visited the site on 26.08.1998 and inspected the silos and other items. He also ruled out the possibility of anyexplosion. Dr.C.M.Pandit, Consulting Engineer, also visited the site on 19.04.1999 and inspected the damaged site. As per his report dated 08.05.1999, he came to the conclusion that cause of damage of processing silo was not explosion. Their views further found support from M/s. Bhatwadekar & Co. dated 11.06.1999.

9. The complainant appointed its Consultant-cum-Loss Assessor, Mr. Bhaskar Joshi, who gave his report. The complainant company also submitted three Test Reports in respect of damaged maize, rice polish and soya D.O.C. of M/s. Italab Laboratories.

10. Ultimately, the insurance company repudiated the claim vide its letter dated 04.05.2000. The said letter runs as follows :- “In respect of above mentioned claim after making the due scrutiny of the documents produced by you in respect of your claim and after making the survey of the damage from authorized surveyors we came to the conclusion that the damage of Silo is due to unsymmetrical loading conditions caused by arching and piping only and therefore the said cause of damage is not covered under the policy and hence the loss of your Silo is not admissible and payable as per the terms and conditions of the policy.

After the report of authorized surveyor and also after the discussions and meetings with you and your representatives we came to the conclusion that the damage to your Silo not caused by the explosion/ implosion as alleged by you. In the said circumstances as your loss and reasons for the loss are outside the scope of the terms and conditions of the policy. Hence, we are unable to settle and pay your claim and hereby repudiate the same”.

11. The reports of the Surveyor, appointed by the company were challenged and this complaint was filed before this Commission, on 03.08.2000, wherein the complainant made the following claims :- “ 19. The repudiation of claim of the complainant by the respondent is absolutely illegal and arbitrary. The complainant has suffered loss and damages on account of illegal repudiation of the claim:-

i) Actual claim made Rs. 35,78,000/-

ii) Business losses suffered on account of non-functioning of the silo from 06.08.1998 to the date of filing of the present petition at the rate of Rs.45,000/- per month, for 25 months (Details in Schedule A) Rs. 10,35,000/-

iii) Incidental expenses incurred in connection with settling the claim (Details in Schedule B) Rs. 2,50,000/-

iv) Cost of the present litigation tentatively estimated Rs. 1,00,000/------TOTAL Rs. 49,63,000/-“.

12. The OP has contested this case. It is explained that the claim of the complainant was repudiated on the basis of the preliminary survey report dated 23.08.1998, the report of Dr.W.D. Patwardhan, dated 11.12.1998, the report of Dr. C.M. Pandit, Consulting Engineer, dated 08.05.1999 as also the report of M/s. Bhatwadekar & Co., dated 11.06.1999. The disputed questions are of technical nature and this Commission has got no jurisdiction.

13. The complainant did not produce any technical report establishing the cost of damage due to explosion. On 30.08.1998, the representative of Manufacturer and Supplier of Silo, Mr.Volkan Selcuk, made a joint inspection of damaged silo with the Surveyor, M/s. Bhatwadekar & Co. There is no indication that explosion was caused.

14. The OP has further contended that damage caused to the silo was not covered under the policy. All the other allegations have been denied.

15. We have heard the counsel for the parties and scrutinized the oral arguments and written synopses. Learned counsel for the OP has placed relianceon the reports of the Surveyors and Experts. It was argued that the accident took place on account of “unsymmetrical loading conditions”. Although, the final surveyor assessed the loss to the tune of Rs.19,79,394/-, yet, at the same time, concluded that loss was not covered under the said insurance Policy. The reports of Sh.R.V.Dixit, dated 28.08.1998, report of Dr. W.D.Patwardhan, dated 11.12.1998, mentioned that damages were not falling under the basic cover of fire policy. Dr. Patwardhan opined that the Silo was stated to have contained 150 Tonnes of maize, 25% of the contents were discharged. If this quality has flowed from out from one side, it would create a large cavity near the walls of silo. In such a situation, this side will crumple inward causing the entire column of contents to bend in that direction and the weight of the inclined column will completely break up the silo and destroy it. The loud noise heard when the accident occurred was produced by the buckling of the side of the silo when it started bending. He gave his considered opinion that this is what had happened and the cause of the accident is uneven loading of the silo contents due to presence of excess of moisture in an appreciable part of the contents. The damage caused to the silo is certainly not due to an explosion or implosion.

16. Then, there is a report of C.M. Pandit, dated 08.05.1999. He listed the causes of failure which are hereby reproduced as under :- “3.1 Almost certainly the failure is caused by unsymmetrical loading conditions by arching and piping. The question would be what caused this arching and piping. 3.2 I rule out any big explosion or implosion. The adjoining 2 silos are absolutely intact and unscratched. Small air-pockets due to methane gas generation may have taken place. Although this possibility also seems remote considering cool temperatures prevalent in Nashik during Monsoons. And even if such air pockets are formed, they would only enhance the formations of arching and piping leading to unsymmetrical loading conditions given under 3.3. below. Considering that August is a monsoon month, the moisture contents of maize must have varied. As per records, they did varybetween 9.7% to 12.3%. Further, these silos do not appear to be either air tight or water tight. Atmospheric humidity which in monsoon could reach 85%-90% would also affect the moisture contents of stored material affecting it’s free flowing characteristics. 3.3 Once free flowing characteristics of the stored material are affected because of various reasons mentioned above under 3.2, arching and piping would take place resulting into severe unsymmetrical loading conditions esp. during emptying. The arch-thrust would tend to ovalise the circular shape and would cause buckling at the crown. Once this has happened the tall silo structure would just topple over as there is nothing to hold it back. This is exactly what has happened as can be seen from photographs taken after the collapse. Nowhere in the debris or the photographs are there indications of the shattered pieces to be expected after an explosion or implosion. The parts show bending or bucking only. Moreover, as recorded the silo, in a single piece had hit an adjoining structure. In an explosion only flying pieces would have hit adjoining structure. [Emphasis supplied]

17. Again, the final survey report was prepared by M/s. Bhatwedkar. He also came to the conclusion that the silo was not damaged due to the explosion. He took the same view, as already taken by Dr.C.M.Pandit. It was also argued that the complainant company has filed a claim in the sum of Rs.49,63,000/- but it did not claim any interest.

18. On the other hand, the report given by the complainant’s Surveyor Mr. Bhaskar Joshi, runs counter to these views. His report, goes to reveal that the damage to the silo was due to dust explosion and since explosion is a peril insured under the fire policies held by the insured, the loss would fall within the purview of the fire policy and insurers would be well within their right to indemnity insured’s claim.

19. It was also explained that on 17.04.2006, the complainant filed an IA wherein it was prayed that the insurance company be directed to pay an amount of Rs.19,79,394/- together with interest @ 21% p.a., from the date of the accident. On 11.05.2006, this Commission passed an order directing the insurance company to deposit with this Commission, a sum of Rs.19,80,000/- with interest @ 9% p.a. from 01.02.1999, on or before 30.05.2006. A Special Leave Petition was filed before the Hon’ble Supreme Court against the order dated 11.05.2006, by the OP, which was dismissed. 20. The whole gamut of all the evidence and circumstances clearly goes to show the present case squarely falls within the exception clause. We have perused few words from “The New Shorter Oxford” English Dictionary- Edition 1993, wherein the word “explosion” means – “the action or an act of forcing out or emitting something suddenly, esp. with violence and noise. The action of scorning or rejecting an opinion, proposal, etc. The action or an act of bursting or flying into pieces with extreme violence and noise; the loud noise accompanying this. More fully explosion shot. A shot in which the ball is made to jump out of a bunker by striking the sand just behind the ball. A sudden outbreak or show of emotion. A sudden or rapid increase, esp. in size, numbers, or amount”. Again, the word “implosion” means - A bursting or collapsing inward. The sharp intake of air in the pronunciation of some consonants. When the core of a star collapses … the inner part… undergoes an implosion, while the outer part undergoes an explosion. There was an implosion, as firms rushed together from great financial conglomerates.

21. The case of all the four Surveyors, namely, Sh.R.V.Dixit, Dr.W.D. Patwardhan, Mr.C.M. Pandit and M/s. Bhatwadekar & Co., are vague, evasive and lead the Commission nowhere. Their reports are based on ‘ifs and buts’. They have wavering and flickering minds. A report should not be based onhypothecal views. The meanings obtained from ‘The New Shorter Oxford English Dictionary’, clearly go to show that the present case falls within the above said exception. It is also surprising to note that everybody followed Mr.R.V.Dixit, who gave report without any basis. The doubts created byMr.R.V.Dixit were followed adamantly, till the ‘tailor- made’ reports were made.

22. The Surveyors have not ruled out the possibility of presence of dust. We have gone through the literature under the caption Dust Explosions, by Rosalie Alexander and Chilworth Technology. Mr.Bhaskar Joshi, the Surveyor, appointed by the Complainant, gave his findings, as follows :- “4.03 Our Findings: 4.03.01 Narrations of incidence by eye witnesses have confirmed presence of large quantum of grain dust inside the silo. 4.03.2 Insured have a practice of accepting grain upto 12% moisture, upto 15% with some price discount and all grains with moisture content above 15% are rejected. However, since it was peak monsoon time, grain absorbing moisture from atmosphere cannot be ruled out and hence presence of “hot grain” (ref para 3.02.2) 4.03.3 Organic vapours of chemicals mentioned in para 2.02 do not wet the grain and hence possibility of co-existence of bothvapours and grain dust is quite high. 4.03.4 Any source of ignition such as build up of static electricity charge (although silos are well earthed, build up of static charge during monsoon cannot be ruled out totally), or a high friction among grains could give rise to a spark. 4.03.5 The explosion may be caused by any or combination of the following factors:- 4.03.5.1 The spark would ignite the organic vapour which in turn cause dust to explode. 4.03.5.2 The spark would cause the fine grain dust to explode. 4.03.6 It may be noted here that presence of organic vapours would not be uniform all over the volume of silo but there would be some pockets with high concentration of vapour. 4.03.7 It is known beyond doubt that grain silos carry dust in concentrations higher than the safe limits and thus probability of a dust explosion is very high. 4.03.8 Case studies cited in this report also confirm that the phenomenon of dust explosion in grain silos is very common. 4.03.9 We, therefore, are of the opinion that the damage to the silo is due to dust explosion and since explosion is a peril insured under the fire policies held by the insured, the loss would fail within the purview of the fire policy and insurers would be well within their right to indemnity insured’s claim”. 23. Secondly, Dr. C.M. Pandit was appointed by the Surveyor and not by the insurance company itself. The following extract of Dr.C.M. Pandit’s report is also relevant :-

“ In absence of my detailed designs made available for my review, I cannot make any comments as to what provisions were made either in design loads or in providing appropriate devices to forestall development of undesirable loading conditions. However, afteroverall inspection of collapsed material, nature of construction, chosen gauges of material etc., I feel that unsymmetrical loading conditions are not catered for in design”. 24. This is an admitted fact that two persons were trapped in heap maize that spilled out from the silo.

25. In its report, M/s. Bhatawadekar & Co., while discussing the observations made by Mr. Bhaskar Joshi, also mentioned, as under :- “(5) Observations of Mr.Bhaskar Joshi Presence of organic vapours would not be uniform all over the Silo, but there would be some pockets with high concentration of organic vapour. Our Comments: (a) In our opinion, the possibility of formation of pockets by organic vapour in the running Silo is remote, as there is constant downward flow of maize which will not allow any such pockets to remain unremoved. (b) Further such cause leading to explosion will not allow the Silo to bend and collapse in one direction only.

(6) Observations of Mr.Bhaskar Joshi. Dust in concentration higher than the safe limit is a common phenomena responsible for the explosion in Silos. Our Comments (a) There was no dust formation reported by the eye witnesses when failure of Silo occurred. (b) When tons of grain fall out of the Silo, some dust will obviously fly but it cannot become a cause of damage to Silo.

(7) Observations of Mr.Bhaskar Joshi. Case studies cited in the report confirm that the phenomena in dust explosion in the grains Silos is very common. Our comments (a) The case study only cites what can happen. Insured has not anyway proven what and how these conditions apply to the present case. The case study cited do not represent the same technical parameters, atmospheric conditions, chemical analysis of the ingredients,method of operation of the Silo, to that of the Silo handling red maize which failed on 05.08.1998, in the insureds premises. (b) No two events can be of the same nature, having same circumstantial conditions and hence it is improper to correlate the same. [EMPHASIS SUPPLIED]

26. The But and Ben stand, set up by Mr. Bhatwadekar, further makes his report doubtful. On the one hand, he reports that the possibility of dust cannot be ruled out. On the other hand, he denies it. Again, until and unless one specifically asks the question about dust, the witness of his accord will not mention it. Mr.R.V.Dixit and others should have put a specific question. Even the efforts were made to take the photographs of silo only. The surroundings werenot properly shown. Moreover, how can one may garner the presence of dust in photographs. It cannot be a dallop. It must have spread or flown as suggested by the above said report.

