National Consumer Disputes Redressal Commission New Delhi s3

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION No. 1953 of 2011 (From the order dated 28.01.2011 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in Appeal no. 1430 of 2009)

Kishore Shriram Sathe Resident of 7 Anand Apartments Shridhar Nagar, Chinchwad Pune – 411003 Petitioner

Versus

Mr Vivek Gajanan Joshi Resident of 6 Hindu Middle Class Society Opp. Apple Road, Deccan Gymkhana Pune – 411004 Respondent

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

For the Petitioner Mr Ajay Vikram Singh, Advocate

Pronounced on 1 st October, 2013

REKHA GUPTA

Revision petition no. 1953 of 2011 has been filed against the judgment and order dated 28.01.2011 passed by the Maharashtra State Consumer DisputesRedressal Commission, Mumbai (“the State Commission’) whereby allowed the first appeal no. A/09/1430.

The facts of the case as per the petitioner/complainant are that on or about 15.03.1988 the respondent/ opposite party offered to sell the residential flat in a building named as Bhagirathi Apartments situated at S.No. 272, plot no. 13, Chinchwad Taluka, Haveli, District Pune.

The petitioner was desirous to purchase a flat for residential purpose. The petitioner on knowing about the construction of a building named ‘Bhagirathi Apartments’ approached the respondent on or about 15.03.1988 with a view to purchase a residential flat in the above said building. On knowing the intention of the petitioner to purchase the residential flat, the respondent offered to sell flat no. 7 situated on 2nd floor of building Bhagirathi Apartments, Shridharnagar, Chinchwad, Pune 411 033.

The petitioner and the respondent made and executed an agreement dated 07.04.1998, registered in the office of Joint Sub-Registrar, Haveli no. 2, Pune at S No. 5294. By the said agreement the respondent agreed to sell and the petitioner agreed to purchase the said flat for a total consideration of Rs.1,68,500/-. The respondent by the said agreement assured to give possession of the said flat on or before 31.10.1988. The petitioner has paid to the respondent Rs.1,40,000/- towards part payment as demanded from time to time.

Even after the stipulated date of possession respondent failed to construct the building wherein residential flat was promised to be allotted to the petitioner.

Therefore, the petitioner on various occasions persistently made demands orally and in writing either to give the possession of the flat or refund the amount received from the petitioner. The respondent on every such occasion gave false assurance to refund the amount of consideration of Rs.1,40,000/- along with the interest as agreed by the said agreement.

The respondent sent letters dated 24.01.1992, 10.03.1992 assuring the petitioner that certain steps shall be taken whereby the petitioner need not suffer and worry. However, again the respondent did not act as per his assurances.

The petitioner therefore recently sent letter dated 01.02.2005 to the respondent demanding refund of said Rs.1,40,000/- along with interest and compensation. The respondent received said letter on 04.02.2005 and showed his willingness before Mr Mehendall, the member of All India ConsumerPanchayat, Pune, to refund the entire amount with interest @ 15% per annum and compensation within 15 days. However, this time also the promise of respondent proved to be false one.

Thus the respondent has wilfully failed and neglected to refund the amount of part consideration of Rs.1,40,000/- received from the petitioner or to give possession of said flat till date.

The cause of action to file this complaint first arose on 31.01.1988 when the respondent failed to give possession of the said flat and thereafter on various occasions from time to time in spite of his promises. The respondent on or about 04.02.2005 again promised to refund the said due amount to the petitioner but did not do so. The cause of action is of continuing nature and therefore this complaint is within limitation period. Relaying on the various assurances of possession of said flat or refund of said amount given by the respondent the petitioner did not file the complaint till date. It is, therefore, kindly prayed that the respondent be ordered to:

(a) To refund to the petitioner Rs.1,40,000/- along with interest @ 18% from the date of payment till its realisation; (b) To pay Rs.2,00,000/- to the petitioner towards compensation for mental agony, inconvenience to the petitioner and his family members, physical discomfort, loss of benefit of rebate under Income Tax Act, interest paid litigation expenses, stamp duty, registration fees etc. (c) Any other order in the interest of justice be kindly passed.

In their written version filed by the respondent/ opposite party has stated that the respondent has completed construction of building and it was ready for giving possession. However, the petitioner did not pay the balance amount. Therefore, it was not possible to give possession to the petitioner. In spite of various intimations the petitioner avoided making payment and delayed to take possession and in the meantime dispute arose between respondent and land owner. Therefore, the respondent failed to give possession of said flat to the petitioner.

M/s Sayali Builders was a partnership firm. The respondent was a partner of said firm and other partner was Mr Eknath Daguji Nikam. A land situated at S No. 272, Plot no. 13, admeasuring 433 sq, mtr. Out of total 586 sq mtrs., was owned by Mr Eknath Daguji Nikam and others. Mr Eknath Daguji Nikam and others transferred the development rights in the said land to M/s Sayali Builders vide Development Agreement dated 25.02.1987 and the land owner of said land MrEknath Daguji Nikam was himself a partner of the said partnership firm. The land owners of said land gave power of attorney to the opposite party and EknathNikam for development of said land and to act as per the Development Agreement. In pursuance to the said power of attorney M/s Sayali Builders developed the said property and constructed 7 residential flats and 3 commercial units. Meantime, petitioner was in need of a flat therefore he contacted the respondent and agreed to purchase flat no. 7 for Rs.1,68,500/-. Accordingly, M/s Sayali Builders executed and registered an agreement dated 07.04.1988 and agreed to give possession upto 31.01.1988. When the construction of said building was being completed M/s Sayali Builders informed the petitioner to take the possession after making balance payment. However, the petitioner avoided to pay the amount and to take possession of said flat. Meantime, dispute arose between M/sSayali Builders and said land’s original owner Nikam family therefore, the land owners created a dispute by cancelling the development agreement and power of attorney on 25.09.1989 and said land owners illegally took possession of the said building and flat no. 7 which had been allotted to the petitioner. The respondent informed about it to the petitioner by meeting him personally and by sending letter and informed that respondent is trying to give possession of the said flat to the petitioner. Meantime, the respondent suggested to the petitioner to take possession of the said flat from Civil Court. However, the petitioner did not file any suit in the civil court till date. The petitioner M/s Sayali Builders on 07.04.1988 made and executed an agreement. However, the petitioner was required to file a complaint in consumer forum within limitation period. Petitioner did not file a complaint within the limitation period. Hence, it is time barred. Also petitioner executed agreement with M/s Sayali Builders, however, it is not made a party to the complaint. Therefore, there is bar to the complaint. Therefore, the complaint deserves to be dismissed.

The petitioner had filed the present complaint which came to be disposed of by the District Consumer Redressal Forum, Pune (“the District Forum”) on 23.10.2008. An order came to be passed directing the opponent to pay an amount of Rs.1,40,000/- together with interest @ 12% per annum. The rest of the claims made by the petitioner were rejected. The aggrieved opponent had preferred the first appeal before the State Commission. It came to be allowed by the order dated 21/04/2009 passed by the State Commission. The main order passed in the complaint was set aside. The record and proceeding was remitted to have the District Forum with the directions to hear the petitioner/ complainant afresh after giving opportunity to both the parties and to settle the dispute in accordance with law. It is under the aforesaid circumstances the District Forum dealt with the complaint afresh.

The District Forum vide order dated 03.11.2009 observed that:

“ Before the Hon’ble State Commission, it appears that plea of limitation was again raised by the aggrieved opponent. In addition to that another plea was raised that the complaint is not maintainable against the opponent. It is pointed out that the name of the opponent is given as a partner of SayliBuilder. The later Firm is not impleaded as opponent. Consequently therefore the failure to implead the Firm is fatal and therefore on account of non joinder of the parties the complaint was liable to be dismissed. On the aforesaid findings the Hon’ble State Commission was pleased to remand the complaint to this Forum for disposal in accordance with law, afresh.

On behalf of the opponent the aforesaid plea of non-joinder of the Firm was again raised before the Forum. It is not in dispute that the plea of limitation is again reiterated by the opponent. Shri. Joshi the learned Advocate who appeared on behalf of the opponent has urged before us that there are two technical pleas in the present case. Both of them go to the very root of the matter. They deal with the maintainability of the complaint. One of them is about the limitation and other being non joinder of the Firm. Again the observations made by the Hon’ble State Commission in its order dt.21/4/2009 are relied upon contending interalia that the Firm is a juristic person. The complainant is a consumer in relation to the Partnership Firm.

When the agreement between the Firm and the complainant had taken place, the opponent had styled itself as a partner of the Firm. The Firm was not sued but the opponent in his individual name is sued. That being the position there was no legal impediment for the opponent to take appropriate plea under Order XXX of the C.P.C. The fact therefore remains that Order XXX being enabling provision it does not prevent partners of a Firm from suing in his individual name and that the Firm is not a legal entity. We therefore find that the aforesaid findings recorded by the Hon’ble Apex Court way back in the year 1961 are squarely applicable to the facts of the present case. It is not necessary to make further observations in this regard”.

The District Forum then went on to consider and deal with the issue of limitation. The District Forum held that:

“ In the instant case what has happened is the agreement was duly registered on 7/4/1988. The payment from time to time was made by the complainant till 2/7/1990. The complainant was to be handed over possession of the said flat by the end of 31/10/1988. It may be worthwhile to mention that in the agreement dt.7/4/1988 the date of delivery of possession is not specifically provided. On the other hand in clause 9 thereof it was provided that the possession would be delivered after execution of the conveyance to the society. Then there are number of letters exchanged between the parties. In one letter dt.2/4/1988 the opponent has agreed to handover possession by the end of 31/10/1988. In the subsequent letters of 1992 and on 10/3/1992 the complainant was assured that no loss would be caused to him. There was litigation between one of the partner who incidentally was the owner of the land and the present opponent. The Development Agreement was probably terminated by the owner. The said owner had forcibly taken the possession of the flat. The efforts were made by the opponent to disposses the said partner – owner and to handover possession of the said flat to the complainant. In that background the complainant was assured in the letter dt.24/1/1992 that he shall not be liable to sustain any loss or damages. Meaning thereby the opponent had specifically admitted that the agreement would be complied with. It was only on 6/2/2005. The complainant was informed by other partner by name Shri. Nikam that there is no privity of contract between him and the complainant at the other vis a vis the said flat. It was only on this date i.e. on 6/2/2005 the complainant had learnt that the agreement in question was terminated orally by one Shri. Nikam, who was probably Partner of the opponent Firm. Now period of limitation for specific performance of the contract would begin to run from the date mentioned in the agreement. We have seen earlier that in the agreement dt.7/4/1988 there was no date fixed for performance of the agreement. The complainant had learnt that the said agreement was rescinded by letter dt.6/2/2005 only. The period of limitation would begin to run from that day. Obviously therefore reliance is placed on Article 55 of the Limitation Act by the learned Advocate for the complainant together with section 22 thereof is proper”.

The District Forum came to the conclusions that “in the instant case from the discussion made herein above it is apparent that for the first time the agreement of April 1988 was refused to be complied with by one of the partner of the Firm on 6/2/2005. It was from this date onwards that the period of limitation would begin to run. We therefore find that we have no other option but to adopt the reasoning and conclusions already arrived by us by earlier order dt.23/10/2008. We therefore proceed to pass the following order:

1. “The complaint is partly allowed.

2. The Opposite Party is hereby directed to refund to the Complainant, an amount of Rs.1,40,000/- together with interest thereon @ 12% p.a., as from the date of respective payments till realization thereof by the Complainant, within a period of two months from the date of this order.

3. Rest of the claims of the Complainant stands rejected.

4. No order as to costs”. Aggrieved by the order of the District Forum, the respondent filed an appeal before the State Commission. The State Commission while allowing the appeal has observed as under:

“ Opponent opposed the consumer complaint specifically raising contention that the agreement was with ‘Sayli Builders’, which is a registered partnership firm. The property belonging to one of its Partners, namely, Eknath Daguji Nikam, was given for development to said partnership firm as per agreement dated 25.02.1987. In all seven residential flats and three shops were to be constructed. Complainant was in need of a flat and therefore, contacted M/s.SayaliBuilders and agreed to purchase Flat No.7 for consideration of Rs. 1,68,500/- from said firm and entered into an agreement dated 07.04.1988. Sayali Builders asked the Complainant to take possession of the flat on payment of balance consideration. The Complainant avoided to take possession. In the meantime thereafter dispute arose between the Sayali Builders and the original land owners of the property and the original land owners cancelled the development agreement dated 25.09.1989 and also revoked power of attorney in favour of the Sayali Builders. Thereafter, those land owners also forcibly took possession of flat no.7. These developments were brought to the notice of the Complainant by the Opponent and it was also suggested to the Complainant to take possession through Civil Court. It is alleged that the consumer complaint is barred by limitation and furthermore the consumer complaint ought to have been filed against Sayli Builders and since said Sayali Builders is not joined as a party, the complaint is not tenable.

After hearing both the parties the Forum initially settled the dispute by an order dated 23.10.2008. The same was challenged by the Opponent in First Appeal no.1558/2008. Allowing the said appeal, matter was remanded back and it was also observed while disposing the appeal that Sayali Builders ought to have been made a party. The matter was remanded in view of those observations. It appears that thereafter Complainant did not take any steps to addSayali Builders as a party. The matter was re-contested on the basis of original pleadings, i.e. complaint and the written version. The matter stood disposed of by an impugned order, supra.

The Agreement in question dated 7th April, 1988, the copy of which is on record, is not in dispute. It can be seen that said agreement is entered with SayaliBuilders, the registered partnership firm and not with the opponent. Though Opponent was shown as the partner acting on behalf of said firm the complaint as drafted and to which the reference is made earlier, the Complainant did not allege that the agreement was with the partnership firm, but, described the Opponent as the builder and developer and stated that it is the Opponent who offered him a plot thereafter and an agreement dated 07.04.1988 was entered into. It shows that Complainant, since from the beginning did not want to bring a registered partnership firm M/s.Sayali Builders into picture as a defending party. In fact once the agreement is with the partnership firm, the service deficiency, if any, could be alleged only against the said firm and not against any individual. Had it been a fact that all the partners of M/s.Sayali Builders were joined as parties, the things could have been looked with difference but, it is not the case before us. Considering the provisions of Indian Partnership Act, inter se relationship between the partners of a firm is governed by the partnership agreement. Therefore, to file a consumer complaint in the personal name of the Opponent and that to describe him as a builder and developer who agreed to sell the flat, is per se not only contrary to the agreement dated 07.04.1988, but also against the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’ for brevity) and no consumer complaint for want of hiring of any service of the Opponent in his individual capacity would lie against the Opponent.

The Forum heavily relied upon the decision of Apex Court in the matter of Purushottam Umedbhai and Company V/s. Manilal and Sons, reported in 1961 AIR(SC) 325. It has only explained the scope of Order XXX of Code of Civil Procedure, 1908 and further explained that after incorporation of said Order in the scheme of Code of Civil Procedure, an enabling provision is made which permits the partners constituting firm to sue or be sued in the name of the firm. Provisions of Order XXX of Code of Civil Procedure 1908 are not made applicable to the consumer dispute under the Act as per Regulation No.26(1) of the Consumer Protection Regulation 2005 and it is mandate of law that, in all proceedings before the Consumer Forum, endeavour shall be made by the parties and their counsels to avoid the use of provisions of Code of Civil Procedure, except the one provided for.

To decide the inter se relationship as a consumer and service provider between the parties to consumer dispute one has to refer to a definition of “person” per section 2(1)(m) of the Act. It includes a firm registered or not. The phrase “deficiency” (Section 2(1)(g) of the Act) is defined as under:

“ deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.” (underlining provided).

Thus, it is clear that a registered partnership is recognized as a person vis-à- vis jurisdic person as a service provider and therefore, if the deficiency in service is to be alleged against the said registered firm the consumer complaint ought to have been filed against the said firm. It may be that the partners of said firm could be joined along with the firm, but, it is certainly not contemplated that a consumer complaint could be filed only against a person like an opponent against whom the action is brought in his personal capacity and certainly it is further not contemplated that only one partner of a partnership firm could face consumer complaint in the absence of the firm and other partners. Therefore, present consumer complaint suffers a vital defect and it cannot be proceeded against the Opponent.

From the statement made by the Complainant himself it could be seen that Complainant was well aware (as reflected from the correspondence since the year 1992 and from the averments made in the complaint) that no construction of the building was coming up and hence, it was not possible to get possession of the flat and demanded refund of the amount, i.e. consideration paid. In paragraph 9 of the complaint, supra, the Complainant alleged that by his letter dated 01.02.2005 which was received by Opponent on 04.02.2005, the opponent showed his willingness before Mr.Mahendall, the member of All India Consumer Panchayat, Pune, to refund entire amount with interest @15% per annum and compensation within 15 days. The complaint is also filed for refund of consideration only, thus, it is a money claim and at that point of time the Complainant already treated the original agreement to sell a flat or purchase a flat rescinded. Therefore, for said money claim no consumer complaint would lie.

A reference has been made to a letter dated 06.02.2005 addressed to the Complainant by one Shri S.E. Nikam (presumably land owner and one of the partners of Sayli Builders). The Forum referring to this letter in paragraph 13 of the impugned order made certain observations to the effect that “it was only on this letter date 06.02.2005 Complainant learnt that the Agreement in question was terminated – by one Shri Nikam who was probably partner of the opponent firm …………. The complainant had learnt that the said agreement was rescinded by letter dated 06.02.2005 only. The period of limitation would began to run from that day”

Such observation is a departure from the factual position and is a mis-statement of fact. The letter dated 06.02.2005 written by Mr. S.E. Nikam, supra, acknowledged the communication received from the Complainant dated 04.02.2002 and further informed the Complainant to explain to said S.E. Nikam as to under which authority he was claiming flat no.7 from Bhagirathi Apartment and further requested the Complainant to forward to him the necessary documents showing his interest or a claim in the said flat. Mr. S.E. Nikam also informed Complainant by said communication that there was no agreement between him and the Complainant at any time and there is no transaction of receiving money had taken place in between them. Thus, it is not the letter whereby any contract was rescinded by said Shri S.E. Nikam either on his behalf or on behalf of M/s.Sayali Builders.

As earlier recounted, Complainant was well aware from the correspondence from the year 1992 itself that the agreement to handover possession of the flat would not be materialized because no construction was at all coming up (as per case presented by the Complainant himself). He further restricted his reliefs to claim refund of the consideration paid i.e. `1,40,000/-. Therefore, the cause of action to file the consumer complaint arose in the year 1992 itself and thus, the consumer complaint filed on 17.01.2006 is barred by limitation in view of the Provisions of Section 24-A of the Act.

For the reasons stated above, we hold accordingly and pass the following order:

O R D E R (i) Appeal is allowed.

(ii) Impugned order dated 03.11.2009 is set aside and in the result Consumer Complaint No.19/2006 stands dismissed”.

Hence, this present revision petition.

The main grounds for the revision petition are as follows:

 The State Commission has ignored the fact that as per order XXX of CPC the partner of a firm can be sued in his individual name.  The State Commission has ignored the fact that the main reason of the CPC not being made applicable in its original form to the consumer proceedings is merely to avoid the technicalities of CPC which is very cumbersome and causes lot of delay.  Mr Eknath Dagdu Nikam, i.e., the other partner of Sayali Builder breathed his last on 06.05.1998 and the firm Sayali Builders had only two partners and as per Section 42 © of the Partnership Act with the demise of one partner the firm is dissolved and only Mr. Vivek Gajanand Joshi (Respondent) was left who can sue or be sued.  The State Commission has ignored the fact that the money was lying with the respondents and as such the cause of action for refund of aforesaid money deposited by the complainant is recurring and continuous.

We have heard the learned counsel for the petitioner and have also gone through the records of the case carefully.

The two main points raised by the petitioner in the revision petition are that whether one of the partners of the firm can be sued in his individual name and held responsible for the liabilities of the partnership firm with whom the agreement was entered into and secondly, whether the complaint had been filed within the limitation period. With regard to the first question it is seen from agreement placed on record that it was between Sayali Builders, a partnership firm registered under the Indian Partnership Act of 1932 and the petitioner. It is clearly mentioned in the agreement that Agreement of Development dated 20.06.1987 executed betweenShri Eknath Daduji Nikam, Shri Shanatram Eknath Nigam and Sou Sadhana Shantaram Nikam constitutes parternship firm between Shri Eknath Daduji Nikamowner of the land and the builder Shri Vivek Gajanand Joshi by the deed of partnership dated 14.06.1987. It also mentioned that builders had been granted power and authorities under the General Power of Attorney dated 10.12.1987 for enabling the builders to do various acts, deeds and things in the development of the said plot and in the allotment and/ or sale of flats and garages on which is known as ownership basis. It was in this capacity that the agreement had been entered into for Sayali Builders by Mr G G Joshi.

The petitioner had to be aware of these facts. As given in the written arguments by the respondent, the dispute arose between M/s Sayali Builders and the said land’s original owner Nikam Family, therefore the land owners created a dispute by cancelling the development agreement and power of attorney on 25.09.1989 and the said land owners illegally took possession of the said building and flat no. 7 which was allotted to the complainant. The respondent had informed the petitioner by meeting him personally and by sending letters that he is trying to give possession of the said flat to the petitioner. The respondent suggested that he would take possession of the flat from the civil court. However, the respondent did not file any civil suit in any civil court till date. This is also supported by the letter dated 24.01.1992, which has been placed on record by the petitioner which is from the respondent to the petitioner apprising of the problems of the partners as also cancellation of the agreement. The letter dated 25.06.2005 from Shri S E Nikam to the petitioner which is a response to the registered letter sent by the petitioner on 04.01.2002, merely says that there is no proof that the flat no. 7 in Bhagirathi Apartments was allotted to the petitioner and that he is not aware of any agreement/ deed executed or dealing with regard to the money transaction between the petitioner and Shri S ENikam. In the above-mentioned circumstances, we agree with the order of the State Commission where they have come to the conclusion that consumer complaint suffers a vital defect and it cannot be proceeded against the opponent.

With regard to the second question of limitation neither the facts mentioned in the complaint nor any argument made by the counsel for the petitioner justify the inordinate delay of in filing the complaint on 17.01.2006. As per the facts of the case the agreement for purchase of flat was signed on 07.04.1988. Whereas the agreement did not mention any date for handing over the possession, as per the petitioner he was to have been delivered the possession of the flat by end of 31.10.1988. He was made aware of the cancellation of the development agreement and power of attorney as also the fact that land owners have illegally took possession of the said building and flat no. 7 which was allotted to the complainant on 25.09.1989. In was in these circumstances, that in 2002 that he even written to Shri S C Nikam, the land owner. Even presuming that he was not aware of this fact immediately on cancellation, he has himself placed on record a letter from the respondent dated 24.01.1992 apprising of the circumstances. Therefore, the cause of action to file a consumer complaint arose in 1992 if not before, Hence, this consumer complaint filed only on 17.01.2006 is barred by limitation, in view of the provisions of section 24 (A) of the Act.

In discussing the import of the aforesaid section, the Apex Court has observed as under in the case of State Bank of India v B. S. Agriculture Industries(I) [(2009) 5 SCC 121]:

“ 7. The bank resisted the complaint on diverse grounds, inter alia, (i) that the complainant was not a consumer within the meaning of Consumer protection Act, 1986 (for short, ‘Act, 1986’); (ii) that the complaint was early time barred and beyond the period of limitation; (iii) that the bills and GR’s were returned to B.M. Konar, the Sales Manager of the complainant firm; (iv) that the drawee (M/s Unique Agro Service) had accepted the liability of payment of the bills to the complainant vide letter dated May 11, 1994 and also deposited a cheque to the complainant in that regard. 8. The District Forum framed two points for determination: (one) whether there is any deficiency on the part of the opposite party and (two) whether B.M. Konar was authorized agent in collecting the bills and GR’s from the Bank? Pertinently, despite the specific plea having been raised by the Bank that the complaint was time barred, point for determination in this regard was neither framed nor considered. 9. The District Forum held that there was deficiency in service by the Bank and that the Bank was liable to compensate the complainant and consequently, directed the Bank to pay to the complainant a sum of Rs. 2,47,154/- with interest @ 15% per annum from April 21, 1994 and Rs. 5,000/- as compensation. 10. As stated earlier, the State Commission affirmed the order of the District Forum and the National Commission also did not interfere with the concurrent orders of the consumer fora. 11. Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus: “24A. Limitation period – (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in subsection (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.” It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in section 24A is a sort of legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. 12. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of section 24A and give effect to it. If the complaint is barred by time and yet the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.

Learned counsel for the petitioner has also cited two judgments, pertaining to the National Commission as well as the Hon’ble Supreme Court of India. In the first case - Mopar Builders and Developers Pvt. Ltd., vs Unity Co-op Housing Society Ltd. (RP no. 2743 of 2010) is not applicable to the case on hand and second case pertaining to Lata Construction and Ors vs Dr Rameshchandra Ramniklal Shah also does not apply to the case on hand.

In view of the above, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is accordingly dismissed with cost of Rs.5,000/- (Rupees five thousand only).

Petitioner is directed to deposit the cost of Rs.5,000/- by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 22nd November 2013, for compliance. Sd/- ..……………………………… [ V B Gupta, J.]

Sd/- ……………………………….. [Rekha Gupta]

Satish NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2401 OF 2008 (From the order dated 17.04.2008 in Appeal No. 736/2008 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Air Deccan (Deccan Aviation Ltd.) Rep. by its General Manager (Legal) No. 35/2, Cunningham Road, Bangalore – 560052 …Petitioner/Opp. Party (OP)

Versus

1. Dinesh B.V. S/o Late Venkatramanaiah No. 553, 16th cross, CMH Road, Indiranagar, 2nd Stage Bangalore – 560008

2. Smt. Srimati W/o Late Venkatramanaiah No. 553, 16th cross, CMH Road, Indiranagar, 2nd Stage Bangalore – 560008

…Respondents/Complainants

BEFORE

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

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Ms. Radha, Advocate with

Mr. Maruti Rao, Advocate

For the Res. No. 1 : NEMO/Ex-parte

For the Res. No. 2 : Ex-parte

PRONOUNCED ON 1 st October, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This revision petition has been filed by the petitioner/OP against the order dated 17.04.2008 passed by the Karnataka State Consumer DisputesRedressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal No. 736/08 – Air Deccan (Deccan Aviation Ltd.) Vs. Dinesh B.V. & Anr. bywhich, while dismissing appeal, order of District forum allowing complaint was upheld.

2. Brief facts of the case are that Complainant no. 1/Respondent no. 1 and his mother, Complainant no. 2/Respondent no. 2 booked tickets with OP/petitioner for 19.11.2006 from Bangalore to Chennai. Complainants got checked their luggage and got boarding pass. After arriving in Chennai, they were unable to get their bag and on inquiry came to know that it was misplaced and accordingly airport authorities issued endorsement in that regard. The said bag was containing valuable clothes and other articles, but could not be traced. Alleging deficiency on the part of OP, complainant filed complaint. OP-petitioner resisted complaint and denied allegation of missing of the bag and further alleged that complainant has not mentioned the weight of the alleged baggage and prayed for dismissal of the complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay 400 US$ (Rs.15,804/-) along with Rs.1,000/- as litigation cost. Appeal filed by the petitioner was dismissed by learned State Commission against which, this revision petition has been filed.

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

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

5. Learned Counsel for the petitioner submitted that hand baggage lost and its weight could not have been 20 kg and learned District Forum committed error in awarding compensation for 20 kg. baggage and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside.

6. Perusal of record clearly reveals that hand bag was not missing, but bag was missing and as per damaged/missing slip it was hand bag make but was not hand baggage. Perusal of copy of boarding pass on the missing slip further reveals that weight of the baggage has not been mentioned on the boarding pass. In such circumstances, learned District Forum has not committed any error in allowing compensation for maximum weight of 20 kg, as per Carrier by Air Act, 1972. Learned State Commission has not committed any error in dismissing appeal.

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 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. 1572 OF 2013 (From the order dated 19.12.2012 in Appeal No. 483/2008 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad)

With IA/2743/2013 IA/2744/2013 IA/2745/2013

(Stay, C/Delay, Exemption from filing the certified copy)

1. The Post Master Sub Post Office, Bijegaon Tq. Umari Distt. Nanded 2. Superintendent, Post Offices, Nanded Division, Nanded 3. The Post Master General Aurangabad Region, Aurangabad …Petitioners/Opp. Parties (OP)

Versus 1. Shri Babu Rao S/o Sh. Gangaram Hambarde R/o Mauje Bijegaon Tq. Umari Distt. Nanded

2. Sow Kamalabai W/o Shri Babu Rao Hambarde R/o Mauje Bijegaon Tq. Umari Distt. Nanded

BEFORE

For the Petitioners : Mr. R.L. Goel, Advocate

PRONOUNCED ON 1 st October , 2013

O R D E R

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

19.12.2012 passed by the Maharashtra State Consumer DisputesRedressal Commission,

Mumbai, Circuit Bench at Aurangabad (in short, ‘the State Commission’) in Appeal No. 483/08

– The Post Master & Ors. Vs. ShriBaburao & Anr. by which, while dismissing appeal, order of

District forum allowing complaint was upheld.

2. Brief facts of the case are that complainants/Respondents are the husband and wife. Their son Pralhad obtained Rural Postal Life Insurance Policy for a sum of Rs.1,00,000/- and deposited premium of Rs.380/- on 4.3.2003. Pralhad died on 31.3.2003 and in the said policy, the nominee was his wife Smt.Sangita Pralhad Hambarde. Sangita filed insurance claim with the

OPs/petitioners which was repudiated on the ground that policy bond was not issued to deceased Pralhad and there was no any contract. Complainants served notice on the OPs, as claim was not settled. Alleging deficiency on the part of OP, complainant filed complaint before

District Forum. OP resisted complaint and submitted that as there was no existence of any contract at the time of death ofPralhad and as policy bond was not issued to him, Pralhad cannot be deemed to have been insured and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OPs to pay Rs.1,00,000/- along with 9% p.a. interest and further awarded Rs.5,000/- towards mental agony and Rs.1,000/- towards cost of litigation. Appeal filed by the petitioners was dismissed by learned State

Commission by the impugned order against which, this revision petition has been filed along with application for condonation of delay.

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

4. Learned Counsel for the petitioner has filed application for condonation of delay of 19 days. For the reasons mentioned in the application, we allow the application for condonation of delay of 19 days in filing revision petition.

5. Learned Counsel for the petitioner submitted that order of District Forum be set aside only to the extent of the word ‘nominee’ mentioned in para 3 of order of District Forum and submitted that ‘nominee’ word may be deleted from the order of District Forum.

6. Perusal of record clearly reveals that Pralhad appointed his wife Smt. Sangita as nominee and claim filed by her was repudiated by petitioners and afterwards complainants who are parents of deceased filed complaint before District Forum which was allowed. Thus, it becomes clear that Sangita is not only nominee, but wife and legal heir of deceased. Learned District

Forum rightly observed in Clause III as under:

“The Applicants should file Succession Certificate to this forum & as per the Succession Certificate orders of division of amount of insurance will be issued & after issuance of such orders the amount will be paid to applicants & nominee.”

7. As complainants and Sangita wife of the deceased are legal heirs of the deceased, learned

District Forum rightly observed that division of amount of insurance will be made as per

Succession Certificate obtained by the petitioner”.

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 petitioners 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. 3066 OF 2008 (From the order dated 04/04/2008 in Appeal No. 190/2008 of the State Consumer Disputes Redressal Commission, U.T., Chandigarh)

FIITJEE Limited ICES House, 29-A, Kalu Sarai, Sarvapriya Vihar, New Delhi – 110016 …Petitioner/Opp. Party (OP) Versus

Ms. Ishaan Punj MIinor through his father and natural guardian Mr. Nirdosh Kumar Punj, R/o 651, Sector 69, SAS Nagar, Mohali, Punjab.

…Respondent/Complainant

BEFORE

For the Petitioner : Mr. Mukesh M. Goel, Advocate

For the Respondent : NEMO

PRONOUNCED ON 1 st October , 2013

O R D E R

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

04/04/2008 passed by the State Consumer Disputes RedressalCommission, U.T., Chandigarh (in short, ‘the State Commission’) in Appeal No. 190/08 – M/s. FIITJEE Ltd. Vs. Ishaan Punj by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/Respondent joined OP/Petitioner Institute in

February, 2006 for a period of 2 years classroom programme for IIT Joint Entrance Examination and paid Rs.76,589/- as fees. After attending classes upto January, 2007, complainant found that the education imparted at OP Institute was not fruitful so vide letters dated 8.2.2007 and

19.2.2007 complainant intimated to OP that he does not want to continue with the course and requested for refund of the balance fee of the second year. As refund was not made, complainant alleging deficiency on the part of OP filed complaint before District Forum. OP resisted complaint and submitted that out of 76,589/- deposited by complainant, Rs.69.500/- was towards course fee and Rs.6950/- was towards service tax and Rs.139/- was towards education cess. It was further denied that coaching was not of desired purpose and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed

OP to refund Rs.38,294.50 with cost of Rs.1100/- and Rs.2100/- as compensation and further awarded 12% p.a. interest from 9.2.2006 till payment if the payment is not made within a period of 30 days. Appeal filed by the petitioner was dismissed by learned State Commission against which this revision petition has been filed.

3. None appeared for the respondent even after service.

5. Learned Counsel for the petitioner submitted that in compliance to order of the State

Commission Rs.38,294/- has already been refunded to the respondent vide cheque dated

15.9.2008 and this revision petition has been admitted only to the extent of refund of interest and cost. It was further submitted that as refund has been made immediately after impugned order, the order allowing interest and cost be set aside.

6. Learned Counsel for the petitioner has placed reliance on (2003) 6 SCC 696 – Islamic

Academy of Education Vs. State of Karnataka in which it was observed that educational institution can only charge prescribed fees for one semester/year, but if an institution feels that any particular student may leave in midstream then, at the highest, it may require the student to give a bond/bank guarantee for balance fees for the whole course. It was further observed that if educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution and balance fees must be kept in fixed deposits in a nationalised bank which may be withdrawn as and when fees falls and at the end of the course, interest on those deposits will be paid to the student from whom fees was collected in advance.

7. Learned Counsel for the petitioner submitted that Hon’ble Apex Court has permitted advance fees for the whole course and has further permitted to get bond/bank guarantee from the student for the balance fees for the whole course if not received in advance, meaning thereby institution does not commit any deficiency in receiving fees for the whole course except to the extent that balance fees is to be deposited in FDR and interest accrued on that is to be returned to the student. He further submitted that as 50% of the fees as ordered by District Forum has already been refunded immediately after State Commission’s order, in such circumstances, order levying interest and cost be set aside.

8. Perusal of record reveals that out of the fees deposited by the respondent Rs.6950/- was towards service tax and Rs.139/- was towards education cess which did not go in the pocket of petitioner; even then, learned District Forum and State Commission allowed refund of 50% of the aforesaid amount. As revision petition has been admitted only to the point of payment of interest and cost, we deem it appropriate to set aside award of interest on two counts; firstly, refund has been made just after 5 months of impugned order and District Forum allowed interest only if payment is not made within a period of 30 days. Had petitioner deposited this amount immediately after order interest was not payable. Petitioner had right to file the appeal and after dismissal of first appeal petitioner has refunded amount within 5 months, in such circumstances, respondent is not entitled to get interest; and secondly, District Forum allowed refund of 50% of the tax deposited by petitioner on account of fees received from the respondent which apparently could not have been ordered. In such circumstances, order imposing interest is liable to be set aside.

9. As far as cost awarded by the District Forum & State Commission is concerned, we are not inclined to interfere with the cost awarded by the District Forum and the State Commission. 10. Consequently, revision petition is partly allowed and impugned order dated 4.4.2008 passed by learned State Commission in Appeal No.190/08 -FIITJEE Limited Vs. Mr. Ishaan Punj and order dated 26.2.2008 passed by learned District Forum in Complaint No. 427/07 – Ishaan Punj Vs. FIITJEE Limited is modified and order imposing interest is set aside and rest of the order is affirmed.

………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 3535 OF 2008 (Against order dated 27.05.2008 in First Appeal No.109 of 2005 of the State Consumer Disputes Redressal Commission, Delhi)

National Institute of Open Schooling A-24/25, Institutional Area, Sector-62, Noida-201301

...... Petitioner

Versus

Sh Vipin Sharma A-765, Shastri Nagar, Delhi-110052...... Respondent

BEFORE:

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

HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. S. Rajappa, Advocate

For the Respondent : In person

Dated : 3 rd October, 2013

ORAL ORDER

Heard.

2. Short question which arise for consideration is as to whether Petitioner/O.P. was deficient in not giving the result of Examination of Economics Subject to the Respondent/Complainant for over two years when he had appeared for Examination in October/ November,2003. Further, due to this act of the petitioner whether respondent is entitled to get compensation of Rs.5,000/- for deficiency in service and for causing him mental agony and harassment.

3. Both the Fora below have given concurrent findings of facts against the petitioner.

4. Hon’ble Supreme Court in “Gurgaon Gramin Bank Vs. Khazani and another, IV (2012)

CPJ 5 (SC)” where debt amount being a paltry sum of Rs.15,000/- was not settled by the bank, it observed; “2. Number of litigations in our country is on the rise, for small and trivial matters, people and sometimes Central and State Governments and their instrumentalities Banks, nationalized or private, come to courts may be due to ego clash or to save the Officers’ skin. Judicial system is over-burdened, naturally causes delay in adjudication of disputes. Mediation centers opened in various parts of our country have, to some extent, eased the burden of the courts but we are still in the tunnel and the light is far away. On more than one occasion, this court has reminded the Central Government, State Governments and other instrumentalities as well as to the various banking institutions to take earnest efforts to resolve the disputes at their end. At times, some give and take attitude should be adopted or both will sink. Unless, serious questions of law of general importance arise for consideration or a question which affects large number of persons or the stakes are very high, Courts jurisdiction cannot be invoked for resolution of small and trivial matters. We are really disturbed by the manner in which those types of matters are being brought to courts even at the level of Supreme Court of India and this case falls in that category”.

5. Since, a paltry sum of Rs.5,000/-(Rupees Five thousand only) only is involved in this case and petitioner being an Institution of National level, we are not inclined to pass any order in this case, in view of the decision of Gurgaon Gramin Bank(supra). However, the question of law is left open to be decided in an appropriate case.

6. Vide order 01.12.2008, passed by this Commission, respondent was granted permission to withdraw the sum of Rs.5,000/-. Hence, respondent is at liberty to withdraw that amount of

Rs.5000/- from the State Commission.

7. With these observations, present revision petition stands disposed of. ……..……………………J

(V.B. GUPTA)

(PRESIDING MEMBER)

…………………………

(REKHA GUPTA)

MEMBER

SSB/32 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1874 OF 2012 (Against the order dated 16.02.2012 in Appeal No. 1778/2005

of the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur)

1. Union of India Through General Manager, West, Central Railway Jabalpur, M.P.

2. The Divisional Railway Manager West Central Railway Kota, Rajasthan

3. The Station Superintendent, Railway Station, Hindoncity, District Karauli, Rajasthan

4. The Chief Commercial Manager, West Central Railway, Jabalpur, M.P.

5. The Chief Claim Officer, West Central Railway, Jabalpur, M.P.

6. The Chief Claimant Officer, Western Railway Churchgate Mumbai, Maharashtra

...... Petitioners

Versus

1. Yash Industries Near Industries Area, Water Tank, Hindoncity, Through Proprietor Rajesh Kumar, S/o Shri Babulal By Caste Mahajan R/o Mohan Nagar, Hindoncity District Karauli, Rajasthan

2. Manij Kumar S/o Shri Babulal, By Caste Mahajan,R/o Mohan Nagar, Hindoncity District Karauli, Rajasthan

BEFORE:

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

For the Petitioner : Mr. Shailesh Prakash Sharma, Advocate

For the Respondent : Ex parte

Pronounced On 3 rd October , 2013 ORDER

PER DR. S.M. KANTIKAR 1. The present Petition is filed under Section 21 of the Consumer Protection Act, 1986 against the impugned judgment of State Consumer Disputes Redressal Commission, Circuit Bench, Rajasthan, Jaipur (in short, ‘State Commission’) in Appeal No. 1778/2005 where by the Appeal filed by the Appellant has been dismissed and the order of District Consumer Disputes Redressal Forum, Karauli (in short, ‘District Forum’) in CC No. 11/2004 has been upheld.

2. The brief facts of this case are: Total 19 cartons of plastic frames, used for slates, were booked by the complainant, under two separate builties from Paladhar station to be delivered at Hindon city station. But, complainant received only 17 cartons. The Station Master at Hindon issued a short certificate for deficit. On several enquires, the complainant did not get satisfactory reply from OP. Each carton was of 32 kg in weight, at the rate of Rs.111/- per kg, for two cartons amounting to Rs.7104/-. The Senior Divisional Manager, Western Railway, Kota had granted the claim for Rs.500/-. Hence, alleging deficiency in service by OP, the complainant filed a complaint before District Forum for an award of Rs.1,49,000/- towards compensation, along with Rs.7104/-.

3. That the District Forum after hearing arguments of the parties, partly allowed the complaint and ordered that out of both builties, one carton not being given, measuring 32 kg material @ Rs.111/- per kg., Respondents would make payment of Rs.7104/- to the Complainant, along with 6% interest, from 29.04.2003. If any amount has been paid to the Complainant, earlier, the same is to be adjusted and Rs.200/- will be paid towards cost of litigation. The aforesaid amount to be paid within two months.

4. Aggrieved by the order of District Forum, the OP filed an appeal No.1778/2005, before the State Commission. The State Commission dismissed the said appeal.

5. Against the order of State Commission, OP preferred this revision.

6. We have heard the counsel of both the parties. The learned Counsel for petitioner vehemently argued that Consumer Fora have no jurisdiction to entertain such claim. But, it could only have been decided by Railway Claims Tribunal. The Counsel for the Petitioner brought our attention to the provisions of Sections 13 and 15 of the Railway Claims Tribunal. The relevant provisions of Sections 13 and 15, referred above, are reproduced hereunder: “ 13. Jurisdiction, powers and authority of claims Tribunal – (1) The claims Tribunals shall exercise, on and from the appointed day, all such jurisdiction, powers and authority as were exercisable immediately before that day by any civil court or a claim commissioner appointed under the provisions of the Railway Act- a] Relating to the responsibility of the railway administrations as carriers under chapter VII of the Railways Act in respect of claims for- i) Compensation for loss, destruction damage, deterioration of non-delivery of animals or goods entrusted to a railway administration for carriage by railways;

ii) Compensation payable under Section 82-A of the Railways Act or the rules made thereunder; and

b] in respect of the claims for refund of fares or part thereof or for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railways”

“15. Bar of Jurisdiction – On and from the appointed day, no court or other authority shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to the matters referred to in sub-section (1) of Section 13.”

7. The OP submitted that the value of such consignment was not declared by the Complainant, at the time of booking. As per the provisions of Section 103 of the Railways Act, 1989, for any consignment entrusted to Railway Administration for carriage by Railway and the value of such consignment has not been declared as required under Sub Section (2) by the consigner, amount of liability of the Railway Administration for the loss, destruction, damage, deterioration or non-delivery of the consignment, shall, in no case exceed such amount, calculated with reference to the weight of the consignment, as may be prescribed. It is submitted that the amount, as was paid for non-delivery of the consignment was, as per the provisions of Railway Act, 1989.

8. Therefore, we are of considered opinion that, both the fora below have erred in not observing the provisions of Sections 13 and 15 of Railway Claims Tribunal Act. The Consumer Fora have no jurisdiction to decide this case on hand, under the Consumer Protection Act, 1986. Accordingly, we allow the revision petition and dismiss the complaint. Parties are directed to bear their own cost. Liberty is given to the Complainant to approach proper Forum for his claim.

..…………………..………J

(J.M. MALIK)

PRESIDING MEMBER

……………….……………

(DR.S.M. KANTIKAR)

MEMBER

Mss-22

REVISION PETITION NO. 3827 OF 2012 (From order dated 02.07.2012 in First Appeal No. 540 of 2012 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula)

Lacchman, S/o Dola Ram R/o Village-Devrala, Tehsil & District-Hissar … Petitioner Versus

1. Executive Engineer, Dakshin Haryana Bijli Vitran Nigam Limited Bhiwani, Haryana 2. SDO, Sub Urban, Dakshin Haryana Bijli Vitran Nigam Limited Bhiwani, Haryana … Respondents

BEFORE:

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

For the Petitioner : Mr. Sabyasachi Mishra, Advocate.

Pronounced On 3 rd October , 2013

PER DR. S.M. KANTIKAR

1. The Petitioner has filed the Revision Petition against the order dated 02.07.2012 passed by the Hon’ble State Consumer Disputes Redressal Commission, Panchkula, Haryana, (in short, ‘State Commission’) in First Appeal No. 540 of 2012, challenging the order of the District Consumer Disputes Redressal Forum, Bhiwani, Haryana, (in short, ‘District Forum’) in Consumer Complaint no. 20 of 2009. The State Commission dismissed the Appeal on 02.07.2012, being bereft of merit. The District Forum dismissed the complaint on 21.03.2012, after appreciating the documents on record and also after considering the statutory provisions and relevant judgments placed on file.

2. The facts in brief:

Shri Lacchman, the Complainant was a consumer of Dakshin Haryana Bijli Vitran Nigam Limited, Bhiwani, Haryana (in short DHBVNL) is having an electricity connection bearing account No. B-23-DB-0343 and has been using and paying the bills regularly. He has cleared the electricity bills, till December, 2005, and moved an application for permanent disconnection of above said electricity connection. Thereafter, the OP issued a bill, dated 06.12.2005, for Rs.3918/- upon which he met the SDO concerned, who, advised to deposit Rs.240/- and that the remaining amount will be waived off to all the farmers of Haryana State. It is further alleged that the SDO made necessary remarks in the application of Complainant and directed to issue PDCO. The Complainant further alleged that Shri Krishan alias Hari Kishan, Lineman, removed the meter and handed over to Goverdhan, L.M. in the month of December, 2005, but it was surprised to note that OP issued a Bill dated 11.04.2008, amounting to Rs.8289/-. The Complainant visited the office of the OPs, but they did not pay any heed, and a written complaint, dated 18.07.2008, was made to the higher authorities. Thereafter, the Office of Chairman, Forum of Redressal Grievance of Consumers, Vidhut Sadan, Hissar, directed the S.E. (OP) Circle, DHBVNL, Bhiwani, to redress the grievance, immediately. But, the OPs again issued a bill dated 10.08.2008, amounting to Rs.9184/- and on enquiry it was told that due to clerical mistake, the bill has been issued and the same will be rectified, as per rules and regulations of the Nigam. The Complainant requested the OPs to issue “No Dues Certificate” in January 2009, but OP refused to issue the same and demanded Rs.9184/-, alongwith surcharge, etc. Even after disconnection of electricity, in December, 2005, the OP issued bill, which was wrong, illegal, arbitrary, against law and facts, and he is not liable to pay the same. Hence, it amounts to deficiency in service on the part of OPs and as such, he filed complaint No. 20/2009, in the District Forum.

3. The OPs denied the deficiency and all the allegations made by the complainant. OP stated that the Complainant was a chronic defaulter and had not cleared his bills, for a long period; therefore, he was not entitled to Waiver Scheme, as per conditions of the policy. Also, the Complainant was not entitled to get “No Dues Certificate”, without making payment of energy bills, along with surcharge, up to date.

4. The District Forum dismissed the complaint, ignoring the facts of the case.

5. Aggrieved by the order of District Forum, the complainant, preferred an Appeal No. 540 of 2012, before the state commission.

6. The State Commission heard both the parties and on the basis of evidence on record, dismissed the appeal.

7. Hence, the complainant preferred this revision petition.

8. We have heard the Counsel for Petitioner and perused the evidence on record and the orders of both the fora below. It was an admitted fact that the complainant was a consumer of OPs and a chronic defaulter. The District Forum observed that there is no documentary evidence to prove that the Complainant applied for disconnection of electricity in December 2005. It is also evident that the electricity meter of Complainant was neither removed nor PDCO was affected. The Complainant did not produce any acknowledgement of receipt from OPs regarding handing over of the meter to the concerned Lineman.

9. Therefore, we are of considered opinion that there is no deficiency in service on the part of the OPs, and hence, we do not find any need to interfere with the orders of both the Fora below.

The revision petition, is accordingly, dismissed. No order as to costs.

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

……………….…………… (Dr. S.M. KANTIKAR) MEMBER Mss-03 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION No. 2088 of 2013

(From the order dated 14.09.2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in First Appeal no. 341 of 2012)

Ram Bhagat Son of Shri Ganga Bishan Post Office Bhattu Khurd Teshil and District Fatehabad Haryana

Petitioner

Versus

1. M/s New Holland Fiat (India) Pvt. Ltd Plot no. Udyog Kendra Gautam Budh Nagar Uttar Pradesh

2. New India Tractors G T Road Fatehabad, Haryana

Respondents

BEFORE:

HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER

HON’BLE MRS REKHA GUPTA MEMBER

For the Petitioner Mr Abhishek Garg, Advocate

Pronounced on 3 rd October 2013

REKHA GUPTA

Revision petition no. 2088 of 2013 has been filed under 21 of the Consumer Protection Act, 1986 against the judgment/ order dated 14.09.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (‘the State Commission’) in First Appeal no. 341 of 2012.

As per the facts of the case as gleaned from the District Consumer Disputes Redressal Forum, Fatehabad (‘the District Forum’) the petitioner had purchased one tractor New Holland 5500 from respondent no. 2 against its price of Rs.5,40,000/- on 20.02.209 and at the time of purchase he was assured of two year warranty/ guarantee. It is further stated that two after purchase of the tractor, the petitioner approached respondent no. 2 with the complaint of excess consumption of diesel. This defect in tractor was repaired but that was not up to the standard of company. Ultimately engine of the tractor stopped working due to inadequate supply of diesel and there were many more defects in the tractor such as leakage in silencer, excess of smoke etc. On complaint, the engineer of the respondents had checked the tractor on 22.11.2009 who after some repair stated that now the tractor will function properly. As per version of the petitioner, tractor was not in working position and he again brought the tractor to the respondent no. 2 on 12.02.2010 where service of the same was provided but service book and other documents were kept by the respondent no. 2 with the excuse that same are to be sent to the company. The petitioner repeatedly requested the respondents to rectify the fault in his tractor but the respondents were postponing the matter under one pretext or the other. Ultimately he served the respondents a legal notice to this effect but same was not replied. The petitioner had got checked his tractor from another mechanic who reported that engine of the tractor is not working properly due to dust as dry air cleaner is fitted inside and cracks also appeared in the tyres due to manufacturing defects. The petitioner prayed for getting necessary repair and replacement of two big tyres of tractor besides compensation of Rs.50,000/- from the respondents for harassment and Rs.1,00,000/- on account of expenses regarding hire of alternative tractor for his agricultural work.

Upon notice the respondent no. 1 did not appear and was proceeded ex-parte, however, Shri V K Mehta, Advocate appeared on behalf of respondent no. 2 and filed the written statement by taking preliminary objections of maintainability, cause of action, locus standi and jurisdiction. On merit the version of the petitioner was contested but at the same time it was admitted that defect in tractor was removed by the Engineer of the company by changing the old pump and satisfaction letter was got signed from the son of the petitioner to this effect and no other complaint was received. As regards Form 22 is concerned, duplicate of same is to be given against the affidavit of the petitioner, it was duly communicated to the petitioner over the telephone and personally as well but petitioner has not given any such affidavit while denying the rest of contents of the complaint, it is submitted that complaint in hand be dismissed with costs.

The District Forum came to the conclusions that “the petitioner has proved the deficiency in service on the part of the respondents, resultantly instant complaint is hereby allowed. The respondent no. 1 - M/s New Holland Fiat (India) Pvt. Ltd., is directed to remove all the defects in tractor including replacement of two big tyres enabling the petitioner to use the same in perfect condition and to pay a sum of Rs.50,000/- as compensation on account of being deficient in service and for the loss cause to the complainant for arranging an alternate mode including the harassment of all counts and to provide the petitioner duplicate Form 22. Respondent no. 1 is further directed to comply with the order within a period of one month failing which the petitioner shall be entitled for replacement of tractor with the new one along with compensation amount of Rs.50,000/-“. Aggrieved by the order of the District Forum, the respondent no. 1/ opposite party no. 1 filed an appeal before the State Commission. The State Commission having considered the arguments of the counsel had observed that, “in this case the complainant had made allegation with regard to breakage in silencer axel smoke, cracks in tyres. But complainant not produced any expert evidence on record. On the other hand appellant has also not moved any application for expert evidence. Court has also not appointed any expert for evidence. We find that on most of such like cases where the expert evidence is required generally that is not called because neither the parties move such application under section 13 of the Consumer Protection Act. The District Consumer Forum decides such technical issues merely on assumptions and presumption. It is duty of District Consumer Forum in such like cases where expert evidence is required to appoint an expert to examine such defect in goods. I, therefore, set aside the order passed by the District Consumer Forum and direct the District Consumer Forum to take the expert evidence on the defects in tractor. Further suggest that Consumer Forum shall appoint a person who will be normally of a Government Agency and with requisite qualification and background to enable them to submit the report as natural organisation.

In view of the above discussion, as in this case, patent illegality had been committed by not considering above said fact, therefore, the order dated 06.12.2011 passed by the District Forum, Fatehabad is set aside and the case is remanded back to the District Forum, Fatehabadto decide the same afresh in accordance with law within three months”.

Hence, the present revision petition.

Along with the present revision petition an application for condonation of delay of 176 days has been filed. The reasons given in the application are that:

 The State Commission, Haryana by misinterpretation of provisions contained in section 13 of the Consumer Protection Act, 1986 vide the judgment impugned has set aside the well-reasoned judgment dated 06.12.2011, passed by the District Forum, Fatehabad, Haryana and remanded the matter back to be heard afresh.  On account of ill-formed advice, petitioner was misguided by local counsel Mr Mahender Kumar Dharnia to appear before District Forum,Fatehabad as the complaint is being heard afresh as directed by State Commission. It was only now that on advice of present filing counsel that petitioner is challenging the judgment impugned, as the same is contrary to law and facts on records and inconsistent with legal precedents, besides being violative of principles of natural justice. It is only on account of wrong advice given by the petitioner’s local counsel that petitioner could not challenge the judgment impugned and hence, delay has occurred which is neither intention nor deliberate.  The certified copy of the impugned judgment was issued by the registry of the State Commission, Haryana. On 23.10.2012 and there is a delay of 176 days in filing the present revision petition. Applicant has a good case on merits and it will be in the interest of justice that the delay in filing present petitioner be condoned.

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

The application contains absolute no dates or reasons to explain the day today delay or give “sufficient cause” to condone the delay of 176 days except that he has been misguided by the local counsel Mr Mahender Kumar Dharnia to appear before the District Forum, Fatehabadas the complaint is being heard afresh as directed by the State Commission. Counsel for the petitioner admitted that no action has been taken against the Advocate for his wrong advice.

The petitioner is supposed to explain the day-to-day delay, but the needful has not been done. Moreover, petitioner has failed to provide ‘sufficient cause’ for the delay of 176 days. This view is further supported by the following authorities.

The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that:

“ It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:

“The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”.

In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to thecondonation 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.”

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.”

Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 176 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.5,000/- (Rupees five thousand only).

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

List on 22nd November 2013, for compliance.

..………………………………

[ V B Gupta, J.]

………………………………..

[Rekha Gupta]

(From the order dated 28.08.2012 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh in First Appeal no. 1332/2007)

IA nos. 4269, 4270 & 4271 (Stay, exemption from dim documents, condonation of delay)

Bajaj Allianz Life Insurance Co. Ltd. Through Branch Manager SCO no. 3, Balaji Chambers District Shopping Complex Ranjit Avenue, Amritsar

Petitioner

Versus

1. Shri Pawan Kumar Son of late Shri Ved Prakas H No. 2155, Sarai Bhagwan dass Gali No. 1, Chawal Mandi Amritsar

2. Shri Bhupinder Bawa Son of Late Shri Bawa Amar Nath 10 – B/s Prakash Cinema Opposite Railway Station Amritsar

Respondents

BEFORE:

For the Petitioner Mr Pankul Nagpal, Advocate

Pronounced on 4 th October 2013

REKHA GUPTA

Revision petition no. 2547 of 2013 has been filed under section 21 (b) against the order dated 28.08.2012 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (‘the State Commission’) in appeal no. 1332 of 2007.

