National Consumer Disputes Redressal Commission s1

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

ORIGINAL PETITION NO. 51 OF 1999

M/s. Packer Sea Food (Pvt) Limited Through its Managing Director Shri C.P.Azariah Samuel Raj Having its registered office at College Road, Nagercoil-1, Kanyakumari District And having factory At 74/2 Kulasekarapuram Village, Vazukamparai, Agastheeswaram Taluk, Kanyakumari District ….Complainant

Versus 1. The Tamilnadu Industrial Investment Corporation Ltd., 27 Whites Road, Madras: 600014 2. The Branch Manager, Tamilnadu Industrial Investment Corporation Ltd, 37 Cape Road, Nagercoil- 629001 .....Opposite parties

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

For the Complainant : Mr. M.L. Mahajan, Advocate

For the Opposite parties : Mr. K.P. Toms, Advocate

PRONOUNCED ON:02.01.2013. ORDER

PER MR.VINAY KUMAR, MEMBER

M/S Packer Sea Food Private Limited has filed this complaint against the Tamil Nadu Investment Corporation. The complaint arises from alleged delay in disbursal and part non-disbursal of a loan of Rs.70 lakhs, sanctioned by the OPs to the Complainant for setting up a marine products processing unit.

2. The case of the Complainant is that the loan was sanctioned on 20.10.1993 but only Rs.15.3 lakhs had been disbursed till 18.3.1994. By the time the complaint was filed, only Rs.44.83 lakhs had been released and remaining balance of Rs.25.17 lakhs and subsidy were never released. This was inspite of the fact that the Principal, Govt. College of Engineering, Tirunelveli, appointed by the OPs to evaluate the plant and machinery, had reported that the building was worth Rs.41.58 lakhs, excluding cost of the land.

3. The complaint petition gives details of alleged “dillydallying attitude” of the OPs, which eventually forced him to write to the Complainant on 7.2.1996 stating that it was left with no alternative but to seek funding facilities from another source. This letter (Annexure P-49) stated:- “ Therefore this is to require you to release the documents that we have deposited with you as additional collateral security to enable us tohypothicate with other financiers. It is also noted that you yourself and the corporation alone shall be liable for losses, and other damages that we have incurred on account of “Dilly-dallying” tactics adopted by you for the past 1 ½ years in the disbursement to our project. Since our project is nearing completion we have been driven to this extreme step as you have been dragging the matter unnecessarly and purposely for reasons best known to yourself.”

4. According to the Complainant, the project has suffered delay of 2½ years due to failure of the OPs to make timely and sufficient disbursal of the sanctioned loan. Even after arrangements were made to raise necessary funding from another source, the NOC was not released by the OPs. Therefore, the Complainant has sought the following reliefs against the OPs, for loss caused by their negligence, delay and failure to provide proper service—

“ (i) Interest on delayed completion Rs.25.74

(ii) Cost escalation Rs.95.99 (iii) interest arising out of non-release of sanctioned amount by respondent Rs.2.97

(iv) interest loan on account of delayed claim of subsidy amount Rs.1.94

(v) EB minimum charges payable for the delayed Period Rs.13.50

(vi) mental agony suffered because of the aforesaid causes Rs.10.00

(vii) loss of profit including contacting other persons for arranging loans/lacs Rs.50.00”

5. During the course of these proceedings, the Commission identified six issues for decision and directed on 6.9.2010 that— “The complainant shall submit brief written arguments on the six issues, which are required to be decided in this complaint with reference to the evidence on each head and the quantum of claim on each head, copy of the same be furnished to the counsel for the opposite party within four weeks. Thereafter, counsel for the opposite party shall file item-wise reply on each issue and furnish a copy of the same to the counsel for the complainant within four weeks. Parties are at liberty to add issues to be decided”.

Accordingly, a brief written argument was filed by the Complainant on 9.11.2010. In this, the following issues/heads are listed:- “a. Interest on Rs.25 lack taken from private party. b. Increase of cost or propitiate escalation cost. c. Delay in release the subsidy by TIIC its actual cost/effect. d. Minimum Electricity Charges (EB) e. Business loss f. Mental Agony”

6. Per contra, the case of the OPs is that it is a corporation set up by the government of Tamil Nadu with branches all over the States and with the avowed objective of “extending financial assistance to various entrepreneurs in the State of Tamilnadu for development of industries in the State”. The loan to the Complainant was sanctioned on 20.10.1993 with clear terms and conditions, which were accepted by it on 17.1.1994. As per Clause 43 therein, collateral security for the loan was required to be provided by the Complainant. Delay in this, led to delay in disbursal of loan. OPs have further alleged that:- a) The Complainant sought sanction for purchase of two generator sets and an additional Plate Freezer from suppliers different from the ones originally purposed. b) The procedure for payment required the advance amount to be paid to the supplier through the opposite parties. Therefore, details were sought from the Complainant for change of suppliers of generator sets and motors. d) As per norms of disbursement release of loan amount for purchase of assets not envisaged in the scheme, was not permissible. Such purchases could be made from contingency. But, contingency itself could be utilized after implementation of the full project. All equipments considered necessary for the project, should have been included by the complainant in the original project itself. e) Inspection of the factory building by the regional office of OPs revealed that the Complainant had not purchased any machinery as per the bills submitted. f) The machineries were erected in the factory premises by a fabricator, who was not a supplier as per the sanctioned scheme. g) Principal Government College of Engineering Tirunelveli had valued the building at Rs.39,56,245/- and the machinery at Rs.21,60,000/-. The valuation of machinery here was questioned by the OPs in their letter of 7.3.1994. h) If the borrower requests for change of equipment suppliers, the OPs have to verify the capacity, market reputation and comparative cost of the proposed supplier. In the case of generator sets, the change of supplier was agreed by the OPs within a month, but the supply could not be effected as the Complainant did not accept the condition of payment after delivery of the generator sets. i) When the Complainant asked for NOC to raise working capital from another financier, there was an overdue of Rs 17 lakhs in his loan account. Therefore, the Complainant was asked to clear the overdue for issue of the NOC. j) Even after the loan account between the two parties was settled, the Marine Products Export Development Authority, Govt. of India informed that invoices/bills and receipts submitted by the Complainants to the OPs are fabricated and false.

7. We have carefully considered the pleadings and evidence brought on record by the two sides and heard their counsels, Mr M L Mahajan for the complainant and Mr K P Toms for the OPs. Mr Mahajan drew our attention to the sixteen page document (signed by the lender/OPs on 28.10.1993) containing the details of sanction of this term loan of Rs 70 lakhs (Annexure P-2). It projects total cost of the venture as Rs 155 lakhs, to be funded in the following manner—

Loan from the OP Rs 70 Lakhs

Subsidy/State capital Rs 15 lakhs

Capital Rs 50 lakhs Unsecured loans Rs 20 lakhs

The loan of 70 lakhs was sanctioned for construction of the factory building and purchase of machinery required for the project. It was to be repaid in 24 instalments, after a moratorium of 24 months from the date of the first disbursal. As per the terms, the disbursal for civil works and equipment was to be made after inspection and valuation. For this, a valuer was appointed by the OPs. Learned counsel pointed out that the valuer (Government College of Engineering,Tirunnelveli) submitted reports to the OPs, from time to time. Their reports from 3.11.1993 to 6.3.1994 (i.e. before the first disbursal by the OPs) show that an investment of Rs 44.95 lakhs in land & building and Rs 3.86 lakhs in machinery had already been made by the complainant.

8. Mr M L Mahajan, learned counsel for the complainant, argued that the total amount released by the OPs was only Rs 44.83 lakhs. No release was made after March 1995. Therefore, the balance of Rs 25.17 lakhs had to be raised from private sources at very high rates of interest, to ensure completion of the project.

9. In reply, Mr K P Toms, learned counsel for the OPs filed additional written arguments on 24.9.2012 with records of disbursement to show that as on 29.3.2005, in all Rs 44.83 lakhs towards the term loan and Rs 9.51 lakhs towards subsidy had been released to the complainant. Learned counsel argued that subsidy and the term loan together constituted only 55% of the project cost. Therefore, the commitment of the OPs was limited to funding 55% of the asset created under the project. The borrower had created assets worth Rs 89.36 lakhs only. The OPs were required to release only 55% thereof i.e. Rs 49.15 lakhs. Accordingly, actual release fell short by Rs 4.32 lakhs only which was retained by the OPs towards cost of the machinery supplied by M/S Rank Engineering Works. In this context, Mr K P Toms referred to the written response filed by the OP in this Commission on 17.5.1999. Para 23 therein states— “ With regard to paragraph 11 of the complaint, the statement issued by the banker for the account of M/s Rank Engineering Works did not a have any authenticity. M/s. Lakshmi Vilas Bank, Nagercoil said to have issued statement of account for the company M/s Rank Engineering Works which was having its factory and office at Chennai. The payments made to the said engineering company were sent to office at Chennai only. Therefore, the statement issued by a bank at Nagercoil caused suspicion on the genuiness of the statement. Besides this, the complainant reported to have paid Rs.21.60 lakhs but the said engineering company has received Rs.4 lakhs only. Further with regard to the allegation of demanding interest, it is stated that the complainant had to pay the interest accrued to the account and therefore, the second opposite party demanded the interest from the complainant.”

10. This claim, made on behalf of the OPs, was challenged by Mr Mahajan, counsel for the complainant. He drew our attention to the report of 10.3.1995 submitted by the valuer, Government College of Engineering, appointed by the OP/Tamil Nadu Industrial Investment Corporation itself. The three items of equipment having, total value of Rs 21.60, lakhs figure as the last three items in the report signed by two senior lecturers of the Engineering Department of the College. When confronted with this piece of evidence on record, learned counsel for the OPs very gracefully concede that he had no answer for the same. It is therefore, clear that the OPs have not verified their facts before filing the written response of 17.5.1999 and written arguments on 17.9.2012. At this stage, we do not wish to make any further observation on this point.

11. The evidence brought on record shows that the first three disbursals were made in March 1994. In September 1994 the complainant was informed that further disbursal of the loan was decided by the OPs to be “withheld”. Thus, no release of loan or subsidy was made until 29.3.1995. Rs 25.17 lakhs of loan and Rs 5.94 lakhs of subsidy i.e. 31.11 lakhs out of the commitment of Rs 85 lakhs, was never disbursed. The final position is confirmed by the counsel for the OPs in the statement produced before us on 24.9.2012. The allegations of delay in disbursal and non-disbursal of the loan and subsidy are to be seen in this factual background.

12. In the affidavit evidence filed on behalf of the OPs, delay is attributed mainly to the decision of the complainant to purchase generator sets and Plate Freezer from suppliers different from the ones ‘originally proposed’. The request was agreed by the OPs, in so far as the generators were concerned. But, there is no explanation why no advance was released in favour of the supplier. Nor is there an explanation why the condition of supply before payment was imposed when, as admitted in the affidavit evidence of the OPs, payment of advance to the suppliers was permissible, subject to the same being routed through the OPs. More importantly, there is no explanation for the resultant delay. Details in para 17 of the affidavit evidence of the complainant show that it was over three months.

13. As noted earlier, the stoppage of further disbursals was communicated to the complainant on 15.9.1994. This was preceded by inspection by the Regional Office of the OPs. As per the affidavit evidence of the OPs, “The inspection revealed that the complainant had not purchased any machinery as per the bills admitted.” However, the letter of 15.9.1994 (produced on record as Annexure P-9), which is a cryptic one para letter, gives no idea whatsoever of the reason for stoppage of further disbursements. But, a reading the affidavit evidence of the OPs, filed on 7.5.2008 together with the objections filed by the complainant on 5.10.1999, gives a clear idea of the underlying reason. As per the complainant, it preferred to buy the generators from another supplier as it had quoted rates 20% lower than the one chosen by the OPs (Para26). The OPs do not respond to the question of rate difference but admit that “On 16.3.1994 the complainant requested for change of machinery supplier from M/s Mahanarayanee Investment and Trading Co.P. Ltd., Madurai to M/s Parry Engineering and Exports Limited for the purchase of 2 Generator set for which the second opposite party requested vide their letter dated 17.3.1994 the complainant to submit the original proforma invoice so as to take a decision on change of supplier. While it was so, on 29.3.94, the second opposite party issued a commitment letter to M/s Air Power India Ltd. guaranteeing payment subject to conditions on supply of machinery. A DD for Rs 6,13,000/- was forwarded to the said supplier as advance out of term loan against subsidy eligibility...... Also, in another letter dated 6.6.94, the complainant reiterated the stand to purchase 2 Gensets from M/s Parry & Co., instead of M/s Mahanarayanee Investments and Trading Co. P.Ltd.”(Para 15). This is a clear admission that the OPs were in a hurry to procure the equipment, even before taking a final view on the request of the complainant to change the supplier.

14. Following conclusions emerge from the detailed consideration above—

a. Report of the valuer shows that even before the first disbursal by the OP, investment of Rs 44.95 lakhs in the building and Rs 3.86 lakhs in machinery had been made by the complainant. b. Most of the machinery and equipment have been procured subsequent to the sanction of the loan by the OPs. Therefore, its value, as assessed by thevaluer rose from 3.86 lakhs in November 1993 to 49.71 lakhs in March 1995.

c. The OPs disbursed part of the loan and subsidy but with long delays between disbursals. Admittedly, Rs 25.17 lakhs of the term loan and Rs 5.49 lakhs of subsidy remained undisbursed.

d. Delay in disbursal is sought to be explained on the ground that the purchased machinery (though reflected in the evaluation report of 7.7.1994) was not found in the factory during subsequent inspection by the OPs. But, it is also admitted that Rs 16.88 lakhs were released in March 1995, based on the valuation report of 10.3.1995. There is no explanation as to what happened in between to satisfy the OPs that the ‘missing machinery’ was not physically missing. We are therefore, of the view that the delay on this account cannot be treated as bona fide conduct on the part of the OPs.

e. The logic of proportionate release (i.e. OP’s commitment of loan as 55% of the project cost) is an unconvincing attempt to justify the delay. It has merely remained an attempt to take the focus away from the inexplicable delay caused by the conduct of the OPs. This delay was a negation of their own avowed objective of extending financial assistance to entrepreneurs in Tamil Nadu for development of industries in the State.

f. The delay in procurement of generator sets has not been objectively explained. On the contrary, OPs’ own evidence shows that it was caused by their attempt to procure it from a supplier of their choice (though, as revealed by the Complainant, at a higher cost), against the requirement of the complainant. In this case too, the delay cannot be called bona fide.

g. In so far as the time taken in release of ‘No Objection Certificate’ to the borrower is concerned, we agree with the OPs that it could not have been issued before clearance of the outstanding amount by the complainant.

15. The OPs have sought to rely upon the decision of H’ble Supreme Court of India in Karnataka State Industrial Industrial Investment and Development Corpn. Ltd., (2005) 4 SCC 456. In this case, the respondent had taken a loan of Rs 116.30 lakhs from the Karnataka State Industrial Investment and Development Corpn (KSIIDC) in 1991. The borrower committed defaults in repayment. Therefore, the KSIIDC took over the unit in 1996 and sold it for Rs 171 lakhs in 1998 to a third party. The borrower filed a writ petition in the High Court praying for declaring the sale null and void. The High Court decided that borrower should be given an opportunity to make an offer to purchase on the same terms as agreed by the KSIIDC with the buyer. The decision of the learned single judge was challenged by the buyer in a writ appeal. The Division Bench ordered the KSIIDC to re do the entire sale process and to give the borrower an opportunity to bring a better offer. Hon’ble Supreme Court held that the KSIIDC had acted in a bona fide manner and set aside the direction to it to redo the entire sale process. Facts in the case before us are entirely different. Therefore, in our view the case of the OP/Tamilnadu Industrial Investment Corporation gets no support from this decision.

16. In the result, we hold that the complainant has fully succeeded in establishing that the delay in disbursal of the term loan with subsidy as well as part non-release of the same after March 1995, was without any justifiable cause. This failure to provide proper service to their borrower, amounted to ‘deficiency of service’ on the part of the OPs, within the meaning of Section 2(1)(g) of the Consumer Protection Act, 1986. We are therefore of the view that the complainant is entitled to be compensated for the same.

17. The consequential cost of delay in disbursal and of non-disbursal itself, has been quantified by the complainant, as directed by this Commission. As per written submission of the complainant, the value of total assets had risen to Rs.203.84 lakhs in May 1996 and Rs.274.39 lakhs by May 1997. We do not consider it necessary to go into it. Because, whatever the actual growth of the Unit set up by the complainant, the liability of the OPs in the context of the Consumer Complaint, will not travel beyond the consequences of delay in disbursement of the total agreed quantum of loan and subsidy as well as of non- disbursal of a part thereof.

18. The effect of this delay has been quantified by the Complainant in six heads, as per the direction of this Commission, mentioned earlier in this order. Expectedly, it has not been challenged by the OPs. Towards the non-released sums of loan and subsidy interest, Rs.13.16 lakhs has been claimed at 36% per annum. We consider it proper to limit it to 18%. Cost escalation for building and machinery, calculated at 12 and 10% respectively, are considered reasonable and acceptable. This comes to Rs.11.75 lakhs. Similarly, business loss at 10% for five months is considered reasonable and therefore the claimed amount of Rs.6.45 lakhs is allowed. However, we do deem it proper to allow the minimum electricity charge claimed by the Complainant, as it would have been payable, in any case. Finally, there is no case for allowing further compensation of Rs.25 lakhs claimed towards mental pain and agony, as interest on delay in releases cost escalation as well as business loss have separately been allowed.

19. Accordingly, the total compensation payable under all admissible heads is rounded off to Rs.25 lakhs. Cost of Rs one lakh is also awarded in favour of the Complainant. The OP/Tamilnadu Industrial Investment Corporation Limited, is directed to pay this amount of Rs.26 lakhs to the complainant, together with interest at 9% per annum, from the date of the complaint. The entire amount shall be paid within a period of three months, failing which the period of delay shall carry additional interest of 2% per annum. .………………………… (J. M. MALIK, J.) PRESIDING MEMBER

…………………………. (VINAY KUMAR) MEMBER s./- NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

ORIGINAL PETITION NO. 39 OF 2003

1. Sh. Mahesh Prasad Aggarwal S/o late Lala Har Prasad Aggarwal

2. Smt. Deepti Aggarwal Widow of late Rajeev Aggarwal

3. Kumari Manjari

4. Kumari Mayuri

5. Master Akshay

All minor daughters and son of late Rajeev Aggarwal (Through their mother Smt. Deepti Aggarwal, their next Friend and natural guardian) All R/o 39, Inner City, Ring Road, Agra – 1 (U.P.)

…Complainants

Versus

M/s. Kamayani Patients Care India Ltd. 672, Geeta Mandir NH 2 Guru Ka Taal, Secundera Agra – 282 07 (U.P.) … Opp. Party

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER For the Complainants : Mr. S.C. Singhal, Advocate With Ms. Mridul Chawla, Advocate For the Opp. Pary. : Mr. S.K. Sharma, Advocate with Mr. J.P. Sharma, Mr. A. Poddar, Advocates

PRONOUNCED ON 3 rd JANUARY, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

Complainants have filed complaint against the opposite party for recovery of

Rs.30.00 lakhs as compensation. 2. Brief facts of the complaint are that complainant no. 1 is father of deceased, Rajeev Aggarwal, complainant no. 2 is wife of deceased Rajeev Aggarwal and complainant nos 3 to 5 are minor daughters and son of deceased Rajeev Aggarwal. Father Rajeev Aggarwal aged 41 years met with an accident while he was proceeding towards Agra as his vehicle overturned and he sustained multiple serious injuries and became unconscious. He was immediately taken to opposite party- hospital at Secundra, Agra where he was admitted and Rs.1200/- were charged for C.T. Scan of head, Rs.300/- for X-ray chest and wrist, Rs.600/- as OT charges, Rs.500/- as emergency charges and Rs.500/- as Doctors examination fee. Rajeev Aggarwal was plastered in left hand and he was discharged and was informed that he is alright. He was not given documents of discharge. Rajeev Aggarwal was complaining of serious headache and pain at back but no treatment regarding aforesaid pain was given to Mr. Rajeev Aggarwal while he was in opposite party-hospital. Rajeev Aggarwal was taken to the house, though, his legs and hands were not moving properly besides suffering from severe pain in head and back. Elderly persons of his family advised to shift Rajeev Aggarwal to good hospital in Delhi and for this purpose ambulance was hired on 15.10.2001 and proceeded for Delhi but Rajeev Aggarwal collapsed after he travelled about 20 kms on account of the injuries sustained by him in the accident. Complainants contacted opposite party-hospital to supply entire medical record but opposite party-hospital refused. From post mortem report it was revealed that the deceased had fracture of left partial bone and there was evidence of haematoma of left side of the brain and even the membranes were found congested. 100 ml. free clotted blood was also found in the brain. Opposite party- hospital neither operated nor advised operation and on account of negligence of opposite party-doctors, Rajeev Aggarwal succumbed to death. The deceased, Rajeev Aggarwal was tee-totaller having good health and earning about 3 lakhs per annum and was also assessed to income tax. The deceased last assessed income was Rs.3,35,332/-. There is longevity of life in the family of the deceased as his father about

75 years old is alive, hence, complainant may be awarded Rs.30 lakhs as compensation along with 18% p.a interest.

3. opposite party-hospital filed written statement and submitted that deceased was given first-aid treatment as outdoor patient at the hospital of opposite party. It was admitted that C.T. scan of the head and X-ray of the chest was advised by the opposite party-hospital and Rs.300/- were charged, Rs. 600/- were charged for operation theatre and Rs.500/- were charged as fee of doctor. It was further admitted that first-aid treatment by putting bandages on the wounds of the deceased was given. Duty doctor of opposite party-hospital very vehemently advised the deceased to be admitted in the hospital but this advice was not followed and was not admitted in the hospital. When Rajeev Aggarwal was brought to the opposite party-hospital, he was accompanied by his friends and after sometime his father and brother Dr. Rohit Aggarwal came there and they were of the firm view that they did not want to admit Rajeev Aggarwal in opposite party-hospital or take further treatment from the opposite party- hospital. Dr. Rohit Aggarwal represented himself to be a doctor having his own nursing home at his house where he wanted to treat the deceased. So, the deceased was not admitted in opposite party-hospital, hence, question of discharge does not arise. The deceased was not in a condition to be taken to Delhi rather should have been admitted in opposite party-hospital for proper care and treatment. The deceased was brought to the opposite party-hospital in the afternoon of 14.10.2001 and was taken away within an hour by his brother Dr. Rohit Aggarwal, his father and other relatives. As the deceased was not given proper care and treatment by his own relatives the deceased, Rajeev Aggarwalexpired. It was denied that complainants contacted the opposite party- hospital to supply medical record and opposite party-hospital refused to supply the said medical record. The deceased’s earning, longevity of life and his last assessed income was also denied. It was further submitted that no compensation is payable by opposite party-hospital as there was no negligence or deficiency of service on the part of the opposite party-hospital and prayed for dismissal of complaint.

4. Complainants filed replica and alleged that Duty Doctor of the opposite party- hospital did not advise admission in the hospital and further alleged that Dr. Rohit Aggarwal did not say that they do not want to admit the deceased or take further treatment at the hospital. Deceased was neither properly treated nor CT Scan was properly observed and deceased was negligently discharged, he was not taken voluntarily from opposite party-hospital and further submitted that deceased expired on account of negligence of opposite party-hospital.

5. Complainants filed affidavit of Mahesh Prasad Aggarwal (father) and Dr. Rohit Aggarwal (Brother). Opposite party filed affidavit of Dr. Munishwar Gupta (Managing Director of opposite party-hospital). Parties also filed documents in support of their case.

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

7. Learned Counsel for the complainant submitted that opposite party-hospital discharged the deceased Rajeev Aggarwal negligently, though, deceased was not in a position to move, hence, complainants may be awarded compensation. On the other hand, learned Counsel for the opposite party submitted that deceased was never admitted as indoor patient in opposite party-hospital, but was given first-aid and in spite of advice of opposite party Duty Doctor, relatives of deceased took away the deceased from opposite party-hospital in such circumstances, no deficiency on the part of opposite party-hospital, hence, complaint may be dismissed.

8. It is an admitted case of the parties that deceased, Rajeev Aggarwal sustained injuries on 14.10.2001 in an accident and was brought to opposite party-hospital by some persons. It is also admitted that deceased Rajeev Aggarwal’s C.T. Scan and X- ray of chest was done by opposite party-hospital after charging money and opposite party-hospital also charged Rs.600/- as O.T. Charges and Rs.500/- as Doctor’s examination fee. It is also admitted case of the parties that after putting plaster and bandages on the left hand of the deceased, he was discharged/takenaway by his relatives from opposite party-hospital.

9. Learned Counsel for the complainants vehemently argued that opposite party- Duty Doctor committed negligence in discharging patient from the hospital and placed reliance on Notification dated 11.3.2000 issued by Medical Council of India. He has drawn our attention to para 1.3 of Chapter I (Code of Medical Ethics) according to which every physician is required to maintain medical record pertaining to his indoor patient for a period of 3 years. The important question in this case is whether the deceased, Rajeev Aggarwal was indoor patient in the opposite party-hospital. Opposite party- hospital has proved Annexure ‘E’ vide affidavit of Dr. Gupta which reveals that on 14.10.2001, 4 patients were admitted in opposite party-hospital and deceased was not admitted in the opposite party-hospital as indoor patient. In these circumstances, Notification dated 11.3.2000 issued by the Medical Council of India is not applicable to the present case and opposite party-hospital was not required to maintain the medical record of deceased Rajeev Aggarwal, as deceased was treated as outdoor patient and after C.T. Scan, X-ray and giving first-aid, the deceased Rajeev Aggarwal was taken away from opposite party-hospital by his family members and relatives.

10. Complainant Mahesh Prasad Aggarwal has mentioned in para 1 of his affidavit that Rajeev Aggarwal died on 21.11.2001 which is not correct in the light of evidence of other witness and documents which shows that Rajeev Aggarwal died on 15.10.2001. Complainant Mahesh Prasad Aggarwal and Dr. Rohit Aggarwal who is brother of deceased have stated in their affidavit that deceased was not fit and on reaching home he was very uncomfortable and his condition was deteriorating. His sufferings were manifold and pain was unbearable and in such circumstances it was decided to shift him to a good hospital in Delhi and accordingly the ambulance was hired on 15.10.2001. This evidence reflects that after taking deceased Rajeev Aggarwal from opposite party-hospital he was brought to his residence which is not believable because when his legs and hands were not moving properly and was suffering from severe pain in back and head, no person will take his kith and kin to his home instead of shifting him to some hospital particularly when deceased’s brother Dr. Rohit Aggarwal was running Usha Memorial Health Centre in the same city having 24 hrs. facility for fracture and accident cases as reflected in photograph of Annexure ‘A’, ‘B’ & ‘C’ which have been proved by opposite party’s evidence. In normal course either Rajeev Aggarwal would have been brought to Dr. Rohit Aggarwal’s hospital or admitted to some other hospital instead of bringing him home as condition of Rajeev Aggarwal was deteriorating. Complainant’s witness nowhere explained that after taking Rajeev Aggarwal to opposite party-hospital where was he kept for another 24 hours or more before proceeding for Delhi. It was obligatory on their part to lead evidence and prove that in last 24 hrs. proper care of the deceased Rajeev Aggarwal was taken which they failed to do, rather they have suppressed material facts about his treatment in last 24 hours.

11. Complainant’s witness simply say that after plaster, opposite party informed that Rajeev Aggarwal is alright and fit and can be taken to home and he was discharged. This statement has not been supported by any other independent witness, though, as per complaint and written statement, Rajeev Aggarwal was brought to opposite party-hospital just after accident by other persons and these two witnesses reached opposite party-hospital after sometime. Both witnesses being interested in the complaint cannot be believed unless supported by other independent witness, particularly, when opposite party in the written statement specifically stated that Duty Doctor of opposite party-hospital advised the deceased to be admitted in the hospital but his advice was not followed and Rajeev Aggarwal was not admitted in the hospital.

Same fact has been proved by affidavit of opposite party witness. In such circumstances, it cannot be believed that in spite of insistence by the deceased’s father and brother, the deceased was not admitted in opposite party-hospital and was discharged but this inference can be drawn that advise of opposite party-hospital was discarded as deceased’s brother Dr. Rohit Aggarwal was having his own hospital in the same city. He and his father insisted opposite party-hospital not to admit Rajeev Aggarwal in the hospital and took away him for treatment either in Dr. Rohit Aggarwal’s hospital or in some other hospital where Rajeev Aggarwal’s condition deteriorated and ultimately died on next day.

12. Learned Counsel for the complainant has not alleged any deficiency in taking C.T. Scan, X-ray and plaster of Rajeev Aggarwal’s left hand. In such circumstances, neither any negligence nor any deficiency of service can be attributed on the part of opposite party-hospital towards treatment of Rajeev Aggarwal and no compensation can be awarded to the complainant on account of sad demise of the deceased Rajeev Aggarwal on next day.