27. Counsel for the complainant has placed reliance on Venkateswara Syndicate Vs. Oriental Insurance Co. Ltd., 2009 (8) SCC 507, Jagir Singh Vs.Ranbir Singh, AIR 1979 SC 381, Sant Lal Gupta & Ors., Modern Co-operative Group Housing Society Ltd. & Ors., (2010) 13 SCC 336, The New India Assurance Co. Ltd. Vs. M/s. Protection Manufacturers Pvt. Ltd., [2010] 7 SCC 386.

28. Under these circumstances, we pass the decree in the sum of Rs.19,80,000/-, along with interest @ 9% p.a. from 01.02.1999, till its deposit with this Commission. The Registry is directed to pay the said amount to the complainant, along with interest accrued thereafter, after the date of deposit with this Commission, till payment. We also award costs in the sum of Rs.50,000/- in favour of the complainant and against the New India Assurance Co. Ltd., OP. The said costs be paid to the complainant, within 90 days from the date of this order, otherwise, it will carry interest @ 12% p.a., till its realization.

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

..………………….…………… (DR.S.M. KANTIKAR) MEMBER dd/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(Against the order dated 14.11.2012 in Appeal No. 570/2011 of the A.P. State Consumer Disputes Redressal Commission Hyderabad)

The General Manager A.P.Rajiv Swagruha Corporation Ltd. (Government of A.P.undertaking) Chandanagar Project Beside ZPH School Serilingampally Ranga Reddy District-50 Andhra Pradesh ...... Petitioner Vs. V.Satish Chandra s/o Kotaiah r/o Plot no.41 & 42 Flat No.301, Dhaynish Towers Pragathinagar, Qutubullapur Mandal R.R.District, Andhra Pradesh

AND REVISION PETITION NO. 418 OF 2013 Against

M.Vishveshwer Rao s/o Jagannadham r/o Plot no.984 Pragathinagar, Qutubullapur Mandal R.R.District, Andhra Pradesh ...... Respondent

BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER For the Petitioner : Mr.Abhijeet Sinha, Advocate For the Respondent : Ex-Parte PRONOUNCED ON : 21st MAY, 2014 ORDER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

The above noted revision petitions are directed against the common order dated 14.11.2012 whereby the appeals preferred by the above noted respondents complainants against the order of the District Forum Rangareddy District, Hyderabad were accepted by Andhra Pradesh Consumer Disputes Redressal Commission ( in short, ‘the State Commission’) and the respondent opposite party was directed to refund a sum of Rs.1,22,000/- with 9% interest thereon to the respondent V.Satish Chandra and Rs.30,000/- with 9% interest thereon to the respondent M.Vishveshwer Rao. Both the respondents were awarded cost of Rs.2000/- each.

2. The facts relevant for the disposal of the revision petitions are that pursuant to the applications submitted by the respondents, the petitioner Corporation ( earlier known as Andhra Pradesh Housing Board) allotted them two bed room flat measuring 685 sq. ft in the housing project undertaken by the petitioner. The tentative cost of each flat as per the allotment letters was Rs. 10,30,000/- to be paid in instalments. The respondent V Satish Chandra deposited the entire consideration amount of Rs.10,30,000/- whereas the respondent M.Vishveshwer Rao deposited a sum of Rs.8,30,000/- against the cost of the flat. It is the case of the respondents that on their visit to the site, they found that the construction of the flats was substandard. Therefore, respondents vide their respective applications dated 16.10.2009 & 14.10.2009 applied for refund of money paid by them alongwith interest. The petitioner Corporation, however, refunded sum of Rs.9,08,000/- to the respondent V.Satish Chandra after deducting sum of Rs.1,22,000/-. Similarly, the respondent M.Vishveshwer Rao was refunded Rs.8.00 lacs after deducting Rs.30,000/-. Being aggrieved by the deduction made by the petitioner Corporation, the respondents filed separate complaints seeking direction to the petitioner to pay the deducted amounts to them alongwith interest. Complainant V.Satish Chandra demanded a sum of Rs.2,04,000/- whereas the respondent M.Vishweshwer Rao demanded a sum of Rs.1,29,600/- including interest.

3. The petitioner opposite party resisted the complaints. In its respective written statements, the opposite party admitted that the respondents were allotted two bed room flats in response to their applications. The tentative cost of each flat was Rs.10,30,000/-, which however, was subject to change depending upon the cost incurred on the construction. It is also admitted that the respondent Satish Chandra had paid Rs.10,30,000/- against the consideration of the flat whereas complainant M.Vishveshwer Rao had paid a sum of Rs.8,30,000/-. The OP denied that the construction of the flat was of inferior quality. The petitioner opposite pleaded in the written statement that the opposite party corporation operates on ‘no loss no profit basis. The total cost of construction of flat was much higher than the tentative price. Therefore, the respondent V.Satish Chandra was required to pay the balance amount of Rs.1,90,000/- and respondent M.Vishveshwer Rao was required to pay the balance amount of Rs.3,90,000/- The respondents were unable to pay the balance amounts. Thus, vide their respective letter dated 16.10.2009 & 14.10.2009, they asked for refund of the amount paid by them. It is contended by the petitioner that acting upon the request of the respective complainants, the amount deposited by the respondents were refunded to them after deducting a sum of Rs.1,22,000/- and Rs.30,000/- respectively in terms of the refund policy bearing No.2182/APRSCL. It is contended that while receiving the refund, the complainants were satisfied with the amount and they received the respective refund amount in full and final settlement of their claims. Thus, the complainants are estopped from reagitating the matter by filing the consumer complaints.

4. Learned District Forum on consideration of the pleadings and evidence adduced by the parties came to the conclusion that there was no deficiency in service on the part of the petitioner qua the respondents complainants and dismissed both the complaints vide separate orders. The respondents complainants being aggrieved by the orders of the District Forum preferred separate appeals and the State Commission Andhra Pradesh vide common impugned order allowed the appeal and directed the petitioner opposite party to the refund the amount wrongly deducted to the respective complainants with 9% interest thereon w.e.f. 17.02.2010 and also to pay Rs.2000/- each as cost.

5. Learned counsel for the petitioner has contended that the impugned order is not sustainable as it has been passed in utter disregard of the facts established on record and the law. Expanding on the argument, learned counsel for the petitioner submitted that the State Commission has failed to appreciate that the petitioners had taken refund of the amount paid by them after necessary deductions in terms of the policy of the petitioner corporation in full and final settlement of their claim. They even signed the full and final settlement receipt and as such they are estopped from reagitating the matter by filing a consumer complaint. It is argued that while deciding the appeal, the State Commission has misapplied the ratio of judgment of the Supreme Court in the matter of United India Insurance Vs. Ajmer Singh Cotton & General Mills & Ors. (1999) 6 SCC 400. In support of this contention, learned counsel has referred to the copy of the refund policy framed vide order no.2182/APRSCL/Mktg./09 dt.12.10.2009. The respondents failed to put in appearance despite of service. As such they were proceeded ex parte.

6. There is merit in the contention of learned counsel for the petitioner. The petitioner has placed on record copy of the hand receipts purported to have been executed by the respondents. On perusal of these hand receipts, it is seen that the respondent V. Satish Chandra has received a sum of Rs.9,08,000/- towards refund of four instalments paid by him in full and final settlement of his claim. Similarly, respondent V.Vishveshwer Rao has also executed a receipt confirming that he has received sum of Rs.8.00 lacs from the petitioner towards refund of three full instalments and fourth part instalment paid by him in full and final settlement of his claim. On perusal of the above noted refund policy, we find that amount of refund paid to the respective complainants is in terms of the refund policy. There is no allegation in the complaint either of respondent V. Satish Chandra or M.Vishveshwer Rao to the effect that full and final discharge receipts were obtained from them by misrepresentation, fraud or coercion. Therefore, it is clear that the State Commission while passing the impugned order has misapplied ratio of United India Insurance Vs. Ajmer Singh Cotton & General Mills & Ors. (supra). The State Commission, in our view, has committed a grave error in holding that it was a coercive bargaining ignoring the fact that there is no such allegation in the respective complaints. 7. In view of the discussion above, it is clear that the impugned order of the State Commission suffers from material irregularity, as such, it cannot be sustained. I, therefore, allow the revision petitions, set aside the order of the State Commission and dismiss the complaints.

………………Sd/-…………. (AJIT BHARIHOKE, J) ( PRESIDING MEMBER)

Am/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 05.09.2012 in First Appeal No. 1458/2011 of Haryana State Consumer Disputes Redressal Commission, Panchkula)

NU Genes Pvt. Ltd., Plot No.18, 1st Floor, NCL Enclave, NH-7, Medchal Road, Secunderabad – 55 through Assistant Manager Ashit Kumar Choudhary

... Petitioner

Versus

1. Ishwar son of Sh. Ram Sarup, resident of Village Kheri Daulatpur, Tehsil Khera Khera, District Bhiwani, Haryana

2. M/s. India Sales Corporation, 24, New Anaj Mandi, Hansi, District Hissar through its proprietor

…. Respondents

BEFORE

For the Petitioner Mr. Naveen Kumar Chauhan, Advocate

For the Respondent (s) Ex-parte

PRONOUNCED ON : 21st MAY, 2014

O R D E R

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

Haryana State Consumer Disputes Redressal Commission, Panchkula (for short ‘the

State Commission’) in First Appeal No. 1458 of 2011, “NU Genes Pvt. Ltd. & Anr.

Vs. Ishwar son of Ram Sarup”, vide which, while dismissing appeal, the order passed by the District Consumer Disputes Redressal Forum, Hisar in Consumer Complaint No.

441 of 2009, allowing the said consumer complaint, was upheld.

2. Briefly stated, the facts of the case are that the complainant/respondent No.1-

Ishwar son of Ram Sarup filed the consumer complaint dated 07.10.2009 before the

District Forum, saying that he along with Bhagat Singh, son of Mohan Singh, resident of

Village KheriDaulatpur, District Bhiwani went to purchase seeds from Opposite Party

No.1/Respondent No.2, M/s. India Sales Corporation and that he purchased

3 Kgs. Nitya RH-10, Hybrid Paddy Seeds at Rs. 500/- per Kg. This purchase was made on the assurance of the petitioner/opposite party No.2, who is producer of the seeds that they were good quality seeds. The seeds were purchased on 08.5.2009 and were sown in their fields after necessary preparation in Khasra/Killa No. 191//14/2, 15,

192//11, 12 and 13 at Village Kheri Daulatpur. However, after some time, he found that the paddy plants were mixed with some other crops/varieties and the percentage of variety RH-10 was very little. It has further been stated in the complaint that the seeds were sown in 3 acres of land. The complainant then brought the matter to the notice of the OP-1/Respondent No.2, who visited the spot along with the representatives of petitioner/OP-2 and after seeing the crop, assured to give proper compensation. However, later on, they refused to pay the same, following which the consumer complaint in question was filed, claiming a sum of Rs. 75,000/- for preparation of fields, fertilizers and irrigation etc., Rs.1.20 lacs for damages suffered and Rs.5,000/- as counsel fee.

3. In the reply filed before the District Forum by opposite party No.1/respondent No.2, the allegations levelled in the complaint were denied and it was stated that the opposite parties never visited the fields of the complainant. It was also stated that if there had been any mixing in the seeds of paddy, this factor could have come to the notice of the farmer, while the plants were at the nursery stage, and he could have avoided to put mixed plants, while transplanting the paddy seedlings. The complaint was therefore an afterthought. It was also stated that 6-8 Kg. of seeds were required for sowing in one acre of land. The said seeds were in a packed and sealed condition at the time of sale and were manufactured by a duly licensed agency.

4. The District Forum, after the receipt of the complaint, passed an order dated

19.10.2009, directing the Deputy Director Agriculture,Bhiwani to constitute a Committee of Experts, which would inspect the fields in question, after giving notice to both the parties and then to report to the District Forum. The said committee was constituted on

06.11.2009, consisting of Deputy Director Agriculture, Bhiwani, Senior

Scientist, Krishi Vigyan Kendra and Sub Divisional Agricultural Officer, Bhiwani. The inspection report made by the Committee was considered by the District Forum and vide order dated 29.7.2011, the District Forum allowed the complaint and directed the opposite parties to pay compensation of Rs.30,000/- along with Rs.3,300/- as cost of litigation. An appeal was made against this order before the State Commission by both the opposite parties and vide impugned order dated 05.9.2012, the said appeal was dismissed on the ground of limitation as well as on merits. It is against this order that the present petition has been made by opposite party No.2/petitioner NU GenesPvt. Ltd.