The respondent no. 1/complainant has filed a complaint alleging therein that he had purchased a life insurance policy for a sum of Rs.4,00,000/- by paying premium of Rs.10,000/- per annum from the petitioner/ opposite party no. 1 through respondent no. 2/ opposite party no. 2, the authorised agent of petitioner on 11.10.2004. That the above said policy bearing no. 0005870798 was in the name of Smt AnitaKumari, mother of respondent no. 1. Smt Anita Kumari died on 04.04.2005 due to heart attack and an insurance claim was lodged with the petitioner through opposite party no. 2 along with the original policy. But this claim was repudiated by the petitioner on 27.09.2005. Alleging deficiency in service respondent has prayed for a direction to the petitioner to pay an amount of Rs.4,00,000/- along with interest and Rs.50,000/- as compensation.

On notice, the petitioner and respondent no. 2 appeared and filed separate written versions.

Petitioner/ opposite party no. 1 in its written version has submitted that complaint is not maintainable in the present forum as the deceased had played a fraud on the petitioner by filing a fake driving licence regarding her age proof in which the age was understated. Petitioner further submitted that at the time of the policy, the deceased had intentionally submitted a faked driving licence to escape the full medical examination. As per the terms of the policy, if the age of the policy holder is more than 45 years and the sum assured is also more than Rs.3,00,000/- a full medical examination becomes necessary. Petitioner has alleged that after verification it has come to their notice that age of the deceased was shown on the ration card as 45 years and this ration card was issued five years back. Therefore, at the time of taking the policy the age of the deceased was more than 48 years. Deceased policy holder had four children as per the ration card and their estimated age as on the proposal dates were 25 years, 23 years, 21 years and 19 years, whereas age of one child was shown in the proposal form as 17 years.

It is further submitted that age of the nominee has been shown as 17 years in the proposal form by recording his date of birth as 06.02.1987, whereas as per the PAN card the date of birth of this nominee is 06.09.1982 and he is 22 years old. Petitioner has submitted that if any contract is executed by misrepresenting the true facts and by fraud such contract is void abnitio. The policy was obtained by fraud and misrepresentation by submitting the fake driving licence and understating his age and age of the family members. It is further submitted that as per the agreement in case of non-disclosure of information or fraud or misrepresentation in the proposal/ personal statement, declaration or in any connected document leading to the acceptance of the risk, the company shall at its discretion, repudiate the claim under section 45 of the Insurance Act.

The petitioner has further alleged that policy holder intentionally submitted the fake driving licence regarding her age proof. The alleged driving licence does not exist in the record of the licensing authority, Ajnala. After receiving intimation regarding the death of the policy holder, petitioner appointed Sniffers Indian Pvt. Ltd., to investigate the death claim of late Smt Anita Kumari on 28.05.2005 and also Shri M L Bhatia to investigate the death claim of late Smt Anita Kumari on 11.07.2005. Petitioner had also written a letter to licensing authority,Ajnala regarding verification of the driving license issued in the name of Mrs Anita Kumari. The licensing authority has written in that letter that license no. 16097 dated 16.10.1991 in the name of Anita Kumari wife of Ved Prakash has not been recorded in the office record and this licence is fake and bogus as per the record. During investigation, the investigators have collected copy of the ration card, which was issued five years back and in which the age of the deceased is mentioned as 45 years.

Petitioner has further submitted that if ration card is considered then the age at the time of death of the insured comes to 50 years. As per the norms of the policy, full medical examination was mandatory. As such company has rightly repudiated the claim. It was prayed that complaint may be dismissed.

Respondent no. 2 i.e., Mr Bhupinder Bawa had admitted the contents of the complaint. He also admitted that claim was lodged with petitioner through respondent no. 2 and the original policy and the original death certificate was submitted to petitioner at the time of intimation of death. He has further submitted that the job of respondent no. 2 was only to sell the policy and respondent no. 2 sold the policy and premium of Rs.10,000/- was deposited with petitioner and he handed over the receipt of the premium issued by petitioner to the insured. He prayed that his name may be deleted.

The District Consumer Disputes Redressal Forum, Amritsar (“the District Forum”) came to the following conclusions:

“ The above discussion shows that proposal from exhibit R – 3 on the basis of which insurance policy was issued is a document which is replete with cuttings and erroneous information and where the date of birth of the nominee as well as the figure of sum assured have been altered by overwriting. Similarly, the driving license of Smt Anita Kumari has been found to be a fake and forged driving licence which does not exists in the records of the concerned licensing authority, Ajnala. It has also been noted by us that age of the nominee has been projected wrongly and qualification of the deceased life assured was also given wrongly as matriculate.

The above discussion would show that complicated questions of facts and law are clearly involved in the present complaint and there is also an element of forgery and fabrication, as has already been discussed in the preceding paragraphs.

In view of the above discussions, present complaint is hereby dismissed with no order as to costs. However, the parties are free to avail their remedies before the Civil Court of competent jurisdiction, if they so choose”.

Aggrieved by the order of the District Forum, the respondent no. 1 filed an appeal before the State Commission. The State Commission were of the opinion that, “in view of the above discussion, we are of the opinion that the complaint was liable to be succeed but has been wrongly dismissed by the learned District Forum. The impugned order passed by the learned District Forum, therefore, cannot sustain. We, accordingly, allow the appeal and set aside the impugned order passed by the District Forum. The complaint, is consequently, allowed and the OPs are directed to pay the amount of Rs.4.00 lakh to the complainant within 30 days from the date of receipt of copy of this order, failing which, they would be liable to pay it along with interest @ 9% per annum since 27.10.2005 (one month after the repudiation letter dated 27.09.2005) till the amount is actually paid to the complainant. The litigation cost is assessed at Rs.5,000/-“.

Along with the present revision petition, the petitioner/ opposite party no. 1 have filed an application for condonation of delay of 185 days, however, as per the office report, the delay is of 187 days. The reasons given for the delay are as under:

 The petitioner has one of the branches at Amritsar and has its Head Office at Pune. The Northern Zonal Office for handing Legal matter is situated at Chandigarh which deals with the case of and files the cases before this Commission.  The order dated 28.08.2012 passed by the State Commission was prepared on 04.10.2012 and was received by the Branch Office of petitioner Company in October 2012 by post.  The order passed by the State Commission on receipt was thereafter forwarded to the Head Office at Pune for taking an appropriate decision. However, the dealing assistant Ms Debolina Ghatak raised certain queries for putting up the matter before the competent authority of the company to take a final decision on whether the impugned order is to be satisfied or further contested. Since the Advocate Mr Paras Money Goyal was not co- operating the facts could not be ascertained. However, in the meantime, Ms Debolina also left the services of the company on 26.12.2012.  The fact that no final decision was taken on the impugned order dated 28.08.2012 passed by the State Commission was detected in last week of February 2013 and the impugned order was put up before the Head (Legal) after obtaining the clarifications initially sought for which was provided by Advocate Varun Chawla on inspection of case records. The competent authority decided on 06.03.2013 that a revision is to be preferred before this Hon’ble Commission.  Thereafter entire case papers of the said case was procured from Chandigarh Advocate Mr Paras Money Goyal on 01.04.2013 as the said advocate had stopped working with the petitioner company and the entire file was sent to Shri Pankul Nagpal, Advocate for preparation of grounds of revision.  The said file was received by Shri Pankul Nagpal, Advocate on 02.04.2013 who drafted the revision petition and sent the same to ShriRajinder Kalsi to comments and approval.  However, Shri Rajinder Kalsi, the local representative of the petitioner company in the legal department, met with an accident on 06.04.2013 and was on leave till 26.04.2013.  On joining his duties Shri Rajinder Kalsi immediately verified the pending matters and vetted the draft revision petition and sent the same for approval to the Head Office at Pune.  The present revision petition was approved and sent to Shri Pankul Nagpal, Advocate for filing on 07.06.2013.  It is submitted that Shri Pankul Nagpal, Advocate due to the holidays in the court from 05.06.2013 was on leave and was in Mumbai with his family to spend holidays.  Shri Pankul Nagpal, Advocate joined work only on 28.06.2013, and immediately prepared the present application seeking condonation of delay.  The revision petition and the application had been received after signatures on 01.07.2013 and the same is being filed immediately.

We have heard the learned counsel for the petitioner and have also gone through the records of the case carefully.

It will be seen from the reasons given above that the petitioner has dealt with the case after receiving the order in a most casual and lackadaisical manner. The application does not state that when the order was passed to the head office, Pune. After reaching the head office, (date not mentioned) apparently the case was with the dealing assistant, till she left the service on 26.12.2012. It would also appear that there was no follow of such cases by any superior officer because it was only in the last week of February 2013, that it was detected that the impugned order was lying unattended without any action being taken thereon. Even after the competent authority decided on 06.03.2013 that the revision petition had to be preferred before the State Commission, the papers were obtained from the Chandigarh Advocate only on 01.04.2013 and the revision petition was approved and sent to Shri Pankul Nagpal for filing thereafter on 07.06.2013. The petition was filed ultimately on 08.07.2013. It would appear that the petitioner and their Advocates adopted a most casual approach.

The petitioner is supposed to explain the day-to-day delay, but the needful has not been done. The petitioner has failed to provide ‘sufficient cause’ for the delay of 185/187 days. This view is further supported by the following authorities.

“ It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:

“The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”.

Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 185/187 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.10,000/- (Rupees ten thousand only).

Petitioner is directed to pay the cost of Rs.5,000/- to the respondent directly by way of demand draft and the balance amount be deposited by way of demand draft in the name of ‘Consumer Legal Aid Account of this Commission’ within four weeks. 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 22nd November 2013, for compliance.

..………………………………

[ V B Gupta, J.]

………………………………..

[Rekha Gupta]

REVISION PETITION NO. 2437 OF 2012 (From the order dated 02.03.2012 in Appeal No. A/07/928 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

Rameshbhai S. Sarvaiyya Flat No.20, 5th Floor, Giriraj Apartment, 201, Walkeshwar Road, Malabar Hills, Mumbai – 400006 (Maharashtra) …Petitioner/Complainant

Versus

Shri Ramakant Ramchandra Jadhav Managing Director, M/s. Network Construction Pvt. Ltd. 26, Onlooker Building, 3rd Floor, Sir P.M. Road, Fort, Mumbai – 400001

…Respondent/Opp. Parties (OP)

BEFORE

For the Petitioner : Mr. Vikas Nautiyal, Advocate

For the Respondent : Ms. Savita Singh, Advocate PRONOUNCED ON 4 th October, 2013

O R D E R

This revision petition has been filed by the petitioner against the order dated 02.03.2012 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in Appeal No. A/07/928 – Shri Rameshbhai Shantilal Vs. ShriRamakant Ramchandra Jadhav by which, application for filing additional documents was dismissed.

2. Brief facts of the case are that complainant/petitioner filed complaint before District Forum for refund of Rs.75,000/- and after hearing both the parties, complaint was dismissed by District Forum. Petitioner filed appeal before State Commission and during pendency of appeal petitioner moved application for filing additional documents which was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

3. Heard learned Counsel for the parties and perused record.

4. Learned Counsel for the petitioner submitted that documents annexed with the application were most relevant documents for disposal of the complaint and learned State Commission has committed error in dismissing application; hence, revision petition be allowed and application filed by the petitioner before State Commission be allowed and documents be taken on record. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. Perusal of record reveals that complainant/petitioner filed complaint before District forum and in paragraph 5 of the complaint,complainant mentioned that after arriving at settlement, OP/respondent issued cheques to the complainant and many a times, the cheques issued by the OP were bounced back.

6. Petitioner has not filed documents before District Forum but after dismissal of complaint, during pendency of appeal, he moved application for filing additional documents along with documents. Perusal of application reveals that petitioner has not given any reason for not placing these documents on record before District Forum. Learned State Commission rightly observed that such type of application cannot be entertained and rightly dismissed application. State Commission further observed that if petitioner was to introduce additional documents, proper procedure was to be followed which was not followed in the case and in such circumstances, application was dismissed.

7. We do not find any infirmity, irregularity, illegality or jurisdictional error in the impugned order and revision petition is liable to be dismissed. But, at the same time, it would be appropriate to give liberty to petitioner to move a fresh application in proper format with reasons for not placing documents before District Forum which may be decided by learned State Commission on merits after hearing both the parties, as this application has not been dismissed on merits by impugned order.

8. Consequently, revision petition filed by the petitioner is dismissed with no order as to cost, but petitioner is given liberty to file another application in proper format, as directed above.

………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO.3438 OF 2008 (From order dated 16.05.2008 in First Appeal No.786 of 2007 of the State Consumer Disputes Redressal Commission, Delhi)

1. Sherry Leasing Pvt. Ltd. Having its Registered Office at 41/12 Ashok Nagar, New Delhgi-18 Through it’s one of the Director Mrs. Sunita Mehta, R/o : -41/11 Ashok Nagar, New Delhi-18.

2. Mrs. Sunita Mehta W/o Sh. Hari Om Mehta, R/o 41/11 Ashok Nagar, New Delhi-18

…Petitioners

Versus

1. Mrs. Kamini Saigal W/o Late Krishan Kumar

2. Priyanka Saigal D/o Mrs. Kamini Saigal

3. Sandeep Saigal, S/o Mrs. Kamini Saigal All the residents of RU-241, Pitam Pura, New Delhi.

…Respondents

BEFORE:

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

For the Petitioners : Mr. Arvind Dua, Advocate for

Petitioners No.1 and 2 along

with Ms.Sunita Mehta, Petitioner

No. 2 in person.

For the Respondents : In person

Pronounced on: 7 th October, 2013

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

Being aggrieved by order dated 16.5.2008 passed by State Consumer Disputes Redressal Commission, Delhi (for short, ‘State Commission’), Petitioners/O.Ps have filed the present petition.

2. Brief facts are that Respondent No.1/Complainant No. 1 deposited a sum of Rs.25,000/- with petitioner no.1 and it issued FDR No.0074 dated 30.09.1995 which was due for payment on 29.09.1997. It is also stated that Respondent No.2/Complainant no.2 deposited a sum of Rs.50,000/- and petitioners issued 2 FDRs of Rs. 25,000/- each dated 13.05.1995 bearing Nos.SLPL-047 and SLPL-075 dated 30.09.1995, payable on 12.5.1997 and 29.09.1997 respectively. Likewise, Respondent no.3/Complainant No.3 deposited a sum of Rs.25,000/- with the petitioner who issued FDR No.SLPL-044 dated 08.05.1995 payable on 07.05.1997. All the aforesaid FDRs bear interest @ 14% P.A. When all the FDRs became matured for payment in the year 1997,petitioners failed to pay on demand principal and interest there upon. Hence, respondents served legal notice dated 22.12.1998 upon the petitioners and prayed for the direction to the petitioners for making the payment of principal amount with interest @ 14% P.A. Besides this, they have claimed Rs.One lac as compensation and Rs.11,000/- on account of counsel fee.

3. Petitioners did not appear before the District Forum inspite of service. Hence, they were proceeded exparte.

4. Consumer Disputes Redressal Forum, Janakpuri, New Delhi(for short, ‘District Forum’), vide order dated 4.5.2001, allowed the complaint and passed the following directions;

“ In the result we direct the OP as under: 1. To pay the complainant No.1 the balance amount FDR No.0074 Dt.30.09.95 after adjusting the amount of Rs.10,000/- already paid by the OP to complainant No.1 with interest @ 14% P.A. from 01.01.97 to 12.05.97 and future interest thereafter,@ 12% P.A.

2. To pay the complainant No.2 a sum of Rs. 50,000/- towards her FDR No.047 dated 13.05.1995 alongwith interest @ 14% P.A. from 01.01.1997 to 12.05.97 and thereafter interest @ 12% P.A. till realization. And pay Rs.25,000/- towards FDR No. 075 Dt.30.09.95 with interest @ 14% P. A. from 01.01.97 to 29.and, thereafter, interest @ 12% P.A. till realization.

3. To pay the complainant No.3 a sum of Rs. 25,000/-towards his FDR No.044 Dt.08.05.95 with interest from 01.01.97 @ 14% P. A. till 07.05.97 and, thereafter, interest @ 12%.

4. We direct the OP to pay a sum of Rs. 500 to each of the complainant towards cos.

The respondent shall comply with the abvoe mentioned order within 45 days of receipt of this order failing which proceedings u/s 27 of the Consumer Protection Act may be initiated”.

5. Thereafter, District Forum in the execution proceedings, as per its order dated 24.08.2007 held that, in the execution proceedings it cannot review, alter or change its own order and directed petitioner no. 2 to pay the balance amount positively. 6. Being aggrieved, petitioners filed appeal before the State Commission challenging orders dated 04.05.2001 and 24.08.2007 of the District Forum.

7. State Commission, vide order dated 16.5.2008 disposed of the appeal in the following terms;

“ 6. In view of the above reasons, there is no ground to interfere with the order dated 24-08-2007 nor is there any ground to interfere with the impugned orders. The appellant, therefore, shall make the payment to the respondent with interest accruing from the order dated 4-1-2005 as the respondent is in a very poor financial state and is in dire need of money and her son is stated to have gone into depression after her husband’s death and is incurring huge expenses for treatment and is also facing other problems due to the financial crunch.

7. In view of the equal liability of the appellant being Rs.30,000/- towards the principal amount, the appellant shall pay within fifteen days the interest and the amount of Rs.30,000/- in terms of order dated 4-1-2005 failing which the District Forum shall take up proceedings under Sec. 25 & 27 of the Consumer Protection Act.

8. All of the complaints have become redundant in view of the order dated 4-5- 2001 passed by the District Forum. The appellant cannot be allowed to reopen the issue after the matter has been decided on merits”.

8. Being aggrieved by the order of State Commission, petitioners have filed the present revision petition.

9. We have heard the learned counsel for the petitioners as well as respondent who has argued its case in person.

10. Petitioners herein were exparte before the District Forum as they did not appear despite service. Under these circumstances, petitioners have no defence on merits.

11. District Forum, in its order has held;

“The complainants have established on record that they have deposited the amounts to the OP as per their respective FDRs and OP has failed to pay the said amount of FDR on its maturity as demanded by the complainants, hence, there is a deficiency in service on the part of OP”.

12. State Commission while deciding the appeal observed;

“4. It is pertinent to mention that in our Order dated 14-03-2005 passed in A-845/2002 Sunita Mehta v. Kamini Sehgal, who is respondent in this case, the present appellant Sunita Mehta was allowed in view of the undertaking given by her that she would settle the accounts with other four Directors who are equally liable to make payment of their share in the company to the respondent.In view of this undertaking, this Commission passed the following directions:- “ In view of this undertaking the appeal is allowed and the impugned order is set aside. The District Forum shall take up the proceedings initially under Sec. 25/27 of the Consumer Protection Act. However, District Forum shall also consider the request of the appellant as to her proportionate liability being one of the Directors as the company comprises of four Directors”.

5. On the face of it the appeal against original order dated 04-05-2001 is hopelessly time barred. The appellant has come up after years to challenge this order without showing any sufficient grounds to condone such inordinate delay. Moreover, the appellant has also been given the relief as to her liability for the other directors of the company by the aforesaid order dated 14-03-2005. On account of this the appeal against order dated 12-05-2001 has become otherwise infructuous as in the aforesaid appeal No. 845/02 decided on 14-03-2005 the appellant had filed the above referred appeal for non-compliance of order dated 4-5-2001 which impliedly meant that the appellant had already accepted the said order and was successful in obtaining relief as to her proportionate liability”.

13. Under section 21(b) of the Consumer Protection Act,1986(for short, ‘Act’),this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

14. As there has been no defence on behalf of the petitioners before the District Forum on merits, we do not find any infirmity or illegality in the impugned order of the State Commission as well as that of the District Forum. Under these circumstances, present revision petition is not maintainable and the same is dismissed.

15. Parties shall bear their own costs.

……..……………………J

(V.B. GUPTA)

(PRESIDING MEMBER

………………………… (REKHA GUPTA) MEMBER

SSB NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO.309 OF 2013 With I.A. No.545 of 2013 for Stay

(From order dated 04.12.2012 in First Appeal No.345 of 2012 of the State Consumer Disputes Redressal Commission, Lucknow, Uttar Pradesh)

Tej Bahadur Singh S/o Late Avadh Bihari Singh Village and Post Chiraiyacot (Vali Nagar) District Mau, U.P.

…Petitioner

Versus

1. Virju Yadav S/o Late Satyadev Yadav R/o Village Hiranpur Post Kamarawa, Pargana Chiraiyacot, District Mau, U.P.

2. Manager, Mahindra Maxmile 6 K 8th Floor West and Minister No.70, Dr.Radha Krishnan, Salai Moila Pore, Chennai.

…Respondents

BEFORE:

For the Petitioner : Mr. Nikhil Jain, Advocate

Petitioner/O.P. No.1 being aggrieved by order dated 4.12.2012 passed by State Consumer Disputes Redressal Commission, Lucknow, Uttar Pradesh (for short, ‘State Commission’)has filed the present revision petition.

2. Respondent No.1/Complainant had filed a consumer complaint against the petitioner as well as Respondent No.2/O.P. No.2 on the ground that petitioner had supplied bad quality of engine oil due to which engine of his vehicle was seized and the engine oil had been produced by respondent no.2.

3. District Forum issued notice of the complaint to the petitioner as well as respondent no. 2 but they did not appear before it and as such both were proceeded exparte.

4. District Forum, vide its order dated 15.10.2011 partly allowed the complaint.

5. District Forum’s order was challenged by the petitioner before the State Commission. 6. On 4.12.2012, when the matter was listed before the State Commission, none appeared on behalf of the petitioner and as such appeal of the petitioner was dismissed in default.

7. Being aggrieved by the order of State Commission, petitioner has filed this petition.

8. It has been contended by the learned counsel for the petitioner that counsel for petitioner could not appear before the State Commission as he had gone to appear before the District Forum to attend the case and by the time when counsel reached the State Commission, appeal was dismissed in default on first call. The appeal ought not to have been dismissed on the first call. Non-appearance on behalf of the petitioner before the State Commission is not intentional but is bonafide.

9. In support, learned counsel has relied upon the decision of Apex Court in Lucknow Development Authority Vs. Shyam Kapoor (2013) Supreme Court Cases, 754.

10. In the grounds of revision, petitioner has nowhere stated as to why he was not present in person before the State Commission on the date of hearing. Moreover, petitioner has not mentioned the name of the counsel who had to appear before the State Commission on the date fixed. The story put forward by the petitioner does not inspire any confidence. Moreover, a valuable right has accrued in the favour of the complainant.

11. Petitioner after having been proceeded exparte before the District Forum, did not choose to pursue the appeal before the State Commission in a diligent manner. That is why his appeal was dismissed in default.

12. Thus, careless and negligence on the part of the petitioner is writ large in this case since he has been contesting this litigation in a very careless and casual manner. Therefore, the decision of Lucknow Development Authority (supra) is not applicable to the facts of the present case.

13. Under section 21(b) of the Consumer Protection Act,1986(for short, ‘Act’),this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

14. We do not find any infirmity or illegality in the impugned order passed by the State Commission. Under these circumstances, present revision petition has no legal force and as such the same stand dismissed with cost of Rs.5,000/-(Rupees Five Thousand only).

15. Petitioner is directed to deposit cost of Rs.5,000/- by way of demand draft, in the name of “Consumer Legal Aid Account” of this Commission, within four weeks from today. 16. In case, petitioner fails to deposit the cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.

17. Pending application, if any stands disposed of. 18. List on 22nd November, 2013 for compliance. ….. …………………………J (V.B. GUPTA) PRESIDING MEMBER

…..…………………………

(REKHA GUPTA) MEMBER

REVISION PETITION NO. 3650 OF 2008 (From the order dated 1.08.2008 in Appeal No. 2848/2001(Hry)RBT/272/2008 of the State Consumer Disputes Redressal Commission, UT, Chandigarh)

Hukum Chand S/o Sh. Shiv Lal R/o Village Dhana P.O. Salawas, Distt. Jhajjar, Haryana …Petitioner/Complainant Versus

United India Insurance Co. Ltd. Through its Regional Manager, Regional Office, Sec-17, Chandigarh

…Respondent/Opp. Parties (OP)

BEFORE

For the Petitioner : Mr. Rishi Malhotra, Advocate

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

PRONOUNCED ON 7 th October, 2013

O R D E R

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

1.8.2008 passed by the State Consumer Disputes Redressal Commission, U.T., Chandigarh (in short, ‘the State Commission’) in Appeal No. 2848/2001(Hry)RBT/272/2008 – United India Ins.

Co. Ltd. Vs. Hukam Chand 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 owner of vehicle No. HR-

14A/1023, which was insured with OP/respondent for a period of one year from 30.4.98 to

29.4.99. This vehicle was taken away by some persons on 15.6.1998 after administering some poisonous substance in the drink to the driver as well as conductor of the vehicle. Report was lodged with the Police on 17.6.1998 and intimation was also given to OP. OP repudiated claim.

Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that as vehicle was plied as taxi, whereas vehicle was insured as private vehicle and, thus violated terms and conditions of the policy, OP rightly repudiated claim and prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint and directed OP to make payment of insured estimated value along with 12% p.a. interest and further awarded Rs.5,000/- as cost of litigation. Appeal filed by the

OP was allowed by the impugned order by the State Commission against which this revision petition has been filed.

4. Learned Counsel for the petitioner submitted that inspite of violation complainant was entitled to receive claim and learned District Forum rightly allowed complaint, but learned State

Commission committed error in dismissing complaint; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. Perusal of record clearly reveals that vehicle of the complainant was insured with OP as private vehicle and during subsistence of insurance policy vehicle was stolen. Perusal of FIR further reveals that vehicle was used as taxi and thus, there was clear cut violation of the terms and conditions of the policy. Now, the question to be decided is whether complainant is entitled to receive any compensation inspite of violation of terms and conditions of the policy.

6. Learned Counsel for the petitioner has placed reliance on (2008) 11 SCC 259 – National

Insurance Co. Ltd. Vs. Nitin Khandelwal in which Hon’ble Apex Court has held that in case of theft of vehicle breach of condition is not germane. In that case also vehicle was insured for personal use and it was being used by the complainant as taxi, even then, order of State

Commission allowing 75% claim on non-standard basis which was upheld by National

Commission was upheld by Hon’ble Apex Court. Facts of the present case are similar as in this case also vehicle was registered as private vehicle but was being used as taxi and it was stolen during subsistence of insurance policy. In such circumstances, petitioner is entitled to 75% of the

IDV value on non-standard basis.

7. Learned Counsel for the respondent has placed reliance on judgement by this Commission delivered on 4.7.2013 – Madan Lal Vs.Oriental Insurance Co. Ltd. in which complaint was dismissed as private vehicle was being used as a taxi. We do not agree with the view expressed in aforesaid revision petition in the light of judgment of Hon’ble Apex Court in Nitin Khandelwal (supra) case and revision petition is to be allowed and impugned order is liable to be set aside.

8. Consequently, revision petition filed by the petitioner is allowed and impugned order dated

1.8.2008 passed by learned State Commission in Appeal No. 2848/2001(Hry)RBT/272/2008 –

United India Ins. Co. Ltd. Vs. Hukam Chand is set aside and order dated 21.5.2001 passed by learned District forum in Complaint No.210 – Hukam Chand Vs. United India Ins. Co. Ltd. is modified and respondent is directed to make payment of 75% of the IDV value of the vehicle on non-standard basis along with 9% p.a. interest from the date of filing complaint till realization.

………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 4405 OF 2012 (From the order dated 24.08.2012 in Appeal No. 796/2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

With IA/5951/2013

Satbir Singh S/o Sh. Abey Ram R/o VPO Kharak Punia Tehsil & District Hissar, Haryana …Petitioner/Complainant

Versus

1. Reliance General Insurance Company Through its Branch Manager 88-E, Model Town, Near Bhagwati Hotel, Hissar, Haryana

2. The Regional Manager Reliance General Insurance Co. Ltd. SCO No. 212-214, Sector 34-A, Chandigarh

…Respondents/Opp. Parties (OP)

BEFORE

For the Petitioner : Mr. Akshay Verma, Advocate

Mr. Abhinav Singh, Advocate

Mr. Akashdeep Verma, Advocate

For the Respondents : Mr. Navneet Kumar, Advocate

O R D E R

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

24.08.2012 passed by the Haryana State Consumer

Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 796/12 – Satbir Vs. Reliance General Ins. Co. & Anr. by which, while dismissing appeal of the complainant, order of District forum allowing complaint was also set aside.

2. Brief facts of the case are that Complainant/petitioner got his Bolero HR-39-A-9361 insured from OP/respondent for a period of one year from 8.5.2009 to 7.5.2010. On 1.11.2009, vehicle was snatched by some culprits and FIR was lodged and intimation was also given to

OP. Claim was submitted to OP, but claim was repudiated by letter dated 2 8.5.2010. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP/respondent resisted complaint and submitted that vehicle was insured as private car but was used for hire and reward at the time of accident and was constantly being used for commercial purposes. Claim was rightly repudiated and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint on non-standard basis and directed OP to pay

Rs.3,07,500/- along with 7% p.a. interest Petitioner filed appeal before learned State

Commission for enhancement of compensation and learned State Commission vide impugned order while dismissing appeal set aside order of District Forum and dismissed complaint against which this revision petition has been filed.

4. Learned Counsel for the petitioner submitted that learned State Commission has committed error in dismissing complaint on the appeal filed by the complainant for enhancement of compensation even without any cross appeal from respondent; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that State Commission had power to dismiss complaint even without cross appeal and order passed by State Commission is in accordance with law; hence, revision petition be dismissed.

5. Perusal of record reveals that learned District Forum allowed complaint partly and directed

OP to pay Rs.3,07,500/- whereas complainant claimed Rs.4,10,000/- in the complaint.

Aggrieved by the order of District Forum complainant filed appeal before State Commission for enhancement and learned State Commission vide impugned order while dismissing appeal, set aside order of District Forum and dismissed complaint, though, no appeal was filed by

OP/respondent.

6. Learned Counsel for the petitioner submitted that without any appeal or cross objections

State Commission had no power to dismiss complaint while dismissing appeal for enhancement of compensation. On the other hand, learned Counsel for the respondent submitted that as both the parties were present before learned State Commission, learned State Commission had power to dismiss complaint even without appeal on behalf of respondent. In support of his contention he has placed reliance on (2000) 3 SCC 607 – Dilip Vs. Mohd . Azizul Haq & Anr. in which it was held that during pendency of appeal, if any, amendment is made in the Rent Control Act and protection is given to the tenant, the tenant is entitled to protection given by amendment. This judgment is not applicable to the facts of the present case as in that case appeal filed by the tenant was pending before the Court and he was extended benefits on the basis of amendment in

Rent Control Act. On the other hand, in the case in hand, appeal was filed only by the complainant for enhancement of compensation and no appeal was filed by OP for setting aside order of District Forum.

7. Learned Counsel for the respondent also placed reliance on (1999) 8 SCC 229 – Delhi

Electric Supply Undertaking Vs. Basanti Devi & Anr. in which it was held that Appellate

Court may pass any order as the case may require. In this case, Hon’ble Apex Court while exercising powers under Article 142 of the Constitution granted relief to the complainant. This citation is also not applicable to the facts of the present case as State Commission had no power to exercise powers conferred on Supreme Court under Article 142 of the Constitution.

8. Learned Counsel for the respondent could not place any citation depicting that once order has been passed against the OP that can be set aside by the Appellate Court without preferring appeal by the OP.

9. After filing appeal for enhancement of compensation petitioner had every right to withdraw the appeal or get it dismissed as not pressed and in such circumstances, State Commission had no power to dismiss the complaint in appeal filed by the petitioner for enhancement of compensation.

24.8.2012 passed by learned State Commission in Appeal No. 796 of 2012 – Satbir Singh Vs.

Reliance General Insurance Co. & Anr. is set aside and order of District Forum allowing complaint partly is affirmed. There shall be no order as to costs. ………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION No. 3271 of 2013 (From the order dated 28.05.2013 of the Delhi State Consumer Disputes Redressal Commission, Delhi in First Appeal no. 76 of 2013) Harish Kumar Chadha Resident of 5/6, Pant Nagar Jangupura Extension New Delhi – 110014 Petitioner Versus 1. The Manager M/s Bajaj Allianz Life Insurance Co. Ltd Unit no. 603, 6th Floor, SG Mall, Plot no. 8 Commercial Complex, DC Chowk, Rohini New Delhi – 110085 2. The Grievance Redressal Officer Bajaj Allianz Insurance Co. Ltd. GF Plaza, Ground Floor, Airport Road Yervada, Pune – 411066 (Maharashtra)

3. Mr Rahul Manchanda C/o Bajaj Allianz Life Insurance Co. Ltd. Unit no. 603, 6th Floor, SG Mall, Plot no. 8 Commercial Complex, DC Chowk, Rohini New Delhi – 110085 Respondents

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

For the Petitioner IN PERSON

Pronounced on 7 th October, 2013

REKHA GUPTA

Revision petition no. 3271 of 2013 has been filed under section 15 of the Consumer Protection Act, 1986 against the order dated 28.05.2013 of the Delhi State Consumer Disputes Redressal Commission, Delhi (‘the State Commission’) in First Appeal no. 76 of 2013.

The brief facts of the case as per the petitioner/ complainant are that the petitioner/ complainant took three life insurance policies which were purchased from M/s Bajaj Allianz Life Insurance Co. Ltd., having their office at that time at Pitampura, later on shifted to Rohini. The policies were purchased in the name of his son Ankit Chadha, his wife Premlata Chadha. All the three policies were sold by Mr RahulManchanda, the agent of M/s Bajaj Allianz Life Insurance Company Ltd., from Pitampura. The purpose of purchasing the above said policies was for the higher education of his son, who was studying in Hindu College at that time. Petitioner was assured by the agent – Mr Rahul Manchanda, if the payment of the premium discontinues, the entire payment made by the petitioner will be refunded along with the premium after three years in any case. No Brochure or policy was issued by the agent at the time of registration.

Thereafter, the petitioner suffered a heavy loss in his business and could not make the payment of the second installment of the premium and the policies lapsed. The company had shifted their office from Pitampura to Rohini, without giving any intimation, neither by phone nor by mail. It was a heavy loss of Rs.60,00,000/- so it was not possible for the petitioner to make the payment of remaining installments of premium.

It was very difficult to find out the new office of the Company from Pitampura because nobody was known to them. Finally, the petitioner got the address from some one of their Rohini office and contacted the Manager of the company Mr Sharma and the petitioner explained him the problem for the refund of the money, but he did not show any kind of sympathy and told the petitioner to come after the maturity of the policies after three years.

After three years, when the petitioner again visited the office of the Bajaj Allianz Life Insurance Co. Ltd., at Rohini and met ShriSharma, Manager of the Company and again he behaved rudely and informed me that he cannot have a refund of his money and the same has been forfeited by the Company as per rules laid down in their policy. Petitioner was not told anything of this kind of rules by Mr RahulManchanda, who has not contacted him after the issuance of the policies. It was a case of cheating as well as fraud by way of misdeclarationof hiding the facts.

Thereafter, he wrote a letter to the Grievance Redressal Officer at their head office for settlement of the dispute in Pune. The letter was written to the Grievance Redressal Officer on 14.05.2010 but nothing has been heard from him till date, as they had not responded to his letter till date and it was an indication of bad intention of the company.

When he did not get any reply from the office of Grievance Redressal Officer, he also made a complaint to the office of the Life Insurance Ombudsman, Life Insurance Building, 2/2A Asaf Ali Road, New Delhi – 110002. Thereafter a format was sent by them and the same was sent after filling the same on the very same day on 09.08.2010, but he had not heard anything from them also. Thereafter, he have decided to approach the District Consumer Disputes Redressal Forum (V) (North West District), Shalimar Bagh for the refund of my valuable money as Bajaj Allianz Life Insurance Co. Ltd., wanted to grab his valuable money by way giving the reference of their untold policy. Petitioner has prayed that the respondent company may kindly be directed to pay the principal amount of all three policies – Rs.95,000/-;

Pay Rs.75,000/- as yearly premium on all the three policies to the petitioner;

Pay Rs.50,000/- to the petitioner for the mental as well as physical harassment and causing severe damage to the health of the petitioner.

In their reply on behalf of the respondents/ opposite parties it has been denied that all the three policies were sold to the petitioner by the same person, i.e., Rahul Manchanda. It was quite evident from the documents of the policy that was issued by the respondent no. 1 that only one policy no. 73116273 has been sourced by the above said person and the remaining two policies, i.e., 0032083435 and 0039891782 have been sourced by Mr Varun Gupta who is an insurance agent of the said insurance company therefore, the averment made by the petitioner is false, wrong and has concocted a misleading storyline to eye wash the Forum.

It was vehemently denied that the agent of the respondent assured the petitioner, that if the payment of premium of the policy discontinues, the entire amount will be refunded along with the premium after three years. The petitioner purchased three policies, i.e., policy no. 0039891782 dated 21.02.2007 for Rs.5,00,000/- in the name of Mr Ankit Chadha (son) of the petitioner and the policy that was issued by the respondent no. 1 was a ‘Capital Unit Gain Size One’ plan, policy no. 0073116273 dated 28.10.2007 for Rs.2,00,000/- again in the name ofMr Ankit Chadha (son) of the petitioner and the policy that was issued was a (Unit Gain Plus Gold) Policy, and the policy no. 0032083435 dated 05.12.2006 for Rs.2,50,000/- in the name of Mrs Prem Lata Chadha (wife) of the petitioner and the policy that was issued was a (New Unit Gain). It was further denied that no ‘brochure’ or ‘policy’ format was shown at the time of registration. It was stated that every term and condition was thoroughly explained by the agent of the opposite party to the petitioner and after accepting all those terms and conditions, the petitioner filled the proposal form and deposited the proposal deposit amount. The plea of not knowing the policy format or conditions was baseless and a concocted story, as before signing all the documents the petitioner was explained each and every term of the policy. The proposal of the petitioner was accepted as proposed and the policies were issued to him. The original policy bond containing terms and conditions of the insurance were duly received by the petitioner and this fact of having received the policy bond has not been disputed by the petitioner. The petitioner was given 15 days free look cancellation period from the date of receipt of the policy body by the petitioner to review the terms and conditions of the contract as per the Policy Holders’ Protection Regulation, 2002 and if he was dissatisfied with the said terms and conditions of the policy, he would have given written notice to opposite parties to cancel the policy within the said period of 15 days from the date of receipt of the policy bond. The petitioner, however, being fully satisfied with the proposed plan and the terms and conditions of the policy bond never approached the opposite parties to cancel the policy within 15 days free look cancellation period and did not return the policy bond seeking refund of premium permissible as per terms of the meaning there by that he was fully satisfied with the terms and conditions of the policy and terms and conditions are deemed to be admitted on the part of the petitioner and that the petitioner was fully satisfied with the policy conditions and has concocted a false story just to mislead the Forum due to some ulterior motives to raise illegal financial gains against the spirit of the contract of insurance and has filed a complaint after expiry of about 4 years from the commencement of the policy on vague and frivolous grounds. Moreover, there is no cutting on the proposal form duly signed by the petitioner in English which proves that the policy in question was issued as proposed by him.

It was vehemently denied that the insurance agent named Mr Rahul Manchanda from M/s Bajaj Allianz Life Insurance Company Ltd., put any extra efforts to convince the petitioner to purchase the said policies by explaining his poor financial situation. All these averments are false, wrong and concocted. The petitioner purchased all the three policies of his own free will and by keeping in mind the future of his son and for his higher education as explained by the petitioner himself in the complaint.

On 05.12.2006 a proposal form was filed by petitioner for life insurance policy vide proposal no. 0032083435. It is further submitted that petitioner opted for a New Unit Gain Plan for a sum assured upto Rs.2,50,000/- by signing the said proposal form. The premium of Rs.25,000/- was paid by the petitioner in lieu of the said policy on 05.12.2006 via cheque and hence policy was issued. The policy was a New Unit Gain Policy with a fixed premium amount of Rs.25,000/-. The premium was for 10 terms. The petitioner was given an option to withdraw by way of partial or complete surrender of units after three years from the date of commencement of the policy (provided premiums had been paid for all the three years).

Another policy was purchased by the petitioner on 21.02.2007. A proposal form was filled by petitioner for life insurance policy videproposal no. 0039891782. Petitioner opted for a Capital Unit Gain Size One plan for a sum assured upto Rs.5,00,000/- by signing the said proposal form. The premium of Rs.50,000/- was paid by the petitioner in lieu of the said policy on 21.02.2007 via direct debit and hence policy was issued. The policy was a Capital Unit Gain Size One policy with a fix premium amount of Rs.50,000/- annually the premium was for 20 terms. The petitioner was given an option to withdraw by way of partial or complete surrender of units after three years from the date of commencement of the policy (provided premiums had been paid for all the three years).

A third policy was again purchased by the petitioner on 28.10.2007. A proposal form was filled by the petitioner for life insurance policies vide proposal no. 0073116273. Petitioner opted for a Unit Gain Plus Gold plan for a sum assured upto Rs. 2,00,000/- by signing the said proposal form. The premium of Rs.20,000/- was paid by the petitioner in lieu of the said policy on 28.10.2007 and hence policy was issued. The policy was a Unit Gain Plus Gold policy with a fixed premium amount of Rs.20,000/- annually. The premium was for 20 terms. The petitioner was given an option to withdraw by way of partial or complete surrender of units after three years from the date of commencement of the policy (provided premiums had been paid for all the three years).

The respondents denied that the office of the respondent no. 1 was shifted without giving any intimation as to every customer a mail was issued and was also informed telephonically about the change of office address from Pitampura to Rohini by the customer care executive from the respondent no. 1 company.

All the three policies that the petitioner opted for are different from each other in every aspect and the said proposal, declaration along with the statement leading to the issuance of the policies referred had been agreed to and accepted by the petitioner, as on the basis of the contract the parties had entered into an agreement after considering all the terms of the policies. Further, a free look period of 15 days was also given to the petitioner for cancellation of the policy. During this period, the petitioner was at liberty to consult with anyone or scrutinize the policy contract himself.

The first policy which was purchased by the petitioner was a New Unit Gain Plan and it commenced from 05.12.2006 and sum assured in the policy was Rs.2,50,000/- with a premium amount of Rs.25,000/- and the premium term of the policy was 10. In this policy, i.e., (New Unit Gain), if any regular premium is not paid before the expiry of grace period, after three policy years, provided premiums for three full years have been paid, the policy shall be kept in force for full sum assured including additional benefits by cancellation of units at the prevailing unit price to recover all charges including charge for insurance covers. The policy will be terminated and fund value would be paid to the policy holder as and when Fund Value becomes equal to the amount of one annual premium.

Similarly a second policy was purchased by the petitioner, i.e., 0039891782 on 21.02.2007 for a sum of Rs.5,00,000/- with a premium of Rs.50,000/- for the policy terms of 20.

Policy Number – 0039891782 was issued based on the proposal form filled and signed by the policy holder where the policy holder has opted for Capital Unit Gain Size only with a regular mode and frequency selected as yearly, which was a market linked policy and the value of the policy was dependent on the unit prices. As per the policy condition the surrender value, if any, is payable only after first three policy years and non-payment of premium will be processed as per the clause mentioned below. If the unpaid regular premium was due during the first three policy years and the policy holder failed to make the payment before the expiry of the aforesaid grace period:

(i) The policy shall immediately lapse along with all insurance covers. (ii) The policy holder may revive the policy within a revival period of two years from the due date of first unpaid regular premium subject always to revival conditions, failing which the contract shall be terminated and 100% of the value of accumulation units in respect of regular premiums as on date of lapse, and the top up premium fund value, if any shall be paid at the end of the third policy year or at the expiry of the revival period, which is ever is later. (iii) If policy is lapsed and the death of the life assured happens, the existing fund value would be paid and the policy will terminate immediately.

Thereafter, another policy was purchased by the petitioner with policy no. 0073116273 on 28.10.2007. The policy holder was assured for a sum of Rs.2,00,000/- with a regular premium of Rs.20,000/- annually. The policy was (Unit Gain Plus Gold) where in case the policy holder has failed to pay the regular premium the policy shall lapse along with all the insurance cover. However, the fund will continue to participate in the market. The policy holder shall have an option to review the policy within the revival period of two years on failing to do so the policy shall be foreclosed. If regular premiums due during the first three policy years had not been paid, surrender value, if any, was payable only after the expiry of the revival period or at the end of the third policy year, whichever was later. The surrender charges applicable incase the regular premium had not been paid within the grace period in the first three policy years, would be 60% of the first years’ Annualized premium.

The District Consumer Disputes Redressal Forum (V) (North West District), Shalimar Bagh, Delhi (‘the District Forum’) vide their order dated 06.11.2012 has observed that “a perusal of the record shows that the policies purchased by the petitioner had lapsed due to non-payment of the yearly premium. The respondent has explained that as per the terms and conditions of the policy the amount payable has already been refunded to the petitioner. The petitioner on his part has not denied that the respondent had acted in accordance with the terms and conditions of the policies purchased by the petitioner.

In the case of United India Insurance Company Ltd., vs Harchand Rai Chandan Lal, the Hon’ble Supreme Court has held that the terms and conditions of the contract entered into between the parties have to be strictly construed and no deviation can be made there from. In view of this we hold that there are no merits in the complaint. The same is accordingly dismissed”.

Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission vide order dated 28.05.2013, while dismissing the appeal in limini, noted that the appellant/ complainant has no case at all, “the duty of the courts towards an agreement is to ensure that the parties to an agreement abide by the terms and condition of the contact between them. A perusal of the terms and conditions of each policy unravels that the OP strictly adhered to, and acted in accordance with the terms and conditions of the policies as held by the trial Forum above. The OP cannot therefore be faulted on this court. The two earlier policies lapsed due to non-payment of the yearly premiums and there remained nothing to be paid towards these two policies and whatever was due for the third policy, was paid through a cheque by the OP to the petitioner”.

We have heard the petitioner in person and have gone through the records of the case carefully.

In the revision petition no cogent grounds have been given to show that the State Commission has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity. Further, his prayer in the revision petition is the same as his prayer in the complaint except that he has prayed for a further amount of Rs.5,00,000/- due to loss of income of his son because he could not enter any higher education due to lack of funds. He has not prayed for setting aside the order of the State Commission.

He has admitted that he had taken three policies and due to problems in his business he could not pay the second premium for all the three policies. He, however, stated that he had been advised by the agent that if the payment of premium discontinued, the entire payment made by him will be refunded along with the premium after three years in any case. He could not support this statement with any evidence. It is also an admitted fact that the policies with the terms and conditions were received by him. He had been given a 15 days free look cancellation period from the date of receipt of policy bond to review the terms and conditions of the contract and return the same if he was dissatisfied. He has admitted that he failed to pay the second installment of the premium of the three policies due to heavy loss of his business. He was also aware of the terms and conditions of the policy which had been issued to him. He was also issued with the premium reminders, as per the reminders placed on record at pages 49 & 50.

In view of the above, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission as also the District Forum warranting our interference. The revision petition is accordingly dismissed with cost of Rs.5,000/- (Rupees five thousand only).

Petitioner is directed to deposit the cost of Rs.5,000/- by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks. In case the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest @ 9% per annum till its realization.

List on 22nd November 2013 for compliance.

Sd/- ..……………………………… [ V B Gupta, J.]

Sd/- ……………………………….. [Rekha Gupta]

REVISION PETITION NO. 3396 OF 2013 (From order dated 12.08.2013 in First Appeal No. 433 of 2013 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Shri Kali Ram Son of Late Sh. Hukmi Singh Residing at 572/20, Om Nagar, Gurgaon, Haryana-122001 … Petitioner

Versus State Public Information Officer-Cum- Deputy Excise & Taxation, Gurgaon (East), Haryana 122001 … Respondent

BEFORE:

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

For the Petitioner : In Person

Pronounced on 9th October, 2013

O R D E R

PER DR. S. M. KANTIKAR, PRESIDING MEMBER

1. The Complainant, Kali Ram, was a Clerk at Check Post Sikanderpur, Gurgaon under the office of

Deputy Excise & Taxation Commissioner, Gurgaon. During his service in the year 1989-90, his

Deputy Commissioner recorded some adverse remarks in his Annual Confidential Report(ACR). The complainant made representation against it but it was unheard. Therefore, he sought information from the Public Information Officer (PIO) of the respondent by an application filed under RTI Act, 2005 but the PIO did not furnish the required information within 30 days and supplied incomplete information after lapse of 28 days thereafter. Therefore, alleging deficiency in service on the part of PIO of opposite party, the complainant filed a complaint before the District Consumer Disputes Redressal Forum, Gurgaon (in short, ‘District Forum’) seeking compensation of Rs.2,00,000/- and sought directions for complete information. The opposite party appeared before the District Forum and stressed upon their point of non-maintainability of such complaint. The District Forum allowed the complaint and held liable the opposite party for deficiency in service and ordered compensation of Rs.5,000/- and Rs.3,000/- as litigation charges to be paid within 30 days. 2. Aggrieved by this order of District Forum, the opposite party filed an appeal before the State

Consumer Disputes Redressal Commission, Haryana (in short ‘State Commission’).

3. It was vehemently argued by the opposite party before the State Commission that as there is provision for filing appeal under the RTI Act, the complainant filed an appeal before the State PIO of the opposite party. The said appeal was dismissed by appellate authority.

4. The State Commission relying upon the law laid down by Hon’ble Supreme Court in the case of Khanapuram Gandaiah vs. Administrative Officer and Ors AIR 2010 SC 615 wherein it was held that the remedy for a party aggrieved against the order of the Public Information Officer lies in a challenge by way of appeal, revision or any other legally permissible mode, allowed the appeal.

5. Against the order of State Commission, the complainant filed this revision petition.

6. We have heard the petitioner, who is present in person at the admission stage. He argued that there was deficiency in service and the complaint was maintainable.

3. The key controversy swirls round the question “Whether there lies a rub for the consumer fora to entertain the case pertaining to the Right to Information Act, 2005 (in short ‘RTI Act’)? The District

Consumer Disputes Redressal Forum partly allowed the complaint on the ground that these cases come within the realm of Consumer Protection Act, 1986. The District Consumer

Disputes Redressal Forum relied upon the following authorities. i) Kalawathi & Others Vs. United Vaish Co-operative thrift & Credit Society Limited, reported in I (2002) CPJ 71 (NC) ii) Fair Air Engineers Pvt. Ltd., & Anr. V N.K. Modi reported in III (1996) CPJ 1 (SC)

iii) DR. S.P. Thirumala Rao vs. Municipal Commissioner, revision petition No. 1975 of 2005 decided on 28th May, 2009

4. We do not locate substance in the arguments advanced by the petitioner. First of all, Sections 22 & 23 of the RTI Act, 2005 are crystal clear, and the same are hereby reproduced:-

“22. Act to have overriding effect :- The provision of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or any instrument having effect by virtue of any law other than this Act. From this, it is beyond doubt that this Act, however, has on overriding effect in that the authorities under this Act may make independent decisions about the question whether such disclosure or non- disclosure has any overriding public interest. Therefore, it may become necessary for the authorities to independently decide whether disclosure of information which itself being an act done in public interest, overweighs the public interest sought to be protected under those enactments.

23 . Bar of Jurisdiction of Courts :- No court shall entertain any suit, application or other proceeding in respect of any order made this Act, and no such order shall be called in question otherwise than by way of an appeal under this Act”.

Again, Section 19 of the RTI Act, 2005, provides procedure for appeal.

5. This view stands emboldened by a recent judgment by a Bench consisting of Hon’ble Mr. Justice J. M. Malik and Hon’ble Dr. B. C. Gupta in the case of Smt. Tasleem Bint Hussain vs. The State Public Information Officer, revision petition No. 737 of 2013 decided on 1st March, 2013 and the judgment rendered by a Bench headed by Hon’ble Mr. Justice Ashok Bhan, President in the case ofT.Pundalika Vs. Revenue Department (Service Division) Government of Karnataka, RP No. 4061 of 2010, decided on 31.03.2011. In this case it was held:-

“Respondent, being aggrieved, filed an appeal before the State Commission, which has been allowed by observing thus:-

“At the outset, it is not in dispute that complainant had filed an application u/s 6 & 7 of the Right to Information Act to the OP No.4. But complainant cannot be considered as a ‘consumer’ as defined under the C.P.Act since there is a remedy available for the complainant to approach the appellate authority u/s 19 of the RTI Act, 2005”.

“ We agree with the view taken by the fora below. Petitioner cannot be claimed to be a consumer under the Consumer Protection Act. There is a remedy available for him to approach the Appellate Authority under Section 19 of the RTI Act, 2005. Dismissed.”.

6. Again, this Commission also took the same view in RP 3276/2012, Pothireddipalli Sugunavati Vs. Territory Manager, Bharat Petroleum Corporation Ltd., decided on 14.01.2013.

7. Hence, this revision petition is devoid of merits, therefore the same is dismissed. .…………SD/-……………… (S. M. KANTIKAR)

PRESIDING MEMBER

Naresh/12 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2023 OF 2013 (From the order dated 19.02.2013 in Appeal No. 410/2012 of the State Consumer Disputes Redressal Commission, UT, Chandigarh)

With IA/3339/2013 (For Stay)

1. Ansal Properties & Infrastructure Ltd. 115 Ansal Bhawan, 16 Kasturba Gandhi Marg, New Delhi – 110001

2. Ansal Properties & Infrastructure Ltd. Regional Office, SCO No. 183-184 Madhya Marg, Sector 9-C Chandigarh …Petitioners/Opp. Parties (OP) Versus Indu Dhir W/o Shri R.K. Dhir R/o H. No. 800, Sector 4, Panchkula, Haryana …Respondent/Complainant

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

For the Petitioners : Mr. Dalip Mehra, Advocate

With Ms. Sugandha Chugh, Advocate

For the Respondent : Ms. Neha Kedia, Advocate

O R D E R

This revision petition has been filed by the petitioners against the order dated 19.02.2013 passed by the State Consumer Disputes Redressal Commission, UT, Chandigarh (in short, ‘the State Commission’) in Appeal No. 410/2012 – Ansal Properties & Infrastructure Ltd Vs. Indu Dhir by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that Complainant/Respondent booked a shop for her own use with OP/petitioners on 6.9.2008 and deposited a sum of Rs.10,71,250/- from 12.9.2008 to

15.1.2009. OP issued allotment letter dated 6.9.2008 and it was also assured that construction would be started immediately and possession would be handed over before December, 2010. As

OP did not start the construction till December, 2010, notice dated 5.3.2012 was issued to the

OP, but no reply was received. Ultimately, complainant requested OP to refund deposited amount with interest. As amount was not refunded, alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that allotment of shop was for commercial purposes; hence, complainant was not a consumer and complaint was not maintainable. It was further submitted that complainant failed to make payment as per given schedule and was defaulter in making payments, complainant was repeatedly requested to make balance payment, but payment was not made. It was further alleged that as per Clause 9 of the agreement, complainant was liable to pay interest @ 21% p.a. on delayed payments and as per Clause 3 & 4 of the allotment letter, OP had right to cancel the allotment in case payment is not made in time. Denying deficiency on the part of OP, prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to refund deposited amount of Rs. 10,71,250/- along with 9% p.a. interest and further awarded Rs.7,000/- as cost of litigation. Appeal filed by the petitioners 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 petitioners submitted that respondent failed to make payment as per terms and conditions of allotment letter though shop was ready for delivery of possession; even then, learned District Forum committed error in allowing refund of full amount along with interest and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside and complaint be dismissed. 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. It is admitted case of the parties that OP allotted shop to the complainant for a sum of

Rs.30,00,000/- and payment was to be made as per construction linked instalments plan. It is also not disputed that complainant deposited Rs.10,71,250/- with the OP. As per Clause 10 of the allotment letter, construction of shop was likely to be completed within 2 to 2½ years from the date of commencement of work meaning thereby construction was to be completed in 2½ years from the date of commencement of work. As per instalment plan, Rs.4,50,000/- were payable on start of construction. From the record it is not clear when construction started, but as

Rs.1,90,625/- were paid by the complainant on 15.1.2009, it may be presumed that construction must have started after 15.1.2009 and it was to be completed by 15.7.2011. This is also not disputed that complainant has not made any payment on start of construction and on casting of roof of basement, ground floor, etc. inspite of reminders dated 17.12.2009, 9.3.2011, 16.5.2011,

12.7.2011, 7.9.2011, 7.10.2011, 14.11.2011 and 13.2.2012.