13. Learned Counsel for the complainant placed reliance on I (2006) CPJ 16 (NC) – Dr. Shyam Kumar Vs. Rameshbhai Harmanbhai Kachhiya in which it was held that if fees is paid towards receiving medical services by the complainant, the complainant falls within the purview of consumer. There is no dispute on this legal aspect and certainly in the present case complainants being legal heir of deceased, falls within the purview of consumer as opposite party has charged fees for C.T. Scan, X-ray, etc. Learned Counsel for the complainant also placed reliance on (2005) 6 SCC I – Jacob Mathew Vs. State of Punjab and Anr. in which it was held that complainant has to prove 3 constituents, namely; (1) the existence of a duty to take care, which is owed by the defendant to the complainant; (2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both casually connected with such breach and recognised by the law, has been suffered by the complainant. It was further observed that if the claimant satisfies the Court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. We agree with the proposition of law laid down by Hon’ble Apex Court but this citation does not help to the complainants in the present case. Pleadings and evidence clearly proves that when Rajeev Aggarwal was brought to Opposite party-hospital, C.T. Scan, X-ray, etc. were done immediately and his hand was plastered and in such circumstances, it can be presumed that Opposite party- hospital took care of the deceased, Rajeev Aggarwal. Complainant has failed to show any negligence or deficiency in taking C.T. Scan, X-ray or plastering his hand. Leaned Counsel for the complainant submitted that Opposite party-hospital discharged Rajeev Aggarwal against the wishes of deceased, hence, Opposite party-hospital is guilty of negligence as Opposite party-hospital failed to take standard of care required under the law. This argument is devoid of force in the light of discussion made earlier as we have come to the conclusion that Rajeev Aggarwal, the deceased was never admitted as indoor patient in the Opposite party-hospital, rather Rajeev Aggarwal was taken away by the complainant, Mahesh Prasad Aggarwal and deceased’s brother Dr. Rohit Aggarwal and other relatives against the advice of Duty Doctor of Opposite party-hospital and further supressed material facts about Rajeev’s treatment in last 24 hours after he was taken away from Opposite party-hospital.

14. Learned Counsel for the complainant also placed reliance on I (1997) CPJ 332 – Kanaiyalal Ramanlal Trivedi & Ors. Vs. Dr. Satyanarayan Vishwakarma & Anr. in which it was held that in case of death due to medical negligence compensation can be awarded as in fatal motor accidents. This citation does not help the complainant in present case as complainant has failed to prove negligence or deficiency on the part of Opposite party-hospital.

15. In the light of the above discussion, it becomes clear that Opposite party- hospital was neither negligent nor deficient in providing services to the deceased, Rajeev Aggarwal and complaint is liable to be dismissed.

16. Consequently, complaint filed by the complainants against Opposite party- hospital is dismissed. Parties are directed to bear their own costs. ..………………Sd/-……………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( SURESH CHANDRA)

MEMBER K NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 897 OF 2012.

( From order dated 19.01.2012 in FAIA 98 of 2012 in FASR 217 of 2012

of State Consumer Disputes Redressal Commission, Andhra Pradesh )

Shriram Transport Finance Co. Ltd. Represented by its Senior Recovery, Executive, D. No. 54-15-5, 2nd Floor, Dhoom Complex, Near Srinivasa Nagar, Bank Colony, Vijaywada.

…Petitioner

Versus

Syed Mahaboob Ali, S/o Syed Vali Basha, D. No. 19-13/3-20, Main Road, Near Habeed School, Old Rajharajeshwaripeta, Vijayawada, A. P.

….Respondent

(2) REVISION PETITION NO. 898 OF 2012.

( From order dated 19.01.2012 in FAIA 99 of 2012 In FASR 214 of 2012

of State Consumer Disputes Redressal Commission, Andhra Pradesh )

The Branch Manager Shriram Transport Finance Company Ltd. D. No. 54-15-5, 2nd Floor, Dhoom Complex, Near Srinivasa Nagar, Bank Colony, Vijaywada.

…Petitioner

Versus

Syed Ayesha D/o Syed Abdul Khader D. No. 19-13/3-20, Main Road, Near Habeed School, Old Rajharajeshwaripeta, Vijayawada, A. P.

….Respondent

BEFORE:

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

For the Petitioners : Mr. Lenin Singh Hijam, Advocate

Pronounced on: 4 th January, 2013 ORDER

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

Above noted petitions have been filed by the petitioners being aggrieved by order dated 19.1.2012 of State Consumer Disputes Redressal Commission, Andhra Pradesh (for short, ‘State Commission’). As common question of law and facts are involved, these petitions are being disposed of by this common order. .

2. Facts in brief are that respondents/complainants purchased TATA Ace Autos which have been financed by the petitioners/OP, by hypothecating their vehicles. Petitioners seized the vehicle without any intimation. Accordingly, respondents filed complaint before the District

Consumer Disputes Redressal Forum-II Vijayawada, (for short, ‘District Forum’).

3. Notices of the complaints were issued to the petitioners. Inspite of receiving the notice, petitioners failed to contest the matter before the District Forum. Accordingly, District Forum, vide its order dated 08.06.2011, allowed the complaints.

4. Aggrieved by the order of the District Forum, petitioners filed appeals before the State

Commission. Alongwith it, applications seeking condoning the delay of 168 days were also filed. The State Commission, vide impugned order, dismissed the same.

5. Hence, the present revision.

6. I have heard the learned counsel for the petitioners who have also filed written arguments in support of its case. .

7. Petitioners, as per its written arguments have challenged the order passed by the fora below on merits. Regarding applications for condonation of delay, it has been simply mentioned that small period of delay can be condoned under the Consumer Protection Act,

1986 (for short, ‘Act’) by imposing cost. In support, learned counsel has relied upon certain judgments also.

8. State Commission in its impugned order observed; “ 2) The opposite party finance company preferred the appeal when it was directed to return the vehicles on payment or certain amounts or pay Rs.1,28,900/- + Rs.72,000/- + Rs.57,800/- together with compensation of Rs. 5,000/- and costs of Rs.2,000/- and along with it above application to condone delay of 168 days in filing the appeal on the ground that on receipt of copy of order on 9.11.2011 it had contacted its counsel and on verification it came to know that no notice was served nor an opportunity was given. On that it had taken copy of the record from the Dist. Forum, and in the process delay of 168 days was caused. It also alleged that the complainant sent the notice to its older address knowing full well that it has shifted its office.

6). When the delay was whopping 168 days without any explanation and considering the fact the delay in preferring the appeal was not satisfactorily explained, it is a fit case where the petition is liable to dismissed, and consequently reject the appeal.

7). In a latest decision the Hon’ble supreme Court in Anshu Aggarwal Vs. New Okhla Industrial Development Authority reported in IV (2011) CPJ 63 (SC) opined: “ It is also opposite 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. With the above observations, the application for condonation of delay is rejected and the special leave petition is dismissed as barred by limitation”.

8) The parties seeking relief has to satisfy the court that he/she has sufficient cause for not preferring the appeal within the time prescribed and the explanation has to cover the entire period of delay. A litigant cannot be permitted to take away a right which has accrued to his adversary by lapse of time. Proof of sufficient cause is a condition precedent for the exercise of discretion of jurisdiction vested in this Court under Section 15(a) of the Consumer Protection Act. The discretion conferred on this court is a judicial discretion and is exercised to advance justice and even if there is a strong cause for acceptance of the appeal that would not be a ground for condoning the delay. Consumer Protection Act provided for speedy redressal to consumer disputes. It follows that the delay cannot be allowed to occur in a routine way and sufficient cause should be made with specific reasons given supported by material; and that the discretion for entertaining the appeals filed beyond the period allowed will not be exercised in a light and routine manner. 9) We may also state herein that the respondent should not be denied the right accrued to him on expiry of limitation provided for to prefer an appeal. If he receives summons or notices after a lapse of time he may surprise and may not be able to comprehend as to when the litigation would come to an end. As was opined the explanation has to reasonable, plausible and believable. Mere explanation is not sufficient for condoning the delay in favour of applicant. It is does not satisfy the ingredients, and that it does not reflect ‘sufficient cause’ then the application should be dismissed. When consistently routine and rigmarole facts are pleaded without any justification or proof condonation of delay cannot be made. We are of the opinion that the ground being routine and absolutely n o document whatsoever was filed to justify the delay, we are unable to entertain the application”.

9. It is basic principle of law that question of limitation should be decided at the threshold.

Without deciding the question of limitation, petition cannot be considered on merits. 10. Admittedly, petitioners were ex parte before the District Forum and as such no written statement was filed. Under these circumstances, petitioners have no defence on merits. Moreover, valuable rights have accrued in the favour of the respondents.

11. It is well settled that “sufficient cause” for condoning the delay in each case is a question of fact. 12. 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.”

13. 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.”

14. 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.”

15. 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.

The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987)2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and 10 Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106”. 16. Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has observed ;

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

17. Petitioners’ affidavit seeking condonation of delay, filed before the State Commission, interalia states;

“ That the District Forum was pleased to dispatch the said orders on 23.06.2011 and the same was not served to our company and came to know about the pendency of the litigation only when the complainant has sent the notice to the new address on 09.11.2011. I crave leave of this Hon’ble Commission to read the memorandum of grounds as part and parcel of this affidavit.

3. I submit that the said order was received by us on 9.11.2011. That after receiving the orders I have contacted my counsel and requested to obtain all the case papers and after verifying the same I came to know that no notice is served to us and with out giving us any opportunity the order is passed I immediately applied Original certified copy of the Order and other contacted papers from the court as such could not hand over the entire material papers including the original order copy to the Company Counsel for filing the Appeal in time.

4. I submit that I came to know about the legal proceedings on 09.11.2011 immediately all the relevant papers were sent to the counsel for filing appeal. During the process there is a delay______days in filing the Appeal. The delay in filing the Appeal is caused due to the above reason which neither will fall nor wanton it is just and necessary that this Hon’ble Commission may kindly condone the delay in interests of justice. I, therefore, pray that this Hon’ble State Commission may be pleased to condone the delay of______days in filing the above Appeal otherwise the petitioner will suffer great damage irreparable loss which cannot be compensated in any manner”.

18. In entire affidavit, petitioner has nowhere stated as to how much days of delay was there in filing the appeal before the State Commission. Be that as it may, as per affidavit case of petitioner is that District Forum has dispatched the order on 23.06.2011 which was not served to their Company. Petitioner came to know about the pendency of the litigation only when respondent had sent the notice at the new address on 9.11.2011.

Affidavit further states that, petitioner thereafter contacted its counsel. No details have been mentioned in the affidavit so as to show as to when, petitioner after getting the copy of order on 9.11.2011, had sent the papers to its counsel. What is the name and address of that counsel and on which date the appeal was made ready. The affidavit is absolutely silent on these material facts.

19. Main plea taken by petitioner is that they had shifted to a new address and as such they could not get the copy of order passed by the District Forum within time. This plea is against the record

20. In the complaint (Page 41 of the paper-book) address of petitioner has been mentioned as; “Shriram Transport Finance Company Ltd., Rep. by its Branch Manager, D. NO. 40-1-100, B.H.R. Plaza, Benz Circle, Kanna Nagar, Vijayawada ”.

21. District Forum has also mentioned the same address in its order, dated

8.6.2011. Even in appeal memo filed by the petitioners before the State Commission, same address has been mentioned. Appeal before the State Commission was filed in

January, 2012. Thus, as per petitioners’ own case, above mentioned was the address of the petitioner in January, 2012 also. Thus, this plea that petitioner did not receive the copy of order of District Forum and they came to know about the litigation only when respondents had sent notice to their new address on 09.11.2011, is against the record.

22. There is nothing on record to show that petitioner did not get the copy of the order at the address mentioned in the complaint. Interestingly, petitioners have not placed on record the certified copy of the order of the District Forum, so as to show as to on which date certified copy of order dated 8.6.2011 was prepared and on which date, the same dispatched and at which address it was sent. In the absence of these relevant facts, inference has to be drawn against the petitioner.

23. Since, no sufficient cause has been shown by the petitioner in its application seeking condonation of delay, the State Commission was justified in not condoning the delay. I do not find any ambiguity or legality in the impugned order passed by the State

Commission. Thus, there is no jurisdictional or legal error in the impugned order.

Hence, present revision petitions are accordingly dismissed with cost of Rs.10,000/-

(Rupees Ten Thousand Only) each.

24. Petitioners are directed to deposit the total cost of Rs. 20,000/- (Rupees Twenty

Thousand only) by way of demand draft in the name of “Consumer Legal Aid

Account” of this Commission, within four weeks from today.

25. In case, petitioners fail to deposit the aforesaid costs within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization.

26. List on 15th February, 2013 for compliance

……………………………...J

(V.B. GUPTA)

PRESIDING MEMBER SSB

REVISION PETITION NO. 1660 OF 2011 (From the order dated 13.04.2011 in Appeal No.610/08 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

Abhikram, Through its Partner Mr. Nimish Patel, Amrit-Lila Bungalow, Off Nagari Hospital Road, Near Gujarat College, Ahmedabad – 380 006

… Petitioner/OP

Versus

Hotel Himmatgarh Palace, through Col. Mansingh Managing Director, Thar Hotel (P) Ltd., Jaisalmer – 345 001

… Respondent/Complainant

BEFORE

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

For the Petitioner : Mr. Shivram, Advocate For the Respondent : Mr. Bharat Bhushan, Advocate

PRONOUNCED ON 8 th January , 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, MEMBER

This revision petition has been filed against the order dated 13.4.2011 passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, ‘the

State Commission’) in Appeal No. 610/08 – Hotel Himmatgarh Palace Vs. Abhikram by which order of District Forum dismissing complaint was set aside and appeal was partly allowed and respondent/petitioner was directed to pay Rs.2,65,300/- along with 9% p.a. interest to the complainant.

2. Brief facts of the case are that respondent/complainant hired architectural and structural consultancy of the petitioner/OP for renovation and extension of the Himmatgarh Palace Hotel complex at Jaisalmer. This service was to be provided in two stages, namely; conceptual stage and schematic stage. Complainant paid a sum of

Rs.5,30,600/- as consultancy fee to the opposite party but as conceptual design was not complete, complainant filed complaint for refund of fee along with compensation and cost of litigation. OP/respondent filed written statement and submitted that complainant is not a consumer as defined in the Consumer Protection Act, hence, complaint may be dismissed. Further, it was alleged that complaint has been filed with the illegal motive to get the work completed without paying fees and took many other objections regarding jurisdiction, etc. Learned District Forum vide its order dated 4.3.2008 dismissed the complaint holding that complaint does not fall within the purview of consumer against which State Commission vide impugned order partly allowed the complaint. Hence, this revision petition has been filed.

4. Learned Counsel for the petitioner submitted that complainant/respondent does not fall within the purview of consumer and learned State Commission has committed error in allowing complaint partly as the purpose of availing services of the petitioner was for commercial purposes, hence, petition may be allowed and order of the State

Commission may be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by the learned State Commission is in accordance with law as complainant after retirement from military services tried to develop his palace for his livelihood, hence, the petition may be dismissed.

5. As per averment of the complaint, complainant is

Hotel Himmatgarh Palace. Nowhere it has been mentioned in the complaint that its

Director, Man Singh is running this Palace for earning his livelihood by means of self- employment. Perusal of paragraph 10 of the District Forum order reveals that about 80 rooms were to be developed in complainant’s hotel. Memo of appeal filed before the learned State Commission also reveals that complainant, Himmatgarh Palace is branch of Thar Hotels (P) Ltd. which is registered under Company’s Act. Thus, it becomes very clear that complainant, Himmatgarh Palace is branch of Thar Hotels (P) Ltd. and about 80 rooms were to be developed in this hotel and for this purpose architectural services were taken from the petitioner/OP.

6. Learned Counsel for the petitioner has rightly argued that developing 80 rooms for hotel purposes cannot come within the purview of earning livelihood by means of self-employment. Learned Counsel for the respondent has simply argued that hotel was to be developed for self-employment which argument cannot be accepted because, firstly, no averment has been made in the complaint that services were availed for earning livelihood by means of self-employment and secondly complainant being branch of Thar Hotels (P) Ltd.,Jaisalmer, this business cannot come within the purview of business for earning livelihood by means of self-employment. In such circumstances, complainant/respondent does not fall within the purview of consumer under Section 2 (d) of the C.P. Act. Complaint was not maintainable before District

Forum and learned District Forum has not committed any error in dismissing complaint, though, on other grounds and learned State Commission has committed error in partly allowing the complaint and petition is liable to be accepted.

7. Consequently, the revision petition filed by the petitioner against the respondent is allowed and impugned order dated 13.4.2011 passed by the learned State

Commission is set aside and complaint is dismissed. Complainant/respondent may initiate appropriate proceedings for recovery of fees, etc. before any other Forum/Civil

Court. Parties to bear their own cost. ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER

..……………Sd/-………………

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2270 OF 2011 [Against the order dated 01.04.2011 in Appeal No. 389/2010 of the State Consumer Disputes Redressal Commission, U.T. Chandigarh]

M/s Worldwide Immigration Consultancy Services Ltd. Through its Authorized Representative Shri Rajiv Bajaj SCO No. 2415-16, Sector 22-C Chandigarh

… Petitioner

Versus

1. M/s Reliance General Insurance Co. Ltd. (Anil Dhirubhai Ambani Group) Through its Chairman SCO No. 212-213, First Floor, Sector-34 Chandigarh

2. M/s Reliance General Insurance Co. Ltd. (Anil Dhirubhai Ambani Group) Through its General Manager SCO No. 212-213, First Floor, Sector-34 Chandigarh

3. M/s Reliance General Insurance Co. Ltd.Through Rajesh Sharma, Sr. Manager SCO No. 212-213, First Floor, Sector-34 Chandigarh … Respondents

BEFORE:

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

For the Petitioner : Mr. Sunil Goyal, Advocate Mr. Sujit K. Singh, Advocate

For the Respondents : Mr. Navneet Kumar, Advocate

Pronounced on : 9 th JANUARY, 2013

O R D E R

PER SURESH CHANDRA, MEMBER

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

Protection Act, 1986 against the order dated 01.04.2011 passed by the State Consumer

Disputes Redressal Commission, U.T. Chandigarh (‘State Commission’ for short), by which the State Commission dismissed the appeal filed by the petitioner. The petitioner had through his appeal before the State Commission challenged the order dated

31.08.2010 passed by the District Consumer Disputes Redressal Forum-II, U.T.

Chandigarh (‘District Forum’ for short) in Complaint Case No. 1456 of 2009, by which the District Forum had dismissed the complaint of the petitioner. The orders of the

District Forum and the State Commission are placed on record. 2. Briefly stated, the facts of the case are that the petitioner/complainant had purchased a vehicle BMW X Series X5 3.0 D from M/s Krishna Automobiles,

Chandigarh vide invoice dated 29.07.2008 for an amount of Rs.57,95,000/-. This vehicle was insured with M/s Reliance General Insurance Co. Ltd., who are the respondents/opposite parties, vide Private Car Policy valid for the period 27.07.2008 till midnight 28.07.2009. The Insured Declared Value (IDV) of the vehicle was

Rs.55,05,250/-. On 18.12.2008, the vehicle met with an accident at Chandigarh and suffered extensive damage, about which an FIR was lodged with the police station and accident was also reported to the office of the respondents/opposite parties. On

30.12.2008, the said vehicle was inspected by one Shri Kailash Chandra, Surveyor and

Loss Assessor, who assessed the loss and prepared an estimate for repairs. As per the report of the surveyor, the damage to the vehicle was assessed at Rs.41,95,457/-.

According to the petitioner/complainant, the repairs of the said vehicle had crossed 75% of the IDV and hence the vehicle was to be declared as total loss as per terms of the policy. However, the respondents/opposite parties refused to declare the said vehicle as total loss case and insisted on getting the repairs of the vehicle done. Later on, it appears that another surveyor, namely, Engineer Vinod Kumar Sharma, independently surveyed the vehicle on 12.02.2009 and vide his report dated 12.02.2009 assessed the loss at Rs.41,56,839/-. This surveyor also remarked that it would not be much economical to get the vehicle repaired as after the major repairs, the vehicle would not come to its original position. It is the case of the petitioner/complainant that despite the later survey report and his repeated requests, the respondents/opposite parties kept on delaying the settlement of the claim and paid only Rs.22,99,000/- to the petitioner/complainant as claim amount and additional sum of Rs.20,00,000/- was received on sale of the salvage to a third party with the help of the respondents/opposite parties. As such, according to the petitioner/complainant, the total amount paid to the petitioner/complainant was Rs.42,99,000/- i.e. 78.08% of the IDV, which is more than

75% of the IDV and, hence, it should have been treated as the case of total loss but since the respondents/opposite parties declined to do so, alleging deficiency in service on their part, the petitioner lodged a complaint before the District Forum, which, as stated above, the District Forum dismissed. The appeal filed against this order also came to be dismissed by the State Commission vide its impugned order and in these circumstances the petitioner/complainant has come to the National Commission through the present revision petition.

3. We have heard Mr. Sunil Goyal, Advocate for the petitioner/complainant and Mr.

Navneet Kumar, Advocate for the respondents/opposite parties and perused the record. 4. The broad facts of the case are more or less not under dispute. The only question, which has arisen for our consideration in this case, is as to whether the plea of the petitioner/complainant to treat the claim of the petitioner/complainant as a total loss in the light of the report of the second surveyor, Engineer Vinod Kumar Sharma, who was not appointed by the Insurance Company, should be accepted in spite of the petitioner/complainant having accepted the payment of Rs.22,99,000/- as full and final settlement from the respondents/opposite parties. Both the Fora below have rejected the case of the petitioner/complainant while dismissing the complaint. The State Commission while dismissing the appeal of the petitioner/complainant and upholding the order of the District Forum has recorded the following observations in support of the impugned order :- “ 10. The learned counsel for the OPs i.e. M/s Reliance General Insurance Company Limited has argued that the complainant has been compensated fully by the OPs. As per the terms and conditions, an IRDA approved surveyor was deputed to assess the loss. As per the report of the surveyor (Annexure R-2), the cash loss value was assessed at Rs.22,99,000/-. As per this report, the vehicle was very much repairable and was not a case of total loss within the meaning of the policy and for this reason, the OPs requested the complainant to get the vehicle repaired. Since the complainant was no(t) interested to get his vehicle repaired, therefore, the complainant has opted to settle the claim at cash loss basis and the OPs have settled the claim of the complainant after receiving the unconditional and free consent of the complainant for opting the cash loss and not choosing it to get the vehicle repaired. Hence, as per the request and consent of the complainant, the cash loss settlement was agreed upon, and the value of the claim was assessed at Rs.22,99,000/-. This was less than 75% of the IDV, which was duly accepted by the complainant in full and final settlement of the claim. Further the complainant has also received a sum of Rs.20 lacs as a salvage value, hence the complainant in total has received a sum of Rs.42,99,000/-. It is further argued that the report of Vinod Kumar Sharma, Surveyor is not admissible as this surveyor is not authorized surveyor of the OPs. It is next argued that the complainant has been fully compensated, hence prayed that the appeal filed by the complainant may kindly be dismissed with the heavy costs.

11. After going through the facts of the case, even we are of the opinion that the report of the surveyor Sh. Vinod Kumar Sharma, placed on record by the complainant is only an estimate for the repair of the vehicle. Moreover, this report of Sh. Vinod Kumar Sharma, Surveyor is of no value because he was not appointed as a surveyor by the insurance company for settlement of the claim. The report of the authorized surveyor i.e. Sh. Kailash Chandra, who was duly appointed, has been placed on record by the OPs, Annexure R-2 wherein the net claim amount has been shown as Rs.22.99 lacs, which was duly accepted by the complainant as full and final settlement. It is also clear that the complainant has also received a sum of Rs.20 lacs as salvage and in this respect, a discharge voucher was duly signed by the complainant. It is an admitted fact that the complainant has issued a consent letter dated 3.7.2009. No doubt, later on the complainant has also filed an applicated dated 12.8.2009, for withdrawal of the above said consent letter dated 3.7.2009 with regard to full and final settlement. In our opinion, in the absence of any cogent evidence, the reasons given for withdrawal of the consent letter is meaningless. Moreover, the OPs have immediately released the claim amount to the complainant after receiving the consent letter, which was duly received by the complainant without any protest. As, in the present case, the OPs have already settled the claim of the complainant as per the surveyor report. Therefore, there is no deficiency in service or unfair trade practice on the part of OPs and the learned District Forum has rightly dismissed the complaint. Therefore, we are of the view that the appeal filed by the complainant against the order passed by the learned District Forum is liable to be dismissed as devoid of merit.

5. We agree with the view taken by the State Commission in the matter. Besides the fact that the second surveyor was not appointed by the Insurance Company, admittedly the petitioner/complainant had accepted the net claim amount of Rs.22,99,000/- in full and final settlement of his claim and issued a consent letter dated 03.07.2009. In the absence of any fraud, misrepresentation, undue influence or coercion being used by the Insurance Company to make the petitioner/complainant to sign the discharge voucher, the claim now made by the petitioner/complainant cannot be accepted. In the given facts and circumstances, the three cases, namely, United India Insurance v. Ajmer Singh Cotton & General Mills & Ors. [II (1999) CPJ 10 (SC)]; Amir Ali A. Mukadam v. United India Insurance Co. Ltd. [IV (2007) CPJ 234 (NC)]; and National Insurance Co. Ltd. v. Boghara Polyfab Private Limited [(2009) 1 SCC 267] cited and relied on by learned counsel for the petitioner/complainant would not provide any comfort to the petitioner/complainant since each case has to be decided on its own merits in the light of the given circumstances. 6. Keeping in view the facts and circumstances of this case, we do not see any reason which would justify our interference with the impugned order. The revision petition, therefore, stands dismissed but with no order as to costs.

……………Sd/-………………. (K.S. CHAUDHARI, J.) PRESIDING MEMBER

…………Sd/-………………… (SURESH CHANDRA) MEMBER

Mukesh

REVISION PETITION NO.4073 OF 2012 (From the order dated 16.07.2012 in First Appeal No.166/2012 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

MR. SANKARANKUTTY P. PORAKKATT HOUSE, THALAVANIKKARA P.O. THALORE-680 306, THRISSUR DISTRICT, KERALA STATE.

...... PETITIONER

Versus

THE DEVELOPMENT OFFICER RUBBER BOARD REGIONAL OFFICE ANAPPARA, RAMAVARMAPURAM P.O., THRISSUR DISTRICT, KERALA STATE PINCODE: 680 631,

...... RESPONDENT

BEFORE:

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

For the Petitioner : In person

PRONOUNCED ON: January, 2013

This revision petition challenges order dated 16.07.2012 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (‘the State Commission’ for short) by which the State Commission dismissed the appeal filed by the petitioner.

2. The factual matrix of this case are that the petitioner-complainant purchased 190 rubber stems from the respondent-opposite party on 31.07.1991 for Rs.617.50 on a subsidized rate. According to the petitioner, the stems did not grow and the petitioner lost everything in the process. Since the petitioner was not familiar with the rubber plantation, he could not understand the quality of the rubber stems supplied to him by the respondent. Out of the 190 stems, very few had sprouted but those few also did not grow. This was brought to the notice of the Field Officer as well as the Development Officer of the Rubber Board. However, in spite of information of the damage suffered by the petitioner, the respondent Board did not return the expenses incurred by the petitioner for the rubber stems in question and hence the petitioner filed a complaint claiming the cost of the rubber stems with interest @ 15% and Rs.500/- as compensation.

3. On notice, the respondent-OP contested the complaint. It was submitted by the OP that as per his own admission, the petitioner was not familiar with the cultivation of the rubber and was ignorant about it. It was submitted that except the petitioner, the other 27 rubber farmers who had taken the rubber stems, there was no complaint from them. Regarding the allegation that the rubber stems were not of good quality, it was contended that the complaint in question was lodged only after one year and no expert inspected his cultivation or any report was filed by him regarding cultivation. It was also submitted by the OP that the petitioner being ignorant about the rubber plantation, he did not take proper care of the purchased stems and they were not planted in the pits having necessary depth and size. It was also stated by the OP that the pits were waterlogged and hence the stems did not sprout. Denying any deficiency on its part, the respondent prayed for dismissal of the complaint. The District Forum vide its order dated 02.11.2011 in Complaint No.247/1993 partly allowed the complaint by directing the respondent to return Rs.617.50 to the petitioner and to pay Rs.2,000/- as compensation along with costs of Rs.300/- within one month from the date of the order. Not satisfied with the order of the District Forum, the petitioner carried the matter to the State Commission by filing an appeal for additional compensation. As stated above, First Appeal of the petitioner was dismissed by the State Commission vide its impugned order which is now under challenge through the present revision petition.

4. We have heard the petitioner who has appeared in person.

5. It is to be noted that initially the complaint was filed by the petitioner on

19.04.1993 before the District Forum claiming the cost of rubber stems (which was Rs.617.50) with interest @ 15% and Rs.500/- as compensation. However, later on when in the first round of litigation before the State Commission the matter was remanded by the State Commission for fresh disposal after giving opportunity to both the parties to adduce evidence on the disputed issue whether the stems supplied were defective, the petitioner filed an amendment application dated 07.08.2008 for amending the complaint for loss of production of Rs.49,549.50. On remand, though the amendment application was allowed by the District Forum, a compensation only of Rs.2,000/- besides the return of the cost of the rubber stems amounting to Rs.617.50 along with litigation cost of Rs.300/- were allowed by the order dated 02.11.2011 by the District Forum (as indicated above). We find that the State Commission while upholding the said order of the District Forum and dismissing the appeal of the petitioner has recorded the following reasons in support of the impugned order:-

“7. The counsel for the respondent submitted that the rubber stems were given to the farmers at Government subsidized rate by the Rubber Board. The plants were of good quality and it does not carry any warranty for the plants as the growth of the plants differ due to the cultivation and climatic conditions. He also submitted that the growth of the plants depends on natural situation and also based on the proper nursing of the plant. The facts being so, it is not proper for the Forum below to fasten any liability on the opposite party, who are only a mediator. It is also argued that the Forum below ought to have dismissed the complaint in limine as the complaint is not sustainable. Submitting that there is absolutely no deficiency in service on the part of the opposite parties, the learned counsel argued that the complainant was not a traditional rubber planter and in his complaint itself he conceded that he was unaware of the plantation of the rubber stems. It is also pointed out that he approached the opposite party 3 months after planting the stems and by that time the sprouts were damaged. Further the respondent was provided with 190 plants in subsidized rate again in the next year. The additional claim made by the complainant was only after the case was remanded from the State Commission to adduce evidence for the opposite party. The amendment petition was filed only after 7 years. The counsel submitted that the additional claim has no legal stand at the stage of remand as the claim was barred by limitation and there cannot be any claim on the ground that the petitioner planted Koodathai in the same place. The additional claim is only an imaginary loss of production which is not supported with any substantiating evidence. There is no case for the appellant that he had produced any expert opinion regarding the loss of rubber stems.