5. A notice of the revision petition was sent to complainant/respondent No.1 and opposite party No.1/Respondent No.2. However, they did not put in appearance before this Commission. The petition was ordered to be admitted on 30.08.2013 and notice for final hearing was again issued to both the respondents. However, both of them did not appear and hence, were proceeded against ex-parte.

6. During hearing before us, the learned counsel for the petitioner stated that the

District Forum vide their order dated 19.10.2009, had directed the Deputy Director

Agriculture, Bhiwani to constitute a Committee of Experts, which would inspect the fields in question after giving notice to both the parties. The inspection report prepared by the said committee had been placed on record, which depicts very clearly that no notice was sent to the petitioner while making the said inspection. The consumer fora below had therefore taken an erroneous view in relying upon the said report. The learned counsel further stated that as admitted by the complainant himself, he had purchased only 3 Kg. of paddy seeds and planted the same in 3 acre of land; whereas 6-8 Kgs. of seeds are required for one acre of land. The learned counsel has further drawn our attention to an instruction booklet published by the petitioner, depicting the characteristics of various varieties of paddy. In so far as RH-10 variety is concerned, the ripening time of the crop is 110 to 117 days. The Committee of Experts had made inspection, after the said period was over. Moreover, the inspection report does not find mention of the kind of plants with which the crop in question was mixed. In the light of these facts, the petition should be allowed and the orders of the consumer fora below should be set aside. 7. The learned counsel has also drawn our attention to an order passed by this

Commission in Revision Petition No. 3179 of 2010, “J.K.Agre Genetics Ltd. versus Bhoop Singh & Anr., saying that the onus to prove that the seeds were defective or spurious, was on the complainant.

8. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us. The State Commission observed in the impugned order that there was a delay of 40 days in filing appeal before them and there were no sufficient grounds to condone the delay. However, they dismissed the appeal on grounds of delay as well as on merits. The petitioners had filed an application for condonation of delay before the State Commission, saying that there was a delay of filing the appeal of 14 days only and not 40 days. The delay occurred because the petitioner was under the impression that the limitation for filing the appeal was sixty days. In view of the position explained in the application for condonation of delay before the State Commission and the arguments before us, the delay in filing appeal before the

State Commission is condoned.

9. Further, it is mentioned in the complaint itself that the complainant purchased 3 Kg. of paddy seeds and planted them in 3 acres of land; whereas according to the petitioner, 6 to 8 Kg. of seeds are required for one acre of land. The quantity of seeds purchased, was therefore, highly insufficient for the purpose and so, it becomes clear that there must be vacant spaces / patches where other plants or weeds etc., must have grown. A presumption can also be there that before transplanting, the complainant mixed the three Kgs. of seeds purchased from the opposite parties with some other variety. The inspection report should have taken note of this aspect and given their views on the same.

9. A perusal of the inspection report indicates that the Committee found 34% to 38% of plants of different kind. However, the committee has nowhere given the description of such plants of different kind. It is normally expected from a Committee consisting of

Experts in Agriculture to indicate about the plants / variety which was found mixed with the main crop.

10. A very important point to be noted in the present case is that as per standard practice, a farmer is required to grow nursery plants of paddy before transplantation of paddy in the main fields. If the complainant had grown such nursery plants, the mixing in the seeds of paddy would have come to his notice instantaneously and he would have refrained from transplanting the mixed plants in the main fields. Even after the transplantation, if the farmer found some mixed plants or inferior quality plants, he could have removed the same and done the transplantation again, during the sowing period, but nothing of this sort was done.

11. Further, it is clear from record that the complaint in question is dated 07.10.2009 and as per the order of the District Forum, a direction was made to constitute a

Committee of Experts for spot inspection. The said Committee was constituted on

06.11.2009 as stated in the inspection report. Obviously, the inspection must have been done on or after 06.11.2009. As stated in the instruction booklet made by the opposite parties, the ripening time for the said variety of paddy is 110 to 117 days. If the crop had been transplanted in the month of May or June, it would have ripened before October and hence, the inspection carried out in the month of November has no significance. 12. It is further observed that the District Forum, while passing their order dated 19.10.2009, had directed the constitution of the Committee of experts and also stated that the said Committee would inspect the fields in question after giving notice to both the parties. The inspection report submitted by this Committee nowhere states whether any notice was given to the parties before carrying out the inspection. It is stated that the complainant was present on the spot, but the petitioner should also have been given the chance to present his view point, while making inspection. The inspection report, therefore, suffers from a major lacuna that it was not made in the presence of both the parties, as directed by the District Forum.

13. It is clear therefore from the above that facts stated in the complaint and inspection report lack credibility and should not have been relied upon by the consumer fora below. It is evident therefore, that the State Commission and the District

Forum have taken an erroneous view of the matter and allowed the complaint.

14. Based on the discussion above, this revision petition is allowed and the orders passed by the State Commission and the District Forum are set aside and the consumer complaint in question stands dismissed with no order as to costs. ..…………Sd/-…………………

(K.S. CHAUDHARI J.) PRESIDING MEMBER

..……………Sd/-……………… (DR. B.C. GUPTA) MEMBER

SB/4 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 26.05.2008 in First Appeal No. 940/2008 of Karnataka State Consumer Disputes Redressal Commission, Bangalore)

State Bank of India, Maithri Complex, Udupi – 576101, Karnataka State represented by its Chief Manager

... Petitioners

Versus

1. Vishnu Prasad, son of Madhusudhan Thenkalaya, residing at “Madhu Nivas”, Mahalaxmi Nagar, Ambagillu, Udupi, Udupi Taluk and District

2. SBI Cards & Payment Services Private Limited, DCF Infinity Towers, Tower C, 12th Floor, Block 2, Building 3, DLF Cyber City, Gurgaon – 122002

3. The Managing Director, Royal Sundaram Alliance Insurances Co. Ltd., “Sundaram Towers” 45 & 46, Whites Road Chennai – 600014, Registered Office, 21, Patullos Road, Chennai – 600002

…. Respondents

BEFORE

For the Petitioner Mr. Rajiv Kapur, Advocate

For the Respondent No.1 For the Respondent No.2 NEMO For the Respondent No.3 Ms. Heena Verma, Advocate with Ms. Atifa Jahan, Asstt. Mgr., SBI Card Mr. P.K. Seth, Advocate

PRONOUNCED ON : 21st MAY, 2014

O R D E R

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

Karnataka State Consumer Disputes Redressal Commission (for short ‘the State

Commission’) in First Appeal No. 940 of 2008, “State Bank of India Vs. Vishnu Prasad

& Ors.”, vide which, while dismissing appeal, the order passed by the District Consumer

Disputes Redressal Forum, Udupi on 04.4.2008, allowing the consumer complaint No.

81 of 2007, was upheld.

2. The facts of this case are that the complainant / Respondent No.1 filed consumer complaint No. 81 of 2007 under Section 12 of the Consumer Protection, 1986 before the

District Forum Udupi, stating that he was the holder of a SBI Card bearing No.

5264685315331882, issued by the State Bank of India. He received a letter on

24.02.2007 from opposite party No.3, Royal Sundaram Alliance Insurance Co. Ltd., stating that the complainant had given his telephonic consent for being enrolled in

‘Medisafe Insurance Policy’ with premium at Rs.4,331/-. According to the complainant, he never gave any consent for availing the said policy, neither he gave any application for insurance coverage. The petitioner/OP-2 debited various sums from time to time for the said insurance. The complainant took up the matter with the opposite parties, requesting them to return the amounts so deducted and also pay him compensation for mental harassment on this score. The complainant sought the following reliefs through this complaint:

“Reliefs Claimed:

Hon’ble Forum may kindly pass an order: a. Directing the opposite parties to return Rs.133.52, Rs. 4331/- and Rs.780/- to the complainant; b. Directing the opposite parties to pay an interest at the rate of 12% p.a. on the above said 133.52/- Rs.4331/- and Rs.780/- from the date of debit made from the account of the complainant; c. Directing the opposite party to pay a sum of Rs.2,00,000/- as damages to the complainant towards mental agony and harassment undergone by the complainant”.

3. In their reply before the District Forum, the petitioner State Bank of India/OP-2 submitted that the credit card in question was issued by OP-1/Respondent No.2, which is a separate company, called “SBI Cards & Payment Services Private Ltd.”. As such, there was no privity of contract between the complainant and the opposite party

No.2. There was no deficiency in service on the part of opposite party No.2. 4. The District Forum, after taking into account the evidence of the parties, allowed the complaint vide their order dated 04.4.2008 and directed the following reliefs to the complainant:- “ The complaint is allowed. Opposite Party No.1 and 2 are directed to refund Rs.133.52, Rs.4331/-, Rs.780/- with 12% interest from 02.03.2007 till payment. The opposite party No.1, Opposite Party No.2 and Opposite Party No.3 are jointly and severally directed to pay to the complainant Rs.50,000/- towards punity compensation along with Rs.3500 being the cost of the proceedings and advocates fee. The opposite Party No.1, opposite party No.2 and opposite party No.3 shall pay the amounts within one month from the date of receipt of this order”.

5. It is clear from the above order that the District Forum held the petitioner/opposite party No.2-State Bank of India and Opposite Party No.1-SBI Cards & Payment Services

Private Limited, jointly and severally liable for payment of amounts mentioned in their order, along with the Insurance Company, OP No.3. Against this order of the District

Forum, as per record, two appeals were filed before the State Commission. Appeal No.

940 of 2008 was filed by the present petitioner-State Bank of India, which was dismissed vide impugned order dated 26.5.2008. Another appeal 944 of 2008 was filed by Royal Sundaram Alliance Insurance Co. Ltd.-Opposite Party No.3, which was decided vide order dated 19.08.2008 of the State Commission and the direction to pay

Rs.50,000/- as compensation was set aside. Further, the cost of Rs.3500/- imposed upon the OPs was reduced to Rs.1000/-, but made payable by OP-1 and OP-2 only. The operative part of the order is as follows: “OP Nos. 1 and 2 are directed to refund Rs.133.52/-, Rs.4,331/-, Rs.780/- with interest at 12% p.a. from 02.03.2007 till realization. OP Nos. 1 and 2 are also directed to pay a sum of Rs.1,000/- as costs to the complainant”.

6. The present petition has been filed by Opposite Party No.2-State Bank of India only, seeking reversal of the impugned order dated 26.5.2008.

7. The complainant/Respondent No.1-Vishnu Prasad did not appear despite service of the notice upon him. During hearing of the petition on 15.4.2014, the learned counsel for the petitioner stated that the credit card in question had not been issued by them and hence, they had no liability in the matter. The State Commission had taken an erroneous view in dismissing appeal No. 940 of 2008 filed by them and hence, the said order should be set aside and the petitioner should be absolved of their liability to pay any amount to the complainant. The learned counsel for the respondent No.2-SBI

Cards & Payment Services Pvt. Ltd., submitted on that day, that there was no outstanding amount against the complainant on the card. On putting a query as to whether the order dated 19.8.2008, passed by the State Commission in Appeal No. 944 of 2008, vide which OP No.1 & 2 had been directed to pay certain amounts to the complainant, had been complied with or not, the learned counsel stated that they will check up the position in that regard.

8. On the date of final hearing i.e. 13.5.2014, it was submitted by the learned counsel for the Respondent No.2 that in compliance of order dated 19.08.2008, passed by the

State Commission, they had already sent a demand draft bearing No.700264 dated

07.5.2014 for a sum of Rs.10,760/- towards the refund of amounts, along with interest and costs as stated in the order passed by the State Commission. It was stated by the learned counsel for the petitioner that since the order dated 19.08.2008 stood complied with, they should be discharged from their liability of making any payment to the complainant.

9. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The facts on record as admitted by the parties present, indicate that the credit card in question was issued to the complainant by SBI Cards & Payment Services Pvt. Ltd.-OP-1. The version of the complainant that he had never given his consent for obtaining the ‘Medisafe Insurance

Policy’ has not been controverted anywhere. The District Forum directed joint liability upon the OPs for making the required payment to the complainant, along with compensation. The appeal filed by the petitioner/OP-2 against that order was dismissed vide order date 26.5.2008, but in the appeal filed by the insurance company, it was directed that the amount should be returned to the complainant by OP-1 & 2 only along with interest and Rs.1000/- as litigation cost. At the present stage, when compliance of order dated 19.08.2008 has been made by Respondent No.2/OP No.1-

SBI Cards & Payment Services Pvt. Ltd., it is clear that no liability is left on the petitioner to fulfil. The stand of the petitioner that they had no privity of contract with the complainant also seems to be correct.