6. As per clause 3 of the allotment letter, if payments are not received by the OP within the stipulated period, OP at is discretion had a right to cancel the allotment and in that event, earnest money i.e. 20% of the allotment price of the shop was liable to be forfeited. OP by letter dated

25.7.2012, cancelled booking made in favour of the complainant and forfeited 20% of the basic price.

7. Learned Counsel for the petitioner submitted that as respondent failed to make payment as per terms and conditions of allotment letter, petitioner had every right to cancel the allotment and forfeit 20% of the basic price. Perusal of record clearly reveals that respondent failed to deposit amount as per terms and conditions of allotment and petitioner by letter dated 25.7.2012 cancelled the booking and forfeited 20% of the basic price which is as per terms and conditions of the allotment letter and respondent is not entitled to get refund of whole amount deposited with the petitioner.

8. Learned Counsel for the respondent submitted that as petitioner has not carried out construction work for a long period, respondent was entitled to get refund of whole amount deposited by him along with interest and learned District Forum rightly allowed complaint. This argument is devoid of force because as per occupation certificate dated 7.3.2012 issued by

Greater Mohali Development Authority, occupation certificate has been issued for the allotted shop etc. in favour of the petitioner. Thus, it becomes clear that construction of the allotted shop has been completed before 7.3.2012, though; it should have been completed by 15.7.2011 meaning thereby, some delay has been caused in completion of construction. Merely because there is some delay in completion of certificate, petitioner is not entitled to get refund of the amount, rather petitioner could have been entitled for grant of compensation and interest on the deposited amount for delayed period had he deposited all the instalments as per instalment plan. As respondent has not deposited amount as per instalment plan, petitioner was not under obligation to construct the shop within the stipulated period and in such circumstances, on account of delay of some months in completing construction, respondent is not entitled to any interest on the deposited amount.

9. Perusal of record reveals that complaint has been filed on 26.3.2012 whereas occupation certificate has been issued on 7.3.2012 meaning thereby, complaint has been filed for the purposes of avoiding possession of the shop which cannot be permitted. Respondent was under an obligation to make payment of the instalments and get possession of the shop, but he has failed to make payment and his allotment has been cancelled as per terms of allotment letter and he is entitled to get refund of money only after deduction of 20% of the basic price. Learned

District Forum has committed error in allowing refund of full amount and learned State

Commission has further committed error in dismissing appeal.

10. Learned District Forum while allowing complaint observed in paragraph 7 of the order as under:

“Further, it is also evident that the complainant has not made complete payment to the opposite party and is a defaulter. The complainant is now seeking refund. We do not think that the opposite party should have any objection in refunding the amount paid by her for the booked property. If the property is ready for possession, the opposite party will be able to find many buyers for the same. Non-payment or inability to pay should not be held as a ground to refuse refund. The money paid belongs to the complainant and she does have a right to ask for refund”.

11. Reasoning given for refund of amount is not convincing because it cannot be expected from the OP to find buyer and refund money to the complainant who was unable to make payment of rest of the instalments.

19.2.2013 passed by learned State Commission in Appeal No. 410/2012 – Ansal Properties &

Infrastructure Ltd Vs. Indu Dhir and order dated 10.10.2012 passed by District Forum in

Complaint No. 170 of 2012 – Indu Dhir Vs. The Managing Director, Ansal Properties & Infrastructure Ltd. is modified and petitioner is directed to refund Rs.4,71,250/- along with 12% p.a. interest from 25.7.2012, the date of cancellation of booking till payment. Parties to bear their own costs.

………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION No. 3869 of 2008 (From the order dated 09.06.2008 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in Appeal no. 661 of 2008)

Life Insurance Corporation of India Branch Manager Naidupetta Branch Nellore District Through Assistant Secretary Northern Zonal Office Jeevan Bharti, Cannaught Circus New Delhi Petitioner Versus N Shanker Reddy Son of Late Sarasamma Resident Malakalapudi Village Chittamuru Mandal District Nellore, Andhra Pradesh Respondent

BEFORE:

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

For the Petitioner Mr Ashok Kashyap, Advocate For the Respondent Mrs R Radha, Advocate

ORDER REKHA GUPTA

Revision petition no. 3869 of 2008 has been filed under section 21 (b) Consumer Protection Act, 1986 by the petitioner/ Opposite party against the order dated 09.06.2008 in Appeal no. 661 of 2008 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (‘the State Commission’).

The brief facts of the case as per the respondent/ complainant are that the respondent is the son of a policy holder N Sarasamma. The said Sarasamma took two policies bearing no. 650696766 and 840116947 with accident benefits. Subsequently she died on 05.04.2003 by accidental slip from upstairs.

Respondent submitted a claim form to the LIC herein, requesting to pay the accident benefit also. Instead of settling the claim under accident benefit, the LIC settled the claim only for the policy amount and paid Rs.14,510/- vide cheque dated 17.06.2003 for policy no. 840116947 and Rs.75,640/- vide cheque dated 27.06.2003 for policy no. 650696766. Admittedly it was an accidental death as per the statements recorded by the sarpanch, village Secretary and Mandal Revenue Officer,Chittamur. As it was an accidental death, LIC was liable to pay another sum of Rs.14,510/- and Rs.75,640/- under the above said two policies which was an accidental benefit as per the terms of the policy. But the respondent failed to do so. Thus, there was a clear deficiency of service on the part of the LIC in not settling the claim under the accident benefit scheme though it was confirmed that it was an accidental death. Hence, this complaint.

Respondent/ complainant has prayed before this Commission to direct the LIC to settle the claim under the accident benefit scheme in the policies referred to above, i.e., to pay Rs.14,510/- and Rs.75,640/- along with interest from the date of the claim; grant cost of this complaint; to pay damages of Rs.10,000/- to the respondent; and grant such other and further reliefs.

In the counter filed by the petitioner/ opposite party (LIC), they have admitted that it was true that two policies were issued on the life of N Sarasamma with policy no. 650696766 and 840116947 for sum assured of Rs.40,000/- and Rs.10,000/- with date of commencement of risk as 11.09.1990 and 28.07.1996 respectively. Both the policies were issued with accidental benefit facility.

As per the conditions and privileges of the policy bond, condition no. 10-2 under the caption “Accident Benefit” an additional sum equal to the sum assured would be paid if the life assured should sustain bodily injuries resulting solely and directly from the accident which result into the death of the life assured and the same was proved to the satisfaction of the corporation.

To prove the death by accident, either police report or hospital records confirming the death as accidental were to be produced. In this case, no such reports were submitted. A copy of the statement of some of the villagers of the deceased life assured which were signed by thepanchayat Secretary and Mandal Revenue Officer from the alleged records of MRO, Chittamur vide LD NO. 413/ 2003 dated 06.04.2003 only was produced. But MRO Chittamur vide letter RCA 148/2004 dated 02.04.2004, in reply to the Senior Divisional Manager, United India Insurance Co. Ltd., Nellore LD NO. 413/ 2003 has dealt with the correspondence of the fire accident subject related to Mettu village and honorarium paid in favour of Shri SK Ramthu Sahab son of Khader Saheb of Mettu village but it does not relate the alleged accidental death of N Sarasamma of Molakalapudi village. Hence, the accidental death has not been proved to the satisfactory of the insurer.

Hence, nothing was payable towards accident claim. No costs, no damages as further reliefs were payable as accidental death was not properly established. Hence, the CD should be dismissed with heavy costs.

District Consumer Disputes Redressal Commission, Nellore, (“the District Forum’) vide order dated 07.03.2008 while holding that “it is not in dispute that the respondent/ complainant’s mother N Sarasamma obtained two policies with accidental benefits. As per exhibit A 4 the deceased life assured N Sarasamma died in an accident while the policy was inforce. The nominee is also entitled the accidental benefits. It is also not in dispute that the respondent/ complainant is a nominee for the said two policies. So under these circumstances, the opposite party – LIC only paid Rs.75,640/- and Rs.14,510/- under two policies. But the opposite party did not pay the accidental benefits under two policies. So non-payment of the accidental benefits to the nominee who is the complainant/ respondent herein amounts to the deficiency of service on the part of the opposite party. So the affidavit of the complainant coupled with Ex A1 to Ex A6 clearly established the guilt of deficiency of service on the part of the opposite party. The complainant established the deficiency of service on the part of the opposite party. Accordingly, this point is answered in favour of the complainant against the opposite party.

The District Forum ordered that the complaint is partly allowed with cost of Rs.2,000/- and directing the opposite party to pay an amounts of Rs.14,510/- and Rs.75,640/- under the two policies to the complainant together with interest per annum on 14,510/- and Rs.75,640/- from the date of filing of this complaint i.e., from 23.02.2004 till the date of realisation and the opposite party is directed to deposit the above said amount within one mother from the date of receipt of this order”.

Aggrieved by the order of the District Forum the petitioner - LIC filed an appeal before the State Commission. Vide order dated 09.06.2008, the State Commission came to the conclusion that “we have her clinching evidence that the death is accidental. We have already given our opinion as per it. Coming to the facts the complainant proved that the death of his mother is an accidental death. The District Forum has correctly came to the finding holding that it is an accidental death and the complainant is entitled to the double accidental benefits as provided on the policy. It is a well-considered order. There are no grounds to interfere with the order of the District Forum.

In the result the appeal is dismissed at the admission stage”.

Hence this present revision petition.

The main grounds for the revision petition are that:

 Both the Fora below have failed to see that there was no averment in the pleading or evidence placed on record to show that the life assured had fallen from the staircase and died due to the said fall.  Both the Fora below have failed to see that there is no evidence like police report, post-mortem report, Doctor’s certificate showing the cause of death due to accident.  Both the Fora below have failed to see that the complainant did not mention under what circumstances she fell from the staircase and what injuries she suffered due to alleged fall and the complainant failed to establish that the death of her mother was due to fall from staircase.  Both the Fora below have failed that the principle laid down by the Kerala High Court reported in AIR 1986 Kerala 201 (DB) that “in such contracts as one party is in very strong position to know the material facts and the other is in very weak position to discover them. The former is under duty not only to abstain from making false representations of material facts but also to disclose, in good faith, such materials facts as are within the knowledge of other party”.  Both the Fora below have committed material irregularity and illegality and have exceeded their jurisdiction by allowing the accident Benefit. Moreover, even if the case of accident benefit is made out, it is only an equal sum of the policy amount is to be paid and no bonus and interest can be granted under the terms of the policy.

We have heard the learned counsel for the petitioner as well as the respondents and have gone through the records of the case carefully.

It is an undisputed fact that the respondent’s mother had taken two policies bearing no. 650696766 and 840116947. Thereafter, as per the respondent she died on 05.04.2003 by accidental slip from ‘upstairs’. The respondent has nowhere mentioned in the complaint as to when the accident took place and the circumstances of the accident. He has also not mentioned the injuries sustained and what action was taken after the accident. The respondent has also not mentioned who discovered his mother after she fell down and what action was taken for getting hermedical aid. It was also not clear from the complaint as to when she fell and when she died. The respondent has filed the claim for insurance which has been repudiated by the petitioner as there are no documents to prove that the incident of death was by accident. There is no police report, no death certificate, no post mortem report and no certificate by any Doctor certifying the cause of death. The only proof given is the statement made by the villagers of the deceased life insured and the Panchayat Secretary and MRO from the alleged records of the MRO Chittamur village LDO no. 413/ 2003 dated 06.04.2003. The petitioner has placed on record the letter from MRO Chittamur dated 02.04.2004 which reads as follows:

“Subject: Issue of public copy of file bearing no. L Dis. 413/2003-dt.Reg

Reference: Senior Divisional Manager, Lr. Dt. 02.04.2004.

With reference to the letter cited it is informed that this office file bearing no. L Dis. 413/2003 dated 12.05.2003 dealt with the correspondence of fire accident subject relates to Mettu village. Honorarium paid in favour of Sri S K M Saheb son of Khadar Saheb ofMattu village, but it does not relate the alleged accidental death of N Sarasamma of Melakalapudi village.

Yours faithfully,

Mandal Revenue Officer Chittamur”

The District Forum surprisingly allowed the complaint on the ground that the burden “lies on the opposite party to establish the death of N Sarasamma is a natural one”…………. When the OP took the plea that the death of Nemalapudi Sarasamma is a natural one. But to prove no scrap of paper was filed to show that N Sarasamma death is a natural one”.

It further held that “it is the case of the complainant that the complainant’s mother N Sarasamma died due to falling from the staircase and that they did not give any report to the police about the death of N Sarasamma as it was an accidental one. So the police reports and other records were not available. The production of police reports and other records is not required”.

It is not known and on what basis the State Commission has held that “as per the complainant after the insured fell down accidentally from the upstairs she died while taking to the hospital. The matter was not reported to the police. When the matter itself is not reported to the police, registering the case by police and conducting inquest and post mortem on the deceased does not arise. When death occur by accidental slip etc., nobody would report to the police. It is not an offence. She cannot complain against herself for slipping from the steps. The appellant intends that every accidental death should be equated to a death like a death by motor vehicle accident. We believe that the appellants are in confusion over the expression ‘accident’. She must not have anticipated slip from the steps would result in her death norher family members. In such cases, there will not be any report to any authority. The District Forum has elaborately discussed and gave finding”.

In the absence of any records, the respondent has failed to give any affidavit of any person who was present at the time of accident or death. Even the panchanama report given by the Panchayat Secretary merely says what was given in the complaint that N Sarasamma had fallen down from the stairs and she was taken to Nellore by road and she died on the way. In fact, this fact has not been mentioned in the complaint. There is no other information with regard to the injuries sustained and when the death occurred. This report has been allegedly signed by the Mandal Revenue Officer, Chittamur, though, later he has stated as mentioned earlier, that the incident bearing no. L Dis 413/ 2003 dated 12.05.2003 does not pertain to N Sarasamma.

We are of the view that the respondent has failed to prove that the death was caused was due to accident. No evidence has been placed on record by the respondent to establish the same. Hence, 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 cost.

Sd/- ..……………………………… [ V B Gupta, J.]

Sd/- ……………………………….. [Rekha Gupta] Satish NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION No. 3741 of 2008 (From the order dated 07.07.2008 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in Appeal no. 1478 of 2007) New India Assurance Company Ltd., Divisional Office 1st Floor, Near CBS Old Agra Road Nasik – 422002 (Maharashtra) Through Manager Regional Office – 1 Jeevan Bharti Building 124 Cannaught Circus New Delhi – 110001 Petitioner

Versus

Smt Manish Abhay Bedmutha Resident of Post Ghoti Tal: Igatpuri District Nasik – 422002 (Maharashtra)

Nasik Merchant Co-operative Bank Ltd. Administrative Office A – 16 Industrial Estate Babubhai Rathi Chowk Satpur, Nasik – 422002 (Maharashtra) Respondents

BEFORE: HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER HON’BLE MRS REKHA GUPTA MEMBER For the Petitioner Mr Kishore Rawat, Advocate For Respondent no. 1 Mr Sunil C Surana, Advocate For Respondent no. 2 Ms Jyoti U Panwalkar, Advocate

REKHA GUPTA

Revision petition no. 3741 of 2008 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the order dated 07.07.2008 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in First Appeal no. 1478 of 2007.

The facts of the case as per respondent no. 1/ complainant are as follows:

The respondent no. 1 submits that as a wife/ widow of the deceased Dr Abhay Bansilal Bedmutha, the respondent no. 1 is the legal heir of the deceased Dr Abhay Bansilal Bedmutha who was the consumer of the petitioner. The respondent no. 1 is therefore, entitled to file the instant complaint against the petitioner.

The respondent no. 1 submits that deceased Dr Abhay Bansilal Bedmutha had a bank account with respondent no. 2 - Bank and was a shareholder/ member of the respondent no. 2 – Bank. The deceased was a consumer of both the Insurance Company as well as the Bank. The respondent no.1 submits that respondent no. 2 - Bank canvassed a Group Janata Personal Accident Insurance Scheme for all of its shareholders/ members, floated by the insurance company. Accordingly, the deceased Dr Abhay Bansilal Bedmutha purchased the said accident insurance policy for Rs.5,00,000/- under the Group Janata Accident Insurance policy bearing no. 47/98/300232 from the Insurance Company through the Bank and paid premium amount of Rs.340/- to the insurance company by the deceased Dr Abhay Bansilal Bedmuthatowards the insurance coverage through the Bank. The said accident insurance policy was valid for 12 years from the date of purchase thereof i.e., till 17.11.2010 and the same was/ is still valid on the date of accident vis-à-vis the death of the deceased. Rs.5,00,000/- is the amount assured against any type of disability and in case of death. All the necessary records and particulars regarding the said accident insurance policy coverage concerning to the deceased are in possession of the insurance company.

On 14.10.2008 at about 07.00 p m while going to Vashi on his Hero Honda bearing registration no. MH 03 U 824, at Sion-Panvel Road, near New Toll Naka, in the jurisdiction of Vashi Police Station, the deceased Abhay Bansilal Bedmutha was unfortunately hit by an S T Bus of MSRTC from behind and sustained grievous bodily injuries.

Immediately the deceased was taken to the M G M N Hospital, Vashi. However, on admission the deceased was declared dead.

The respondent no. 1 being a widow and legal heir of the deceased Dr Abhay Bansilal Bedmutha, submitted duly filled in claim application to the Bank on 13.11.2006 with the request to process her claim of assured insurance amount of Rs.5,00,000/-. Thereafter, the Bank, after filling the required information in the said application, sent the said application to the insurance company along with all the necessary documents viz., claim application, a copy of the FIR and Panchnama, Death Certificate and Memorandum of Post Mortem Report dated 14.10.2006, issued by NMMC General Hospital, Post Mortem Centre, Vashi and other related papers for processing the claim of the respondent no. 1 as per the insurance policy. The said claim application along with the other referred documents have been duly submitted in the office of insurance company by the Bank.

Thereafter the insurance company vide letter dated 06.12.2006 informed the Bank with a copy marked to respondent no. 1 rejecting the claim on the ground that petitioner had cancelled the insurance policy of the deceased allegedly with effect from 04.06.2002 and also as the claim allegedly lodged is after the purported date of cancellation of the policy. However, no such information of alleged cancellation of the insurance policy was ever given to the deceased or to any of its relatives/ legal heir, as falsely claimed by the Insurance Company.

The respondent no. 1 further submitted that the alleged act of the insurance company was unilateral and arbitrary cancellation of policy of the deceased was not only illegal, bad in law, absurd, void-ab-intio but also untenable in law. The insurance company had neither informed the reasons of alleged cancellation of policy prior to the date of the cancellation nor sought any consent prior to the alleged cancellation of policy either to the deceased or the insurance company, nor refunded the premium amount of Rs.340/- so collected by the insurance company for the insurance coverage, when the insurance company allegedly cancelled the policy. Respondent no. 1 therefore, submitted that the aforesaid alleged act of unilateral and arbitrary cancellation of the policy of the deceased and rejection of the claim by the insurance company was nothing but an attempt to avoid the payment of guaranteed insurance amount of Rs.5,00,000/- by illegal and improper means. Therefore, the said alleged action of the insurance company are required to be set aside and they were directed to pay the assured insurance amount of Rs.5,00,000/- with compound interest on monthly basis, at the prevailing market rate.

The petitioner/ opposite party no. 1 in their report before the District Consumer Disputes Redressal Forum, Nasik (‘the District Forum’) while admitting that there was Janata Personal Accident (Group) Policy of Rs.5,00,000/- of the deceased through the Bank by the Insurance Company bearing no. 47/00344 with endorsement no. 47/30232 stated that the same was subsequently cancelled with effect from 04.06.2002 under the terms and conditions of the policy authorising the company to terminate the same at any time and accordingly such notice dated 20.05.2002 was given to the Bank which was duly received by it. Not only this policy was cancelled but the policy of all other branches of NAMCO Bank were also cancelled at the same time. However, while cancelling the policy the pro-rata premium was required to be refunded as per condition no. 5 of the terms and conditions of the policy which was not done by the company and as such there was technical-cum-legal hitch in treating the policy as cancelled legally. Thus, the said cancellation of policy had automatically became infructuous.

The accident in the present case seems to have taken place on 14.10.2006 but prior to that the insurance company vide its letter no. 410 dated 06.09.2006 had informed the Bank, Ghoti Branch about the cancellation of policy with effect from 15.09.2006 and had sent a consolidated cheque no. 91913 dated 05.09.2006 of Bank of India for Rs.59,056/- towards refund of proportionate premium in each case to be refunded to concerned members of the Bank of Ghoti Branch but strangely enough the Bank had returned the amount by DD no. 817633 vide letter dated 15.09.2006 for no just and proper reason unilaterally and that too without the knowledge/ consent of the insured persons including the deceased of the company. The Bank ought not to have returned the amount of refund of pro-rata premium to the insurer. By returning that amount, the bank had run a risk of compensation for future period, i.e., from 15.09.2006. In order to safeguard Bank’s interest and risk, the insurance company had sent back that DD to the Bank vide its letter dated 07.02.2007 through which it was also again apprised of the fact that irrespective of the fact whether they accept the cheque/ DD or not, this company would not be at risk (liability) with effect from 15.09.2006, in view of the cancellation of policy and refund of pro-rata balance premium as per condition no. 5 of the policy. Bank was also asked to refund the aforesaid premium to the members concerned as per the list which had been already forwarded to them vide Company’s earlier letter.

As the subject policy was a group accident policy through the Bank it was not expected to inform each and every individual by the insurance company when the Bank was under obligation to inform of the development with regard to the policy to its members.

The Bank having accepted the refund of pro-rata premium for the period from 15.09.2006 onwards they or the respondent/ complainant cannot now say that the policy was in existence on the date of death of the deceased in this case.

The written statement of respondent no. 2/ opposite party no. 2 has not been filed. However, as per the order of the District Forum the respondent no. 2 had openly “taken the side of the complainant and they have declared and the fault is given to the OP no. 1. According to their (Bank) saying they have no concern with the above dispute and they should be released from the above case and such prayer they have been made”.

After hearing the learned counsel for the parties, the District Consumer Disputes Redressal Forum, Nasik (‘the District Forum’) observed that “the opposite party no. 1 is taking the shelter of conditional no. 5 which is out of the conditions which are the terms and conditions of the agreement deed. According to condition no. 5, that after giving the written notice the insurance policy can be cancelled and the right of which is with the Insurance Company this notice is to be sent to that person who had taken the policy. But before how many days the notice is to be given about which it is not clearly mentioned in it. In spite of it, in our opinion, it is essential the limitation of generally within 30 days. The insurance company has been admitted that they have given the notice to the opposite party no. 2 only of the cancellation of the policy. The opposite party no. 1 had mentioned the same under paragraph no. 7 B in their written statement that it is not expected to send the notice to every consumer personally. It means that the opposite party no. 1 had not sent any notice to any consumer about the cancellation of the policy. In this way the opposite party no. 1 has violated the condition no. 5. In this section he had been given the right to cancel the policy. But in our (Forum’s) opinion they cannot do that. The explanation of which we are giving further.

The limitation of the policy is for 12 years it means from 18.11.1998 to 17.11.2010 and on this faith the deceased Dr Abhay and others have taken or purchased the policy and if that policy cancelled in the mid period then this is breach of trust of the consumers which we feel. It is OK till that period when the recovery of the money is done from the consumer and till that period when the interest of which is remained and obtained and when it is traced out about the damages the policy is to be cancelled which is not framed in the legality.

The opposite party no. 1 had filed one letter to the last moment, the date of which is 23.09.2001. In this letter the opposite party no. 1 had shown such reasons at the time of cancellation of the policy that the number of consumers was increased in the period of three years and on account of which we are facing a loss in a very big extent, therefore, we are cancelling the insurance policy. What is the type of this justice which is beyond to the imagination, these companies shown the temptation at first, then contribute the money, they earn the benefit of it and when the turn comes to giving the money then they breach their promises and agreement. For such system there is no shelter or base of act. It is OK that they were having the right to cancel the policy. But why this policy is cancelled the strong reasons of which is wanted which is given by the Gujarat High Court in its judgment and about which instantly we have mentioned according to the above given.

The opposite party no. 1 had which insurance policy was cancelled in the year 2002 that was taken back and after that the policy was cancelled from 15.09.2006. This information was given to the opposite party no. 2 by the opposite party no. 1 on 06.09.2006. The opposite party no. 1 (Insurance Company) had sent one letter with the demand draft and sent one letter to the Ghoti Branch and it is mentioned in it that after date of 15.09.2006 they are not responsible. Therefore, the date of the letter is very much important. Deceased Dr AbhayBedmutha had died due to an accident on 14.10.2006 and after that nearly about four months that amount sent to his widow under the reference of prereted. The meaning of it is as such that the insurance policy was live till 07.02.2007 and before it Dr Abhay Bedmutha had died. In these circumstances, also the right for getting the full policy amount is with the respondent/ complainant certainly, according to the law.

In our opinion the opposite party no. 2 had no concern about to take and give the policy in any kind in the above case. No error is seen in their services. The error is seen certainly in the service of the opposite party no. 1 they had vitiated the agreement”.

They therefore gave the following order:

(i) The complainant application of the complaint against the opposite party no. 1 is admitted with the expenses of Rs.5000/-. (ii) The opposite party no. 1 should pay Rs.5,00,000/- and the interest at the rate of 18% per annum from 13.11.2006 till that period to getting the full payment. Similarly for the mental/ psychological harassment the damages amount of Rs.10,000/- should be given to the complainant within 30 days and if the delay is occurred for making the payment then the opposite party no. 1 should pay the interest rate of 12% per annum. (iii) The complaint application is dismissed without any expenses against the opposite party no. 2.

Aggrieved by the order of the District Forum, the petitioner/ OP no. 1 filed an appeal before the State Commission. The State Commission also held that “such a cancellation is bad in law and cannot be acted upon. Therefore Forum below in our considered view rightly held that complainant was entitled to get benefit of policy, since the said policy was cancelled arbitrarily and not following the provisions contained in clause no. 5 of the policy, whereby company was given unilateral right to cancel the policy. When Insurance Company is cancelling the policy, it has to cancel the policy strictly as per clause no. 5 of the said policy and if clause no. 5 is not properly followed, then Insurance Company cannot be heard to say that they had followed clause no. 5 and cancelled the Janata Personal Accident Group Insurance policy pertaining to respondent no. 1. In this view of the matter order passed by the Forum below is appearing to be just and proper. Even affidavit filed on behalf of Insurance Company mentions that they have committed legal blunder while cancelling the policy with effect from 04.06.2002 when in fact they had not refunded pro-rata premium to all the policy holders. So company has committed violation of terms mentioned in clause no. 5 of the terms of the said policy and therefore, they cannot take benefit of cancellation clause. Forum below therefore rightly passed on award against the appellant and we are finding no merit in this appeal. Hence, at the stage of admission itself, appeal will have to be rejected summarily. Hence, the following order:

Appeal stands rejected summarily. Miscellaneous application for stay stands disposed of”.

Hence, the present revision petition. The main grounds for the revision petition are as follows:

 The cancellation of the policy was strictly as per the terms and conditions of the policy and the Hon’ble Supreme Court and the Hon’bleCommission has held that if the policy is cancelled in terms of the policy condition, the same cannot be challenged by the insured. The policy condition no. 5 contemplates that the cancellation notice has to be sent to the insured and such notice shall be deemed sufficiently given if posted at the address of the insured last registered in the books of the company. In the present case as well as the registered letter was posted to the insured at the address given in the policy and available in the records of the petitioner company.  Once the policy was cancelled, the question of payment of claim does not arise. The complaint itself was not maintainable as there was no privity of contract between the complainant and the petitioner company. The complainant in any case was not entitled to challenge the cancellation in any manner as she was not privity to the contract. The cancellation having been not challenged by the insured could not have been challenged by the complainant.  The State Commission erred in recording the finding that the letter refunding the cheque was dated 07.02.2007 it is submitted that the cheque of refund of premium was sent vide letter dated 06.09.2006 and the Bank who is the insured under the policy was duly acknowledged the same on 09.09.2006. The finding of the State Commission therefore, is against the evidence on record. It is not understood as to from where the State Commission has taken this date as 07.02.2007.  The Fora below further erred in holding that the cancellation per se is illegal as the cancellation of the policy has not been informed to the individual member. It is submitted that the policy was issued in the name of the Bank. As per condition no. 5 of the policy, the termination notice has to be given to the insured. The notice was duly given to the insured on 20.05.202. It was therefore, the duty of the Bank to have intimated to the individual member/ account holder. If the bank has not intimated the cancellation to the individual member, the insurance company cannot be found at fault.  As submitted above, the cancellation of the policy was not challenged, either by the bank or the individual member on receipt of the cancellation letter in May 2002. Even after the refund of the premium in 2006, there was no protest of any kind either from the bank or from the individual member. In the circumstances, therefore, the widow of the deceased member cannot challenge the cancellation of policy. Right to challenge is vested with the Bank being the insured under the policy. The Consumer Fora cannot go into the correctness of the policy condition and the question as to whether the cancellation was valid or not. The jurisdiction of the Consumer Fora can only be invoked if there is a privity of contract. Once there is no privity of contract, the complainant is not a consumer and therefore, the complaint itself was not maintainable.  The complainant, if aggrieved, could have challenged the cancellation of the policy, if permissible in law in a writ jurisdiction and not under the Consumer Protection Act.  In any case the insurance company be held liable because of violation of Section 64 V B of the Insurance Act. The petitioner had already refunded the premium prior to the accident and therefore, in the absence of any premium, the insurance company cannot be held liable. If the premium has been retained by the bank and not refunded to the individual member, it is the Bank who is liable and not the insurance company.  Because in any case the interest awarded at 18% per annum by the District Forum is excessive, exorbitant and against the well settled law laid by this Commission and the Hon’ble Supreme Court.

We have heard the learned counsel for the parties and have gone through the records of the case carefully.

A copy of the policy has been placed on record. It is seen from the policy that the policy was in the name of respondent no. 2, i.e., the Nasik Merchant Co-operative Bank Ltd.,/ OP - Bank and not in the name of respondent no. 1. Hence, when the petitioner invoked clause no. 5 of the conditions it issued a letter dated 20.05.2002 regarding cancellation of JPA (Long Term) Policy/ Endorsement no. 47/30109, 30232, 30647, 30704 and 30804. The said notice was issued to the Branch Manager of the NMC Bank Ltd., The letter reads as follows:

“This has reference to your above mentioned policy/ endorsement.

We regret to inform you that as the claim ratio on the referred policy is very high we will be cancelling the policy, evoking our condition no. 5 with effect from ______

The condition no. 5 reads as under:

The company may at any time by notice in writing terminate this policy provided that the company shall in that case return to the insured the then paid premium in respect of such person respect of whom no claim has arisen, less prorate part thereof for the portion of the insurance period which shall have expired. Such notice shall be deemed sufficiently given if posted addressed to the insured at the address last registered in the Company’s books and shall be deemed to have been received by the insured at the time when same would be delivered in the ordinary course of post.

Needless to mention that as the policy stands cancelled with effect from 04.06.2002 on claim of whatsoever nature will be entertained/ tenable/ payable for any damages occurred on or after 04.06.2002 which please note”.

Thereafter the petitioner realised that since the said premium on this pro-rata part thereof for the portion of the current insurance period had not been released the said notice had become infructuous. Thereafter they sent another letter dated 06.09.2006 addressed to the Manager, Ghoti Branch of Nasik Merchants Co-operative Bank Ltd., which read as follows: “Subject : Long term JPA Policy issued for a period of 12 years from 1998 covering your shareholders and members vide our policy no. 152801/47/30 as per list attached issued to your branch for the period as per list attached.

We hereby notify you that Long Term JPA policy was issued for a period 12 years with effect from 1998 covering your shareholders and members vide aforesaid endorsement stands terminated.

Please note that we have already cancelled the aforesaid endorsement vide our letter dated NIL and accordingly proportionate premium being refunded to you. Consequent to the cancellation of the policy and refund of proportionate premium for the remaining period ofananta personal accident policy (group) A/C M/s Nasik Merchants Cooperative Bank. The New India Assurance Co. Ltd., will be discontinued and the company will no longer be on risk and will not be liable in respect of any claim arising under the said policy with effect from 15.09.2006.

Please find enclosed a cheque no. 91913 dated 05.09.2006 for Rs.59,056/- being proportionate amount of premium refunded to you. This refund is being made on account of the policy holders on whose account you had obtained the above mentioned policy. Please take further necessary steps to refund the proportionate amount to shareholders/ members of the bank. The copy of the list of all your insured members that were covered under the policy is on your record.

Please note that the persons covered under the endorsement was as per list attached. Claims were reported on this endorsement, hence, refund of _____ persons were made through this payment.”

As per the learned counsel for respondent no. 2, thereafter it had written to petitioner vide letter no. 15.09.2006 that:

“Your letter with a cheque of Rs.59,056/- dated 09.09.2006 bearing no. 091913 of Bank of India, Shiwaji Garden Branch, Nasik is received in respect of aforesaid reference. In this respect your attention is invited to your letter of May 2002.

As per that letter you had intimated about the cancellation of policies with effect from 04.06.2002 but as per that letter and its annexure date of cancellation is shown as 15.09.2006 and that date onwards you have refunded the amount which is contrary to your letter of May 2002. As per your letter of May 2002, the Bank has published advertisement in daily Deshdoot dated 28.05.202 about the cancellation of JPA policies taken from your company for the amount of policy below Rs.1,00,000/-. However, while deducting the pro- rata it was necessary to deduct the amount upto 04.06.2002 and to send the amount for further remaining period. Similarly, it was necessary to give interest @ of 15% per annum on that amount for the period from the date of credit of that amount with you till the refund of that amount.

As you failed to do so we are sending herewith a pay order no. 817633 for Rs.69,056/- dated 15.09.2006 against the cheque sent by you vide your aforesaid letter, which may please be acknowledged and take the necessary action promptly.

Also note that policy would be in existence till date of refund of the amount with interest thereon for the remaining period from 04.06.2002 onwards.”

The cheque was thus returned to respondent no. 2 by the petitioner vide letter dated 07.02.2007 stating that: “ It is further stated that we had cancelled the policy with effect from 04.06.2002 no refund of proportionate premium as per condition no. 5 was refunded and due to this fact a legal hitch was created. Due to this hurdle we had to shoulder the liability (risk) even for further period from 05.06.2002 though the policy was cancelled earlier.

To overcome further liability, we have refunded the proportionate premium by the cheque of which was returned by you unilaterally and that too without the knowledge/ consent of the insured persons.

Hope the matter may now be cleared to you about the cancellation of policy, with effect from 04.06.2002 and refund of balance premium. It is further added to state that it was now, not necessary to refund the proportionate premium for the period from 05.06.2002 onwards, only after deducting the prorata premium upto 15.09.2006 especially in view of fact, that no refund was made at all while cancelling the policy with effect from 04.06.2002. In view of aforesaid facts the cancellation of policy with effect from 04.06.2002 has automatically became infructuous.

Your contention that the refund of premium should have been refunded with interest @ 15% from the date of receipt of premium through you till the time of refund is not correct and legal and as such the same is denied by us. However, in no way the prorata(proportionate) premium is required to be refunded with interest reiterating the fact that we were already on risk upto 14.09.2006 and cease to be on risk with effect from 15.09.2006.

Under such circumstances, you ought not to have returned the cheque of refund of balance of premium. By returning the cheque we feel that you had run a risk of compensation for future period i.e., from 15.09.2006. In order to safeguard your interest and risk we here bytake liberty to send that demand draft back to you, which is enclosed for your further necessary action. You are also requested to note that irrespective of the fact whether you now accept the cheque or not, this company will not be at risk (liability) with effect from 15.09.2006, in view of the cancellation of policy and refund of balance premium after deducting prorata premium as per condition no. 5 of the policy.

Thus, it is advisable to accept the cheque and refund the proportionate premium to members concerned as per the list which we have already forwarded to you with our earlier letter”.

Counsel for the respondent no.2 admitted that no information regarding cancellation of the JPA policy was sent to the individual beneficiaries even though the petitioner in their letter dated 07.02.2007 had clearly mentioned that “by returning the cheque we feel that you had run a risk of compensation for future period i.e., from 15.09.2006. In order to safeguard your interest and risk we hereby take liberty to send the DD back to you for further necessary action. You are also requested to note that irrespective of the fact whether you now accept the cheque or not, this company will not be at risk/ liability with effect from 15.09.2006 in view of the cancellation of the policy a refund of balance premium after deducting pro-rata premium as per condition no. 5 of the policy”. It would appear that respondent no. 2 accepted this decision of cancellation of the JPA policy under clause 5 and also accepted by default that they would be liable for any compensation for the period from 15.09.2006 till such time the pro-rata premium was refunded to individual beneficiaries after due intimation of cancellation of the policy. Learned counsel for respondent no. 2 could not inform us as to when the premium has been refunded to respondent no.1. Learned Counsel for the petitioner has given three citations of the National Commission:

In the case of Ashok Jain vs Oriental Insurance Co. Ltd., - 1 (2012) CPJ 150 (NC), wherein this Commission has observed that “it is thus clear that in cancelling the insurance policy in question, the insurance company needed to write to “the insured” and not to “the insured person”. Perusal of the certificate of insurance shows that the State Bank of India Officers Association, Chandigarh Circle was recorded as the “insured”, whereas, Adesh Kumar Jain was recorded as “the insured person”. In other words, for cancellation of the policy it was sufficient for the insurance company to send notice only to the “insured”. Viz., the State Bank of India Officers Association, Chandigarh Circle. It is not in dispute that this was done by the Insurance Company. Hence, the contention of the learned counsel for the petitioner is not valid and cannot be accepted”.

In the case of Usha Sharma and Ors vs New India Assurance Co. Ltd., and Ors, - I (2012) CPJ 488 (NC), this Commission has held that “a perusal of the above condition would show that the insurance company was within the right to cancel the policy in question at any time provided the written notice are sent to the policy-holders and the balance premium for the unexpired/ uncovered policy period is returned to the insured. In the present case, as per condition no. 5 of the insurance policy, the policy in question was cancelled by the insurance company and intimation was sent to the policy holder by registered letter. Cheque of Rs.601/- towards balance premium was also returned to the insured. Public notice of cancellation was also given through newspapers and it was enough notice to the respondent regarding cancellation of the policy. Since, the policy was cancelled during the life time of the insured and due intimation was given to him along with cheque of balance premium, the insurance company was not liable to indemnify the complainants. Even the Hon’ble Supreme Court in the case of United Indian Insurance Co. vs Harcharan Chand Rai Chandan Lal, IV (2004) CPJ 15 (S) = V (2004) SLT876 and National Insurance Company vs Laxmi Narain Dhut – III (2007) CPJ 13 (SC) = IV (2007) SLT 102 = II (200&) ACC 28 (SC) has held that the policy is a contract between the parties and both the parties are bound by terms of contract”.

In the case of Nand Kumari and Ors vs Oriental Insurance Co. Ltd., - I (2012) CPJ 357 (NC), the National Commission has held that. “it is not in dispute before us that the policy could be cancelled at any time by the insurer as averred by the respondent in paragraphs no. 4 and 5 of its written version. The insured died on 22.07.2006. Policy had been cancelled by the respondent on 26.11.2000 and anintimation to that effect was sent to the insured by a registered letter addressed to him at the address given by him in the proposal form for obtaining the said policy. Intimation regarding cancellation was sent to the insured along with cheque off pro-rata premium drawn on Bank of India”. The present revision petition is covered by the three citations given. Undisputedly the group insurance policy had been cancelled vide letter 410 dated 06.09.2006 with effect from 04.06.2002 and intimation to this effect was given to the insured which is the Bank along with the intimation a cheque for Rs.59,056/- being proportionate amount of premium being refunded..

Counsel for the respondent has given two citations. The facts of the case do not apply to the case in hand. In view of the above, we are of the view that the petitioner had cancelled the policy as per clause no. 5 of the terms and conditions of the policy which had been issued in favour of respondent no. 2 even giving the reasons for cancellation of the policy. Respondent no. 2 did not challenge the cancellation of the policy. Respondent no. 2 also failed to inform the individual beneficiaries including respondent no. 1 of cancellation of the policy and failed to refund the pro- rata premium sent to them vide letter dated 06.09.2006. They thus denied the opportunity to the petitioner and her husband to avail of an alternate policy, if they so desired. Petitioner’s husband Dr Abhay BansilalBedmutha died on 14.10.2008. Hence, the revision petition is allowed and the order of the District Forum is modified to the extent that complaint/ application of the complaint is admitted only against respondent no. 2 who should pay the expenses of Rs.5,000/- as also Rs.5.00 lakh with interest @ 9% per annnum from the date 13.11.2006 till that period to getting the full amount. Similarly for the mental/ psychological harassment the damages amount of Rs.10,000/- be given to the complainant within 30 days from the date of pronouncement of this order.

However, we would like to place on record that many cases have come to our notice that where the insurance company having offered attractive group insurance policies to various institutions for the benefit of their employees later unilaterally withdrew the same as in the instant case, where the claim ratio on the referred policy becomes high. This tantamounts to unfair trade practice. Beneficiaries are tempted by the offer of attractive terms and money and amounts are collected over the years and thereafter benefits are denied when they submitted their claims. The Insurance company unilaterally decide that group insurance policies so offered earlier be cancelled because they are no more financially viable and beneficial to them. A protocol or procedure for cancellation and informing the beneficiaries is also not laid down. Most often the individual remains unaware that they are no more covered for insurance, thus denying the benefit of insurance even though they have been paying the premium for the insurance policy over the years. Secretary, Ministry of Financial Service and Chairman IRDA may like to review such cases of cancellation of group insurance policies by public sector and private companies and take necessary action to ensure that the insurance companies cannot in future unilaterally cancel the group insurance policy after having offered the same. Even if it is to be cancelled it should be terminated not with retrospective effect, as the beneficiaries already covered should remain covered for the duration of the policy. Copy of this order may be sent Secretary, Department of Financial Services, Ministry of Finance, 3rd Floor, Jeevan Deep Building, Parliament Street, New Delhi – 110 001 and Chairman, Insurance Regulatory and Development Authority, 3rd Floor, Parisrama Bhavan, BasheerBagh, Hyderabad 500 004, Andhra Pradesh.

..……………………………… [ V B Gupta, J.]

Sd/- ……………………………….. [Rekha Gupta] Satish NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 04.12.2012 of the Bihar State Consumer Redressal Commission, Patna in Appeal no. 486 of 2012)

Bihar State Housing Board Through its Managing Director 6 Mangles Road Patna (Bihar)

Petitioner

Versus

Ms Raj Lakshmi Kumari Daughter of Late Khedharan Sharma C/o Shri Krishna Gopal Sharma Resident of House no. LIG 164 Mustafabad, P S – Rampur District Gaya (Bihar)

Respondent

BEFORE:

For the Petitioner Ms Aparna Jha, Advocate with

Mr Braj K Mishra, Advocate

ORDER REKHA GUPTA

Revision petition no. 1272 of 2013 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the judgment and order dated 04.12.2012 passed by the Bihar State Consumer Disputes Redressal Commission, Patna (‘the State Commission’) in First Appeal no. 486 of 2012.

The petitioner/ opposite party for the first time had filed a revision petition on 22.09.2011 against the order dated 25.03.2010 of the District Consumer Disputes Redressal Forum, Gaya (‘the District Forum’), i.e., after about 1 ½ years. Subsequently, it was held that since the order was final so revision was converted into an appeal which was duly accorded.

While dismissing the appeal, the State Commission has observed as under:

“We have gone through the impugned order passed on 25.03.2010 by the District Forum, Gaya, in consumer complaint no. 98 of 2007, whereby and where under the complaint filed by Raj Lakshmi Kumari against the Managing Director/ Revenue Officer and Executive Engineer, Bihar State Housing Board have been finally disposed of and direction has been given to the Housing Board to execute and register the final deed in respect of LIG House no.164 Mustafabad, Rampur, District Gaya in favour of the complainant – Raj LakshmiKumari. Accordingly, the Housing Board was directed to execute and register the final deed in respect of LIG House no. 164 in favour of complainant within a period of three months of the passing of the order, failing which the complainant would be at liberty to get the order executed through the process of law at the cost of the OP. The impugned order also shows that the OPs were furnished verified photocopy on 19.11.2010. Now in the fact and circumstances, there is no ambiguity so far the finality of the order is concerned and there was only remedy for the aggrieved party to present appeal against the order. In such situation, if some revision is presented under wrong impression of law, there cannot be excuse of wrong redressal chosen by the Housing Board when they are equipped with distinguished and knowledgeable lawyers at different levels.

It has been stated that after obtaining of the order impugned, the Executive Engineer, Bihar State Housing Board, Gaya Division has sent the certified copy of the order to the Legal Adviser of the Housing Board at the headquarter of the Housing Board at Patna on 10.12.2010, which was received in the Legal Section on 14.12.2010. The Legal Adviser of the Housing Board sent the order of the allotment section and revenue section and it was returned on 22.12.2010 and again proposal was sent before the Managing Director in respect of challenge the said order and opinion of the Manager, Estate was obtained. The Managing Director, thereafter, accepted the proposal of the Legal Adviser and sent the file to the Manager, Estate by the Legal Adviser for opinion and the record was returned by the Allotment Section to the Legal Section on 20.01.2011. As opinion was not clear, hence, the record was again sent to the allotment section on 21.01.2011 and after specific opinion, the file was sent by the allotment section to Legal Section on 28.02.2011. Thereafter, Legal Section sent the file to the Revenue Section on 03.03.2011 for calculation on the basis of order passed by the Consumer Forum, Gaya and Revenue Section returned the said file after calculation on 15.07.2011, i.e., after more than four months. The Legal Section sent the file to the Managing Director on 20.07.2011 seeking permission for filing revision before the State Commission on 21.07.2011. The permission was granted by the Managing Director and on 22.07.2011, the record was sent to the panel lawyer of the Housing Board for drafting of the revision application and the counsel for the Housing Board returned the same on 08.08.2011 after drafting the revision application. Thereafter, the Legal Section of the Housing Board sent the draft of revision to the allotment section on 09.08.2011 for verification and the allotment section returned the same on 10.08.2011 and the draft was sent to the revenue section on 24.08.2011 by the legal section and revenue section returned the same after verification on 30.08.2011. So according to the appellant, the above-mentioned time was consumed in observing necessary paraphernalia and seeking instruction from the Board officials and their concerned legal experts. The Housing Board sent the draft of the revision application on 01.09.2011 along with the record to the Managing Director and the Managing Director accordingly approved the draft, which was received by the Legal Section on 06.09.2011 and signature of Managing Director was obtained on 22.09.2011.

The aforesaid facts culminating in consuming such long spell of time, now should be considered as to whether it would amount to sufficient cause, which deterred or prevented the appellant – Bihar State Housing Board in presenting their appeal for setting aside the order passed in the month of March 2010 after lapse of about one and half years, i.e., in the month of September 2011.

We would like to mention that any aggrieved party, who is supposed to be aware of the existing law is required to act in such a manner so that he could place or file necessary appeal/ revision etc., as provided under the Consumer Protection Act. The period of filing such revision is only three months whereas the appeal against the final order should have been filed within one month from the date of passing of the order/ knowledge or receipt of the order. Here, what we find is that the file seems to have been processed and scrutinized at various levels like, administrative, financial, legal besides opinion of legal expert also have been obtained but there does not appear any justification for retention of file for such a long period, which could be said to have prevented from presenting the appeal within time by the Housing Board. There should not be any laxity of law in such circumstances.

Having considered the aforesaid facts and grounds stated in the petition or canvassed before us by the learned counsel for the appellant – Housing Board, we are unable to concede to his prayer so far condonation of delay in filing of the appeal is concerned. We have no hesitation to hold that the appellant could have been presented such appeal within stipulated time as required under the law but they did not act for such manner so as to comply the relevant provisions of law or order passed by the District Forum concerned.

In the circumstances, we do hold that there is complete absence of any sufficient cause, which prevented the appellant from presenting their appeal in time, which is directed against final order, so question of treating a case of filing revision did not arise at any level.

In the circumstances, we do not find any merit for condoning the delay in filing of the appeal and hence, the same stands rejected”. Hence, the present revision petition.

Along with the present revision petition an application for condonation of delay of 24 days have been filed. The reasons given for the delay in the condonation application are as follows:

 The copy of the impugned judgment and order was dispatched to the petitioner Board on 11.12.2012. The petitioner Board evaluated the impugned judgment and order and thereafter decided to file a revision petition against it. The petitioner Board thereafter sent the papers to their advocate in Delhi to prepare the revision petition vide its letter dated 04.01.2013.  Upon receipt of the papers, the advocate for the petitioner drafted the revision petition and sent the draft revision petition to the petitioner on 21.02.2013.  Upon receipt of the draft, the same was studied by the Legal Department and the Revenue Department of the Board and after verification of the contents, by letter dated 25.03.2013, the approved draft of petition along with affidavit and vakalatnama was sent to the advocate at Delhi. The packet containing the approved draft was received by the advocate for the petitioners on 30.03.2013.  It is submitted that the petitioner is a Government organisation and every document sent to the petitioner has to be carefully scrutinised by various departments to see that there is no error in the documents. Therefore, by the very nature of scrutiny than by the petitioner, the verification and approval of documents took some time. In these facts and circumstances the petitioner prays that the delay in filing the petition may be condoned.

It is seen that even after receiving the order of the State Commission where it has commented adversely on the in ordinate time taken for processing and scrutiny at various levels before filing the appeal the petitioner has pleaded the same reasons once again before this Commission to explain the delay in filing the revision petition. There are huge gaps at different times and levels of processing which have been left unexplained. Repeated delays by the petitioner before the State Commission as also the National Commission cannot merely be excused and condoned on the grounds that the petitioner is a Government Organisation. Petitioner has failed to put in place a system where such cases can be dealt with efficiently, effectively and in a timely manner.

The petitioners have failed to give the reasons for the day-to-day delay. The petitioner has failed to provide ‘sufficient cause’ to condone the delay of 24 days. This view is further supported by the following authorities:

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

Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;

“ There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

Recently, Hon’ble Supreme Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;

“ After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;

“ It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.”

The Court further observed;

“It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.

In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs”.

Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case.

Even, after getting two adverse findings, petitioners have chosen not to settle the claim of the respondent but have dragged him to the highest Fora under the Act.

It is not that every order passed by Fora below is to be challenged by a litigant even when the same are based on sound reasoning.

It is a well-known fact that Courts across the country are saddled with large number of cases. Public Sector Undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector Undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so.

Public Sector Undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Sector Undertakings are possibly an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also due to the fact that Public Sector Undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.

Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 24 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.20,000/- (Rupees twenty thousand only).

Petitioner is directed to pay the cost of Rs.10,000/- by way of demand draft directly in the name of Respondent and the balance amount of Rs.10,000/- be deposited 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 22nd November, 2013 for compliance.

..………………………………

[ V B Gupta, J.]

………………………………..

[Rekha Gupta]

REVISION PETITION NO.2406-2407 OF 2013 With I.A. No. 4000 of 2013 for Stay (From order dated 31.1.2013 in First Appeal No.575 of 2007 of the State Consumer Disputes Redressal Commission, Punjab)

1. Punjab Urban Planning & Development Authority through its Chief Administrator, PUDA Bhawan, Sector-62, SAS Nagar, Mohali.

2. The Estate Officer, Punjab Urban Planning & Development Authority, SCO 41, Ladowali Road, Jalandhar(Now JDA)

…Petitioners

Versus

Sh. Atmanand Jain Shabha (Regd.), Chowk Jain Mandir Bazar Kalan, Jalandhar, through its President

…Respondent

BEFORE:

For the Petitioners : Mr. Rachna Joshi Issar, Advocate

with Ms. Ambreen Rasool and Ms.

Ms. Aishwarya Kaushik, Advocates

Present revision petitions have been filed by the Petitioners under Section 21(b)of The Consumer Protection Act,1986 (for short, ‘Act’)for setting aside common order dated 31.1.2013 passed by State Consumer Disputes Redressal Commission, Punjab, Chandigarh (for short, ‘State

Commission’) in First Appeal No. 575 of 2007 and First Appeal No.150 of 2008.

2. Facts in brief are that Respondent/Complainant filed a complaint under section 12 of the Act against petitioners making assertions that respondent is a registered society under the Societies Registration Act, 1860. Petitioners are providing housing service to the general public for consideration. In response to their advertisement, respondent applied for allotment of a plot measuring 1,000 sq. yds. at Jalandhar for construction of a Jain Temple, under the scheme for allotment of religious sites on leasehold basis for Temple, Gurudwara, Masjid and Church. Respondent deposited Rs.50,000/-through bank draft dated 04.07.2001 and the same was acknowledged by petitioners on 16.07.2001 for allotment of the plot. Petitioners vide its letter dated 25.02.2002/18.03.2002 agreed to allot the plot and asked the respondent to deposit Rs.2.00 lacs as non-refundable security which was deposited through draft dated 02.04.2002 and receipt was issued by the petitioners on 07.05.2002.

3. It is further stated that petitioners after several reminders provided the specimen of the agreement for lease and respondent submitted the lease agreement through registered post on 06.02.2003 and petitioner no.1 signed the same in March and provided it to the respondent. Petitioner no.1 wrote a letter dated 11.06.2003 to petitioner no.2 for allotment of plot/site to the respondent.

4. Petitioner no.1 vide its letter dated 19.02.2004 suggested the site to the District Town Planner, Jalandhar for allotment to the respondent, but till date no plot/site has been allotted despite the receipt of the payment of Rs.2.50 lacs and respondent could not construct the religious temple till now and religious feelings of the members of the respondent have been hurt due to the said acts of the petitioners. The construction cost after 2001 has also increased tremendously. The entire Jain Community suffered lot of mental tension, harassment and inconvenience and now the steep rise in the construction cost is assessed to the tune of Rs.20.00 lacs. Thus, respondent prayed that petitioners be directed to allot the plot/site to them and to pay Rs.20.00 lacs as compensation with costs.

5. In the written reply petitioners took preliminary objections stating that respondent has no locus standi to file the complaint because respondent does not fall under the definition of consumer under the Act. Petitioner no.1 issued letter of intent under which it was clearly stated that the said offer was tentative and the site to be allotted was yet to be earmarked. Necessary formalities for earmarking the site are still under progress and the same is also evident from Para-7 of the complaint. In the absence of any promise/timeframe under the intent letter to allot the site, no cause of action has accrued to the respondent against the petitioners.

6. On merits, it admitted that respondent is a registered society and petitioners are providing housing services to the general public. The respondent applied for allotment of a plot measuring 1000 sq. yds. at Jalandhar for construction of a Jain Temple. Petitioners have admitted that respondent had paid Rs.2.50 lacs and vide letter dated 19.02.2004, petitioner no.2 suggested the site to the District Town Planner, Jalandhar for the allotment of the plot to the respondent, but till date no plot has been allotted. It was further pleaded that some sites available with the petitioners had already been shown to the respondent, but respondent for the reasons known to it, rejected the proposal. The site under the scheme was to be allotted on concessional rates subject to the availability of the plot. There is no new scheme in operation under which a suitable plot can be allotted to the respondent. Hence, it was prayed that complaint may be dismissed with costs.

7. District Consumer Disputes Redressal Forum,Jalandhar (for short, ‘District Forum’) vide its order dated 26.2.2007, allowed the complaint and passed the following directions;

“We hold that respondents have not allotted the plot to the complainant that amounts to deficiency on the part of the respondents and complainant is entitled for refund of the amount with 10% interest from the date of deposit till payment. Interest would serve as compensation to the complainant. Complainant is also entitled for Rs.3,000/- as cost of litigation”.

8. Being Aggrieved by the order of the District Forum, respondent filed (Fist Appeal No.575 of 2007) whereas, petitioners filed (First Appeal No. 150 of 2008) before the State Commission. Vide impugned order, the State Commission allowed (First Appeal No. 575 of 2007) of the respondent and modified the order of District Forum and directed the petitioners:

“ To allot the plot of 1000 sq.yds. to the appellant after identifying the suitable land and shall get the approval of R.P.D.C., if any, within two months from the receipt of copy of the order and to pay compensation of Rs.1,00,000/- (Rupees One Lac) for rise in construction charges during last 12 years. The order of the District Forum for refund of the amount along with interest is set aside. The litigation costs of Rs.3,000/- awarded by the District Forum are enhanced to Rs.10,000/-“.