8. On an appreciation of the arguments advanced by the appellant and the learned counsel for the respondent and also on going through the records we are of the view that the appellant/complainant could not substantiate proper evidence to show the loss of production that would have incurred in the rubber plantation for the 1 year. Merely giving the details in the publication and the market value could not be considered as the criteria for the assessment of loss of production of the rubber stems that would have grown and had assured yield in the future. The absence of any scientific criteria for the assessment of loss of production, we are not in a position to consider the claim of the compensation to the complainant. As there is no appeal preferred by the opposite party/respondent we are not disturbing the order passed by the Forum below and uphold the order.

In the result, appeal is dismissed. Parties are to suffer their respective costs.”

6. We agree with the view taken by the State Commission and in the given facts and circumstances, we do not see any reason to interfere with the order of the State Commission. Consequently, the revision petition stands dismissed at the threshold with no order as to costs. Sd/-

……………….……………

(AJIT BHARIHOKE J.)

PRESIDING MEMBER

……………….……………

(SURESH CHANDRA) bs MEMBER

FIRST APPEAL NO. 665 OF 2007

(Against the order dated 13.09.2007 in Complaint Case No. 80/2000(Hry)/RBT No.

121/2007 of the State Consumer Disputes Redressal Commission, U.T. Chandigarh)

1. Branch Manager Life Insurance Corporation of India Branch 11U, Plot No. 8, Sector- 11 Mathura Road, Faridabad

2. Senior Divisional Manager Life Insurance Corporation of India Divisional Office-II Jeevan Pragati, Plot No.6 District Centre, Laxmi Nagar Delhi Through Assistant Secretary Life Insurance Corporation of India Northern Zonal Office Jeevan Bharti, Connaught Circus New Delhi

… Appellants

Versus

Laxman Swaroop S/o Raja Ram C/o M/s Goel Electronics Main Bazaar Old Faridabad

… Respondent

BEFORE:

HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

For Appellants : Mr. Ashok Kashyap, Advocate

For Respondent : Mr. Narender S. Yadav, Advocate with

Mr. A. Anandan, Advocate

Pronounced on 11 th January, 2013

PER VINEETA RAI, MEMBER

1. This appeal has been filed by Life Insurance Corporation of India and another

(hereinafter referred to as appellants) being aggrieved by the order of the State

Consumer Disputes Redressal Commission, U.T. Chandigarh (hereinafter referred to as State Commission), which had allowed the complaint of Shri

Laxman Swaroop (respondent-complainant herein).

FACTS : -

2. In his complaint before the State Commission respondent-complainant had contended that his wife Smt. Sunita Devi (hereinafter referred to as the life assured) had taken a life insurance policy for an assured sum of Rs.3 Lakhs with the maturity date of

07.11.2027. It was a double benefit accident policy and, therefore, as per the terms of the policy in case of death of the life assured, respondent/complainant was to be paid an additional sum equivalent to the sum assured under the policy, if the death was caused solely and directly as a result of an accident. It was further contended that before issuing the insurance policy, thorough enquiries about the health of the life assured had been made by the appellant/Insurance Company and she was also examined by its doctors and found to be in good health. On 15.01.1998 the life assured fell down from the staircase in her own house and sustained serious and multiple injuries, including head injuries. She was immediately taken to City Hospital and

Maternity Home, Fariabad, where from she was referred to Dr. Puneet Mittal,

Orthopedic Surgeon, Faridabad on the same day. She, however, died three days later i.e. on 18.01.1998 due to the above serious injuries received by her as a result of her falling down from the staircase. After the death of his wife, respondent/complainant visited the office of the appellant-Insurance Company and informed it about the same and being a nominee of the life assured filed the necessary claim supported by relevant documents. However, even though all the required formalities were completed, the appellant-Insurance Company repudiated the claim vide its letter dated 02.11.1998 by leveling false allegations that the life assured was suffering from Koch’s Chest

(Tuberculosis) for over one year and she had consulted a medical practitioner for treatment and this important material information was suppressed while taking the insurance policy and, therefore, the appellant-Insurance Company was fully justified in repudiating the claim. Being aggrieved by the repudiation of the claim both on account of the death of his wife as also non-payment of the additional sum as per the double benefit accident clause, respondent-complainant filed a complaint before the State Commission alleging deficiency in service and requested that the appellant-Insurance

Company be directed to pay the claim amount of Rs.6 Lakhs under the life insurance policy taken by the life assured Smt. Sunita Devi since it was a double benefit accident policy along with interest @ 18% per annum from the date of her death till the date of actual payment to the respondent-complainant and also Rs.1 Lakh as damages and

Rs.11,000/- as litigation cost.

3. Appellant-Insurance Company on being served filed written statement refuting these charges. It was contended that the contract of insurance being one of

‘uberrima fides’ i.e. contract of utmost good faith, the life assured was legally bound to disclose all material facts, including the status of her health, which she failed to do. On the other hand, as per information available from the City Hospital And Maternity Home,

Faridabad dated 29.04.1997, it was clearly established that the life assured had been admitted in that hospital for medical complaints, which included Koch’s Chest i.e.

Tuberculosis. Therefore, appellant-Insurance Company was fully justified in repudiating this claim as per conditions of the insurance policy. Apart from this, it was further submitted that her death was not caused because of any injuries that she sustained when she fell down from the staircase, as contended by respondent-complainant, because as per the medical records these injuries were of minor nature and could not have caused her death. Therefore, the claim was rightly repudiated.

4. The State Commission after hearing both the parties and on the basis of evidence filed before it allowed the complaint by concluding that the appellants-Insurance

Company has not been able to conclusively prove that the life assured was suffering from Koch’s Chest (Tuberculosis) and that she had suppressed this material fact. The

State Commission also concluded that the terms and conditions of the policy were not brought to the notice of the life assured and in the absence of doing so it cannot be held that the policy was void and that the life assured had withheld certain material information regarding her health. The State Commission, therefore, directed the appellant-Insurance Company to pay the respondent-complainant Rs.6 Lakhs under the insurance policy with interest @ 9% per annum after three months of the death of the life assured i.e. 18.04.1998 till payment. Sum of Rs.5000/- was also awarded as compensation. Being aggrieved by this order, this first appeal has been filed.

5. Learned counsel for both the parties made oral submissions.

6. Learned counsel for the appellant-Insurance Company stated that the State

Commission erred in not taking cognizance of the important documentary evidence filed before it, namely, the admission file of the City Hospital and Maternity Home, Faridabad dated 29.04.1997, wherein it was clearly stated that the life assured had been suffering from Koch’s Chest (Tuberculosis) and was on ATT for over one year. This amounted to suppression of material facts and by withholding this information, the contract based on utmost good faith was clearly breached. Apart from this, from the medical report of

Dr. Puneet Mittal, the orthopedic surgeon, who treated the life assured after her fall, it is clear that the injuries caused were to the phalanx, little finger and shoulder. There was no mention of any serious injury, including head injury. She was given syrup Crilinctus and was advised review after one week. Clearly, these injuries were not serious enough to have caused her death. Under the circumstances, the claim under the double benefit accident policy was justifiably repudiated.

7. Learned counsel for the respondent-complainant on the other hand stated that the

State Commission has rightly concluded that there was no credible evidence to confirm that the life assured suffered from Tuberculosis and the admission file from the City

Hospital and Maternity Home, Faridabad could not be relied on since it did not have any signatures and was not supported by any evidence or affidavit, in this respect. It was again contended that admittedly the life assured had fallen accidentally on 15.01.1998 and died within three days of the same. Thus, there was clearly a nexus between her accidental fall and her death and, therefore, there was no justification in the repudiation of the claim under the double benefit accident policy.

8. We have heard learned counsel for the parties. We agree with the view taken by the State Commission that the appellants-Insurance Company was not able to produce any credible evidence to prove that the life assured was suffering from Koch’s Chest disease prior to her having taken the insurance policy. Production of a document to this effect does not amount to proving the same and in this case mere production of an admission file, whose authenticity has not been verified/confirmed, is not adequate proof of any pre-existing disease. However, we find force in the contention of the appellant-Insurance Company that from the documentary evidence produced by the respondent-complainant i.e. the medical report from Dr. Puneet Mittal, the orthopedic surgeon, who treated the life assured after her fall, does not indicate any serious injury which could have caused her death. There was no mention whatsoever of any head injury nor was she advised hospitalization which could have been necessary had she sustained any major injury. Only minor injuries to the phalanx, little finger and shoulder were mentioned in the report and respondent-complainant has not been able to produce any evidence including the post mortem report to support his statement that his wife died because of a serious head injury.

9. Keeping in view the above facts, we are unable to uphold the order of the State

Commission directing the appellant-Insurance Company to pay the respondent- complainant the entire amount of Rs.6 Lakhs under the double benefit accident policy and set aside the same. However, since the life assured had admittedly died during the validity of the policy, the respondent-complainant is entitled to Rs.3 Lakhs being the amount for which the life was insured.

10. In view of these facts, appellant-Insurance Company is directed to pay the respondent-complainant Rs.3 Lakhs with interest @ 9% per annum from the date of repudiation of the claim till its payment as also litigation cost of Rs.5000/-.

11. The appeal stands disposed of in the above terms.

Sd/- (ASHOK BHAN, J.)

PRESIDENT

(VINEETA RAI)

MEMBER Mukesh

FIRST APPEAL NO. 196 OF 2011 (From the order dated 20.12.2010 in CC No. C.C. No.03/24 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

Shri Ashok Kumar Sharma Plot No.73,Sector 17, Koper Khairane, Navi Mumbai 400 709 Through Power of Attorney Holder of Shri Sanjiv H. Sharma, Plot No. 73, Sector 17, Koper Khairane, Navi Mumbai 400709

… Complainant/Appellant

Versus

Ghanshyam Hemadev Res. at Last Apartment, 8th floor, 11-G, Mehta Road, Opera House, Mumbai 400007

M/s. Megha Properties Developers Pvt. Ltd. C/335, Big Splash Turbhe Road, Vashi Sector 17, Navi Mumbai 400 705, Mahartashtra

… Opp. Parties/Respondents

BEFORE

PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

For the Appellant : Mr. Sunil K. Kalra & Mr. Vikram Gola, Advocates

For the Respondents: Ms. Surekha Raman, Advocate

PRONOUNCED ON 11 th January, 2013

O R D E R

MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This appeal has been filed by the complainant/Appellant against the impugned order dated 20.12.2010 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in C.C. No. CC/03/24 – Ashok Kumar Sharma Vs. Ghanshyam Hemadev & Anr. by which complaint was dismissed.

2. Brief facts of the case are that the complainant booked Shop No. 2 with the opposite party and made payment of Rs.7,46,182/- from time to time, but still possession has not been handed over to the complainant, hence, filed complaint for directions to the opposite party to hand over peaceful and vacant possession of Shop No. 2 or in the alternative another shop of the same size along with prayer for awarding interest, compensation, cost, etc. Learned State Commission vide impugned order dismissed the complaint on the ground that after termination of contract there exists no relationship between the parties as the ‘consumer’ and ‘service provider’ and complaint is also time barred. 3. Heard the learned Counsel for the parties and perused record.

4. Learned Counsel for the appellant argued that as occupancy certificate has been issued in 2005, cause of action continued upto 2005 and complaint filed in 2003 is well within limitation and learned State Commission has committed error in dismissing complaint on the ground of limitation, hence, appeal may be accepted and order of

State Commission may be set aside. On the other hand, learned Counsel for the respondent argued that contract stood cancelled vide letter dated 11.12.1998 and further vide letter dated 14.12.1998 complainant asked for refund of deposited amount along with interest, hence, complaint filed in 2003 is clearly time barred and learned

State Commission has not committed any error in dismissing complaint on the ground of limitation.

4. Perusal of record reveals that complainant booked Shop No. 2 with the opposite party and made some payment. Ex.‘A’ reveals that complainant always made payments with delay and Rs.5,68,822/- remained outstanding against him upto 10.11.1998. It is admitted case of the parties that opposite party issued last and final reminder in December, 1998 and asked complainant to deposit outstanding amount before 5.12.1998. It was also mentioned in reminder that in case he fails to deposit the outstanding amount, the allotment shall stand cancelled without any further notice. Complainant vide letter dated 14.12.1998 requested the opposite party to refund Rs.7,46,182/- with 24% p.a. interest within 15 days failing which the complainant shall take appropriate proceedings. This notice was again replied by the opposite party vide letter dated 9.1.1999 in which complainant was directed to make all outstanding payments within 10 days failing which shop will finally stand cancelled without any further reference. In reply to this letter again the complainant vide letter dated 19.2.1999 asked opposite party to comply with the directions mentioned in letter dated 14.12.1998. These documents reveal that complainant failed to make payment as agreed between the parties and opposite party failed to construct and give possession of shop to the complainants, allotment stood cancelled in December, 1998 which was reaffirmed in January, 1999 and as the complaint was filed in 2003, it is clearly time barred and learned State Commission has not committed any error in dismissing complaint being time barred.

5. Learned Counsel for the appellant placed reliance on (2008) 7 SCC 585 – DLF Universal Ltd. Vs. Ekta Seth and Anr. in which allotment was cancelled due to non- payment of money but the Apex Court in exercise of powers under Article 142 directed the builder to return 50% of the forfeited amount to the allottee and further observed that this direction may not be treated as precedent. This citation does not help to the complainant at all on the ground of limitation. He also placed reliance on JT 2008 (10) SC 34 – V.N. Bharat Vs. D.D.A. & Anr. in which allotment was restored as show cause notice was never received by the allottee and DDA cancelled the allotment. This citation also does not help to the complainant because in the case in hand complainant admits receipt of notice given by opposite party and has prayed for refund of money with interest but has not taken appropriate steps within time and in such circumstances complaint being clearly barred by limitation has rightly been dismissed by the learned State Commission.

6. Consequently, appeal filed by the appellant against the respondent is dismissed with no order as to costs. Sd/-

..……………………………

PRESIDING MEMBER

..……………………………

( SURESH CHANDRA )

MEMBER k

REVISION PETITION NO.3990 OF 2011 (From the order dated 5.10.2011 in First Appeal No.102/2010 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Circuit Bench at Tirupathi)

Mudivarthi Radha Krishna S/o Raghavender Rao D.No. 27-2-56, Balaji Nagar, Nellore … Petitioner

Versus

The Branch Manager, Andhra Bank Plot No.15, Ward No.21, Balajinagar, Nellore Distt. Nellore … Respondent

BEFORE: HON’BLE MR. K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner : Mr. C.P. Suresh, Advocate PRONOUNCED ON: 13 TH JANUARY, 2013 ORDER PER SURESH CHANDRA, MEMBER This revision petition has been filed by the petitioner, who is the original complainant, against the order dated 5.10.2011 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Circuit Bench Tirupathi (‘State Commission’ for short) by which the State Commission allowed the appeal filed by the respondent/opposite party challenging the order dated 20.11.2009 passed by the District Consumer Disputes Redressal Forum, Nellore by which the District Forum had partly allowed the complaint of the petitioner and directed the respondent to pay Rs.50,000/- to the complainant alongwith interest @ 9% p.a. from the date of filing of the complaint. Vide its impugned order the State Commission the State Commission set aside the order of the District Forum and dismissed the complaint with cost computed at

Rs.2,000/- payable by the petitioner. It is in these circumstances, that the present revision petition has been filed. 2. We have heard Mr. C.P. Suresh, Advocate appearing for the petitioner and perused the record. 3. The only point for consideration before us in this case is as to whether the respondent Bank committed any deficiency in service in the collection of the cheque deposited by the petitioner with it. It is not under dispute that the petitioner presented the cheque in question dated 20.6.2007 for Rs.50,000/- with the respondent Bank on 17.12.2007. The cheque was valid upto 20.12.2007 and it was an outstation cheque drawn on Allahabad Bank, Hyderabad. The State Commission while reversing the finding of the District Forum held that if there was any delay, it was the complainant who was guilty of delay in presentation of cheque just three days prior to the expiry of the cheque. More so, when it was an outstation cheque, he ought to have presented the same well in advance to enable the OP Bank to collect the amount. The complainant cannot present the cheque at the 11th hour and then complain that there was delay which would constitute deficiency in service. In addition to this, the State Commission has also recorded the following reason in support of the impugned order: - “We may also state that the complaint for the reasons not known did not implead Allahabad Bank, Himayatnagar, Hyderabad as a party which had returned the cheque on the ground that it was stale. Appellant could prove by irrefutable documentary evidence on the day when the complainant had presented the cheque it has sent on the very same day for collection of amount to Hyderabad. Subsequent events were not in the hands of appellant bank in order to find out nor any deficiency in service attributable to Allahabad Bank at Hyderabad. Importantly, he has suppressed the document which viz. , cheque return memo, obviously he was afraid that entire case falls two ground. Considering the circumstances, we are unable to fix liability on the appellant bank nor we can say that there was deficiency in service on its part. The complainant is guilty of his own acts by presenting the chequejust three days before expiry. We do not subscribe to the view expressed by the Distt. Forum in this regard.”

4. We agree with the view taken by the State Commission. Admittedly only three days’ time was left before the expiry of the cheque which was an outstation cheque, when it was presented by the petitioner before the respondent Bank. The petitioner should have known that he himself was to be blamed for such extraordinary delay in presentation of thischeque and as such he had subjected himself to grave risk and if the validity period expired before the cheque could reach the payee bank which was at Hyderabad, the petitioner himself is to be blamed for this delay. The respondent Bank could not be held responsible for the same since it had dispatched the cheque well on time after its presentation for collection. Regarding the non-joinder of the payee Allahabad Bank, Hyderabad with a view to prove the allegation regarding the delay on the part of the respondent Bank, learned counsel submitted that only an oral request was made to this effect before the District Forum and as such it was not possible to produce any formal order of the District Forum regarding refusal to accept such request. We are not convinced with the explanation. The District Forum apparently did not appreciate the factual position properly while holding the respondent Bank deficient in service. In the circumstances, we do not find any reason to interfere with the impugned order which is based on the undisputed facts and the correct legal position. 5. Consequently, the revision petition fails. There shall be no order as to cost. ………………………….. (K.S. CHAUDHARI) PRESIDING MEMBER

………………………….. (SURESH CHANDRA) MEMBER Raj/

REVISION PETITION NO. 274 OF 2012 (From the order dated 24.05.2011 in Appeal No.2341/08 of the U.P. State Consumer Disputes Redressal Commission, Lucknow)

U.P. State Industrial Development Corporation (UPSIDC) Having its Head Office, A- 1/4, Lakhanpur, Post Box No.105, Kanpur , U.P. Through its Project Officer, Tronica City Administrative Office, Sector B-3, Tronica City, Ghaziabad (U.P.)

… Petitioner/OP

Versus

Smt. Shyama Rani W/o Sh. Ajay Kumar, R/o 2205/4, Chuna Mandi, Paharganj, New Delhi

BEFORE

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

For the Petitioner : Mr. Rajesh Raina, Advocate

For the Respondent : Smt.Shyama Rani, In person

O R D E R

This revision petition has been filed by the petitioner against the impugned order dated 24.5.2011 passed by the U.P. State Consumer

Disputes Redressal Commission, Lucknow (in short, ‘the State Commission’) in Appeal

No. 2341 of 2008 – Smt. Shyama Rani Vs. Uttar

Pradesh Rajya Audhyogik Vikas Nigam Ltd. by which order of District Forum was set aside and complaint was allowed and petitioner/OP was directed to allot industrial plot of 500 sq. mt. or smaller size to the complainant/OP.

2. Brief facts of the case are that complainant applied for an industrial plot measuring 500 sq. mt. and deposited a sum of Rs.1,22,500/- as the price of the industrial plot with petitioner/opposite party. Opposite party allotted plot of 600 sq. mt. instead of 500 sq. mt. and asked complainant to make payment of plot at escalated rate i.e. at the rate of Rs.1150/- per sq. mt. instead of Rs.935/- per sq. mt. Complainant requested opposite party vide letter dated 17.1.2001 that due to financial problem plot of smaller size measuring 450 sq. mt.may be allotted otherwise plot be treated as surrendered. Complainant again vide letter dated 19.2.2001 requested for allotment of plot measuring 450 sq. mt. otherwise cancel allotment and refund money. In pursuance to the aforesaid letters, opposite party refunded money as allotment of smaller size of industrial plot was not possible. Complainant again wrote a letter in October, 2006 and submitted that smaller size of plot was available, but intentionally complainant’s plot has been cancelled, hence, again requested to allot either original plot of 600 sq. mt. or plot of 400 to 450 sq. mts. at current rate which application was rejected vide letter dated 22.11.2006 by opposite party, hence, complainant filed complaint before the District Forum. Opposite party filed written statement and submitted that complainant is not covered under the Consumer

Protection Act and further submitted that as per request of the complainant allotment has been withdrawn and money has been refunded, hence, complaint may be dismissed. Learned District Forum vide its order dated 12.11.2008 dismissed complaint against which this revision petition has been filed.

3. Heard learned Counsel for the petitioner and respondent in person and perused record.

4. It is an admitted case that complainant applied for an industrial plot measuring

500 sq. mt and deposited money and opposite party allotted industrial plot measuring

600 sq. mt. This fact is not disputed that complainant vide letter dated 17.1.2001 requested for allotment of plot measuring 450 sq. mt. instead of 600 sq. mt. and in the alternate requested for treating this allotment as surrendered. Again vide letter dated

19.1.2001 complainant requested for allotment of plot measuring 450 sq. mt. instead of

600 sq. mt and further requested that either industrial plot of 450 sq. mt. be allotted or allotment of 600 sq. mt. plot be cancelled and money may be refunded and in pursuance to this letter money has been refunded to complainant by opposite party on

5.3.2001.

5. Later on vide letter of October, 2006, complainant again requested for the allotment of industrial plot of 600 sq. mt. or other plot of 400 to 450 sq. mt. at current rate which was rejected by opposite party.

6. Learned Counsel for the petitioner submitted that as complainant had surrendered the plot and money was refunded to him complainant does not fall within the purview of consumer. He further argued that as the plot was industrial, complainant does not fall within the purview of Consumer Protection Act and further submitted that complaint is time barred as money was refunded in 2001 whereas complaint has been filed in 2007 and in such circumstance, learned State Commission has committed error in allowing appeal and complaint, hence, revision petition may be accepted and order of

State Commission may be set aside. On the other hand, learned respondent submitted that petitioner has cheated with the respondent and has not allotted industrial plot of similar size as requested though plots of smaller size were available and in such circumstance order passed by learned State Commission is not in accordance with law , hence, revision petition may be dismissed.

7. It is admitted case that complainant vide its two letters referred to above surrendered industrial plot of 600 sq. mt and requested for refund of money and as petitioner had already withdrawn allotment and refunded money in 2001, complainant does not fall within the purview of C.P. Act. As refund was made in 2001 and complaint has been filed in 2007 on the ground of cheating, etc., complaint is clearly time barred and no application under section 24A has been filed along with the complaint and in such circumstances, as complaint being time barred could not have been entertained by the District Forum and learned State Commission has committed error in allowing time barred complaint.

8. Complainant/respondent was allotted industrial plot. Complainant has nowhere mentioned in the complaint that complainant prayed for allotment of industrial plot for earning her livelihood by means of self-employment and in such circumstances, complainant does not fall within the purview of consumer under Section 2 (d) of the C.P. Act and on this count also complaint was liable to be dismissed and learned State

Commission has committed error in allowing complaint.

9. Consequently, revision petition filed by the petitioner against the respondent is allowed and impugned order dated 24.5.2011 passed by learned State Commission is set aside and order of District Forum is upheld. There shall be no order as to costs. ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER

..……………Sd/-………………

MEMBER k

REVISION PETITION NO.1348 OF 2012 (From the order dated 07.12.2011 in First Appeal Nos.1437 & 1438 of 2011 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Smt. Ganga Patil W/o Mallikarjun Patil, R/o Hebbal, Tq. Chittapur, District Gulbarga

… Petitioner Versus

1. The Executive Engineer (Electrical) O & M Division-II, GESCOM, Jewargi Under Bridge Road, District Gulbarga

2. The Assistant Executive (Electrical) O & M Sub-Division, GESCOM, Post Kalgi, Tq. Chittapur, District Gulbarga … Respondents

REVISION PETITION NO.1349 OF 2012 (From the order dated 07.12.2011 in First Appeal Nos.1437 & 1438 of 2011 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Shri Prabhakar Patil S/o Bashanth Rao Patil R/o Bebbal, Tq. Chittapur, District Gulbarga … Petitioner Versus

1. The Executive Engineer (Electrical) O & M Division-II, GESCOM, Jewargi Under Bridge Road, District Gulbarga

2. The Assistant Executive (Electrical) O & M Sub-Division, GESCOM, Post Kalgi, Tq. Chittapur, District Gulbarga … Respondents

BEFORE: HON’BLE MR. K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner : Ms. Kiran Suri, Advocate

PRONOUNCED ON: 14 th JANUARY, 2013 ORDER PER SURESH CHANDRA, MEMBER Since both these revision petitions have been filed by the petitioners against a common order passed on 7th December, 2011 by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (‘State Commission’ for short) by which the State Commission had dismissed the two appeals filed by the two petitioners, these petitions are being taken up together and disposed of by this common order. 2. The factual matrix of the two cases which have similar facts are like this. Petitioner in R.P. No.1348/2012, Ganga Patil, had a pair of bullocks being used by him as an agriculturist. Through his servant he sent the bullocks for grazing. On 3.10.2004, while passing through the village path at about 11.00 a.m., the bullocks got electrocuted due to the fall of live electric wire and died on the spot. Immediately a complaint was lodged with the police which conducted Mahazar and post-mortem. Alleging deficiency in service on the part of the respondents, the petitioner filed a consumer complaint with the District Forum Gulbarga. In the other revision petition No.1349/2012 also similar incident took place with the bullocks of the other petitioner who were being taken for grazing by the servant of the petitioner. He too sustained the loss on account of the electrocution incident which caused the death of his bullocks. He lodged another similar complaint with the District Forum. 3. On notice, the OPs filed their written statement in which it was contended that the incident had occurred due to the carelessness and negligence of the complainants. It was further contended that the complainants are not consumers as defined under the Consumer Protection Act and as such there was no relationship between the complainants and the respondents. Since the claim made by the complainants was exorbitant, the respondents, in all fairness, settled the compensation for Rs.5,000/- in complaint filed by petitioner in R.P. No.1348/2012 and for Rs.2,000/- in the other revision petition. Both the petitioners/complainants received the said compensation without any protest. It was claimed that the compensation was towards full and final settlement. Accordingly, the respondents/OPs prayed for dismissal of the complaints. The District Forum vide its two separate orders in the two complaints passed on 31.3.2011 accepted the two complaints. In the complaint filed by the first petitioner, Ganga Patil, the opposite parties/respondents were jointly and severally directed to pay a sum of Rs.55,000/- to the complainant together with interest @ 9% p.a. from the date of filing of the complaint towards loss on account of death of the bullocks and they were also held liable to pay a sum of Rs.10,000/- towards compensation for mental agony alongwith cost of Rs.2,000/- In the other complaint, the District Forum ordered the opposite parties/respondents to jointly and severally pay a sum of Rs.28,000/- to the complainant together with interest @ 9% p.a. from the date of filing of the complaint till realization towards the loss on account of death of the bullocks besides awarding a compensation of Rs.10,000/- for mental agony and Rs.2,000/- by way of cost of the proceedings. Aggrieved by these orders passed by the District Forum, the petitioner/complainants filed appeals before the State Commission for enhancement of the compensation requesting for compensation of more than Rs.19 Lakhs. The State Commission vide its common impugned order, dismissed the two appeals. In these circumstances, the two petitioners have filed the present revision petitions reiterating their request for enhancement of the compensation. 4. We have heard Ms. Kiran Suri, Advocate for the petitioners and perused the record. Learned counsel contended that the compensation awarded by the fora below was too inadequate and was nowhere near the loss and the mental agony suffered by the petitioners. In this context, she has drawn our attention to the calculations of loss of income to the petitioners on account of non-availability of the bullocks which comes to several lakhs. In support of the amounts of compensation claimed by the petitioners, the counsel also drew our attention to the rates of different agricultural produce obtained by the petitioners from the Agricultural Produce Marketing Committee, Gulbarga. She further submitted that it was not correct to say that the fora below do not have power to award adequate compensation. She further submitted that in the present cases, the District Forum and the State Commission have failed to assess due compensation and what they have awarded is not correct and hence she strongly pleaded for enhancement in the amounts of compensation in the two petitions. In support of her contentions, she relied on the judgments of the Apex Court in the cases of Lucknow Development Authority vs. M.K. Gupta (1994) 1 Supreme Court Cases 243 and National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy & Anr. (2012) 2 Supreme Court Cases 506.