10. In view of the position described above, the present revision petition is allowed, the impugned order dated 24.5.2008 is modified and the petitioner stands absolved of his liability to make any payment to the complainant since the order dated 19.08.2008 passed by the State Commission stands implemented. It is made clear that nothing more requires to be done in the settlement of the consumer complaint in question.

..…………Sd/-…………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..…………Sd/-…………………

(DR. B.C. GUPTA)

(from the order dated 20.08.2013 in First Appeal No. 261/2013 of State Consumer Disputes Redressal Commission, U.T. Chandigarh)

FIITJEE LTD., Kalu Sarai, Sarvpriya Vihar, New Delhi – 110016, through its A.R. Ashish Kr. Aggarwal

... Petitioner /OP

versus

Sajjan Kumar Gupta, father of Nimesh Goel, resident of 3871/1, Sector-47D, Chandigarh – 160022

…. Respondent/Complainant

BEFORE

For the Petitioner Mr. Mukesh M. Goel, Advocate with

Mr. Prem Grover, Advocate For the Respondent In person

PRONOUNCED ON : 21st MAY, 2014 O R D E R

Protection Act, 1986 against the impugned order dated 20.08.2013, passed by the State

Consumer Disputes Redressal Commission, U.T. Chandigarh (for short ‘the State

Commission’) in First Appeal No. 261 of 2013, “Sajjan Kumar Gupta versus

Manager/Centre Head, FIITJEE Ltd.”, vide which, appeal against the order dated

24.5.2013, passed by the District Consumer Disputes Redressal Forum, UT Chandigarh, in consumer complaint No. 86 of 2013, dismissing the said complaint, was set aside.

2. Briefly stated, the facts are that the present respondent/complainant Sajjan Kumar

Gupta filed the consumer complaint in question, stating that his son Nimish Goel took admission on 22.2.2011 in 4-year Classroom Programme (2011-12-2013) and (2013-

14-2015) for FIITJEE Weekend Contact Classes, run by the Chandigarh Centre of the petitioner. An amount of Rs.26,500/- was paid in advance as fee for the session 2011-

12-2013. In addition, post-dated cheques for an amount of Rs.52,831/- were paid as advance fee for the session 2013-14-2015, which were realized on the due date. The complainant has therefore, paid a total sum of Rs.79,331/- to the petitioner. It is stated in the complaint that the complainant came to know about the unethical business practices of the petitioner/opposite party during the session 2011-12-2013, as it advertised fascinating cash Awards/Medals through FIITJEE Talent Reward

Examination (FTRE) under fictitious terms and conditions, which could not be fulfilled by anyone to claim such awards. It is mentioned in the complaint as follows: “ FIITJEE advertises fascinating cash Awards/Medals through FTRE (FIITJEE Talent Reward Examination) prospectus every year under certain fictitious terms and conditions which cannot be fulfilled by anyone to claim such awards. These cash awards are offered to new students only just to attract them while the old students getting better FTRE ranks are denied for such awards. It is also observed that these awards are neither given to old students and nor given to new students but are advertised only as a business tactics. That my son Nimish had got 34 All India Rank in FTRE 2011 and as per FIITJEE prospectus he was eligible for the cash award of Rs.125000/- for the coming three sessions but was denied by FIITJEE in the name of above referred fictitious terms and conditions. Now in the year 2012 my son has again got 38th All India Rank in FTRE 2012 and becomes eligible for cash award of Rs.100000/- for the coming two sessions and is again denied for the above reasons”.

3. The complainant stated that when the said awards were not given to his son, he felt demoralized and did not want to continue his studies with FIITJEE and hence, they demanded refund of the money paid for the session 2013-14-2015, well before the commencement of the next session. The said demand was made through e-mail dated

27.11.2012; whereas the next session was to start in April, 2013. However, the petitioner refused to refund the said fees, following which, the consumer complaint in question was filed, demanding refund of the amount of Rs.52,831/- along with compensation of Rs.25,000/- for mental agony and Rs.5,000/- as cost of litigation.

4. In their reply before the District Forum, the petitioner stated that the total fees for the course was Rs.1.75 lacs plus service tax, but the son of the complainant was granted fee waiver, as per his ranking in the FIITJEE Talent Award Examination

(FTRE), conducted during the year 2010 and he joined the classes in the year 2011-

2012. The appearance of the candidate in the subsequent FTREs conducted during the years 2011 and 2012 was for the purpose of getting feedback ONLY from the students about their preparation, and no scholarship or waiver was given on the basis of marks or rank obtained, as per terms and conditions of the FTRE brochure. Further, the complainant opted for Fee Plan-3 with minimum fees (906/26 Dec10/CAT2/Plan-3) in which he had to pay less amount in comparison to other plans and therefore, there was no ‘exit’ option. The fee could not be refunded, therefore.

5. The District Forum after taking into account the evidence of the parties, found the complaint devoid of any merit and dismissed the same. However, on an appeal filed before the State Commission, the State Commission, vide impugned order, directed refund of Rs.51,831/- and Rs.5,000/- as cost of litigation. It is against this order that the present petition has been made.

6. At the time of hearing before us, the learned counsel for the petitioner has drawn our attention to a copy of the enrolment report-cum-receipt- course fee issued by M/s.

FIITJEE Ltd. in respect of Nimish Goel, son of the complainant, in which the particulars of the course fee charged from the student have been given. The learned counsel stated that the total amount chargeable from such a student was Rs.1.75lacs, but 90% waiver had been given to the complainant’s son in the tuition fee. The student had been charged a total sum of Rs.77,431/- including service tax. The component of tuition fee was Rs. 82,000/-, out of which 90% of the amount i.e. Rs.73,800/- had been given as a waiver. The learned counsel stated that the student had attended the course for two years, during which the petitioner had not shown any deficiency in service towards him. The student is not liable to claim refund if he wants to leave in between. The learned counsel referred to a judgment of Hon’ble Supreme Court in “Islamic Academy of Education Vs. State of Karnataka” (2003) 6 SCC 697, saying that the Institute was competent to charge fees for the entire course in the beginning itself, but as per this order of the Supreme Court, the component of fee for the subsequent years was required to be kept in fixed deposits. The learned counsel also invited our attention to

the order passed by the National Commission in “FIIT Jee Ltd. Vs. Dr. Minathi Rath”, as

reported in I(2012) CPJ 194 (NC), in which the above judgment of the Supreme Court

has been followed. The learned counsel further referred to the terms and conditions

contained in the FIITJEE enrolment form, saying that the refund could not be allowed, if

candidate left the course before completing the same. Learned counsel has also drawn

our attention to the order passed by this Commission in RP/270/2006 “Brilliant

Classes Vs. Shri Ashbel Sam” in this regard.

7. In reply, the complainant/respondent, who appeared in person, stated that the

order passed by the State Commission was in accordance with law and should be

upheld. He also stated that the contents of the complaint where it was stated that

FIITJEE had denied awards to the successful students were correct and had been

taken from the brochures of the petitioner.

8. We have examined the entire material on record and given a thoughtful

consideration to the arguments advanced before us. It shall be worthwhile to reproduce

the details of the amounts charged from the complainant by the petitioner for admission

of his son in the 4-year course run by M/s. FIITJEE Ltd. The said details as contained

in the enrolment –report-cum-receipt-course fee are as follows: Sl. Particulars of course fee Amount No. 1. Admission Fee 30,000.00 2. Examination Fee 8,000.00 3. Scholarship FTRE (100.00%) -8,000.00 4. Infrastructure Cost Fee 32,000.00 5. Tuition Fee 82,000.00 6. Scholarship – FTRE (90.00%) -73,800.00 7. (AITS+GMP_RTPE_ fee 4,000/- 8. Scholarship – FTRE (100.00%) -4000/- Total 70,200.00 Service Tax 7,231.00 Grand Total (INR) 77,431.00

9. A perusal of the above details show that out of the total tuition fee of Rs.82,000.00,

a rebate of 73,800/-, amounting to 90% of the fees was given to the son of the

complainant. The examination fees of

Rs. 8,000/- and (AITS + GMP + RTPF) fee of Rs. 4,000/- was completely waived off,

based on the performance of the student in the FTRE Examination. The only amounts

charged from the student are Rs.33,000/- as admission fee, Rs.32,000/- as Infrastructure cost fee and only 10% of the tuition fee. It is clear therefore, that the contention made by the complainant in his complaint that awards are only promised, but not given, based on performance in FTRE, is not substantiated from the facts on record. The complainant has stated in his complaint that in the subsequent years as well, the student appeared in FTRE and based on its performance; he was entitled to be given 1.25 lacs in FTRE-2011 and another Rs.1.00 lac for FTRE-2012. This version of the complainant is not substantiated from record. The petitioner has stated that the students who are already enrolled are made to appear in the subsequent FTREs examinations, just to obtain feedback regarding their preparation.

10. In the order passed by the Hon’ble Supreme Court in the case of “Islamic Academy of Education Vs. State of Karnataka”(Supra), the learned Apex Court have made it very clear that if an Institute had the apprehension that a particular student may leave in midstream, they could get a bond/bank guarantee for the balance fees for the whole course. Their Lordships have also stated in this judgment that if the fees is collected in advance, the Institute is required to keep it invested in fixed deposits in a Nationalised

Bank. The ratio of this judgment makes it clear that an institute is not debarred from collecting the entire fees in advance. Moreover, it has not been stated anywhere in this judgment that a student is entitled to get refund, if he leaves the course midstream.

11. In the instant case, the complainants have not established anywhere whether the petitioner performed any act, which may be termed as deficiency in service or negligence in duty in any manner. Moreover, the petitioners have only charged the infrastructure cost fee and admission fee and 10% of the tuition fees from the student. There is no justification for the refund of this fee, if the student has left the course midstream.

12. It is clear from the observations above that the order passed by the State

Commission does not reflect a correct appreciation of the facts and circumstances on record. The State Commission have quoted the order passed by the Hon’ble Supreme

Court in “Islamic Academy of Education Vs. State of Karnataka” (Supra) and also the order passed by this Commission in “FIIT Jee Ltd. Vs. Dr. Minathi Rath” (Supra) and based their order on the decision of the National Commission in the latter case. However, the view taken by the State Commission is not correct because in the present case, only 10% of the tuition fee was charged from the complainant’s son and there is no justification for refund of the amount of Rs.51,831/- to the complainant. On the other hand, the order passed by the District Forum reflects a correct appreciation of the facts on record.

13. In view of the discussion above, this revision petition is allowed and the order passed by the State Commission is set aside and the order passed by the District

Forum is confirmed. The consumer complaint in question stands dismissed with no order as to costs.

..…………Sd/-…………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..…………Sd/-…………………

(DR. B.C. GUPTA)

(From the order dated 30.06.2011 in First Appeal No. 334 of 2007 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai)

1. D. John Raj, son of S. Durai Raj 62, Gandhi Nagar, WIMCO Nagar, Chennai – 19 2. Smt. J.D. Premakumari Rosalind, 62, Gandhi Nagar, WIMCO Nagar, Chennai – 19

... Petitioners Versus 1. Senior Divisional Manager, L & HPF, Life Insurance Corporation of India, 102, Anna Salai, Chennai – 2 2. Senior Divisional Manager, CBO-V, Life Insurance Corporation of India, 102, Anna Salai, Chennai – 2

…. Respondents

BEFORE

For the Petitioner(s) Mr. Anand Mishra, Advocate

For the Respondent (s)

Mr. Amit Bansal, Advocate with Ms. S. Khanna, Advocate

O R D E R PER DR. B.C. GUPTA, MEMBER

Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (for short ‘the

State Commission’) in First Appeal No. 334 of 2007, “D. John Raj & Ors. Vs. Senior

Divisional Manager, LIC & Ors.”, vide which, while dismissing appeal, the order dated

23.4.2007, passed by the District Consumer Disputes Redressal Forum, Chennai

(South) in O.P. NO. 319 of 2005, dismissing the consumer complaint in question, was upheld.

2. Briefly stated, the facts of the case are that the petitioners/complainant filed the consumer complaint in question, saying that they had obtained insurance policies from the LIC, Policy No. 61928731 in the name of first complainant for a sum of Rs.

25,000/- w.e.f. 28.12.1982 and policy No. 61923778 in the name of second complainant for a sum of Rs.50,000/- w.e.f. 20.03.1982 and they were regularly paying premium of

Rs.61.30 and Rs.171.00 for these policies, through consolidated cheque for Rs.232.30.