9. On the other hand, (First Appeal No. 150 of 2008) of the petitioners was dismissed.

10. Being aggrieved by the impugned order, petitioners have filed this revision.

11. We have heard learned counsel for the petitioners and have gone through the record.

12. It has been contended by learned counsel for the petitioners that impugned order is contrary to the well settled principle and ratio of the Hon’ble Supreme Court in Delhi Development Authority Vs. Pushpendra Kumar Jain (1994)Supp 3SCC, 494 where the Court held that right to allotment does not arise by mere identification or selection of the allottee and the right to allotment arises only on the communication of the letter of allotment. It is also contended that when no deficiency is found in the service rendered by a public authority, it was unjust for the State Commission to have saddle the petitioners with unjustified liability to pay compensation to a litigant who had caused loss to the public authority by involving it into frivolous litigation. 13. Further, it is contended that can an allottee of a plot which is to be earmarked(“as is where is” basis), be termed as a “consumer” under the Act and can Petitioners’ Authority be regarded as “service provider”, contrary to the ratio of Hon’ble Supreme Court’s judgments, inter alia, in U.T, Chandigarh Vs. Amarjeet Singh & Others, (2009) 4 SCC 660, which has been reaffirmed by the Court, in, Punjab Urban Planning & Authority & Ors. Vs. Raghu Nath Gupta & Ors. (2012) 8 SCC 197?

14. Lastly, it is contended that, unfortunately the sites which were available for allotment and were got physically inspected by the representative of the respondent were not acceptable to the respondent for allotment. This fact has been admitted by the respondent in para 7 of its complaint that, one of the sites was also referred by the Petitioners, vide letter dated 19.2.2004, for approval of the District Town Planner Jalandhar. The said site, however, was not yet approved by District Town Planner, Jalandhar. Thus, impugned order is liable to be side aside.

15. State Commission in its impugned order observed; 16. The appellant is a registered society and applied for allotment of a plot measuring 1000 sq.yds. at Jalandhar for construction of a Jain Temple. The appellant also paid Rs.2.50 lacs. The dispute has arisen between the parties on the version of the appellant that the respondents are not allotting the plot and the version of the respondent is that appellant was offered and shown the available site/sites, but the representative of the appellant did not accept the same. The respondents vide letter Ex.C-2 asked the appellant to nominate four persons, with authority letter, to attend the interview for allotment of the land to religious places. Another letter Ex.C-3 was written to attend the interview on 25.09.2011 at 12.30 P.M. Letter of Intent is Ex.C-4. Vide receipt Ex.C-5, a sum of Rs.2.00 lacs was deposited. Vide letter Ex.R-6, Chief Administrator wrote to the Additional Chief Administrator,PUDA, Jalandhar to allot 1000 sq.yds. land on leasehold basis. Vide letter Ex.C-7,Estate Office, PUDA, Jalandhar wrote to the District Town Planner, Jalandhar about the purpose of keeping a pocket of land behind plots no.1 to 8 and also other land lying vacant near the commercial parking. The Administrator Officer (Policy) vide letter Ex.C-8 wrote to the Additional Chief Administrator, PUDA, Jalandhar to identify the land and to allot the same immediately. Similar letter is Ex.C-9.

17. From the above discussion, it is clear that the officials of the respondents have been writing to the District Town Planner, Jalandhar and other authorities, to identify the plot and allot the same to the appellant. During the course of arguments, the counsel for the respondents have produced on record letter dated 21.03.2005 written by Estate Officer, PUDA, Jalandhar to Additional Chief Administrator, PUDA, Jalandhar wherein it is mentioned that for identification of the land, the case was considered in the meeting of Regional Planning and Design Committee (R.P.D.C.) at serial no.21.10, but still the land has not been identified. It was further stated that after identifying the land by District Town Planner, Jalandhar and after taking the approval of the R.P.D.C., the allotment can be made. Another letter in this regard was written on 06.05.2005 as per which, as per the record, in Urban Estate, Phase-I and Phase-II, Jalandhar, whichever the lands were available regarding that, the consent was not given by the representative of the appellant. It was further mentioned that till the case regarding the availability of the land is identified by the District Town Planner, Jalandhar and is considered by the R.P.D.C., till then the formal allotment letter of the land is not possible to be issued and the case be again considered in the coming R.P.D.C. meeting.

18. The respondents have not denied anywhere the allotment of the plot to the appellant, but due to non-availability of the appropriate plot or due to consent not given by the representative of the appellant, the plot in question has not yet been allotted to the appellant. The respondents are considering the case of the appellant for identification of the land as well as for the allotment of the land and this process is going on for the last more than 12 years. The District Forum has not taken notice of all these facts and has allowed the refund of the amount deposited and not satisfied with the said order, the appellant is in appeal before this Commission, for modification of the impugned order. We are of the opinion that respondent no.1 has also asked the authorities of PUDA, Jalandhar to allot the plot to the appellant for raising the Jain Temple, but no concrete steps have been taken to allot the said land. The respondents have reserved the areas in every scheme for the construction of the religious places and the identification of the land and allotment of the land to the appellant cannot be made a ground to linger on with the matter.

19. In view of above discussion, the appeal filed by the appellant (F.A. No.575 of 2007) is accepted and the impugned order under appeal dated 26.02.2007 passed by the District Forum is modified and the respondents are directed to allot the plot of 1000 sq.yds. to the appellant after identifying the suitable land and shall get the approval of R.P.D.C.,if any, within two months from the receipt of copy of the order and to pay compensation of Rs.1,00,000/- (Rupees One Lac) for rise in construction charges during last 12 years. The order of the District Forum for refund of the amount along with interest is set aside. The litigation costs of Rs.3,000/- awarded by the District Forum are enhanced to Rs.10,000/-“.

16. Under Section 21(b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. 17. As per written statement filed by the petitioners, they themselves have admitted para Nos.1 to 7 of the complaint. It is also an admitted fact that no allotment has yet been made by the petitioners to the respondent. Petitioners in the present case are taking shelter only on this plea that necessary formalities for earmarking the sites are still under progress. Moreover, in the absence of any promise/time framed work under the intent letter to allot the site, no cause of action has accrued to the respondent.

18. We are really appalled, shocked and surprised at such defence taken up by the petitioners. As per letter of intent dated 25.2.2002, petitioners were contemplating to allot to the respondent a site measuring 1,000 Sq. Yds in Urban Estate, Jalandhar. The letter of intent states;

“In case you are interested for the allotment, you may send your consent alongwith security amount of Rs.2.00 lacs within 90 days failing which it will be presumed that you are not interested for the allotment. In that case, letter of intent shall be withdrawn and earnest money will be refunded to you after deducting processing fee as per policy.

Chief Administrator”.

19. Admittedly, after receipt of the above letter of intent, respondent deposited Rs.2 lacs with the petitioners in April/May,2002. Thus, amount as demanded by the petitioners is lying with them for last more than 11 years, but petitioners are delaying the allotment on one pretext or the other. This act on the part of the petitioners being a Public Authority amount to “unfair trade practice” and this act of the petitioners is in consonance with the conduct of private builders who make the Consumers run from pillar to post. Petitioners’ Authority has been created for the welfare and betterment of the society and not to harass the citizens. Respondent in the present case being a registered society, has deposited Rs.2 lacs as demanded by the petitioners themselves, long ago for allotment of a religious site, but even after 11 years, petitioners have failed to complete the necessary formalities for earmarking the site, which as per petitioners’ case is still under progress.

20. Petitioners as per their own case are service providers and are sitting over Respondent- Society’s money for last 11 years. Thus, deficiency in service on the part of petitioner is writ large in this case. Moreover, present case is not a case of an auction purchaser and as such decision of Amarjeet Singh(supra) is not applicable to the fact of the present case.

21. Thus, in our opinion, the findings recorded by the State Commission are based on correct analysis of the facts and documents produced by the parties and no jurisdictional error has been committed by the State Commission in passing the impugned order. 22. Now the question which arise for consideration is as to what should be the quantum of punitive cost to be imposed upon the petitioners for not allotting the respondent religious site for more than 11 years without any justification. Admittedly, respondent has complied with the demand of the petitioners about 11 years back and that to within the specified time. Therefore, keeping in view of the principle of law laid down by Apex Court in Bikaner Urban Improvement Trust Vs. Mohal Lal 2010 CTJ 121(Supreme Court)(CP) and in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors, Civil Appeal Nos. 4912-4913 of 2011 decided on July 4, 2011, we hereby impose punitive cost of Rs.1 lac (Rupees One Lac only) upon the petitioners for indulging in unfair trade practice and for causing undue harassment to the respondent. Moreover, petitioners have kept the amount deposited by the respondent, more than 11 years ago without any sufficient and justifiable cause.

23. This punitive cost should be paid to the respondent for the sufferings they have faced during the last 11 years. Petitioners are therefore, directed to deposit demand draft of Rs.1 lac(Rupees One Lac only) in the name of respondent with this Commission, within one month from today. In case, petitioners fail to deposit the cost within the specified period, then they shall also be liable to pay interest @ 9% p.a. till its realization.

24. Meanwhile, petitioners shall recover the cost amount from the salaries of the delinquent officers who have been pursuing this merit less litigation, with the sole aim of wasting the public exchequer. The affidavit giving details of the officers from whose salaries the cost has been recovered, be also filed within one month

25. Cost deposited by the petitioners be paid to the respondent only after expiry of period of appeal or revision, preferred if any.

26. With these observations present petitions stand disposed of.

27. List on 29th November, 2013 for compliance.

……..……………………J

(V.B. GUPTA)

( PRESIDING MEMBER)

……………………… (REKHA GUPTA)

MEMBER

SSB/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2399 OF 2008 (From the order dated 1.06.2007 in Appeal No. 405/2004 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Malkiat Singh S/o Sh. Chand Singh Mason, R/o Village Garnala, Distt. Ambala. …Petitioner/Opp. Party (OP)

Versus Paramjit Walia D/o Niranjan Singh Walia R/o H. No. 331, Model Town, Ambala City, District Ambala

BEFORE

For the Petitioner : In person

For the Respondent : NEMO

PRONOUNCED ON 10 th October , 2013

O R D E R PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This revision petition has been filed by the petitioner/OP against the order dated 1.6.2007 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short,

‘the State Commission’) in Appeal No. 405 of 2004 – Paramjit Walia Vs. Malkiat Singh by which, while allowing appeal, order of District forum dismissing complaint was set aside.

2. Brief facts of the case are that complainant/respondent engaged OP/petitioner for extension of roof of two rooms. OP carried out work at complainant’s house from 6.4.1999 to 14.4.1999.

OP put lintel on the roof of the said house. Complainant incurred expenditure of Rs.5,000/- for the material and Rs.4950/- for labour. On 26.4.1999, the lintel of the roof was opened. It was found that lintel was uneven and not at the level of old construction. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint; denied allegations made in the complaint and submitted that he had done the work according to his skill and intelligence. It was further submitted that complaint has been filed to deprive OP for payment of the labour work done by him. It was further submitted that complainant fixed the rate of labour wages @ Rs.170/- per day and not Rs. 150/- per day. It was further submitted that

OP never opened lintel, it was opened by the complainant himself without consent of OP and OP is not responsible for the loss in such circumstances and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint along with cost of Rs.5,000/-. Appeal filed by the complainant was allowed by learned State Commission vide impugned order and directed OP to pay Rs.9950/- and further awarded Rs.5,000/- for mental agony against which this revision petition has been filed.

3. None appeared for the respondent, though, on earlier dates, Counsel for the respondent appeared.

4. Heard petitioner in person and perused record.

5. Perusal of record reveals that District Forum dismissed complaint for want of expert evidence as well as substantive evidence to substantiate the case. Learned State Commission while allowing appeal held that there was no necessity to lead expert evidence because the defects in the lintel are patent and visible and can be ascertained on examination with naked eyes.

6. Perusal of record reveals that learned State Commission has placed reliance on paragraph 4 of the complaint and written statement and on that basis appeal was allowed. Learned State

Commission observed that OP nowhere denied stand of complainant in paragraph 4 of the reply, but paragraph 4 of written statement runs as under:

“ That para no. 4 of the complaint is absolutely wrong and denied. The lintel was never opened by the respondent or hislabourers, he has got it opened with his own will and without the consent of the respondent. So, the respondent is not liable for any loss as alleged.”

7. Thus, it becomes clear that OP denied allegations of paragraph 4 and further submitted that lintel was never opened by the OP or his labourer, but it was opened by the complainant without consent of the OP. This denial cannot be presumed to be admission on the part of OP that mason work was defective.

8. Complainant has not led any evidence except his own affidavit and in the absence of any supporting evidence it cannot be presumed that work done by the OP was defective and roof was uneven when OP denied allegation in affidavit.

9. Thus, it becomes clear that learned District Forum did not commit any illegality in dismissing complaint and learned State Commission has committed illegality in allowing appeal and impugned order is liable to set aside.

1.6.2007 passed by learned State Commission in Appeal No. 405 of

2004 – Paramjit Walia Vs. Malkiat Singh is set aside and complaint stands dismissed with no order as to costs.

………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 448 OF 2013 (From the order dated 17.10.2012 in Appeal Nos. 526 & 685/2008 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

With IA/4937/2013 (Placing Record)

Sulekh Chand S/o Sh. Kalu Ram R/o Village Badarpur, Tehsil Indri, District Karnal …Petitioner/Complainant Versus 1. Tata Motors Ltd. Through its General Manager, 26th Floor, World Trade Centre-I, CUFFE Parade, Mumbai – 400005 2. M/s. Metro Motors Pvt. Ltd. 76/1, GT Road, Karnal

3. Dinesh Sharma, Employee of Metro Motors Pvt. Ltd. Head Office 10 Mile Stone, GT Road, Village and Post Office Mohra, Ambala

BEFORE

For the Petitioner : Mr. Robin Dutt, Advocate PRONOUNCED ON 10 th October, 2013

O R D E R

This revision petition has been filed by the petitioner against the order dated 17.10.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal Nos. 526 & 685 of 2008 – M/s. Metro Motors Pvt. Ltd. & Anr. Vs. Sulekh Chand & Ors. and M/s. Tata Motors Vs. Sulekh Chand & Ors. by which, while allowing appeals, order of District Forum allowing complaint was set aside.

2. Brief facts of the case are that Complainant/petitioner purchased ICV 6 wheeler TATA

LPT/1109/36 HI-Deck-Ex.II model from OP No. 2/Respondent No.2 authorized dealer of OP

No. 1/ Respondent No.1 and paid Rs.1,15,248/- and remaining price i.e. Rs.5,73,000/- was got financed by the complainant. OP also provided printed brochure of the vehicle according to which, vehicle was having a maximum permissible gross weight of 11900 kgs. and a pay load of

8315 kgs. whereas its unladen weight was 3585 kgs. which was not as per brochure. Complainant approached OP for taking back the vehicle and refunding the amount, but OP did not refund money. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OPs contested complaint and submitted that complainant failed to repay loan instalments as per schedule and possession of the vehicle was taken by OP and vehicle has been re-sold to M/s. GianiMotor. Further, denying any deficiency, prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to refund Rs. 1,15,248/- along with 10% p.a. interest and further to pay

Rs.50,000/- as cost. Appeals filed by the OPs were 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 vehicle supplied by the respondents to the petitioner is not as per specifications in the brochure and learned District Forum rightly allowed complaint, but learned State Commission has committed error in dismissing complaint; hence, revision petition is admitted.

5. Learned Counsel for the petitioner could not show any variation in the specifications mentioned in the sale letter and learned State Commission rightly allowed appeals and dismissed complaint as no deficiency could have been attributed to the OPs.

6. In the revision petition at page 25, petitioner has filed Photostat copy of the brochure.

During pendency of revision petition, petitioner filed I.A. No. 4937 of 2013 and by this

I.A., photocopy of brochure was taken on record. Perusal of both the brochures reveals that there is some difference in both the brochures. In the brochure filed at page 25 Payload (kg) has been shown as 8315 whereas in the brochure filed along with application, maximum payload (kg) has been shown as 8355 and in front of this 8315 has also been shown. Learned Counsel for the petitioner could not clarify for what purpose weights in second columns have been given. When both the brochures filed by the petitioner do not tally, we cannot arrive at a conclusion that any of the above brochures was given by respondents to the petitioner and vehicle sold to the petitioner does not tally with specifications mentioned in the sale letter.

7. Learned Counsel for the petitioner submitted that unladen weight of the vehicle has been mentioned as 3350 kgs. in the Registration Certificate whereas after deducting 8355 from 11900 it should have been 3545. We are not convinced with this argument because unladenweight cannot be obtained by reducing maximum Payload from maximum permissible GVW and in such circumstances, we do not find any infirmity, illegality or jurisdictional error in the impugned order and revision petition is liable to be dismissed at admission stage.

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

………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 4156 OF 2011

(From the order dated 24.08.2011 in First Appeal No. 175/2009 of Uttarakhand State Consumer Disputes Redressal Commission)

1. Chaitanya Prasad s/o Nand Kishore

2. Rajesh Kumar s/o Daulat Ram

both residents of Badri Vishal Travels Gopal Kuti, Rishikesh, District Dehradun through Chaitanya Prasad

... Petitioners

versus

National Insurance Co. Ltd. through its Branch Manager Branch Office, Hardwar Road Rishikesh, District Dehradun Uttarakhand

… Respondent

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

APPEARED AT THE TIME OF ARGUMENTS

For the Petitioner(s) Mr. S.M. Tripathi, Advocate

Mr. B.S. Sharma, Advocate

For the Respondent Mr. Abhishek Kumar, Advocate

PRONOUNCED ON : 10 th OCTOBER 2013 O R D E R

PER DR. B.C. GUPTA, MEMBER

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

1986 against the impugned order dated 24.08.2012, passed by the Uttarakhand State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 175/2009,

“Chaitanya Prasad & Anr. versus National Insurance Co. Ltd.”, vide which the appeal filed by the petitioner/complainant against the order dated 25.08.2009, passed by the District Consumer Disputes Redressal Forum, Dehradun in consumer complaint no. 94/2008, was dismissed and the order passed by the District Forum, allowing the said complaint, was upheld.

2. Brief facts of the case are that both the petitioners/complainants got their Tata 709 Bus, bearing registration number UA 07 C/8018 insured with the respondent / OP, National Insurance

Co. Ltd. (for short the ‘insurance company’) for the period from 29.04.2007 to 28.04.2008, vide policy No. 462201/31/07/6300000359 and the IDV of the said vehicle was estimated to be

Rs.5.40 lakh. On 12.08.2007, when the said vehicle was going from Pipalkoti from Badrinath, it met with an accident, due to which it suffered extensive damage. An information regarding the accident was conveyed to the OP insurance company on 13.08.2007 and information was also given to the Police Station Joshi Math by the driver of the vehicle Surya Prakash. A spot survey of the vehicle was got carried out by the insurance company through its surveyor R.R.

Sharma. The salvage of the vehicle could not be retrieved by the complainant due to constant landslides etc. The insurance company informed the complainants on 14.09.2007 to retrieve the salvage and store it in safe custody and present the estimates of repairs so that final survey could be conducted. The complainants retrieved the salvage on 28.11.2007 and paid Rs.30,000/- for bringing the same to Rishikesh. It has been stated in the complaint that the complainants had been paying an amount of Rs.200/- per day for safeguarding and storing the salvage of the said vehicle. The final survey was carried out by the OP insurance company through surveyor

V.P. Singhal on 5.12.2007 and as per their letter dated 12.12.2007, the repair estimate of

Rs.7,74,331/- was prepared by Commercial Motors, Rishikesh and another estimate of

Rs.1,98,000/- was prepared by Abdul Guffar, Rishikesh, the body-makers. In this way, a total of

Rs.9,72,331/- was stated to be required to repair the said vehicle. However, the Insurance

Company offered to the complainants on 21.2.2008, a sum of Rs.44,000/- as settlement amount, but the complainant demanded a sum of Rs.5,40,000/- being the IDV of the vehicle. The complainant stated that the surveyor V.P. Singhal & Company had termed the condition of the vehicle as ‘major damage’. The case of the complainants is that it is a case of total damage and

Rs.5,40,000/- being the IDV of the vehicle, should be paid to them along with interest @15% p.a. from the date of the accident and the cost incurred for retrieving the salvage and its storage and maintenance should also be paid, along with Rs.20,000/- for mental harassment and

Rs.10,000/- as cost of litigation. The District Forum vide their order dated 25.08.2009 awarded a sum of Rs.3,70,000/- to the complainant along with interest @7% p.a. from the date of the presentation of the complaint. The District Forum based their conclusion on the basis of surveyor report in which the estimate of compensation on repair basis has been stated to be Rs.3,70,000/-. An appeal was filed against this order of the District Forum before the State

Commission by the complainants, but it was dismissed vide impugned order. It is against this order that the present revision petition has been made before us.

3. At the time of hearing before us, learned counsel for the petitioner has drawn our attention towards the terms and conditions stated in the “Private Vehicles Package Policy” issued by the

Insurance company, in which it has been stated that “IDV will be treated as market value throughout policy without any further depreciation for the purpose of total loss/constructive total loss claim.” Learned counsel for the petitioner stated that the salvage of the vehicle had been collected by the respondent company on 24.10.2009. He pleaded that the orders passed by the

State Commission vide which order of the District Forum had been upheld, should be set aside and the complaint should be allowed, and the relief as demanded by the complainant should be provided.

4. In reply, learned counsel for the respondent insurance company stated that the surveyor had brought out in his report that the repair liability was worked out at Rs.3,70,000/- which was less than 75% of the IDV and hence, the insured should get the vehicle repaired as per the estimate submitted by him. Learned counsel, however, could not give any reasonable explanation as to why the labour charges to the tune of Rs.1.98 lakh as estimated by the surveyor were to be excluded.

5. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us. The basic issue involved in the present case is that the complainant is demanding compensation based on the IDV of vehicle as shown in the insurance policy. The complainant has also demanded interest @15% on IDV, i.e., Rs.5,40,000/- from the date of accident, i.e., 12.08.2007 till realisation and also the cost incurred in retrieval of salvage and compensation for mental harassment and litigation cost etc. It has been brought out from the material on record that the vehicle suffered extensive damage due to the accident. It has been stated in the report of the surveyor V.P. Singhal and Co. that the original estimate for repair was

Rs.8,31,000/- including Rs.1.98 lakh as cost of labour. It is not understood how the surveyor has stated the estimate of repair to be Rs.3.7 lakh. In the sheet of loss assessment attached with the surveyor report, the cost of labour component has been stated to be zero, meaning thereby that the estimate does not represent correct picture about damage. Since it has been admitted that the

IDV of the vehicle as stated in the insurance policy is Rs.5.4 lakh and it is clear from the material on record and facts regarding the retrieval of salvage etc. that it is a case of total damage to the vehicle. It is held, therefore, that the complainants are entitled to get compensation based on

IDV of the vehicle as stated in the insurance policy. This revision petition is, therefore, allowed and the orders passed by the State Commission and District Forum are modified to the extent that a sum of Rs.5.4 lakh shall be payable to the Complainants along with interest @7% p.a. from the date of complaint till realisation. A sum of Rs.10,000/- shall also be allowed to the complainants as cost of litigation. The revision petition stands disposed of accordingly.

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

MEMBER RS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 16.05.2007 in First Appeal No. 1261/1996 & 1306/1996 of Uttar Pradesh State Consumer Disputes Redressal Commission)

Lavlesh Singh proprietor Lovely Provision Store c/o Shivarpan Trading Co. Babaru Road, Kalu Kunwa, Banda – 210001.

... Petitioner

Versus

United India Insurance Co. Ltd. having its Divisional Office at 497, Sadar Bazar, Jhansi Branch Office at Dhima Chauraha, Aliganj, District Banda

… Respondent

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. Nikhil Jain, Advocate

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

1986 against the impugned order dated 16.05.2007, passed by the Uttar Pradesh State Consumer

“United India Insurance Co. Ltd. versus Lavlesh Singh,” and FA No. 1306/1996, “Lavlesh Singh versus United India Insurance Co. Ltd.” vide which the State Commission modified the order dated 12.08.1996 passed by the District Consumer Disputes Redressal Forum, Banda. The

District Forum had allowed the complaint filed by the complainant/petitioner Lavlesh Singh and order to compensate him by paying Rs.91,000/- as compensation alongwith interest @9% p.a. from the date of filing of the complaint. The State Commission dismissed the appeal filed by the complainant, but partly allowed the appeal filed by the OP/respondent and reduced the amount of compensation to Rs.25,000/- along with interest @ 9% p.a.

2. Brief facts of the case are that the complainant/petitioner runs a general store and stationery shop in the name of Lovely Provision Store at Moh. Chhawni Road, District Banda. As per the complaint, he made an investment of approx. Rs.2 lakh in the shop and had got it insured for the period from 2.03.1993 to 1.03.1994 vide insurance policy number 17286 for an amount of Rs.1.7 lakh. The said shop caught fire on the intervening night of 26/27.02.1994, whereupon the local fire brigade arrived at the spot and extinguished the fire. Information about the incident was also given to local Police. It has been stated that there was a loss of Rs.1.5 lakh due to fire to the stocks and furniture of the shop. The OP insurance company appointed a surveyor to assess the loss and the said surveyor stated that the loss was to the extent of Rs.13,733.48ps. only. A consumer complaint was filed by the complainant before the District Forum and the said Forum awarded a sum of Rs.91,000/- to the complainant along with interest @9% p.a. stating that the

Fire Department had assessed the loss to that extent. Two appeals were filed against the said order of the District Forum – one by the complainant for enhancement of compensation and the other by the insurance company. The State Commission dismissed the appeal of the complainant but partly allowed the appeal filed by the OP Insurance Company and directed that a sum of

Rs.25,000/- be paid to the insurance company as compensation along with interest @9% p.a. It is against this order that the present petition has been made.

3. It was stated before us at the time of arguments by the learned counsel for the petitioner that the survey report in question did not reflect correct picture about the loss and in fact, the survey report had been submitted after the filing of the complaint in question. It has been demanded in the petition that a sum of Rs.1.5 lakh should be awarded along with interest @ 24% p.a. The learned counsel for the respondent, however, stated that the order passed by the State

Commission was in accordance with the facts on record and they had not filed any petition against this order although a sum of Rs.25,000/- had been awarded against assessment of loss made by the surveyor to the tune of Rs.13,733.48 only.

4. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. A careful perusal of the facts of the case indicates that the surveyor assessed the loss of stock at Rs.12,333.55ps. but he stated in his report that the insured had not submitted sufficient evidence and documents in support of purchase of stocks and hence after making a deduction of 30%, the surveyor arrived at a figure of Rs.8,638.48ps. for loss of stock. The surveyor further stated that there was loss of Rs.5100/- only to furniture and fittings and in this way, the total loss was assessed at Rs.8,633.48ps. + Rs.5,100 = Rs.13,733.48ps. The surveyor also mentioned that the insured has taken excess coverage of stocks and assets. The surveyor has also stated that the insured did not maintain any books of accounts, stock register, cash memo etc. and he did not produce any documentary evidence regarding the insured stocks. The insured is also not paying any sales tax / income tax etc. and he was not preparing any profit and loss statement or balance-sheet and hence, there was no authentic figure of purchase and sales etc.

5. In the grounds of revision petition, the petitioner has stated that they had submitted documentary evidence about the stocks to the surveyor and insurance company, but they have not substantiated their statement by referring to any particular document etc. In the light of these facts, it is clear that the order passed by the State Commission vide which they have awarded a sum of Rs.25,000/- to the complainant against the estimated figure of Rs.13,733.48ps. by the surveyor, does not suffer from any illegality, irregularity or jurisdictional error. The said order has not been challenged by the insurance company by way of filing revision petition etc.

6. Based on the discussion above, the impugned order passed by the State Commission is upheld and the present revision petition is ordered to be dismissed with no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

(From the order dated 23.01.2013 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in Appeal no. 413 of 2009)

Chandan Singh Son of Shri Birkha Ram Resident of Village Qazipur Tehsil and District Jhajjar

Petitioner

Versus

National Insurance Company Ltd. Regional Office, SCO Nos. 337-340 Sector 35 B, Chandigarh Through its Authorised Signatory

Magma Shrachi Finance Ltd. 1st Floor, Narain Complex Civil Road, Rohtak

Respondents

BEFORE:

For the Petitioner Mr S P Jha, Advocate with

Mr Vikrant Bhardwaj, Advocate

REKHA GUPTA

Revision petition no. 3718 of 2013 has been filed against the order dated 23.01.2013 passed by the Haryana State Consumer DisputesRedressal Commission, Panchkula (‘the State Commission’) in First Appeal no. 413 of 2009.

The brief facts of the present case as conveyed from the record that truck bearing registration no. HR 46 C 9534 of the complainant/ petitioner was insured with the respondent / opposite party no. 1/ insurance company with effect from 24.05.2005 to 23.05.2006. On 14.12.2005 when the truck was on its way from Yamuna Nagar to Rajkot and reached near Mehla on NH No. 8, the front tyre of the truck burst due to which truck caught fire and burnt. Rapat no. 569 dated 14.12.2005 was lodged with the concerned police. Upon intimation, the insurance company appointed a surveyor/ loss assessor of the company namely Shri K S Hans, who inspected the vehicle and assessed the damage/ loss of the vehicle in the following manner:

On Repair Basis Rs.13,41,637/-

On Total Loss Basis Rs. 7,98500/- On net of salvage basis Rs. 6,23,500/-

In view of the above assessments, the surveyor recommended the loss on net salvage basis subject to the terms and conditions of the policy. However, the claim submitted by the petitioner was repudiated by the insurance company on the ground that at the time of obtaining the insurance policy, the petitioner did not disclose that the petitioner had obtained the claim during the subsistence of the previous policy on his insured truck and thus by fraudulent means the complainant/ petitioner illegally got 20% discount as “No Claim Bonus” qua the premium of the policy. Forced by these circumstances, the petitioner invoked the jurisdiction of the District Consumer Forum by filing a complaint.

Upon notice, the opposite parties appeared and contested the complaint by filing their separate written statements. The Insurance Company in their separate written statement justified the repudiation of petitioner’s claim on the ground stated in the preceding paragraph of this order and prayed for dismissal of the complaint.

Respondent no. 2/ Opposite party no. 2 – Magma Shrachi Finance Limited in their separate written statement stated that the petitioner had taken a loan of Rs.9,55,261/- from it and the petitioner always remained irregular in making the repayment of the loan amount. The last instalment was to be paid on or before 01.04.2007 and the total receivable amount was Rs.10,70,762/-. The execution of agreement and payment of subsequent instalments all had happened beyond the territorial jurisdiction of the District Forum and therefore, the District Forum had no territorial jurisdiction to entertain the complaint, it was prayed that the complaint merited dismissal.

On appraisal of the pleadings of the parties and the evidence adduced on the record, the District Consumer Disputes Redressal Forum,Jhajjar (‘the District Forum’) accepted the complaint and granted the following reliefs:

“ ...... we, therefore, direct the respondent no. 1 to pay the insured amount i.e., Rs.8,00,000/- to the respondent no. 2 at once and respondent no. 2 is then directed to deduct their amount outstanding against the complainant and make the payment of balance amount to the complainant without any delay. Respondent no. 1 is further directed to calculate the interest @ 9% per annum on the amount of Rs.8,00,000/- from the date of filing of complaint i.e., 26.11.2007 till realisation of final payment and pay it to the complainant on account of deficiency in service caused to him. The order be complied within one month. Accordingly, the present complaint stands disposed of”.

The State Commission in their order dated 23.01.2013 came to the conclusion that “the facts of the instant case are fully attracted to the authoritative pronouncements of Hon’ble Apex Court and the National Commission cited (supra). From the evidence produced by the appellant – opposite parties it is well established on the record that the complainant/ petitioner had submitted a false declaration Ex R 9 and took benefit of 20% rebate as ‘No Claim Bonus’ by fraudulent means. District Forum has failed to appreciate the above stated cogent and convincing evidence and erred in allowing the complaint. Hence, the impugned order cannot be allowed to sustain.

As a sequel to our aforesaid discussion, this appeal is accepted, impugned order is set aside and the complaint is dismissed”.

Along with the present revision petition an application for condonation of delay of 90 days has been filed. However, as per the office report, there is a delay of 139 days. Counsel for the petitioner could not give the date from which date 90 days had been calculated.

The reasons given for the delay are as under:

 On 31.01.2013, the certified copy of impugned order was dispatched from the office of State Commission however, this was served upon the petitioner on the 3rd week of February 2013.  In between March to August 2013, the petitioner was confined to bed on account of various ailments, including the advance age of the petitioner coupled with the shocking information of dismissal of his complaint when the petitioner is at the double loss, one that he has lost his vehicle and second the compensation awarded by the District Forum was set aside by the State Commission.  In the month of September 2013, petitioner ultimately collected the case file including the entire documents from his advocate at Chandigarh and started arranging the requisite fund for preparing the present petition before this Commission. Thus, in that process a delay of 90 days have been caused in filing the present petition before this Commission.

The petitioner has failed to give date on which the impugned order dated 23.01.2013 was received. Though it is admitted by the petitioner that it was despatched on 31.01.2013, but he could not give any evidence to support the fact that it was received by him in the 3 rdweek of February 2013.

Counsel for the petitioner has stated that the petitioner is in an advanced age and is 77 years of old. This was a blatant contradiction of the fact that in his affidavit the petitioner has given his age as 65 years. The petitioner has also failed to mention the various ailments that he has been suffering from and the plea of bad health and having been confined to bed is not supported by any medical certificate. In fact in his application for condonation of delay without any explanation he has jumped from 3rd week of February when he received the impugned order of 23.01.2013 to September 2013 when he ultimately collected the case file including the entire documents from the Advocate at Chandigarh. Revision petition was thereafter filed on 17.09.2013. The petitioner has failed to give day-to-day explanation for the delay of 139 days. The petitioner has also failed to provide ‘sufficient cause’ to condone the delay of 139 days. This view is further supported by the following authorities:

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

Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 139 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.5,000/- (Rupees five thousand only).

Petitioner is directed to deposit the cost of Rs.5,000/- 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 22nd November, 2013 for compliance.

..………………………………

[ V B Gupta, J.]

………………………………..

[Rekha Gupta]

REVISION PETITION NO. 3221 OF 2013 (From order dated 15.05.2013 in First Appeal No. 919 of 2010 of the State Consumer Disputes Redressal Commission, Madhya Pradesh, Bhopal)

Bank of Baroda Sarafa Bazar, Through Branch Manager, Lashkar, Gwalior, M.P. … Petitioner

Versus

1. Ratan Singh Paviva , R/o Village Rawatpur, Pichore, Gwalior, M.P.

2. Mr. Rajiv Sharma, Proprietor M/s Rajiv Traders Jawahar Colony, Gwalior Road, Dabra, Gwalior, M.P.

3. Mr. S.M. Khan Occupation Bank Manager (Former) Bank Of Baroda, Branch Sarafa Bazar Lashkar, Gwalior, M.P. … Respondents

BEFORE:

For the Petitioner : Mr. Arun Aggarwal, Advocate.

Pronounced On 10 th October , 2013

1. The present Revision Petition is filed by the Petitioner Bank Of Baroda under Section 21 (b) of Consumer Protection Act, 1986 against the order of the State Consumer Disputes Redressal Commission, (in short, ‘State Commission’) Bhopal, Madhya Pradesh. The State Commission dismissed the Appeal filed by the Bank Of Baroda in Appeal No. 919 of 2010 setting aside the order of the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’) in Consumer Complaint No. 700 of 2009. The District Forum passed an order on 26.02.2010, and, allowed the complaint.

2. Facts of the case in brief: The Complainant, an Agriculturist, bought a tractor P.T. Escort 439 from M/S Rajiv Tractors, Dabra, Gwalior (OP-1), after availing loan from Bank of Baroda (OP-3). The OP-2 Mr. S.M. Khan, Branch Manager of OP-3 Bank, issued a loan sanction and asked the complainant to get the tractor from OP-1. On the basis of letter from OP-2, the proprietor Mr. Rajiv Sharma (OP-1), issued a cash memo dated 4/3/2008, detailing the engine no. E- 3042699 and Chassis No. B-3039770. He endorsed a hypothecation agreement in favor of OP-3 Bank, and mentioned about receipt of amount of Rs.4, 56,941/- i.e., price of the tractor and Rs.1,00,000/-, towards insurance of the tractor. The Complainant also paid the amount for registration to OP-1, and he was asked to obtain the documents from the Bank. But, OP-2, Mr. S.M. Khan, did not give documents of tractor to the complainant. On 07.03.2008 when the tractor met with an accident, it was seized by the officials of Police Station, Jhansi Road, Gwalior. When the documents of tractor were demanded from the OP-2 & 3, they kept on avoiding him. Therefore, on suspicion of foul play, the complainant got the information from the RTO Office about the details of registration of the tractor, and it was learnt that tractor having Chassis No. B- 3039770 and Engine No. E-3042699 bearing Registration No. MP 07 AA 1258, registered in the name of Ganga Ram Rawat, S/o Rudra Singh, Village Kheda, Tehsil Bhitarwal, District Gwalior. Complainant came to know that it was a fraud committed by OP-2 & 3, and in connivance with each other, had seized the old tractor which was sold earlier, on 11.05.2007, to Ganga Ram Rawat because of nonpayment of installments. After refurbishing, painting and removing its registration number plate, same tractor has been sold to the complainant, claiming it to be a new one, and original documents were kept hidden by them. Thus, the complainant filed a complaint before the District Forum, Gwalior seeking directions to the OPs to give new tractor or its price and insurance amount along with interest and compensation on the ground of committing gross deficiency in service.

3. The District Forum allowed the compliant, and passed an order on 26.02.2010 holding that Branch Manager, Bank of Baroda, S.M. Khan, former Bank Manager and dealer Rajiv Sharma have committed deficiency in service and unfair trade practice, and directing OP-1, Bank of Baroda, to receive the disputed tractor in its present condition from the Complainant, without any recovery of loan sanctioned against the tractor from the OP-1, and Branch Manager, Bank of Baroda ,the OP-3, to deposit the margin money which was deposited by the Complainant for approval of loan, along with interest, with the District Forum, within one month from the date of order. It further directed that the said money was to be paid to the Complainant. It is also directed that , OP-2 Rajiv Sharma, Prop. M/s Rajiv Traders and Branch Manager, Bank of Baroda shall deposit Rs.10,000/- each, separately, as compensation and Rs.1,000/- each, separately, as costs of proceedings, to be paid to the Complainant, within one month. 4. Aggrieved by this order, OP-3, filed an appeal before the State Commission.

5. The State Commission examined the evidence on record and found that Branch Manager, Bank of Baroda, Sarafa Bazar, Lashkar, Gwalior, S.M. Khan, occupation- Manager (former) Bank of Baroda, Branch Sarafa Bazar, Lashkar, Gwalior and Dealer Rajiv Sharma, S/o Parmanand Sharma, Prop. M/s Rajiv Traders, Gwalior Road, Dabra, all three, in connivance with each other, have financed the tractor having Chassis no. B- 3039770 and Engine No. E-3042699 to the OP-1, Ratan Singh Pawaiya, and that the same was sold earlier, on 11.05.2007, to Ganga Ram Rawat, S/o Shri Rudra Singh, Village Kheda, Tehsil Bhitarwar, District Gwalior. Hence, the State Commission upheld the order of District Forum.

6. Aggrieved against the order of State Commission, the Petitioner filed this Revision Petition.

7. We have heard the Counsel for Petitioner at admission stage, perused the evidence on record and orders of both the Fora below.

8. It is an undisputed fact that, the complainant obtained the quotation for purchase of a new tractor from the OP-1. Even there is no dispute in this regard that OP-1 has sold out a tractor having Chassis No. B-3039770 and Engine No. E-3042699 vide Cash Credit Memo dated 04.03.2008.

9. The District Forum observed;-

“ it is proved in the present case that the tractor having Chassis no B- 3039770 and Engine no. E-3042699 which was sold showing it brand new to Applicant No.1, that tractor instead of being new tractor, was earlier sold to some Ganga Ram, S/o Rudra Singh, R/o Bhitarwar, Gwalior in the year 2007 vide Ex.C-9 and C-10, which was registered in RTO, Gwalior at Registration No. MP 07 AA 1258 and then definitely, by selling out old tractor to the Applicant after receiving the price of new tractor from the Non-Applicant no. 3, not only deficiency in service and unfair trade practice has been committed, but criminal offence has also been committed.

10. Therefore, it is clear that the disputed tractor was already hypothecated with the OP-3 Bank earlier in favour of Ganga Ram, S/o Rudra Singh and the same was shown to be sold to the Applicant. Thereafter, OP-3 should have made the payment after receiving explanation from the OP-1.

11. It is clear that there was a nexus between OPs, i.e. OP-3 by sanctioning loan, twice, on same tractor and making payment to the OP-1. Such services are unfair trade practices and amount to absolute deficiency in service by OPs. 12. It is so apparent that, OP-2 had the complete knowledge of the improper act of OP-1 i.e. the disputed tractor was an old one and was already registered in some other’s name, earlier, and disputed tractor is hypothecated because of sanctioning of loan in the name of other person, Ganga Ram earlier, therefore, OP-2 deliberately did not supply the documents to the complainant. Hence, liability should be fixed on all the OPs.

13. Therefore, we are of considered view that there is no need to interfere with the observations made by the Fora below. We endorse the same order passed by both the Fora below. Also, such service providers deserve to be properly punished. Accordingly, we impose punitive costs of Rs.25,000/- upon OP-1 and OP-3, each, which is to be deposited in Consumer Legal Aid Account of this Commission.

14. The OPs are directed to comply with the entire order within 60 days, otherwise, it will carry interest @ 9% pa till its realization. The Revision Petition is dismissed.

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

……………….…………… (Dr. S.M. KANTIKAR) MEMBER Mss-07 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3060 OF 2013 WITH (I.A. NO.5314 OF 2013, FOR C/DELAY)

(Against the order dated 27.02.2013 in Appeal No. 219/2010 of the State Commission, Delhi)

Air India Express Through Mr.J.K.Sood Manager Admn. Office of General Manager – S & M ED Office Complex, IGI Airport, T-1 Behind Bus Stop, Palam Airport Near Post Office New Delhi – 110037

...... Petitioner

Versus

Shri Sunil Goyal R/o S-473, Greater Kailash – 1 New Delhi – 110048

…... Respondent

BEFORE:

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

HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Suhaas Joshi, Advocate with

Mr. Ashish Kumar, Advocate

Pronounced on : 10 th October, 2013

REKHA GUPTA

Revision Petition No. 3060 of 2013 has been filed by the petitioner under Section 21 (b) of the Consumer Protection Act, 1986 (for short, ‘Act’) against the impugned order dated 27.2.2013, passed by Delhi State Consumer Disputes Redressal Commission, (short, “State Commission”) in First Appeal No.219 of 2010.

The respondent/complainant purchased a valid ticket through internet on 28.4.05 for traveling to Dubai via Abu Dhabi for 22.5.2005 and return ticket for 26.5.2005. The ticket was purchased through internet as the same was for low fare. The flight in question only goes to Dubai. The respondent had no option but to arrange for pick up from Abu Dhabi and back by road and paid 100 per cent transfer fare amount of Rs.17,000/-. Extra charges were paid for entering Abu Dhabi. The visa to Dubai is given only with the hotel confirmation. Respondent received a call from petitioner/opposite party on 19.5.05 at about 3 P.M. informing that the flight to Abu Dhabi on 22.5.2005, 24.5.2005 and 26.5.2005 have been cancelled on account of some technical snag. The respondent visited to the office of the petitioner and met Ms. Rita Chawla who declared that they were refunding the ticket amount without any cancellation charges and reasons for technical snag were that there was no air craft available on the said base. The complainant requested to be accommodated in alternate seats in AirIndia but Ms. Rita Chawla refused to accommodate the respondent as well as other group passengers and behaved in a very rude manner. The respondent was forced to purchase tickets of Air India amounting to Rs.16,337/- as against each ticket which was costing Rs.9,150/-. The respondent could travel to Dubai after purchasing ticket on higher fare. Respondent has claimed refund of visa charges refund of 85 US dollars which equal to Rs.3,785/- and difference amount of ticket price Rs.7,237/-, visa extension charges of Rs.17,000/- along with other compensation.

Petitioner pleaded that the respondent was refunded the entire ticket amount on account of cancellation of flight. The air ticket is non-transferable and, therefore, no alternate seats could be given to the respondent. The respondent was informed in advance about cancellation of flight so that he could make alternative arrangements. Petitioner denied any deficiency in service. District Consumer Disputes Redressal Forum, New Delhi (For short, “District Forum”) passed the following order ; 1. OP will refund the difference amount of ticket price i.e. Rs.7,237/- to the complainant. Complainant had to obtain advance visa for which 85 US dollars of which equated amount spent were totaling to Rs.3,785/- and Visa Extension charges of Rs.17,000/- to the complainant. OP will therefore, pay Rs.28,022/- to the complainant towards expenses directly incurred by the complainant for no fault of his. 2. On account of mental agony, harassment and for deficiency in service, OP will pay Rs.50,000/- towards compensation 3. OP will pay Rs.10,000/- towards cost of litigation to the complainant.”

Aggrieved by the order of the District Forum, petitioner/opposite party has filed an appeal before the State Commission, which vide its order dated 27.2.2013 dismissed the same.

Hence, the revision petition.

Along with present petition, petitioner has filed an application for condonation of delay of 43 days. The reasons given for the delay are as follows ;

“ That the certified copy of the impugned judgment dated 27.2.2013 was received by the petitioner on 15.4.2013 and the statutory period of limitation of 90 days for preferring revision petition expired on 14.7.2013. Consequently, there is a short inadvertent delay of …….. days in filing of the instant petition. That the petitioner being a state agency has to comply with a number of official formalities and technicalities and had to go through numerous stages before filing instant revision petition.

That the delay in filing of the present petition is due to procedural formalities common to Government Departments, of seeking approvals at every stage and there has been no lack of diligence on part of the petiiotner in pursuing the matter.

That the petitioner respectfully submits that the said delay is neither willful nor due to any inaction but was purely due to administrative reasons as set out above and this is an appropriate case for condoning the delay.

That it is respectfully submitted that the petitioner has a very good case on merits and if awarded an opportunity to argue the matter on merits, it has every likelihood of succeeding before this Hon’ble Commission.

We have heard learned counsel for the petitioner and gone through the record of the case.

The reasons given for the delay in the application are general, vague and not specified. The only argument given by the learned counsel for the petitioner was that the petitioner being a state agency takes time to comply with a number of official formalities and technicalities and procedural formalities common to Government departments. These too have not been specified. The petitioners have failed to explain the day to day reasons for the delay of 43 days and also failed to give sufficient cause to condone the delay.

Learned counsel for petitioner has relied upon a judgment in Esha Bhattacharjee Vs. Mg. Commit. of Raghunathpur Nafar ACAD & Ors. (Civil Appeal Nos.8183-8184 of 2013). He draws our attention to para 15 of this judgment. He could not, however, confirm whether the facts of the instant cited case were comparable to the present case.

Apex Court in case Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV(2011) CPJ 63(SC) has observed ;

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras”.

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.”

Under these circumstances, no sufficient cause is made out for condoning the delay of 43 days in filing the present petition. Accordingly, application for condonation of delay is not maintainable. Consequently, the present revision petition being barred by limitation is hereby dismissed with cost of Rs.20,000/- (Rupees Twenty Thousand Only).

Cost of Rs.10,000/- to be paid by way of demand draft in the name of the respondent and remaining cost of Rs.10,000/- 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.

List on 22.11.2013 for compliance.

…………………..………..J

(V.B. GUPTA)

PRESIDING MEMBER ………..…………..………..

(REKHA GUPTA)

MEMBER

Sonia/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2652 OF 2013 (Against the order dated 18.04.2013 in First Appeal No.252 of 2011 of the Kerala State Consumer Disputes Redressal Commission, Rajasthan, Chennai)

Mr. K Bhaskaran, S/o Mr. P. Krishnan Kutty, Subramania Apartments, New No. 39/06, Old No.38/6 C.P. Ramaswamy Road, Alwarpet, Chennai 600018.

… Petitioner

Versus 1. Standard Chartered Bank Ltd. Represented by Manager, 29/30, Raja Rajeswari Towers, 2nd Floor, Dr. Radhakrishnan Salai Mylapore, Chennai- 600004

2. Officer, Customer Care, Standard Chartered Bank, India Bankcard Centre, 3rd & 4th Floor, Raheja Point, Magarath Road, Bangalore-560025.

…. Respondents

BEFORE:

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

For the Petitioner : Mr. K. Vijay Kumar, Advocate

In this revision petition filed under Section 21(b) of the Consumer Protection Act,

1986(for short, ‘Act’) there is challenge to order dated 18.4.2013 passed by State Consumer

Disputes Redressal Commission, Chennai(for short, ‘State Commission) in First Appeal No.

252 of 2011. 2. Brief facts are that Petitioner/Complainant had availed the services of Respondents/O.Ps.by holding five credit cards issued by Respondent No.1. It is alleged that Petitioner had been making prompt payments for all the five cards. Only because of the services offered by the respondents went against the agreed norms, petitioner decided to withdraw from the said services. After consulting the official of the respondent no.1 and as per the advice received, petitioner cut into pieces all the five cards and sent the same to respondent no.1 along with 12 cheques for full and final settlement of the entire dues. Respondent No.1 having received the letter and cheques along with cut pieces of five credit cards had also encashed all the 12 cheques. Only after the 12 cheques were honoured, respondent no. 1 started sending further demand letters to the petitioner as if he owed money to respondent no.1 under the said credit card transactions. Having accepted the said 12 cheques towards the settlement of entire dues and having encashed them, respondent no.1 is estopped from claiming any further amount from the petitioner. The act of respondents in initiating proceedings before the Tamil Nadu State Legal Service Authority amounts to deficiency in service on their part.

3. Respondents in their written statement admitted that petitioner had availed five credit card issued by respondent no.1. However, respondent no.1 had not sent any full settlement letter to the petitioner giving him the plan, amount and period of repayment. The petitioner, suo motto had sent a letter enclosing 12 cheques for Rs.8,520/- each as there was no settlement of dues, as alleged and no repayment from 2006. So, the respondents in the normal course referred the matter to the Lok Adalat of the Tamil Nadu State Legal Services Authority. Resorting to the recovery of dues through Lok Adalat cannot amount to deficiency in service on the part of the respondents.

4. District Consumer Disputes Redressal Forum, Chennai (South)(for short, ‘District Forum’), vide order dated 20.12.2007, dismissed the complaint of the petitioner being devoid of merits.

5. Being aggrieved by the order of District Forum, petitioner filed appeal before the State Commission, which was dismissed, vide impugned order dated 18.4.2013.

6. Hence, this revision petition.

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

8. It has been contended by learned counsel for the petitioner that there has been deficiency on the part of the respondents in as much as constant harassment is being caused to the petitioner even after full and final settlement made by the petitioner.

9. District Forum, in its order held;

“Credit card history in respect of five credit cards dated 27.03.2008 issued by the opposite party is Ex B1. Credit card statement for the period from July 2005 to August 2006 is Ex B2.

Perusal of Ex B2 would reveal that the complainant had outstanding amount due to the opposite party bank even after the realization of 12 cheques sent by the complainant towards full and final settlement. For recovery of dues from the complainant, the opposite parties referred the matter to the Lok Adalat. In the above circumstances, we are of the considered opinion that resorting to recovery of dues through the Lok Adalat would not amount to deficiency in service”.

10. State Commission, while confirming the order of District Forum, in its impugned order observed;

“ 5. We have carefully considered the arguments of the complainant and record relied upon by the complainant and as well as the respondents/opposite parties before the District Forum even though the complainant alleged that in view of the final settlement he had sent 12 cheques for Rs.1,02,328/- against the due for Rs.1,27,910/- as per Ex.A1 statement of account and on that basis he had also surrendered the credit cards by cutting into pieces and thereby claimed entire discharge, the opposite party contended that since the dues are pending matter was referred to Lok Adalat for recovery of money which cannot be considered as deficiency of service. On perusal of the Ex.A3 Lok Adalat notice along with the statement details of the 5 cards containing total outstanding dues in each case after the last usage date and the complainant did not file any letter of settlement to prove that he was directed to pay only a sum of Rs.1,02,328/- instead of Rs.1,27,910/- as final settlement. So the letter sent by the opposite party under Ex.A5, the complainant was requested to furnish the settlement letter to enable them to look into the matter to do the needful and thereby it is clear that there was no effective settlement by way of documentary proof and thereby the complainant cannot claim any discharge from the entire dues and the dispute to be settled between the parties themselves in this regard as it involves question of principal amount, interest, penal interest etc as per the terms and conditions of the agreement for receiving the credit card facility service and thereby the District Forum by considering all the relevant materials in detail came to the proper conclusion by dismissing the complaint with which finding, we find no need for any interfere and this appeal to be dismissed as devoid of merits and accordingly”.

11. After perusing of the record, we find that there is nothing on record to show that petitioner has made any full and final settlement with the respondents in respect of his Credit Card amount.

12. Both the Fora below have categorically held that a sum of Rs.1,27,910/- was due against the petitioner against which he himself had sent a sum of Rs.1,02,328/- towards full and final settlement unilaterally.

13. Under section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

14. 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”.

15. In view of the concurrent findings of facts given by both the Fora below, we do not find any infirmity or illegality in the impugned order passed by the state Commission. Hence, present revision petition has no legal force and the same is hereby dismissed.

16. No order as to costs.

……..……………………J

(V.B. GUPTA)

(PRESIDING MEMBER

………………………… (REKHA GUPTA)

MEMBER

REVISION PETITION NO. 2451 OF 2011 (From the order dated 07.04.2011 in Appeal No. 4220/2010 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

With IA/1686/2013 (Placing Addl. documents)

Shivashankar S/o Malkappa,Aralaguppi R/o Taluk Office Board Hangal, Haveri District Karnataka State …Petitioner/Complainant

Versus

1. Bajaj Allianz General Insurance Co. Ltd. 4th Floor, Kalburgi Mansion, Lamington Road, Hubli, Now rep. by Bajaj Allianz General Insurance Co.Ltd. 31, Ground Floor, TBR Tower, 1st Cross, New Mission Road, Adjacent to Jain College, Bangalore

2. The Manager, Karnataka Bank Ltd. Hangal, Haveri District, Karnataka State

BEFORE

For the Petitioner : Mr. Manish Gupta, Proxy Counsel

For Mr. Anand Sanjay M. Nuli, Advocate

For the Res. No. 1 : Mr. Priyadarshi Gopal, Advocate

For the Res. No. 2 : Deleted PRONOUNCED ON 11 th October, 2013

O R D E R

This revision petition has been filed by the petitioner against the order dated 07/04/2011 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal No. 4220 of 2010 – M/s. Bajaj Allianz Gen. Ins. Co. Ltd. Vs. Shivashankar & Anr. by which, while allowing appeal, order of District Forum allowing complaint was set aside. 2. Brief facts of the case are that Complainant/petitioner, owner of passenger van KA-27/8744 got it insured from OP No. 1/Respondent No. 1 for a period of one year from 4.8.2008 to

3.8.2009. The vehicle was financed by OP No. 2/Respondent No. 2. Vehicle met with an accident on 22.7.2009 at 4 A.M. FIR was lodged and intimation was given to OP No.

1. Complainant incurred expenses of Rs.1,99,035/- in repairs and submitted claim which was repudiated by OP No. 1. Alleging deficiency on the part of OPs, complainant filed complaint before District Forum. OP No. 1 resisted complaint and submitted that vehicle was driven by Umesh at the time of accident who was not possessing valid driving licence. It was further submitted that vehicle was carrying 19 passengers against the capacity of 12 passengers and in such circumstances; claim was rightly repudiated and prayed for dismissal of complaint. OP No.

2 submitted that no claim has been filed against him and prayed for dismissal of complaint.

District forum after hearing both the parties, allowed complaint partly and directed OP No. 1 to pay 75% of the assessed damages of Rs.86,982/- along with 9% p.a. interest and further awarded

Rs.5,000/- towards mental agony and Rs.5,000/- towards cost of the complaint.

Appeal filed by the OP No. 1 was allowed by State Commission vide impugned order against which, this revision petition has been filed.