5. We have carefully considered the submissions made by learned counsel for the petitioners in the light of the peculiar facts and circumstances of this case. Both the fora below have held the respondents guilty of deficiency in service. The only question to be considered is in respect of quantum of compensation for the deficiency in service. The State Commission while dismissing the appeals for enhancement of the compensation amounts has made the following observation: -

“ We have gone through the grounds urged in the appeal memo and the arguments advanced. There is no proof that the said bullocks cost so much as on that day. Complainants during the course of enquiry by police stated that each bullock was worth of Rs.25,000/-. Under such circumstances, the D.F. has thoroughly considered each and every aspect of the matter and rightly come to the conclusion that the complainants are entitled for compensation and awarded compensation of Rs.55,000/- as far as a pair of bullock is concerned and Rs.28,000/- compensation as far as one bullock is concerned. It has also awarded separate compensation as well as litigation cost and the interest. Bearing in mind the relief granted the D.F. we are of the considered opinion that the said award is proper in consonance with the monetary loss suffered by the complainant. As already observed by us complainants have failed to make out substantial grounds and reasons so as to enhance the said compensation. Appeals appear to be devoid of merit.

6. We agree with the view taken by the State Commission while upholding the quantum of compensation awarded by the District Forum. The maximum amount which the claimants could have prayed for would normally not exceed the price of the bullocks. In the absence of any evidence to the contrary, the District Forum has gone by the police report indicating the worth of the bullocks at Rs.25,000/- each and pegged the value of each bullock at Rs.30,000/- and after deducting the amount of Rs.5,000/- already paid by the OP, awarded Rs.55,000/- in the case of Ganga Patil’s complaint where a pair of bullocks had died due to electrocution and Rs.28,000/- (after adjusting Rs.2,000/-) in the case of Prabhakar Patil’s complaint where one bullock was involved. Besides this, the cost of the proceedings and compensation had also been awarded. We consider this as a fair and just compensation in the given circumstances. It is not understood as to why the petitioners, who now claim to have suffered losses worth lakhs of rupees on account of the absence of these bullocks, did not replace them by purchasing new bullocks which would have cost them only as much as the price of bullocks rather than allegedly continuing to suffer financial losses over the period of time. We, therefore, do not find any merit in the claims put forth by the petitioners in these revision petitions and they are liable for dismissal. During the course of her submission, learned counsel for the petitioners pointed out that the petitioners had not accepted the cheques of Rs.5,000/- and Rs.2,000/- respectively sent by the respondents by way of compensation to settle the claims. However, the District Forum while partly accepting the complaints of the two petitioners had deducted these amounts from the amounts of award in each of the two complaints. In view of this, learned counsel submitted that the two amounts - Rs.5,000/- in the case of R.P. No.1348 of 2012 and Rs.2,000/- in the case of R.P. No.1349 of 2012 will have to be added to the amounts awarded by the District Forum even if the impugned orders of the Fora below are to be confirmed. We accept the submission made by learned counsel for the petitioners subject to its verification by the District Forum.

7. In view of the above, we confirm the impugned order and dispose of two revision petitions in terms of the above directions. There shall be no order as to costs. ………………Sd/-………….. (K.S. CHAUDHARI) PRESIDING MEMBER

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

REVISION PETITION NO.2544OF 2011 (From the order dated 03.05.2011 in First Appeal No.A/10/1027 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

Mr. Deepak Jayendra Mehata R/At no.5 B-3 Narendra Complex SP Road Dhar Khadi Cross Vaishali Nagar Dahisar (E) Mumbai Maharashtra.

...... PETITIONER

Versus 1. The Chairman HDFC Bank Ltd Retail Assets Division 3rd Floor Trade Star Building Opp. J B Nagar Andheri Kurla Road, Andheri (E) Mumbai Maharastra.

2. The Branch Manager HDFC Bank Ltd. Retail Assets Division 3rd Floor Trade Star Building Opp. J B Nagar Andheri Kurla Raod Andheri (E) Maharashtra.

3. The Manager/Director M/s OM Sai Motors Pvt. Ltd. Jyoti Plaza, S.V. Road, Kandivali (W), Mumbai-400067, Maharashtra.

...... RESPONDENTS

BEFORE: HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON'BLE MR.SURESH CHANDRA, MEMBER

For the Petitioner : Ms. Jayshree Satpute, Advocate

For the Respondents : Mr.Rishab Raj Jain, Adv. for R1& R2

Mrs. Bindu Jain, Adv. for R3

PRONOUNCED ON: 14 th January, 2013

This revision petition has been filed against the order dated 03.05.2011 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (‘the State Commission’, for short) by which the State Commission allowed the appeal of the petitioner only against OP no.3/respondent no.3 and remitted the matter back to the District Forum as against OP no.3 only and dropped the complaint against OPs no.1 and 2/respondent nos.1 and 2. The impugned order reads as under:- “ (i) Appeal is allowed only against Respondent/original Opponent No.3.

(ii) Impugned order as against Respondent/Original Opponent Nos.1 &2 stands confirmed.

(iii) The Consumer Complaint No.188/2008 is remitted back to the Forum as against Respondent/original Opponent no.3 only, in the light of the observations made in the body of the order.

(iv) Both parties, i.e. Appellant/original Complainant and Respondent/original Opponent No.3 shall appear before the Forum on 03.06.2011.

(v) The Forum shall give opportunity, if so desires by the Appellant/original Complainant to correct the description of original Opponent No.3. If such application is made, that should be decided on merit after hearing Opponent no.3.

(vi) The Forum shall also give proper opportunity to the parties before it, i.e. Complainant and Opponent No.3 to lead their respective evidence as per Provisions of Section 13(4) of the Consumer Protection Act, 1986 and thereafter them, settle the dispute according to law.

(vii) In the given circumstances, both the parties in appeal shall bear their own costs.

(viii) Appeal stands disposed of accordingly.”

2. Briefly stated, it is the case of the petitioner, who was original complainant before the District Forum, that he had purchased a Tata Indigo car in the month of August, 2005 from M/s Om Sai Motors Pvt. Ltd., Kandivali (W), Mumbai, respondent no.3 herein. While an amount of Rs.1,40,000/- against the total purchase price of the car is alleged to have been paid by the complainant-petitioner to the agent of respondent no.3, he also applied for car loan of Rs.4,51,000/- from the HDFC Bank Ltd. who are respondents no.1 and 2 in this petition and were OPs in the same order before the District Forum. The loan amount sanctioned by the respondent bank to purchase the said car is alleged to have been directly released by the respondent bank to respondent no.3. It is the case of the petitioner that respondent no.3 failed to deliver the possession of the vehicle purchased. It is also alleged by the petitioner that instead of making delivery of the said car to him, the respondent no.3 had given delivery thereof to another person called ‘Deepak Devendra Mehta’. Alleging deficiency in service on the part of the respondent no.3/OP no.3, the petitioner filed a consumer complaint before the District Forum in which the Chairman of the HDFC Bank was shown as OP no.1 and the Branch Manager of the Bank was made as OP no.2 in addition to the Manager/Director of M/s Om Sai Motors Pvt. Ltd. being included as OP No.3. On notice, OPs appeared before the District Forum. The financial help provided by the HDFC Bank for purchase of the car through a car loan was admitted by the HDFC Bank but the respondent no.3 submitted that they had no dealing with the petitioner and they had dealing with one Mr.Deepak Devendra Mehta to whom the car had been delivered. Vide its impugned order dated 31.07.2010, the District Forum came to the conclusion that the facts of this case showed that this is not a complaint which can be tried by a Consumer Forum in a summary trial under the Consumer Protection Act, 1986 and as such held that the complaint is not maintainable before it and that the complainant should have preferred a Forum of conventional Court to thrash out the complicated issues by appropriate legal proceedings. Accordingly, the District Forum dismissed the complaint.

3. As stated above, vide its impugned order the State Commission remanded the matter to the District Forum for giving an opportunity to the parties for leading evidence and to settle the dispute according to law after hearing the parties. Since the State Commission, while remitting the matter back to the District Forum, dropped the complaint against respondents no.1 and 2 who had been made OPs no.1 and 2 by the complainant before the District Forum, the petitioner has now challenged this order before us.

4. We have heard Ms. Jayshree Satpute, Advocate for the petitioner, Mr. Rishab Raj Jain, Advocate for the respondent no.1 and 2 and Mrs.Bindu Jain, Advocate for the respondent no.3.

5. It is contended by the learned counsel for the petitioner that the State Commission has committed grave mistake in observing in its impugned order that the petitioner did not have any grievance against the respondent bank and hence reached the conclusion that the respondent no.1 and 2 were impleaded unnecessarily as the opponents. She submitted that the District Forum without reaching a final conclusion in respect of the complaint in question had simply observed that in view of the complicated nature of issue involved the same was not maintainable before the Consumer Forum and hence dismissed the complaint by its order by which the petitioner was directed to approach a Civil Court competent to take cognizance of the dispute. It is the contention of the learned counsel that since the State Commission has not looked into the merits of the case, it would be wrong on its part to dismiss the complaint against therespondents no.1 and 2/OPs no.1 and 2. In any case, it was not correct on the part of the State Commission to hold that since the consumer dispute was in respect of non- delivery of the vehicle by the dealer , i.e., the respondent no.3 to the petitioner/complainant, the presence of the bank/financial institution could be dispensed with. She submitted that once the evidence is led by the concerned parties, the presence of the respondent bank who was included as opposite party would be absolutely essential. She, therefore, pleaded that the impugned order of the State Commission be set aside and the matter be remanded back to the State Commission for deciding it on merits by retaining the respondents no.1 and 2 as parties to the case.

6. Learned counsel for the respondent no.3 has also submitted that the matter be remanded to the State Commission and not to the District Forum.

7. Learned counsel for the respondent bank has reiterated that the grievance of the complainant is mainly against the persons, namely, Mr. Vilas P. Sawant, Mr. Sandeep Kandalkar and Mr. Ajay Sawant who, according to the complainant had induced him to deal with them and in that process he was cheated by them. He submitted that the role of the bank was limited to grant of a car loan and recovery thereof from the petitioner and as such the order of the State Commission dismissing the complaint against the respondent bank is correct and needs to be confirmed.

8. We have carefully considered the rival contentions raised before us. The limited issue which has arisen for our consideration in this case is as to whether the impugned order of the State Commission dropping the names of respondents no.1 and 2 thereby dismissing the complaint against these two respondents while remitting the matter for a fresh trial to the District Forum is correct in the eye of law. It is not in dispute that the petitioner had taken a car loan from the respondent bank. It is also not in dispute that the respondent bank was getting the payment of EMIs for some time in repayment of the said loan. According to the petitioner, the respondent bank released the amount of car loan directly to the dealer. We do not see any denial to this aspect, which in any case is presumed to be true as per the general practice in which the car loan usually is released to the dealer of the car (which in this case would be respondent no.3). This being the situation, the respondent bank needs to specifically point out and produce documentary evidence in support thereof as to how and to whom the cheque on account of the car loan was released by the respondent bank. Such documents would invariably indicate the correct name of the person on whose behalf the amount was being released by the respondent bank to the dealer. This aspect has not been dealt with by the State Commission and there is no observation in this regard. In the circumstances, when the State Commission thought it appropriate to remand the matter to the District Forum for a fresh trial after considering the evidence to be adduced by the respondent no.3 and the petitioner in support of their contentions and take a decision on merits after hearing the parties, it is not understood as to how the presence of the respondent bank could be dispensed with by dismissing the complaint against the bank. In that view of the matter and to this extent, the impugned order of the State Commission cannot be sustained in the eye of law being not based on any acceptable evidence before it.

9. It is noted from the revision petition that the District Forum had dismissed the complaint as not being maintainable under the Consumer Protection Act simply because in its opinion it felt that the dispute involved complicated questions of law and facts. It is further seen from paras 3 (II), (III) and (IV) of the revision petition that the respondent bank failed to produce certain documents as per the direction given by the District Forum and as such the District Forum did not reach any conclusion based on evidence or merits of the case but only on its impression that because of the nature of the dispute and complications involved, the complaint was not maintainable. In the circumstances, when the petitioner has alleged non- delivery of the vehicle by the respondent no.3 to him for which the loan amount had been released directly by the respondent bank to the respondent no.3-dealer, it is necessary that the respondent bank clarifies this position in respect of the person on whose behalf the car loan cheque was released to the dealer/respondent no.3 before he could be held liable for deficiency in service in respect of non delivery of the car to the petitioner. In other words, the presence of the respondent bank is absolutely essential for reaching any conclusion or taking a final view on the complaint in question. The observations of the State Commission to the effect that the main grievance of the petitioner being against the respondent no.3, the respondent bank has no role to play is incorrect and not based on proper appreciation of the submissions made in the complaint and the written statement of the parties.

10. In view of the above, we do not find any fault with the order of the State Commission to remand the matter back to the District Forum for recording evidence and hearing the parties afresh but we do not agree with the impugned order regarding the dismissal of the complaint against the respondents no.1 and 2 thereby exempting them from appearing and leading the evidence before the District Forum. We, therefore, accept the revision petition partly and set aside the impugned order to the extent that it dismisses the complaint against the respondent no.1 and 2. Rest of the impugned order is upheld. Consequently, the District Forum is directed to give proper opportunity to the petitioner and all the respondents who were OPs before the District Forum to lead their respective evidence and thereafter settle the dispute after hearing the parties in accordance with the provisions of law. We make it clear that the petitioner and the respondents would be at liberty to lead their evidence with reference to the allegations of deficiency in service made in the original complaint and the District Forum shall take a decision on merits without being influenced by any of the observations made by the State Commission in its impugned order.

11. The revision petition thus stands partly allowed and disposed of in terms of the aforesaid directions with the parties bearing their own costs.

……………Sd/-….……………

(K. S. CHAUDHARI, J.)

PRESIDING MEMBER

…………Sd/-…….……………

(SURESH CHANDRA)

bs MEMBER

REVISION PETITION NO. 237 OF 2009

(From the order dated 23.10.2008 in Appeal No. 1472/2008

of Madhya Pradesh State Consumer Disputes Redressal Commission)

THE NEW INDIA ASSURANCE CO. LTD. Through its Regional Manager, 87 – Mahatma Gandhi Fort, Mumbai – 400 001 (Maharashtra)

...... Petitioner(s)

Versus

1.Chandra Kumar Chatrath R/o 130 Dusheera Maidan Ujjain (MP)

2. Raksha T.P.A. PVT. LTD. 15/5, Escort Corporate Centre, Faridabad, Haryana

...... Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) : Mr. Mohan Babu Aggarwal, Advocate

For the Respondent No.1 : Mr. Pankaj Kumar, Advocate

For the Resp. No.2 : Ms. Sugandha Taneja, Advocate

Exparte

PRONOUNCED ON : 14 th JAN. 2013

O R D E R

Delay of eight days in filing the present revision petition is condoned.

2. We have heard Mr. Mohan Babu Aggarwal, Advocate for the petitioner and Mr.

Pankaj Kumar, Advocate for the respondent no. 1. Respondent no. 2 remained exparte.

3. Briefly stated, the facts of the case are that the father of respondent no. 1 was insured with the petitioner insurance company for a sum of Rs.2 lakh under a medi- claim policy and he had undergone a treatment for which he spent

Rs.1,63,109/-. Against the claim of Rs.1,63,109/- made by the respondent – 1 / complainant, the petitioner insurance company paid Rs.20,000/- only on the plea that treatment in question was not a surgical treatment and for such non-surgical treatment only a total sum of Rs.20,000/- could be paid or reimbursed as hospitalisation expenses. Not satisfied with the decision taken by the insurance company in restricting the claim to Rs.20,000/-, the petitioner knocked the door of the consumer fora by filing a complaint with the District Forum. The District Forum vide its order dated 28.03.2008 held that the procedure of putting the tubes in the nose is not a surgical operation and as such it non-suited the claim of the petitioner / complainant and dismissed the complaint. Aggrieved by this order of the District Forum, the respondent no. 1 went in appeal before the Madhya Pradesh State Consumer Disputes Redressal Commission,

Bhopal (State Commission ‘for short’) which vide its order dated 23.10.2008 allowed the appeal and directed the petitioner insurance company to pay the respondent no. 1 / complainant a sum of Rs.1,63,109/- minus the amount already paid, within two months from the date of the order. In spite of service of the notice by the State Commission, none appeared on behalf of the petitioner insurance company and the other opposite party, hence they were proceeded exparte by the State Commission. It is against this order of the State Commission that the petitioner / insurance company and

OP No. 2 has filed the present revision petition.

4. The only issue which has arisen for our consideration in this case is as to whether the treatment undertaken by the father of the respondent no. 1 was a surgical treatment or not? It is seen from the impugned order that the State Commission has allowed the appeal and the claim of the complainant on the basis of a certificate of Dr. Mukesh Jain,

MS (ENT) to the effect that the “tracheostomy” performed requires making a hole in the respiratory passage and, therefore, it is a surgical procedure. Since the doubt raised by the insurance company about the nature of the treatment taken by the assured had been resolved with the certificate of the Doctor, the State Commission accepted the prayer of the complainant and allowed the entire amount spent for the treatment in terms of the medi-claim policy. In this context, learned counsel for the petitioner drew our attention to the definition of “surgical operation”, contained in para 63 of the Annexure I, which forms part of the policy, in question. According to the counsel, the procedure in question would not amount to surgical operation as per the definition contained in the terms and conditions of the medi-claim policy. In view of this, learned counsel pleaded that the impugned order accepting the full claim was bad in law and deserves to be set aside.

5. We have considered the contentions raised by learned counsel for the petitioner. It is to be noted that in spite of notice sent by the State Commission, the petitioner insurance company chose to remain absent and hence proceeded exparte. Petitioner has not placed any material to support its claim about non-receipt of the notice from the

State Commission. It is also seen that the petitioner has not placed any rebuttal in respect of the certificate issued by Dr. Mukesh Jain, who is ENT Surgeon and hence an expert, on the basis of which the State Commission has passed the impugned order. In view of these facts, no fault could be found with the impugned order. Consequently, we dismiss this revision petition but with no order as to costs.

..……………Sd/-………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..…………Sd/-…………………

(SURESH CHANDRA)

MEMBER RS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1614 OF 2012 (From the Order dated 17.11.2011 in Appeal No. 269/2011 of Maharashtra State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad)

Shri Vijay Maruti Dhandwade R/o Behind Hotel Maujam Professor Colony Chowk Savedi, Ahmednagar Maharashtra … Pettiioner

Versus

Shilpa Prabhakar Rawas R/o Balikashram Road Shinde Mala, Ahmednagar Maharashtra

Respondent

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

For the Petitioner : Mr. Yatin M. Jagtap, Advocate

Pronounced on : 14 th January, 2013

PER SURESH CHANDRA, MEMBER There is a delay of 18 days in filing this revision petition. For the reasons submitted in the application filed by the petitioner for condonation of delay, the delay is condoned.

2. This revision petition challenges the order dated 17.11.2011 passed by the State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench Aurangabad (‘State Commission’ for short) by which the State Commission dismissed appeal No.269 of 2011 in complaint case No.151 of 2010 filed by the petitioner and upheld the order dated 7.4.2011 passed by the District Consumer Forum, Ahmednagar.

3. Briefly stated, petitioner herein was the opposite party before the District Forum and the respondent was the original complainant. The complainant/respondent agreed to purchase one family unit No.201 in the building called “Vyankatesh Heights” from the petitioner. An agreement was entered into between the petitioner and the respondent on 10.3.2006 for a total consideration of Rs.3,80,000/-. While an amount of Rs.80,000/- was paid by the respondent to the petitioner on 10.3.2006, for the remaining amount, the respondent availed of loan from the HDFC Bank,Ahmednagar. The HDFC Bank is stated to have sanctioned the loan on 16.3.2006 and in pursuance thereof issued cheque of Rs.1,75,000/- and later another cheque of Rs.1,00,000/- on 12.5.2006. Both the amounts were received by the petitioner. Thereafter, the respondent is stated to have paid Rs.20,000/- on 1.6.2006 and an amount of Rs.9500/- on 9.6.2006 thereby completing the payment of entire consideration in respect of the flat. Even after receipt of the total consideration, the petitioner did not handover the possession of the flat and kept certain works incomplete like light fitting, colouring, plumbing, etc. In view of this, the respondent filed a consumer complaint before the District Forum. The petitioner appeared before the District Forum and resisted the complaint. He denied any transaction for the purchase of said flat. However, he admitted having received an amount of Rs.1,75,000/- on 16.3.2006 and Rs.1,00,000/- on 12.5.2006. It was submitted by the petitioner before the District Forum that since the husband of the respondent and the petitioner were friends, nominal transaction of sale and purchase was entered into. According to the petitioner, the amount had been received by him was returned to the husband of the respondent as he was facing financial crisis. He, therefore, submitted that there was no relationship of consumer and service provider between the respondent and the petitioner.

4. After hearing both the parties, the District Forum partly allowed the complaint and directed the petitioner/opposite party to execute the sale deed in favour of the respondent/complainant in respect of the said flat No.201 in “Vyankatesh Heights” and also directed the petitioner to pay Rs.25,000/- by way of compensation and Rs.10,000/- for mental agony. Aggrieved by this order of the District Forum, the petitioner filed an appeal against the order before the State Commission which was dismissed by the State Commission by the impugned order upholding the order of the District Forum. In these circumstances, the petitioner has now filed the present revision petition aggrieved by the impugned order.

5. We have heard Mr. Yatin M. Jagtap, Advocate, counsel for the petitioner and perused the record. The main contention of the learned counsel is that only a nominal agreement of sale was entered into because the husband of the respondent and the petitioner were friends but the amounts received in that respect were returned by the petitioner to the husband of the complainant because he was facing financial crisis. In view of this, it was submitted by learned counsel for the petitioner that there was no question of executing any sale deed. He submitted that the State Commission erred in passing the impugned order without proper appreciation of the factual matrix and based on erroneous assumption of facts and hence the impugned order is contrary to the provisions of law and the material available on record and hence the same deserves to be set aside.

6. We have considered the submissions made by learned counsel for the petitioner. We find that both the Fora below have returned their concurrent finding in favour of the respondent/complainant based on the facts of the case supported by the evidence placed before them. While upholding the order of the District Forum and dismissing the appeal of the petitioner, the State Commission has recorded the following reasons in paras 6 and 7 of the impugned order:-

“6. Adv. Patil submitted that, agreement to sale executed by appellant in favour of complainant. According to said price of flat i.e. Rs. 3,80,000/- was paid by the complainant herself and through HDFC Bank. Appellant received said consideration. Proof in that respect was produced by the complainant before the Forum. Allegations of appellant that, said amount was returned to the husband of complainant is not proved by the appellant. No documentary evidence to show that said amount was returned and sale transaction was nominal is produced by the appellant. District Forum rightly considered all the facts while allowing the complaint. 7. We heard both counsels and perused the record. Appeal decided at admission stage with consent of both counsels. It is an admitted fact that, agreement to sale was entered into between the complainant and appellant. It is also admitted fact that consideration amount of Rs.3,80,000/- was paid by the complainant to appellant. The contention of appellant that, said amount was returned to the husband of complainant is not proved by any documentary evidence by the appellant. In fact, legal notices were issued by complainant to the appellant for execution of sale deed and possession of flat. If husband of complainant would have been friend of the appellant legal notice would not have been issued for the possession of flat. The documents which were produced by the appellant to show that husband of complainant got the deposit amount from the appellant were not about the disputed flat. When it is admitted by appellant that, total consideration of the flat No.201 was received by appellant the contention that said amount was returned to the husband of complainant as he was facing financial crises cannot be believed. The agreement to sale was executed between the parties and accordingly total consideration was paid by the complainant. In our view, District Forum rightly considered all the facts while allowing the complaint. We do not want to interfere the order of Forum.”

7. We agree with the concurrent finding of facts returned by the Fora below and do not see any ground to interfere with the same. Keeping in view the ratio laid down by the Apex Court in the case of Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. [(2011) 11 SCC 269], this revision petition is liable to be dismissed and it is accordingly dismissed at the threshold with no order as to costs.

..……………Sd/-…..………. (K.S. CHAUDHARI, J.) PRESIDING MEMBER

….…………Sd/-…………… (SURESH CHANDRA) MEMBER SS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 270 OF 2006

(Against the order dated 16.03.2006 in C.D. No. 41 of 2001 of the A.P. State Consumer

Disputes Redressal Commission, Hyderabad)

Yashoda Super Speciality Hospital Represented by its Managing Partner Somajiguda, Raj Bhavan Road Hyderabad, A.P.

… Appellant

Versus

1. Smt. A. Subbalakshmi W/o Late Shri G. Ramakistaiah R/o H.No. 12-12-76, Ravindra Nagar Sethaphalmandi Secundrabad-500061 (A.P.)

2. New India Assurance Co. Ltd. Divisional Office 5-2-174/2, Madan Mohan Buildings R.P. Road Secundrabad, A.P.

… Respondents

BEFORE:

For Appellants : Mr. Y. Raja Gopala Rao, Advocate with

Mr. Hitendra Nath Rath, Advocate

For Respondent : NEMO for R-1

Mr. Salil Paul, Advocate for R-2

ORDER PER VINEETA RAI, MEMBER

1. This appeal has been filed by Yashoda Super Speciality Hospital, Hyderabad

(hereinafter referred to as the appellant-hospital) being aggrieved by the order of the

A.P. State Consumer Disputes Redressal Commission, Hyderabad (hereinafter referred to as the State Commission), which partially allowed the complaint of medical negligence and deficiency in service filed against them by Smt. A. Subbalakshmi, respondent no.1 herein and original complainant before the State Commission.

FACTS :-

2. In her complaint before the State Commission, respondent no.1 had contended that her late husband (hereinafter referred to as the patient), who was a Senior Accountant in the Accountant General’s office, had a minor fall from his bed while sleeping and approached the Central Government Health Scheme (CGHS) dispensary with a complaint of muscular pain on the right side near the shoulder. The medical examination revealed slight tenderness and swelling on the right shoulder blade region, for which he was advised to consult an orthopedic surgeon. Patient thereafter got admitted in the appellant-hospital and the medical examination conducted by the orthopedic surgeon revealed that there was no orthopedic defect but there was some congestion on the nerve shoulder region which was fixed with collar and sling so as not to disturb the position. Respondent no.1 noted that on 18.04.2000 the eyes of her husband were yellowish, which was indicative of jaundice and she informed the concerned doctors. It was only two days later that a blood test was conducted, which indicated that moderate jaundice was prevalent. According to respondent no.1, around

5.00 p.m. on 20.04.2000 her husband complained of breathlessness and a feeling of uneasiness and when she informed the doctor and nurses on duty, they were very casual and administered an injection to the patient late in the evening but his condition deteriorated. It was, therefore, decided to shift him to the Intensive Care Unit but there was delay in doing so because no stretcher or wheelchair was available and ultimately he was taken to the Intensive Care Unit at 8.50 p.m. and expired there at 10.00 p.m. According to respondent no.1, if her husband had been given proper and prompt medical treatment and necessary precautionary measures taken, including immediate treatment for jaundice, during his stay in the appellant-hospital, his premature death could have been avoided. Being aggrieved she issued a legal notice on grounds of medical negligence to appellant-hospital as well as the treating doctor claiming a sum of

Rs.10,50,000/- as compensation but to no avail. Therefore, respondent no.1 filed a complaint before the State Commission requesting that appellant-hospital and the treating doctor be jointly and severally directed to pay her Rs.10,60,000/- as compensation for mental pain and torture, medical expenses, legal & miscellaneous expenses and interest @ 24% per annum from 14.08.2000.

3. Appellant-hospital on being served filed a written statement denying the above allegations. It was contended that as soon as the patient approached appellant- hospital with complaints of pain on the shoulder etc. on 14.04.2000, he was immediately examined by a consultant orthopedic surgeon, who confirmed that there was no fracture but only an injury to the soft tissue around the shoulder. He was admitted into the hospital and was treated for the same and a cuff and collar was put on him and he was advised rest. Since the patient had diabetes, medicines were also prescribed for the same and special care was taken to check the sugar level as also blood pressure etc. As a result of the medical treatment given to him, the pain on the right shoulder considerably subsided and it was planned to discharge this patient on

21.04.2000. However, on 19.04.2000 when the patient developed yellowish colouration of the eyes, he was examined by Dr. M.V. Rao, a Physician, and a Liver Function Test conducted confirmed the jaundice, for which he was given due treatment. On

20.04.2000, when the patient complained of breathlessness and sweating, he was immediately shifted to the Acute Medical Care Unit and a cardiologist attended to him, wherein he was diagnosed with acute myocardial infarction, for which he was given treatment, including cardio pulmonary resuscitation. He was also put on the ventilator but despite the best efforts, he died at 10.00 p.m. The death of the patient occurred due to the sudden myocardial infarction, which is quite common in diabetic patients and, therefore, his death could not be attributed to any medical negligence on the part of the appellant-hospital/doctors. Therefore, the complaint made by respondent no.1 of medical negligence and deficiency in service against appellant-hospital was baseless.