The petitioner No.2/complainant No.2 availed a housing loan of Rs.75,000/- from the opposite party. The opposite party claimed Rs.10,605/- for non-payment of interest for the period from December, 2000 to August, 2001, although they had paid the interest instalments regularly. However, the complainant No.2 repaid the loan of Rs.75,000/- and obtained a stamped receipt for Rs.75,000/-. Since the opposite party deliberately withheld the documents, the complainant No.2 filed complaint before the District Forum as O.P. No.149 of 2004. The opposite party got the policy of complainant No.2 surrendered and appropriated the alleged dues for the period December, 2000 to

August, 2001 and so, the policy was prematurely liquidated on 11.11.2003 and intimation sent to the complainant. The complainants have alleged that they continued to make payment of consolidated cheque of Rs.232.30 as premium for both policies and they have annexed details of payment of these cheques from October, 2003 to May,

2004. However, some of these cheques were not accounted for, by the opposite parties and some of them were withheld without any action. The complainants have demanded that the opposite parties should be asked to intimate the fate of cheque nos. 965683 and 965685 for Rs.232.30 each for the months of January, 2004 and February,

2004. The opposite parties should also be directed to accept the cheques towards premium for policy No. 61928731 of complainant No.1 to the extent possible as per practice in the LIC. They should also be directed to accept the premium for policy No.

61923778 of complainant No.2 pending the disposal of O.P. No. 149/04 filed in the

District Forum by complainant No.2. The complainants also demanded compensation of Rs.50,000/- towards mental agony etc., and

Rs. 10,000/- as litigation cost.

3. In their written reply to the complaint before the District Forum, the opposite party,

LIC stated that the complainants were not paying the premium regularly and had also not paid the instalments for the repayment of the housing loan given to them. A sum of

Rs.10,605/- had accumulated due to delayed/irregular payment of housing loan amount for the period December, 2000 to August, 2001. The opposite party admitted that the complainants had paid a sum of Rs.75,000/- towards housing loan, but they had failed to clear the dues under the housing loan account. As per the terms of the mortgaged deed executed by the second complainant, the opposite parties surrendered the policy of second complainant and adjusted Rs.10,605/- towards the loan amount and balance amount was returned to complainant No.2 and this issue was the subject matter of the consumer complaint No.149/04 filed by complainant No.2 before the District

Forum. The opposite parties have further given details about the adjustment of cheques of Rs.232.30, sent by the complainants from time to time, as per the details given in the complaint. The opposite parties have taken the stand that they did not accept the premium for policy in favour of complainant No.2 as the said policy stood surrendered. However, they had adjusted the amounts paid towards premium for the other policy in favour of the complainant No.1.

4. The District Forum after taking into account the evidence produced before them, dismissed the complaint vide order dated 23.4.2007, saying that there was no deficiency in service on the part of the opposite parties. The District Forum held that once the policy in favour of second complainant was surrendered, the complainant should not have sent a consolidated cheque for premium for both policies. However, the opposite parties had rightly refused to accept the cheques and requested the complainants to send correct cheques. The District Forum also observed that complaint

No. O.P. 149/04 filed by complainant No.2 was dismissed by the District Forum on

29.03.2006 and a copy of the order was available in their record. On appeal, the State

Commission, vide impugned order dated 30.6.2011 upheld the order passed by the

District Forum on 23.4.2007. It is against this order that the present petition has been made.

5. The parties in the case were heard at admission stage on 12.11.2013. It was observed that the policy in favour of the complainant No.1 had matured on 28.12.2007 and its maturity value was Rs.23,343/-. It was not clear whether the said amount had been paid to the complainant or not? The petition was thereafter, admitted and fixed for final hearing on 21.5.2014.

6. At the time of final hearing, the learned counsel for the petitioner stated that the opposite parties could not have surrendered the policies on their own unilaterally, without giving any intimation to the complainants. Moreover, in their written reply before the District Forum, the opposite parties had wrongly stated that the policy in favour of the first complainant was surrendered and adjusted towards the loan amount and hence, there was no question of accepting cheques towards payment of premium for the said policy. The said policy had however, matured on 28.12.2007, but the maturity value had still not been paid to them. The opposite parties had therefore committed deficiency in service, for which there are liable to pay adequate compensation to the complainants.

7. In reply, the learned counsel for the respondents/opposite parties admitted that the policy in favour of complainant No.1 had matured on 28.12.2007 and its maturity value was Rs.23,343/-. The opposite parties were willing to pay this amount to the complainants with interest. The learned counsel further stated that even after the surrender of the policy in favour of complainant No.2, the complainants continued to send consolidated premium cheques for both the policies and hence, the opposite parties refused to accept the same. In fact, they had given complete details in their written statement about the adjustment of the cheques, sent from time to time. Out of the amount of Rs.232.30, sent through one single cheque, they had adjusted the premium for the policy in favour of complainant No.1 and retained the balance money for future adjustments. At certain times, they had even returned cheque of Rs.232.30, saying that premium under a surrendered policy could not be accepted. A letter dated

26.4.2005 addressed to complainant No.2 has been placed on record. They had also sent a letter on 22.11.2003, saying that after adjusting dues towards housing loan, they had prepared a cheque of Rs.69,971/- towards refund, which could be paid to complainant No.2 on bringing proof of identity. The learned counsel stated that consumer fora below had rightly dismissed the consumer complaint in question.

8. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The admitted facts are that the complainants had taken two different policies from the LIC, one amounting to

Rs.25,000/- and other amounting to Rs.50,000/-, for which the monthly premium of

Rs.61.30 and Rs.171.00, total Rs. 232.20 was being paid through one consolidated cheque. It is also admitted that complainant No.2 had raised a housing loan of

Rs.75,000/- from the opposite party. The opposite parties have taken the stand that because of default/irregular payment of the instalments of housing loan, they got the policy in favour of the complainant No.2 surrendered. It is made out from record that consumer complaint No.149/04 was filed by complainant No.2 before the District Forum, but as stated in the order dated 23.4.2007 of the District Forum, the said complaint was dismissed on 29.3.2006 and a copy of the said order was available in the record of the

District Forum. It is clear, therefore, that the surrender of the policy taken by complainantNo.2, was upheld by the District Forum.

9. In so far as policy No. 61928731 in favour of complainant No.1 is concerned, it is also admitted by both the parties that the said policy matured on 28.12.2007, but its maturity value had still not been paid. In a letter dated 24.12.2010, filed before the

State Commission, the opposite party stated that the premium for the said policy had been paid upto June, 2005, but it remained unpaid from July, 2005 to December, 2007.

The policy matured on 28.12.2007 and the maturity value for the policy as on

28.12.2007 was Rs.23,343/-. The learned counsel for respondents stated during arguments that they were prepared to pay the maturity value to the complainants along with interest.

10. In so far as the payment of cheques of Rs.232.30 from time to time is concerned, the opposite party have explained in their reply about the adjustment of the amount received by them. At certain times, they even returned the cheque, saying that the premium for surrendered policy could not be accepted. Looking at the facts of the case, we do not find any negligence on the part of the opposite party in dealing with the premium cheques sent by the complainants from time to time.

11. Based on the discussion above, we do not find any legal infirmity, irregularity or jurisdictional error in the orders passed by the State Commission and the District Forum and the same are confirmed. However, the opposite parties are directed to pay the maturity amount of Rs.23,343/- to complainant No.1, along with interest @ 12% from the date of maturity i.e. 28.12.2007 as requested by complainant No.1 in his letter dated

02.08.2011, a copy of which is on record. The revision petition in question stands disposed of with this direction. There shall be no order as to costs. ..…………Sd/-…………………

(K.S. CHAUDHARI J.) PRESIDING MEMBER

..…………Sd/-…………………

(DR. B.C. GUPTA) MEMBER

SB/4 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4166 OF 2011

(From the order dated 31.08.2011 in First Appeal No. 302/2009 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla)

1. ICICI Lombard General Insurance Co. Ltd. ICICI Bank Towers, Bandra Kurla Complex Mumbai – 400051 2. ICICI Lombard Motor Insurance Zenith House, Keshavrao Khade Marg, Mumbai – 400034 3. ICICI Home Finance Ltd. Chaman Commercial Complex Mandi – 175001 H.P. Through its Manager (Legal) ICICI Lombard General Insurance Co. Ltd. 315 Third Floor, Aggarwal City Mall Pitampura New Delhi – 110034 …Petitioners/Opp. Parties (OP) Versus Sh. Pawan Kumar S/o Sh. Madan Gopal R/o VPO Banuri Tehsil Palampur Distt. Kangra – 176061 H.P.

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioners : Mr. Amit Tyagi, Advocate with Ms. Shuchismita, Advocate

For the Respondent: Mr. Sanjiv Gupta, Advocate

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 31.08.2011 passed by the Himachal Pradesh State Consumer DisputesRedressal Commission, Shimla (in short, ‘the State Commission’) in Appeal No. 302 0f 2009 – Pawan Kumar Vs. ICICI Home Finance Ltd. & Ors. by which, while allowing appeal, order of District Forum dismissing complaint was set aside.

2. Brief facts of the case are that complainant/respondent was owner of vehicle HP

37 A 8213, which was insured from OP/petitioner for a period of one year from

12.12.2006 to 11.12.2007. On 29.9.2007, at about 2.30 a.m., when complainant was on en-route from Kullu to Hoshiarpur, vehicle met with an accident and suffered damage. Police report was lodged in P.S. Hoshiapur and intimation was also given to

OP. OP’s surveyor inspected vehicle on 11.10.2007 and assessed loss of Rs.3,54,661/-. Complainant submitted claim with the OP, but OP refused to settle the claim. Alleging deficiency on the part of OP, complainant filed complaint before District

Forum. OP resisted complaint and submitted that at the time of accident, vehicle was being driven by one Sunny S/o Sh. Bihari Lal, who was not holding a valid driving licence. Complainant has not come with clean hands and suppressed material facts. It was further submitted that news about accident was also published in local Punjabi newspaper (Ajit). It was further submitted that 3 persons sitting in the vehicle received serious injuries and only Rapat Roznamcha was made in Police Station Hoshiarpur on

10.10.2007 and no FIR was lodged. It was further submitted that as complainant was not sitting/driving the vehicle at the time of accident, he did not receive any injury and claim was rightly repudiated and prayed for dismissal of complaint. Learned District

Forum after hearing both the parties, dismissed complaint, as driver Sunny was not holding valid driving licence. Appeal filed by the complainant was allowed by learned

State Commission vide impugned order and State Commission directed OP to pay

Rs.2,16,650/- along with 9% p.a. interest against which, this revision petition has been filed.

4. Learned Counsel for the petitioner submitted that inspite of proof that Sunny, who was driving vehicle at the time of accident was not holding valid driving licence, learned

State Commission committed error in allowing appeal and setting aside reasoned order of District forum; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law, hence, revision petition be dismissed.

5. It is not disputed that complainant’s vehicle was insured by OP and during currency of insurance policy; vehicle met with an accident and suffered damage.

6. The core question to be decided is whether complainant was driving the vehicle or

Sunny was driving vehicle at the time of accident and whether complainant breached terms and conditions of the policy or not?

7. As per complaint, complainant himself was driving the vehicle, whereas as per written statement, Sunny was driving the vehicle. It is not disputed that 3 persons were in the vehicle at the time of accident and all the persons sustained injuries. Learned

Counsel for the petitioner submitted that no injury report of complainant has been produced and in such circumstances, it can be inferred that complainant was not driving vehicle at the time of accident. On the other hand, learned Counsel for the respondent submitted that as complainant sustained minor injury, injury report was not placed on record. Perusal of survey report of Sukhvinder Singh Notra reveals that steering and dash board pushed and touched with the driver seat and it is impossible that driver will remain unhurt in this type of accident. This report makes it crystal clear that at the time of accident, complainant was not driving the vehicle. Had he been driving the vehicle, he must have sustained serious injuries as other occupants of the vehicle sustained. In such circumstances, learned District Forum did not commit any error in holding that complainant was not driving the vehicle, but Sunny was driving the vehicle at the time of accident. Learned State Commission set aside this finding only on the assumption that sometimes in accident cases driver does not sustain injuries and sometime he sustains minor injury, which cannot be upheld. Looking to the extensive damage to the vehicle and steering and dash board pushing and touching with the driver seat, it cannot be imagined that driver will not sustain serious injuries. Admittedly, complainant has not produced driving licence of Sunny and complainant has purposely introduced himself as driver instead of Sunny, which is palpable false story and in such circumstances, as complainant has not come with clean hands, revision petition is to be allowed in the light of judgment of this Commission in R.P. No. 110/2013 – Jaspreet Singh Vs. ICICI Home

Finance Co. Ltd., Jalandhar and ICICI Home Finance Co. Ltd., Mumbai decided on

8.8.2013.