3. Respondent No. 2 was deleted on the request of petitioner.

4. Heard learned Counsel for the parties finally at the admission stage and perused record.

5. Learned Counsel for the petitioner submitted that at the time of accident, vehicle was driven by Bairappa and learned District Forum rightly allowed complaint, but learned State

Commission has committed error in allowing appeal on the ground that the vehicle was being driven by Umesh, who was not possessing valid driving licence; 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.

6. It is not disputed that petitioner’s vehicle was insured by Respondent No. 1 and vehicle met with an accident during subsistence of insurance policy and petitioner incurred expenses in repairs of the vehicle.

7. Now, the main question is who was driving the vehicle at the time of accident. In FIR lodged by one injured Basavaraj, it has specifically been mentioned that vehicle was driven by Umesh. It appears that after investigation, challan was filed against Bairappa instead of Umesh. In FIR, this fact has specifically been mentioned that driver himself sustained injuries. Injured persons filed MACT claim and Motor Accident Tribunal decided all claims by order dated 29.11.2011 and held that Insurance Company is not liable to pay compensation as vehicle was driven by Umesh at the time of accident who was not holding any driving licence to drive the said vehicle. During the course of arguments, learned Counsel for the petitioner admitted that no appeal has been filed by the petitioner against the order of Motor Accident

Tribunal. In such circumstances, it can be very well inferred that at the time of accident, Umesh was driving vehicle who was not holding driving licence to drive the vehicle. Learned State Commission has not committed any error in holding that Umesh was driving the vehicle and he also sustained injuries.

8. Petitioner has not placed on record injury report of Bairappa which could have proved the fact that Bairappa was driving the vehicle at the time of accident and in such circumstances; it is proved that Umesh was driving the vehicle at the time of accident. Petitioner has also not placed on record driving licence of Umesh. As there was violation of terms and conditions of insurance policy, learned State Commission rightly allowed appeal and dismissed complaint.

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

………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 2622 OF 2012 (From the order dated 16.04.2012 in Appeal No. 302/2007 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

M/s. Honda Cars India Ltd. Plot No. A-1, Sector 40/41, Suraj Pur – Kasna Road, Greater Noida Indl. Dev. Area Gautam Budh Nagar, U.P. – 201306 …Petitioner/Opp. Party (OP)

Versus

1. Jatinder Singh Madan Proprietor M/s. G.N. Associates, 1, The Mall, Lawrence Road, Amritsar, Punjab.

2. Prestige Honda, Lally Motors Ltd. G.T. Road, Near Bye Pass, Amritsar, Punjab

BEFORE

For the Petitioner : Mr. Dhruv Wahi, Advocate

For the Res. No. 1 : Mr. Mahaling Pandarge, Advocate

For the Res. No. 2 : Mr. Saurabh Sharma, Advocate

O R D E R

This revision petition has been filed by the petitioner against the order dated 16.04.2012 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short, ‘the State Commission’) in Appeal No. 302 of 2007 – Jatinder Singh Madan Vs. Honda Cars India Ltd. by which, while allowing appeal, order of District Forum dismissing complaint was set aside.

2. Brief facts of the case are that Complainant/Respondent No. 1 Proprietor of G.N.

Associates purchased Honda Seil GXI Car No. PB-02-AP-8283 from OP No. 2/Respondent No.

2 manufactured by OP No. 1/Petitioner on 16.9.2005 and price of the Car was paid and there was warranty of 24 months or 40,000 kmts. whichever is earlier. It was further alleged that after its first service at 1000 kms. Power steering of the car jammed and became heavy which was repaired by OP No. 2. Again after few days some problem occurred and car was delivered after

9 days after replacement of steering wheel and gear box assembly. Same fault developed again after 1½ months and steering wheel and gear box assembly was replaced. 4th time on 14.1.2006 and 5th time on 15.2.2006 same fault occurred. In such circumstances, complainant insisted for replacement of car, but OP refused. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OPs resisted complaint and submitted that no technical/expert evidence has been led by the complainant to prove manufacturing defect. It was further submitted that default may be due to mishandling and rough driving by the complainant. It was further submitted that complaint involves disputed questions of law and fact which can be decided only by Civil Court; hence, prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint as car was registered in the name of M/s. G.N.

Associates whereas complaint was filed by Jatinder Singh Madan. Appeal filed by the complainant was allowed by the State Commission by impugned order and directed petitioner to replace the steering wheel and gear box assembly and other connected parts and further awarded compensation of Rs.1,00,000/- for mental agony and Rs.10,000/- as litigation expenses against which, revision petition has been filed.

4. Learned Counsel for the petitioner submitted that complainant has sold the car during pendency of appeal; hence, he remains no moreconsumer under the Consumer Protection Act and complaint is liable to be dismissed. It was further submitted that merely because car has been taken to workshop for 4 to 5 times, it does not amount to manufacturing defect as steering wheel and gear box assembly had already been replaced; even then, learned State Commission has committed error in allowing complaint; 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 supported cause of petitioner.

5. Learned Counsel for the petitioner submitted that as during pendency of appeal car has been sold by Respondent No. 1 to AmritpalSingh on 13.4.2010 and further it has been transferred to Rajinder Bawa on 17.6.2011 without permission from State Commission, Respondent No. 1 remains no more consumer under the Consumer Protection Act and not entitled to any relief. Perusal of copy of registration certificate proves fact of transfer of vehicle by complainant to Amritpal Singh and in turn to Rajinder Bawa. Learned Counsel for the Respondent no. 1 also admitted sale of vehicle. Learned Counsel for Respondent No. 1 has nowhere submitted that vehicle was transferred during pendency of appeal with the permission of State Commission.

6. We have held in R.P. No. 2562 of 2012 – Tata Motors Ltd.

& Anr. Vs. Hazoor Maharaj Baba Des Rajji Chela Baba Dewa Singhji ( Radha Swami)

& Anr. decided on 25.09.2013 that once vehicle is sold during pendency of the complaint, complainant does not remain consumer for the purposes of Consumer Protection Act. In that judgment, we have placed reliance on I (2008) CPJ 249 (NC) – Hoshiarpur Improvement

Trust Vs. Major Amrit Lal Saini and judgement dated 23.4.2013 passed by this Commission in Appeal No. 466 of 2008 – Mr. Rajiv Gulati Vs. Authorised Signatory M/s. Tata

Engineering & Locomotive Co. Ltd. & Ors . In this case, as vehicle has been sold by complainant during pendency of appeal which was filed in the year 2007 and decided in the year

2012, complainant ceases to be a consumer under C.P. Act and complaint is liable to be dismissed. Had Respondent No. 1 brought this fact to the notice of State Commission learned

State Commission would not have directed petitioner to replace the steering wheel and gear box assembly and other connected parts because Respondent no. 1 was not possessing vehicle at the time of passing the judgement.

7. Learned Counsel for the petitioner submitted that there was no manufacturing defect in the vehicle; even then, learned State Commission wrongly allowed complaint and directed to replace steering etc., though, it had already been replaced twice before filing complaint. Perusal of record reveals that steering gear box was replaced twice before filing complaint and again learned State Commission vide impugned order directed petitioner to replace the steering wheel assembly and other connected parts without any expert report or opinion. We are not inclined to decide this aspect whether by taking vehicle to workshop for 4 to 5 times it would amount to manufacturing defect or not because we have already held that complainant ceases to be a consumer under the Consumer Protection Act and in such circumstances; complaint is liable to be dismissed on this sole count.

16.4.2012 passed by learned State Commission in in Appeal No. 302 of 2007

– Jatinder Singh Madan Vs. Honda Cars India Ltd. 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 )

REVISION PETITION NO. 292 OF 2012 (From the order dated 11.10.2011 in Appeal No. A/11/423 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

Oriental Insurance Co. Ltd. Through its Authorized Signatory 88, Janpath, New Delhi …Petitioner/Opp. Party (OP)

Versus

Shri Pradip Deoram Jadhav Shrikrishna Colony Vinchur Road, Yeola Tal Yeola, District Nashik

BEFORE

For the Petitioner : Ms. Neerja Sachdeva, Advocate For the Respondent : Mr. Sunil Kumar Ojha, Advocate

O R D E R

This revision petition has been filed by the petitioner against the order dated 11.10.2011 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in Appeal No. A/11/423 – Oriental Ins. Co. Ltd. Vs. PradipDeoram Jadhav by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that Complainant/Respondent purchased Family Floater Policy

No. 164000/48/11/00178 from OP/Petitioner and it was valid for the period 16.8.1999 to

15.8.2000. It was further submitted that OP-Development Officer apprised him about new policy named Family Floater Policy. He applied for it and OP issued policy on 28.4.2010. It was further submitted that as he was not feeling well on 28.4.2010, he went to Dr. Muley for general check-up who advised him to contact Dr. Manoj B. Chopada Nashik. He contacted Dr. Chopadawho advised him to undergo Angiography and Angioplasty which was performed on 29.4.2010. He incurred expenditure of Rs.2,50,000/-, but his claim was repudiated by OP on the ground that he suppressed the fact of suffering from BP, though, he was not the patient of BP and did not take any medicine. Alleging deficiency on the part of OP, complainant filed complaint before the District forum. OP contested complaint and submitted that complainant was suffering from hypertension since 4 years and he had not disclosed this fact; 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.2,00,000/- along with 9% p.a. interest and further awarded Rs.15,000/-for mental agony and Rs.1,000/- towards cost of litigation. 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 impugned order is not a speaking order and further submitted that inspite of material on record about complainant disease, 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 complainant obtained policy on 28.4.2010 and on the very day he contacted Dr. Chopada who advised him to undergo Angiography and Angioplasty and the next day this was performed. Perusal of record further reveals that in proposal form complainant submitted that he was in good health and denied every sort of disease, whereas complainant was suffering from hypertension since last 4 years. Learned State Commission observed that merely by filing certain photo copies, is not synonymous to tendering of evidence and disputed fact is not at all established. In our opinion, aforesaid order of State Commission is not in accordance with law, as complainant himself admitted in the complaint that on the day of obtaining policy, he was not feeling well and contacted Dr.Chopada who advised him to undergo

Angiography and Angioplasty and on the next day the Angiography and Angioplasty was performed. Learned State Commission ought to have discussed documents filed by the parties before the District forum and should have passed reasoned order.

6. Apparently, the aforesaid order is not a speaking order whereas it has been observed by the Hon’ble Apex Court in in (2001) 10 SCC 659 – HVPNL Vs. Mahavir 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 DisputesRedressal Commission, Haryana at Chandigarh in future. A copy of this order may be communicated to the Commission”.

7. In the light of aforesaid judgment, we deem it appropriate to remand the matter back to the

State Commission for disposal of appeal by a reasoned speaking order.

11.10.2011 in Appeal No. A/11/423 – Oriental Ins. Co. Ltd. Vs. Pradip Deoram Jadhav is set aside and matter is remanded back to the State Commission for disposal of appeal by a speaking order by giving opportunity of being heard to both the parties.

9. Parties are directed to appear before the State Commission on 27.11.2013. ………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3579 OF 2011 (From the order dated 05.07.2011 in Appeal No. 1131/2004 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

With IA/5306/2013 (Placing Addl. Documents)

Nathu Singh S/o Shri Daljit Singh R/o Plot No. 87, Parsu Ram Nagar, Near Rattangarh, Ambala City …Petitioner/Complainant

Versus

1. Haryana Urban Development Authority Sector 6, Panchkula through its Chief Administrator Panchkula

2. Estate Officer, Haryana Urban Development Authority Sector 7, Ambala City.

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. G.I. Sharma, Advocate

For the Respondents : Mr. Sudhir Bisla, Advocate

O R D E R

This revision petition has been filed by the petitioner against the order dated 05.07.2011 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal Nos. 1131 of 2004 – The Estate Officer, HUDA

Vs.Nathu Singh by which, while allowing appeal, order of District Forum allowing complaint was partly modified.

2. Brief facts of the case are that Complainant/petitioner was allotted Plot No.

751/2008, Ambala vide allotment letter dated 12.4.1989 for Rs.51,290/-. Complainant deposited price of the plot, but OP did not offer possession of the plot. Complainant surrendered the plot vide letter dated 6.3.2003 and asked for refund of money. As money was not refunded, alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that offer of possession was made to the complainant vide letter dated

4.10.1996 and as per policy of the HUDA, complainant is liable to pay 10% of the total price in case of surrender of plot and deduction of 10% of the total price of the plot was made as per policy of HUDA; hence, complaint be dismissed. Learned District Forum after hearing both the parties allowed complaint and directed OP to refund the total deposited amount with interest @

10% p.a. and further awarded Rs.1,000/- as cost of proceedings. 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 as plot was not developed the possession was not given in 3 to 4 years, petitioner surrendered the plot and he was entitled to receive full deposited amount along with interest and learned District Forum rightly allowed complaint, but learned State Commission has committed error in modifying the order; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondents submitted that inspite of offer of possession, petitioner has not taken possession of the plot and surrendered plot. In such circumstances, order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. It is not disputed that plot was allotted by respondent to the petitioner vide allotment letter dated 12.4.1989. It is also not disputed that possession was offered vide letter dated 22.5.1993, but it was withdrawn vide letter dated 29.6.1993. Record further reveals that possession of plot was again offered by respondent to the petitioner vide letter dated 4.10.1996, but it appears that instead of taking possession petitioner surrendered plot vide letter dated 6.3.2003 and in such circumstances, respondent was entitled to deduct 10% of the total price as per HUDA policy. Learned District Forum wrongly allowed complaint and learned State Commission has rightly allowed appeal and held that petitioner is entitled to receive surrendered amount as per

HUDA policy.

6. 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.

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

………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..…………Sd/-…………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 2000 OF 2013 WITH (I.A. NO. 3298 OF 2013, For Stay)

(Against the order dated 08.02.2013 in Appeal No.1314/2012 of the State Commission, Rajasthan)

1. Chairman Jaipur Vidyut Vitran Nigam Ltd. Vidyut Bhawan, Jyoti Nagar, Jaipur, Rajasthan

2. Executive Engineer Jaipur Vidyut Vitran Ltd. District - Karauli, Rajasthan

3. Assistant Engineer Jaipur Vidyut Vitran Ltd. District - Karauli, Rajasthan

...... Petitioners Versus

Mahendra Singh S/o Shri Rich Pal Singh R/o Jeetkipur, Tehsil – Nandoti District – Karauli Rajasthan

…... Respondent

BEFORE:

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

For the Petitioner : Mr. Ajatshatru Mina, Advocate

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

Present revision petition has been filed by the Petitioner/OPs under Section 21 (b) of the Consumer Protection Act, 1986 (for short, ‘Act’) for setting aside order dated 8.2.2013, passed by Rajasthan State Consumer Disputes Redressal Commission, Jaipur

(short, “State Commission.

2. Brief facts are that Respondent/Complainant filed a complaint stating that he has SIP connection No.15020093 of 10 HP for which he was paying bill regularly. Previously, a Meter No.6366217 was installed and on the basis of reading, an amount of Rs.4,317/- was deposited on 1.1.2010 and a new meter was installed on 1.1.2010 which was already used and it reflected a meter reading of 24000 units. A bill was sent to him showing reading of 24617 units on 24.2.2010 and it showed previous reading as 8712. Thus, a bill for 15905 units was preponed showing the old meter number 6366217. Consequently, bill for Rs.64,377/- was sent. This act of petitioners show that the bill was prepared without application of mind. Thus, respondent has prayed for the cancellation of the incorrect bill and to award compensation of Rs.45,000/-. 3. Petitioners in their reply have admitted Meter No.176540 has been installed. It has been further stated that respondent has consumed all the units mentioned in the electricity bill. However, petitioners have also fairly conceded that the wrong bill was issued to the respondent due to human error as there were two different connections arising from one sub-station. Therefore, the meter reader inadvertently interchanged the units consumed by the consumer and accordingly, the incorrect electricity bill was issued. However, after receiving the complaint, petitioner issued correct bill after reducing 5957 units from the impugned electricity bill. Thereafter, meter reader again recorded the reading of 20448 units on 26.5.2010 in the presence of the respondent after taking his signatures. However, to verify the fact, a report was sought by Asst. Engineer from the Junior Engineer. Accordingly, the Junior Engineer conducted a report found that the electric meter was functioning properly. Thus, there was no deficiency in service on the part of the petitioner.

4. District Consumer Disputes Redressal Forum, Karauli Camp Hindaun City (for short, “District Forum”), vide order dated 22.5.2010, allowed the complaint and ordered that ;

“The complaint of the complainant has been partly allowed and it is ordered that bill dated 4.3.2010 of Rs.64,377/- in account No. SIP 15020093 is cancelled that it is ordered to issue amended bill on average basis, considering the usage of previous one year.

It is ordered to pay Rs.10,000/- (Rupees Ten Thousand only) to the complainant as compensation for mental and physical harassment and Rs.5,000/- is ordered to be paid for prosecution expenses. The complainant is entitled to pay 9% interest if failed to pay, within two months.”

5. Aggrieved by the order of the District Forum, petitioner filed an appeal before the State Commission, which dismissed the same vide impugned order.

6. Hence, this revision petition.

7. We have heard learned counsel for the petitioner and gone through the record of the case.

8. It has been contended by learned counsel for the petitioner that State Commission has dismissed the appeal of the petitioner without assigning any reason thereof and therefore, it has violated the basic principle of law by dismissing the appeal and the plea raised by the petitioner has not been dealt with. As such, impugned order is liable to be set aside.

9. District Forum, while allowing the complaint held ; 5. The non-complainant has admitted to issue the bill on 4.3.2010 of 15905 consumed units and on the complaint by the complainant, an amended bill was issued reducing 5957 units. 6. The non-complainant has admitted to change the meter on 1.1.2010 and it has shown nil unit but no documents have been presented to show that what was the reading at the time of installation. Non-complainant has also submitted a unit chart consumed by the complainant in which at any time from 2007 to 2010, there was no consumption more than 1033 units while the bill in question was sent of 18660 units. 7. A meter reading of 20448 has been shown by the meter reader on 28.5.2010 while at the time of inspection by Junior Engineer was 20704 unit. It is clear that the consumption of the complainant in 22 days is 256 units while the bill of two months is of 18660 units which cannot be justified and authentic. 8. A notice has been sent by Asst. Engineer to the meter reader but it seems that the signatures are being made by another person or employee and this notice has neither dispatched by putting dispatch number nor any date has been mentioned. There is no date under the signature and as such, there is no action against the meter reader. 9. On the basis of observations made, it is clear that non-complainant has committed acted negligently and without application of mind, issued the bill dated 4.3.2010 which comes in deficiency of service and on this basis the bill issued on this basis the bill issued on 4.3.2010 is liable to be cancelled and complainant is entitles to get the compensation.”

10. Petitioner in response to para 4 of the complaint has made following averments ;

“ That the contents of para 4 of the complaint are based on incorrect and fictitious facts. It is admitted that the meter No. 176540 has been installed but the fact of already consumed units is false and fictitious. It is humbly submitted that complainant consumed all the units mentioned in the electricity bill. However, it is fairly conceded that the wrong bill was issued to the consumer due to human error as there were two connections arising out of one sub-station. Therefore, the meter inadvertently interchanged the units consumed by the consumer and accordingly, the incorrect electricity bill was issued. However, the non- complainants right after receiving the complaint, issued the correct bill after reducing the 5957 units from the impugned electricity bill. Thereafter, meter reader again recorded the reading of 20448 units on 26.5.2010 in the presence of the complainant after taking his signatures. To verify the fact, a report was sought by A.En. Nadauti from the Junior Engineer. Accordingly, the Junior Engineer conducted a report found that the electric meter is functioning properly.”

11. Thus, as per defence of the petitioners themselves, wrong bill has been issued to the respondent due to human error as there were two connections arising out of one sub-station and the meter reader, therefore, inadvertently interchanged the units consumed by the consumer. Accordingly, incorrect electricity bill was issued. Petitioner has nowhere mentioned what was the wrong bill and what are the numbers of two connections and which meter reader had inadvertently interchanged the units consumed by the respondent. Petitioners have made absolutely vague averments and it does not lead us anywhere.

12. Though, it is correct that State Commission has not given any reason in its impugned order but nevertheless we after going through the entire record are unable to reach at any conclusion as on what basis, respondent issued the rectified bill.

13. 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. The present revision petition has no legal basis and consequently, it is hereby, dismissed with cost of Rs.5,000/- (Rupees Five Thousand only).

13. Petitioner is directed to deposit the cost of Rs.5,000/-, by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case, 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.

14. Pending applications also stand dismissed. 15. List on 29.11.2013 for compliance.

.………………..………..J

(V.B. GUPTA)

PRESIDING MEMBER

…………………..………..

(REKHA GUPTA)

MEMBER

Sg/St NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

FIRST APPEAL NO. 309 OF 2008 (Against the order dated 26.05.2008 in Complainant No.47 of 1996 of the State Commission, Maharashtra)

M/s. Nikhil Builders Through their Partners: 1. Mr. Dilip Vishnu Salvi’ 2. Mr. Chetan Vishnu Salvi 3. Mr. N.G. Pasthe All have their address at Salvi Wadi, Deshbandhu Chaphekar Marg, Mulund (East), Mumbai 400081 ...... Appellant

Versus 1. Shri Swami Kumar Banvalikar R/o Flat no.1, Indraprastha Building, Chaphekar Bandhu Marg, Mulund (E), Mumbai 400081

2. Mrs. Pushpa Kumar Bathe R/o Flat no.2, Indraprastha Building, Chaphekar Bandhu Marg, Mulund (E), Mumbai 400081

3. Mr. Chandrashekhar M.Pandit R/o Flat no.4, Indraprastha Building, Chaphekar Bandhu Marg, Mulund (E), Mumbai 400081

4. Mrs. Asmita A. Kale, R/o 83/A, Desai Building, 1st floor, Gharpure Path, Girgaum, Mumbai 400004

5. Shri Kamlakar Y. Patankar R/o Flat no.7, Indraprastha Building, Chaphekar Bandhu Marg, Mulund (E), Mumbai 400081

6. Shri Jagannath W. Mokal, R/o Flat no.8,Indraprastha Building, Chaphekar Bandhu Marg, Mulund (E), Mumbai 400081

7. Shri Vijay N. Pednekar R/o Flat no.9, Indraprastha Building, Chaphekar Bandhu Marg, Mulund (E), Mumbai 400081

8. Shri Gajanan S. Thakur R/o. Flat no.10, Indraprasta Building Chaphekar Bandhu Marg, Mulund (E), Mumbai 400081

9. Shri Nitin B. Chavan R/o Flat no.B-6, Indraprastha Building, Chaphekar Bandhu Marg, Mulund (E), Mumbai 400081

10. Mrs. Nilam N. Karne R/o Flat no.B-9, Indraprastha Building, Chaphekar Bandhu Marg, Mulund (E), Mumbai 400081

11.Mrs. Mangala P. Banavalkar R/o Shop no.2, Indraprastha Building, Chaphekar Bandhu Marg, Mulund (E), Mumbai 400081

12. Nav Indraprastha Co-op. Hsg. Soc. Ltd., Chaphekar Bandhu Marg, Mulund (E), Mumbai 400081 ….Respondents

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

For the Appellant : Mr.S.K.Sharma, Advocate with Mr. Uday B. Wavikar, Advocate Mr. Vikas Nautiyal, Advocate

For the Respondents : Mr. Rajeev Sharma, Advocate Mr. Abhishek Birthray, Advocate Mr. A.P.Rege, Advocate Mr. Sahil Bhalaik, Advocate

PRONOUNCED ON: 23rd Oct. 13 ORDER PER MR. VINAY KUMAR, MEMBER M/s. Nikhil Builders have challenged the award of the Maharashtra State Consumer Disputes Redressal Commission in Consumer Complaint No.47 of 1996 filed by the present respondents. The complaint before the State Commission is filed by 11 purchasers of flats together with their society namely, Nav Indraprastha Co-op. Housing Soc. Ltd., Mumbai. Sixteen reliefs were sought by the appellant. The State Commission has granted the following: - “ 1. O.P./Builder/developer is directed to obtain Occupation Certificate from local authority concerned.

2. From the date of respective occupation of the flats by the complainants, the complainant are liable to pay municipal taxes in respect of their own flats and for all other flats, the builder is responsible to pay municipal taxes. 3. O.P. /Builder is directed to pay Rs.24,000/- to the complainants towards reimbursement of additional levy sewage tax, which was paid by the complainants.

4. O.P/Builder is directed to pay the cost incurred, if any, by the complainants for formation of society.

5. O.P/Builder is directed to pay proportionate maintenance charges of Rs.120/- per month in respect of those flats, which were retained by the builder for his own purpose or for resale.

6. O.P./Builder is directed to execute Deed of conveyance in favour of complainants or in favour of complainants society i.e. complainant no.12 within a period of two months from the date of this order.

7. O.P./Builder is directed to remove the unauthorized construction and to hand over that space to the society already formed by the complainants.

8. O.P./Builder is directed to transfer individual meters in the name of respective complainants at his own expenses.

9. O.P./Builder is directed to pay Rs.2000/- each to all the complainants including complainant no.12 newly added Co-operative Housing Society and to bear its own cost.

10. Builder is also directed to pay Rs.10,000/- each to all the complainants except complainant no.12 for the mental harassment suffered by complainants for so many years.”

2. During the course of consideration of the appeal filed by the OP/Nikhil Builders against the above order, this Commission gave a notice of hearing to the respondents/Complainants on relief no.7 i.e. the direction to the builder to execute the conveyance deed in two months. As for the other reliefs granted by the State Commission, the appellant was directed on 6.3.2009 to complete the compliance within two weeks. Therefore, consideration of the appeal has got limited only to the question of non execution of the conveyance deed. 3. The two sides were also directed to file their written synopses/arguments. The same has been filed on behalf of the respondents/Complainants. Written synopsis/arguments had already been filed on behalf of the appellant/OP. The case of the appellant has been argued by Shri S.K.Sharma, Advocate assisted by Shri Uday B. Wavikar, Advocate. On behalf of respondents/Complainants Mr. Sahil Bhalaik and Mr. Rajeev Sharma Advocates have been heard. 4. The case of the complainants before the State Commission was that they had entered into individual agreements in 1984 with the OP/builder for purchase of flats. As per approved plan, the building was to have five floors, with four shops on the ground floor and in all 12 residential flats on the remaining four floors. The plan, as shown to them had the approval of the BMC. The Builder/OP had assured delivery within one year from the date of the agreement. But, they were actually put in possession of their flats in 1989. Allegedly, after 1991 the builder started extending portions of the building, contrary to the approved plan. The builder ultimately constructed six floors as ‘B’ wing of the building, in addition to the existing block, ‘A’ wing. Due to this, despite getting possession of their flats six years ago (at the time of the complaint) the complainants were not able to get conveyance deed from the builder. 5. The reply of the appellant/OP before the State Commission was that the plan for ‘A’ Wing of the building was approved by the BMC in 1986. It was for 500 square meters out of total land of 943.2 square meters. The remaining 443.2 square meters had been declared surplus under the Urban Land Ceiling Act. After the Competent Authority ULC exempted an area of 216.50 square meters, out of the total surplus of 443.20 square meters, the builder found it necessary to utilize the additional FSI by amending the earlier plan. Hence, the revise proposal was made for constructing the additional ‘B’ wing of the building. As per OP/builders, the revised plan was submitted in 1988 without proposing any alteration or modifications in the flat in ‘A’ wing. Allegedly, the modification of the plan was approved by BMC in 1989, permitting construction of the ‘B’ wing. 6. On the question of execution of conveyance deed, the submission of the OP/builders before the State Commission was that since the Cooperative Housing Society of the flat owners had already been formed, it was willing to execute the same in favour of the Society. However, the State Commission has observed that it was also pleaded on behalf of the OP that the amended plan for the sixth floor of the ‘A’ wing had already been submitted to BMC for approval. In this context, the Commission has observed that— “ Coming now to the important prayer about conveyance, we are finding that till today builder has not executed Deed of conveyance in favour of society. It is the bounden duty of the builder/developer even under Maharashtra Ownership Flats Act that he should execute conveyance deed in favour of society once society of flat purchasers is formed. It is the tendency of unscrupulous builders not to execute Deed of Conveyance in favour of society and not to form and get registered Co-operative society with the ill motive of exploiting TDR rights and additional FSI, if any available on the plot. For this purpose, most of the builders and developers are very shy of executing Deed of conveyance in favour of society and with this aim only, often they avoid to get registered Co-operative society of flat purchasers. As per Agreement executed between builder and flat purchasers in this case and also under Maharashtra Ownership Flats Act, builder and developer has to execute Deed of Conveyance in favour of society at the earliest. This has not been done till today and therefore, there is obvious deficiency in service on the part of the builder, statutory as well as contractual in not executing Deed of conveyance in favour of the society. So direction will have to be given in this regard to the opponent/builder to execute Deed of conveyance in favour of complainants or in favour of complainants society i.e. complainant no.12.”

7. As per the records, the original plan, in so far as Wing ‘A’ of flats concerning the Complainants is concerned, was approved way back in 1984. The flats were constructed and admittedly, the Complainants were put in possession of their respective flats in 1989. As per the written statement before the State Commission filed in March 1997, on behalf of the OP, construction of ‘A’ wing was completed in 1988. In the same year, revised plan was submitted. Admittedly, it was approved by the BMC in 1989, permitting the OP to put up the ‘B’ wing. Here, the WS clearly states that the revised plan did not propose any change, alteration or modification in the flats agreed to be sold to the purchasers of the first building. If this is to be believed, the OP could not have put up 5thand the 6 floors in Block-A, subsequent to sale of flats in the first four floors to the Complainants. This gap is sought to be covered in a very vague statement, at the end of para 4 of the WS. It reads:- “It is false to say that we have constructed two flats in ‘A’ wing during the year 1993. A wing was completed in the year 1988 and no construction was undertaken after 1992 in ‘A’ wing as alleged.”

Significantly, in the affidavit of Shri Sudhakar Amare, Architect of the appellant, filed before the State Commission on 11.11.2008, it is stated that: “I say that we have already obtained part occupation certificate for phase-I, A wing for 1st to part 4th floor on 7/12/1991 from the office of the building proposal department of Mumbai Municipal Corporation.”

8. From a joint reading of these two averments it becomes clear that in so far as flats of the complainants in ‘A’ Wing are concerned, the occupation certificate for the first four floors was admittedly obtained in 1991 itself and addition of the 5th and the 6th floors in this Block was made by the Opposite party between 1988 and 1992. It is therefore, amply clear that, with or without addition of the 5th and 6th floors to ‘A’ wing, there was nothing to prevent the OP from executing the conveyance deed for the flats of the Complainants on 1st to the 4th floors of the same building. Strangely enough, the WS filed before the State Commission, years later on 12th March 1997, offers no clear explanation for failure of the OP to do the same. 9. Even in arguments advanced on behalf of the appellant/OP before this Commission, there is no attempt to explain the failure to act on the occupation certificate obtained from BMC in 1991. The case made out is that even now the BMC has not issued completion certificate for the modified project. It is argued that:- “ The Appellant was under statutory inability to obtain the building completion certificates in view of the delay in taking over possession of the remaining portion of the land acquired by the Special Land Acquisition Officer for 60 ft. D.P. road. The procedure of taking over possession of the said land by the Special Land Acquisition Officer and BMC is not under the control of the Appellants and therefore, they cannot be blamed with the tag of deficiency in service.” 10. In our view, this argument is nothing more than an attempt to enlarge the scope of the present proceedings. It goes well beyond the pleadings of the OP before the State Commission. It was not the case of the appellant/OP that any dispute existed in this regard. The WS filed before the State Commission had clearly stated that a portion of the land for this road had already been handed over to BMC and the BMC had already developed 44 ft. wide road thereon. We therefore, have no hesitation in rejecting this contention. 11. In conclusion, it is held that the impugned order passed by the Maharashtra State Consumer Disputes Redressal Commission in CC No.47 of 1996 is based on correct appreciation of the evidence on record. No case is made out for interference with the same. The Appeal is therefore, dismissed. Further, considering the conduct of the appellant/OP and its consequence for the respondents/complainants, further cost of Rs.5000/- (Rupees Five Thousand) is awarded in favour of each and every Complainant. This shall be in addition to the cost awarded by the State Commission and shall be paid within a period of three months from the date of this order. …..…………….…….…… (VINEETA RAI) PRESIDING MEMBER

…..…………….…….…… (VINAY KUMAR) S./- NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 266 OF 2008

(Against the order dated 29.02.2008 in Complaint No. 28/2005 of the U.P. State Consumer Disputes Redressal Commission)

Dr. J.L. Chaudhary S/o Shri M.L. Chaudhary R/o B-697, MIG Flats East of Loni Road, Shahdara Delhi-110093

… Appellant(s)

Versus

1. Ashok Thakkar Prop. Of M/s Thakkar Builders C-91, Preet Vihar Delhi-110092

2. K.C. Kapoor S/o Late Shri S.D. Kapoor R/o Ground Floor, C-104 Ramprastha Colony, Sahibabad District Ghaziabad, U.P.

… Respondent(s)

BEFORE:

HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For Appellant(s) : Dr. J.L. Chaudhary, Appellant in person

For Respondent(s) : Mr. Anup Kumar, Advocate for R-1

Mr. Astender Kumar, Advocate for R-2

Pronounced on 23 rd October, 2013

PER VINEETA RAI

This First Appeal has been filed by Dr. J.L. Chaudhary, Appellant herein and Original Complainant before the U.P. State Consumer Disputes Redressal Commission, Lucknow (hereinafter referred to as the State Commission) being aggrieved by the order of the State Commission which had disposed of the case by concluding that since the reliefs being claimed fall within the provisions of the Specific Relief Act, it would be appropriate for the case to be adjudicated before a competent Civil Court.

2. BRIEF FACTS: In his complaint before the State Commission, Appellant/Complainant who is a Doctor in the Municipal Corporation of Delhi had stated that he had approached the Respondents/Opposite Parties No. 1 and 2, who are involved in the business of constructing and selling flats, for purchase of a residential flat in property no. C-104, Ramprastha Colony, Sahibabad, District Ghaziabad, U.P. Thereafter a Tripartite Agreement between the parties was entered into by which Appellant/Complainant was offered a fully furnished second floor flat with covered area of 297 sq. meters besides roof rights and certain other amenities for a total sale consideration of Rs.34,00,000/- as part payment. Appellant/Complainant paid Rs.6,51,000/- vide two cheques dated 07.05.2004 and 09.08.2004. However, the flat finally offered to the Appellant/Complainant was contrary to the terms and conditions of the Tripartite Agreement since instead of 5 bedrooms only 4 bedrooms were constructed and several amenities and facilities like safety railings, car park etc. as also roof rights were not given. Being aggrieved, Appellant filed a complaint before the State Commission on grounds of unfair trade practice and claimed a sum of Rs.10,00,000/- towards mental agony and pain. 3. Respondents/Opposite Parties challenged the above contentions through a written rejoinder and stated that the Appellant’s complaint before the State Commission was based on a tampered, manipulated and forged agreement, particularly the first page of the document. It was contended that the flat in question was constructed as per the approved plan of the Ghaziabad Development Authority and the details were contained in the actual Agreement dated 31.05.2004 which was handed over to the Appellant/Complainant for signing which the Appellant/Complainant retained without signing it and instead sought reliefs before the State Commission on the basis of a forged and manipulated document, to which Respondents/Opposite Parties were never a signatory.

4. The State Commission, as stated earlier, had dismissed the complaint on the ground that since the reliefs claimed by the Appellant/Complainant fall within the Specific Relief Act, he may file the case before the competent Civil Court. The State Commission further observed as follows : “Whether the agreement dated 09-06-2004 is a forged one or not, whether there is an agreement as alleged by the opposite parties at all or not, whether the complainant has committed default in performing his part of the contract or not and whether there has been default on the part of the opposite parties in fulfilling the terms and conditions of the contract or not, all these matters can only be decided on the basis of the detailed evidence and its appraisal which is obviously not possible before the Fora.”

5. Being aggrieved by the order of the State Commission, the present First Appeal has been filed.

6. Appellant/Complainant in person and the Counsel for Respondents/Opposite Parties essentially reiterated the submissions made by them before the State Commission. 7. We have considered the submissions made by the parties as also the order of the State Commission. We note that the Appellant and the complaint filed by him on grounds of unfair trade practice is covered under Sub-Sections (b), (c) and (d) respectively of Section-2 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act). The State Commission has not decided the case mainly on the grounds that elaborate documentary evidence is required and since specific relief is sought, the case may be decided by a Civil Court. However, in this connection, it may be noted that in cases filed under the Consumer Protection Act the first Court of fact is often required to record both oral and documentary evidence, permit cross-examination of the witnesses and seek expert opinion whenever considered necessary. Further, Section-3 of the Act provides an additional remedy to consumers besides those that may be available under other laws. The Consumer Fora have also been admitting and deciding cases of this nature where consumers have filed complaints against builders/developers on grounds of deficiency in service/unfair trade practice, as in the present case and as such no complex issues of law or fact are involved which cannot be decided by the Consumer Fora.

8. In view of the foregoing reasons, we do not agree with the order of the State Commission and set aside the same. The case is, accordingly, remanded back to the State Commission to decide it afresh in accordance with law. Nothing stated herein may, however, be treated as a comment on the merits of the case. Parties are directed to appear before the State Commission on 27.01.2014 for further directions.

(D.K. JAIN, J.)

PRESIDENT

(VINEETA RAI)

MEMBER

(VINAY KUMAR)

MEMBER

Mukesh NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2529 OF 2008 (From the order dated 22.11.2007 in Appeal No. 1157/2006 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Circuit Bench at Tirupati)

New India Assurance Co. Ltd. Delhi Regional Office-I, Level-5, Tower- II, Jeevan Bharti, Connaught Circus New Delhi – 110001 Through Authorized Representative …Petitioner/Opp. Party (OP) Versus Anumula Venkateswarlu S/o Late A. Subbaiah, R/o D. No. 19/307, Petra, Kurnool, Andhra Pradesh

BEFORE

For the Petitioner : Mr. Ajit K. Singh, Advocate

For the Respondent : NEMO PRONOUNCED ON 23 rd October, 2013

O R D E R

This revision petition has been filed by the petitioner against the order dated 22.11.2007 passed by the Andhra Pradesh State Consumer DisputesRedressal Commission, Circuit Bench at Tirupati (in short, ‘the State Commission’) in Appeal No. 1157of 2006 – The New India Assurance Co. Ltd. Vs.Anumula Venkateswarlu by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that Complainant/respondent’s lorry AP 21 6756 was insured by

OP/petitioner and insurance coverage was valid upto 6.9.2004. On 6.7.2004, vehicle met with an accident. Complainant submitted claim documents to the OP, but claim was repudiated on the basis that the driver of the vehicle was not holding valid driving licence and vehicle was used for carrying passengers at the time of accident; though, driver was having LMV licence. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that driver of the vehicle was not holding valid and effective driving licence to drive lorry. He was having driving licence to drive LMV, but not the transport vehicle 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.1,95,405/- along with interest and further awarded Rs.25,000/- as compensation. 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 even after service.

5. Learned Counsel for the petitioner submitted that as driver of the vehicle was not possessing valid driving licence at the time of accident, petitioner rightly repudiated the claim, but learned District Forum has 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.

6. Perusal of record clearly reveals that at the time of accident, driver of the vehicle was possessing only LMV licence, whereas vehicle in question was transport vehicle. Learned

District Forum while allowing complaint held that when driver of the vehicle was having licence to drive LMV then the nature of vehicle was whether; transport vehicle or non-transport vehicle was immaterial. Apparently, this reasoning given by District Forum while allowing complaint is contrary to law laid down by the Apex Court.

7. Learned District Forum has also placed reliance on judgement of Hon’ble Apex Court in

2001 (1) ALJ 312 – Ashok Gangadhar Maratha Vs. Oriental Insurance Co. Ltd., but that judgement has been distinguished by Hon’ble Apex Court in I (2008) CPJ I (SC) – New India

Assurance Co. Ltd. Vs. PrabhuLal and it was held that if driving licence does not contain endorsement of transport vehicle in the licence, driver cannot be held to be possessing valid driving licence to ply transport vehicle. The driver in the case in hand was in possession of licence for driving LMV. Thus, it becomes clear that for driving transport vehicle, endorsement of transport vehicle is required in the driving licence without which driver cannot drive transport vehicle and it would be treated that driver of the vehicle was not possessing valid driving licence. If it is held that driver was not possessing valid driving licence at the time of accident, insurance company was within its rights to repudiate the claim for damages to the vehicle and petitioner has not committed any deficiency in repudiating the claim for damages to the vehicle. Learned District Forum has committed error in allowing complaint and learned State

Commission has further committed error in dismissing appeal and revision petition is to be allowed.

22.11.2007 passed by learned State Commission in Appeal No. 1157of 2006 – The New India

Assurance Co. Ltd. Vs. Anumula Venkateswarlu and order dated 23.3.2006 passed by District

Forum in CD No. 157/2005 –Anumula Venkateswarlu Vs. New India Assurance Co. Ltd. are set aside and complaint stands dismissed with no order as to costs.

………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 96 OF 2013 (From the order dated 07.05.2012 in Appeal No. 1768/2011 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

Nirula’s Potpourri A Unit of South Asian Hospitality Service Pvt. Ltd. 30, Power House Building, 4th Floor, Hauz Khas Village, New Delhi – 110016 …Petitioner/Opp. Party (OP) Versus Mr. Manoj Kumar Gupta 282, Guru Jambeshwar Nagar, Lane Number - 9, Gandhi Path, Vaishali Nagar, Jaipur, Rajasthan

BEFORE

For the Petitioner : Mr. Shalabh Singhal, Advocate

PRONOUNCED ON 23 rd October , 2013

This revision petition has been filed by the petitioner against the order dated 7.5.2012 passed by Rajasthan State Consumer Disputes RedressalCommission, Jaipur (in short, ‘the State Commission’) in Appeal No. 1768 of 2011 – Nirula’s Potpourri Vs. Manoj Kumar Gupta by which, while dismissing appeal, order of District forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent was member of OP/petitioner and

OP issued coupon to the complainant for discount at the time of dinner at OP-restaurant. On

6.11.2009, complainant along with his family members went to OP No. 2 for dinner and OP issued bill for Rs.2071.45 in which Rs.119.354 was charged for service and Rs.219/- and Rs.28/- for tax without mentioning type of tax and thus charged illegal tax. Alleging deficiency on the part of OP complainant filed complaint before District Forum. OP was proceeded ex-parte and learned District Forum after hearing complainant allowed complaint and directed OP to refund

Rs.366.45 along with 9% p.a. interest and further directed OP to pay Rs.25,000/- as compensation to the complainant and Rs.25,000/- to be deposited with State Consumer Welfare Fund and also allowed cost of Rs.2500/-. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which this revision petition has been filed along with application for condonation of delay.

4. Petitioner has filed revision petition along with application for condonation of delay of 157 days, but as per office report, there is delay of 150 days. Petitioner submitted that papers were handed over to Counsel for filing revision petition in July, 2012, but Counsel did not file revision petition and in the last week of December, 2012, he expressed inability to file revision petition and in such circumstances, the matter was handed over to the present Counsel on 3.1.2013 and revision petition was filed on 9.1.2013 and prayed for condonation of delay. No doubt, there is inordinate delay of 150 days in filing revision petition, but as impugned order is non-speaking order as well as appeal was filed for setting aside ex-parte order whereas learned State

Commission dismissed appeal without any reasoning and District Forum while allowing refund of excess tax, imposed cost of Rs.50,000/- on the petitioner, we deem it appropriate to condone the delay in filing revision petition subject to cost of Rs.5,000/- to be deposited by the petitioner with the “Consumer Legal Aid Account” of this Commission.

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

Commission has observed as under:

“ The subordinate district forum has passed the order after detailed analysis of all the facts and evidences of the case and therefore we do not find any justification for re-appreciation of all the facts and evidences of the case.

In the light of the facts and circumstances of the case, we do not find any infirmity in the order dated 6.4.2011 passed by the Led. District Forum, Jaipur II, Jaipur in Complaint Case No. 314/2010. Since the District Forum has rightly appreciated the facts brought on record therefore there is no ground for interference. Besides that on the merits also there seems to be no substance in the appeal”.

6. Hon’ble Apex Court in (2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as under: “1.In a number of cases coming up in appeal in this Court, we find that the State Consumer Disputes Redressal Commission, Haryana at Chandigarh is passing a standard order in the following terms:

‘ We have heard the Law Officer of HVPN – appellant and have also perused the impugned order. We do not find any legal infirmity in the detailed and well-reasoned order passed by District Forum, Kaithal. Accordingly, we uphold the impugned order and dismiss the appeal’.

2. We may point out that while dealing with a first appeal, this is not the way to dispose of the matter. The appellate forum is bound to refer to the pleadings of the case, the submissions of the counsel, necessary points for consideration, discuss the evidence and dispose of the matter by giving valid reasons. It is very easy to dispose of any appeal in this fashion and the higher courts would not know whether learned State Commission had applied its mind to the case. We hope that such orders will not be passed by the State Consumer Disputes Redressal Commission, Haryana at Chandigarh in future. A copy of this order may be communicated to the Commission”.

7. In the light of above judgment, it becomes clear that Appellate Court while deciding an appeal is required to deal with all the arguments raised by the appellant and as learned State Commission has not dealt with arguments of the appellant, it would be appropriate to remand the matter back to the learned State Commission for disposal by speaking order after dealing with all the contentions and arguments raised by the petitioner.

8. Perusal of order sheet of District Forum reveals that petitioner was proceeded ex-parte on the basis of presumption as notice sent by Regd. Post not received back and more than one month had already passed. Petitioner filed appeal with a request to set aside ex-parte order on the ground that notice was not received by the petitioner and learned State Commission vide impugned order has not given any reason regarding ex-parte order and dismissed appeal on merits without speaking order. In such circumstances, revision petition is to be allowed and matter deserves remand.

9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 7.5.2012 passed by learned State Commission in Appeal No. 1768 of 2011 – Nirula’s Potpourri Vs. Manoj Kumar Gupta is set aside and matter is remanded back to learned State Commission to decide the appeal by a reasoned speaking order after giving an opportunity of being heard to the parties.

10. Petitioner is directed to appear before the learned State Commission on 28.11.2013. ………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 2377 OF 2013 (From the order dated 09.05.2013 in Appeal No. 3170/2012 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)

With IA/3941/2013 (For stay) IA/3942/2013 (For exemption from filing C/c)

1. M/s. Torque Automotive Pvt. Ltd. G-4, Shapath IV (Opp. Karnavati Club) S.G. Highway, Ahmedabad 2. M/s. Torque Automotive Pvt. Ltd. 2nd Floor, Mrudul Tower Behind Times of India Ashram Road, Ahmedabad …Petitioners/Opp. Parties (OP) Versus Dinesh Bhanwarlal Daga A-502, T.P.S. 14.301 Shilalekh, Opp. Police Stadium Near Spectrum Tower, Sahibaug Ahmedabad

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioners : Mr. Vipin Singhania & Mr. Chirag A. Patel, Advocates

For the Respondent: In person

PRONOUNCED ON 23 rd October , 2013

O R D E R

This revision petition has been filed by the petitioner against the order dated 9.5.2013 passed by Gujarat State Consumer Disputes RedressalCommission, Ahmedabad (in short, ‘the State Commission’) in Appeal No. 3170 of 2012 – Torque Automobiles (P) Ltd. Vs. Dinesh Bhanwarlal Daga by which, while dismissing appeal, order of District forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent purchased car Skoda Laura on

8.12.2010 from OP No. 1/Petitioner and made payment of Rs.13,18,000/- and took delivery of the car. This car was manufactured by OP NO. 3. Warranty card of OP No.3 was not given to the complainant. During the warranty period, service was done on 6.4.2011 and it appeared that colour of the door of the car was changing and there were other complaints. OP changed oil, lubricants etc. for which Rs.7,924/- was paid by the complainant, but payment receipt was given in the name of Mihirbhai Maheshbhai by OP No. 1. Service book of car was also not given inspite of demand and legal notice. Later on, service book was given by OP No. 1, but it was general in which Skoda Superb, Skoda Laura, Skoda Yeti was written. This service book does not bear any stamp. It appears that previously this car was sold to Mihirbhai, so service book of the car was not given to the complainant and OP followed unfair trade practice. Alleging deficiency on the part of OP, complainant filed complaint before District

Forum. OP No. 1 and 2/petitioners filed reply and submitted that the complainant had seen and inspected car and after being satisfied purchased the car. It was admitted that warranty book was not given at the time of delivery of the car, but car was repaired and serviced. It was further submitted that this car was first allotted to Mihirbhai, but for some reason, he had cancelled the booking, but due to mistake of the staff, name of Mihirbhai could not be deleted and bill was generated in the name of Mihirbhai. It was further submitted that now service book has been delivered to the complainant and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP No. 1 & 2 to give new car to the complainant in place of old car or reimburse amount of the car and further awarded compensation of Rs.5,000/- and Rs.2,000/- as litigation expenses. Appeal filed by the petitioners was dismissed by leaned State Commission vide impugned order against which this revision petition has been filed.

3. Heard learned Counsel for the petitioners and respondent in person finally at admission stage and perused record.

4. Learned Counsel for the petitioner submitted that car sold by the petitioner to respondent was new one and complaint has been filed only on the basis of suspicion due to service bill generated in the name of other person in whose name the car was earlier booked. It was further submitted that there was no complaint of change in colour of the car; even though, 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. Respondent in person submitted that complaint was filed not on the basis of suspicion, but on the basis of delivery of old car and order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. Perusal of record reveals that as per retail invoice, car was sold by petitioner to respondent vide bill dated 14.12.2010 and Engine No. TMBCNE reflected in the retail invoice has been shown in registration certificate issued in favour of respondent. In that registration certificate, car has been shown as new and its month and year of manufacture has been shown as August,

2010. Respondent has not placed any evidence on record to substantiate his arguments that car sold by the petitioner to him was old one. Learned Counsel for the petitioner has also placed reliance on Rule 42 of the Central Motor Vehicles Rules, 1989 according to which, no holder of a trade certificate shall deliver a motor vehicle to a purchaser without registration, whether temporary or permanent. Had petitioner sold this vehicle earlier to Mihirbhai, respondent should have placed on record registration certificate of this vehicle issued in favour of Mihirbhai. In the absence of any such registration certificate and any expert opinion, it cannot be held that vehicle sold by the petitioner to respondent was old one.

6. It is not disputed that first service bill issued by the petitioner to the respondent was in the name of Mihirbhai. It appears that only on the basis of this invoice respondent presumed that this car was previously sold to Mihirbhai. Respondent has already admitted in his reply that previously Mihirbhai booked this car, but as he cancelled his booking, his name was not deleted by mistake of the staff. It appears that only on this ground, bill for service charges was issued in the name of Mihirbhai instead of respondent, but this cannot be the sole basis for holding that vehicle delivered by petitioner to respondent was earlier sold toMihirbhai.

7. Record further reveals that service book has also been given by the petitioner to respondent and time to time services have been given by the petitioner. Merely because service book is not specifically for Skoda Laura, it cannot be presumed that service book of this vehicle was given by the petitioner to so called earlier purchaser Mihirbhai.

8. Job card dated 5.4.2011 also does not reveal complaint of change of colour of door of the car. Respondent has also not placed on record any evidence in support of his contention that colour of door of the car has changed. In such circumstances, it cannot be presumed that colour of door of the car changed and petitioner sold the old car.

9. It appears that respondent has filed complaint alleging unfair trade practice only on the basis of suspicion. Learned Counsel for the petitioner has placed reliance on IV (2008) CPJ 18

(SC) – KLM Royal Dutch Airlines Vs. Director General of Investigation & Registration in which it was held that –

“ Element of unfair trade practice definitely stands at a higher and onerous platform than the deficient service. For making out a case of unfair trade practice an element is involved to the extent of making false and misleading statement and representation and in order to make a case of unfair trade practice such ingredients, which are part and parcel of the concept of unfair trade practice has to be alleged and must be proved and established.

10. In the case in hand, respondent could not prove any unfair trade practice on the part of petitioner and learned District Forum committed error in allowing complaint and learned State

Commission further committed error in dismissing appeal and in such circumstances, revision petition is to be allowed.

9.5.2013 passed by learned State Commission in Appeal No. 3170 of 2012 – Torque

Automobiles (P) Ltd. Vs. Dinesh Bhanwarlal Daga and order of District Forum dated 16.7.2012 is set aside and Complaint No. 390/2011 – Dinesh Bhanwarlal Daga Vs. Torque Automobiles (P)

Ltd. is 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 26.09.2012 in First Appeal No. 824/2009 of Delhi State Consumer Disputes Redressal Commission)

Raj Bala w/o Raj Kumar Chauhan r/o Flat No. 202, Ashirwad Enclave Plot No. 104, I.P. Extension, Patparganj, Delhi - 110092.

... Petitioner

Versus

1. The Managing Director Skoda Auto India Pvt. Ltd. Plot No. A-1/1, Snehdra, Five Star Industrial Area, MIDC Aurangabad – 431201.

2. M/s. Sai Automobiles, A division of M/s Abhishek International Pvt. Ltd. 77, Patparganj Industrial Area, Delhi – 110092.

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. Alok K. Prasad, Advocate

Mr. Tarun Chauhan, In person

For the Respondents Mr. Vipin Singhania, Advocate

PRONOUNCED ON : 23 RD OCTOBER 2013 O R D E R

1986 against the impugned order dated 26.09.2012 passed by the Delhi State Consumer Disputes

Redressal Commission (for short ‘the State Commission’) in FA No. 824/2009, “Smt.

Raj Bala versus Managing Director, Skoda Auto India Pvt. Ltd. & Anr.”, vide which appeal against the order dated 12.10.2009, passed by the District Consumer Disputes Redressal Forum, in case number 119/2008, allowing the complaint in question, was dismissed.

2. Brief facts of the case are that the petitioner purchased a Skoda Octavia Elegance car from the dealer respondent no.2, M/s. SaiAutomobiles on 28.03.2008 and paid a price of

Rs.11,97,269/- as basic cost after raising loan from the State Bank of Hyderabad. The vehicle was got registered against registration no. DL 13C 0940 in the name of the petitioner, and insurance policy was obtained from M/s. United India Insurance Co. with an annual premium of

Rs.38,345/-. It has been alleged that within a short period of 8 to 10 days of the purchase, the following manufacturing / technical defects were found in the new vehicle:-

(i) Tilting of vehicle towards left side, i.e., instability in steering wheel, making the driving very risky and unstable. (ii) Gross bubbling in Clutches of the vehicle thereby, making the driving of the car very uncomfortable and tiring.

3. The said defects were brought to the notice of the dealer respondent no. 2 and the vehicle was taken to the workshop five times during the period 01.04.2008 to 25.05.2008, but the technical staff of respondent no. 2 was not able to remove these defects. The vehicle was taken to M/s. Continent Auto Services, another authorised workshop, who also could not rectify the fault. The job cards dated 11.04.2008 and 22.04.2008 indicated manufacturing defect in ‘Caster’ which was not within the specified limit range and causing instability of steering wheel, which could result in serious accident on driving, as the vehicle tilted abnormally towards left side. The complainant wrote many letters to respondent no. 1 manufacturer and respondent no. 2 dealer, requesting them to do the needful, but their grievance was not redressed. The vehicle has been lying with respondent no. 2 since 25.5.2008 and the defects have not been removed. The complainant then filed the consumer complaint in question seeking refund of Rs.12,86,316/- paid as consideration for the said vehicle. The District Forum vide their order dated 12.10.2009 directed both the OPs to pay a compensation of Rs.30,000/- along with litigation cost of Rs.10,000/- jointly and severally. The OPs were also directed to hand over the vehicle to the complainant after extending the existing warranty for at least one year. The complainant filed appeal before the State Commission against the order passed by the District Forum which was dismissed vide impugned order. It is against this order that the complainant has filed the present revision petition before us.