4. The State Commission, after hearing the parties and on the basis of evidence filed before it, concluded that so far as the orthopedic problem of the patient was concerned, he was treated with reasonable care and caution and, therefore, no case of medical negligence against respondent no.2 i.e. the specialist doctor was established and also consequently respondent no.3, the New India Assurance Co., with which he was insured. However, the State Commission found appellant-hospital guilty of not taking due care and giving prompt treatment to the patient. In this connection, the relevant part of the State Commission’s observation is as under :- “… There are many unanswered questions with respect to cause of death whether it can be Pulmonary embolism or Myocardial Infraction which only the opposite parties can answer but they have not chosen to do so either in their counter, affidavits, discharge summary or case sheet, but only came up with this plea of Myocardial Infraction during arguments. Therefore, we are of the considered opinion that though opposite party No.2 treated the patient with reasonable care and caution so far as orthopaedic problem is concerned, we are of the view that opposite party No.1 hospital did not take due care and precaution by giving prompt treatment to the patient. The patient joined the hospital on 14-4-2000 complaining of right shoulder pain and was put on a cuff and colar and was admittedly to be discharged on 18-4-2000. On 20-4-2000 he developed breathlessness and at 5.00 p.m. as per the complainant’s version and at 7.45 p.m., as per the version of the opposite parties. It is pertinent to note that there is a visible correction in the timings on page – 26 of the case sheet which has not been initialed or signed. Post mortem report could probably have confirmed the factors leading to the cause of death, however no post mortem was insisted on by the complainant or his relatives and therefore, the compensation being awarded is a nominal amount. It is the case of the complainant that the doctors and nursing staff were not alert enough immediately when the breathlessness developed. The patient was already admitted in the hospital for shoulder pain five days prior to the attack of breathlessness and the burden lies on the hospital to prove that they were alert enough and attended to him immediately. …”

5. The State Commission, therefore, directed appellant-hospital to pay a sum of

Rs.2,00,000/- with interest @ 9% per annum from the date of filing of complaint i.e.

14.03.2001 till the date of realization within six weeks, failing which the said sum would attract interest @ 9% per annum together with costs of Rs.5000/-. Hence, the present first appeal.

6. Learned counsel for both the parties made oral submissions.

7. Learned counsel for the appellant-hospital stated that the State Commission erred in concluding that it was guilty of medical negligence and deficiency in service. In fact, immediately on patient’s admission, all the necessary diagnostic tests like x-ray, ECG etc. were conducted and there was no indication of any heart problem since the ECG was normal. However, since the patient was a known case of diabetes, he was prescribed medication to control his sugar levels. His injury was also properly treated by a specialist orthopedic doctor and thereafter his condition continued to be carefully monitored and had improved. On 20.04.2000, around 8.00 p.m. (and not 5.00 p.m. as contended by respondent no.1) when the patient developed breathlessness and sweating, which was a sudden complication, he was immediately referred to a cardiologist, who attended to him within ten minutes. Thereafter, he was shifted to the

Intensive Care Unit within twenty minutes and put on a ventilator around 8.30 p.m. The relatives of the patient were also informed about his critical medical condition and poor prognosis. A team of doctors put in their best efforts to save the life of the patient but unfortunately failed to do so. The sudden heart attack was neither due to negligence of the doctors or administration of any wrong medicine. Thus, the appellant-hospital cannot be held to be guilty for the unfortunate death, which occurred despite the best possible treatment as per standard procedures.

8. Counsel for respondent no.1 on the other hand stated that the appellant-hospital took the plea that the patient died of a myocardial infarction only at the argument stage before the State Commission. This fact was not mentioned either in the death report or in the medical history of the patient filed before the State Commission. There was no evidence that an ECG was conducted and the appellant’s explanation that the ECG and its findings had faded away with the passage of time lacks credibility. The patient was under the treatment and care of the appellant-hospital for six days and because they did not properly monitor his condition, it deteriorated with the onset of jaundice and other complications for which the State Commission rightly held it responsible for medical negligence and deficiency in service.

9. We have heard learned counsel for both parties and have carefully gone through the evidence on record. The fact that the patient was admitted after a fall in his sleep to the appellant-hospital, wherein he was treated by opposite party no.2, is not in dispute. It is further a fact that six days after his admission in the hospital, patient developed breathlessness and severe uneasiness and he was examined by a cardiologist and shifted to the Intensive Care Unit, where he passed away. The appellant-hospital has sought to explain the cause of his death as a result of sudden myocardial infarction. However, we note (as also observed by the State Commission) that this fact has not been recorded either in the case history or death certificate of the patient. Further, appellant-hospital’s contention that an earlier ECG conducted on the patient did not indicate any abnormality is also not available on the record. When specifically asked by us if there was any proof of the same, learned counsel for the appellant-hospital stated that it was very much a part of the case history and related papers filed before the State Commission but unfortunately the ECG image as also the observations recorded on it were not visible since these had faded away. We agree with the State Commission that this is not a plausible explanation. We further agree with the finding of the State Commission that the appellant-hospital has not been able to satisfactorily explain as to what caused the death of the patient, which leaves many unanswered questions, including whether he was given prompt and adequate treatment by the appellant-hospital.

10. In view of these facts, we see no reason to interfere with the order of the State

Commission and uphold the same. This first appeal stands dismissed. The appellant- hospital is directed to pay respondent no.1 a sum of Rs.2,00,000/- with interest @ 9% per annum from the date of filing of the complaint i.e. 14.03.2001 till payment along with litigation cost of Rs.5000/-.

(ASHOK BHAN, J.) PRESIDENT

Sd/- (VINEETA RAI) MEMBER Mukesh

(FIRST APPEAL NO.387 OF 2007) (From the order dated 19.03.2007 in CC No.127/1999 of the State Commission, Gujarat)

Kersi F.Dalal ……Appellant(s)

Versus

Dr.Janak K.Mehta & Ors. ……Respondent(s)

BEFORE: HON’BLE MR.JUSTICE ASHOK BHAN, PRESIDENT HON’BLE MRS.VINEETA RAI, MEMBER

For the Appellant (s) : Mr.S.J.Mehta, Advocate

For the Respondent (s) : Dr.Sushil Kr.Gupta, Advocate for R-1 and R-2.

This revision petition has been filed by Kersi F. Dalal(hereinafter referred to as the ‘Appellant’) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Gujarat(hereinafter referred to as the ‘State Commission’) which had dismissed his complaint of medical negligence filed against Dr.Janak K.Mehta and Dr.Jayesh J.Shah, Respondents No.1 and 2 herein. The National Insurance Co.Ltd. is Respondent No.3 in this case. In his complaint before the State Commission, Appellant, a practicing Advocate, who had also earlier been treated by Respondent No.1, consulted him on 07.01.1997 with complaints of feeling feverish with abdominal pain. He was given a course of antibiotic injections for 4 days but instead of getting relief, his fever rose to 104 FH and his stomach became very distended and he also started vomiting. In spite of this, Respondent No.1 without trying to find out the cause of his multiple medical complaints, did not advise any pathological or other examination e.g. X-ray, stool examination etc. and instead he referred the Appellant to Respondent No.2 who conducted a sonography twice but could not get a good image. During this procedure, two big straps were tightly tied across appellant’s stomach which caused him extreme distress. As a result of the defective sonography, Appellant’s ailments could not be properly diagnosed and the infection spread into the stomach. Respondent No.1 instead of treating him for this condition, asked him to go to Patwa Nursing Home to an unknown doctor. It was only another senior surgeon whom the Appellant consulted in the late evening, who advised him to immediately get admitted into the hospital and be put on a saline drip prior to an emergency operation for appendicitis. The saline drip which was fixed by Respondent No.1 was done so carelessly that Appellant’s biceps and forearm became swollen upto three times. It was with difficulty that the Appellant managed to get a ticket to Pune and got admission in Jehangir Nursing Home where he underwent a 3½ hours surgery and had to stay there for 4 months undergoing extreme mental agony as also substantial expenditure on boarding, lodging as also on medical treatment. Besides, Appellant’s profession also suffered due to his inability to regularly attend to his clients. Being aggrieved by the treatment and medical negligence on the part of Respondents No.1 and 2, Appellant filed a complaint before the State Commission and requested that they be directed to jointly and severally pay him compensation of Rs.10 lakhs with interest @ 18% per annum, Rs.30,000/- as costs and any other damages as considered appropriate. On being served, Respondents filed written statements before the State Commission challenging the allegations made against them by the Appellant. Respondent No.1 contended that he had a Degree in Medicine and is fully qualified as a General Medical Practitioner who had been practicing medicine for several decades and had been the family doctor of the Appellant for about 2 decades. On 07.09.1997 on a request from the Appellant, he visited him and noted that he had complaints of watery diarrhea, vomiting and mild pain on the left side of the lower abdomen. Respondent No.1 thoroughly examined him and gave him two injections i.e. Gentamicin and Ranitin and also prescribed oral medication. The Appellant’s general condition was satisfactory. His blood pressure was 140-90 and there was no distension of the abdomen and his fever was 99 Deg.FH. He was advised liquid diet. In the evening, Appellant phoned the Respondent No.1 and requested that since he does not want to take oral drugs, he may be given injection and a drip. On 08.09.1997 when Respondent No.1 again examined appellant, he had only mild fever and pain and no diarrhea. However, he was put on an IV drip slowly for one hour and after examination his pulse rate, blood pressure etc. was found to be normal and his general condition continued to be good. In this way, he was given conservative treatment to manage his minor medical complaints. On 10.09.1997, Appellant continued to complain of vague pain and Respondent No.1, therefore, advised him to consult Dr. Rahul Thakore, a senior surgeon, for further investigations. Dr.Thakore gave Appellant an appointment for 5.15 pm and Respondent No.1 also accompanied the Appellant to Dr.Thakore who after examining him advised the sonography and X-ray to be done at the clinic of Respondent No.2. The sonography was satisfactorily conducted and after seeing the two reports, Dr.Thakore immediately advised the Appellant to get admitted in Patwa Nursing Home where surgery may be required. However, the Appellant did not get himself admitted there and instead requested the Respondent No.1 to give him a drip which was done. There was however no swelling on the Appellant’s forearm or biceps. It was contended that Respondent No.1 had medically treated the Appellant as per the standard medical practice and used his best professional skills. It was Appellant who did not heed the medical advice for which Respondent No.1 cannot be held responsible. Respondent No.2 also denied that he had conducted a defective sonography. He contended that he is a qualified Radiologist and Sonologist and has a post-graduate degree in Radiology. He had used the best available equipment for conducting the sonography and the same was satisfactorily done. It was specifically denied that any flaps or straps were tied on the abdomen of the Appellant. In fact, when the sonography of the abdomen is performed there cannot be any obstruction between the machine and the skin of the patient and therefore, the question of putting any obstruction like a flap did not arise. The State Commission after hearing the parties and on the basis of the evidence produced before it, dismissed the complaint by observing as under: “ There is nothing oral or written on record or evidence to suggest that treatment given to Mr.Dalal was incomplete, inappropriate or wrong. Mere say of Mr.Dalal (in absence of any documentary or oral evidence) cannot be accepted as truth. Mr.Dalal had ample time and opportunity to bring forth the evidence to substantiate the claim, but sadly complainant has failed to avail it. As far as opponent No.1 Dr.Mehta is concerned, though Mr.Dalal was not serious (as indicated by records showing his physical condition and vital data) Dr.Mehta showed indulgence to take him to Dr.Thakore for consultation. Dr.Shah for sonography and put I/V drip at home. These acts in itself will suggest that he exercised due care expected of him. As far as treatment in form of medicine is concerned nothing indicates that the medicines given were wrong or inappropriate done o that medicine had harmed Mr.Dalal. As far as Dr.Thakore’s management is concerned, Mr.Dalal chose to ignore his advice to get hospitalized for treatment and chose to go to Pune of his own sweet will for further treatment. We do not have records of medical management of said treatment at Pune on record……………..Dr.Shah against whom allegations of poor quality of x-ray & sonography are not proved; Mr.Dalal has not only not produced the film nor an opinion on that film. Dr.Shah also rules out as physical impossibility to put straps tightly or for that matter even to put the strap as then sonography will not be possible, but in fact he did sonography further suggesting non-putting of strap. Mr.Dalal has not shown us how Dr.Shah’s report are wrong or his machineries were outdated, not even challenged the same in written statement of Dr.Shah or his evidence.”

Hence, the present First Appeal. Learned Counsel for both parties made oral submissions. Learned Counsel for Appellant reiterated the medical negligence and deficiency in service on the part of both Respondents No.1 and 2 and stated that the main complaint against Respondent No.1 was that without conducting any diagnostic tests including a stool examination, he gave him medical treatment which actually worsened his condition. He also reiterated that the sonography conducted by Respondent No.2 was not clear and undue agony and pain was caused to him by putting straps on his distended abdomen during the procedure which the State Commission failed to take note of. It was also reiterated that the patient actually suffered from appendicitis which could have been easily diagnosed if he was given proper medical attention including a proper sonography. Instead, a wrong diagnosis was made and it was only at Pune when the Appellant’s condition deteriorated that he was immediately detected with appendicitis and a surgery had to be performed. It was prayed that because of the mental agony and harassment as also the financial hardship and loss caused to the Appellant, compensation of Rs.10 lakhs was reasonable and justified. Learned Counsel for Respondent on the other hand stated that the clinical condition of the Appellant was carefully assessed after due examination he was given conservative treatment as warranted during the first 3 days. Thereafter, when the complaints persisted, Appellant was advised to consult a specialist surgeon and in fact Respondent No.1 not only fixed the appointment but also accompanied him to the surgeon who advised diagnostic tests including a sonography which was properly conducted by Respondent No.2 who had a post-graduate degree in Pathology and was fully qualified to conduct the same. It was the Appellant who erred in rejecting the medical advice to get himself admitted in the hospital and instead rushed to Pune for further treatment. There was, therefore, no deficiency in service on the part of the Respondents. We have heard learned Counsel for both parties and have gone through the evidence on record. The fact that the Appellant consulted Respondent No.1 with complaints related to his abdomen with nausea and related problems is not in dispute. It is also a fact that Respondent No.1 who was a qualified doctor after examining the Appellant decided to treat him conservatively since the parameters relating to his blood-pressure, temperature and the condition of the stomach was not unduly abnormal. There is nothing on record produced by the Appellant, on whom there was onus to do so, to support his contentions that he had very high temperature and other severe problems. We further note that when the Appellant’s condition remained the same with the lower abdominal pain continuing, he was immediately referred to a specialist surgeon and then a qualified Radiologist for conducting the required diagnostic tests which included sonography and X-ray. Appellant has made certain allegations against Respondent No.2/Radiologist pertaining to the quality of the sonography conducted by him. However, again there is nothing on record to support this contention. In fact, the sonography and diagnostic test reports were seen by a specialist surgeon who advised hospitalization since there was a possibility of surgery. The Appellant, however, chose not to get admitted to the hospital and instead went to Pune for treatment. These facts have also been confirmed by the State Commission as a first court of fact. What constitutes medical negligence is now well established [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be followed: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated. Applying these principles to the present case, we see no reason to disagree with the order of the State Commission, which had concluded that there was no deficiency in service or medical negligence in the treatment of the appellant, which was done by well- qualified doctors using their best professional judgment and skills to treat the patient after conducting the necessary diagnostic and clinical tests. The appellant has not been able to produce any credible evidence, including documentary or expert evidence to contradict or controvert these facts. We, therefore, uphold the order of the State Commission in toto and dismiss this first appeal. No costs.

Sd/- (ASHOK BHAN J.) PRESIDENT

Sd/- (VINEETA RAI) MEMBER

/sks/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4924 OF 2012 (Against the order dated 10.09.2012 in Revision Petition No. RP/11/40

of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

M/s. Shree Constructions, Through its Partner- Mr. Umesh Raosaheb Pawar Patil Address at : 102, Ganga Prasad, Ghantali, Sainath Chowk, Ram Ganesh Gadkari Road Naupada, Thane (W)-400 602 ... Petitioner

Versus

1. Shree Residency CHS Ltd. Near Shankar Temple Old Mumbai-Pune Road Mumbra- 400 612 2. Shri Namdev K. Patil, An adult, R/at Flat No. A/01, 3. Shri Harishchandra K. Patil, An adult, R/at Flat No. A/02, 4. Shri Narayan K. Patil, An adult, R/at Flat No. A/201, 5. Shri Dattatray K. Patil An adult, R/at Flat No. A/201

Nos. 2 to 5 are residents of Shree Residency CHS Ltd., Near Shankar Temple, Mumbra-400 612 Dist. Thane. ... Respondents

BEFORE:

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

HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner : Mr. Nagaraj Hoskeri, Advocate

JUSTICE J. M. MALIK, PRESIDING MEMBER

1. The present revision petition has been filed by the builder M/s Shree

Constructions-opposite party No. 1. The facts of its case are these. The agreement for development of land was executed between the partners, i.e. petitioner-opposite party

No. 1- builder and the original land owners, namely, Shri Namdev K.Patil, Shri Harishchandra K. Patil, Shri Narayan

K. Patil and Dattatray K. Patil, opposite parties 2 to 5, for land measuring 2098 sq. yds. equivalent to 1754 sq.mts on 18.4.1986. The conveyance deed was executed between the opposite party No. 1 and opposite parties 2 to 5 in respect of above said land on 13.2.1996. The opposite party No. 1 started construction activities on the said land and sold the land to the respective purchasers by agreement to sell during 2001-

2002. On 14.2.2006, the society of the flat purchasers was formed and registered by the petitioner in the name of Shree Residency CHS Limited.

2. The complainant had filed a complaint before the District Consumer Forum, Thane against the petitioner and land owners for conveyance of the property. On. 7.3.2009, the

District Forum, Thane had passed the order and directed the petitioner-opposite party

No. 1 and the original land owners-opposite parties 2 to 5 jointly and severally to execute the conveyance deed in favour of the society and also awarded cost and compensation. There is no confliction on the point that the said judgment has attained finality. The above judgment was not challenged by any of the parties.

3. Thereafter, the complainant filed another application for execution of the above said order. The petitioner had complied with the monetary part of the order and shown the document to the forum for its having power to convey the land measuring 2098 sq. yards i.e. equivalent to 1754 sq. meters. The District Forum directed the opposite parties 1 to 5 to convey the land measuring 1754 sq. mts. in favour of the complainant- society. The State Commission, Mumbai has set aside the order passed by the District

Forum dated 24.11.2010.

4. We have heard learned counsel for the petitioner-opposite party No. 1. He argued that by virtue of development agreement, the petitioner is empowered to convey the property to the extent of 2098 sq. yd. i.e. 1754. Sq. mts. The society has no authority or power or right or title and interest to convey the property measuring 2200 sq. yards as alleged by the society. It is also pointed out that the order passed by the Hon’ble District Forum on 7.3.2009 nowhere mentions regarding the area of the land to be conveyed to the society. The District Forum vide its order dated 24.11.2010 has clarified the exact area to be conveyed to the society.

5. This is noteworthy that the opposite party No. 1/petitioner did not appear before the State Commission. The complainant and respondents No. 2 to 5 were present. On their joint request, the case was remanded. The State Commission also observed that

Section 25 clause III is not applicable to this case. He opined that Section 27 of the

Consumer Protection Act, 1986 is applicable in this case. It was ordered that the trial court has not followed the procedure. The learned State Commission observed:- “We find that since the forum did not follow the procedure prescribed, the direction given to execute the conveyance is per se illegal and, therefore, in light of the submission made by both the parties, it would be proper and just to set aside the impugned order dated 24.11.2010 and remand back the matter to consider the aspects referred earlier. Hence, we hold accordingly and pass the following order:-

ORDER Revision petition is allowed. Impugned order dated 24.11.2010 is set aside. Execution application bearing no. 12/2010 is remitted back to the forum in light of the observation made in the body of the order. Both the parties shall appear before the forum on 03.10.2012. No order as to costs.”

6. The learned State Commission did not state that the opposite parties were directed to execute the area to the extent of 1735 sq. mts. or 2200 sq. mts. of land. This question was not decided by the State Commission. It appears only apprehension on the part of the petitioner because order dated 24.11.2010 has been set aside. The apprehension appears to be false. This question certainly requires evidence and investigation. The State Commission has not decided this very point. This question is yet to be decided keeping in view all the facts and circumstances of the case. If the original order dated 7.3.2009 does not mention the area, it has to be found out from the relevant documents viz. Agreement, area allotted to the flat owners etc. The learned forum under the circumstances correctly remanded the case before the District Commission. During the remand proceedings, the District Forum is directed to decide the question raised by the State Commission and the area for which conveyance deed is to be executed. Both the parties have right to produce their evidence. The question is kept open and will be decided by the District Forum after hearing both the parties.

The revision petition has no force and the same is therefore dismissed. ………………Sd/-…..………..

(J. M. MALIK, J)

PRESIDING MEMBER

……………Sd/-….……………

(VINAY KUMAR)

MEMBER Naresh/reserved NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

of Gujarat State Consumer Disputes Redressal Commission)

Parvatiben Bhimjibhai Rathod Resides at : Shiv Shakti Society-2; Plot No. 41, Bhavnagarpara: Bhavnagar ……. Petitioner

Versus

1. Dr. Shivkumar Chandra Shekhar Resides at Bhajrangdas Hospital Panwadi; Bhavnagar

2. Trustee, Bhajrangdas Hospital Panwadi; Bhavnagar

…. Respondents

of Gujarat State Consumer Disputes Redressal Commission)

Parvatiben Bhimjibhai Rathod Resides at : Shiv Shakti Society-2; Plot No. 41, Bhavnagarpara: Bhavnagar ……. Petitioner

Versus

1. Dr. Shivkumar Chandra Shekhar Resides at Bhajrangdas Hospital Panwadi; Bhavnagar

2. Trustee, Bhajrangdas Hospital Panwadi; Bhavnagar

…. Respondents BEFORE

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

For the Petitioner(s) Ms. Surekha Raman, Amicus Curiae

For the Respondent-1 Mr. Sumit Bhatia, Advocate For Respondent-2 Mr. Nikhil Goel, Advocate

O R D E R

Both these revision petitions have been filed against the common order dated

08.02.2008 by which the Gujarat State Consumer Disputes Redressal Commission (for short ‘the State Commission’) dismissed Appeal No. 837 / 2006 filed by the petitioner for enhancement in the amount of award passed by the District Forum and accepted the

Appeal No. 367 / 2002 filed by the respondent no. 1 for setting aside the order of the

District Forum passed on 11.02.2002. They are being disposed off by this common order.

2. Both the revision petitions have been filed by the original complainant and the respondents in both these revision petitions were opposite parties 1 & 2 respectively before the District Forum. For the sake of convenience, the parties hereto have been referred to as the complainant and the opposite parties.

3. Briefly stated, the complainant, who is a resident of Bhavnagar earns her livelihood by engaging herself in miscellaneous labour work. As she had to undergo a cataract operation of left eye, she was admitted in the OP No. 2 hospital in which OP

No. 1 is an eye surgeon. It is not in dispute that she paid the fee for her admission and charges demanded by the hospital. It is alleged by the complainant that there was negligence on the part of the OP Doctor while administering the anaesthesia injection into her eye which caused damage to it and even though she was rushed to Civil

Hospital, Ahemdabad by taxi, theDoctor there informed her that due to serious mistake of the OP Doctor, the damage to the eye of the complainant could not be restored. Alleging carelessness on the part of the OP Doctor while carrying out the operation, the complainant knocked the doors of Consumer Fora by lodging a complaint with the District Forum, Bhavnagar. On notice, the Opposite Parties resisted the complaint. On appraisal of the issues and the evidence placed before it and after hearing the parties, the District Forum vide its order dated 11.02.2002 accepted the complaint and awarded an amount of Rs.25,000/- by way of compensation with interest @12% p.a. from the date of complaint till its actual payment. Aggrieved by this order, the opposite parties challenged the same before the State Commission by filing appeal for its dismissal. The complainant also filed another appeal praying for enhancement in the amount of the award. The State Commission by its impugned order, as stated above, accepted the appeal of the opposite parties and set aside the order of the

District Forum. Accordingly, the appeal of the complainant for enhancement was also dismissed by the impugned order.

4. We have heard Ms. Surekha Raman, Advocate who was appointed as Amicus to assist this Commission on behalf of the petitioner / complainant and Mr.Sumit Bhatia,

Advocate for the respondent no. 1 and Mr. Nikhil Goel, Advocate for respondent no. 2.

We have also perused the record placed before us.

5. It was contended by learned Amicus that the facts of this case which are not in dispute would indicate that sufficient care was not taken by the OP Doctor in carrying out the surgery in question particularly while administering the anaesthesia injection. She submitted that looking at the status and background of the complainant who was a petty labourer and a poor villager, it should have been kept in view by the

OP Doctor that adequate care was taken to avoid any likely mishap since it was a delicate matter when the anaesthesia injection was to be administered into the eye of the complainant. Admittedly, not only once but in the second attempt also there was shaking of the head and / or hand of the complainant when the injection was being administered into the eye by the OP Doctor. She submitted that as a professional engaged in the surgery of the eyes, he should make sure that the hands and the head were held by the attending staff present in the operation theatre, particularly when the second attempt was made by OP Doctor for administering injection. In the circumstances, the negligence was writ large and no further expert opinion is required in the matter to prove the negligence on the part of the Opposite Parties. She further submitted that looking to the overall facts and circumstances of this case, the District

Forum had rightly awarded compensation of Rs.25,000/- with interest in favour of the complainant and the same should, at least, have been upheld by the State Commission rather than dismissing the complaint altogether. She, therefore, submitted that there is a fair case for upholding the order of the District Forum by setting aside the impugned order.

6. On the other hand, counsel for the OP Doctor has submitted that the damage to the eye was caused on account of the mistake on the part of the complainant when she did not follow the instructions given by the Doctor and moved her head and hand which resulted in the damage to her eye. He submitted that at worst, it could be regarded as a case of contributory negligence for which OP Doctor could not be held liable for compensation while discharging his professional functions to the best of his capabilities. He, therefore, submitted that there is no force in the revision petition and the same is liable to be dismissed. Learned counsel for the respondent no. 2 did not have anything further to add in the matter.

7. We have considered the rival contentions. Perusal of the O.T. notes and the written statement filed by the OP before the District Forum confirm that there was movement of head and hand both the times during the administration of anaesthesia injection by the OP Doctor. The District Forum in its order has observed that the incident of disturbance during administration of anaesthesia injection took place thrice in this case which indicates that the Doctor has not taken care in respect of what could happen in such a situation because of general human nature / behaviour and the incident which took place was uncalled for and improper. In the given facts and circumstances of this case, we agree with the view taken by the District Forum. The

State Commission apparently erred while treating it as “an unfortunate accident” for which it did not hold the OP Doctor as being negligent or deficient in service while dismissing the complaint. We are of the considered view that the finding returned by the District Forum was fair and just and hence confirm the same except to the extent that the interest @12% p.a. is on the higher side and hence in the given circumstances we reduce the same to 6% p.a. from the date of the complaint, i.e., 2.08.1997 till its actual payment.

8. Revision Petitions are thus, partially accepted and disposed off in above terms. There shall be no order as to costs.

..……………Sd/-……………… (K.S. CHAUDHARI J.) PRESIDING MEMBER

..……………Sd/-……………… (SURESH CHANDRA) MEMBER RS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2031 OF 2012

(From the order dated 18.04.2012 in Appeal No. 477 of 2010

of Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench no. 3 Jaipur)

Ankur Surana Son of Shri Mahendra Surana R/o Prop. Shri Surana Electronics Kesar Gank Ajmer, Rajasthan Petitioner

Versus

United India Insurance Co., Ltd. United House, 24 Whites Road Chennai 600 014 Through Chairman

United India Insurance Co. Ltd. Regional Office Sahara Chambers Tonk Road Jaipur United India Insurance Co. Ltd Divisional Office Holagal Road, Ajmer

... Respondents

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

For the Petitioner Mr Harsh Vardhan Surana, Advocate

PRONOUNCED ON : 16 th JANUARY 2013

O R D E R

This revision petition has been filed by the petitioner who was the original complainant against the order dated 18th April 2012 passed by the State Consumer Disputes Redressal Commission, Rajasthan, Circuit Bench no. 3 at Jaipur (in short, ‘the State Commission’), by which the State Commission had allowed the appeal filed by respondents against the order dated 22.02.2010 passed by the District Consumer Disputes Redressal Forum, Ajmer (in short, ‘the District Forum) and set aside the order of the District Forum. 2. The factual matrix of this case are like that the petitioner had insured his godown no. 644 with the insurance company of the respondents. The godown caught fire on 15.04.2007 and according to the petitioner he suffered a loss of Rs.25,23,552/-. The insurance company got the investigation done through a surveyor and allowed the claim of Rs.14,76,264/- and also made payment thereof to the petitioner. It is the case of the petitioner that the surveyor did not treat the goods worth Rs.6,59,459/- belonging to the petitioner but treating these goods to be of Surana Associates, a sister concern company of the petitioner and rejected the same and stated that transferring the entire goods had been made with an intention to make the claim. Accepting the plea made by the petitioner, the District Forum vide its aforesaid order allowed the complaint and held that the insurance company had not produced any evidence in addition to the report of the surveyor and under these circumstances, it could not be admitted that the complainant/petitioner had not purchased goods from the Surana Associates. The Order of the District Forum read as under:

“19. Consequently complaint of the appellant is allowed against non-applicant insurance company and non-applicant insurance is hereby ordered to make the payment of Rs.6,59,459/- to the applicant with 9% interest per annum from the date of the filing of complaint till the date of payment and litigation cost of Rs.1,500/- within a period of two months from the date of order or to make deposit the amount in forum”.