8. Admittedly, complainant has not lodged FIR with Police Station, but only Rapat Roznamcha has been placed on record, which is dated 11.10.2007, i.e. after

13 days of accident and intimation to the Insurance Company was also given on

10.10.2007, i.e. after 12 days of the accident. As per terms and conditions of the policy, complainant was under an obligation to lodge report with Police Station and give intimation in writing to Insurance Company immediately so that Insurance Company may also get it investigated. It appears that purposely, no report was lodged with the

Police Station and intimation to Insurance Company was also given after 12 days so that Insurance Co. may not get the matter investigated. This Commission in R.P. No.

899 of 2007 – Oriental Ins. Co. Ltd. & Anr. Vs. Rohtas Singh has held that on account of delay, Insurance Company was deprived of an opportunity to investigate the incident and thus violated terms of the policy and insurance company cannot be saddled with the liability to pay compensation.

9. In the light of above discussion, it becomes clear that as driver of the vehicle

Sunny was not holding a valid driving licence at the time of accident and there was delay in intimation to Insurance Co. and not lodging FIR, complainant violated terms and conditions of the Insurance policy and learned District forum rightly dismissed complaint, but learned State Commission committed error in allowing appeal, which order is liable to set aside.

10. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 31.08.2011 passed by the State Commission in Appeal No. 302 0f 2009

– Pawan Kumar Vs. ICICI Home Finance Ltd. & Ors. is set aside and order of District

Forum dismissing complaint is affirmed with no order as to costs.

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Paramjit Kaur W/o S. Manjit Singh R/o House No. 8, Gali No. 4, Anand Nagar – B, Patiala …Petitioner/Complainant

Versus M/s. Oriental Insurance Co. Ltd. Through its Senior Divisional Manager, Subsidiary of General Insurance Corporation of India Sai Market, Lower Mall, Patiala

…Respondent/Opp. Party (OP)

BEFORE

For the Petitioner : Mr. Surinder Goel, Advocate For the Respondent : Mr. S.L. Gupta, Advocate

O R D E R

This revision petition has been filed by the petitioner against the order dated 29.5.2013 passed by the Punjab State Consumer Disputes RedressalCommission, Chandigarh (in short, ‘the State Commission’) in Appeal No. 1835/2009 – The Oriental Ins. Co. Ltd. Vs. Ms. Paramjit Kaur by which, while allowing appeal, order of District Forum allowing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner was registered owner of Scorpio PB 11 AB 1518, which was insured by OP/respondent for a period of one year from 8.6.2007 to 7.6.2008. On 16.1.2008, Tarsem Singh, driver of the complainant was going from Delhi to Patiala and on the way, he parked the vehicle near Sukhdev Dhaba for taking meals. During this period, vehicle was stolen by some unknown person when driver went for call of nature. FIR was lodged on 16.1.2008, but car could not be traced. Insurance Company was also intimated about the theft of vehicle. Claim was lodged with insurance company, which was repudiated on flimsy grounds. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint, admitted insurance, but submitted that driver of the vehicle allowed unknown person to travel in the car and failed to take reasonable care and safeguard the vehicle from loss and due to negligence of the driver of the car, vehicle was stolen, which amounted to violation of terms and conditions of the policy. It was further submitted that driver himself handed over keys of the car to unknown person and prayed for dismissal of complaint. Learned District Forum after hearing both the parties partly allowed complaint and directed OP to pay 75% of the insured amount Rs. 5,00,000/- along with 8% p.a. interest and further granted cost of Rs.5,000/-. Appeal filed by the OP was allowed by learned State Commission vide impugned order against which, this revision petition has been filed.

4. Learned Counsel for the petitioner submitted that inspite of no evidence of handing over keys by driver of the vehicle to unknown person, learned State Commission committed error in allowing appeal and dismissing complaint; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed. 5. Driver of the vehicle Tarsem Singh lodged report on 16.1.2008 and submitted that while returning back, he gave lift to one Sardar, aged 30 years. He further mentioned in the report that he along with that person took meals at Sukhdev Dhaba and came near the vehicle where it was parked. At that time, he told unknown person that he would be returning after attending nature’s call. That unknown person asked him to give keys of the car so that he may sit in the vehicle. It was further mentioned in the report that when he returned back to parking place after attending nature’s call, he did not find Scorpio. By perusal of FIR it may be inferred that either Tarsem Singh handed over keys of the vehicle to unknown person, who was coming with him or he left keys in the vehicle and unknown person sat in the vehicle when Tarsem Singh went for attending nature’s call.

6. In the complaint filed before District Forum, complainant purposely not mentioned facts of FIR that some unknown person was given lift by driver TarsemSingh who has stolen the vehicle when Tarsem Singh went to attend call of nature. Even in the affidavit filed before District Forum, Tarsem Singh has purposely suppressed facts mentioned in the FIR about giving lift to the unknown Sardar of about 30 years of age. 7. Perusal of investigation report prepared by Royal Associates reveals that Tarsem Singh improved his statement before the Surveyor and submitted that other person also took meals with him at Sukhdev Dhaba. Later on, he locked the vehicle, got keys with him and went to bathroom and then another person fled away with Scorpio. In FIR it has nowhere been mentioned that Tarsem Singh locked the vehicle and kept keys with him, but perusal of FIR reveals that either he left the keys in the vehicle or vehicle was not locked and unknown person was sitting in the vehicle when Tarsem Singh went for attending nature’s call. Had he been in possession of key, he should have mentioned in FIR and should also have handed over to Police along with FIR.

8. Learned State Commission has not committed any error in holding that driver of the vehicle failed to take reasonable steps of safeguarding the vehicle, which amounted to violation of Condition No. 5 of terms and conditions of the policy. As driver of the vehicle was himself guilty and negligent which amounted to violation of the terms and conditions of policy, we do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed.

9. Admittedly, District Forum allowed 75% of the claim on non-standard basis holding that there was breach of condition of policy. If there was no breach of condition of any policy, complainant should have filed appeal for claiming 100% value of the vehicle and in such circumstances, it can be very well be inferred that complainant’s driver violated terms and conditions of the policy and District Forum committed error in allowing complaint partly.

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PRESIDING MEMBER

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( DR. B.C. GUPTA )

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 160 OF 2013

(From the order dated 06.12.2010 in C.C. No. 33/2009 of the State Consumer Disputes Redressal Commission, Andhra Pradesh)

With IA/1623/2014 (C/Delay) IA/1624/2014 (Placing Add. Documents)

Bonda Kasi Annapurna W/o late B.V.V. Nageswara Rao R/o D. No. 1/11, Saripalli, Ganapavaram Mandal, West Godavari District Andhra Pradesh …Appellant/Complainant Versus 1. The Branch Manager Bajaj Allianz General Ins. Co. Ltd. VIP Road, CBM Compound, 3rd Floor, P.J. Plaza, Visakhapatnam – 530016 2. The Branch Manager Axis Bank, Chinamiram, Bhimavara, West Godavari District, Andhra Pradesh …Respondents

BEFORE

For the Appellant :Mr. G. Tushar Rao & Mr. D.S.V. Krishnajee Advocates

O R D E R

Appellant has filed this appeal against the order dated 06.12.2010 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (in short, ‘the State Commission’) in C.C. No. 33/2009 – Bonda Kasi Annapurna Vs. Br. Manager, Bajaj Allianz Ins. Co. Ltd. & Anr. by which, complaint was dismissed.

2. Brief facts of the case are that complainant’s husband B.V.V. Nageswara Rao had taken policy of Rs.25,00,000/- (Personal Guard - Individual Personal Accident Policy) for a period of 3 years from 8.12.2006 to 7.12.2009 from OP/Respondent No. 1. On 3.1.2008, complainant’s husband slipped from stairs and sustained injuries. Ambulance was called and while going to hospital, complainant’s husband died. Intimation was given to the OP and claim was lodged, but claim was repudiated. Alleging deficiency on the part of OP, complainant filed complaint with State Commission. OP resisted complaint and submitted that death of insured was not on account of accident and as there was no post-mortem report and no intimation to Police, prayed for dismissal of complaint. Learned State Commission after hearing both the parties dismissed complaint against which, this appeal has been filed along with application for condonation of 1163 days delay.

3. Heard learned Counsel for the appellant on application for condonation of delay.

4. Learned Counsel for the appellant submitted that delay occurred on account of financial constraints and as complainant was residing in remote areas, delay be condoned.

5. In application for condonation of delay, appellant submitted that order dated 6.12.2010 was received by Counsel for the appellant in first week of January, 2011, who sent it to local Counsel at Eluru, which was received by Counsel in second week of January, 2011. It was further submitted that appellant hails from an orthodox family and is from a very rural background. Her elder son is only earning member in the family, who has two daughters studying in 8th and 5th class respectively. Appellant due to financial misery could not find an advocate in Delhi and she was not able to travel to Delhi. With great difficulty, her elder son met the local counsel in 2nd week of July, 2013 and as per his advice, RTI information was obtained on 18.7.2013 and later on, local counsel at Eluru sent the documents with the court papers to counsel in Delhi in the last week of July, 2013. Due to financial problems, the complainant could visit Delhi in first week of March, 2014 and after that this appeal has been filed on 10.3.2014 and in such circumstances; delay of 1163 days for filing appeal may be condoned.

6. Perusal of application reveals that complainant’s son must be about 35 years and was the earning member. Complainant has nowhere stated in the application that she was not residing with her earning son; even then, no reasonable explanation has been given for condonation of inordinate delay of 1163 days. Merely because complainant was from rural background, inordinate delay of more than 1100 days cannot be condoned. Not only this, as per this application, documents were sent to Counsel in

Delhi in the last week of July, 2013; even then, appellant did not come to Delhi in time for filing appeal and appeal was filed in March, 2014. Thus, it becomes clear that there is no explanation at all for condonation of inordinate delay of 1163 days.

7. Learned Counsel for the appellant submitted that appellant has very good case on merits and in such circumstances, delay may be condoned. We do not agree with this submission of the learned Counsel for the appellant, as until and unless delay is condoned, merits of the case are not to be considered. 8. As there is inordinate delay of 1163 days, this delay cannot be condoned in the light of the following judgment passed by the Hon’ble Apex Court.

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. 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.”

11. 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.”

12. 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.

13. Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla

Industrial Development Authority observed as under: “ It is also apposite to observe that while deciding an

application filed in such cases for condonation of delay, the

Court has to keep in mind that the special period of limitation

has been prescribed under the Consumer Protection Act,

1986, for filing appeals and revisions in Consumer matters

and the object of expeditious adjudication of the Consumer

disputes will get defeated, if this Court was to entertain highly

belated petitions filed against the orders of the Consumer

Foras”.

Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 1163 days. In such circumstances, application for condonation of delay is dismissed. As application for condonation of delay has been dismissed, appeal being barred by limitation is also liable to be dismissed.

14. Consequently, the appeal filed by the appellant is dismissed as barred by limitation at admission stage with no order as to costs.

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( DR. B.C. GUPTA) MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

Revision Petition No. 3998 OF 2011 (Against the order dated 31.01.2011 in Appeal No. 646 of 2007 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai)

M Premalatha Wife of K S Manickam No. A 37, 2nd Cross, TVS Nagar ACF Post, Hosur Taluk Tamil Nadu Petitioner

Arivalagan Proprietor Sri Kumaran Auto Works Authorised Service Dealer for Eicher Vehicle NGO Colony Bus Stop Bagalur Main Road Hosur 635109 Tamil Nadu

The Manager Jayalakshmi Auto Works & Agencies (P) Ltd. Attur Bye Pass Road Pinangukarur Thottam Seelanaichenpatti Post Salem 636202 Tamil Nadu

The Marketing Manager VE Commercial Vehicles Ltd Plot no. 102, Industrial Area no. 1 Phithambur District Dhar (Madhya Pradesh) 454775 Respondents

BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA MEMBER

For the Petitioner Mr K V Jagdishavaran, Advocate

Pronounced on 12th June 2014

ORDER REKHA GUPTA

Revision petition no. 3998 of 2011 has been filed under section 21 (B) of the Consumer Protection Act, 1986 against the order dated 31.01.2011 passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai in Appeal no. 646 of 2007.

2. The brief facts of the complaint as per the petitioner/ complainant are that the petitioner/ complainant is the wife of K S Manickam, who has retired from his service. Since the petitioner’s husband has also retired, the petitioner and husband wanted to start a motor business, wherefrom they eke their life in the remaining period. The petitioner tried to purchase a Tempo Van and from out of its income they proposed to eke their life. The petitioner searched various makes of Tempo. Since the petitioner made enquiry with the 2nd respondent/ 2nd opposite party, the 2nd respondent advised the petitioner that Eicher Vehicle 11.10.G HSD Super Long RHD 1C GB (Turbo inter cooler) was the best vehicle and also advised that with the recommended laden condition the vehicle will give the mileage of 8 to 9 k m per litre. On hearing this petitioner purchased the vehicle Eicher 11.10 Turbo Inter Cooler bearing Engine no. E 483T30690168 andChasis no. 20GC30602742 bearing registration no. KA 05 AC 7277 on 27.08.2003.