4. At the time of hearing before us, the learned counsel for the petitioner stated that the vehicle started showing major problems, viz., tilting towards the left side, bubbling in clutches and instability in the steering wheel within one week of the purchase of the vehicle. The learned counsel has drawn our attention to the expert opinion given by an Automobile Engineer, Raman Kumar, in which it has been stated that the vehicle was bubbling towards left when it was tested on road and it was very dangerous to drive the vehicle in that condition. Shri Raman Kumar opined that there was some manufacturing defect in the vehicle due to which it was not running properly in spite of the fact that the alignment was proper, before and after the road test. The said report was given by Raman Kumar after making joint inspection with another Engineer Lajpat Rai Munjal, whose opinion is, however, contrary to the opinion expressed by Raman Kumar. Learned counsel stated that the orders passed by the State Commission should be set aside and the entire cost of the car should be refunded along with interest @ 18% p.a. and rather, a criminal case should be instituted against the respondents and expert for wrong deposition.

5. On the other hand, the learned counsel for the respondent/OP vehemently argued that they never refused to provide service to the petitioner or to remove the defects in the vehicle. In fact, the vehicle did not suffer from any defect but still the petitioner had abandoned the vehicle and it had been lying with the respondents since a long time. The learned counsel stated that during the pendency of the appeal before the State Commission, they had appointed two experts to carry out joint inspection and to give a report. The report given by the automobile engineer, Lajpat Rai Munjal very clearly says that there was no defect in the vehicle. Even if the vehicle is pulling to the left slightly, it cannot be categorised as defect, rather it is just a ‘condition’ and not a ‘defect’. The learned counsel has drawn our attention to another report given by Manbir Singh Suri on 25.04.2009, in which it has been stated that the car was in no danger of any accident while driving it due to misalignment on the wheels as no sideway drag in any direction was encountered while driving and the steering was also stable and the wheels were fully aligned. It has been categorically stated in the said report that the car does not suffer from any manufacturing defect, excessive tyre wear or steering vibration. Even the report given by Raman Kumar Engineer has stated that the alignment of wheels was proper before and after the road test. The learned counsel further stated that the District Forum had reached the right conclusion that the claim of the complainant regarding any inherent manufacturing defect in the vehicle was not justified. They awarded a compensation of Rs.30,000/- for the inconvenience caused to the complainant in bringing the vehicle to the workshop for repairs a number of times.

6. The learned counsel has cited a number of rulings given by the Hon’ble Supreme Court and the National Commission in support of his arguments. It has been observed by the National Commission in “Premanchal Motors versus Ramdass & Anr.” as reported in [II (2009) CPJ 98 (NC)] that the abandonment of a new vehicle soon after its purchase or after repairs, at the premises of the manufacturer or the dealer concerned was not a prudent conduct on the part of the consumer. In “Maruti Udyog Limited versus Hasmukh Lakshmichand and Anr.” [III (2009) CPJ 229 (NC)], the National Commission observed that the manufacturing defect is a fundamental basic defect and to prove such a defect, opinion of expert is necessary. The onus to prove that there was manufacturing defect was on the complainant as observed by the National Commission in “Classic Automobiles versus Lila Nand Mishra & Anr.” [I (2010) CPJ 235 (NC)]. In “Maruti Udyog Limited versus Casino Dias” [IV (2009) CPJ 144 (NC)], it was observed by the National Commission that consumers cannot throw their weight around and be adamant to decide on their own that there is manufacturing defect in the vehicle without any supporting evidence or justification. The learned counsel argued that in the present case, there was no evidence of any manufacturing defect and hence the present petition should be dismissed.

7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The District Forum relying upon the report of Manbir Singh Suri surveyor, observed that there was no inherent manufacturing defect in the vehicle. They, however, awarded a sum of Rs.30,000/- to the complainant along with litigation cost of Rs.10,000/- for the inconvenience caused to the complainant for taking the vehicle to the workshop frequently within a short period. The State Commission after obtaining report from two experts came to the same conclusion and dismissed appeal, relying upon the statement of the respondents that they were ready to provide service of the vehicle in question free of charge, if taken to the workshop.

8. Based on the material on record and relying upon the reports of experts taken on record, it is made out that there is no manufacturing defect in the vehicle which may necessitate its replacement or refund of the value of the vehicle to the complainant. The District Forum vide their order have already allowed a sum of Rs.40,000/- to the complainant and also directed the respondents to extend the warranty of the vehicle by at least one year. The said order was not challenged by the respondents before any higher authority. The State Commission have also endorsed the order of the District Forum. We, therefore, find no reasons to differ with the orders passed by the State Commission and the District Forum. The revision petition in question is, therefore, ordered to be dismissed and the respondents are directed to take necessary action as ordered by the District Forum in their order dated 12.10.2009. There shall be no order as to costs.

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

(From the order dated 27.12.2007 in First Appeal No. 6 & 23/2006 of Assam State Consumer Disputes Redressal Commission)

Sri Anil Chandra Dey s/o Prasanna Kumar Dey Satsangh Ashram Road, P.O. – Silchar – 7, P.S. Silchar District – Cachar (Assam)

... Petitioner

Versus

1. The New India Assurance Co. Ltd. Registered Office at New India Assurance Building 87, Mahatma Gandhi Road, Mumbai – 400001 (Maharashtra)

2. The Divisional Manager, The New India Assurance Co. Ltd. Capital Travels Building, Club Road P.O. – Silchar – 1, P.S. Silchar District – Cachar (Assam)

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. Shuvodeep Roy, Advocate

For the Respondent(s) Mr. Mohan Babu Agarwal, Advocate

PRONOUNCED ON : 23 rd OCTOBER 2013 O R D E R

1986 against the impugned order dated 27.12.2007 passed by the Assam State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 6/2006, “New

India Assurance Co. versus Anil Chandra Dey” and FA No. 23/2006, “Anil Chandra Dey versus

New India Assurance Co. Ltd. & Anr.” Both these appeals were directed against the order passed by the District Forum on 12.12.2005 on the complaint filed by Anil Chandra Dey vide which a sum of Rs.2,10,000/- was ordered to be paid by the OP insurance company to the complainant for damage to his residence during floods along with interest @9% p.a. and Rs.7,000/- as compensation for mental agony and Rs.2,000/- as cost of litigation. Vide impugned order, the appeal no. 23/2006 filed by the complainant for enhancement of compensation was dismissed, whereas the appeal filed by the insurance company was partly allowed and it was directed to pay a sum of Rs.97,000/- as cost of damage along with Rs.3,000/- as compensation for mental agony along with interest @ 8% p.a. from the date of the claim till realisation.

2. Brief facts of the case are that the complainant/petitioner Amit Chandra Dey got his residential house insured with the OP, New India Assurance Co. Ltd. vide policy no.

530600/48/01/0045 for the period 29.06.2004 to 28.06.2005 against fire, flood, earthquake, etc. It has been mentioned in the complaint that the residential building and the household goods like, furniture, fittings, personal effects, books etc. were got insured for a sum of Rs.12.6 lakh. The insurance company, however, says that the said building and articles were insured for a sum of Rs.8.6 lakh. In the month of July, 2004, the said premises were badly affected by floods. It has been stated that the flood water remained stagnant at the premises from 20.07.2004 to 03.08.2004, causing lot of damage to the building as well as the household articles. The complainant informed the insurance company on 21.07.2004 about the flood. The insurance company deputed a surveyor N.R. Paul for assessing the loss and damage, who visited the residence of the complainant on the same day. The said surveyor assessed the loss to be

Rs.30,050/-. The insurance company sent a letter to the complainant on 07.01.2005, asking him to accept the amount of Rs.30,050/- as full and final settlement, but the complainant refused to accept the amount, saying that the assessed amount was much less than the loss suffered by him. He requested the insurance company to reconsider the assessment, but his request was turned down by the OP, insurance company. The complainant then filed a consumer complaint before the District Forum Cachar, claiming an amount of Rs.2,83,500/-alongwith interest

@12.5% and compensation for mental agony etc. The District Forum vide their order dated

12.12.2005 asked the insurance company to pay a sum of Rs.2,10,000/- along with interest @9% p.a. from the date of complaint and also to pay Rs.7,000/- for mental agony, etc. and Rs.2,000/- as cost of litigation. Against this order, two appeals as stated above were filed before the State

Commission. The appeal filed by the complainant for enhancement of compensation was dismissed and the appeal filed by the insurance company was partly allowed and the State

Commission ordered to pay a sum of Rs.97,000/- for damage and Rs.3,000/- for mental agony along with interest @8% p.a. on all these amounts. It is against this order that the present petition has been filed by the complainant.

3. At the time of hearing before us, learned counsel for the petitioner has drawn our attention to the contents of the insurance policy in question, saying that the damage caused by the floods to the building as well as to the household articles is fully covered under the policy and adequate compensation should have been paid by the insurance company to him. Referring to the report of the surveyor, the learned counsel stated that the said report is not conclusive as held by the Hon’ble Supreme Court in “New India Assurance Co. Ltd. versus Pardeep Kumar” [(2009) 7

SCC 787], in which it has been held that the approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of loss suffered by insured, but such report is neither binding on the insurer nor insured. Learned counsel maintained that the factual position about the floods and the consequential damage had not been disputed by the other party and the order of the State Commission also shows that the factum of damage was an admitted fact. Learned counsel further stated that the claim made by the petitioner was supported by documentary evidence and photographs taken during the days of the floods. He had also produced concerned contractor before the District Forum who made a statement that he had done the repair works in the premises for which bill for Rs.1,43,000/- was raised and the money had also been received by the contractor.

4. Learned counsel for the respondent insurance company stated that the District Forum had not given any reasons for coming to the conclusion that the complainant was entitled to get a sum of Rs.2.5 lakh for compensation for damage. They made an appeal against the order of the

District Forum but they had not challenged the impugned order passed by the State Commission and payment had also been made as per the order passed by the State Commission. The learned counsel further stated that the State Commission had come to the right conclusion that boundary wall was not part of the residential building and hence, compensation could not be given for damage to the boundary wall. Learned counsel pleaded that the revision petition should be dismissed.

5. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us.

6. A careful perusal of the order passed by the State Commission has revealed that the State Commission has discussed the amounts claimed by the petitioner under various items, the corresponding amount indicated by the surveyor against each item and then arrived at a figure for award of damage against each item. The State Commission have indicated that while arriving at the awarded amount, they have taken into account the surveyors’ report, the photographs, the contractors bill, money receipts, etc. The State Commission reached the conclusion that a sum of Rs.97,000/- should be given to the petitioner against the claim for Rs.2,83,500/- filed by him. Although, no scientific explanation has been given for arriving at a figure against each item, but on the other hand, the petitioner has also failed to provide any documentary proof which may lead to the conclusion that he is entitled to get compensation to the tune of Rs.2,83,500/-. Even at the time of arguments, learned counsel for the petitioner could only say that they had some supporting documents for the repair work amounting to Rs.1,43,500/- only.

7. On the item regarding repairing, flooring and plastering of the house, the State Commission has awarded an amount of Rs.32,000/-, against the claimed amount of Rs.73,500/- whereas the amount assessed by the surveyor is only Rs.14,250/-. It is felt that since the water remained stagnant in the house in question for a number of days, the petitioner may have spent more amount on repairing, flooring and plastering etc. It is felt that a further amount of Rs.20,000/- more may be awarded to the petitioner against this item, making the total amount of compensation to be Rs.1,17,000/- in addition to Rs.3,000/- already awarded as compensation for mental agony. This petition is, therefore, partly allowed and it is ordered that a sum of Rs.20,000/- more shall be payable to the petitioner on account of repair, flooring and plastering of the house. There shall be no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

FIRST APPEAL NO. 270 OF 2009 (Against the order dated 30.06.2009 in S.C Case No.7/O/05 (Old No.83 of 2004) of the State Commission, West Bengal)

1. Asim Kumar Chattopadhyay, S/o Late Devendra Nath Chattopadhyay Resident of 209, BT Road, 3rd Floor, Kolkata- 700036

2. Mrs. Paiya Chattopadhyay W/o Mr. Asim Kumar Chattopadhyay, Resident of 209, BT Road, 3rd Floor, Kolkata- 700036 ...... Appellants

Versus 1A. Smt. Laxmi Mukherjee, Wife of Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata- 70036

1B. Sri Somnath Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036

1C. Sri Pijush Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036

1D. Smt. Iva Goswami, D/o Late Nilmony Mukherjee W/o Sri Kartik Chandra Goswami, 191 Goswami Para Road, Post and Police Station- Bali, District- Howrah, Pin- 711201

1E. Smt. Subha Khan Bhaduri, Late Nilmony Mukherjee, W/o Sanjay Narayan Khan Bhaduri, 14 Nittananda Nagar (east), PS Najirganj, Dist- Howrah, Pin- 711301

2A. Sri Prabhakar Banerjee, S/o Late Indubhusan Banerjee, 29/2/13 Motilal Maullick Lane, Kolkata- 700035

2B. Sri Saibal Mukherjee, S/o Late Nirmal Kumar Mukherjee, 79 Neogipara Road, Kolkata- 700036 (Joint executors of the estate of Late Nirmal Kumar Mukherjee (Original Respondent No.2)) .....Respondents

Dr. Sudhanshu Sekhar Patra S/o late Sannyasi Patra R/o 209, B T Road, 3rd Floor, Kolkata -700036, Distt- North 24 Parganas PS Baranagar

2. Mr. Nibedita Patra W/o Dr. Sudhanshu Sekhar Patra R/o 209, BT Road, 3rd Floor, Kolkata -700036, Distt-North 24 Parganas PS Baranagar ...... Appellants Versus 1 (a). Smt. Laxmi Mukherjee, Wife of Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata- 70036

1 (b) Sri Somnath Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata- 70036

1 (c) Sri Pijush Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036

1 (d) Smt. Iva Goswami, D/o Late Nilmony Mukherjee W/o Sri Kartik Chandra Goswami, 191 Goswami Para Road, Post and Police Station- Bali, District- Howrah, Pin- 711201

1 (e) Smt. Subha Khan Bhaduri, Late Nilmony Mukherjee, W/o Sanjay Narayan Khan Bhaduri, 14 Nittananda Nagar (east), PS Najirganj, Dist- Howrah, Pin- 711301

2. Mr. Nirmal Kumar Mukherjee 3. Mr. Swapan Kumar Mukherjee S/o of Late Joygopal Mukherjee 79, Neogi Para Road, PS Baranagar, Kolkata- 700036 Distt- North 24 Parganas .....Respondents

Shri Nilmony Mukherjee has since died on 8.11.2009

1 (a). Smt. Laxmi Mukherjee, Wife of Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata- 70036

2A. Sri Provkar Banerjee, S/o Late Indubhusan Banerjee, 29/2/13 Motilal Maullick Lane, Kolkata- 700035

2B. Sri Saibal Mukherjee, S/o Late Nirmal Kumar Mukherjee, 79 Neogipara Road, Kolkata- 700036 (Joint executors of the estate of Late Nirmal Kumar Mukherjee (Original Respondent No.2))

3. Swapan Kumar Mukherjee 79, Neogi Para Road Kolkata 700036 ...... Appellants

Versus

1. Sudhanshu Sekhar Patra S/o Late Sannayasi Patra 2. Mrs. Nibedita Patra W/o Sudhanshu Sekhar Patra Both Resident of 209, BT Road 3rd Floor, Kolkata – 700036 .....Respondents

1 (a). Smt. Laxmi Mukherjee, Wife of Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata- 70036

2.Nirmal Kumar Mukherjee 79, Neogi Para Road Kolkata 700036

3. Swapan Kumar Mukherjee 79, Neogi Para Road Kolkata 700036 ...... Appellants Versus

1. Mr. Asim Kumar Chattopadhyay S/o Late Devendra Nath Chattopadhyay

2. Mrs. Papiya Chattopadhyay W/o Mr. Asim Kumar Chattopadhyay Both Resident of 209, BT Road 3rd Floor, Kolkata – 700036 .....Respondents

IN FA No. 270-271 /2009

For the Appellant : Mr. Kunal Chatterji, Advocate and Ms. Maitrayee Banerjee, Advocate along with both appellants in person

For the Respondents : Mr. Sukumar Pattojshi, Sr. Advocate with Mr. Sanjoy Kumar Ghosh, Mr. Prabir Basu, Ms. Rupali S. Ghosh, Advocates

IN FA No. 319-320 /2009

For the Appellants : Mr. Sukumar Pattojshi, Sr. Advocate with Mr. Sanjoy Kumar Ghosh, Mr. Prabir Basu, Ms. Rupali S. Ghosh, Advocates

For the Appellant : Mr. Kunal Chatterji, Advocate and Ms. Maitrayee Banerjee, Advocate

PRONOUNCED ON: 24th October, 2013

ORDER PER MR. VINAY KUMAR, MEMBER These four appeals arise from two very similar orders passed by the West Bengal State Consumer Disputes Redressal Commission in two independent complaints. SC Case No.7/0/05 was filed by Mr. Asim Kumar Chattopadhyay with his wife as Complainant No.2. SC Case

No.8/0/05 was filed by Dr.Sudhanshu Sekhar Patra with his wife as the second Complainant. Both complaints were against the same builders/OPs and were taken up for consideration together, by the State Commission. 2. In both cases, the State Commission has made the following award:- “In view of the delay in delivery of possession of the flat and withholding of other facilities including deed of conveyance leading to various proceeding including the present one compelling the complainants to suffer mental agony as also financial loss, OPs are liable to pay to the complainants compensation of Rs.1,50,000/-. The OPs are liable to execute and register the deed of conveyance for the sale of the flats to the complainant as no defence has been shown for not doing the same as is required to be done under the agreement. The balance consideration, if any, may be adjusted against the total compensation payable. We direct the OPs to pay further compensation of Rs.1,50,000/- on account of the motor garage to the complainants and consideration amount will be reduced by Rs.1,00,000/- at the agreed price. The OPs are also directed to install lift in the lift well constructed in the premises within a period of three months from this order. The OPs are also directed to execute and register the deed of conveyance for the sale of the flats in favour of the complainants within two months from the date of this order and in default thereof the complaints will be entitled to get the conveyance registered through the machinery of the Forum. The OPs are directed to pay litigation cost of Rs.30,000/- to the complainant. All payments including compensation are to be made by OPs to complainants within 60 days from the date of this order and in default the complaints will be entitled to recover the same in accordance with law along with interest at the rate of 9% per annum for the period of default.”

3. In the above back ground, the four appeals are taken up for disposal through this common order. During pendency of these appeals, OP No.1, NilmonyMukherjee, reportedly passed away on 8.11.2009. His legal representatives were therefore, permitted to be brought on record. In another significant development, the OPs, in compliance with the direction of this Commission, have installed and operationalised a lift in the concerned building. A statement was made in this behalf by learned counsel, Mr S.K.Pattjoshi on 18.8.2010 before this Commission. 4. In both cases the Complainants have filed their appeals seeking enhancement of compensation to Rs.18 lakhs and in respective cross appeals, prayer for setting aside the impugned order has been made on behalf of the opposite parties. The case of the builders/Opposite parties has been argued by MrS.K.Pattjoshi assisted by Mr. Sanjoy Kumar Ghosh and Mr. Prabir Basu, Advocates. On the other hand, the appeals of the two Complainants have been argued by Mr. Kunal Chatterji, Advocate together with Ms. Maitrayee Banerjee, Advocate. We have perused the records of the four appeals and have heard the respective counsels for the two sides. 5. The main ground pressed on behalf of the appellants/Complainants relates to failure of the OP/builder to provide 150 sq. ft. motor garage. As per the memorandum of appeals, the State Commission has exceeded its jurisdiction by accepting the contention of the OPs that in view of subsequent transfer of rear portion of their land by the OP to his sons, the provision of garage had become impossible. It was further argued by learned counsel for appellants/Complainants that under Clause 3(iv) of the agreement executed between the parties, total consideration of Rs.12 lakhs was towards a flat of 1900 sq. ft. together with a motor garage of 150 sq. ft. This agreement is dated 31.5.2000. By a subsequent gift deed the builder had chosen to gift away this land which was meant for the garage. Learned counsel further argued that even now garage can be constructed in view of the letter written by the competent authority and Sub- Divisional Officer, Barrackpur on 5.9.2003 to the Chairman Baranagar Municipality. Under this letter, the gift deed was required to be treated as a nullity, in terms of the provision in Section 5 (3) of UL (CR) Act, 1976. 6. Mr S.K.Pattjoshi, Senior Advocate, graciously conceded the point that non provision of the garage was a direct violation of the agreement and hence a deficiency of service. But, responding to the argument that even now it was possible for the OPs to provide the garage, he vehemently argued that this Commission is not competent to issue a direction for the same, in view of the provision in Section 14 of the Consumer Protection Act 1986. This provision allows the consumer fora to grant one or more of the reliefs listed therein, if they come to a conclusion that the goods or the services, as the case may be suffered from any defects contained in the complaint. Learned counsel argued that while this gives wide powers to the consumer fora to grant adequate relief to the consumer, the power under this provision does not extend to enforcing specific performance of the contract. The second leg of the argument of ShriPattjoshi was that the land in question was no longer available as District Magistrate North 24 Pargana District had passed an order on 24.6.2013 vesting the same in the State, consequent upon withdrawal of exemption under the Urban Land Ceiling Act, vide order No.1436-UL/O/II. In the above background, learned counsel for the appellants/Complainants argued that compensation of Rs.1.5 lakhs awarded in this behalf by the State Commission is grossly inadequate in comparison with the enormity of the conduct of the OPs, which has resulted in long term inconvenience to the Complainants. A perusal of the impugned order shows that on the question of failure to provide the garage the State Commission has given full consideration to the evidence on record and arrived at the following conclusion— “As regards the claim for motor garage of 150 sq. ft., we find that the same is duly provided in the agreement. Factually the same has not been disputed by the OPs but it is stated in their written version that the said provision was included by mistake. It is contended that OPs are unable to provide the said motor garage as the space wherein the said motor garage was indicated in the sanctioned plan, does not belong to OPs and such space is no more available for construction of motor garage and, therefore, pleading impossibility of execution, OPs asked for refusal of the claim applying the provision of Section 12 of the Specific Relief Act. We have considered the provisions of Section 12 as referred to. In the present case the OPs not only provided the said motor garage in the agreement but also in the sanctioned plan by the municipality and, the OPs themselves changed the situation by making a gift of the said land in favour of their sons on 27.06.2003 long after the agreement was executed in May, 2000. Though donees are also bound as they got the property by a deed of gift from the OPs and thus stepped into shoes of the doners but as the donees have not been made parties to this proceeding appropriate order cannot be passed against the donees. But for not providing the motor garage in the aforesaid manner the OPs’ action became deficient in service as not only the complainants suffered inconvenience for want of motor garage and as the flats suffered in value being without the facility of motor garage because of the voluntary action of the OPs in making a gift of the property, but also sale of 150 sq. fit. being impossible, less area was being sold.”

7. The above conclusion has been questioned in the appeal filed by the appellants contending that the State Commission has illegally passed an order reducing the consideration amount of the flat, while it does not have powers to over right the terms of the agreement between the parties. We find this argument completely unacceptable. As already observed, Clause 3 (iv) of the Agreement between the two parties very specifically provides for total consideration of Rs.12 lakhs for a flat of 1900 sq. ft. together with a motor garage of 150 sq. ft. Having deprived the Complainant of the motor garage, in blatant and indefensible violation of the agreement, it does not lie in the mouth of the OPs to question the conclusion reached by the State Commission that their conduct was not only a deficiency of service but had also resulted in depriving the Complainant of 150 sq. ft. of area included in the agreement of sale. We therefore, have no hesitation in rejecting this argument. 8. On the question of compensation, the appellants/ Complainants have, as already noted, sought enhancement from Rs.1.5 lakhs to Rs.18 lakhs. Neither in the appeal memorandum nor in the arguments of their counsels any attempt has been made to justify the basis of seeking such multi-fold enhancement in compensation. We have also noted that during the course of the present proceedings, the lift has been installed in this building in the year 2010, though after a lapse of nearly 8 years from physical delivery of flats. We therefore, find no justification for enhancement of compensation. 9. From the detailed consideration above, we conclude that the orders of the State Commission are based on correct appreciation of the evidence on record. There are no grounds to interfere with the same. Consequently, all four appeals are dismissed. The orders of West Bengal State Consumer DisputesRedressal Commission in SC Case NO.7/0/05 and 8/0/05 are confirmed. Parties to bear their own costs. …..…………….…….…… (VINEETA RAI) PRESIDING MEMBER

…..…………….…….…… (VINAY KUMAR) MEMBER

S./- NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

CIRCUIT BENCH AT JAIPUR, RAJASTHAN

(From order dated 22.10.2008 in Appeals No.679 & 641 of 2006 of the State Consumer Disputes Redressal Commission, Rajasthan)

Arjun Singh, S/o Prahlad Singh, By caste Rajpur, R/o Roongti, Tehsil Bonli, District Sawaimadhopur, (Rajasthan)

.... Petitioner

Versus

1.Paras Traders Through its proprietor Mangi Lal Jain S/o Kajod Mal Jain, aged 52 years, R/o Miitrapura, Tehsil Bonli, District Swaimadhopur (Rajsthan)

2.Castrol India Limited, White House, 91 Balkeshwar, Mumbai (Maharshtra)-400006

..... Respondents

BEFORE:

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

For the Petitioner : Ms. Kumud L.Das, Advocate alongwih petitioner in person. For the Respondents : Mr. Vizzy Aggarwal, Advocate

Pronounced on: 24 th October, 2013 ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Being aggrieved by order dated 22.10.2008, passed by State Consumer Disputes Redressal Commission, Circuit Bench, Jaipur (for short, ‘State Commission’) Petitioner/Complainant has filed this revision petition.

2. Petitioner filed a complaint before District Consumer Disputes Redressal Forum, Swaimadhopur (for short, ’District Forum’) on the allegations that in the year 1997 he had purchased one Mahindra Tractor from its authorized dealer for agricultural purposes and for earning livelihood. In the month of November, 1997 to get the engine oil changed, petitioner purchased one can of 5 Ltrs. and one can of one Ltr. CRB Tiscus Engine Oil and one oil filter, the product of Respondent No. 2/O.P. No. 2 from Respondent No.1/O.P. No.1 on 29.11.1997, being authorized dealer of respondent no. 2, for which a bill was issued by respondent no.1. However, in the bill respondent no. 1 has mentioned only 5 Ltrs. engine oil but did not mention regarding oil filter and can of 1 Ltr. 3. On the very next date, petitioner poured the said engine oil in the engine of his tractor but just after about one hour, engine of the tractor got heated and it got seized. Petitioner called the mechanic who after checking told him that due to use of duplicate engine oil, engine has seized and it has been caused due to inferior quality of oil.Petitioner immediately contacted respondent no. 1 but no action was taken by him. It is alleged that respondent no 1 is not authorized dealer of respondent no.2.Due to supply of inferior quality of the engine oil, petitioner had to incur a sum of Rs.50,000/- on its tractor and till date, the tractor has been parked at the shop of respondent no. 1 and petitioner has not been able to use the same. Accordingly, petitioner has prayed that respondents be directed to pay Rs.1 lac as compensation.

4. Respondent no.1 in its reply has stated that petitioner purchased only 5 liters can of engine oil for which bill was issued and the same was manufactured by respondent no.2. Rest of the allegations has been denied by respondent no.1.

5. Respondent no.2 in its written statement took the plea that without laboratory test/analysis of the container of the engine oil and wrapper fixed on it, it is not in a position to state that whether the container of the oil is of respondent no.2 or not. Respondent No. 2 can only take the responsibility of sealed engine oil. It is also stated that petitioner did not get the tractor checked from the authorized dealer or company’s mechanic. Therefore, complaint merits dismissal.

6. District Consumer Disputes Redressal Forum, Sawaimadhopur, (for short, ‘District Forum’)vide order dated 10.12.1998, dismissed the complaint.

7. Aggrieved by the order of District Forum, petitioner filed Appeal No.82 of 1999 before Rajasthan State Consumer Disputes Redressal Commission, Jaipur.

8. The State Commission, vide order dated 25.2.2001, allowed the appeal and set aside the order of District Forum and remanded the matter back to the District forum for disposal of the complaint afresh.

9. Thereafter, District Forum, vide order dated 25.9.2002 referred the matter to the State Commission for necessary guidance/directions in the light of fact that container of the disputed oil was not available with it.

10. The State Commission sent the file back to the District Forum, with following comments;

“ Seen. D. F. is directed to decide the complaint as per rules. The Commission is not to review or revive final Order in the manner stated by the D. F.”.

11. Thereafter, District Forum by majority judgment dated 20.3.2004 held that; respondent no.1 had indulged in unfair trade practice as it was not authorized to sell engine oil and directed respondent no.1 to the petitioner a compensation of Rs.1,94,000/-.

12. Respondent No.1 preferred Appeal No.806 of 2004 against order dated 20.3.2004 of the District Forum.

13. State Commission, vide order dated 19.4.2004, allowed the same and remanded back the matter to District Forum.

14. Thereafter, District Forum, vide order dated 21.3.2006, allowed the complaint and directed respondent no. 1 to pay a sum of Rs.1 lac to the petitioner towards expenses incurred for repair of the tractor and to pay further sum of Rs.7,000/- as compensation.

15. Order dated 21.3.2006 of the District Forum was challenged by the respondent no.1 by way of filing Appeal No.641 of 2006 before the State Commission. Petitioner had also filed Cross Appeal No.679 of 2006.

16. State Commission, vide impugned order 22.10.2008 allowed the appeal of respondent no. 1 and dismissed the appeal of the petitioner.

17. Hence, the present revision petition.

18. Petitioner in support of its case has placed on record written submissions. We have heard the learned counsel for the parties and have gone through the written submissions also.

19. Case of the petitioner is that respondent no.1 has supplied 1 Ltr. engine oil which was spurious in nature and as such engine of his tractor got seized and damage was caused to the same.

20. It is the case of Petitioner that bill for 5 Ltrs. can of engine oil was given but no bill for one Ltr. can was given. It does not appeal to the common sense that when petitioner had purchased three items from respondent no. 1 and for one major item, cash-memo has been issued, then why for other two small items, respondent no.1 would not issue the cash-memo. In the absence of bill for 1 Ltr. can of engine oil, story put forward by the petitioner does not inspire any confidence.

21. Now coming to the report of mechanic on which much reliance has been placed by the petitioner’s counsel which states;

“Today on 2.12.1997 I have checked the Tractor Mahendra B275 belonging to Arjun Singh Ji Rajput S/o Shri Prahlad Singh R/o Village Rungti Police Station Bonli. After checking I have found that due to duplicate oil and duplicate oil filter the Tractor engine is seized and there is a noise in the crank.

Mahendra Tractor WorkShop, Bonli,

District SawaiMadhopur”.

22. As per above report, the mechanic has nowhere stated as to on what basis he reached at the conclusion that Tractor engine had been seized due to duplicate oil. There is nothing on record to show that above mechanic got the engine oil analyzed from any laboratory. Merely, on the above writing of the mechanic, no findings can be given that the 1 Ltr. engine oil can was aduplicate oil.

23. The entire case of the petitioner is based on conjuncture and surmises. There is nothing on record to show that 1 Ltr. can of engine oil sold by respondent no.1 was duplicate oil and due to which engine of petitioner’s tractor got seized.

24. Under these circumstances, we hold that petitioner has miserably failed to establish any deficiency against respondent no.1. Hence, present revision petition having no merits is hereby dismissed. Consequently, the complaint filed by the petitioner before the District Forum also stand dismissed.

25. Parties shall bear their own cost.

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

…..………………………… NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2754 – 2755 OF 2013

(From the order dated 27.08.2012 in F.A. Nos. 1611/2011 & 1612/2011

of Rajasthan State Consumer Disputes Redressal Commission)

WITH I.A. No. 4713/2013 I.A. No. 6182/2013 I.A. No. 6183/2013

(Condonation of Delay, Stay & Early Hearing)

M/s Morani Hyundai Morani Cars Pvt. Ltd. Opp. Sitabari, Tonk Road, Jaipur through Manoj Morani authorised signatory

... Petitioner

versus

Yatinder Parkash Sharma s/o Rajender Prasad Sharma, r/o 27, Bhagwan Path, Rail Nagar, Kings Road, Jaipur

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. Tarjit Singh, Advocate

1986 against the impugned order dated 27.08.2012 passed by the Rajasthan State Consumer

“M/s. Morani Hyundai Morani Cars Pvt. Ltd. versus Yatinder Parkash Sharma” and FA No.

1612/2011, “Yatinder ParkashSharma versus M/s. Morani Hyundai Morani Cars Pvt. Ltd.” and orders dated 10.07.2013 passed in M.A. no. 32/2013 in both these appeals. These two appeals were preferred against the order dated 26.07.2011 passed by the District Consumer Disputes Redressal Forum, Jaipur allowing the consumer complaint in question. Through impugned order, the appeal filed by the OP/Petitioner was dismissed and the appeal filed by the complainant was allowed and the amount of compensation awarded to the complainant was enhanced.

2. Brief facts of the case are that the respondent/complainant Yatinder Parkash Sharma purchased a Hyundai Santro Car from the petitioner/OP on 09.03.2009 for a consideration of

Rs.3,60,306/-. It has been alleged in the complainant that the actual purchase date was

09.03.2009, but the petitioner/OP issued the bill on 12.03.2009 and the insurance risk cover was also issued on 09.03.2009. The whole payment and tax was received by the OP on 09.03.2009, but the registration certificate was prepared on 13.03.2009 and given to the complainant after one and a half months. The complainant alleged that the total cost of the car including the registration amount comes to Rs.3,74,746/- but the OP received an amount of Rs.3,87,000/- meaning thereby that an excess amount of Rs.12,254/- was charged from the complainant. The complainant is also liable to receive an excess amount of Rs.18,015/- from the OP on account of insurance risk cover. The complainant demanded the refund of excess amount of Rs.12,254/- and insurance risk cover amount of Rs.18,015/- along with Rs.3,00,000/- for physical, mental, financial damages from the OP. The District Forum allowed the complaint vide their order dated

20.06.2011 and ordered the OP to pay excess amount of Rs.12,254/- along with interest @9% p.a. from the date of filing of the complaint till realisation, Rs.5,000/- for harassment and

Rs.2,000/- towards litigation expenses. Two appeals were preferred against the order of the

District Forum before the State Commission; the appeal filed by the OP was dismissed vide order dated 28.07.2012, whereas the appeal of the complainant was accepted and the OP was directed to pay a sum of Rs.12,254/- for excess amount charged, Rs.18,015/- for insurance risk cover, Rs.50,000/- for harassment and Rs.10,000/- as cost of litigation with interest @9% p.a. from the date of complaint, i.e., 25.06.2009.

3. It is made out from record that the present petitioner/OP filed application dated 30.11.2012 before the State Commission for amendment of the order dated 27.08.2012 but the said application was dismissed on 14.12.2012 by the State Commission as none was present before the State Commission on that date. An application was filed by the petitioner/OP again before the State Commission on 06.03.2013 requesting for recalling the order dated 14.12.2012. The said application was dismissed on 22.04.2013 since the petitioner was not present before the

State Commission on that date. Still another application was filed on 06.05.2013 before the State Commission for recall of the orders dated 14.12.2012 and 22.04.2013, but the same was dismissed vide impugned order dated 10.07.2013. It has been observed by the State Commission in their order dated 10.07.2013 that if the petitioner had any objection regarding the order dated

28.07.2012, he should have gone before the National Commission by way of revision petition. The State Commission also imposed a cost of Rs.10,000/- on the petitioner.

4. At the time of hearing before us, the learned counsel for the petitioner was asked to explain the delay of 238 days in filing the present petition before the National Commission. The learned counsel has drawn our attention to the application for condonation of delay filed along with the revision petition, wherein it has been stated that the delay occurred due to the filing of miscellaneous applications before the State Commission for obtaining clarifications about the impugned order and the said delay was neither intentional nor deliberate.

5. We have examined the material on record and given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioner. It is very clear that the impugned order was passed on 27.08.2012, but the petitioner filed the present petition after a delay of 238 days. No valid explanation or convincing reasons have been advanced by the petitioner to explain this delay. Even the State Commission have observed that the petitioner filed miscellaneous applications before them three times and he wasted the precious time of the

Commission because he did not present himself before the State Commission at the time of hearing. The State Commission even imposed a cost of Rs.10,000/- upon the petitioner while dismissing the 3rd miscellaneous application filed by him. It is very clear that the order dated

10.07.2013 and the earlier order passed on 02.04.2013 and 14.12.2012 are in accordance with law, because the State Commission was not authorised to carry out any review on their own earlier order dated 27.08.12. This view has been taken by the Hon’ble Supreme Court in

“Rajeev Hitender Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr.” [2011 9 SCC 541] according to which powers to review or recall its order do not lie with the State Commission or the District Forum.

6. It has been held by the Hon’ble Supreme Court in a number of recent judgements that unless there is a cogent and convincing explanation for the condonation of delay in filing the petition, the same should not be condoned. In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) SCALE 108, Hon’ble Supreme Court has observed: “ We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

7. Hon’ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat

Industrial Development Corporation reported in (2010) 5 SCC 459 as under; “ We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”

8. Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Ansul Aggarwal Vs. New Okhla Industrial

Development Authority observed as under: “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

9. In the present case, there is clearly a delay of 238 days in filing the present petition and no cogent reason have been given for the condonation of delay. The factum of filing review applications a number of times before the State Commission is no ground for condonation of delay of 238 days in the present case. The revision petition is, therefore, ordered to be dismissed on ground of delay.

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

REVISION PETITION NO. 3853 OF 2011 With I.A. No. 01 of 2011 for Stay

(From order passed in Appeal No.598 of 2008 of the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Nagpur)

M/s K. C. Associate, Through its partner Shri Sanjay Pandey, O/o 14, Vikas Ashram lay out, Karve Nagar, Nagpur-25.

.... Petitioner

Versus

Shri Pradeep S/o Zabaji Boriwar Aged about 43 years, Occ: service, R/o Qtr. No. D/2, Near Ravi Nagar Post Office, Ravinagar, Nagpur.

...... Respondent

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

For the Petitioner : Mr. Sunil D. Shukla, Advocate

Pronounced on: 25 th October, 2013 ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Petitioner/O.P. aggrieved by order dated passed by State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Nagpur(for short, ‘State Commission’) has filed the present revision petition.

2. Brief facts are that Respondent/Complainant wanted to have his own house, entered into an agreement with the petitioner for purchase of Duplex Bungalow with construction for a consideration of Rs.6,43,000/- for 725 Sq. Fts. Out of total plot admeasuring 1765 sq. Fts. Situated at Khasra No. 16(New), 245 and 246 (old), Mouza Lawa Teh. Nagpur. It is alleged that in the agreement plot number was not decided. The petitioner promised to mention the plot number at the time of sale deed of the said plot and plot NO.75 was informed to the respondent at the time of agreement. Respondent paid Rs.1,43,000/- and Rs.10,500/- through cheques to the petitioner. It is further alleged that petitioner had promised to execute the sale deed within two months from the date of agreement. However, it neither gave the possession nor executed the sale deed of plot.

3. It is further alleged that respondent had invested total sum Rs.2,53,000/-and as such he prayed for execution of the sale deed in respect of above Duplex Bungalow and in alternate, in case of non-execution of sale deed, petitioner be directed to refund the amount of Rs. 2,53,000/- with interest and compensation to the respondent.

4. Notice of complaint was issued to the petitioner by Consumer Disputes Redressal Forum, Nagpur (for short, ’District Forum’).It appears from the acknowledgement that notice was received by the petitioner on 28.7.2007 but even after receipt of the notice, petitioner failed to appear before the District Forum. Accordingly, petitioner was proceeded exparte, vide order dated 04.09.2007.

5. District Forum, vide order dated 21.09.2007, partly allowed the complaint and passed the following directions;

“ 1. The complainant’s complaint is partly allowed.

2. The Opposite Party is directed to execute the sale deed to the complainant in respect of 725 sq. fts. constructed Duplex Bungalow on plot admeasuring 1765 sq. fts. situated at Mouza Lawa, Tah. & Distt. Nagpur, Khasra No.16 (New) 245 and 246 (old) in P.H. No.4 layout after receiving the balance amount as per agreement. The complainant has to bear the expenses of sale deed.

If the Opposite Party is unable to execute the sale deed then he refund Rs. 2,53,000/- with interest @ 18% per annum from 14.12.2006 till its realization to the complainant and to pay compensation of Rs.1,00,000/- to the complainant.

3. Opposite Party is directed to pay Rs. 3,000/-towards cost of instant proceedings to the complainant”.

6. Petitioner filed an appeal before the State Commission, which dismissed the same, vide its impugned order.

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

8. It has been contended by learned counsel for the petitioner that petitioner did not receive any notice from the District Forum and as such petitioner was wrongly proceeded exparte.

9. It is further contended that mother of counsel of the petitioner had undergone bye-pass surgery at Nagpur and as such counsel for the petitioner was busy in her treatment. Moreover, petitioner had also undergone couple of operations of his eyes and breathlessness and due to this, petitioner could not attend the matter on 01.08.2011 before the State Commission and as such there are sufficient grounds for setting aside the impugned order.

10. We had summoned the original record of the State Commission. As per record of the State Commission, it is manifestly clear that petitioner had received the notice from the District Forum on July 28,2007.(Photo copy of acknowledgement is at page 48 of the State Commission’s record). The District Forum, vide its order dated 31.08.2007 has held “OP absent when called. The notice to the OP is served and acknowledgement is on record. The matter to proceed exparte against the OP”.

11. Thus, petitioner after receiving the notice from the District Forum had chosen not to appear before that Forum and there is no explanation of the petitioner for its non-appearance. Therefore, the order passed by the District Forum is perfectly legal.

12. The State Commission while rejecting the appeal of the petitioner held;

“ This appeal takes exception to the ex parte judgement and order dated 21.09.2007 passed by District Consumer Disputes Forum, Nagpur in C. C.No. 314/07.

This appeal is pending before admission since the month of July, 2008. Ad interim stay was granted and notice before admission was issued to the Respondent Shri Pradip Boriwar, who, in response to the notice appeared through Adv. More and Adv. Borkar on 11.09.2008 and then the matter was adjourned for hearing on condonation of delay as well as stay application. The record reveals that on 9th April, 09, Mr. Shukla, Adv. for the appellant sought adjournment by making application in writing. The same application was resisted by the learned advocate appearing for the Respondent, but no order appears to have been passed by the commission. However, since after 9.4.2009, appellant as well as his advocate Shri Shukla remained absent though the matter was adjourned from time to time since 9.4.2009. Today also the appellant as well as his advocate Shri Shukla are absent. Respondent Shri Pradip Boriwar as well as his advocate Mr. Borkar are present. Adv. Borkar submitted that there is no merit in the appeal. The impugned order is ex-parte and there is already a delay of more than 10 months in preferring this appeal. On perusal of the record, we find much force in the submission of Mr. Borkar, learned advocate for the Respondent. Hence we pass the following order.

Appeal is rejected”

13. Admittedly, appeal before the State Commission was filed on 25.07.2008. Thus, on the face of it, appeal filed before the State Commission was hopelessly barred by limitation. Be that as it may, State Commission has rightly dismissed the appeal of the petitioner, as neither petitioner nor his counsel were present before it on the date of hearing. Further, it is apparent from the impugned order that, after 9.4.2009, petitioner as well his advocate remained absent though the matter was adjourned from time to time since 9.4.2009.

14. Moreover, petitioner had not placed any document on record to show that petitioner counsel’s mother was suffering from ailment during that period nor petitioner had filed any medical record to this effect that during that period he was confined to bed and was unable to attend the proceedings before the State Commission. 15. Under section 21(b) of the Consumer Protection Act,1986, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

16. Above record speaks volume about the conduct of the petitioner. Petitioner has chosen not to appear before the District Forum and as such was rightly proceeded exparte. Thereafter, there was delay in filing of the appeal before the State Commission and even then before the State Commission, petitioner as well as its counsel did not appear before it without any justifiable as well as sufficient cause. The intention of petitioner is just not to comply with the award passed by the District Forum and to deprive the respondent the fruits of the decree.

17. The present revision petition having no legal merit has been filed just to waste the time of this Commission and to abuse the process of law, is hereby dismissed with punitive cost of Rs.20,000/-(Rupees Twenty Thousand only).

18. Petitioner is directed to deposit the aforesaid cost by way of demand draft, in the name of respondent with this Commission, within four weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization. However, the cost be paid to respondent only after expiry of period of appeal/revision preferred, if any.

19. Pending applications also stand disposed of.

20. List on 29th November, 2013 for compliance.

…………………..………..J

(V.B. GUPTA)

PRESIDING MEMBER

…………………..………..

(REKHA GUPTA)

MEMBER

FIRST APPEAL NO. 298 OF 2008 (Against the order dated 09-05-2008 in Complainant Case No. C-311/2002 of the State Commission, Delhi)

Ms. Iqbal Kaur C-66 Malviya Nagar, New Delhi- 110017 ...... Appellant

Versus Vice-chairman, Delhi Development Authority (DDA) Vikas Sadan, INA New Delhi ….Respondent

FIRST APPEAL NO. 392 OF 2008 (Against the order dated 09-05-2008 in Complainant Case No. C-311/2002 of the State Commission, Delhi)

Delhi Development Authority (DDA) Vikas Sadan, INA New Delhi ...... Appellant Versus

Ms. Iqbal Kaur D/o Sri Sahib Ditta Mal C-66, Malviya Nagar New Delhi ….Respondent

For Ms. Iqbal Kaur : Mr. Lajinder Singh, Authorised Representative

For Delhi Development Authority : Ms. Girija Wadhwa, Advocate

PRONOUNCED ON: 25/10/2013. ORDER PER MR. VINAY KUMAR, MEMBER As seen from the record, complainant Iqbal Kaur had applied to the OP/Delhi Development Authority for allotment of a shop, to earn her livelihood. A shop was allotted on 29.2.1996 in Commercial-cum-Staff Housing Complex in Land Acquisition Category (LAC). The entire price of Rs 4,86,205/- was paid by 15.6.1996. An application was moved on

27.6.1996 requesting for possession of the shop, as full consideration had already been paid. Allegedly, after a series of letters and multiple visits to the DDA, involving prolonged harassment, the possession was eventually received on 12.9.2003 i.e. after lapse of over seven years.

2. Ten months before the delivery of possession, a consumer complaint had been filed before the Delhi State Consumer Disputes Redressal Commission in November 2002, seeking possession with refund of excess amount paid and compensation of Rs.11 lakhs. The State Commission allowed the complaint and awarded lump sum compensation of Rs.50,000/-, observing that— “We have taken a view that whenever a consumer makes payment of entire consideration the first and foremost duty of the service provider is to handover possession and later on get the formalities required to be completed. In this case the delay was of about 7 years.”

3. Both sides have appealed against the above order. The complainant has filed the appeal (FA/298/2008) to seek enhancement of compensation. On the other hand, DDA has filed its appeal (FA/392/2008) to set aside the impugned order which has awarded compensation of Rs.50,000/-, on the ground that there was no deficiency of service on its part.

4. The record submitted on behalf of the two sides have been perused. Delay of 24 days in filing of appeal by the DDA, has been condoned. Counsel for the DDA, Ms Girija Wadhwa, Advocate and Mr Lajinder Singh, Authorised Representative of the complainant have been heard. Significantly, during the course of hearing of these appeals, learned counsel for the DDA informed that half of the awarded amount has already been paid to the complainant and DDA is willing to pay the remaining half, in full compliance of the impugned order. Learned counsel argued that the complainant has been compensated, more than adequately in the impugned order. Hence, there is no case for the amount being enhanced in appeal. Per contra, it was clarified by the AR of the complainant that the latter is not agreeable to withdrawing his claim for enhancement of compensation, even if the DDA voluntarily makes full compliance with the award of the State Commission.

5. As seen from the Memorandum of appeal, the main ground for seeking enhancement of the compensation is that the State Commission should have compensated the complainant for the actual loss suffered, instead of awarding a lump sum amount. It is contended that the State Commission has itself held that there was unjustifiable delay of over seven years, despite full payment in 1996 itself. It has held that non adjustment of earnest money of Rs.5000/- was an act of highhandedness. Similarly, it held that the demand letter of 29.2.1996 was wrong and yet did not order refund of additional interest on the concerned amount. This has an obvious reference to the following observations in the impugned order— “ 13. After having accorded careful consideration to the aforesaid conspectus of facts we find that the conduct of the OP was deficient, malafideand arbitrary. The OP labeled the allotment letter as provisional illegally when all the terms and conditions and eligibility criteria was fulfilled at the time of applying for the shop. Adjustment of Rs.5,000/- as earnest money in the demand-cum-allotment letter dated 29-02-1996 was a high handedness of the OP and was against all the rules and regulations of the DDA. The complainant was to make the payment by 02-05-1996 and without any interest. She deposited Rs.2.56 lakhs by 02-05- 1996. For the remaining amount she sought extension from OP and paid Rs.2.60 lakhs with interest for one month on it by 21-05-1996 but still OP charged interest on the whole amount from 22-03-1996 as is evident by the OP’s letter dated 08-08- 1997. The allotment-cum-demand letter dated 29-02-1996 was wrong as it didn’t adjust Rs.5,000/- deposited as earnest money. The demand of Rs.8,574/- was wrong and illegal and raised with malafide intentions. The demand for Rs.8,574/- should not have been raised at all in view of delayed issue of letter of demand and adjustment of the earnest money of Rs.5,000/- due to complainant by the OP. The fact remains that OP was to refund Rs.8,574/- and adjust Rs.5,000/- paid as earnest money with interest from the date of these deposits. This was intentionally not done by the OP to delay the possession. OP has not maintained anywhere as to which documents were not submitted, whereas the complainant had submitted all the documents time and again between 1996 to 2002 to the OP including unwarranted demands as stated in the letters mentioned in para 8 of the complaint. It is wrong that the complainant submitted the complete set of documents only on 07-05-2002 as alleged. There is no policy of the DDA that before the issue of the possession letter, conveyance deed (CD) papers should be stamped from the Registrar as alleged. The complainant was issued CD, perpetual lease and site plan on 11-10-2002 for the first time along with a covering letter all wrongly filed with name of the complainant as also the location of the shop in the market and its dimensions and these were returned on 18-10-2002 for corrections. It is wrong that the possession letter could not be issued to the complainant because the complainant failed to give the complete set of documents to the OP. 14. The complainant has suffered loss due to delayed delivery of possession as she had to pay 5% extra stamp duty as the same was increased from 8% to 13% whereas the OP has unjustly gained by retaining the entire consideration amount for such a long time and delayed the possession on one pretext or the other.”

6. Considering the above, we are of the view that in the interest of justice and equity there is need to enhance the quantum of compensation. We therefore, enhance the amount of lump sum compensation from Rs.50,000/- to Rs. 80,000/-, which shall be paid to the complainant within two months. Delay, if any, shall carry interest at 9%. The appeal of the complainant is partly allowed in the aforesaid terms. For the same reason, the appeal of the Delhi Development Authority stands dismissed. …..…………….Sd/-…….…… (VINEETA RAI) PRESIDING MEMBER

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

REVISION PETITION NO. 1933 OF 2013 (From the order dated 17.01.2013 in Appeal No. 2312 of 2010 of the

Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

WITH IA/3169/2013

(CONDONATION OF DELAY)

Duli Chand S/o Sh. Ami Lal R/o- 55-56, Sector-12 L Hanumangarh Junction Hanumangarh

… Petitioner

Versus

The New India Assurance Co. Ltd. Through Jaipur Regional Office, 2nd Floor, Nehru Place, Tonk Road, Jaipur

… Respondent

BEFORE:

HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B. C. GUPTA, MEMBER

For the Petitioner : Mr. Amit Singh, Advocate

PRONOUNCED ON : 25 th OCTOBER, 2013 O R D E R

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

This Revision Petition has been filed by the petitioner against impugned order dated17/01/2013, passed by the State Commission Rajasthan in Appeal No. 2312/2010, The New India Assurance Co. Ltd. vs. Duli Chand, by which while allowing the appeal, order of the District Forum allowing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner had taken a Carrier’s Legal Liability Policy for his tanker no. RJ13G6715 and he attached his tanker with M/s. S. D. Ganesh Gadia Filling Station, who was the contract carrier of Indian Oil Corporation. On 27.12.2008, complainant’s tanker was carrying 20,000 lt. of diesel, met with an accident and diesel barring 242 lt. was destroyed. Complainant lodged claim with the Opposite Party, which was repudiated on the ground that at the time of accident, complainant was not acting as a carrier. Alleging deficiency on the part of the Opposite Party, complainant filed complaint before the District Forum. Opposite Party resisted complaint and submitted that as complainant was not acting as a carrier at the time of accident, Opposite Party rightly repudiated the claim and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed the complaint and directed the Opposite Party to payRs. 6,55,098/- alongwith 8% p.a. interest and further awarded Rs. 5,000/- for mental agony and Rs. 1,000/- as litigation expenses. Appeal filed by the Opposite Party was allowed by the State Commission vide impugned order against which this Revision Petition has been filed alongwith application for condonation of delay.

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

4. Petitioner has filed application for condonation of delay for 18 days. As there is delay of only 18 days, we allow application for condonation of delay and delay stands condoned.

5. Learned counsel for the petitioner submitted that as petitioner was insured with the respondent and was carrying diesel and met with an accident, petitioner was entitled to get indemnified and the District Forum rightly allowed the claim but the State Commission has committed error in allowing the appeal, hence Revision Petition be admitted.

6. Learned counsel for the petitioner admitted that petitioner had no contract with the Indian Oil Corporation but petitioner’s tanker was attached with M/s. S. D. Ganesh Gadia Filling Station, who had contract of carrying oil of Indian Oil Corporation. Thus it becomes clear that the petitioner had no carriage contract with Indian Oil Corporation and in such circumstances, petitioner was not entitled to get any compensation for loss of diesel due to accident. The State Commission rightly placed reliance on I (2012) CPJ 267 (NC) National Insurance Company Ltd. vs. Mehboob Khan while allowing appeal.

7. We do not find any irregularity, illegality or jurisdictional error in the impugned order and Revision Petition is liable to be dismissed at admission stage.

8. Consequently, Revision Petition filed by the petitioner is dismissed at admission stage, with no order as to costs.

..……………………………

(K. S. CHAUDHARI)

PRESIDING MEMBER

..……………………………

(DR. B.C. GUPTA)

MEMBER PSM NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2473 OF 2012 With IA/5116/2013(For recalling case record) IA/6301/2013(For directions) (From the order dated 09-03-2012 in Appeal No. 3136/2007 of the State Consumer Disputes Redressal Commission, Haryana)

R.K. VARMA R/o House no-164,Sector-23, Gurgoan – 122017 Haryana

… Petitioner/Complainant

Versus

1. DIRECTOR / CONTROLLER, KALYANI (ESCORTS) & 2 ORS. Kalyani Hospital, M.G Road, Gurgoan Haryana

2. The Director/ Controller Metro Multi Specialty Hospital, Noida, Sector-12, Noida, Haryana

3. The New India Assurance Co. 386-387, Jacobpura Old, Railway Road Gurgaon, Haryana, Policy, No-354100/46/05/32/00000358

… Respondents/Opposite Parties

BEFORE:

HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B C. GUPTA, MEMBER

For the Petitioner : In person

For Respondent No. 1 : Ms. M. Malika Chaudhari, advocate

For Respondent No. 2 : Mr. Anjum Javed, advocate

For Respondent No. 3 : Mr. Navdeep Singh, advocate

PRONOUNCED ON 25th OCTOBER, 2013

O R D E R

This revision petition has been filed by the petitioner against impugned order dated 09-

03-2012 passed by the learned State Consumer Disputes Redressal Commission, Haryana (in short, ‘the State Commission’) in Appeal No. 3136 of 2007 – The Director, Metro Multi

Speciality Hospital Vs. R.K. Verma & Ors., by which while allowing the appeal, order of the

District Forum allowing the complaint was set aside. 2. Brief facts of the case are that complainant/petitioner’s father Sultan Singh was admitted in Kalyani Hospital (Escorts) on 11-11-2006 and was diagnosed heart attack. He was put on temporary pace-maker. Complainant was advised to shift his father to some better equipped hospital. Complainant found a seat in hospital of Opposite Party No. 2/respondent no.