3. Aggrieved by the order of the District Forum, the insurance company filed an appeal against the same before the State Commission which allowed it and set aside the order of the District Forum.

4. We have heard Mr Harsha Vardhan Surana, learned counsel appearing on behalf of the petitioner and perused the record. Learned counsel for the petitioner has submitted that the State Commission committed a mistake in accepting the plea of the insurance company based on the report of the surveyor. He submitted that the District Forum has rightly included the goods kept in the godown when the fire broke out and the total amount of loss because of the presence of goods in the godown at that time was not at all disputed by the respondents. The only contention which was relied upon by the State Commission in the impugned order was that the surveyor had said that the goods under dispute were not insured as they were kept in by friendly transfer and not by proper sale purchase. Another contention raised by the learned counsel was in respect of receipt of part payment towards claim of the petitioner from the insurance company. He submitted that the State Commission has erred in its observation that since the petitioner had received the part payment as full and final settlement and hence, he was not entitled to raise any further claim. He further submitted that the State Commission failed to appreciate that the amount was accepted by the petitioner because of his helplessness of undergoing financial hardship due to loss in the business caused by the fire and his business rotation would have suffered if he had not received the part payment from the insurance company. He, therefore, pleaded that the order of the District Forum which was a well-reasoned order needs to be maintained and the impugned order be set aside.

5. We have given our thoughtful consideration to the contentions raised by the learned counsel of the petitioner. We find that the State Commission has reversed the order of the District Forum by giving reasons which are in line with the established legal decision and the judgment of the Apex Court. Coming to the first plea regarding the exclusion of goods, the value at Rs.6,59,459/- is based on the report of the surveyor. It is well established by now that the report of the surveyor appointed by the insurance company is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/ petitioner since the respondents/OPs had filed the surveyor’s report as their evidence. Besides this, the State Commission has also recorded the following circumstances which lead the State Commission to reject the plea of the petitioner:

“The owner of Surana Associates has been stated to be Dinu Surana whereas the owner of Surana Electronics has been stated to be Ankur Suarana. The name of the father of the both is Mahendra Singh Surana. In this way the relation of these both is proved. It has occurred in the report of the surveyor that disputed goods were available in the godown of Surana Electronics and it belongs to Suaran Associates. It was put there only as trust because both are having relations together. Hence, these goods were kept in the godown as trust and goods were not insured. In addition this fact has also occurred that the fire incident occurred on 15.04.2007 and at the same day Surana Associates has stated to sale these goods to Suarana Electronics. It is also a strange co- incidence. As well as these facts have also come on record that goods which have been stated to be of Surana Associates on 15.04.2007, prior to the same Surana Electronics had never purchased the same”.

6. So far as the other ground taken by the petitioner is concerned, the receipt of amount of Rs.14,76,264/- sent by the insurance company against the claim put up by the petitioner is not disputed by the petitioner. In fact, the petitioner filed certain additional documents which have been placed on record in which it has been included. Copy of the voucher signed by the petitioner indicates that he has received the amount in question by way of full and final discharge of his claim against the insurance company/ respondents. This being the undisputed factual position, the petitioner cannot be permitted to approach the Consumer Forum for the balance amount treating the payment as only part payment against the claim unless he establishes that he accepted the amount under undue influence, misrepresentation or fraud played by the insurance company. No such plea has been put forth by the petitioner. The only point made by learned counsel is that after receipt of the amount, the petitioner sent a letter to the insurance company asking for the payment of balance amount. This, however, cannot provide any comfort to the petitioner to reopen the matter having accepted the amount sent by the insurance company and signed the discharge vouched sent by the insurance company. The claim of the petitioner stood settled. The view taken by the State Commission is in line with the judgment of the Apex Court in the case of United India Insurance vs Ajmer Singh Cotton and General Mills and Ors. [(1999) 6 Supreme Court Cases 400]. In the absence of any allegation of fraud, misrepresentation or undue influence, we cannot agree with the contention of the learned counsel.

7. In view of the above, we do not find any merit in the revision petition which is liable to be dismissed. We dismiss the same at the threshold with no order as to cost.

……..………Sd/-……………………

(K.S. CHAUDHARI J.)

Presiding Member

……....……Sd/-……………………… (SURESH CHANDRA) Member

satish

FIRST APPEAL NO. 692 of 2006

(Against the order dated 31.08.2006 in Complaint Case No. C-21/95 of the

State Consumer Disputes Redressal Commission Delhi)

Devinder Singh Gupta S/o Late Shri B.L. Gupta Resident of H.No. I-4 Mandir Wali Gali No.10 Brahampuri, Delhi-53 Presently at Pocket F, 56-D, MIG Flats, GTB Enclave Dilshad Garden Delhi-93

… Appellant

Versus

Dr. Vivek Pal Navjyoti Eye Centre 53, Daryaganj New Delhi-11002

… Respondent

BEFORE:

HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER HON’BLE MRS. REKHA GUPTA, MEMBER

For Appellant : Mr. Santosh Kumar, Advocate For Respondent : Ms. Anu Narula, Advocate

Pronounced on 16 th January, 2013 ORDER

1. This first appeal has been filed by Devinder Singh Gupta, the original complainant before the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the State Commission) and Appellant herein, being aggrieved by the lesser compensation awarded to him by the State Commission in respect of his complaint of medical negligence against Dr. Vivek Pal, Respondent herein.

FACTS : -

2. In his complaint before the State Commission, Appellant had stated that following a minor complaint of a cosmetic nature in his left eye he consulted Respondent, who was an eye surgeon, in his clinic in Daryaganj in June, 1993, who after examining him informed that he was suffering from an innocuous growth known as Pytreygium and since there was likelihood that the growth may increase excision was advised through a minor surgery, which would ensure that the Appellant’s eye would become normal within five days. Appellant, therefore, agreed to undergo this surgery, which was conducted in October, 1993 in Respondent’s clinic at Masjid Moth, New Delhi and he was thereafter prescribed medicines for both local application, which included Mitomycine-C, as also oral medication. However, soon after Appellant’s left eye became red and there was acute pain and irritation, which persisted, and, therefore, he consulted the Respondent, who assured him that if he continues to regularly use Mitomycine-C, his eye would become normal. However, during the course of using this medicine, Appellant’s eye further deteriorated and became very dry and there was loss of vision in that eye. Appellant complained about this to Respondent, who changed the medicine, which only further aggravated the condition. Appellant, therefore, consulted another ophthalmologist Dr. G.C. Mukherjee, who informed him that his left eye had become very dry due to wrong prescription of Mitomycine-C and he was advised to consult Dr. P. Vishwanathan Gopal atGeetanjali Hospital, New Delhi, who confirmed that the eye had got damaged due to prolonged use of Mitomycine-

C. Appellant thereafter went to All India Institute of Medical Science, New Delhi, where this diagnosis was confirmed by a Cornea Specialist-Dr. Anita Panda. He was advised to stop using all the medicines, including Mitomycine-C. Being aggrieved because of the medical negligence and deficiency in service on the part of Respondent, because of which the Appellant’s eye became dry, he issued a legal notice to Respondent to pay him Rs.10 Lakhs as compensation but received no response. Appellant, therefore, approached the State Commission with a complaint of medical negligence and deficiency in service against Respondent and requested that he be directed to pay

Rs.10 Lakhs as damages and compensation since there was total loss of vision in

Appellant’s left eye, which had adversely affected both his professional and personal life, as also any other relief as deemed appropriate. 3. Respondent on being served filed a written rejoinder denying the above allegations, which he termed as false, frivolous and vexatious. It was contended that

Appellant approached him with a condition known as Pytreygium, which is a growth of extra skin and if it reached the pupil area of the eye, it could permanently hamper the

Appellant’s vision. Surgery was, therefore, necessary, which was satisfactorily conducted. Appellant, thereafter advised both oral medication as also medicine through local application and a week later when the healing of the Appellant’s eye was completed, he was advised to useMitomycine-C for two weeks since this was necessary to prevent recurrence of Pytreygium. This medicine, which comes in the form of injection, was converted into eye drops for use three times a day and Appellant was verbally told that over use of this medicine for more than two weeks is harmful. Unfortunately, Appellant did not heed this advice and instead of coming back for a further check up appears to have continued using Mitomycine-C and taking treatment from various other doctors as per his own whim and fancy. It was only on

03.03.1994 i.e. after over four months that Appellant visited the Respondent and told him that he was still continuing the use of Mitomycine-C. Respondent immediately asked him to discontinue the same and to come back after 15 days. Appellant again did not heed this advice and consulted Respondent after three months i.e. on 22.06.1994 when he was prescribed natural tear drops and lacritubeointment. A perusal of these facts clearly indicate that it was the Appellant who was responsible for the damage caused to his left eye by prolonged use ofMitomycine-C on his own volition and against medical advice given by Respondent. There was, therefore, no deficiency in service or medical negligence of Respondent.

4. The State Commission after hearing the parties and on the basis of evidence produced before it held the Respondent guilty of “limited negligence” by not advising the

Appellant in writing to use Mitomycine-C only for a particular limited period. The relevant part of the order of State Commission reads as follows : “ 28. By not prescribing in writing in the prescription that medicine Mitomycine-C should be used, at first instance, only for two weeks to O.P. has committed an offence of limited medical negligence as complainant also cannot be excused for contributory negligence by not approaching the treating Doctor after few days and hopping from one Doctor to another and continued using the medicine for long resulting in dry-eye syndrome causing loss of vision in the eye.

29. OP is guilty of this limited medical negligence amounting to deficiency in service due to which the complainant has lost his vision of one eye though he can also be not absolved from contributory negligence which is a mitigating circumstance for awarding compensation.”

5. The State Commission, therefore, held that a lump-sum compensation of

Rs.50,000/- to the Appellant would meet the ends of justice.

6. Being aggrieved by the lesser compensation, the present first appeal has been filed.

7. Learned counsel for both parties made oral submissions.

8. Learned counsel for the Appellant contended that the State Commission erred in holding the Respondent guilty of only limited medical negligence and on the other hand holding the Appellant guilty of “contributory negligence” by not following the advice of

Respondent. In fact, following the surgery the Appellant did visit the Respondent doctor for further check-up prior to 03.03.1994. According to Appellant, Respondent had prescribed him Mitomycine-C on 18.10.1993 and the prescription did not indicate either the duration for taking the medicine or its possible harmful side effects. The Appellant was also not advised when he should come back for a follow up check. Further, when the Appellant visited the Respondent on 03.03.1994 with a serious complaint regarding his operated eye, Respondent again sought to hide the correct facts by recording that the condition of appellant’s eye as also the vision was normal whereas by then he had already started losing his eyesight and he was having acute pain in his eye because of which he was constrained to approach other doctors, who advised the Appellant to immediately stop the use of Mitomycine-C. It was these doctors who informed him that the problem in his left eye had occurred due to over use of Mitomycine-C, which should not have been used for more than two weeks. Counsel for the Appellant further stated that the conduct of the Respondent was suspect before the State Commission as is evident from the fact that he did not produce the necessary documents on the ground that these had been destroyed in a fire. Because of the medical negligence and callousness on the part of Respondent, Appellant lost the vision in his left eye causing him a great deal of mental agony and adversely affecting his work as a senior clerk in the Supreme Court of India.

9. Learned counsel for Respondent denied the above allegations and stated that it is not factually correct that Respondent had prescribed Mitomycine-C to the Appellant on

18.10.1993 i.e. immediately following the surgery. In fact, he was prescribed other medicines and ointments after the surgery and it was only after a week when the eye had healed that Mitomycine-C was prescribed to the Appellant. It is a proven fact in ophthalmology medical literature thatMitomycine-C is successful in checking the recurrence of Pytreygium, which has a very high incidence of recurrence and is routinely prescribed for limited periods following such surgeries. It was under these circumstances that Respondent rightly prescribed this medicine to the

Appellant. Although not written down in the prescription, it was made clear verbally to the Appellant that the eye drops were to be used three times a day for a limited period of two weeks and its over use was harmful. This is further confirmed by the fact that

Respondent converted only one vial of Mitomycine-C injection into eye drops, which would have lasted at the most for a little over two weeks. From this fact alone, it is clear that the Appellant had been procuring this medicine and getting it converted into eye drops from some other doctor(s) and in this way using it for several weeks i.e. till

03.03.1994 when he next visited the Respondent, who immediately directed him to discontinue the use of this medicine. Learned counsel for Respondent pointed out that a senior ophthalmologist of Safdarjung Hospital, New Delhi, Dr. Malik, has confirmed to him in writing that Appellant had consulted him and also informed him that he was continuing to use Mitomycine “on his own”. Learned counsel for Respondent stated that

Appellant continued to disregard medical advice of Respondent even after 03.03.1994 by not coming for follow up visits, which he was advised to do by Respondent, who had prescribed him some other medicines and wanted to assess their effect. From the above facts, it is clear that Appellant, who was not an illiterate person and who had been clearly orally advised to use Mitomycine-C eye drops only for a limited duration by

Respondent, failed to follow this advice and continued to use the medicine on his own, for which Respondent cannot be held responsible, particularly since Appellant did not even come for the follow up visit after two weeks. There was no medical negligence or deficiency in service on the part of Respondent, who had prescribed the right medicine and given correct advice regarding its limited period of use. The present first appeal, therefore, having no merit deserves to be dismissed.

10. We have heard learned counsel for both parties and have carefully gone through the evidence on record. The fact that Appellant visited the Respondent’s clinic with a complaint in his left eye and was detected with Pytreygium, for which a minor surgery was conducted is not in dispute. It is also a fact that Appellant was prescribed Mitomycine-C by Respondent, which is a drug of choice, to ensure that Pytreygium does not recur since it has a high degree of recurrence. While it is a fact (as also observed by the State Commission) that no directions were given by

Respondent in writing to Appellant regarding the duration for which the drug should be used or any written precaution against its prolonged use, we find force in the contention of Respondent that since he had converted only one vial of Mitomycine injection into eye drops, this itself indicates that the intention was clearly for its limited use for about two weeks and not for several months. When specifically asked by us, learned counsel for the Appellant also fairly conceded that Respondent had converted only one vial of Mitomycineinjection into eye drops, thus confirming the Respondent’s clear intention regarding its use for a limited period. It is, thus, apparent that Appellant had been using this medicine for several weeks by getting the Mitomycine injection converted into eye drops through some other source and not by the Respondent, for which Respondent cannot be held responsible. It was under these circumstances that the State

Commission had held the Respondent guilty of only “limited medical negligence” for not having put down in writing the dosage and duration of the medicine in the prescription slip. We agree with this finding. We further agree that the Appellant is guilty of

“contributory negligence” by not visiting the Respondent for follow up visits as advised on more than one occasion and instead consulting one doctor after another and also continuing Mitomycine-C for long period on his own volition, which resulted in the dry eye syndrome and consequent loss of vision in the left eye. 11. To sum up, we uphold the order of the State Commission that Respondent is guilty only of “limited medical negligence” by not giving a written prescription and instead verbally advising the Appellant, for which a compensation of Rs.50,000/- is reasonable and we, therefore, confirm the same. The present first appeal is dismissed. Respondent is directed to pay a sum of Rs.50,000/- to the Appellant within six weeks, failing which it will carry interest @ 6% per annum for the period of default. No costs.

Sd/- (ASHOK BHAN, J.) PRESIDENT

Sd/- (REKHA GUPTA) MEMBER

Mukesh NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

of Chhattishgarh State Consumer Disputes Redressal Commission)

RAMSUYASH PANDEY Ward No. 5, New Teachers Colony Tilda, Post Nevra District Raipur Chhattisgarh

….. Petiitoners

Versus

1. MANAGING DIRECTOR, C.G. STATE POWER DISTRIBUTION CO. LTD. Raipur Chhattisgarh

2. EXECUTIVE ENGINEER, CHHATTISGARH STATE VIDYUT VITRAN COMPANY Raipur Chhattisgarh

BEFORE

PRESIDING MEMBER

For the Petitioner(s) : In Person

O R D E R

Petitioner in this case, who was complainant before the District Forum, filed a complaint under section 12 of the Consumer Protection Act, 1986 praying for compensation and restoration of disrupted power supply. The petitioner had a power supply connection of the respondent company for supply to 5 H.P. motor for his tube- well. On 23.5.2010, wire of the electric supply line was stolen and power supply to the tube-well got disrupted. The petitioner requested the respondent company to restore the supply but the same was not done and hence the consumer complaint came to be filed. According to the respondents, the power supply was restored on 09.07.2010 after carrying out the survey of the area, the respondent company had issued necessary work order for laying new wire in place of the stolen wire. The work of restoration was completed at the earliest and the petitioner had no right to claim compensation in the matter. The District Forum vide its order dated 19.11.2010 partly accepted the complaint and directed the respondent company to pay Rs.7,000/- to the petitioner for mental agony caused to him along with cost of Rs.1,000/-. Not satisfied with the order of the District Forum, the petitioner filed an appeal before the Chattisgarh State Consumer Disputes Redressal Commission, Raipur (State Commission, for short) for enhancement of the awarded amount. Another appeal was filed by the respondent company challenging the order of the District Forum with the State Commission. Since none appeared for the appellant, State Commission dismissed the appeal in limine and also for want of prosecution at admission hearing stage without notice to the respondent. Aggrieved by the impugned order, the petitioner has filed the present revision petition.

2. We have heard the petitioner, who has appeared in person. It was pointed out by him that after dismissal of his appeal in limine, he had also filed an application dated 10.1.2011 praying for review of the impugned order but the same was dismissed vide order dated 10.2.2011 passed by the State Commission. A copy of which is placed at page 21 of the record. The petitioner further submitted that the appeal filed by the respondent company before the State Commission has also been dismissed by the State Commission vide a separate order dated 30.3.2011, by which order the order of the District Forum has been upheld confirming the quantum of compensation of Rs.7,000/- awarded by the District Forum for mental agony. In the circumstances, the petitioner submitted that since the deficiency in service on the part of the respondent company has been upheld by the Fora below, his prayer for enhancement of the amount of the compensation is suitable. There is no other legal issue involved in the matter.

3. Perusal of the record indicates that the District Forum has awarded an amount of Rs.7,000/- for mental agony suffered by the petitioner. State Commission on appeal has upheld the amount as adequate and refused to interfere with the quantum thereof. We do not find any reason or justification to interfere with the impugned order through this revision petition. We, therefore, dismiss this revision petition as devoid of any merit at the threshold with no order as to cost. ..……………Sd/-………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..…………Sd/-…………………

(SURESH CHANDRA)

MEMBER RS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2011 OF 2011

(From the order dated 11.04.2011 in Appeal No. A/08/2002

of Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench Nagpur)

Kailash Dainaji Kharde Resident of Pari Amma Nagar Mothi Umari Akola Maharashtra

Petitioner

Versus

Mittal Electronics Kala Chabutara Akola Maharashtra

Executive Manager TATA Sky Ltd., 3rd Floor Bombay Dying, A O Building Pandurang Bhutkar Marg Worli, Mumbai – 25 Respondents

BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI PRESIDING MEMBER HON’BLE MR. SURESH CHANDRA MEMBER For the Petitioner Mr Krishna Muraree Singh, Advocate

O R D E R

Petitioner Kailash Dainaji Kharde was the original complainant before the District Consumer Disputes Redressal Forum, Akola, Maharashtra (in short, ‘the District Forum’) and respondents 1 and 2 were the opposite parties (OPs) in the same order. He is serving in the telephone department at Akola, Maharashtra.

2. Briefly stated, the main grievance of the complainant was that against the assurance given by OP 1 at the time of installation, OP 2 had increased the rent of the Dish Antenna by charging the entire amount. The allegation of giving a false temptation and non-fulfilment of the promise made because of which he suffered mental torture and inconvenience, the complainant filed this complaint before the District Forum for getting damages from the OPs.

3. After hearing the parties and on appraisal of the issues and documents before it, the District Forum allowed the complaint by directing both the respondents/ OPs to initially provide services of TATA Sky for one year by charging the Rs.200/- per month from the complainant. For mental tension and physical harassment compensation of Rs.1,000/- was awarded and Rs.500/- were awarded by way of cost of the proceedings. 4. Not satisfied with this award treating it as inadequate, the complainant filed an appeal before the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Nagpur (in short, ‘the State Commission’) . None appeared for the complainant/ appellant or OP 1. After hearing the counsel for the OP 2, the State Commission vide its impugned order held that reasonable compensation had been awarded by the District Forum while partly accepting the complaint and hence did not find any merit in the appeal and dismissed the same. Aggrieved by this order of the State Commission, the complainant has now filed the present revision petition.

5. We have heard Mr Krishna Muraree Singh, learned counsel appearing on behalf of the petitioner and perused the records. The only issue involved in the present revision petition is in respect of quantum of compensation awarded by the District Forum and upheld by the State Commission. It is to be noted that award of compensation and quantum thereof have to be decided by the Fora below in their distinction keeping in view the peculiar facts and circumstances of the case. There is no other legal issue involved. In the given facts and circumstances, we do not find any merit which would justify our interference with the impugned order. We, therefore, dismiss this revision petition in limini with no order as to cost.

……..………Sd/-…………………… (K.S. CHAUDHARI J.) Presiding Member

……....……Sd/-……………………… (SURESH CHANDRA) Member satish

of Karnataka State Consumer Disputes Redressal Commission)

United India Insurance Co. Ltd., Through its Manager At Regional Office, Kanchenjunga, Barakhamba Road, New Delhi.

……. Petitioner

Versus

1. Sri Sadanand R. Kotian S/o Raju Kotian, R/o Pithordi, Udayavara, Udupi Taluk and District Karnataka – 576101

2. The Manager, Syndicate Bank, Yadayavara, Udupi Taluk and District Karnataka – 576101

…. Respondents

BEFORE

For the Petitioner(s) Mr. Ravi Bakshi, Advocate

For the Respondent-1 Mr. Ranji Thomas, Advocate

Respondent-2 NEMO

O R D E R

This revision petition has been filed by the insurance company which was opposite party no. 1 in the complaint before the District Forum. The respondent no. 1 was the original complainant and respondent no. 2 was OP No. 2 being the Bank which had financed the purchase of the boat in question.

2. Briefly stated, the respondent no. 1 / complainant purchased a mechanized fishing vessel named “Shwethasri” for a total sum of Rs.11,50,000/- by availing a loan of Rs.8,00,000/- from respondent no. 2 bank. The said boat was being used for fishing. This boat of the respondent no. 1 which had been insured with the petitioner company drowned in the high sea on 15.09.2004. When the claim was lodged by the respondent no. 1 with the petitioner insurance company, it was repudiated by the petitioner insurance company as not being genuine. A complaint was, therefore, filed by respondent no. 1 before the District Forum, which was registered as CC-27/2006. It was allowed by the District Forum, Udupi, Karnataka vide its order dated 25.08.2007. 3. However, on appeal before the Karnataka State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in appeal No. 2008 / 2007 the State Commission remitted the matter back to the District Forum for fresh inquiry and recording additional evidence in terms of the directions of the State Commission. Pursuant to this order of the State Commission, the District Forum vide its order dated 25.10.2008 confirmed its earlier order and allowed the complaint in terms of the following directions:-

“The complaint is allowed. Opposite party No. 1 (Insurance Co.) is directed to pay to the complainant a sum of Rs.10,00,000/- with interest @12% per annum from 15.09.2004 till payment alongwith Rs.10,000/- as damages towards the mental agony and Rs.5,000/- towards the legal fee, Rs.3,000/- as cost of the proceedings to be paid within a month from the date of receipt of the order.”

4. Aggrieved by this order of the District Forum, the petitioner filed an appeal bearing no. 2633 / 2008 before the State Commission against this order. Vide impugned order dated 23.03.2009, the State Commission partly allowed the appeal and modified the order of the District Forum in terms of the following directions:- “ The appellant / Insurance Company is directed to pay Rs.10,00,000/- to the complainant within two months from today. In the event if the Insurance Company fails to pay the said amount within two months as directed above, the Insurance Company is liable to pay interest at 9% per annum on the said sum of Rs.10,00,00/- from the date of the complaint filed before the DF till realization.

The appellant / Insurance Company has deposited a sum of Rs.5,25,000/- in this appeal. If the respondent / complainant filed a memo for payment, the office is directed to pay the same to the respondent/ complainant.

The balance amount is to be paid by the Insurance Company to the complainant as directed above.”

5. It is against the aforesaid order dated 23.3.2009 passed by the State Commission that the present revision petition has been filed by the petitioner insurance company.

6. We have heard Mr. Ravi Bakshi, Advocate for the petitioner insurance company and Mr. Ranji Thomas, Advocate for the respondent no. 1. No one has appeared for the respondent no. 2 bank.

7. It was submitted by the learned counsel for the petitioner that the claim of the complainant came to be rejected by the insurance company because it was a fraudulent insurance claim since the boat of the complainant which had allegedly sunk on the high sea reappeared with similar features but with a different name and some minor changes in the boat number etc. He contended that the State Commission failed to properly appreciate the similarities in the two boats especially with regard to engine number and erred in holding that two boats were different. Another contention raised by the learned counsel was that the State Commission erred in holding that there was no need to call any witness from Goa Port Authorities which would have enabled the petitioner to prove that the boat purchased by Seetabai was named ‘Manal’ which was subsequently renamed as Jai Prakash. Thus, the petitioner was denied reasonable opportunity to defend itself and, therefore, the impugned order is bad in law and is liable to be set aside.

8. Per contra, the counsel for the complainant / respondent no. 1 has submitted that both the contentions raised by the counsel for the petitioner have been duly considered by the State Commission in its well-reasoned order and both the fora below have returned their concurrent findings based on facts of this case emanating from the evidence adduced by the parties. He further submitted that the complaint has already gone through two rounds of litigation before the Fora below and yet on re-examination of the dispute, both the District Forum and State Commission have returned their concurrent findings. There is, therefore, no merit in the present revision petition and the same is liable to be dismissed. 9. We have considered the rival contentions carefully. The State Commission while partially accepting the appeal of the insurance company has made the following observations in support of the impugned order:-

“No doubt the Insurance Company made an application before the DF to call for the official of the Goa Port in order to establish that the boat by nameManal is the boat which subsequently named as ‘Jai Prakash’ which was said to have been purchased by Seetabai. When the document produced bySeetabai conclusively proves that fact that the said boat was purchased from Purandara Kotian there is no need to call for any witness from Goa Port authorities. Further it was not so difficult for the Insurance Company to produce the documents after obtaining the certified copies from the Goa Port to show that the said Manal boat was subsequently named as ‘Jai Prakash’ which is said to have been purchased by Seetabai.

The Engine number and other particulars in respect of two boats are one is relates to the boat said to have been sunk in the high sea and another relates to the boat found near the Bhatkal sea shore. So far as engine number is concerned in respect of the boat belonging to the complainant is ALMV-400/9 No. AL 7832 whereas engine number of the boat found near the Bhatkal sea shore is Ashok Leyland ALMU 400 No. AL 7832. Thebaots that was manufactured by Ashok Leyland bears engine numbers as 400 and another boat 400/9. Even length, breadth of the boats in respect of these two boats are altogether different. Therefore it cannot be said that the boat found near the Bhatkal Sea shore is the same boat which is said to have been sunk in the high sea. Therefore the DF is right in awarding compensation of Rs. 10,00,000/- in favour of the complainant.

If the Insurance Company is still of he view that the complainant has made a false and fradulent claim misrepresenting the facts, it is open for the Insurance Company to institute criminal proceedings as against the complainant and in the event if the Insurance Company were to succeed in the prosecution liberty is reserved to the Insurance Company to take steps to recover the amount from the complainant.

In view of the peculiar facts and circumstances of the case we are of the view that the interest awarded by the DF on the amount payable is to be denied. In addition in our view the complainant is also not entitled for any compensation and costs. This observation which we are now making is sufficient to safeguard the interest of the Insurance Company. Hence impugned order to that extent requires modification.”

10. We agree with the view taken by the State Commission. Both the aspects pleaded by the learned counsel for the petitioner have been suitably dealt with by the State Commission in its impugned order and no fresh material has been placed by the petitioner to persuade us to take a different view. We have also thought it necessary to call for the original record of the District Forum and to give opportunity to the petitioner to produce photographs in support of the contentions regarding the number of gear box of the Boat being identical and showing the change of name of the boats by scratching the surface paint. While the District Forum record has been received and perused by us, no further documents as per our direction regarding the gear box number and scratching of the surface paint have been produced by the petitioner in support its contention in spite of the opportunity given to learned counsel for the same.