3. The petitioner plied the vehicle and did periodical service with the 1st respondent/ 1st opposite party, who is the authorised service dealer of the 2 ndrespondent. The petitioner faced a problem that the mileage of her vehicle was only 5 k m per litre, the petitioner complaint repeatedly with the 1st respondent. They did not believe her. After two services the 1st respondent asked the petitioner to service the same with the 2nd respondent. Hence, the petitioner took the vehicle to 2nd respondent for servicing the same and rectify the defects. The 2nd respondent had checked up the Fuel Rotary Pump and affixed the same and asked the petitioner that the mileage will be improved. But the petitioner faced the same problem and on 31.01.2003 the petitioner’s vehicle broke down due to ceasing of engine, at Thoppur. Immediately the vehicle was sent to the 2nd respondent for rectification. The 2nd respondent did the recondition of the new engine and changed the Fuel Rotary Pump. After four months the petitioner faced the same problem of poor mileage and poor pick up and always the engine turned switch off. The petitioner complained of the same to the 2nd respondent for which the 2nd respondent dragged the matter for four months saying that the spares have to come from Chennai and after four months the 2nd respondent fixed the fuel pump of the petitioner’s vehicle itself on 13.05.2004.

4. But even afterwards the petitioner faced the same problem. When the petitioner sent a letter dated 28.06.2004 to the 3rd respondent/ 3rd opposite party by narrating the entire story, for which the 3rd respondent sent a service engineer and he took the vehicle to Chennai on 30.06.2004. On 04.07.2004 the Shree Motors of Chennai gave a report that they have carried out the necessary service and also rectified the observations. They stated in their report that the vehicle had poor mileage and poor pick up, while the vehicle was presented to them, it had only maximum pick up of 6 k m p h. They had adjusted the FIP timing and present the vehicle to check the mileage with the laden condition of 6.5 to 7 ton load. Even afterwards the vehicle had given mileage of 5.5 kmpl.

5. In the 1st week of August 2004, 2nd respondent had come to Hosur for advertisement and for demonstration of the Eicher Vehicle. At that time the petitioner and her family members were agitated in front of their camp. The 2nd respondent asked the petitioner to get the vehicle to Salem to rectify the problem. On 17.08.2004 the petitioner took the vehicle to 2nd respondent for service. The 2nd respondent had checked the fuel pump and asked the petitioner to ply the vehicle and even afterwards when the petitioner complained the same problem the 2nd respondent gave the gear box and asked the petitioner to change the same at Hosur with the 1st respondent. The 1st respondent had changed the gear box. But the same did not belong to the vehicle Eicher Turbo it belonged to some other model. The gear box affixed by the 1st respondent given by the 2nd respondent did not belong to the petitioner’s vehicle’s model.

6. The petitioner continued to have the same problem of poor mileage and poor pick up. The petitioner did not expect such a defective manufacture by the 3 rd respondent and did not expect such a poor lethargic and unresponsive service from the 1 st and 2nd respondent. The petitioner purchased the same to get income from out of which to eke their life. But due to the defective product and the deficiency of service of the respondents, the complainant plied the vehicle only between her house and the workshop. She did not get any income from out of which even though the respondents have given the guarantee of 12 months for this vehicle. The 2nd respondent always dragged the petitioner from here and there.

7. It was, therefore, prayed that the District Forum may be direct the respondent to:

(a) To replace the defective vehicle sold to the petitioner with an un-defective one; (b) Pay the loss of earning and the amount of instalments paid to the financiers to the tune of Rs.2,00,000/- (Rupees two lakh only); (c) Pay Rs.2,00,000/- towards mental agony and physical strain suffered by the petitioner; (d) Award cost of the complaint and legal notice etc., and (e) Award such other relief or relieves as this District Forum may deem just to the circumstances of the dispute and thus render justice.

8. In their written statement before the District Consumer Disputes Redressal Forum, Dharmapuri at Kirshnagiri (‘the District Forum’) filed by respondent no. 2 and adopted by respondent no.1 and 3, it was stated that petitioner have never complained about any drop in mileage. It is only petitioner’s husband who made a complaint that he was not satisfied about the mileage given by the vehicle.

9. As a matter of fact the vehicle was subjected to pre-delivery inspection-cum- service on 23.08.2003 at the workshop of the 2nd respondent at Salem when it had already run a total kms of 1564, which was the distance covered from the factory at Madhya Pradesh to Salem. The next service was done on 18.09.2003 at the workshop of the 1st the respondent at Hosur when the vehicle had travelled a total kilometre of 5225 though the said service was done even by 5000kms. The third service was done on 20.11.2003 when the vehicle had covered a total km of 17886. The fourth service was done on 02.12.2003 at the Salem workshop of the 2nd respondent when the total km run was 20,286. The fuel rotary pump was duly checked up and refitted. The fuel rotary pump was sent for recalibration to Mico authorised dealer at Salem and after recalibration, the said Mico dealer reported that the pump was in good condition and that it did not suffer from any defect whatsoever. Subsequently eleven periodical services were done on various dates about which the petitioner knows very well. On 31.01.2004 the engine of the vehicle was affected badly because of the over running of the same by the driver of the petitioner as a result of which the engine accessories were changed free of cost and the engine was fully serviced at free of labour though it was not obligatory on the part any of the respondents to do it.

10. It was repeatedly advised by the respondents that the vehicle was not being properly handled and any complaint regarding the efficiency should only be due to the driver’s fault and condition of the road and load. The petitioner’s husband was also totally convinced with what was explained to him and he had himself expressed satisfaction about the performance of the vehicle. On 17.08.2004 when the vehicle was subjected to a mileage test, it was demonstrated to the petitioner’s husband that while the average fuel consumption was 8.29 km per litre when the vehicle was in an unladen condition, the same wag 7.04 km per litre in laden condition with a weight of 10,420 kgs which includes the weight of the vehicle also.

11. Subsequent to the issue of the notice dated 08.11.2004, the vehicle was dutifully serviced at Sree Motors at Madras an authorised service dealer of the respondent no. 3.

12. It was true that the petitioner and her family members indulged in agitation in the first week of August 2004. It was nothing but an unlawful act. They came with a pack of rowdy elements and took law into their hands by surrounding the employees of the 2nd respondent and were making unnecessary threat and abusive statements. At last, not being able to bear with their atrocious activities, a customer of the respondents reprimanded all of them and in fact advised the employees of 2 nd respondents to lodge a complaint with the police. But out of sympathy and good gesture, no complaint was preferred against them for the offences committed by them.

13. On 23.09.2004, the gear box of the vehicle was replaced in order to satisfy the petitioner’s husband though it was not required at all and existing gear box was in a good condition. It is not only false but also fraudulent on the part of the complainant to allege that the gearbox with which the earlier one was replaced was not the make of the 3rd respondent. There was no necessity for the respondents to either give or recommend any part manufactured by some other company.

14. On top of all the petitioner is not a consumer at all as per the definition of the Consumer Protection Act since she has purchased the vehicle for commercial use. The complaint is not maintainable as per the Consumer Protection Act. There is no question of any deficiency of service on the part of respondents 1 to 3. The respondents are at a loss to know as to what the petitioner means by “unfair trade practice”. The respondents have been practicing their trade in the most fair and ethical way and each one of them had got a reputation of their own.

15. The District Forum vide its order dated 21.09.2007 while allowing the complaint held that:

“ admittedly the first and the second opposite parties rendered service in repairing the vehicle. Even then there is poor mileage and the said complaint admitted by the opposite parties was towards to the third opposite party and his reply is still awaited. The opposite parties taken a stand is that the driver of the complainant is at fault, is not the correct proposition that the opposite parties 1 and 2 had ventured to change the gear box and to change the fuel pump and other services. If the opposite party was blaming the driver, but on the contrary the opposite party had not employed a qualified driver and taken a test drive along with the laden weight and not proved the fuel efficiency of vehicle. As such the vehicle is fuel deficient as contended by the complainant merits acceptance. The second opposite party forwarded the complaint to the third opposite party - manufacturer. The third opposite till date not replied amounts was is deficiency of service. In the above circumstances the complainant has established that there is deficiency of service on the part of the opposite parties and we allow the complaint.

In the result, the complaint is allowed. The third opposite party is directed to (i) to replace the defective vehicle and (ii) the opposite parties 1 to 3 individually or jointly to pay a sum of Rs.50,000/- as compensation for mental agony and (3) to pay a sum of Rs.5,000/- towards costs. The payment dues instalments, loss of income are uncorroborated no award passed. These awards 1 to 3 shall be paid within a period of six weeks from the date of receipt of this order. Failure compliance entails interest at 9% per annum, thereafter till realisation”.

16. Aggrieved by the order of the District Forum, the respondent nos. 2 and 3 filed an appeal before the State Commission. The State Commission observed that:

“the District Forum based upon Ex. A1 to Ex A 15, as well as Ex B 1 to Ex B 8 while assessing the case of the parties, felt that the first and second opposite parties rendered service in repairing the vehicle, however, despite that fact that, there was poor mileage, for which, the opposite parties should be held responsible, that in view of the frequent taking of the vehicle to the opposite parties, for repairing or service, that would prove, there was no fuel efficiency, thereby the complainant had established, the deficiency of service. In this view, allowing the complaint, a direction was issued against the third opposite party, to replace the defective vehicle, issuing further direction to all the opposite parties, individually and jointly to pay a sum of Rs.50,000/- as compensation, in addition to pay a sum of Rs.5,000/- which is challenged by second and third opposite parties alone in this appeal.

The petitioner who was the first respondent chooses to remain ex parte. The State Commission note that the first respondent, who is the complainant, though served, has not appeared before this Commission to defend the judgment or oppose the appeal and therefore, this Commission is constrained to dispose the case on merit, based upon the available materials. The State Commission vide order dated 31.01.2011 allowed the appeal and set aside the order of the District Forum. The State Commission held that “the complainant has not produced, either the manual of the vehicle, which may indicate, what was the fuel efficiency declared or has not produced any brochure or advertisement, wherein the opposite parties would have declared about the mileage, thereby attracting the purchasers or consumers. In that case, if the vehicle has not given the assured mileage, as per the Brochure, issued by the third opposite party, then we would come to the aid of the purchaser, to replace the vehicle, not otherwise. It is the specific case of the opposite parties that they never promised that the vehicle would give 8 to 9 kms per liter. In the absence of any such assurance by the opposite parties or in the absence of any such advertisement by the opposite parties, for fuel deficiency, if any, ordering replacement of the vehicle is unjust, since the efficiency of the vehicle especially this kind of goods carrier, would depend upon not only the road condition, weight, mode or method of driving such as frequently changing the gear, suddenly giving acceleration etc., The complainant has also not filed any expert opinion indicating, what kind of mileage is expected, from this kind of vehicle. Even assuming that reasonable mileage is expected as claimed by the complainant 8 to 9 kms per liter, some of the documents prove that the vehicle has given such mileage and therefore, ordering replacement of the vehicle is not proper.

As seen from Ex.B1, mileage check-up said to have been done by one Kumaran Auto Works was 5 kms, when the vehicle had run 17,786 kms. As seen from Ex.B2, the mileage was worked out as 6.1 kms., Ex.B3 says at some point of time, mileage worked out 8.28 kms., and 7.41 kms per liter. Further, as seen from Ex.B8, wherein the complainant or her husband, signed fuel average was worked out at 7.04 kms, at the average speed of 55 to 60 kms. If further disclosed, when the vehicle was unladen condition, it had given 8.29 kms., satisfying, the customer also signed. Therefore, it should be construed, based upon, unquestionable documents, in the absence of any other positive document on the side of the complainant, that there was reasonable mileage and when the opposite parties have not promised or assured any mileage, for the mileage deficiency or efficiency, ordering replacement of the vehicle in the absence of manufacturing defect, may not be legally sound, which was not properly considered by the District Forum. This Commission as well as the National Commission, has repeatedly held that if a consumer purchased some machineries and some parts, if it was found as manufacturing defect, that part alone can be replaced and ordering replacement of the entire machinery will be prejudicial to the interest of manufacturer, that too, when a manufacturing defect is not made out. For the reasons recorded by us supra, when the opposite parties have not committed any deficiency or negligent act, and when the complainant has not proved manufacturing defect, the order of the District Forum is erroneous, liable to be set aside.

In the result, the appeal is allowed, the order of the District Forum in OP No.70/2004, dated 21.09.2007 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost, throughout”.