2. Ambulance was sent by Opposite Party No. 2 to pick up the patient but it was without pace maker so another person was sent from Opposite Party No. 2 hospital to Gurgaon along with pace-maker but unfortunately that pace-maker was not functioning properly. Doctors of

Opposite Party No. 1/Respondent No. 1 hospital refused to lend pace-maker. In such circumstances, ambulance left without taking the patient and after couple of hours complainant’s father died. Alleging deficiency on the part of Opposite Parties, complainant filed complaint before District Forum. Opposite Party No. 1 & 2 did not file written statement but Opposite

Party No. 3 – insurance company who covered risk of hospital and doctors filed written statement and submitted that policy does not cover dispute relating to lending of pace-maker and prayed for dismissal of complaint. Learned District Forum after hearing the parties, allowed complaint partly and directed Opposite Party No. 2 to pay Rs. One lakh as damages to the complainant along with 6% p.a. interest and further awarded Rs.3,000/- as cost of litigation. Appeal filed by Opposite Party No. 2 was allowed by learned State Commission vide impugned order, against which this revision petition has been filed.

3. Heard petitioner in person and learned Counsel for the respondents and perused record.

4. Petitioner submitted that on account of negligence of Respondent No. 2, petitioner’s father could not be saved and learned District Forum rightly allowed complaint but learned State

Commission has committed error in allowing appeal, hence revision petition be allowed and impugned order be set aside. On the other hand, learned counsel for Respondent No. 2 submitted that order passed by learned State Commission is in accordance with Law, hence revision petition be dismissed. Learned counsel for Respondent No. 1 & 3 submitted that complaint has not been allowed against them and petitioner has not filed appeal against the order of the District

Forum, hence they are not liable for any compensation.

5. District Forum fastened liability on Respondent No. 2 as ambulance of Respondent No. 2 was without any pace-maker. Petitioner, during course of arguments, submitted that ambulance was required to be equipped with pace-maker, which could have been put while taking patient to the hospital and his father could have been saved and thus Opposite Party no. 2 committed deficiency. On the other hand, learned counsel for Respondent No. 2 submitted that petitioner does not fall within the purview of consumer under Consumer Protection Act and further submitted that it was not necessary that ambulance should have been equipped with pace-maker and further submitted that pace-maker could not have been inserted in ambulance during journey.

6. Petitioner’s main allegation is that ambulance called from Opposite Party No. 2 was not equipped with pace-maker. Petitioner has nowhere mentioned in the complaint that petitioner hired services of Opposite Party No. 2 for consideration which had already been paid or promised to be paid. Petitioner falls within the purview of consumer under Section 2(d) (ii) only when he hires or avails off any service for consideration which has been paid or promised. We do not find any averment in the complaint regarding payment or promise for payment of any consideration for the services of Opposite Party No. 2 and in such circumstances petitioner does not fall within purview of consumer under Consumer Protection Act and revision petition is liable to be dismissed on that ground alone.

7. Learned State Commission has rightly observed that no evidence has been led by the petitioner that every ambulance must be equipped with pace-maker. It was further rightly observed that pace-maker cannot be inserted in ambulance during road journey from one hospital to another. Learned State Commission has not committed any illegality, irregularity or jurisdictional error in allowing appeal and revision petition is liable to be dismissed.

.……………….………………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER

.……………….………………

( DR. B.C. GUPTA)

MEMBER aj NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 16.01.2012 in First Appeal No. 1965/2006 of Haryana State Consumer Disputes Redressal Commission, Panchkula)

State Bank of Patiala Railway Road Branch, Kurukshetra, Haryana-136118

... Petitioner

Versus

Krishan Kaul W/o M. L. Kaul, R/o- House No. 15, Sector-13, Kurukshetra, Haryana-136118

… Respondent

BEFORE

For the Petitioner : Mr. Bheem Sain Jain, Advocate and Mr. Udayan Singla, Advocate

For the Respondent : Mr. S. C. Phogat, Advocate

PRONOUNCED ON : 25 th OCTOBER, 2013 O R D E R PER HON’BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER

This Revision Petition has been filed by the petitioner against impugned order dated 16/01/2012, passed by the State Commission Haryana in First Appeal No. 1965/2006, State Bank of Patiala vs. Krishna Kaul, by which while dismissing the appeal, order of the District Forum allowing complaint was upheld.

2. Brief facts of the case are that Complainant-Respondent is an account holder of Opposite Party-Petitioner. On 27.09.2005, complainant, after getting Rs. 25,000/- from PNB, went to Opposite Party Bank for depositing amount in complainant’s account no. 1190012729. After completing deposit slip, complainant approached the cashier counter then suddenly some unknown person snatched the amount of Rs. 25,000/- from the complainant’s hand and ran away. Bank security guard was watching the procession of Dera Sacha Sauda, which was passing through the road in front of the bank. As Opposite Party could not provide adequate security to the complainant, alleging deficiency on the part of the Opposite Party, complainant filed complaint before the District Forum. Opposite Party resisted complaint and submitted that complainant never came in the Bank on 27.09.2005 to deposit amount of Rs. 25,000/-. Snatching of money from complainant’s hand was also denied and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed the compliant and directed the Opposite Party to pay Rs. 25,000/- alongwith 9% p.a. interest. Appeal filed by the Opposite Party 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 respondent does not fall within the purview of consumer and further submitted that security guard was for the security of bank and if anyone has snatched money from respondent’s hand, petitioner can not be held responsible and the State Commission has committed error in dismissing the appeal and the District Forum has committed error in allowing 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 the State Commission is in accordance with law, hence Revision Petition be dismissed.

5. The whole question to be decided in this case is whether petitioner was bound to provide security to its customers and has failed to provide security.

6. As per complainant’s averments, money was snatched by third person from complainant’s hands when he was in bank premises in front of cash counter and security guard was watching the procession passing through the road. Security guard employed by the petitioner was meant for protecting properties of petitioner and admittedly money in the hands of respondent was not the property of the petitioner till it was handed over to cashier of petitioner. Admittedly, money was not handed over by the respondent to the petitioner and in such circumstances, petitioner’s security guard was not under any obligation to provide security to the respondent, who was only account holder of the bank. Learned counsel for the respondent could not substantiate his arguments by any citation that petitioner was under an obligation to provide security to the customer as soon as customer entered into premises of petitioner. If a customer is assaulted by another customer in bank premises, we do not think that bank or its security guard can be held responsible in Civil/Criminal proceedings. We do not agree with the findings of the State Commission that bank security guard had to protect the customers from bad elements and bank was duty bound to provide adequate security to its customers. In such circumstances, order passed by the State Commission is liable to set aside.

7. Consequently, Revision Petition filed by the petitioner is allowed and impugned order dated 16.01.2012 passed by the State Commission in First Appeal No. 1965/2006, State Bank of Patiala vs. Krishna Kaul and order dated 17.07.2006, passed by the District Forum in complaint no. 100/2006, Smt. Krishna Kaul vs. State Bank of Patiala is set aside and complaint stands dismissed with no order as to costs.

..……………………………

(K. S. CHAUDHARI)

PRESIDING MEMBER ..……………………………

(DR. B.C. GUPTA)

MEMBER PSM NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1327 OF 2007 (From the order dated 19-01-2007 in First Appeal No. 646 of 2003 of the State Consumer Disputes Redressal Commission, Tamil Nadu)

V. Perumalsamy S/o Veerasamy, 35, East Street, Theni – 626531, Tamil Nadu

… Petitioner/Complainant

Versus 1. The Branch Manager, Life Insurance Corporation of India, Periyakulam Branch, Vaigaidam Road, Periyakulam – 625601. Tamil Nadu

2. The Divisional Manager, Divisional Office, Life Insurance Corporation of India, “Jeevan Prakash” Bridge Station Road, P.O. Box No. 16, Sellur, Madurai – 625002 Tamil Nadu

… Respondents /Opposite Parties

BEFORE:

For the Petitioner : Mr. G.S. Mani, Advocate

For the Respondent : Ms. Pankaj Bala Verma, Advocate

PRONOUNCED ON 25 th OCTOBER, 2013

O R D E R

This revision petition has been filed by the petitioner against impugned order dated 19-

01-2007 passed by the learned State Consumer Disputes Redressal Commission, Tamil Nadu (in short, ‘the State Commission’) in Appeal No. 646 of 2003 – The Branch Manager, Life

Insurance Corporation of India &Anr. Vs Perumalsamy, by which while allowing the appeal, order of the District Forum allowing the complaint was set aside.

2. Brief facts of the case are that complainant/petitioner obtained two policies from opposite party/respondent on 28-11-1995 and 28-09-1998 respectively each for a sum of Rs. One lakh. As per policies, complainant was eligible to receive medical expenses up to 50% of the amount of policy with bonus. Complainant was admitted at Apollo Hospital, Chennai and he underwent bypass surgery on 11-12-2000 and discharged on 18-12-2000. Complainant requested opposite party to pay medical claim of the aforesaid two policies and the bonus but as payment was not made, alleging deficiency on the part of the opposite party, complainant filed complaint before District Forum. Opposite parties resisted complaint and submitted that complainant failed to disclose vital information about his health condition and complainant was diabetic for the last eight years, hence complainant was not entitled to receive any claim and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed opposite party to pay Rs. One lakh under the two policies and Rs.20,000/- as bonus amount along with 9% p.a. interest and further awarded cost of Rs.1,000/-. Appeal filed by the opposite party 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 as petitioner was not diabetic and has not suppressed any disease in the Proposal Form, learned District Forum rightly allowed complaint but learned State Commission has committed error in dismissing the complaint, hence revision petition be allowed and impugned order be set aside. On the other hand, learned counsel for 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 obtained two policies from respondent with bonus and as per Benefit (B), 50% of the sum assured was payable on open heart bypass surgery along with bonus of 10% of the sum assured. It is also not disputed that in his personal history complainant submitted that his state of health was good and he was not suffering from any disease.

6. The basis of diabetes is only discharge summary given by Apollo Hospital, which reads as under:-- “ This 46 years old gentleman, hormotensive, diabetic for 8 years, was admitted with history of class II angina since 2 years for further cardiac evaluation. He was evaluated by cardiac cath and coronary angio which revealed single vessel disease with normal LV function. He was advised CABG surgery.” 7. Respondent has not placed any documents on record for earlier treatment of diabetes taken by the petitioner. Learned counsel for the petitioner submitted that petitioner never revealed this fact that he was diabetic for 8 years as he was not suffering from diabetes. Merely on the basis of earlier history recorded in the discharge certificate, it cannot be presumed that petitioner was suffering from diabetes since last 8 years.

8. Even if discharge summary is taken to be correct, first policy cannot be called in question on the ground of mis-statement after 2 years as per Section 45 of the Insurance Act. Admittedly, first policy was issued in the year 1995 and petitioner has undergone surgery in December, 2000 meaning thereby after a period of 5 years and respondent has neither pleaded nor proved that inaccurate or false statement about his health was made by the petitioner fraudently at the time of obtaining policy. In such circumstances, petitioner is certainly entitled to get 50% of the sum assured under the first policy, which was issued almost before 5 years. As second policy was issued on 19-01-1999 and petitioner has undergone surgery in December, 2000, he may not be allowed to get 50% of the sum assured under the second policy. Learned State Commission has committed error in allowing appeal in toto and dismissing the complaint in toto though petitioner was entitled to receive benefits under the first policy which was issued before 5 years.

9. Consequently, revision petition filed by the petitioner is partly allowed and impugned order dated 19-01-2007 passed by learned State Commission in Appeal No. 646 of 2003 – The Branch

Manager, Life Insurance Corporation of India & Anr. Vs Perumalsamy is modified and order of the District Forum dated 26-03-2003 is also modified and petitioner is held entitled to get

Rs.50,000/- along with Rs.10,000/- as bonus under the first policy with interest @ 9% p.a. from

18-12-2000 till the date of payment. There shall be no order as to costs.

.……………….………………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER

.……………….………………

( DR. B.C. GUPTA)

MEMBER aj NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

FIRST APPEAL NO.438 of 2011 (From the Order dated 19.08.2011 in Complaint Case No.01/08 of the State Consumer Disputes Redressal Commission, Andaman & Nicobar Islands)

Jet Airways (India) Ltd. Regd. Office at Sahar Airport Road, Andheri (East), Mumbai-400 099 .. Appellant Vs. Vijay Kumar Bamboo Flat Jetty Ferrargunj Tehsil South Andaman ..Respondent

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

For the Appellant : Mr. Sunil Attri, Advocate

For the Respondent : N E M O (Respondent proceeded exparte vide order dated 08.03.13)

O R D E R (Pronounced on 25th October, 2013)

D.K. JAIN, J., PRESIDENT

This appeal under section 19 of the Consumer Protection Act, 1986 (for short “the

Act”) is directed against the order dated 19.08.11, passed by the State Consumer Disputes

Redressal Commission, Andaman & Nicobar Islands, Port Blair, (for short “the State

Commission”) in Complaint Case No. 1/2008. By the impugned order, the State

Commission has allowed the complaint filed by the Complainant (Respondent herein) for

delay in the delivery of the remains of his father, booked as cargo with the Appellant

Airlines. The State Commission has awarded a sum of `2,45,000/- as compensation to the

Complainant by the Airlines on account of deficiency in service and mental agony, with

interest @ 12% p.a. from the date of filing the complaint till the recovery of the amount.

2. The father of the Complainant expired on 27.05.2008 at Bangalore. As the last rites of

the deceased were to be performed at Andaman & Nicobar Islands on 28.05.2008, the

Complainant decided to carry the remains of his father by air from Bangalore to Port Blair.

The human remains were booked on 28.05.2008 as passenger’s luggage by an early morning

flight to Bangalore-Chennai-Port Blair under an airway bill. A sum of `8,230/- was paid by the Complainant as carriage charges on a chargeable weight of 100 kgs. In the airway bill, the nature and quantity of goods was shown as “human remains”. The Complainant also travelled in the same flight. The scheduled time of arrival of the flight at Port Blair was

11.15 A.M. All the relatives were informed that the funeral ceremony would be performed at

12.00 noon on 28.05.2008. However, when the flight reached Port Blair, it was discovered that the package containing the human remains was not in the aircraft as it was not loaded on the flight proceeding from Chennai to Port Blair. The package was infact delivered to the

Complainant on the following day i.e. 29.05.2008. Alleging gross negligence and serious deficiency in service, resulting in attack of Angina Pectoris to his mother who had come to the airport to receive the body of her husband, mental agony and pain, the Complainant filed the complaint before the State Commission claiming a compensation of`40 lakhs for deficiency in service and a further sum of ` 40 lakhs for mental agony.

3. The complaint was contested by the Airlines. Denying any deficiency in service or suffering of mental agony by the Complainant, it was pleaded that the cargo was not loaded in the flight to Port Blair inadvertently due to human error which “do occur sometimes.” It was stated that realizing the mistake, the cargo was dispatched to Port Blair by the Airlines on 29.05.2008 without charging any additional amount.

4. On analysis of the evidence adduced by the Complainant, the State Commission observed as follows:- “ So far as the case is concerned there is no dispute by the opposite parties about delayed despatch of the human remains of the father of complainant. Their contention appears that due to human error the cargo was not despatched in the scheduled flight and there was no negligence on the part of the opposite parties. In his evidence as PW-1, complainant has denied the suggestion that due to inadvertence the cargo was not off loaded at Chennai Airport for its onward journey to Port Blair. In this connection, if we look into exhibit-6 which is a letter issued on behalf of the opposite party no.1 wherein it is recorded, “I sincerely apologize for this erroneous mistake”. So it is evident that the opposite party Jet Airways tried to brush off the entire matter as error on the part of the respondent. It may be pointed out that the respondent Jet Airways being a reputed concern was duty bound and contract bound to send the human remains of the father of the complainant in the manner and on the date as agreed. The flight from Chennai to Port Blair reached on schedule on 28.05.08 minus the human cargo. This cannot be avoided by the opposite party simply by taking the plea that the entire incident took place due to inadvertence by the men of the opposite party. The opposite party cannot avoid their responsibilities and from the document itself it is evident that there was gross negligence on the part of the respondents to send the cargo in the manner as agreed between the parties.

It is further evident that complainant came from Chennai to Port Blair in the same flight where the cargo was supposed to be despatched and complainant has categorically stated that he made repeated inquiries in order to ensure that the cargo is despatched in the flight. The process is clear if exhibit-4 in which condolence message of deceased P.Sai Krishna was published in Daily Telegrams dated 28.05.08. In the condolence message it is stated that the funeral ceremony will take place on 28.05.08 at 12.00 noon. So it is evident that in anticipation of the arrival of the human remains on 28.05.08, necessary arrangement was made to perform the last rites of the departed soul.

The opposite parties did not adduce any evidence in order to show as to how the cargo was dealt after the same was off loaded at Chennai. It is not disputed that the complainant along with the human remains of his father boarded the flight from Bangalore to Chennai and the flight was scheduled to come to Port Blair from Chennai. At Chennai complainant repeatedly reminded the respondent authority that the cargo is to be loaded in the flight to Port Blair. Respondent has denied that complainant made any such exercise as claimed. We are unable to agree with the respondent simply in view of the fact that it was quite natural on the part of PW-1 to make necessary efforts to ensure that the human remains arrive at Port Blair so that the last rites of the departed soul could be performed on 28.05.08 as already announced in the newspaper.”

5. The State Commission thus held that there was serious deficiency in service on the part

of the Airlines for which, they were solely responsible and as such the Complainant had

succeeded in establishing his case about the deficiency in service. Having held so, the State

Commission, while restricting the amount of compensation for deficiency in service

to `45,000/- (`450 x 100 kgs.), in terms of Section 22 (2) (a) of the Carriage By Air Act, 1972

(in short, “the Air Act”), in exercise of its jurisdiction under Section 3 of the Act, proceeded

to award an additional sum of `1 lakh as compensation on the same count by observing thus:- “ Even after failing to despatch the cargo the opposite parties failed and neglected to take proper care of the cargo which is human remains and as such we are of the view that the deficiency in service is further compounded by the negligence on the part of the opposite parties.”

6. On the question whether the Complainant suffered any mental agony, the State Commission held as under:-

“ Loss of father was certainly painful to the complainant. He made arrangements only to perform last rites of the departed soul but he failed to perform it on the given date solely due to latches and gross negligence on the part of the opposite parties. His emotional sufferings is certainly a ground for awarding compensation for mental agony.”

Following the decision of the Hon’ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh– (2004) 5 SCC 65 wherein it was held that the word compensation is of wide connotation and may extend to compensation under the Act for mental or even emotional suffering, the State Commission awarded a sum of `1 lakh as compensation in favour of the complainant for mental agony. As noted above, interest @ 12% has also been awarded to the Complainant. Hence, the present appeal by the Airlines. 7. Ld. Counsel appearing for the Appellant assailed the findings recorded by the State Commission relating to negligence and deficiency on the part of the Airlines on the ground that since the Airlines was operating only one flight from Chennai to Port Blair, the cargo could be dispatched to its destination on the next flight operated by the Appellant Airlines. It was also pleaded that the compensation awarded to the Complainant is highly excessive, unreasonable and imaginary and has been determined without any basis, more so, when in terms of Section 22 (2) (a) {as amended by the Government of India’s Notification No. S.O 242} of the Air Act, an Air Carrier is not liable for damage caused by delay in the carriage. 8. We are of the opinion that there is no merit in this appeal. It is manifest from the afore extracted paragraphs that the findings by the State Commission to the effect that there was serious deficiency in service on the part of the Airlines in not dispatching the human remains from Chennai to Port Blair and thus the Complainant had suffered mental agony on account of the delay in delivery of the cargo, is based on cogent evidence adduced by the Complainant. In fact, the error in not off loading the coffin containing human remains of the father of the deceased at Chennai Airport and then loading it on the connected flight to the Port Blair is not denied by the Airlines. The short plea was that the error was on account of human error “which do occur sometimes”. We are unable to comprehend as to how a package weighing 100 Kgs. was left unattended in the cargo section of the aircraft when admittedly the concerned flight from Bangalore terminated at Chennai and all the passengers travelling to Port Blair were required to de-plain and board another aircraft for onward journey. As noted above, the human remains were being carried by the Complainant as checked in baggage and was required to be off loaded at Chennai. A baggage weighing 100 Kgs. could not remain hidden so as to escape the attention of the ground staff. We have no hesitation in upholding the finding of the State Commission that it was a case of gross negligence and deficiency in service on the part of the Airlines. We are of the view that the facts emanating from record speak for themselves and, therefore, the principle of res ipsa loquitor is clearly attracted. The tone and the tenor of letter dated 28.05.2008 by some un-named ground staff tendering apology to the Complainant for the “erroneous mistake” amounts to adding insult to injury. We also feel that non-removal of the baggage at Chennai was a serious security lapse indicative of gross negligence on the part of the Airlines. Be that as it may, we refrain from commenting further on this aspect as no such plea seems to have been raised before the State Commission. 9. As regards the plea that an Airlines cannot be made liable for damage caused by delay in carriage in terms of Government of India’s Notification No. S.O. 242, we are of the view that there is no substance in the stand of the Airlines. The Notification reads as

follows:- “ ..... 5 (a) The carrier is not liable to the shipper or any other person for any damage, delay or loss of whatsoever nature (hereinafter collectively referred to as ‘damage’) arising out of or in connection with the carriage of goods unless such damage, excluding the delay is proved to have been caused by the negligence or wilful fault of the carrier and there has been no contradictory negligence of the shipper, consignee or other claimant. The carrier will not be liable for damage caused by delay in the carriage...... ”

In the light of a clear and categorical finding by the State Commission and affirmed by us, that the delay in delivery of the cargo was caused because of negligence on the part of the Airlines, the said notification has no bearing on the facts at hand. 10. As regards award of an additional sum of `1 lakh over and above `45,000/- , as per Section 3 the provisions of the Act being in addition to and not in derogation of the provisions of any other law for the time being in force, these have to be interpreted broadly, positively and purposefully, in the context of the facts of a particular case. { See: Secy. Thirumurugan Coop. Agricultural Credit Society Vs. Ma. Lalitha - (2004) 1 SCC 305 and Trans Mediterranean Airways Vs. Universal Exports and Anr.- 2011 (10) SCC 316} In the instant case, as we have already noticed, undoubtedly, there was negligence and deficiency in service on the part of the Airlines in not delivering the booked cargo on time. The plea that the cargo could not be delivered on time because of non- availability of another flight, in our opinion, is without any substance particularly having regard to the nature of the cargo i.e. the human remains. Except for the said bald plea, the Airlines did not lead any evidence to show that it was not possible, under any circumstances, to make an alternative arrangement for delivery of the human remains

on 28.05.2008. In that view of the matter, we see no reason to interfere with the award of the said additional amount by the State Commission. 11. In so far as the question of quantification of amount of compensation on account of mental agony is concerned, it is virtually impossible to measure in monetary terms the value of emotions and sentiments, particularly so when a person is already grieving over the demise of a loved one. Timely customary cremation is one of the basic rights of an individual. In the light of observations by the State Commission as to the scene at the Airport on 28.05.2008 on account of non arrival of the body of the deceased when the relatives, including the mother of the Complainant, had come to receive the body and

the consequent delay in performance of the last rites, we feel that a cumulative effect of all these circumstances does not warrant any interference with the decision of the State Commission on the question of determination of compensation for mental agony. 12. For aforegoing reasons, the appeal deserves to be dismissed. It is ordered accordingly. 13. While issuing notice to the Complainant, by way of an interim relief, the operation of the impugned order was stayed subject to the condition that 50% of the decretal amount shall be deposited by the Airlines with this Commission within 30 days of the said order. The said amount shall be remitted to the Complainant forthwith. The balance decretal amount shall be paid by the Airlines to the Complainant within four weeks from today failing which, the said amount shall carry an interest @ 15% p.a. from the date of order of the State Commission till the date of actual payment, instead of @ 12% as directed in the impugned order. 14. Since the Respondent remains unrepresented, there will be no order as to costs.

……………...... (D.K. JAIN, J.) PRESIDENT

...... (VINEETA RAI) MEMBER

...... (VINAY KUMAR) MEMBER Yd/* NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 11.04.2008 in First Appeal No. 603/2005 of Tamil Nadu State Consumer Disputes Redressal Commission)

M/s. Sri Sarbati Steel Tubes Limited, No. 163/1, Broadway IInd Floor, Chennai – 600108.

... Petitioner

Versus

The Oriental Insurance Co. Ltd., Divisional Office VI, Bali Tower, 1st Floor, No. 1, Abdul Razack Street, Saidapet, Chennai – 600015.

… Respondent

BEFORE

PRESIDING MEMBER

For the Petitioner Mr. Sandeep Bisht, Advocate

For the Respondent Ms. R.B. Shami, Advocate

1986 against the impugned order dated 11.04.2008 passed by the Tamil Nadu State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 603 / 2005,

“Oriental Insurance Co. Ltd. versus Sri Sarbati Steel Tubes Ltd.” vide which appeal against the order dated 12.09.2005 passed by District Consumer Disputes Redressal Forum, Chennai (South) was allowed, the order of the District Forum was set aside and the consumer complaint no.

295/2003, in question was ordered to be dismissed.

2. Brief facts of the case are that the M/s. Sri Sarbati Steel Tubes Limited is a manufacturer of

Steel Tubes having its registered office at Chennai and its two factories at Pondicherry. The complainant / petitioner obtained a fire insurance policy bearing no. 411600/0/0/F/11010/2002 from the respondent / OP, Oriental Insurance Co. Ltd. (hereinafter referred to as ‘Insurance

Company’) covering the risk of building, plant and machinery against the loss / damage caused by fire, storm, tempest, flood and inundation for its two factories at Pondicherry containing the product division and tube division respectively for a period of one year from 28.05.2001 to

27.05.2002 and the total sum insured was `7,43,00,000/- at an annual premium of `1,00,055/-. On

10.05.2002, at around 4:00 PM, due to strong winds, coupled with storm and heavy rain in the factory area, more than 100 asbestos sheets were blown off from the roof and the truss of the mill section was badly damaged. The Insurance Company was duly intimated and the complainant filed two claims with the Insurance Company for the loss / damage for ` 50,000/- and `

2,50,000/- respectively. The OP appointed M/s. Crystal Surveyor, Pondicherry, who visited the factory and submitted his preliminary report to the OP. Subsequently, the OP appointed a second surveyor, Mr. S. Jagadeeswaran. The said surveyor asked the complainant to furnish estimated cost of repair to the building, shed etc. The complainant stated that a sum of

`1,81,888/- towards cost of material and `66,746/- towards cost of labour, the total being

`2,48,634/- had been spent on repairs. The bills were furnished to the surveyor. The said surveyor, in his report estimated the total loss to be `1,10,077/- for the two divisions,

`88,912.50ps. was the estimate for the tube division and `2,11,64.38ps. was the estimate for the flat division, including the labour charges. The surveyor also estimated that there was under- insurance to the extent of 51.9% in tube division and 76.8% in the flat division. After accounting for said percentage of under-insurance from the estimated value of loss / damage and after deducting `10,000/- for excess, the surveyor reported that the net liability for the Insurance

Company was `37,677/- only. The insurance company sent a loss discharge voucher for

`37,624/- by their letter dated 21.03.2003. It is the case of the complainant that the said amount was accepted under protest, whereas OP/ Insurance Company maintains that the amount was accepted by the complainant in full and final settlement. The petitioner/complainant filed the consumer complaint in question before the District Forum, claiming an amount of `2,11,014/- along with a sum of `25,000/- as compensation for mental agony and harassment and `5,000/- as cost of litigation. The District Forum after hearing the parties, passed their order on 12.09.2005, allowing the complaint and directing the OP to pay a sum of `2,11,014/- alongwith interest @

9% p.a. from 24.03.2003 till realisation with cost of `2,000/- Against this order, an appeal was filed before the State Commission and vide impugned order dated 11.04.2008, the State

Commission set aside the order passed by the District Forum and dismissed the complaint. It is against this order that the present revision petition has been made.

3. The line of argument taken by the learned counsel for petitioner says that the complainant had received the amount sent to them by the Insurance Company under protest and not as full and final settlement as stated by the OP. Learned counsel stated that deduction could not be made for under- insurance and the depreciation could also not be allowed as per the terms and conditions of the Policy. Moreover, the insurance company should not have appointed the second surveyor to make report about the loss / damage. The learned counsel stated that the order passed by the District Forum was passed on sound reasoning and should be upheld, whereas the State Commission had committed error in passing their judgement on the report of the surveyor alone.

4. On the other hand, the learned counsel for the respondent / OP stated that the report of the surveyor was based on sound reasoning and hence, it could not be brushed aside. The said report was prepared after checking the quantity of material replaced in the presence of an Assistant

General Manager of the complainant company. The learned counsel has also drawn our attention to a document issued by Insurance Institute of India, Mumbai entitled, “IC 56 Fire Insurance

Claim”.

5. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us. A perusal of the impugned order passed by the State

Commission reveals that they first dealt with the issue, whether the amounts sent by the OP to the complainant had been accepted as full and final settlement or under protest. The State

Commission reached the conclusion that in the absence of any document saying that the said amount was accepted as full and final settlement, the version of the OP could not be believed and the District Forum was right in upholding that the claim amount was not accepted as full and final settlement.

6. In so far as the quantum of compensation is concerned, the complainant had themselves given an estimate of `2,48,634/- including `66,746/- as labour charges. It is born out from the report of the surveyor however, that he made 5 visits to the premises in question before making his report, and the physical quantity of ACC sheets etc. replaced was checked in the presence of

Mr. Seshadri, AGM of the company. After taking into account the cost of the material, the labour charges, etc. the surveyor reached the conclusion that the loss assessed in the tube division was `88,912.50 and that for the flat division was `21,164.38ps. and hence the total loss was calculated to be `1,10,077/- against an estimate of `2,48,634/- provided by the complainant. The surveyor has also brought out the factum of under-insurance in this case and came out with a figure of 51.9.% under-insurance for tube division and 76.8% of under- insurance for flat division. After accounting for these factors and deducting `10,000/- for excess, the final amount of `37,677/- was calculated. It is very clear from this report that the same is based on sound reasoning and the complainant/petitioner has not been able to bring out any deficiency or inconsistency in the said report. In the document issued by the Insurance Institute of India, it has been provided that while allowing claims in Fire Insurance Claim, the factum of under-insurance has to be accounted for on pro-rata average basis.

7. Based on the discussion above, it is held that the order passed by the State Commission does not suffer from any illegality, infirmity, irregularity or jurisdictional error and does not call for any interference. The order passed by the State Commission is, therefore, upheld. The revision petition is ordered to be dismissed with no order as to costs.

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

REVISION PETITION NO. 3362 OF 2013 (From order dated 07.03.2012 in First Appeal No. 66 of 2002 of the State Consumer Disputes Redressal Commission, Bihar, Patna) WITH IA/5979/2013 IA/5980/2013 (STAY, CONDONATION OF DELAY)

1. The Bihar State Electricity Board (Known as North Bihar Power Distribution Co. Ltd.) Through the Chief Engineer (Commercial), Vidyut Bhawan, Bailey Road, Patna.

2. The Executive Engineer (Supply) Bihar State Electricity Board, (Known as North Bihar Power Distribution Co. Ltd.) Power House, Begusarai, Bihar.

3. The Assistant Engineer (Supply) Bihar State Electricity Board, (Known as North Bihar Power Distribution Co. Ltd.) Power House, Begusarai, Bihar.

4. The Assistant Engineer or Junior Engineer (Supply) Bihar State Electricity Board, (Known as North Bihar Power Distribution Co. Ltd.) Power House, Begusarai, Bihar. … Petitioners

Versus

Smt. Gayatri Devi W/o Sitaram Poodar, Mohalla Station Road, Begusarai, Bihar. … Respondent

BEFORE:

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

For the Petitioner : Mr. Mohit Kumar Shah, Advocate

Pronounced on 28 th October, 2013 ORDER PER DR. S.M. KANTIKAR

1. The Petition has been filed by the Petitioner, Bihar state Electricity Board, before this Commission. The Petition is filed against the impugned order passed by the State Consumer Disputes Redressal Commission, Bihar, Patna, (in short, ‘State Commission’) in Appeal No. 66/2002. The State Commission dismissed the Appeal and upheld the order of the District Consumer Disputes Redressal Forum, Begusarai, Bihar (in short, ‘District Forum’) in Complaint Case No. 29/1999.

2. Brief facts of this case ; complainant Smt. Gayatri Devi, who was running her flour Mill at Begusarai, obtained electrical connection from the OP- Bihar State Electricity Board, under minimum guarantee scheme. Accordingly, it was an obligation of Board to supply electricity for a particular period of time without any break, but the Board failed to supply continued electricity and therefore, the Board is not legally authorized to charge electrical consumption bill on the basis of minimum guarantee tariff. But officials of the OP had issued inflated amount of the bills, on the basis of minimum guarantee charges, as well as in respect of fuel charges, which were not permissible under the law. Therefore, alleging deficiency in service the complainant filed a complaint before District Forum.

3. The District Forum after recording the evidence and on verification of several documents, concluded that the transformer was defective which had not been supplying electricity regularly, the bill was for the energy charge for a period commencing from 1996 to 1998. The District Forum partly allowed the complaint and directed the OP to provide revised electric bills to the Complainant for actual consumption and the fuel surcharge is also to be revised on the basis of Minimum Guarantee Charges. The fuel surcharge is also to be revised on the basis of actual consumption charges and that as per the revised electric bill, the line should be restored immediately.

4. Against the order of District Forum, OP preferred an appeal No. 66 of 2002 before State Commission. The State Commission dismissed the appeal.

5. Aggrieved by the order of State Commission , OP filed this revision petition.

6. There is a delay of 92 days, in filling this Revision Petition. The Petitioner filed an application for condonation of delay and explained the reasons for the delay, as follows: 1. “The receipt of the copy of the impugned order was not brought to the knowledge of the official concerned of the Revision Petitioner who on account of being on leave during the time period when a copy of the impugned order was received and thereafter, could not bona fide takes necessary action of time.

2. Subsequently the Counsel for Revision Petitioner in bona fide belief that the copy of the impugned order was yet to be received by the Revision Petitioner applied for the same and received the same on 07.05.2013.

3. Upon receipt of the copy of the impugned order, the Counsel for the Revision Petitioner came to know that a copy of the Order had already been sent directly to the office of the Revision Petitioner on 03.04.2013.

We are not satisfied with such vague and evasive reasons for such huge delay in filing this Revision Petition. It is well settled by various judgments of Hon’ble Supreme Court and this Commission that 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 Limitation Act.

In the Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. and Anr. 2012 STPL (Web) 132 (SC), Hon’ble Supreme Court was pleased to hold: “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.”

We also, place reliance upon the following judgments:-  Anshul Aggarwal V. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC),  R.B. Ramlingam Vs. 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.

Furthermore, the C.P. Act envisages summary procedure where special period is mentioned for disposing of appeals and revision petitions. This Commission cannot adopt excessive liberal approach, which would defeat the very purpose of the C.P. Act.

7. We now, assess the merits. We have perused the evidence on record and findings of both fora below. The Complainant approached the Chairman of the electricity board, and the local officials of the board at Begusarai. But, on 08.12.1999, OP disconnected electricity line and meter was also taken away by the officials of the Board, on 01.02.2000. There was consumption of 236 and 584 units for the Month of October and November, 1999, respectively, but OP supplied bill under minimum guarantee formula for 700 units, for each month.

8. We further place reliance on the judgments of the Hon’ble Supreme Court in Civil Appeal no. 2247 of 2001 in the case of M/S K.D. Industries, etc., v/s Bihar State Electricity Board and M/S Bajaj Petro Impex (P) Ltd. (2001) 4 SCC 210, which are not applicable to this case.

9. Reliance is also placed on the judgment of Patna High Court’s Division Bench in similar case, reported in M/s Pulak Enterprises 2001 (3) PLJR,552, wherein it held;

“ Electricity (Supply) Act, 1948-Section 49 Clause 16.10 of tariff Notification – fixing rate of fuel surcharge under clause 16.10 is different from fixing the tariff under section 49- even though fuel surcharge do not stand on part though rates of consumption charges are based on objective materials, there is enough scope for flexibility in fixing the rates – fixation of fuel surcharge involves arithmetical accounting and there is no scope for exercise of any discretion of flexibility.”

10. Therefore, we find no ground to interfere with the concurrent findings of the both fora below. The instant Revision Petition is devoid of merit and the same is, therefore, dismissed both on the grounds of delay as well as on merits. No order as to costs.

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

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

FIRST APPEAL NO. 355 OF 2013 (Against the order dated 11.03.2013 in Complainant No. 49/03 of the State Commission, Delhi)

Delhi Development Authority Through its Vice Chairman Vikas Sadan, I.N.A. New Delhi ...... Appellant Versus Pramod Pal Singh S/o Shri Lajinder Singh, C-66, Malviya Nagar, New Delhi- 110017 ….Respondent

FIRST APPEAL NO. 386 OF 2013 (Against the order dated 11.03.2013 in Complainant No. 49/03 of the State Commission, Delhi)

Shri Pramod Pal Singh S/o Shri Lajinder Singh, C-66, Malviya Nagar, New Delhi- 110017 ...... Appellant

Versus Vice-Chairman, Delhi Development Authority, Vikas Sadan, INA, New Delhi ….Respondent

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

For Mr. Pramod Pal Singh : Mr. Lajinder Singh, Authorised Representative

For Delhi Development Authority : Ms. Arti Bansal, Advocate

PRONOUNCED ON: 28th October, 2013.

PER MR. VINAY KUMAR, MEMBER

These are two cross appeals, one filed by the Complainant/Pramod Pal Singh and the other by the OP/Delhi Development Authority. The case of the complainant before the State Commission was that he had purchased a flat from the DDA in 1996. Despite paying Rs.3,98,100/- as against the total sale consideration of Rs.3,36,840/- during 1996 itself, possession of the flat, in a habitable condition, was not given to him. As per the Consumer Complaint filed before the State Commission— “6. That these units are inhabitable due to the lack of basic amenities and in spite of the complainant writing to the opposite party for the status of the basic amenities available on 12.2.96, 25.1.97, 8.3.97, 8.4.97, 2.6.97, 4-10.97, 31.8.2000, 31.10.2000, 7.3.2001, 17.9.2001, 1.10.2001, 20.12.2001 and 25.2.2002 besides visiting their offices a number of times but the opposite party has indulged in befooling the complainant that these are available where in none of these is available at site and all the houses are in a depleted stage devoid of even their doors, fittings etc. as has been conveyed by the complainant to the opposite party on 21.1.2002 by paying a visit to the site and the same has not been rebutted by the opposite party. Complainant has visited the house for the last six years but there is no development whatsoever for all these years.”

He therefore, sought the following relief—

“1. That the complainant be awarded Rs.10000/- per month towards loss suffered by him w.e.f. 1.2.96 till the habitable property in question is handed over to him. This comes to Rs.710000/- on 31.12.2002.

2. That Rs.20000/- be awarded as costs of correspondence and visits to the opposite party for all these years.

3. That excess amount recovered/paid by opposite party be refunded with 24% p.a. interest thereon till payment to the complainant.

4. That any excess stamp duty increase w e f 1.2.96 shall be on account of opposite party as this delay is solely on account of the opposite party.

5. That Rs.1 lakh be awarded towards mental torture and harassment suffered all these years by the complainant in the hands of the opposite party.

6. Rs 5000 towards the cost of this case.”

2. The State Commission allowed the complaint and awarded compensation of Rs 3 lakhs, observing that— “ The defects which have been pointed out by the complainant in the flat allotted to him are substantial and cannot be said to be minor or cosmetic. Obviously, by the action of the DDA, the complainant could not take the possession of the flat in question on account of the callous and inapt attitude of the officers of the DDA leading to the complainant to reside in the rented house. The complainant is deprived of possession of the house w.e.f. 1.2.96 and till today, the property in question, has not been made habitable by the callous attitude of the DDA.The complainant has claimed a loss of Rs.7,10,000/- upto 31.12.02 and thereafter Rs.10,000/- p.m. interest thereon and also Rs. One lac as compensation for the entire relief, we quantify the amount of damages as compensation for all counts as Rs.Three lacs inclusive of the litigation charges.”

3. We have carefully considered the records submitted by the two sides in their respective appeals. Ms. Arti Bansal, Advocate has been heard on behalf of the DDA and Mr Lajinder Singh, the Authorised Representative, on behalf of the complainant.

4. The above order is assailed in the appeal filed by the complainant (FA/386/2013) primarily on the ground that “the impugned order is totally silent with the possession while the same continued to be main relief prayed in the complaint and reiterated in the interim application dated 13.9.2005. The appellant has thus been denied the main relief of possession of the property in “property circumstances” in the right earnest inspite of findings in his favour.” In this context, a perusal of the impugned order does show that in Para 11 thereof, the State Commission has given a categorical finding of fact that the defects pointed out by the complainant in the flat allotted to him are substantial and cannot be said to be minor or cosmetic. Yet, the direction given to the OP/DDA has been limited to paying a compensation of Rs.3 lakhs with interest. 5. Even during the course of arguments before this Commission, photographs of the concerned structure were presented on behalf of the appellant/complainant showing its present physical status. We were satisfied that the flat offered to the complainant was, prima facie, not habitable. However, learned counsel for the DDA stated that the flats are habitable. We were not satisfied with the statement made by the counsel. Therefore, in order to verify whether the flat is habitable or not, we appointed Mr. Gauhar Mirza, Advocate to go and inspect the flat in question as well as the building in which the flat is located and to make his report. 6. The report received from Mr Gauhar Mirza on 10.10 2013 has been considered. On the findings, it also contains supporting photographic evidence. The report clearly brings out that the structure has plaster cracks in the front and some windows have no glasses. The kitchen, the electricity panel on the staircase, the toilet and the switch box have no wiring. Several doors have no knobs on them. The photographs show that the tiles are in a highly damaged state and external plaster is falling apart in several places. Learned counsel for the DDA fairly conceded that the defects brought out in the report of the Court Commissioner, Mr Gauhar Mirza, will have to be rectified, before the flat can be considered habitable. 7. The appeal filed by the complainant also raises certain issues alleging violation of norms of construction by a neighbouring allottee. It is evident, that these issues fall within the statutory domain of the concerned authorities. They are not open to consideration in a complaint under the Consumer Protection Act, 1986 alleging deficiency in the service rendered to the Complainant. The State Commission has therefore rightly refrained from giving any directions in relation to them.

8. In the light of the details considered above, the appeal of the Complainant (FA/386/2013) is partially allowed. In addition to the relief granted by the State Commission, it is further directed that— a. The DDA shall restore the flat/structure allotted to the complainant to the physical condition it was in when the possession thereof was offered to the complainant in 2004. In particular, the defects therein, pointed out in the report of the Court Commissioner appointed by this Commission, shall be rectified. Such rectification/restoration shall be done by the DDA at its own cost.

b. After rectification/restoration as above, possession of the flat shall be handed over to the complainant within three months from the date of this order.

c. On other issues raised in the appeal, liberty is reserved for the complainant to seek appropriate remedy as per law.

9. The appeal of the DDA (FA/355/2013) is dismissed for want of merit. …..…………….Sd/-…….…… (D. K. JAIN, J.) PRESIDENT

…..…………Sd/-….…….…… (VINEETA RAI) MEMBER

…..…………Sd/-….…….…… (VINAY KUMAR) S./- NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3411 OF 2013 (From order dated 27.02.2013 in First Appeal No. 163 of 2012 of the State Consumer Disputes Redressal Commission, Kerala, Thiruvananthapuram) WITH IA/6073/2013 IA/6074/2013 (AD-INTERIM EX-PARTE, CONDONATION OF DELAY)

1. Secretary, Kerala State Electricity Board, Vyudyuthi Bhavanam, Pattom, Thiruvananthapuram, Kerala

2. The Assistant Engineer, Kerala State Electricity Board, Electrical Section, Kasaragod, Kerala … Petitioners

Versus The Manager, M/S Kallarakal Maharani Gold, Super Market, Kasaragod, Kerala … Respondent

BEFORE:

For the Petitioner : Mr. M.T. George, Advocate

Pronounced on 30 th October, 2013

1. The present Revision Petition is filed by the Petitioner, under Section 21(b) of the Consumer Protection Act, 1986 against the Judgment dated 27.02.2013 passed by the Kerala State Consumer Disputes Redressal Commission, (in short, ‘State Commission’) Thiruvananthapuram, Kerala, in Appeal No. 163/2012, whereby the Hon’ble State Commission dismissed the Appeal filed by the Petitioners. The State Commission passed the order against the judgment dated 26.08.2011 passed by the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’) Kasargod in Consumer Complaint No. 159/2010, where the District Forum allowed the complaint filed by the Respondent and cancelled the short assessment bill dated 11.05.2009 for Rs.5,33,954/- for the period from 10/2003 to 2/2009 and directed the Petitioners to issue a revised bill for the period commencing from 2/2006 to 2/2009.

2. The Complainant, Manager, M/s Kallarakal, was running a jewellery shop and was a consumer of Kerala State Electricity Board, (in short, ‘KSEB’) Kasaragod, having consumer no. 6688012487. He was regularly remitting the consumption charge bill, issued by OP. OP- 2 issued a letter stating that inspection of Anti-Power Theft Squad (APTS), on 25.03.2009, revealed that one of the meter was not functioning and the consumption was not correctly recorded. Hence, on 5/5/2009, OP issued a bill in the sum of Rs.5,33,954/-. The OP also stated in the letter that there was a deficit recording of 23% of the consumption; hence, the Complainant was bound to remit 30% of consumption more, with effect from 10/02/2003. The last date of payment for the bill was on or before, 09.06.2009. Since, it was a huge amount, the Complainant approached the Minister of Electricity and got installment facility. The Complainant also approached Consumer Grievances Redressal Forum, (in short, ‘CGRF’) Kozhikode, which rejected his complaint. Complainant contended that OP-2 did not comply with provisions of Section 126 of Indian Electricity Act, and no provisional assessment notice was issued by OP to the Complainant and the inspection was not conducted in the presence of the Complainant. The allegation that one phase of the meter was not working due to non-removal of insulation from the wire is not correct. Consumer cannot be penalized for the negligence that occurred on the part of the officials of the OPs. As per the conditions of supply of Electricity Act, OPs can claim 6 months consumption charges as an average, after rectifying the defects. But in the impugned bill, the assessment is from 10/2003, onwards. Moreover, the OPs cannot claim more than 2 years’ arrears. Hence, the complainant stated that the OPs have violated all the provisions. Since the Complainant is running a shop he was compelled to remit Rs.2,59,286/- as per the order of the Minister, to avoid disconnection. By issuing a bill for an exorbitant sum, in violation of rules, the OPs have committed deficiency in service. Hence, a complaint No.159/2010, was filed before District Forum seeking cancellation of the bill and for refund of the amount, already paid.

3. The District Forum partly allowed the complaint and directed the OPs to issue revised bill for short assessment from 2/2006 to 2/2009 and further directed OPs to adjust Rs.2,59,286/- already paid by the Complainant in that bill. Permission was granted to recover the balance amount, if any, without interest or surcharge in 10 monthly installments.

4. Hence, aggrieved by the order of the District Forum, the OP preferred an Appeal before the State Commission. The State Commission observed that the only question that arises for consideration is whether the OPs are entitled to issue short assessment bill for the period from 10/2003 to 2/2009, on the basis of KSEB Terms and Conditions of supply 2005. The said Terms and Conditions came into force with effect from 01.02.2006. Till that date there was no provision permitting the KSEB to issue short assessment bill for that portion of the energy that was not being recorded due to no fault of the consumers. Hence, the provision has no retrospective effect. Hence, the backdated bill from 10/2003 was wrong. Accordingly, the State Commission dismissed the Appeal and allowed the Complaint.

5. Against the order of State Commission, the OP filed this Revision Petition.

6. We have heard Shri M. T. Gorge, Counsel for petitioner, on the point of delay in filing this revision and on merit.

7. There is a delay of 71 days in filling this Revision Petition. The Petitioner filed an application for condonation of delay and explained the reasons for the delay, as follows:

“ That the delay occurred in the following circumstances. That he certified copy of the Impugned Order was issued to the Petitioner on 18.04.2013 and thereafter the Petitioner sent the case papers to its Legal Department for ascertaining whether it is a fit case to be agitated before this Hon’ble Commission be filling a Revision Petition. The petitioner received the Legal Opinion certifying that this is a fit case for filling Revision Petition and thereafter the case papers were sent to the office of the Secretary for obtaining sanction for filing the Revision Petition. The necessary sanction could be obtained only on 25th June, 2013. Thereafter the case papers were sent to the Petitioners Counsel at New Delhi. The Counsel received the same on 15.07.2013. The case records received by the Counsel for the Petitioner some of the relevant documents were not available in the case records. The Counsel requested the Officer in charge to furnish the documents and the same were received in the second week of September, 2013. Thereafter, the Counsel for the Petitioner immediately prepared the Revision Petition and the same is being filed today. However, in this manner there occurred a delay of 71 days in filing the Revision Petition. The said delay has occurred due to administrative reasons and not due to any laches or negligence on the part of the Petitioner.”

We are not satisfied with such vague and evasive reasons for such huge delay, in filing this revision. It is well settled by various judgments of Hon’ble Supreme Court and this Commission that condoning such delay will defeat the very purpose of Consumer Protection Act.

In case of the Chief Post Master General & Ors. Vs. Living Media India Ltd. and Anr. 2012 STPL (Web) 132 (SC), Hon’ble Supreme Court was pleased to hold:

“ 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.”

In another judgment Anshul Aggarwal V. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), where it was held that : -

It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”. The following judgments also support our view,  R.B. Ramlingam Vs. 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.

Furthermore, the C.P. Act envisages summary procedure where special period is mentioned for disposing of appeals and revision petitions. This Commission cannot adopt excessive liberal approach, which would defeat the very purpose of the C.P. Act.

8. We have perused evidence on record. The OP’s Anti-Power Theft Squad did not find any tampering with the energy meter, OP issued a short assessment bill because the ‘R’ phase of the CT Meter at the premises of the Complainant was not seen recording energy. It was due to non-removal of varnish insulation from the wire connecting the current transformer. It was the duty of the officers of the OPs to remove the varnish insulation before connecting that wire to the phase of the meter. Therefore, there was deficit recording of energy and no fault on the part of the Complainants. The OPs resisted the claim of the Complainant on several grounds. The complainant remitted Rs.2,59,286/- to avoid electricity disconnection. Also, as per High Court’s directions the Complainant approached CGRF of OP. But, CGRF rejected his request.

9. Therefore, we are of considered view that, the OPs have committed deficiency of service while providing the connection. There is no fault of the Complainant for which he should suffer unnecessarily. The OPs were not vigilant while providing the connection and for no fault of the Complainant, one phase of the meter was not recording consumption of energy, from the very inception.

10. Accordingly, we dismiss, this Revision Petition, both on the ground of delay as well as on merits.

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

……………….…………… (Dr. S.M. KANTIKAR) MEMBER Mss/19 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1947 OF 2008 (From the order dated 30.7.2007 in Appeal No. 863/2006 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

1. National Insurance Co. Ltd. Through M.D./Chairman, Regd. Office 3, Middleton Street Calcutta. 2. National Insurance Co. Ltd. Through the Branch Manager Nagaur (Rajasthan) Through Manager (Legal), National Insurance Co. Ltd. Regional Office “Jeevan Nidhi”, Bhawani Singh Road, Jaipur (Rajasthan) Through its Manager National Insurance Co. Ltd. 4th Floor, Jeevan Bharati Building, 124, Connaught Circus, New Delhi – 110001 …Petitioners/Opp. Parties Versus

Akhtar Bano W/o Mehboob Khan R/o Sipahiyon-Ka-Mohalla, Merta-City Rajasthan

BEFORE

For the Petitioner : Mr. R.C.S. Bhadoria, Advocate

For Ms. Sonia Sharma, Advocate For the Respondent :Mr. Arvind Garg, Advocate

with Mehboob Khan, husband of Respondent.

O R D E R

This revision petition has been filed by the petitioners against the order dated 30.7.2007 passed by the Rajasthan State Consumer Disputes RedressalCommission, Jaipur (in short, ‘the State Commission’) in Appeal No. 863/2006 – National Insurance Co. Ltd. Vs. Akhtar Bano by which, while allowing appeal partly, order of District Forum allowing complaint was modified.

2. Brief facts of the case are that Complainant/Respondent’s Jeep No. RJ-21/T-0884 was insured with OP/Petitioners for a period commencing from 28.12.2003 to 27.12.2004 for

Rs.4,29,400/-. Vehicle met with an accident on 24.12.2004 and the vehicle was totally damaged. Claim was submitted by the complainant to the OP which was repudiated. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that driver of the vehicle was not having a valid driving licence at the time of accident and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to pay a sum of Rs.4,07,930/- with interest

@ 9% p.a. and further allowed cost of Rs.1,000/- as litigation expenses. Both the parties preferred appeal before learned State Commission and learned State Commission dismissed appeal filed by the complainant, but partly allowed appeal filed by the OP/petitioner and amount of compensation was reduced to Rs.3,67,137/- from Rs.4,07,930/- against which, this revision petition has been filed along with application for condonation of delay.

4. This revision petition has been filed along with application for condonation of delay. Number of days has not been mentioned in the application, but as per office report, there was delay of 171 days in filing revision petition.

5. In the application for condonation of delay, petitioner submitted that copy of impugned order was received by the petitioner on 8.8.2007 and the matter was referred to the Regional

Office of the Insurance Company at Jaipur, who further referred it to Head Office at Calcutta and it was decided to file revision petition. Later on, file was sent to the Regional Office at New

Delhi, who marked the case to Counsel for preparation of the revision petition. During preparation of revision petition, it was observed that certain documents were in Hindi, which were needed to be translated in English. After receiving documents, revision petition was prepared and sent for approval. Insurance Company inserted certain changes in the draft and modified revision petition was sent to Insurance Company for signatures and then this revision petition was filed. It was further submitted that there had been some delay on the part of

Insurance Company even after exercising due diligence and pursuing the matter with all seriousness and commitment so, delay may be condoned.

6. Perusal of application for condontion of delay reveals that no date has been given in the application that when the file was sent to the Regional Office, then to Head Office, then back to Regional Office and then to the Counsel for preparation of revision petition and then to Insurance Company for signing revision petition. In the absence of any date for aforesaid purposes in the application for condonation of delay, it cannot be ascertained at what level inordinate delay was caused, but admittedly there is delay of 171 days in filing revision petition. No reasonable explanation has been given for condonation of inordinate delay of 171 days. Merely by mentioning that file was moved from one office to another office, inordinate delay of 171 days cannot be condoned.

7. As there is inordinate delay of 171 days, this delay cannot be condoned in the light of the following judgment passed by the Hon’ble Apex Court.

8. In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has been observed: “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

9. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed; “It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

10. Hon’ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd.

Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under; “ We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”

11. Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General & Ors . Vs. Living

Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government Departments.

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

– Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed as under: “ It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

13. As there is no justification for condonation of inordinate delay of 171 days, application for condonation of delay is liable to be dismissed.

14. As application for condonation of delay has been dismissed and revision petition is barred by limitation, revision petition is liable to be dismissed on the count of delay alone and we need not to decide the matter on merits.

15. Consequently, revision petition filed by the petitioner is dismissed as barred by limitation with no order 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. 3025-3027 OF 2011

(Against the Order dated 23.06.2006 in First Appeal No. 1311, 1312 and 1313 of 2006 of the State Commission, Karnataka) In Appeal No 1311/2006

N. Manohar Reddy 424,6th Block, 80 Feet Road, Koramangala, Bangalore ...Petitioner Versus 1. Happy Farm and Resorts, 24/1 Race Course Road, Bangalore- 560001 Rep by its M.D. Panchalaiah 2. V Panchalaiah, Managing Director, Happy Farms and Resorts, #24/1, Race Course Road, Bangalore – 560001 3. C.D Verghese, S/o Devsay C, #5,12th Floor, 1 Stage, Indranagar, Bangalore- 560038 .... Respondents

In Appeal No. 1312 N. Manohar Reddy 424,6th Block, 80 Feet Road, Koramangala, Bangalore ...Petitioner Versus 1. Happy Farm and Resorts, 24/1 Race Course Road, Bangalore- 560001 Rep by its M.D. Panchalaiah 2. V Panchalaiah, Managing Director, Happy Farms and Resorts, #24/1, Race Course Road, Bangalore – 560001 3. Latha Radhakrishnan, S/o Radhakrishnan, E-28/7, DRDO Complex, G. Raman Nagar Post, Bangalore – 560093

… Respondents

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Revision petitions No. 3025-3027 of 2011 arises out of common order dated 23.6.2006, passed in First Appeals No.1311-1313 of 2006 by State Consumer Disputes Redressal Commission, Karnataka(for short, ‘State Commission’) whereas, Revision Petition No.3028 of 2011 arise out of order dated 16.8.2007, passed in First Appeal No.1692 of 2007 by the State Commission. Since, common question of facts and law are involved in these petitions, as such above noted petitions are being disposed of by this common order.