11. In the circumstances, we do not find any merit in this revision petition and dismiss the same with the parties bearing their own costs. ..…………Sd/-…………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..…………Sd/-…………………

(SURESH CHANDRA)

REVISION PETITION NO. 2945 OF 2011 (From the order dated 21.06.2011 in Appeal No.789/11 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

PCARDB Through its CEO Cooperatives Bhawan, Panchkula Sector -2, District Panchkula

… Petitioner/OP

Versus

1. Shri Satbir Singh S/o Shri Devi Ram R/o Village Kharkhari, Tehsil Bawal, Bawal, District Rewari, Haryana

2. Shri Om Prakash PCARDB Branch Manager, Bawal District Rewari, Haryana

… Respondents/OP

BEFORE

For the Petitioners : Mr. Rishi Malhotra, Advocate in both the matters For the Res. No.1 : Ms. Girija Wadhwa, Advocate in both the matters

For the Res.No.2 Mr. Dinesh Chander Yadav & Mr in both the matters Mr. A.S. Rish, Advocates

O R D E R

This revision petition has been filed against the order dated 21.6.2011 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 789 of 2011 – PCARDB Vs. Satbir Singh & Ors. by which while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/Respondent No. 1 had raised a loan of Rs.4,00,000/- from petitioner/opposite party in order to run his soap manufacturing unit. The loan was sanctioned by OP/Respondent No. 2 by mortgaging the immovable property of the complainant and loan amount was to be disbursed to the complainant in three instalments. First instalment of Rs. 1,75,000/- was disbursed on 13.3.2009 and second instalment of Rs.1,00,000/- was disbursed on 30.3.2009 to the complainant, but the third instalment of Rs.1,25,000/- was withheld by opposite party. Complainant served notice on the opposite party for release of third instalment, but opposite party vide its order dated 19.8.2009 informed that for want of utilization certificate of two instalments, third instalment of loan could not be disbursed. In such circumstances, complainant alleging deficiency on the part of opposite parties filed complaint. Opposite parties filed written statement and took the plea that complainant did not properly utilize first two instalments so the third instalment could not be validly released, hence, complaint may be dismissed. Learned District Forum vide order dated 27.4.2011 allowed complaint and directed opposite party to release third instalment of

Rs.1,25,000/- to the complainant within a period of one month and further awarded

Rs.1,00,000/- as litigation expenses. This order was challenged by the petitioner before the State Commission and the learned State Commission vide its impugned order dismissed appeal.

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

4. Learned Counsel for the petitioner submitted that third instalment of loan could not have been released in the absence of utilisation certificates as per rules and further submitted that utilisation certificate issued by the Branch Manager and Field Officer was false and petitioner has not committed any deficiency in not releasing third instalment, hence, revision petition be accepted and order of learned State Commission and District

Forum may be set aside. On the other hand, learned Counsel for the respondent-

1/complainant submitted that proper utilisation certificate was given by concerned officers of opposite party and order passed by learned State Commission is in accordance with law, hence, petition be dismissed.

5. Perusal of record reveals that Branch Manager and Field Officer of the opposite party had issued utilisation certificate dated 30.4.2009 to the complainant in which it was specifically mentioned that complainant had utilised earlier two instalments of loan amount. Further, this certificate was affirmed by report dated 3.6.2009 submitted by the

Branch Manager and Field Officer of the Petitioner Bank. It appears that another

Branch Manager also inspected the site on 30.4.2009 and submitted his report on

2.5.2009 in which it was mentioned that he visited the site of the complainant on

30.4.2009 for checking utilisation of loan amount and found that borrower (complainant) has not purchased the material according to the bills and only temporary arrangement was made by the borrower for the eyewash. It was further observed in the report that borrower manipulated reports with the help of Field Officer, Om Prakash and Branch

Manager, Om Prakash and both the officers issued false loan utilisation certificate. It is not clear whether there were two Branch Managers of the Petitioner Branch at Bawal and what was the occasion for second Branch Manager to inspect the site after two days when Field Officer and Branch Manager had already reported about utilisation of loan instalments. Second report of Branch Manager also speaks about temporary arrangement of material. In such circumstances, it appears that amount of earlier two instalments had been utilised by the complainant and the third instalment of loan was not released by the Petitioner Bank which amounted to deficiency in service and learned State Commission has not committed any error in dismissing appeal of the petitioner.

6. Learned Counsel for the Petitioner submitted that petitioner has taken disciplinary action against the defaulting Field Officer and Branch Manager for giving false utilisation certificates and in such circumstances, it may be held that utilisation certificates procured from the Field Officer and the Branch Manager were not true. This argument is devoid of force as no such plea has been taken by the petitioner in the written statement filed before the learned District Forum and only revision petition discloses this fact that charge sheet dated 30.4.2010 has been issued to the delinquent officials. Complainant is not concerned with this charge sheet and this fact should have been brought to the notice of District Forum and necessary documents should have been filed along with written statement before the District Forum which passed the judgment after one year of the alleged charge sheet. In such circumstances, cognizance of charge sheet cannot be taken for setting aside impugned order.

7. Perusal of record reveals that out of Rs.4,00,000/- sanctioned loan, Rs.2,75,000/- had been disbursed to the complainant and only loan of Rs.1,25,000/- was withheld and for this deficiency, learned District Forum has awarded damages to the tune of

Rs.1,00,000/- which has been upheld by the learned State Commission. It appears that this amount of damages is on very higher side. In such circumstances, we deem it proper to reduce the amount of compensation to the tune of Rs.40,000/- instead of

Rs.1,00,000/-.

8. Consequently, revision petition filed by the petitioner is allowed in part and order of learned State Commission dated 21.6.2011 and order of District Forum dated

27.4.2011 are modified to the extent that complainant/respondent is entitled to get damages of Rs.50,000/- instead of Rs.1,00,000/- awarded by the District Forum. There shall be no order as to costs. Sd/- ..………………………… ( V.B. GUPTA, J) PRESIDING MEMBER

Sd/- ..…………………………… ( K.S. CHAUDHARI, J) MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

PCARDB Through its CEO Cooperatives Bhawan, Panchkula Sector -2, District Panchkula … Petitioner/OP

Versus

1. Shri Kuldeep Singh S/o Shri Rati Ram R/o Mauja Ramsinghpura (Nanglia), Tehsil Bawal, Bawal, District Rewari, Haryana

2. Shri Om Prakash PCARDB Branch Manager, Bawal District Rewari,

… Respondents/OP

BEFORE

For the Petitioners : Mr. Rishi Malhotra, Advocate

: Ms. Girija Wadhwa, Advocate For the Res. No.1 For the Res. No.2

Mr. Dinesh Chander Yadav & Mr

Mr. A.S. Rish, Advocates

O R D E R

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

21.6.2011 passed by the Haryana State Consumer Disputes Redressal Commission,

Panchkula (in short, ‘the State Commission’) in Appeal No. 788 of 2011 – PCARDB Vs.

Kuldeep Singh & Ors. by which while dismissing appeal, order of District Forum allowing complaint was upheld. 2. Brief facts of the case are that complainant/Respondent No. 1 had raised a loan of Rs.6,00,000/- from petitioner/opposite party in order to run his soap manufacturing unit. The loan was sanctioned by OP/Respondent No. 2 by mortgaging the immovable property of the complainant and loan amount was to be disbursed to the complainant in three instalments. First instalment of Rs. 2,50,000/- was disbursed on 13.3.2009 and second instalment of Rs.2,00,000/- was disbursed on 30.3.2009 to the complainant, but the third instalment of Rs.1,50,000/- was withheld by opposite party. Complainant served notice on the opposite party for release of third instalment, but opposite party vide its order dated 19.8.2009 informed that for want of utilization certificate of two instalments, third instalment of loan could not be disbursed. In such circumstances, complainant alleging deficiency on the part of opposite parties filed complaint. Opposite parties filed written statement and took the plea that complainant did not properly utilize first two instalments so the third instalment could not be validly released, hence, complaint may be dismissed. Learned District Forum vide order dated 27.4.2011 allowed complaint and directed opposite party to release third instalment of

Rs.1,50,000/- to the complainant within a period of one month and further awarded

Rs.1,00,000/- as litigation expenses. This order was challenged by the petitioner before the State Commission and the learned State Commission vide its impugned order dismissed appeal.

4. Learned Counsel for the petitioner submitted that third instalment of loan could not have been released in the absence of utilisation certificates as per rules and further submitted that utilisation certificate issued by the Branch Manager and Field Officer was false and petitioner has not committed any deficiency in not releasing third instalment, hence, revision petition be accepted and order of learned State Commission and District

Forum may be set aside. On the other hand, learned Counsel for the respondent-

1/complainant submitted that proper utilisation certificate was given by concerned officers of opposite party and order passed by learned State Commission is in accordance with law, hence, petition be dismissed. 5. Perusal of record reveals that Branch Manager and Field Officer of the opposite party had issued utilisation certificate dated 30.4.2009 to the complainant in which it was specifically mentioned that complainant had utilised earlier two instalments of loan amount. Further, this certificate was affirmed by report dated 3.6.2009 submitted by the

Branch Manager and Field Officer of the Petitioner Bank. It appears that another

Branch Manager also inspected the site on 30.4.2009 and submitted his report on

2.5.2009 in which it was mentioned that he visited the site of the complainant on

30.4.2009 for checking utilisation of loan amount and found that borrower (complainant) has not purchased the material according to the bills and only temporary arrangement was made by the borrower for the eyewash. It was further observed in the report that borrower manipulated reports with the help of Field Officer, Om Prakash and Branch

Manager, Om Prakash and both the officers issued false loan utilisation certificate. It is not clear whether there were two Branch Managers of the Petitioner Branch at Bawal and what was the occasion for second Branch Manager to inspect the site after two days when Field Officer and Branch Manager had already reported about utilisation of loan instalments. Second report of Branch Manager also speaks about temporary arrangement of material. In such circumstances, it appears that amount of earlier two instalments had been utilised by the complainant and the third instalment of loan was not released by the Petitioner Bank which amounted to deficiency in service and learned State Commission has not committed any error in dismissing appeal of the petitioner.

6. Learned Counsel for the Petitioner submitted that petitioner has taken disciplinary action against the defaulting Field Officer and Branch Manager for giving false utilisation certificates and in such circumstances, it may be held that utilisation certificates procured from the Field Officer and the Branch Manager were not true. This argument is devoid of force as no such plea has been taken by the petitioner in the written statement filed before the learned District Forum and only revision petition discloses this fact that charge sheet dated 30.4.2010 has been issued to the delinquent officials. Complainant is not concerned with this charge sheet and this fact should have been brought to the notice of District Forum and necessary documents should have been filed along with written statement before the District Forum which passed the judgment after one year of the alleged charge sheet. In such circumstances, cognizance of charge sheet cannot be taken for setting aside impugned order.

7. Perusal of record reveals that out of Rs.6,00,000/- sanctioned loan, Rs.4,50,000/- had been disbursed to the complainant and only loan of Rs.1,50,000/- was withheld and for this deficiency, learned District Forum has awarded damages to the tune of

Rs.1,00,000/- which has been upheld by the learned State Commission. It appears that this amount of damages is on very higher side. In such circumstances, we deem it proper to reduce the amount of compensation to the tune of Rs.50,000/- instead of

Rs.1,00,000/-.

8. Consequently, revision petition filed by the petitioner is allowed in part and order of learned State Commission dated 21.6.2011 and order of District Forum dated

27.4.2011 are modified to the extent that complainant/respondent is entitled to get damages of Rs.50,000/- instead of Rs.1,00,000/- awarded by the District Forum. There shall be no order as to costs. ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER

..……………Sd/-………………

Surender S/o Shri Kishan Singh, R/o Vill. Bidhal, Distt. Sonepat, Haryana

… Petitioner/OP

Versus

National Ins. Co. Ltd. Azadpur Branch II (Direct Agent Branch) Laxmi Tower, C- 1/3, Naini Wala Bagh, Azadpur Commercial Complex, Delhi - 110033

… Respondents/Complainant

BEFORE

For the Petitioner : Mr. Vikas Chauhan, Advocate

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

This revision petition has been filed by the petitioner against the impugned order dated 18.09.2012 passed by the Haryana State Consumer DisputesRedressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 233 of 2011 – National Insurance Co. Ltd. Vs. Surender by which while allowing appeal, set aside the order of learned District Forum and dismissed complaint. 2. Brief facts of the case are that complainant/respondent’s Truck HR 46 F 2837 was insured with OP/Respondent w.e.f. 04.10.2007 to 03.10.2008. On 20.5.2008, the truck was stolen and on the very same day, FIR No.81/2008 was lodged by complainant at PS: Sindhawali Ahir, Baghpat. The complainant gave intimation of theft to opposite party on 12.8.2008. Opposite Party repudiated claim on account of violation of condition and in such circumstances, alleging deficiency on the part of OP filed complaint before the District Forum. Learned District Forum after hearing both the parties allowed complaint and directed OP/Respondent to pay Rs. 10,00,000/- along with 9% p.a. interest and further awarded Rs.5,000/- as compensation and Rs.5,000/- as litigation charges. OP filed appeal before the State Commission and learned State Commission vide impugned order allowed appeal and dismissed complaint. 3. Heard learned Counsel for the petitioner at admission stage and perused record. 4. Learned Counsel for the petitioner submitted that learned State Commission has committed error in dismissing complaint as report of theft was made on the very same day and OP was also informed timely, hence, the revision petition may be accepted and order of the learned State Commission be set aside. 5. This is an admitted fact that complainant’s truck was insured by OP and during subsistence of insurance, the truck was stolen on 20.5.2008 and on the very same day FIR was lodged under Section 379 IPC. Complainant has not mentioned purposely in the complaint that when intimation of theft was given to OP. But, letter dated 19.8.2008 issued by OP by which claim was repudiated reveals that by letter dated 12.8.2008, intimation of theft was given by the complainant to OP meaning thereby intimation of theft was given to the Insurance Company after 83 days of theft. As per terms and conditions of the policy it was obligatory on the part of the complainant to intimate about theft to the OP immediately. Learned State Commission has rightly allowed appeal and dismissed claim of the complainant on the basis of Hon’ble Apex Court judgment 2011 CTJ 11 (SC) (CP) – Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs.United India Insurance Co. Ltd. & Anr. and other judgments of this Commission. We do not find any infirmity in the order passed by the learned State Commission and there is no jurisdictional error or material irregularity in the order passed by the learned State Commission and revision petition is liable to be dismissed at admission stage. 5. Consequently, the revision petition filed by the petitioner is dismissed at admission stage with no order as to costs. Sd/-

..…………………………

( V.B. GUPTA, J)

PRESIDING MEMBER

..……………………………

of Haryana State Consumer Disputes Redressal Commission)

I.A. No. 1 /2012 (STAY)

1. Nikunj Lohia s/o H.P. Lohia R/o G-3, Maharani Bagh, New Delhi

2. Harsh Gupta S/o Sh. Anil Gupta, B-41, Maharani Bagh, New Delhi

3. Abha Mittal, Mr. D.C. Mittal, R/o 1010, Sector 17, Faridabad

…. Petitioners

Versus

Yashpal Kalra S/o Late Roop Chand, House No. 2-H/11, NIT Faridabad

…. Respondent

BEFORE

HON’BLE MR. JUSTICE V.B. GUPTA,

PRESIDING MEMBER

For the Petitioner(s) Mr. Madhurendra Kumar, Advocate

O R D E R

PER JUSTICE V.B. GUPTA, PRESIDING MEMBER

Being aggrieved by the order dated 17.05.12 passed by the State Consumer

Disputes Redressal Commission, Haryana, Panchkula (for short ‘the State

Commission’), the appeal filed against order dated 10.11.2008 passed by the District

Forum, Faridabad was dismissed.

2. Brief facts of this case are that the respondent no. 1 / complainant was permanent employee of East India Cotton Manufacturing Ltd. under the control and supervision of the petitioners / OP No. 1 to 3 and a school, namely, Vidya Niketan was being run by them. There was a contract between the management of East India Cotton

Manufacturing Ltd. and its employee in which a specific provision was that children of employees will get education in the aforesaid institute on the basis of ‘no profit no loss’, i.e., minimised fee of Rs.30 per month. It is further alleged that respondent no. 1 children have been studying since very beginning in the aforesaid institute. It is alleged that respondent no. 1 has been cheated by charging full fee. Accordingly, respondent no. 1 filed an application praying not to discriminate with him and other employee to which he did not get any positive response rather have threatened to shunt out of his children from the institute. Thus, alleging negligence and deficiency on the part of the petitioner, a complaint was filed before the District Forum.

3. The complaint was contested by the petitioners in which a plea was raised that there was no contract between East India Cotton Manufacturing Ltd. and its employees that children of the employees would get education in the above said school on the basis of no profit no loss. It has been further stated by the petitioners that there was grant given by the company to its employees that employees’ children will get education at subsidised fee in Vidya Niketan Sr. Sec. School and for this company had to compensate the school against the concession given by it to the employee’s children. It was the sole discretion of Vidya Niketan society to whom it will grant the concession, thus, there was no fault on the part of the petitioners.

4. The District Forum accepted the complaint by granting the following reliefs:- “ i) to compensate the wards of its employees by providing them facilities and concessions in connection with education inVidya Niketan Sr. Secondary School, Faridabad, in accordance with the existing arrangement and the practice followed heretofore.

ii) to refund the earlier excess fee charged by the respondents from the wards of the complainant alongwith interest @12% p.a. from the date of deposit till its realisation.

iii) to pay Rs.2200/- as litigation charges.”

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

State Commission. Along with the appeal an application seeking condonation of delay of 132 days was also filed.

6. The State Commission vide its impugned order, dismissed the appeal on the ground of limitation as well as on merits. Hence this revision petition.

7. It has been pointed out by the counsel for the petitioner that the complaint filed by the complainant before the District Forum was barred by limitation and the complainant does not fall within the category of “consumer”.

8. These pleas have been raised by the petitioner for the first time before this

Commission. Be that as it may, since getting education in the school is a continuous process so it cannot be said that complaint was barred by limitation.

9. Even otherwise, above pleas raised by the learned counsel for the petitioner before this Commission falls to the ground in view of the admission made by the petitioners in their written version, in which it is averred :- “ After the closure of the company, it is not in condition to compensate the school against the concession given by the school to the children of employees.”

10. In view of the aforesaid admission made by the petitioners in its written statement, admittedly, it had been earlier compensating the school against the concession given by the school to the children of the employees. Now, it does not lie in the mouth of petitioners to escape their liability. The State Commission while dismissing the appeal in its impugned order observed:- “Even on merits, the learned counsel for the respondent no. 1 submitted that many complaints were filed against the OPs – appellants by other similarly situated employees claiming the benefit of concession in fees of their wards studying in the school (OP NO. 4) being run by OP Nos. 1 to 3. One of the said complaints bearing 46 to 7.5.1992 was partly allowed by District Forum, Faridabad vide order dated 14.12.1993 upholding right of complainants for having concessional fee for this children and same was confirmed in appeal No. 17/12.5.1994. Even Revision Petition filed by OP before Hon’bleNational Commission bearing RP No. 448 of 1994 also stood dismissed vide judgement dated 17.5.1995. Since the proposition already stands settled. No ground to interfere in the impugned order.”

11. Thus, we do not find any infirmity or ambiguity in the order passed by the State

Commission. There is no legal point involved in the present revision petition. The revision petition is thereby dismissed with cost of Rs.5,000/-. Cost be deposited by way of demand draft in favour of ‘Consumer Legal Aid Account’ of this Commission within four weeks, failing which it shall carry interest @9% p.a. till realisation.

12. List on 01.03.2013 for compliance.

..…..………………………

(V. B. GUPTA J.)

PRESIDING MEMBER

..….…………………………

(K. S. CHAUDHARI J.)

State Bank of India Through Chief Manager, Branch Rewari Bajaria Rewari, Haryana

… Petitioner/OP

Versus

Om Prakash Saini S/o Shri Shyam Lal R/o House No. 1008, Sector-3, Part-2, District Rewari, Haryana

… Respondents/Complainant

BEFORE

For the Petitioner : Mr. Gautam Gupta, Advocate

For the Respondent : In person

O R D E R

This revision petition has been filed by the petitioner against the impugned order dated 17.02.2012 passed by the Haryana State Consumer Disputes Redressal

Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 860 of 2011 –

State Bank of India Vs. Om Prakash Saini by which appeal of the petitioner was dismissed and order of District Forum allowing complaint was upheld.

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

Forum alleging that he was holding saving bank account with the petitioner/OP. On 23.5.2010, complainant went to ATM of OP to withdraw Rs.5,000/-. Rupees 5,000/- could not be withdrawn due to defect in the ATM machine, but received a slip showing deduction of Rs.5,000/- from his account. Complainant immediately contacted opposite party on its toll free no. 1800112211. Opposite party assured that complainant would get the money back. Complainant also demanded video footage of the transaction at the relevant time but that was not supplied. Rupees 5,000/- was also not returned to him and in such circumstances alleging deficiency of service, filed complaint before the

District Forum for refund of amount. Opposite party filed written submissions and submitted that ATM machine clearly shows withdrawal of sum of Rs.5,000/- on

23.5.2010 and complainant was given intimation of this fact along with copy of ATM record and prayed for dismissal of complaint. Learned District Forum after hearing both the parties accepted complaint and directed opposite party to refund Rs.5,000/- as compensation and Rs.1100/- as litigation expenses. Opposite party/petitioner filed appeal before the State Commission which was dismissed by the learned State

Commission against which this revision petition has been filed.

3. Learned Counsel for the petitioner submitted that J.P. Roll contained various other transactions effected on 23.5.2010 and many persons had withdrawn money, but none other except the complainant, complained. Had there been any defect in the ATM machine, more complaints would have been received and in such circumstances, learned State Commission has committed error in dismissing appeal, hence, the revision petition be accepted and order of learned State Commission may be set aside and complaint be dismissed. On the other hand, General Power of Attorney Holder of

Respondent submitted that order passed by learned State Commission is in accordance with law and as the petitioner has not supplied video footage, petition is liable to be dismissed.

4. Complainant has supported his claim only by his affidavit, but has not adduced any other evidence to substantiate his claim before the District Forum. Learned District

Forum observed that “The first and foremost question before this Forum is whether affidavit of the complainant should be relied upon or the slip of the ATM

Machine? Normally, machine does not lie but man may do so. But it also varies from man to man. Every person cannot be presumed to be a liar. It is reliability and trustworthiness of the person which matters. Some time machine may fail. There may be unexplainable number of reasons for the same. After perusal of the record and after hearing the complainant himself, our judicial conscience is completely satisfied that the complainant is a reliable and trustworthiness person”.

5. Learned District Forum held complainant reliable and trustworthiness only on account of judicial conscience on the ground that there was no reason for the complainant to tell a lie only for a sum of Rs.5,000/-. It is true that normally a person would not tell a lie but in civil matters complainant was obliged to prove his claim by preponderance of evidence. Complainant should have called for the statement of the opposite party showing opening balance in ATM machine on 23.5.2010 and closing balance on that day along with amount withdrawn which should have proved that

Rs.5,000/- were not received by the complainant and he got only a slip showing receipt of the money. When many other persons had withdrawn money from that ATM on that day and none complained for not receiving money it cannot be presumed that complainant did not receive Rs.5,000/- from the ATM machine. Complainant has not proved any written protest made to the bank authorities immediately and has based his claim only on the basis of information given on toll-free number of the opposite party.

6. Exactly what message was given is also not on record. Learned District Forum allowed the complaint mainly on the ground that video footage were not furnished to the complainant by the opposite party and the learned State Commission also observed the same fact in the impugned order. In this case, video footage had no relevance at all because this is not the case of the complainant that he did not go to operate ATM machine of opposite party. Opposite party has also mentioned in its written statement that camera is fixed only on the face of the user and not on the keys of the ATM and the delivery window. In such circumstances, non-supply of video footage had no bearing on the claim of the complainant and on this deficiency claim could not have been allowed by the learned District Forum and upheld by the learned State Commission.

7. Consequently, petition filed by the petitioner/OP is allowed against the respondent and impugned order dated 17.2.2012 passed by the learned State Commission in F.A. No. 860 of 2011 is set aside and complaint of the complainant is dismissed. Parties to bear their own cost.

..………………Sd/-…………

( V.B. GUPTA, J)

PRESIDING MEMBER

..……………Sd/-………………

MEMBER K

REVISION PETITION NO. 2982 OF 2012 (From the Order dated 2.5.2012 in Appeal No. 456/2010 of Haryana State Consumer Disputes Redressal Commission, Panchkula)

Shri Kuldeep Singh S/o sh. Hoshiyar Singh R/ Village – Damayapur Post Office - Badli Distt. Jhajjar, Haryana Petitioner

Versus

IFCO Tokio General Insurance Co. Ltd. Reg. Office at IFCO House, IIIrd Floor 34, Nehru Place New Delhi Through Its Manager

Respondent

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

For the Petitioner : Mr. Jitender Vashisht, Advocate

This revision petition has been filed by the petitioner, who was the original complainant before the District Forum, against the order dated 2.5.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (‘State Commission’ for short) by which the State Commission allowed the appeal filed by the respondent / opposite party and reversed the order dated 8.3.2010 passed by the District Consumer Forum, Bhiwani in complaint No.503 of 2008. The District Forum had earlier accepted the complaint of the petitioner by granting the following reliefs:- (i) To pay Rs.15,18,100/- along with interest @ 12% p.a., i.e., from 18.2.2007 the date of repudiation till its final realization. (ii) To pay Rs.2200/- as litigation charges

2. Aggrieved by the aforesaid order of the District Forum, the OP Insurance Co. had challenged the same before the State Commission which vide its impugned order reversed the order of the District Forum and accepted the appeal of the OP Insurance Co. Aggrieved by this order of the State Commission, the complainant has now filed the present revision petition against the impugned order. 3. Brief facts of this case which are not disputed between the parties are that the petitioner / complainant had got insured his truck bearing Regn. No.HR-63A-1885 with the respondent / OP for the period from 9.5.2006. Unfortunately, the vehicle was stolen on 19.12.2006. FIR No.607 of 2006 dated 30.12.2006 was lodged and information was sent to the opposite party on 31.12.2006 along with requisite documents. However, the claim of the complainant was closed as “No Claim” and the complainant was informed by the OP Insurance Co. accordingly vide its letter dated 18.2.2007. Alleging it as a case of deficiency in service, the complainant invoked the jurisdiction of the District Forum, Bhiwani. On being noticed, the OP Co. contested the complaint. It is submitted that the vehicle in question was stolen on 19.12.2006 whereas the FIR was lodged on 30.12.2006 and the information was sent to the OP on 31.12.2006. It is further submitted that the complainant did not produce requisite documents. Some information which was required was also not submitted despite repeated reminders and hence the claim was closed as “No Claim” and the complainant informed accordingly vide letter dated 18.7.2008. On appraisal of the pleadings of the parties and the evidence placed before it, the District Forum accepted the complaint and granted the relief mentioned hereinbefore. Aggrieved by the order of the District Forum, the OP Insurance Co. filed an appeal before the State Commission which was allowed and the order of the District Forum was reversed and set aside by the State Commission vide its impugned order. The complainant/petitioner has now challenged the same through the present revision petition.

3. During the course of admission hearing, learned counsel for the petitioner has contended that the claim of the complainant where the theft of the vehicle is an admitted fact, it is the responsibility of the OP Insurance Co. to pay the claim amount (known as insured amount) which is reflected in the complaint petition and in no circumstances, the respondent company can ignore its own responsibility to pay the insured amount to the complainant only on the ground of delayed FIR. He further submitted that the complainant informed the matter immediately after its occurrence to the police but the police did not want to proceed for investigation into the matter and started the case only on 30.12.2006 although the matter was reported in writing by the petitioner on 19.12.2006. In view of this, it was the job of the police to start the investigation and the complainant could not compel the police to start the case and hence the State Commission erred in not appreciating this aspect properly while non-suiting the claim of the petitioner. He also argued that the word “Immediately” which is mentioned in the terms and conditions of the policy, does not specify the time limit within which the insured will inform the matter and hence even if there was some delay in informing the matter to the OP Insurance Co., the same should have been ignored by the State Commission since the petitioner had already informed the local police station of the theft in writing on 19.12.2006. He, therefore, pleaded that the order passed by the District Forum was based on correct appreciation of the facts and circumstances and hence the same needs to be restored and confirmed and the impugned order be set aside.

4. Learned counsel has also cited the two cases of National Insurance Co. Ltd. Vs. Sanjay Shivhare [IV (2007) CPJ 366 (NC)] and Oriental Insurance Co. Ltd. & Ors. Vs. ParveshChander Chadha [IV (2008) CPJ 211 (NC)] decided by the National Commission in support of his submission.

5. We have carefully considered the submissions made by the learned counsel and also gone through the two orders of the National Commission relied upon by the learned counsel. The State Commission while reversing the order of the District Forum and non- suiting the claim of the petitioner has made the following observations in support of the impugned order:-

“ Undisputedly, the vehicle in question was stolen on 19.12.2006 and the information to the Insurance Company was given on 31.12.2006 i.e. after twelve days from the date of alleged accident. No FIR was recorded in the concerned police station on the date of theft. Thus, there was violation of the condition No. 1 of the policy. The District Consumer Forum has not appreciated the factual position on record and committed great error while accepting the complaint of the complainant and as such the impugned order under challenge is not sustainable in the eyes of law.”