17. Hence, the present revision petition. 18. The main ground for the revision petition are as under:  Without appreciating the facts and circumstances leading to the present case, the State Commission allowed the first appeal filed by the respondent nos. 2 and 3 herein. Further, the State Commission observed that if certain part of the engine is defective, the consumer is entitled for replacement of that part alone, and not entitled to replacement of the entire vehicle. Unless it is shown that the defective parts made the vehicle not only immobilize at present but also that would immobilize the vehicle in future. In the present case, the State Commission has not appreciated the contention made by the petitioner that the gear box affixed by the respondent no. 1 herein (First opposite party therein) given by the respondent no. 2 herein (second opposite party) was not at all belonged to the complainant’s vehicle model and it belonged to some other model.  The State Commission was not correct in allowing the first appeal observing that the vehicle was taken to the service providers for free service, frequently for replacement of certain spare parts alone will not take up or compel us to come to a conclusion that the vehicle was having manufacturing defect or other defects which cannot be rectified at all or narrating a replacement of the vehicle. The State Commission allowed the first appeal without appreciating the contention made by the petitioner here. Though it was belonged to same problem of poor mileage and poor pick up and the petitioner did not expect such a defective vehicle manufactured by respondent no. 3, herein (third opposite party) and did not expect such a poor lethargically irresponsive service from the 1 st and 2nd opposite parties (respondent no. 1 and 2 herein). 19. Along with the revision petition, the petitioner has filed an application for condonation of delay. Vide order dated 13.01.2012 petitioner was directed to amend the application for condonation of delay as in the first application no period of delay had been mentioned. The application for condonation of delay states that there is a delay of one day in filing the present revision petition. On the other hand, as per the office report, there is a delay of 184 in filing the present petition. It was stated by the counsel for the petitioner that the certified copy of the impugned order was received by the petitioner on 09.09.2011. Under these circumstances, Registrar of the State Commission Tamil Nadu was directed to send a report specifically stating as to on which date the certified copy of the order was dispatched to the petitioner and when the same was received by the petitioner. 20. The report dated 10.04.2013 has been received from the Registrar, State Commission Tamil Nadu which reads as under: “With reference to the letter above cited, I am to state that the order in FA no. 646 of 2007 dated 31.01.2011 on the file of the State Commission, Chennai was made ready on 10.03.2011. The free copy of the order was received by the Counsel for the appellant (Jayalakshmi Auto Works and Agencies (P) Ltd., Salem and Eicher Motors Ltd. Dhar) by hand on 14.03.2011 and since the counsel for respondent not turned up to receive the free copy of the order, the same was sent through courier to the respondent/ party (M Premalatha, Hosur) on 07.09.2011.

In this connection, I am to state that the usual practice being followed by this Commission in delivery of free copy of orders is that, whenever, the parties represented their cases through Counsel, then the order copy will be delivered to the respective counsel by hand without sending the same through post directly to the parties. The particulars of the case for which, free copies are made ready will be displayed in the Notice Board and the concerned counsel will get the free copy by hand from office. The free copy will be sent to the address of the parties through post only when the case are represented by the concerned parties in person or when the counsel engaged by the parties not turned up to receive the order copy”.

21. We have heard the learned counsel for the petitioner and have also gone through the records of the case carefully. 22. As per the revised application, the reasons given for the delay are as follows: “Hon’ble Commission vide order dated 13.01.2012 directed the applicant to file the fresh application for condonation of delay explaining the reasons for delay. It is submitted that the State Commission has passed the impugned order dated 31.01.2011 thereby allowed the first appeal being FA no. 646 of 2007 filed by the respondent nos. 2 & 3 herein and the certified copy of the said impugned order dispatched by the Registry of the State Commission was only on 07.09.2011 and received on 09.09.2011, a true and correct copy of the envelope containing the date dispatch is annexed. After that on 25.09.2011 the petitioner herein consulted the local lawyer to file an appeal before the National Commission. On 10.10.2011 the petitioner herein has consulted and sent the papers to the lawyer at Delhi for an opinion to file an appeal before this Commission against the impugned order. On 30.10.2011 after obtaining the opinion, the petitioner has sent the necessary papers and vakalatanama to file a revision before this Commission in Delhi. On 20.11.2011 the counsel on record at Delhi drafted the petition and same has been sent to the local lawyer for finalization. On 09.12.2011 the present revision petition was filed by the petitioner herein. Hence, there is a delay of 1 day in filing the present revision petition before this Commission which is neither intentional nor wanton but occurred due to the circumstances stated above”.

23 From the above it is seen that while it is true that the certified copy of the order may have been received by the petitioner on 07.09.2011, thereafter also, the petitioner took more than three months to file the revision petition. There is no specific reason given to explain the day to day delay from 07.09.2011 to 09.12.2011. It is also seen that having got the order in their favour in the District Forum the petitioner chose not to appear before the State Commission to defend the judgment or oppose the appeal. Counsel for the petitioner could not also deny that the petitioner had knowledge of the filing the appeal due to the notice served to the petitioner. The Counsel could not also deny that they were not aware of the practice being followed by the State Commission that the free copy of the orders was handed to the counsel. It is quite apparent that neither the petitioner nor any one on his behalf made any enquiries regarding the progress of the appeal before the State Commission. The petitioner has shown a very casual, lackadaisical and negligent approach in pursuing this case. The order in FA no. 646 of 2007 was ready on 10.03.2011 and could have been collected by the petitioner herself or by someone authorized by her. She cannot now take advantage of her lack of action to plead that limitation from 07.09.2011.

23. At the same time, it is also well settled that “sufficient cause” with regard to condonation of delay in each case, is a question of fact.

24. The Apex Court In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has laid down:

“ 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”.

25. In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held: “ The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”.

26. 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.”

27. Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 184 days in filing the present revision petition. The applications forcondonation of delay are without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.5,000/- (Rupees five thousand only).

28. Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer Legal Aid Account of this Commission’ within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

29. List on 25th July, 2014 for compliance. Sd/- ..……………………………… [ V B Gupta, J.]

Sd/- ……………………………….. [Rekha Gupta]

Satish NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION No.3563 OF 2013 With I.A. No.2489 of 2014 (for seeking permission to file additional documents)

(Against the order dated 10.7.2013 in FAIA No.538 of 2013 in FASR No.7027 of 2011 of the State Commission, Andhra Pradesh)

1. G. Suseela W/o Lagte V.S. Prasad, R/o 2-2-18/18/4/51, Second Floor, Indraprastha Colony, Bagh Amberpet, Hyderabad, Andhra Pradesh

2. V. Ramya D/o Late V.S. Prasad R/o 2-2-18/18/4/51, Second Floor, Indraprastha Colony, Bagh Amberpet, Hyderabad, Andhra Pradesh …Petitioners

Versus

1. Dr. P.L. Chary, M.S. (General Surgery) R/o H. No.2-2-18/20/5, D.D. Colony, Bagh Amberpet (1-14), Opp. Road Institute of Hotel Management(IHM) Hyderabad, Andhra Pradesh

2. Sai Vanu Hospital Limited, D. No. 1-2-365/36/6&7, Ramakrishna Mutt Road, Opp. Indira Park, Domalguda, Hyderabad – 500029 Andhra Pradesh

3. Care Hospital Road No.1, Banjara Hills, Hyderabad, Andhra Pradesh …Respondents

BEFORE:

HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioners : Mr. Suyodhan Byrapaneni,Advocate

Pronounced on: 13th June, 2014

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

Being aggrieved by impugned order dated 10.7.2013, passed by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (for short, ‘State Commission’), Petitioners/Complainants have filed the present petition under Section 21(b) of Consumer Protection Act, 1986 (for short, ‘Act’). 2. Brief facts are that Shri V.S. Prasad-Complainant (since deceased) filed a consumer complaint under Section 12 of the Act against the Respondents/Opposite Parties alleging medical negligence on their part.

3. The complaint was contested by the respondents who filed their respective written statements before the District Consumer Disputes Redressal Forum-I, Hyderabad (for short, ‘District Forum’). 4, On 30.8.2011, the District Forum dismissed the complaint as there was no representation on behalf of complainant. 5. Aggrieved by the order of District Forum, present petitioners (who are legal heirs of the deceased complainant) filed an appeal before the State Commission. Alongwith it, an application seeking condonation of delay of 430 days was also filed which was accompanied by the affidavit of petitioners’ counsel, namely Shri N. Ramesh Kumar, Advocate. 6. The State Commission was of the considered view that explanation given by the petitioners was not reasonable and believable and also was not sufficient. Consequently, the application for condonation of delay was dismissed. With the result, the appeal was also rejected. 7. Hence, this present petition. 8. We have heard learned counsel for the petitioners and have also summoned the original record of both the fora below and gone through the same. 9. It is contended by learned counsel for the petitioners that State Commission had failed to consider the just explanation given in the application seeking condonation of delay in representing the appeal. It is further contended that the delay which has occurred in representing the appeal before the State Commission is not attributable to the petitioners and it had only occurred due to inadvertence of the Advocate. In support, petitioners have relied upon following judgments of the Apex Court; i) N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7 SCC 123 and

ii) G. Ramegowda, Major and others Vs. Special Land Acquisition Officer, Bangalore, 1988) 2 SCC 142.

10. Alongwith present revision, petitioners have filed an application seeking permission to file additional documents. 11. The documents which petitioners now want to place before this Commission, pertain to the period ranging from August, 2011 to October, 2011. All these documents were in existence when the impugned order was passed. There is no explanation as to why these documents were not filed before the State Commission. Moreover, no reason whatsoever has been given in the application seeking permission to file these additional documents. Accordingly, application for filing additional documents stand rejected. 12. Admittedly, the complaint filed by the petitioners was dismissed by the District Forum, since on the date of hearing before the District Forum the complainants were not present. 13. The State Commission has non-suited the petitioners on the ground that there was delay of 430 days in filing the appeal before it. In the entire application for condonation of delay, it had been nowhere mentioned as to when and how the petitioners, got the knowledge of the impugned order. 14. The State Commission in its impugned order has observed; “ 1. The petition is filed seeking condonation of delay of 430 days in

representing the revision petition on the premise that the returned bundle was misplaced with the disposed of bundles in the office and they could not be traced it and on 2.12.2012 when the petitioner was shifting the disposed bundles they traced the bundle and in the process delay of 430 days has occasioned.

2. The respondent has resisted the petition and denied the statement of the petitioner that bundle was mixed with the disposed bundles. The petitioner failed to explain the reasons for non-resubmission from the period 2.12.2012 to 7.3.2013 and in the absence of the same, the petitioner is prayed for, to be rejected.

3. The point for consideration is whether the delay in filing appeal deserves to be condoned?

4. The petitioner has stated that on account of mixing of bundle with the disposed bundles, the bundle could not be traced till 2.12.2012. The counsel for the respondent has contended that the petitioner has not explained the reasons for delay in resubmitting the revision petition”. It further observed;

“ 8. The discretion conferred on this court is a judicial discretion and is

exercised to advance justice and even if there is a strong cause for acceptance of the appeal that would not be a ground for condoning the delay. Consumer Protection Act provides for speedy redressal to consumer disputes. The delay cannot be allowed to occur in a routine way and sufficient cause should be made out with specific reasons given supported by material; and that the discretion for entertaining the appeals filed beyond the period allowed will not be exercised in a light and routine manner.

9. In “Abdul Hafeez Vs. State Bank of Hyderabad”, II(2013) CPJ 285 (NC), the Hon'ble National Commission held:

“9. Hon'ble Apex Court in I (2012) CLT 338 (SC)= II (2012) SLT 312 =(2012) 3 SCC 563, Post Master General & Ors. V. Living Media India Ltd. & 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 department.”

10. This Commission is of considered view that the explanation tendered by the petitioner company is not reasonable and believable. The explanation for condoning the delay in filing the appeal is not sufficient. For the foregoing reasons the petition is liable to be dismissed.”

15. We fully agree with the reasoning given by the State Commission that there was delay of 430 days in filing the appeal before it. Moreover, the conduct of the petitioners is so negligent, that firstly, they did not pursue their complaint before the District Forum in a diligent manner, since their complaint was dismissed for non-appearance. Even thereafter, complainants did not become wiser and filed the appeal before the State Commission in a very careless and casual manner with a delay of 430 days. Moreover, a valuable right has accrued in the favour of the respondents which cannot be taken away due to the negligent act on the part of the petitioners. 16. Under these circumstances, State Commission rightly refused to condone the long delay of 430 days. 17. Accordingly, we do not find any illegality or infirmity in impugned order passed by the State Commission. Since, there is no merit in this revision petition, the same stand dismissed.

18. No order as to costs. 19. Original record of both the fora below be sent back forthwith.

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

…………………………………………… (REKHA GUPTA) MEMBER Sg.