2. Complainants filed consumer complaints against the Petitioner on the allegations that attracted by the Housing Scheme launched by the petitioner, they wanted to purchase plots for which certain amount was paid by way of consideration. However, there was no development of any of the plots, so they requested the Petitioner/O.P. No.2 to refund the amounts paid by them. Since, petitioner fails to refund the amount, complainants filed consumer complaints seeking refund of amounts alongwith interest. 3. Before Bangalore Urban District Consumer Disputes Redressal Forum(for short, ‘District Forum’), petitioner entered appearance through its counsel and sought time to file its version. Inspite of various opportunities granted to the petitioner, he did not place his version before the District Forum and as such District Forum proceeded in the absence of the version of the petitioner.

4. After considering the evidence produced by the complainants, District Forum, vide order dated 20.7.2004, allowed the complaint of the complainants.

5. Being aggrieved by the order of District Forum, petitioner filed appeals before the State Commission. There was delay of 631 days in filing of the Appeals No.1311-1313 of 2006, whereas there was delay of 40 days in filing of Appeal No.1692 of 2007, before the State Commission.

6. State Commission, vide impugned orders dated 23.06.2006 and 17.7.2007 respectively, dismissed all the appeals.

7. Being aggrieved by the impugned order, petitioner has filed present revision petitions. Alongwith these petitions, applications seeking condonation of delay have also been filed. However, no period of delay has been mentioned at all.

8. Be that as it may, as per office report there is delay of 1,817 days in filing of the present revision petitions.

9. Arguments on applications for condonation of delay have been heard. Petitioner has also placed on record written arguments and has also relied upon certain judgments.

10. We have perused the entire record.

11. It has been contended by learned counsel for the petitioner that after passing of the impugned order, petitioner filed Writ Petition in Karnataka High Court, which was ultimately withdrawn on 16.06.2011. Thereafter, present petitions have been filed Under these circumstances, the period which was spent in the High Court in pursing the Writ Petition,should be condoned in view of Section 14 of the Limitation Act.

12. Grounds on which condonation of delay in (RPs No.3025-3027 of 2011) has been sought are reproduced as under;

“ 3. It is submitted that after the order dated 26.6.2006, passed by the Hon’ble State Commission, the petitioners were advised to approach the Hon’ble High Court. In pursuance of this, the petitioners filed the Writ Petition No. 10192/2006 under Article 226 and Article 227 of the constitution for quashing the order on 24.07.2006. Interim order was granted.

4. It is humbly submitted that the Hon’ble High Court, by its order dated 16.6.2011, disposed of the Writ Petition with liberty to approach the proper forum and seek alternative remedy under Consumer Protection Act,1986. The Hon’ble High court in its order dated 16.6.2011 also observed that it shall be open to the petitioners to seek condonation of delay for the period during which the instant Writ Petition remained pending before the Hon’ble High Court.

5. The petitioner submits that the petitioner has filed the Writ Petition which was pending from 24.07.2006 to 16.06.2011. The Petitioner was bonafide pursuing his writ petition with due diligence and therefore time taken for pursuing another remedy in a wrong forum be excluded while computing the period of limitation.

5. It is therefore humbly submitted that the delay in filing the revision petition is neither intentional nor deliberate but because of the reasons as explained above.

PRAYER:-

In the circumstances, it is prayed that this Hon’ble Commission may be pleased to:-

a) Condone the delay of days in filing revision petition to appeal against the judgment and order dated 23.06.2006 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore in Appeal No. 131,1312, 1313/2008”. 13. Relevant provision of Section 14 of the Limitation Act, read as under ;

“ S.14. Exclusion of time of proceeding bona fide in court without jurisdiction -- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it”.

(3) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

14. Apex Court while interpreting Section 14 of the Limitation Act, in Ghasi Ram & Ors. Vs. Chait Ram Saini & Ors., (1998) 6 SCC 200 has held; “5. A perusal of the aforesaid provision would show that in order to get the benefit of sub-section (1) of Section 14 of the Act, the party seeking its benefit must fulfill the following four conditions :

(1) The plaintiff who filed the suit had been prosecuting another civil proceeding with due diligence. (2) The earlier proceeding resorted to by the plaintiff was based on the same cause of action.

(3) The former proceeding was prosecuted by the plaintiff in good faith in a court.

(4) The court, due to the defect of jurisdiction or other cause of a like nature, was unable to entertain such proceeding.”

15. Thus, it is well settled that the real purpose of Section 14 of the Limitation Act, is to extend the period of limitation prescribed by adding the period during which the suit or other proceeding has been prosecuted with due diligence and in good faith in a Court which either on account of defect of jurisdiction or other cause of a like nature, was unable to entertain it.

16. This section does not help a person who is guilty of negligence, laches or inaction. The test of good faith is real and bonafide belief of the plaintiff that he could institute the proceedings in the Court where he first instituted it.

17. The question material for the purposes of Section 14 of the Limitation Act is, whether given due care and attention, the plaintiff could have acted otherwise than he did. The burden of proving his case within the section lies on the plaintiff. Where he fails to satisfy this initial burden, the burden does not shift to the defendant to show the contrary.

18. In Suppiah Chettiar Vs. Chinnathurai, AIR 1957 Madras 216, where a proceeding under the workmen’s Compensation Act was withdrawn voluntarily by an applicant with the permission of the Commissioner and subsequently a civil suit was brought, it was held that;

“Section 14 of the Limitation Act could not be invoked to save the suit from the bar of limitation”.

19. In the present case, petitioner while pursuing his Writ Petition in the High Court for about 5 years, all of a sudden pleaded “that the Petitioner has an efficacious alternative remedy under the provisions of Consumer Protection Act, 1986. As such, it is submitted that the Petitioner may be relegated to the alternative remedy”.

20. Petitioner has nowhere pleaded at all that he was pursuing the Writ remedy with due diligence and how after pursuing the Writ remedy for a long period of 5 years, he suddenly woke up. There is no explanation to this effect at all. Thus, apparently the petitioner is not entitled to the benefit of Section 14 of the Limitation Act. 21. In K. Rajiv and M/s. Kamla Builders and others, Civil Appeal No. 11431-11434 of 2011, Apex Court observed;

“The question whether the High Court can directly entertain the writ petition under Article 226 of the Constitution against the order passed by the State Commission ignoring that the aggrieved party is entitled to avail statutory remedy of appeal under Section 19 of the Act was recently considered in Civil Appeal No.10706 of 2011 Nivedita Sharma vs. Cellular Operators Association of India and others decided on 07.12.2011 and answered in negative. The relevant portions of that order are extracted below:-

There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation- L. Chandra Kumar v. Union of India (1997) 3 SCC 261. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a qua si-judicial body / authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

In Thansingh Nathmal v. Superintendent of Taxes AIR 964 SC 1419, this Court adverted to the rule of self-imposed restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed:

"The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."

In Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433, this court observed ;

"It is now well recognized that where a right or Liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 CBNS 336 : 141 ER 486 in the following passage:

'... There are three classes of cases in which a liability may be established founded upon a statute ...... But there is a third class,viz., where a liability not existing at common law is created by statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.'

The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 : (1918-19) All ER Rep. 61 (HL) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd 1935 AC 532 and Secy. of State v. Mask and Co. (1939-40) 67 IA 222 : AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."

In Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536, B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed:

"So far as the jurisdiction of the High Court under Article 226 or for that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment."

In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishadnow Zila Parishad, Muzaffarnagar AIR 1969 SC 556, it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge.

It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Superintendent of Taxes (supra)and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for rederssal of grievance still hold field.

In the light of the above, we shall now consider whether the Division Bench of the High Court committed an error by entertaining the writ petition filed by the respondents.

The 1986 Act was enacted for better protection of the interests of consumers by making provision for the establishment of consumer councils and other authorities for the settlement of consumer disputes.The object and purpose of enacting the 1986 Act is to provide for simple, inexpensive and speedy remedy to the consumers who have grievance against defective goods and deficient services. This benevolent piece of legislation intended to protect a large body of consumers from exploitation. Prior to the 1986 Act, consumers were required to approach the Civil Court for securing justice for the wrong done to them and it is a known fact that decision of the litigation instituted in the Civil Court could take several years. Under the 1986 Act, the consumers are provided with an alternative, efficacious and speedy remedy before consumer forums at district, state and national level.

In Fair Air Engineers Pvt. Ltd. v. N.K. Modi (1996) 6 SCC 385,this Court referred to the judgment in Lucknow Development Authority v. M.K. Gupta(1994)1 SCC 243 and observed:

"Accordingly, it must be held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the Provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. The Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy."

In Charan Singh v. Healing Touch Hospital (2000) 7 SCC 668, this Court observed:

"Consumer Protection Act is one of the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. The Act provides for an alternative system of consumer justice by summary trial. The authorities under the Act exercise quasi-judicial powers for redressal of consumer disputes and it is one of the postulates of such a body that it should arrive at a conclusion based on reason. The necessity to provide reasons, howsoever, brief in support of its conclusion by such a forum, is too obvious to be reiterated and needs no emphasising. Obligation to give reasons not only introduces clarity but it also excludes, or at any rate minimizes, the chances of arbitrariness and the higher forum can test the correctness of those reasons. Unfortunately we have not been able to find from the impugned order any reasons in support of the conclusion that the claim of the appellant is 'unrealistic' or 'exaggerated' or 'excessive'. Loss of salary is not the sole factor which was required to be taken into consideration.

While quantifying damages, consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard-and-fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge."

Section 17(1)of the 1986 Act which outlines the jurisdiction of the State Commission and Section 19 which provides for an appeal against the order of the State Commission read as under:

"Section 17. 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; and

(ii) appeals against the orders of any District Forum within the State; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the Stat Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.

(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,-

(a) the opposite party or each of the opposite

parties, where there are more than one, at the

time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain;

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not resides, or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or

c) the cause of action, wholly or in part, arises.

Section 19. Appeals -Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause(a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:

Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent, of the amount or rupees thirty-five thousand, whichever is less."

A reading of the plain language of Section 17 shows that every State Commission has the jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs. 20 lacs but does not exceed Rs. 1 crore. By Section 18 the provisions of Sections 12 to 14 and the Rules made thereunder, for the disposal of complaints by the District Forum, have been made applicable for deciding the disputes by the State Commission. 19 provides for remedy of appeal against an order made by the State commission in exercise of its powers under sub-clause (i) of Clause (a) of Section 17. If Sections 11, 17 and 21 of the 1986 Act which relate to the jurisdiction of the District Forum, the State Commission and the National Commission, there does not appear any plausible reason to interpret the same in a manner which would frustrate the object of legislation.

What has surprised us is that the High Court has not even referred to Sections 17 and 19 of the 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of statutory remedy of appeal to the respondents.

By applying the ratio of the order passed in Nivedita Sharma vs. Cellular Operators Association of India & others to the case in hand, we hold that the Division Bench of the High Court committed serious error by entertaining the writ petitions filed by the respondents ignoring that they could have availed an equally efficacious remedy of filing an appeal under Section 19 of the Act.”

22. Further, in this context, it would be pertinent to refer to a decision of Hon’ble Supreme Court in “M/s Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal (Civil) Nos. 17068-17069/2010, decided on 9 July 2010), in which it has observed interalia as under;

“ … … We are further of the view that the petitioners’ venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction”.

23. Hence, in view of the above decisions of the Apex Court, the High Court ought not to

have entertained the writ petition, since petitioner had an effective alternate remedy available

under the Consumer Protection Act, 1986.

24. Now question to be seen is as to whether there are sufficient grounds for condonation of

delay. 25. It is well settled that “sufficient cause” for non- appearance in each case, is a question of fact. Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, has held; “ No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non-appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen.”

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. Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and

Haryana 45, it has been laid down that; “There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

28. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court 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.”

29. Recently, Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that; “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras.”

30. Decision of Anshul Aggarwal (supra) has been reiterated in Cicily Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon’ble Supreme Court observed; “ 4 This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s). 5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay. 6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay”.

31. Under these Circumstances, act of petitioner in approaching a wrong forum, will not entitle him to have the delay condoned. Accordingly, we find no just and sufficient cause to condone the long delay of 1817 days in filing of the present petitions. Applications for condonation of delay being without any merit as well having no legal basis are not maintainable.

32. Further, petitioner from day one has been conducting this litigation with sole motive of delaying the matter. As already stated above, before the District Forum, petitioner entered appearance through its counsel and sought time to file its version. Inpsite of various opportunities granted to the petitioner, he did not place its versions. Under these circumstances, the District Forum had no option but to proceed in the absence of the version of the petitioner. 33. After getting adverse findings form the District Forum, Petitioner took 631 days for filing the appeals before the State Commission. The State Commission, rightly dismissed the appeals of the petitioner on the ground of long delay observing as under; “There is a delay of 631 days in filing these appeals. The reason given by the appellant for condonation of delay is that he has not been served with the notice issued by the DF. In order to ascertain the truth or otherwise of the fact we called for the records. Accordingly, records have been received. From the records, it is found the appellant has been served with the notice. The acknowledgement for having service the notices is also available in the records. The advocate also filed power on behalf of OPs 1,2 and 3 and contested the case. If that is so, the reasons given for condonation of delay do not constitute sufficient cause. In the result we pass the following; ORDER Appeals are dismissed”.

34. Thus, only motive of the petitioner is to delay the proceedings and to deprive the respondents/complainants of the fruits of the award passed by the District Fora more than 9 years ago.

35. It is well settled that those litigants whose only motive is just to delay the proceedings and to cause hindrances must be dealt with heavy hands.

36. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed; “ Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system”.

37. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors., Civil Appeal

Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ; “45. We are clearly of the view that unless we ensure that wrong –doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.

46. Usually the court should be cautious and extremely careful while granting ex- parte ad interim injunctions. The better course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass suitable biparte orders. Experience reveals that ex-parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare. Therefore, as a rule, the court should grant interim injunction or stay order only after hearing the defendants or the respondents and in case the court has to grant ex-parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne profits.

47. If an ex-parte injunction order is granted, then in that case an endeavour should be made to dispose of the application for injunction as expeditiously as may be possible, preferably as soon as the defendant appears in the court.

48. It is also a matter of common experience that once an ad interim injunction is granted, the plaintiff or the petitioner would make all efforts to ensure that injunction continues indefinitely. The other appropriate order can be to limit the life of the ex-parte injunction or stay order for a week or so because in such cases the usual tendency of unnecessarily prolonging the matters by the plaintiffs or the petitioners after obtaining ex-parte injunction orders or stay orders may not find encouragement. We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have heardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.

49. It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers.

50. Learned Amicus articulated common man’s genera impression about litigation in following words :

“Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.”

38. In view of the above discussion we are clearly of the opinion that present petitions are nothing but gross abuse of the process of law which are required to be dismissed with punitive costs. Accordingly, we dismiss all the above noted petitions with punitive costs of Rs.50,000/- (Rupees Fifty Thousand Only) each. 39. Out of the costs imposed upon the petitioner, Rs.25,000/-(Rupees Twenty Five Thousand only) each be paid to the each respondent/complainant by way of demand draft in their respective names. Remaining costs of Rs.25,000/- (Rupees Twenty Five Thousand only) be deposited by way of demand draft in the name of “Consumer Legal Aid Account” of this Commission, within one month from today. 40. In case, petitioner fails to deposit the aforesaid costs within the prescribed period, they shall also be liable to pay interest @ 9% p.a., till realization.

41. Costs awarded to the respondents shall be paid to them, only after expiry of the period of appeal or revision, preferred if any. 42. List on 6.12.2013 for compliance. …………………..………..J (V.B. GUPTA)

PRESIDING MEMBER

…………………..………..

(REKHA GUPTA)

MEMBER

SSB/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

Smt Bala Devi Widow of Late Hawa Singh Resident of H No. 73 Village Dhandhlan Post Office Dighal Teshil Beri District Jhajjar, Haryana

Petitioner

Versus

Metlife India Insurance Company Ltd. 1st India Palace, Near Sahara Mall Mehrauli Road, Gurgaon, India Through its Regional Manager Ajit son of Shri Rati Ram Resident of Panna Mulyan, Dighal District Jhajjar, Haryana

Respondents

BEFORE:

For the Petitioner Mr Rajiv Mangla, Advocate

Pronounced on October 2013

ORDER REKHA GUPTA

Revision petition no. 2958 of 2013 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the order dated 28.05.2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (‘the State Commission’) in First Appeal no. 298 of 2011.

The facts of the case as gleaned from the order of the District Consumer Disputes Redressal Forum, Jhajjar (‘the District Forum’) are that the complaint has been filed by the petitioner with the averments that the husband of the petitioner Hawa Singh has purchased a life insurance policy from the respondent no. 1 – Met Life Insurance Company (in short, ‘the insurance company’) through respondent no. 2 – Ajit Singh under plan MET GROWTH for a sum of Rs.1,20,000/- on 29.12.2008 and the petitioner being the nominee is legally entitled for the benefits qua the policy after death of her husband on 26.03.2009 who had expired due to sudden cardiac arrest (heart attack). It was averred that the petitioner as per the assurance submitted all the necessary documents to the insurance company for settlement of her claim but the claim was repudiated by the insurance company without any legal justification vide letter dated 24.11.2009. It was averred that the claim was rejected on false grounds of concealment of true state of health by the assured at the time of agreement and signing the proposal form and also that the insured was suffering from ‘Pleural Effusion’ since 2007. It is averred that the repudiation is not legally justified and the petitioner has sought payment of Rs.1,20,000/- along with interest, compensation and litigation expenses.

The District Forum while allowing the complaint, “ordered the respondent no.1 – insurance company to pay a sum of Rs.1,20,000/- to the petitioner along with interest @ 9% per annum from the date of death of life assured i.e., 26.03.2009 till its actual realisation along with Rs.2,000/- as cost of litigation which the petitioner has to bear for the present unwanted and unwarranted litigation only due to the deficiency in service on the part of the respondent. Accordingly, the complaint is allowed”.

Aggrieved by the order of the District Forum, the insurance company filed an appeal before the State Commission. The State Commission came to the conclusion that “the life assured had concealed material particular about his health. The life assured was suffering from ‘Pleural Effusion’ disease before taking the policy. Thus life assured had certainly concealed material particular with respect to his health. Therefore, the life assured was stated to have given in correct history by concealing material particulars about this health and consequently secured the policy.

The District Forum passed the impugned order by ignoring all these aspects and as such the impugned order being an illegal one cannot be sustained.

For the reasons recorded above, this appeal is accepted, the impugned order is set aside and the complaint is dismissed”.

Hence, the present revision petition. Along with the present revision petition an application for condonation of delay has been filed. In the application for condonation of delay the number of days of delay have not been mentioned. However, as per the office report, there is a delay of 352 days. The reasons given for the delay in the application for condonation of delay are as under:

 The petitioner is an illiterate and very poor lady. She was not aware that the unfounded impugned order can still be challenged through the revision petition before the National Commission.  During summer vacations on 25.06.2013, the counsel noticed crying of the petitioner widow, outside the gate of the Supreme Court. When asked, she told about this case. Ultimately, she was told to meet with the case file next month after summer vacations.  On 04.07.2013, the petitioner widow showed the concerned file records to the counsel, who after perusing the case file and seeing the merits, assured her to conduct her case, for no advocate fee, before this Commission against the erred judgment of the State Commission. So this is the day when it came to knowledge in reality to the petitioner that a revision could be filed before the Commission.

We have heard the learned counsel for the petitioner and have gone through the records. The only reasons given in the application for condonation of delay and also argued by the counsel for the petitioner is that the petitioner is an illiterate and poor lady and was ignorant of the fact that she could file the revision petition before the National Commission till the counsel so advised her on 04.07.2013. He argued that the limitation should be counted from 04.07.2013 and not from the date of the impugned order, i.e., 28.05.2012.

The petitioner have failed to give reasons for the day-to-day delay. The petitioner has failed to provide ‘sufficient cause’ to condone the delay of 352 days. This view is further supported by the following authorities:

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

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 352 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with no order as to cost.

..………………………………

[ V B Gupta, J.]

………………………………..

[Rekha Gupta]

(From the order dated 16.01.2012 of the Odisha State Consumer Disputes Redressal Commission, Cuttack in First Appeal no. 590 of 2009)

Shantilata Das CL 23, V S S Nagar Bhubneshwar – 7 District Khurda Lawful attorney of Shri Sangram Keshari Das

Petitioner

Versus

ICICI Bank Ltd 184, 3rd Floor, Kedarson Building Janpath Kharvela Nagar Unit -3, Bhubneshwar – 1

Respondent

BEFORE:

For the Petitioner Mr Biraja Mahapatra, Advocate

ORDER REKHA GUPTA

Revision petition no. 3544 of 2013 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the order dated 16.01.2012 of theOdisha State Consumer Disputes Redressal Commission, Cuttack (‘the State Commission’) in First Appeal no. 590 of 2009.

The facts asgleaned from the order of the District Consumer Disputes Redressal Forum, Khurda, Bhubneshwar (‘the District Forum’), are that the petitioner was the legal attorney of Shri Sangram Keshari Das. Shri Das had purchased a car (Travera) bearing registration no. OR – 02 AD1710 to maintain his livelihood for a sum of Rs.6,80,850/- availing finance of Rs.5,47,000/- from the respondent – the Bank. The same had to be repaid in 60 EMIs at the rate of Rs.10,725/-. The loan amount was being repaid regularly and the loanee could not pay the three EMIs from 01.12.2006 to 01.02.2007. The loan was to be liquidated by 01.10.2009. On 07.02.2007. A demand was made by the Bank that a sum of Rs.33,525/- was due to be paid towards the loan amount. The petitioner wanted to deposit this amount but it was not accepted by the Bank. In the meantime, the vehicle was repossessed by the Bank on account of outstanding dues payable by the petitioner and the hypothecation agreement was also terminated. The repossession of the vehicle was made unlawfully by the help of muscle men without prior notice, hence, the petitioner was entitled to get compensation. It was further stated in the complaint that the loanee had made the down payment of Rs.1,20,000/- at the time of taking the loan and paid 14 EMIs from 01.11.2004 to 01.12.2005 at the rate of Rs.10,725/-. Then the Bank voluntarily granted top up loan of Rs.60,000/- and the entire loan was fixed to be paid in 10 EMIs at Rs.11,175/- each. Thus after repayment of the loan, the seizure of the vehicle having been made and the case has been filed.

The case of the Bank according to their written version is that the Bank released the loan amount of Rs.5,13,500/- with the agreement to repay the same at the rate of Rs.11,175/- in 60 EMIs. The petitioner was defaulter of Rs.44,700/- till 01.02.2007 i.e., four instalments. Hence, the vehicle was repossessed rightly and subsequently it was sold by the Bank to realise the loan dues.

The District Forum while allowing the complaint gave the following order:

“ The complaint is hereby allowed ex parte against the Bank and dismissed ex parte against OP no. 2. The Bank is directed to refund the balance sale proceeds to the petitioner in respect of the vehicle which was sold after taking repossession having adjusted the sum of Rs.44,700/- towards the loan amount which was said to be due from the petitioner. The Bank is further directed to pay compensation of Rs.5,000/- to the petitioner for having repossessed the vehicle with the help of muscle men without any prior notice to the petitioner and detained the sale proceeds in respect of the vehicle after selling the same for a long time. Litigation cost is assessed at Rs.1,000/-. The entire sum be paid by the Bank within one month from the date of communication of this order, failing which they shall pay interest at the rate of 9% per annum over the entire amount till the date of payment”.

Aggrieved by the order of the District Forum, the respondent – Bank filed an appeal before the State Commission. The State Commission in their order observed that, “when the appeal was taken up for hearing nobody appeared on behalf of the petitioner/ complainant. Learned counsel appearing on behalf of the Bank submitted that the petitioner is in no way connected with the hirer of the vehicle Sangram Keshari Das. She is the wife of one Sisir Kumar Das. The relationship of Sangram Keshari Das, who had availed the loan with the present petitioner Shanti Lata Das is not known, nor has it been disclosed. He submitted that when admittedly there was default in payment of the EMI as per the agreement entered into between the loanee and the Bank, the Bank was empowered to repossess the vehicle, and for realisation of the outstanding loan amount, the Bank being the owner of the vehicle and the person to whom the finance was made being the hirer, had every right to sell the vehicle. That is what has happened in the present case.

We entirely agree with Mr Das and in our considered opinion, no deficiency has been committed by the Bank in the matter of repossession and sale of the hypothecated vehicle, and the impugned order passed by the District Forum cannot be sustained.

In the result, therefore, we allow the appeal, set aside the impugned judgment and order dated 19.11.2008 passed by the District Forum, Khurda at Bhubaneswar in CD case no. 124 of 2007 and direct dismissal of the said CD case.

LCR be sent back forthwith”.

The impugned order was passed on 16.01.2012 and the revision petition was filed on 03.10.2012. As per the office report, there is a delay of 536 days. However, no application for condonation of delay has been filed.

We have heard the learned counsel for the petitioner and have also gone through the records of the case carefully. Counsel for the petitioner still argues that there is no delay in filing the revision petition and has drawn our attention to paragraph 9 of the revision petition wherein it has been stated that “the petitioner’s counsel on 13.08.2013 wanted to ascertain the position of the case as he had never received any notice from the State Commission. On inquiry if transpired only on that day that the matter was decided on 16.01.2012 by the State Commission headed by Justice A K Samantray”.

However, there is an office report on the record. This is based on the report received from the State Commission, Odisha. Secretary, Odisha State Commission in his letter dated 09.10.2003 has intimated that the free copy of the impugned order dated 16.01.2012 passed in appeal no. 590 of 2009 was collected by the appellant’s advocate on 20.01.2012 and sent to the Shantilata Das the petitioner immediately on 01.03.2012. If the limitation is to be calculated from 01.03.2012, the date on which the certified copy of the order was sent by post by the State Commission, then also there is a delay of 491 days. Counsel for the petitioner has failed to explain the delay.

The petitioner has failed to give reasons for the day-to-day delay. The petitioner has failed to provide ‘sufficient cause’ to condone the delay of 491 days. This view is further supported by the following authorities:

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

Accordingly, we find that there is no ‘sufficient cause’ to condone the long delay of 491 days in filing the present revision petition. Consequently, the present revision petition being time barred by limitation and is dismissed with a cost of Rs.10,000/- (rupees ten thousand only).

Petitioner is directed to deposit the cost of Rs.10,000/- by way of demand draft in the name of ‘Consumer Legal Aid Account of this Commission’ within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 6th December, 2013 for compliance.

..………………………………

[ V B Gupta, J.]

………………………………..

[Rekha Gupta]

Krishan Singh Son of Shri Inder Singh Resident of House no. 272/ 26 8 Marla Colony Tehsil and District Panipat Haryana

Petitioner

Versus

Future General Insurance Co. Ltd., Shop No. 15, Jai Mata Market Gohana Road Panipat Through its Manager

Divisional Manager MD, Future General Insurance Co. Ltd., Dr Gopal Dass Bhavan 8th Floor, Barakhamba Road Connaught Place New Delhi

Respondents

BEFORE:

For the Petitioner Mr Gautam Godara, Advocate along with

Petitioner – IN PERSON

REKHA GUPTA

Revision petition no. 2717 of 2013 has been filed under section 21 of the Consumer Protection Act, 1986 against the impugned order dated 09.09.2011 in First Appeal no. 1763 of 2010 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (additional bench) (‘the State Commission’).

The brief facts of the case are that the petitioner/complainant purchased a Splendor Plus Motorcycle bearing registration no. HR 06 S 6031 from oneParamjeet and got the same insured with OPs for Rs.38,000/- for the period from 09.09.2009 to 08.09.2009, vide policy & certificate no. 2008-V 2006 1933 – FTW and cover note no. A 0846506. When the petitioner parked the above said motorcycle under the flyover, Assandh Road, Panipat after locking it on 28.11.2008, the same was stolen by some unknown person. The petitioner informed the policy of PS City Panipat in this regard immediately but the police registered the case on 03.12.2008. The petitioner also informed the respondents/ opposite parties regarding the theft of the motorcycle on the same day and complete the requisite formalities including submission of untraceable report dated 10.04.2009 but the respondents have not settled his claim so far despite repeated requests.

Respondent no. 2 / OP 2 repudiated the claim on the ground of non-insurable interest of Paramjeet Singh who was insured of OP 2 and had already sold the vehicle to the petitioner/complainant on 05.09.2008 but the policy still existed in the name of insured Paramjeet Singh. Thus the insured had violated the terms and conditions of the policy. Hence, the petitioner was not entitled to any claim. Respondent no. 2/ OP 2 denied any deficiency in service on their part.

The District Consumer Disputes Redressal Forum, Panipat (‘the District Forum’) while allowing the complaint ordered as under:

“We hereby allow the present complaint with the direction to the OPs to pay Rs.34,000/- to the complainant with interest at the rate of 9% per annum from the date of filing of this complaint till its realization. Cost of litigation to the sum of Rs.2,200/- is also allowed to be paid by OPs to the complainant. The order shall be complied with within a period of 30 days from the date of announcement of this order”.

Aggrieved by the order of the District Forum, the respondents / OP 1 and 2 filed an appeal before the State Commission. The State Commission vide its order dated 09.09.2011 came to the conclusion that:

“It is an admitted case between the parties that motorcycle bearing registration no. HR 06 S 6031 stolen by some unknown persons on 28.11.2008 when it was parked under the Flyover, Assandh Road Panipat, Learned counsel for the appellants/ opposite parties has assailed the validity of the impugned order on the ground that on the date of alleged theft the registration certificate as well as insurance policy stands in the name of its previous owner ParamjeetSingh and appellants/ opposite parties are not liable to pay any insurable benefits to the complainant.

Having considered the facts and circumstances of the case we feel that the learned District Forum has committed great error while accepting the complaint by ignoring the actual and factual position on record because on the date of alleged that of motorcycle in question the complaint was not the owner of the motorcycle and insurance policy also stands in the name of Paramjeet Singh from whom the said motorcycle was purchased by the complainant. As such impugned order under challenge is not sustainable in the eyes of law.

Accordingly, the appeal is accepted, impugned order is set aside and complaint is dismissed”. Hence, the present revision petition.

Along with the present revision petition an application for condonation of delay of 26 days has been filed. However, as per the office report, there is a delay of 531 days. The impugned order was passed on 09.09.2011 and the revision petition has been filed on 22.07.2013. The reasons given in the application for condonation of delay are as under:

 The impugned order was passed by Hon’ble State Commission on 09.09.2011 and certified copy was supplied to the counsel on 09.11.2011. It is submitted that counsel for the petitioner at Chandigarh failed to communicate about the impugned order to the petitioner and later on when petitioner contacted him to know about the status of appeal, petitioner was informed of the impugned order. Thereafter, he immediately applied for a certified copy of the impugned order on 26.03.2013 and was delivered on the same day. Since First Appeal was allowed 2 years back the counsel for the petitioner failed to deliver the record of the appeal to the petitioner and accordingly petitioner procured the record from his District Court Counsel and accordingly, came down to Delhi on 15.07.2013 and met his counsel. After perusing the papers present revision petition was drafted and filed on today. It is submitted that there is some delay in filing the present petition which is not intentional and deliberate one on the part of the petitioner and same is liable to be condoned in the interest of justice otherwise petitioner will suffer irreparable loss and hardships.

We have heard the learned counsel for the petitioner as well as the petitioner in person and have also gone through the records of the case.

The petitioner has failed to give reasons for the day-to-day delay. The petitioner has failed to provide ‘sufficient cause’ to condone the delay of 531 days. This view is further supported by the following authorities:

“ It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”. In Banshi vs Lakshmi Narain – 1993 (I) RLR 68 it was held that reasons for delay was sought to be explained on the ground that the counsel did not inform the appellant in time, was not accepted since it was primarily the duty of the party himself to have gone to lawyer’s office and enquired about the case, especially when the case was regarding deposit of arrears of rent. In Bhandari Dass vs Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer that he did not inform the client about the progress of the case nor he did send any letter, was disbelieved while rejecting an application to condone the delay. 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]”.

Accordingly, we find that there is no ‘sufficient cause’ to condone the long delay of 531 days in filing the present revision petition. The application forcondonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with a cost of Rs.5,000/- (rupees five thousand only).

Petitioner is directed to deposit the cost of Rs.5,000/- by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission within four weeks from today. In case the 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 6th December, 2013 for compliance.

..………………………………

[ V B Gupta, J.]

………………………………..

[Rekha Gupta]

(From the order dated 16.11.2012 in Appeal No. 1769/2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

1. ICICI Prudential Life Insurance Co. Ltd. 205-P, Harshit Complex, First Floor, Opp. Minerva Cinema, Atlas Road, Subhash Chowk, Sonepat Through its Manager

2. ICICI Prudential Life Insurance Co. Ltd. ICICI PruLife Towers, 1089, Appasaheb Marathe Marg, Prabhadevi, Mumbai – 400025 Through its Manager …Petitioners/Opp. Parties (OP) Versus Sulekh Kumar R/o H. No. 325/C, Sector-15, Sonepat, Haryana

BEFORE

For the Petitioners : Mr. Rakesh K. Rajwania, Advocate For the Respondent : Mr. Joginder Ahlawat, Advocate

PRONOUNCED ON 31 st October, 2013

O R D E R

This revision petition has been filed by the petitioners against the order dated 16.11.2012 passed by Haryana State Consumer Disputes RedressalCommission, Panchkula (in short, ‘the State Commission’) in Appeal No. 1769 of 2011 – ICICI Prudential Life Insurance Co. Ltd. & Anr. Vs. Sulekh Kumar by which, while dismissing appeal, order of District Forum allowing complaint partly was upheld.

2. Brief facts of the case are that complainant/respondent purchased policy for Rs.90,000/- from OP No. 1/Petitioner No. 1 on 25.2.2006 and paid first premium of Rs.30,000/-. Even after completion of 3 years period from the date of issue of policy, OP offered Rs.53,754/- to the complainant instead of Rs.90,000/- and thus illegally retained Rs.36,246/-. Alleging deficiency on the part of OP, complainant filed complaint before the District Forum. OP contested complaint and submitted that complainant had surrendered the policy and sent request form dated 23.3.2010. As per Clause 5 (i) of the policy, 60% of the value of units subject to the payment of premium was paid for the three full policy years and Rs.53,735.54 being 60% of value of units was transferred to the bank account of the complainant. As per terms of policy, complainant was not entitled for any further payment and OP has not committed any deficiency and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to pay Rs.36,246/- along with 9% p.a. interest and further directed to pay Rs.2,000/- as compensation and Rs.1,000/- as cost of litigation expenses. Appeal filed by the petitioner 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 petitioner filed surrender request along with application before the State Commission, but Learned State Commission without considering that application has dismissed appeal so; revision petition may be allowed and matter may be remanded back to the State Commission. 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 learned District Forum allowed complaint, as petitioner could not produce on record copy of surrender request dated 23.3.2010. Petitioner placed that document on record along with application before learned State Commission and learned State Commission has not considered that application at all and has dismissed the appeal on the basis of observations of the learned District Forum. It was obligatory on the part of State

Commission to consider application filed by the petitioner and either to allow application or reject the application and only after that, final order in appeal should have been passed. As surrender request was the basis of payment of 60% of the value; hence, we deem it proper to set aside the impugned order and remand the matter back to the learned State Commission to consider application for taking surrender request on record and decide appeal afresh.

16.11.2012 passed by learned State Commission in Appeal No. 1769 of 2011 – ICICI Prudential Life Ins. Co. Ltd. Vs. Sulekh Kumar is set aside and matter is remanded back to the learned State

Commission to decide application filed by the petitioner for taking on record surrender request and decide appeal afresh after giving opportunity of being heard to both the parties.

7. Parties are directed to appear before the learned State Commission, Haryana on

16.12.2013. ………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

(From the order dated 23.01.2012 in First Appeal No. 249/2011 of UT Chandigarh Consumer Disputes Redressal Commission)

Meenakshi, r/o House No. 582, Sector 22 – A, Chandigarh

... Petitioners

Versus

1. Foreign Horizons Overseas Consultants Pvt. Ltd. SCO 126 – 127 (Basement) Sector 8 – C, Madhya Marg Chandigarh through its Director.

2. Arvind (Authorised Signatory) Foreign Horizons Overseas Consultants Pvt. Ltd. SCO 126 – 127 (Basement) Sector 8 – C, Madhya Marg Chandigarh

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. Deepak Aggarwal, Advocate

For Respondents 1 & 2 Mr. Harmandeep Singh Saini, Advocate

PRONOUNCED ON : 31 st OCTOBER 2013 O R D E R

1986 against the impugned order dated 23.01.2012, passed by the U.T. Chandigarh State

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

249/2011, “Meenakshi versus Foreign Horizons Overseas Consultants Private Limited & Ors.” vide which appeal filed by complainant/present petitioner against the order passed by the District Forum on 5.08.2011, allowing the said complaint was dismissed. During the course of hearing, the learned counsel for the petitioner moved application on 11.10.2013 for deletion of respondent no. 3 from the array of parties. The said application was allowed and the name of respondent no.

3 was deleted.

2. Brief facts of the case are that the petitioner/complainant submitted the requisite documents to respondents/OPs for arranging work permit visa for her for Australia and paid

`85,000/-, in all, towards processing, documentation and consultation charges. On the insistence of the complainant, agreement dated 09.02.2009 was also executed between the parties. It has been alleged that subsequently the OPs got some blank documents and cheque etc. duly signed from the complainant. It is further alleged that later on the OPs converted the case of the complainant unilaterally from work permit visa to study visa and told her to deposit a further sum of `45,000/- in the name of one Mr. Nareshwho was their associate. The complainant deposited `25,000/- on 5.5.2009, `20,000/- on 07.05.2009 and `15,700/- on 23.06.2009 with the

OPs. Thereafter, she visited the office of the OPs many times, but when there was no response, she asked for refund of the money deposited. A sum of `85,000/- was returned to her by the OPs after lot of alleged harassment. She, however, demanded rest of the money amounting to

`60,700/- and on failure of the OPs to give her the amount, she filed a consumer complaint against them, requesting refund of `60,700/- and `2,00,000/- as compensation for mental agony and harassment and `11,000/- as cost of litigation. The District Forum vide their order dated

05.08.2011 allowed the complaint and directed the OPs to pay a sum of `10,000/- for mental agony and harassment besides `5,000/- as cost of litigation. The complainant filed an appeal before the State Commission asking for enhancement of compensation, but the same was dismissed as per impugned order. 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 pleaded that the petitioner has suffered lot of harassment at the hands of the OPs and hence, compensation to be granted to her to the tune of `2,00,000/- on account of mental agony and harassment and punitive damages of `1 lakh should be awarded in favour of the petitioner as the OPs had played with the career of the petitioner. Learned counsel invited our attention to copy of the agreement between the parties, saying that the OPs had failed to discharge their duties as stated in the said agreement.

4. On the other hand, learned counsel for the respondent stated that there was no deficiency in service on the part of the OPs and hence, they were not entitled to compensate the petitioner in any manner. In fact, they had already returned the amount of `85,000/- to the petitioner which included the non-refund component of `35,000/- as well. The learned counsel invited our attention to the written statement filed by them before the District Forum, in which it has been mentioned that the visa file of the petitioner was rejected by the Australian High Commission on the ground that the financial documents provided by the petitioner for her visa case were found to be fake and forged. The Australian High Commission has, therefore, rejected here case whereas OPs had filed her case before the Australian High Commission with utmost care and as per Rules and Regulations.

5. 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 petitioner obtained the services of the OPs for helping her in obtaining work visa from the Australian High Commission and for providing her guidance for the same and for this purpose, an agreement was also executed between the petitioner and the OPs. It has been contended by the OPs in the written statement before the District Forum that the visa case of the complainant was rejected by the Australian High Commission, because the documents submitted by her were found to be fake and forged on inquiry. This fact has not been controverted by the petitioner. It cannot be stated, therefore, by any stretch of imagination that the OPs were responsible in any manner, if the petitioner failed to obtain visa for going to Australia. Further, it is also made out that a sum of `85,000/- has been returned by the OPs to the petitioner. The petitioner did not press the claim of getting back `15,700/- and only requested for compensation for mental agony, harassment etc. The District Forum has already allowed a sum of `10,000/- as compensation for mental agony and harassment and `5,000/- as cost of litigation. This order has been upheld by the State Commission and the OPs have not preferred any appeal against the same.

6. In the light of discussion above, we do not find any justification 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 impugned orders passed by the Fora below. The revision petition is, therefore, ordered to be dismissed with no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

(From the order dated 17.12.2007 in First Appeal No. 2236/2006 of Rajasthan State Consumer Disputes Redressal Commission)

1. Municipal Board, Todaraisingh, Distt. Tonk (Rajasthan) through Chairman

2. Municipal Board, Todaraisingh, Distt. Tonk (Rajasthan) through Executive Officer

... Petitioners

Versus

Gopal Lal Sharma s/o Shree Prasad, r/o Brahm Akhada, Todaraisingh, District Tonk Rajasthan

… Respondent

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. Shantanu Bhardwaj, Advocate

Mr. Dinesh Garg, Advocate

For the Respondent Mr. Ankit R. Kothari, Advocate

1986 by the petitioner against the impugned order dated 17.12.2007 passed by the Rajasthan

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

2236/2006, “Municipal Board, Todarraisingh through Chairman, Municipal Board, Todaraisingh

& Anr. versus Gopal Lal Sharma”, vide which appeal against the order dated 15.11.2006, passed by District Consumer Disputes Redressal Forum, Tonk (Rajasthan) was dismissed and the said order of the District Forum, allowing the consumer complaint in question, was upheld.

2. Brief facts of the case are that the petitioner Municipal Board, Todaraisingh, District Tonk,

Rajasthan is a statutory body created under the Rajasthan Municipalities Act, 1959. The petitioner issued a public advertisement on 18.06.1968 for auction sale of 19 residential plots, situated between Bhuda Ka Balaji to Dev Ji Temple in Todaraisingh city, and laid down certain terms and conditions. One of the conditions was that 1/4th of the auction price of the highest bid was required to be deposited at the site of auction and the balance 3/4th of the auction price was to be deposited within one month from the date of the demand raised by the Municipal

Board. The respondent/complainant participated in the auction for plot no. 9, measuring 60ft. X

40ft. on 28.06.1968 and his auction bid @ `1.75/- per sq. yard was accepted as the highest bid. The respondent / complainant deposited 1/4th amount of the consideration, i.e., `100/- of the plot on 1.07.1968. It is the case of the petitioners that the respondent did not deposit the said

1/4th amount on the date of auction but deposited it three days later. Further, the respondent/complainant failed to deposit the balance 3/4th of the bid amount, i.e., `366.67ps. despite notices sent to him by the petitioners on various dates. The allotment of plot was, therefore, cancelled accordingly as per condition no. 5 of the auction. Further, the Collector,

Tonk vide his letter no. 4477 dated 17.11.71, allotted the said land to Government School and stadium in one of the schemes. The auction bidders were given options to have another land in the vicinity at Subhash Colony. The complainant, however, filed the consumer complaint in question, but the same was dismissed on 26.05.2005 on grounds of limitation. However, an appeal filed against this order before the State Commission was allowed by them on 08.09.2006 and the case was remanded to the District Forum with directions to decide the complaint on merits. The complaint was then allowed by the District Forum on 15.11.2006, directing the petitioners to allot another plot of equal size on deposit of rest of 3/4th consideration. The petitioner challenged the said order in appeal before the State Commission and the said

Commission dismissed the appeal vide impugned order dated 17.12.2007. It is against this order that the present petition has been made.

3. At the time of hearing before us, the learned counsel for the petitioner stated that the auction bid in which the complainant got the plot in question was made on 28.06.1968, but

1/4th of the amount was deposited by the complainant on 01.07.68, i.e., 3 days later than the date prescribed. The balance 3/4th of the amount was to be deposited within one month, but the complainant failed to deposit that amount, despite notices sent to him. A notice was sent to him on 19.09.68, stating that the balance amount of `366.67/- should be deposited within a time of one week, failing which the 1/4th amount already deposited shall stand forfeited and the auction made in his favour shall stand cancelled. Another notice was sent to him on 22.1.69, stating the same position, but despite these notices, the complainant did not deposit the amount in question. On 17.11.71, the plot in question and some other plots were allotted in favour of the

Government school for play-ground. Further, on 2.2.88, one Radhey Shyam and the complainant made an application before the petitioner saying that they were not willing to accept the plot in

Subhash Colony, but if the plots are allotted to them near the road, they will have no objection. The petitioner sent another notice dated 25.09.91 in which it was again stated that the remaining consideration of the plot of `366.67/- and `1020.25/- as interest should be deposited with them so that the plot could be handed over to him, but still the complainant did not deposit the amount. The learned counsel then narrated about the consumer complaint filed in 2005 and the orders passed by the District Forum and State Commission as mentioned above. Learned counsel maintained that there had been no deficiency in service on their part, as they had been writing to the complainant from time to time and making efforts for alternate plots on deposit of the balance amount. The complainant was, however, interested in getting plot at the most prime location, but at the rates prevalent in 1968, and such request could not be granted. The learned counsel further argued that the consumer complaint in question was barred by limitation and although this point had earlier been examined by the State Commission and they held the complaint to be within limitation, but still the issue of limitation could be considered as there was no estoppel against question of law. This view had been taken in judgement given by the

Hon’ble Supreme Court as reported in 1965 AIR 1325, “Chittori Subbanna versus Kudapa

Subbana and Ors.”.

4. Learned counsel for the complainant / respondent submitted that although the plot in question had been allotted to him by the petitioner, but the said plot along with some other land was subsequently allotted to a Government School and hence there was injustice with the complainant and deficiency in service on the part of the OPs. The complainant was always ready to deposit the balance amount and even now, he was ready to deposit the said amount, provided plot at suitable location is given to him.

5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The facts as admitted by the parties are that the complainant was allotted plot No. 9 measuring 60 ft. X 40 ft. in auction sale held on 28.06.68. The initial

1/4th amount of the total value of the bid was also deposited by the complainant, although late by three days. However, the complainant has not been able to explain as to why he failed to deposit the balance 3/4th of the amount in question. The notices were also sent to him by the petitioner/OP on 19.09.68 and 22.01.69, but still the complainant failed to deposit the balance amount and the reasons for the same have not been explained anywhere. Later on, the said plot and some other area was allotted to a Government school but still the petitioner/OP offered to allot him plot in some other colony and a notice to this fact was also sent on 25.9.91, but still the complainant failed to deposit the balance 3/4th of the amount. In the year 1991, i.e., 23 years after the initial allocation, the petitioner asked the complainant to pay the same amount as was due in the year 1968, but the complainant failed to avail of the said offer.

6. In the light of these facts, it becomes clear that there has been no deficiency in service on the part of the petitioners in any manner and they were well within their rights to cancel the allotment, once the balance amount was not deposited, despite notices sent to the complainant.

7. In the light of this discussion, it is very clear that the orders passed by the State

Commission as well as by the District Forum do not reflect a correct appreciation of the facts on record and the said orders are perverse, as there is no justification in allotment of plot to the complainant at old rates in view of the facts that he failed to deposit the necessary amount despite notices sent to him. The present revision petition is, therefore, allowed and the impugned order is set aside. The consumer complaint in question, is ordered to be dismissed with no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

(From the order dated 24.09.2012 in First Appeal No. 420/2011 of Haryana State Consumer Disputes Redressal Commission)

M/s. Vikas Sanitary and Hardware Store, Bhai Kanhaiya Sahib Chowk, Gobindpuri, Yamuna Nagar, through its Proprietor Shri Vikas Sharma

... Petitioner

Versus

1. The New India Assurance Co. Ltd. Opposite Madhu Cinema Yamuna Nagar through its Branch Manager

2. The Punjab National Bank, New Grain Market, Jagadhari, Haryana

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. D.P. Sharma, Advocate

For the Respondent–1 Mr. R.B. Shami, Advocate

For the Respondent–2 Mr. Pardeep Walia, Advocate

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

24.09.2012 passed by the Haryana State Consumer Disputes Redressal Commission (for short

‘the State Commission’) in FA No. 420/2011, “The New India Assurance Co. Ltd. versus M/s.

Vikas Sanitary & Hardware Store & Anr.” by which while allowing the appeal, order of District

Forum allowing the complaint was modified and compensation was reduced.

2. Brief facts of the case are that complainant – petitioner got his shop insured from opposite party No. 1 / respondent no. 1 from 24.03.2006 to 23.03.2007 for coverage of risk of fire, theft etc. Complainant had obtained cc limit from opposite party no. 2 / respondent no. 2 for running his business. In the intervening night of 29/30.09.2006 fire broke-out in the shop. A report was lodged with the Police and intimation was given to opposite party no. 1. Opposite Party No. 1 was given legal notice, thereafter, opposite party No. 1 sent a cheque of `1,36,547/- to opposite party No. 2 which was credited in the account of complainant. As amount sent was too less in comparison to loss of `5,22,000/-, alleging deficiency in service on the part of the opposite parties, the complainant filed complaint before the District Forum. Opposite parties resisted claim and submitted that as per assessment made by surveyor, cheque was sent and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed the complaint and directed opposite party No. 1 to pay `2,84,932.19ps. along with interest @12% p.a. and further ordered to pay `5,000/- as litigation expenses. Appeal filed by opposite party no.

1 was partly allowed by learned State Commission. It was held that complainant is not entitled to any relief except `1,36,547/-, against which this revision petition has been filed.

3. Heard learned counsel for the parties finally at admission stage and perused the record.

4. Learned counsel for petitioner submitted that impugned order is a non-speaking order, hence revision petition be allowed and matter may be remanded back to learned State

Commission. Learned counsel for respondent also agreed to this extent that the impugned order is a non-speaking order.

5. Learned State Commission after narrating facts in detail in the impugned order observed as under:- “After gone through the case file, I feel that the grant of compensation is not justified. As per the facts and circumstances of the case and findings recoded by the District Forum as well as the order passed by District Consumer Forum needs to be modified to the extent that compensation of `1,36,547/- instead of `4,21,479.19 - `1,36,547/- will be justified. The appellant / OP No. 1 is not entitled to any other benefit.”

6. Perusal of order carefully reveals that no reason has been given by learned State

Commission while reducing compensation awarded by District Forum. Hon’ble Apex Court in

(2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as under: “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. Hon’ble Apex Court in (2005) 10 SCC 243 H.K.N. Swami versus Irshad Basith (Dead) by LRs. observed as under:- “The First appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. The order of the High Court is cryptic and the same is without assigning any reason.”

8. In the light of aforesaid judgements it becomes clear that it is obligatory on the part of the first appellate court to pass detailed, speaking order with reasons. In the present case, learned

State Commission has not applied its mind at all and has modified the order of District Forum without any reason in such circumstances, matter deserves remand.

9. Consequently, revision petition filed by the petitioner is allowed and the impugned order dated 24.09.2012 passed by State Commission in FA No. 420/2011, “The New India Assurance

Co. Ltd. versus M/s. Vikas Sanitary & Hardware Store & Anr.” is set aside and matter is remanded back to the State Commission to pass detailed speaking order after giving an opportunity of being heard to both the parties.

10. Parties are directed to appear before the State Commission on 17.02.2014. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

REVISION PETITION NO. 3508 OF 2012 (From the order dated 15.05.2012 in First Appeal No. 537 of 2012 the

Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

1. Country Club (India) Limited, Through its Managing Director, Having its office at Amrutha Castle, 5-9-16, Saifabad, Opp. Secretariat, Hyderabad – 63, Andhra Pradesh

2. Country Club (India) Limited, Through its General Manager, (Sales and Marketing), Having its Office at B-7, Bhavani Singh Road, 22 Godam Circle, Behind Neelkant Mall, C- Scheme, Jaipur

Petitioner/Opposite Party

Versus

Tarun Raut,Flat No. 203, Dadu Marg, Barkat Nagar, Tonk Phatakm Jaipur – Rajasthan

Respondent/Complainant

BEFORE:

HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B C. GUPTA, MEMBER

For the Petitioners : Mr. Mohit Mudgal, Advocate

Mr. Davesh Bhatia, Advocate

Mr. Jasmeet Singh, Advocate

For the Respondent : Mr. Amritesh Mishra, Proxy Counsel

PRONOUNCED ON 31 st OCTOBER, 2013

This revision petition has been filed by the petitioner against impugned order dated 15.05.2012 passed by the learned State Consumer Disputes Redressal Commission, Rajasthan (in short, ‘the State Commission’) in Appeal No. 537 of 2012 – Country Club (India) Ltd. & Anr. Vs. Tarun Rawat, by which while dismissing the appeal, order of the District Forum allowing the complaint was upheld. 2. The brief facts of the case are that the complainant/respondent under the Mr. Millionaire Club Parivar Membership Scheme paid Rs. 35,000/- and sought confirmation for tour to Goa. Opposite party-petitioner did not confirm booking inspite of repeated requests. As tour was not confirmed, complainant family could not visit Goa and his reputation suffered. Alleging deficiency on the part of the opposite party- complainant filed complaint before the District Forum. Opposite party did not file written statement before District Forum. Learned District Forum after hearing both the parties allowed the complaint and directed opposite party to pay Rs. 1,00,000/- as compensation. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which this revision petition has been filed.

4. Learned counsel for the petitioner submitted that the order passed by the learned State Commission is not a speaking order and does not contain any reason for dismissal of application for condonation of delay as well appeal hence, revision petition be allowed and impugned order be set aside and matter may be remanded back. On the other hand, learned counsel for respondent submitted that order passed by the learned State Commission is in accordance with law hence, revision petition be dismissed.

5. Order passed by the learned State Commission runs as under:

“ The appellant has filed this appeal with delay of 117 days. The grounds and explanations given in the application do not appear to be justified and proper. Hence, in the interest of justice, it does not appear to be appropriate to condone the delay.

The subordinate Distt. Forum has passed order after examining all the facts of complaint and evidence in detail. Therefore, we do not find any justifications to re- examine all the facts of complaint and evidence.

In view of facts and circumstances, we do not find any lapses/error in the order dated 30.11.2011 passed by the ld. Distt. Forum, camp at Jaipur, Jaipur in complaint no. 1154/2011 (2nd, 215/2007). As the Distt. Forum has applied correct judicious mind on the facts brought out on record, there is no ground of any interference therein, whatsoever. In addition, the appeal appears to be without any substance on merit also”.

6. Perusal of order clearly reveals that no reason has been assigned in the order for rejection of application for condonation of delay as well appeal. Hon’ble Apex Court in (2001) 10 SCC 659 HVPNL Vs. Mahavir observed as under:

“We may point out that while dealing with a first appeal, this is not the way to dispose of the matter. The appellate forum is bound to refer to the pleadings of the case, the submissions of the counsel, necessary points for consideration, discuss the evidence and dispose of the matter by giving valid reasons. It is very easy to dispose of any appeal in this fashion and the higher courts would not know whether learned State Commission had applied its mind to the case. We hope that such orders will not be passed by the State Consumer Disputes Redressal Commission, Haryana at Chandigarh in future. A copy of this order may be communicated to the Commission”.

7. Hon’ble Apex Court in (2005) 10 SCC 243 H.K.N. Swami Vs. Irshad Basith observed in para-3 as under:

“The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. The order of the High Court is cryptic and the same is without assigning any reason”.

8. In the light of the aforesaid judgments of Hon’ble Apex Court, it becomes clear that it was obligatory on the part of the State Commission to pass speaking order with reasons while disposing appeal. In the present case, impugned order does not contain any reason for dismissal of application for condonation of delay as well appeal and in such circumstances, impugned order is liable to be set aside and the matter is to be remanded back to the State Commission.

9. Consequently, revision petition filed by the petitioner is allowed and the impugned order dated 15.05.2012 passed by the learned State Commission in appeal No. 537 of 2012 – Country Club (India) Limited & Anr. Vs. Tarun Rawat, is set aside and matter is remanded back to the learned State Commission to dispose of appeal by a speaking order after giving an opportunity of being heard to the parties.

10. Parties are directed to appear before the State Commission on 09.12.2013. ..……………Sd/-……..………J

(K. S. CHAUDHARI)

PRESIDING MEMBER

……………Sd/-….……………

(DR. B. C. GUPTA)

MEMBER SB/4