6. While passing the impugned order, the State Commission has relied on the judgement of the National Commission in the case of New India Insurance Co. Ltd. Vs. Trilochan Jane in F.A. No.321 of 2005 decided on 9.12.2009 in which the vehicle was stolen on 8.4.2000 and the matter was reported to the police on 10.4.2000, i.e., after two days of the incident and information to the Insurance Co. was given after about 9 days, i.e., on 17.4.2000 and even then the National Commission dismissed the complaint on the ground of delay in reporting the theft of the vehicle. In the present case, we find that the FIR with the police is recorded on 30.12.2006 and the intimation to the Insurance Co. was given on 31.12.2006. In the circumstances, we agree with the view taken by the State Commission which is in line with the later decision of this Commission in Trilochan Jane’s case (Supra) where the delay in reporting the theft was held to be crucial in the matter of violation of terms and conditions of the policy based on which the claim of the complainant was non-suited. So far as the two cases relied upon by the learned counsel are concerned, we find that the facts and circumstances of the case of Sanjay Shivhare were different and hence the decision of the three Member Bench in that case would not get attracted to the present case. So far as the ratio of the second case of Parvesh Chander Chadha is concerned, this case was decided on 28.8.2008 by a Two Member bench of this Commission wherein in spite of the delay, the order of the District Forum, as upheld by the State Commission, directing the claim to be settled on non-standard basis as 75% was upheld. However, in the case of Trilochan Jane (Supra), this Commission has taken a different view in similar circumstances relying on the ratio laid down by the Apex Court in the case of United India Insurance Co. Ltd. Vs. M/s Harchand RaiChandan Lal [JT (2004) 8 SC 8]. In this later judgement in the case of Trilochan Jane, this Commission in line with the ratio laid down by the Apex Court has held that the terms of policy have to be considered as it is and nothing can be added or subtracted from the same. It was held that the policy provides that in the case of theft, the matter should be reported “Immediately”. In the context of a theft of the car, word “Immediately” has to be construed strictly to make the Insurance Co. liable to pay the compensation. We are of the considered view that looking to the facts and circumstances of this case, the State Commission rightly applied the ratio of later judgement in the case of Trilochan Jane while non-suiting the claim of the petitioner. We, therefore, do not find any ground which would justify our interference with the impugned order. The revision petition, therefore, stands dismissed in limine with no order as to costs. ..…………Sd/-……..………. (K.S. CHAUDHARI, J.) PRESIDING MEMBER

….………Sd/-……………… (SURESH CHANDRA) MEMBER SS/

REVISION PETITION NO. 2533 OF 2011 (Against the order dated 29/03/2011 in Appeal No 2721/2007 of Haryana State Consumer Disputes Redressal Commission, Panchkula)

1 .SMT. SHANTI DEVI Widow of Inder Singh R/o Village Dharauli Tehsil & District Jhajjar Haryana

2 .Narender Singh, S/o Inder Singh, Village Dharauli Tehsil Jhajjar & District Haryana

3. Surender Singh S/o Inder Singh Village Dharauli Tehsil & District Jhajjar Haryana

4. Vikram Singh S/o Inder Singh Village Dharauli Tehsil & District Jhajjar Haryana

5 .Kiran Daughter of Inder Singh Village Dharauli Tehsil & District Jhajjar Haryana

6. Rekha Daughter of Inder Singh Village Dharauli Tehsil & District Jhajjar Haryana

7. Parveen Daughter of Inder Singh Village Dharauli Tehsil Jhajjar & District Haryana ....Petitioner(s) Versus

1 .ORIENTAL INSURANCE CO. LTD. Regional Office, LIC Building 2nd Floor, Jagdhari Ambala Haryana

2 .Oriental Insurance Company Ltd Branch office at Bahadurgarh District Jhajjar Haryana

3 .Oriental Insurance Company Ltd. Branch Office at Mohali Mohali Punjab ....Respondent(s)

BEFORE:

HON'BLE MR. SURESH CHANDRA , PRESIDING MEMBER

For the Petitioners : Mr. R.K. Bhartiya, Advocate

PER SURESH CHANDRA, MEMBER Briefly stated, the facts of this case are that one Inder Singh (hereinafter referred to as life assured) obtained an insurance policy from the OP Insurance Co. for the period from 26.2.1997 to 25.2.2007 for a sum of Rs.5 lakhs. The life assured died in a road accident in the midnight of 7/8.1.2002. FIR No.197 of 6.3.2002 was lodged with the Police Station, Gurgaon wherein an ‘Untraced Report’ was prepared by the police and forwarded to the Chief Judicial Magistrate, Gurgaon. Necessary intimation was given to the OP Insurance Co. but it refused to pay the claim amount and hence alleging it a case of deficiency in service and unfair trade practice, the complainants/petitioners filed a complaint before the District Forum. The District Forum vide its order dated 13.8.2007 accepted the complaint and directed the OP Insurance Co. to pay Rs.5 lakhs to the complainants/petitioners within a period of one month. The OP Insurance Co. filed an appeal against this order of the District Forum before the Haryana State Consumer Disputes Redressal Commission, Panchkula (‘State Commission’ for short). The State Commission vide its order dated 29.3.2011 allowed the appeal of the OP Insurance Co. and set aside the aforesaid order of the District Forum and dismissed the complaint. Aggrieved by the impugned order of the State Commission, the complainants have filed this revision petition against the same.

2. We have heard Mr. R.K. Bhartiya, Advocate, learned counsel for the petitioners and perused the record.

3. It is seen that the State Commission has reversed the order of the District Forum and dismissed the complaint on the ground that it was barred by limitation. While accepting the appeal of the OP Insurance Co., the State Commission has made the following observations:-

“ From the perusal of record, it is crystal clear that the claim submitted by the complainant was treated as no claim by the opposite parties and the intimation in this regard was sent to the complainant on 17.03.2003 whereas the complainants have filed the present complaint on 25.08.2006 i.e. beyond the prescribed period of two years as provided under Section 24-A of the Consumer Protection Act, 1986. It is well settled principle of law that no complaint can be entertained by the Consumer Forum if it is not filed within two years from the date of cause of action. Reliance is placed on the case titled as Kandimalla Raghavaiah & Co. Versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) wherein it has been held by Hon’ble Apex court that:-

“ 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”

4. Applying the ratio laid down by the Apex Court to the facts of the present case, the State Commission treated the complaint of the petitioners as barred by limitation and hence held that the same could not have been entertained by the District Forum. The view taken by the State Commission in its impugned order is correct and according to the provisions of the Consumer Protection Act and the law laid down by the Apex Court. This being the legal position based on the undisputed facts, we do not find any merit in the revision petition and the same is liable to be set aside at the threshold. It is accordingly dismissed with no order as to costs.

….………Sd/-………………

(SURESH CHANDRA)

PRESIDING MEMBER SS/

(Against the order dated 30.12.2005 in CD No. 46 of 2001 of the

A.P. State Consumer Disputes Redressal Commission, Hyderabad)

1. G. Ravender Rao (wrongly mentioned as Raghavender Rao in the complaint) Managing Director Yashoda Super Special Hospital, Malakpet Hyderabad

2. Yashoda Super Speciality Hospital Malakpet, Hyderbad Rep. by Dr. Shari G.S. Rao, Executive Director

3. Dr. Shri P. Ranganadham, MBBS, M.Ch Neuro Surgeon Yashoda Super Speciality Hospital Malakpet, Hyderabad

4. Dr. Shri A.V. Naidu, Pathologist Yashoda Super Speciality Hospital Malakpet, Hyderabad

5. Dr. Shri Sasidhar, Radiologist Yashoda Super Speciality Hospital Malakpet, Hyderabad

6. Dr. Shri Lingaiah Medical Superintendent Yashoda Super Speciality Hospital Malakpet, Hyderabad

… Appellants

Versus

1. Shri Ghulam Dastagir Father and Natural Guardian of Miss Rousheen Ahmedi, 15 yrs. Minor represented by her father Shri Ghulam Dastagir R/o H.No. 8-2-27/1-2-3, Teacher’s Colony Mahabubnagar

2. New India Assurance Co. Ltd. Divisional Office 5-2-174/2 Madanmohan Building, R.P. Road Secunderabad

… Respondents

BEFORE:

HON’BLE MRS. REKHA GUPTA, MEMBER

For Appellants : Mr.Y. Rajagopala Rao, Advocate

For Respondents : Ms.Rekha Aggarwal, Amicus Curiae for R1

Mr. Navdeep Singh, Advocate for R-2

Pronounced on 21 st January, 2013

1. This first appeal has been filed by G. Ravender Rao and five others being the

Managing Director and doctors at the Yashoda Super Speciality Hospital, Hyderabad

[Appellants herein and Opposite Parties before the A.P. State Consumer Disputes

Redressal Commission (hereinafter referred to as the State Commission)] being aggrieved by the order of that Commission, which allowed the complaint of medical negligence and deficiency in service filed against them by Respondent Ghulam Dastagir

(hereinafter referred to as Respondent).

FACTS :

2. In his complaint before the State Commission, Respondent had contended that he had taken his only daughter Rausheen Ahmedi, aged 15 years (hereinafter referred to as the patient) with complaint of severe headache to Appellant Hospital, where she was prescribed certain tests by Dr. P. Ranganadham, Neuro Surgeon and Appellant

No.3, which included a CT scan conducted by Dr. Sasidhar, Radiologist and Appellant

No.5. Patient was diagnosed with Meningioma i.e. a non-cancerous tumor on the left side of her brain and was advised immediate surgery. Respondent, therefore, got his daughter admitted to the Appellant Hospital and the surgery was conducted on

08.05.2000. He was informed that the operation was successful and that the tumor had been completely removed. He was further informed that the pathology lab where the tumor was sent for analysis had confirmed that it was Meningioma (non- cancerous). Appellant No.3-Neuro Surgeon, who performed this surgery, after seeing the patient on 09.05.2000 went away on a holiday for about 10 days. During her period of stay in the hospital, when she was attended by another Neurologist, her condition deteriorated and her head and eyes were swollen after the surgery and on 16.05.2000 and 17.05.2000 water was removed from her spinal cord. Late at night on 17.05.2000 her condition became very serious and she became incoherent and this was immediately reported to the doctor on duty. Despite her remaining in the hospital and being under the treatment of their doctors, her condition did not improve and on

21.05.2000, when Appellant No.3-Neuro Surgeon returned from holiday, she was again shifted to the acute neuro ward. On 03.06.2000, Appellant No.3-Neuro Surgeon stated that the patient was now normal and she was discharged with an advice to bring her after one week for a check-up. Respondent had paid a bill of Rs.94,815/- for her treatment. When the patient visited the Appellant hospital on three occasions with complaints of feeling unwell, she was assured that it would take time to be completely cured. It was only on 26.06.2000 that she was readmitted in the Appellant hospital and

Respondent was informed that the patient required a second CT scan which was conducted on 28.06.2000, after which Respondent was informed that the area of the brain where surgery had been conducted had got filled with “pus” and, therefore, a second surgery was required. Appellant No.3-Neuro Surgeon, who performed the surgery, informed the Respondent that he had to remove the pus from the brain as also

9 cm x 4.5 cm of bone from this area since it had got infected. The specimen was sent for a biopsy alongwith infected bone to the pathology lab of the Appellant Hospital. The second surgery placed serious doubts in the mind of the Respondent about the correctness of the treatment being given to the patient and, therefore, he consulted one

Dr. S.S.R. Murthy, Neuro-Surgeon at Apollo Hospital for a second opinion. Dr. Murthy opined that if the Meningioma tumor had been completely removed, it could not recur within a short span of 52 days and, therefore, the diagnosis of Meningioma was wrong and the patient’s tumor was apparently cancerous. Soon after taking the second opinion, Respondent met Appellant No.3-Neuro Surgeon to find out what exactly he had removed from the brain when he performed the second surgery and was only then informed that there was also a tumor which was removed during the second surgery. On 05.07.2000 the report from the pathology department of the Appellant

Hospital confirmed that the tumor was cancerous. Appellants assured the Respondent that a committee would be constituted to look into this case but without taking any action, the patient was abruptly discharged on 18.07.2000 with an advice to take radiotherapy treatment. Before taking radiotherapy, Respondent took a second opinion from several doctors, who confirmed that the tumor was cancerous and also opined that the diagnosis of first tumor being non-cancerous was not correct because a cancerous tumor could not have formed and that too in 4th stage in such a short period. Respondent, therefore, issued legal notice to all the 7 Appellants on grounds of medical negligence and deficiency in service and demanded a sum of Rs.11 Lakhs towards damages under various heads. In the meantime, the patient suffered a paralytic attack and ultimately expired on 04.11.2000. Respondent, therefore, issued a second legal notice demanding a sum of Rs.20 Lakhs as compensation and not being satisfied with the response received that the infection had occurred because of the number of visitors who came to see the patient, Respondent filed a complaint before the

State Commission on grounds of medical negligence and deficiency in service and requested that the Appellants be jointly and severally directed to pay him Rs.20 Lakhs as compensation for causing the premature death of his daughter and untold mental torture and agony due to the careless and gross medical negligence on the part of the

Appellants.

3. Appellants on being served filed their written counter, in which they denied that there was any medical negligence or deficiency in service in the medical treatment and care of the patient. It was stated that following a CT scan of the brain, which revealed a large lesion in the fronto-temporal area and reported by the radiology test as

Meningioma (i.e. a non-cancerous tumor), the patient was successfully operated and the entire tumor was removed. Some post-operative complications in the form of fever and headache developed because of over-crowding by the patient’s attendants in spite of repeated requests from the hospital authorities. The patient was readmitted on

20.06.2000 with very minor complaints, which were treated in two days’ time and the patient was discharged in a satisfactory condition. It was only on 26.06.2000 when she was admitted for a third time that a repeat CT scan was done free of cost, which again revealed a large lesion in the left fronto-temporal area with infected bone flap. The second surgery, therefore, became necessary to remove the bone flap and the intracranial tumor. The histopathology report of the tumor this time indicated that it was a neuroectodermal tumor (malignant) i.e. it was cancerous and the patient was accordingly advised radiotherapy. It is not correct that the patient was wrongly diagnosed as having non-cancerous tumor on the first occasion. It was submitted that the Appellants are not aware of the medical opinion that the Respondent had obtained from some other doctors which needs to be put to strict proof. According to the

Appellants, the patient was provided the best possible treatment on the basis of a clear and scientific diagnosis and she was provided medical treatment by well-qualified specialist doctors in the Appellant hospital.

4. The State Commission after hearing the parties and on the basis of evidence produced before it concluded that Appellants No. 1 to 6 were guilty of medical negligence and they were jointly and severally directed to pay the Respondent Rs.3

Lakhs as compensation. Rs.2000/- was awarded as litigation cost. The relevant part of the order of the State Commission is reproduced: “ … there is negligence on the part of the opposite party in removing the cancerous tumor and also deficiency in service in not giving the radio therapy after removing the tumor in the first operation. Advocate for the opposite party referred to page 15227 in book of Neurosurgery. The author says that ‘the primary treatment should be surgery because cure is possible if complete resection is accomplished. This requires complete removal of tumor, dural origin and involved skull.

Had the opposite party no.2 removed the tumor completely conducting the second operation for removal of the tumor at the same place would not arise. IT is stated in the above said book ‘even with a gross total resection however 10% of patients will have recurrence within 10 years’. In this case if tumor is completely removed and it is a meningioma (non cancerous tumor) the patient would have survived for 10 years. As the opposite party removed the tumor which is cancerous further aggravated the condition and opposite party conducted the second operation also. Only after the second operation the patient got admitted in the cancer hospital and gave the radio therapy. The patient died within 6 months after the first operation. Due to the medical negligence in not exercising the reasonable degree of care in treating the patient the patient died within 6 months after the operation. The complainant and his family members lost company of the patient for about 10 years. The complaint was also made to bear expenses of the second operation which could have been avoided had the first operation conducted with care and caution. Due to the negligence in conducting the first operation bone was infected. The complainants claimed Rs.3 lakhs towards medical expenses. Rs.1,50,000/- towards loss of company, Rs.15 lakhs for pain and suffering. As the patient was suffering from Cancerous tumor in the brain and considering the fact that she would have survived for 5 to 10 years by giving radio therapy we fix Rs.3 lakhs towards compensation, medical expenses and loss of company as against the claim of Rs.19,60,000. We fix Rs.2000/- towards legal and miscellaneous expenses.”

Hence, the present first appeal.

5. Learned counsel for both parties made detailed oral submissions. 6. Learned counsel for the Appellants while reiterating the facts as stated by them before the State Commission contended that the CT scan done on the patient prior to the first surgery clearly indicated that there was a tumor because of which the surgery was conducted. Thereafter, as per normal procedure after the tumor was removed, it was sent for biopsy, which confirmed that it was not Malignant. Therefore, there was no error in either the diagnosis or the treatment of the patient and the question of radiotherapy did not arise since the tumor was clearly non-cancerous. A copy of the histopathology report/specimen pertaining to the first tumor was sent to Apollo Hospital for a second opinion shortly after the death of the patient and it was confirmed by the pathologist in that hospital (Dr. Swaranlata) that the diagnosis of the tumor being non- cancerous was correct. Unfortunately, the State Commission concluded that this was a case of medical negligence by relying on the opinion of one Dr. S.S.R. Murthy, a Neuro-

Surgeon of Apollo Hospital, who apparently informed the Respondent that if the first tumor had been removed completely, it would not have recurred within a short span of

52 days and further that the first tumor was wrongly diagnosed as Meningioma and, therefore, a wrong line of treatment was followed causing unnecessary pain and suffering to the patient and her eventual death. Counsel for the Appellants pointed out that Dr. Murthy was not examined by the State Commission as a witness nor was any affidavit or statement filed by him in support of these facts. It was only the Respondent, an interested party, who had stated before the State Commission that this was the opinion of Dr. Murthy and the State Commission, therefore, erred in taking cognizance of the same in reaching its finding of medical negligence. On the other hand, as per credible documentary evidence on file i.e. the histopathology report and a second opinion from a pathologist of Apollo Hospital confirming the same in writing, the first tumor was undoubtedly non-cancerous. There is also no evidence to support

Respondent’s contention that the first tumor was not completely removed. When the second CT scan revealed a tumor and infection in the bone, the Appellants-doctors using their best professional judgment conducted a second surgery and when their report indicated that the second tumor was cancerous, radiotherapy was immediately advised. Counsel for the Appellants contended that it is medically well established as per medical literature that a second tumor can recur in the same site as the non- cancerous tumor even after it is fully removed and cancerous tumors are known to be fast growing and, therefore, can occur within a short period. Unfortunately, this is what happened in the instant case, for which the Appellants cannot be held responsible.

7. Learned counsel for Respondent in his submissions stated that the State

Commission had rightly concluded that had the entire tumor been removed in the first instance and a correct diagnosis made, then the second tumor in the same area would not have recurred. It was also pointed out that this is further confirmed by the fact that the second tumor was found to be grade IV i.e. at final stage and this could not have occurred within 52 days. The above facts were confirmed by a specialist Dr. S.S.R.

Murthy, from whom Respondent took second opinion and on whose statement the State

Commission had correctly relied. It was further contended that a well- qualified and professional doctor should have been immediately able to diagnose a cancerous tumor on seeing it and in the instant case, the concerned Appellants failed to do so while removing the first tumor because of their medical negligence and indifferent attitude. It was because of this that the patient who was a promising 15 year old girl lost her life. Had radiotherapy been advised on 06.05.2000 itself, she would have survived. The State Commission, therefore, rightly concluded that there was a clear case of medical negligence and deficiency in service on the part of Appellant hospital/doctors.

8. We have heard learned counsel for both parties and have carefully gone through the evidence on record. The facts regarding the patient’s admission in the Appellant hospital and her having undergone two surgeries there are not in dispute. What was challenged by the Respondent before the State Commission was that the Appellant hospital/doctors had misdiagnosed the patient’s first tumor as not being cancerous when she was admitted to the Appellant Hospital on 08.05.2000 and conducting an unnecessary surgery whereas she should have been advised radiotherapy immediately. The State Commission, we note, had accepted Respondent’s contention by primarily relying on Respondent’s evidence citing the opinion of Dr. S.S.R. Murthy, a

Neuro Surgeon of Apollo Hospital, to this effect. However, in view of the fact that Dr. Murthy was not examined as a witness before the State Commission nor was any evidence filed either in the form of his statement or an affidavit, confirming that he had given this opinion to the Respondent, we find force in the contention of the Appellants that the State Commission erred in relying on this opinion cited by the Respondent in reaching its conclusion of medical negligence. On the other hand, we note that there is credible documentary evidence on record to indicate otherwise e.g. the histopathology report filed by the Appellants in respect of the first tumor stating that it was non- cancerous which fact was confirmed by another pathologist from Apollo Hospital. Thus, as stated earlier, we are unable to accept the contention of the Respondent and the finding of the State Commission that the first tumor was wrongly diagnosed as being non-cancerous. We are also unable to agree with the finding of the State Commission that because the second tumor was detected and removed within 52 days of the first tumor, this is proof of the fact that the first tumor had not been fully removed by the

Appellants, which clearly amounts to medical negligence. In this connection, we have perused the medical literature on the subject* and note that brain tumors, including

Primitive Neuro Ectodermal Tumor (PNET), from which the patient suffered, are notoriously fast growing and, therefore, its presence in a short span by itself is not adequate evidence to conclude that the first tumor was not fully removed. Respondent on whom there was onus to prove his contention has not been able to produce any specific evidence, including the evidence of any medical expert before the State

Commission in support. Respondent has also not been able to prove that there was any mistake in the first histopathology report, which, as stated earlier, was confirmed by the opinion of a specialist from another super speciality hospital. [*Source : (i) Wikipedia (en.wikipedia.org/wiki/Medulloblastoma) (ii) Great Ormond Street Hospital for Children, London, U.K. (iii) Einstein Healthcare Reports – Brain Tumor]

9. What constitutes medical negligence is now well-established through a catena of judgments of the Hon’ble Supreme Court of India (e.g. in Jacob Mathew v. State of Punjab [(2005) 6 SCC 1]) and essentially three principles are required to be followed: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated.

10. Applying these principles to the present case, we are unable to conclude that there was any medical negligence or deficiency in service in the treatment of the patient. The Appellants, who are well-qualified doctors treated the patient as per their best professional judgment and on the basis of diagnostic and clinical tests from a well- equipped laboratory. As stated earlier, the Respondent has not been able to controvert or contradict the above facts through any credible evidence, including that of a medical expert before the State Commission. In view of these facts, we are unable to uphold the order of the State Commission concluding that there was medical negligence against the Appellants and, therefore, set aside the same. We note that Rs.1 Lakh out of the total compensation of Rs.3 Lakhs awarded by the State Commission has already been released to the Respondent. Counsel for Respondent states that this may be treated as ex-gratia payment and not be recovered from the Respondent. Ordered accordingly.

11. The first appeal is allowed on the above terms.

Sd/- (REKHA GUPTA) MEMBER

Mukesh NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 435 OF 2011 (From the order dated 20.10.2010 in Appeal No.1601/03 of the U.P. State Consumer Disputes Redressal Commission, Lucknow)

Ghaziabad Development Authority Through its Vice Chairman Vikaspath, Ghaziabad … Petitioner/OP

Versus

Satya Narayan R/o Gyan Khand-4/144-A, HIG D/S, First Floor, Indirapuram Ghaziabad … Respondent/Complai nant

BEFORE

For the Petitioner : Mrs. Reena Singh, Advocate

For the Respondent : Mr. Pankaj Sharma, Advocate

PRONOUNCED ON 21 st January , 2013

O R D E R

This revision petition has been filed against the order dated 20.10.2010 passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, ‘the

State Commission’) in Appeal No. 1601 of 2003 – GDA Vs. Satya Narayan Tyagi by which while dismissing appeal, order of District Forum allowing complaint was affirmed.

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

144/A in Gyan Khand 4 of Indirapuram Scheme at the estimated price of Rs.5,50,000/- and complainant was required to deposit the entire amount by 15.10.1998, but he deposited the entire payment by 15.7.1997 and obtained possession of the house. After 3 years and 3 months, petitioner/OP asked the complainant to deposit additional

Rs.1,95,645/- and Rs.922/- as earlier price was only tentative. Complainant further alleged that after getting possession of the house, OP has neither fixed a brick nor put a nail in the house but demanded money and under compelling circumstances, under protest complainant deposited money with the OP. In such circumstances, complainant filed complaint for refund of the aforesaid money. OP did not file written statement before the District Forum and District Forum proceeded ex-parte against OP, but OP filed written arguments and learned District Forum after considering written arguments filed by OP allowed complaint and directed the petitioner/OP to refund the aforesaid amount along with 8% p.a. interest. Petitioner filed appeal before the learned State

Commission which was dismissed by impugned order against which this revision petition has been filed.

4. Learned Counsel for the petitioner submitted that as per affidavit given by the complainant he was bound to deposit the increased cost of the house and learned

District Forum has committed error in allowing refund of the aforesaid amount and learned State Commission has also committed error in dismissing appeal, hence, petition may be accepted and orders of learned State Commission and District Forum be set aside. On the other hand, learned Counsel for the OP submitted that order passed by learned State Commission is in accordance with law, as price cannot be escalated after giving possession of the flat and in such circumstances, revision petition be dismissed with cost.

5. It is admitted fact that house was allotted to the complainant at the estimated cost of Rs.5,50,000/-. This amount was to be deposited by complainant in instalments upto15.10.1998, whereas the complainant deposited entire amount by

15.7.1997 and obtained possession of the house. Demand notice for extra money was sent by OP after 3 years 3 months. OP has not filed written submissions before the

District Forum and learned District Forum proceeded ex-parte against the OP and rightly allowed the complaint and directed OP to refund extra money demanded by OP and deposited by complainant under protest. No doubt, affidavit was given by complainant on 15.4.1997 stating that if in future cost of the house is increased, he will deposit the same in accordance with rules. Learned Counsel for the petitioner could not show any rule on what basis price was increased. Price could have been escalated only on the ground of increase of payment of compensation for the land acquired but learned Counsel for the petitioner admitted that compensation has not been increased. In such circumstances, there was no occasion to increase the price of house, particularly, when complainant had deposited the entire amount before 15 months of payment schedule. Learned State Commission has not committed any error in dismissing appeal of the petitioner and in such circumstances, revision petition is liable to be dismissed.

6. Consequently, revision petition filed by the petitioner is dismissed with no order as to cost. ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER

..…………Sd/-…………………

REVISION PETITION NO . 4391 OF 2012

(From the Order dated 29.06.2012 in Appeal No. 664/2011 of

Haryana State Consumer Disputes Redressal Commission, Panchkula)

Manoj Banerjee S/o Sh. Moti Lal Banerjee R/o H.N.482, Professor Colony Ambey Gas Godown Road Yamuna Nagar, Tehsil Jagadhri District Yamuna Nagar, Haryana

Petitioner

Versus

Oriental Insurance Co. Ltd. Opp. Madhu Hotel, Jagadhri Road Yamuna Nagar, Tehsil Jagadhri District Yamuna Nagar, Haryana (Through its authorized signatory Chief Regional Manager)

Oriental Insurance Co. Ltd. Regional Office, LIC Building 2nd Floor, Jagadhri Road Ambala Cantt-133001

Respondent

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

For the Petitioner : Mr. Abhishek Garg, Advocate

Pronounced on : 21 st January, 2013

There is a delay of 40 days in filing this revision petition. For the reasons stated by the petitioner in his condonation application, the delay stands condoned.

2. This revision petition has been filed by the petitioner/complainant against the order dated 29.6.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (‘State Commission’ for short) by which the State Commission had reversed and set aside the order dated 11.4.2011 passed by the District Forum, Yamuna Nagar in complaint No.73 of 2010 and allowed the appeal of the opposite party/respondent Insurance Co. while nonsuiting the claim of the petitioner.

3. The brief facts of this case as emerging from the record are that the truck bearing Regn. No.HR-58-A-9306 of the complainant was insured with the OP Insurance Co. for the period from 10.10.2008 to 9.10.2009. On 23.3.2009, the truck met with an accident at Shillong in Meghalya State and was burnt. D.D.R. No. 332 dated 23.3.2009 was registered at the police stationSohryngkham. Intimation was also given to the OP Insurance Co. which appointed a surveyor who inspected the vehicle and submitted his report. The claim of the complainant submitted to the Insurance Co. was, however, repudiated by the OP Co. on the ground that the vehicle was driven in the area of Meghalya without any valid route permit because the complainant had obtained the route permit only for the State of Haryana, Punjab, U.P and Uttrakhand. It was further stated that the vehicle was loaded with Wax which is a hazardous item and the driver of the vehicle was not carrying any valid and effective driving licence to drive the vehicle loaded with hazardous items. Challenging the repudiation of his claim, the complainant filed a consumer complaint before the District Consumer Forum, Yamuna Nagar.

4. On being noticed, OP appeared and contested the complaint by filing written statement wherein it justified the repudiation and prayed for dismissal of the complaint. On appraisal of the pleadings of the parties and the evidence adduced on record, the District Forum accepted the complaint with the following observations:-

“ … … As per report of the Surveyor Annexure R-11 at para No. 4 page No. 2 it is clearly mentioned that the insurer was having valid route permit for Haryana, U.P, Bihar, Assam, Meghalaya and Tripura, so first ground for repudiating the claim by respondent is not sustainable…………”

Secondly Learned counsel for the respondent took the plea that the vehicle of the complainant as carrying wax and to carry chemical in any vehicle a person to obtain a permit particularly for hazardous goods. The respondent failed to prove wax is a hazardous goods. Neither the surveyor has pointed out regarding wax fall under the definition of Hazardous nor he touch this point in his report. So argument of the respondent on this ground is not tenable………”

5. In view of the aforesaid observations, the District Forum granted the following reliefs to the complainant:- “………. Admittedly the vehicle was insured with the respondent for the relevant time for Rs.8,40,000/-. According to the report of Surveyor there is a total loss of the vehicle. The scrap of the truck have also been stolen. The accident took place within 6 months of obtaining the insurance cover and we allow depreciation at the rate of 5% on the vehicle and direct the respondent to pay a sum of Rs. 7,98,000/- along with interest at the rate of 12% per annum from 14.07.2009 i.e. after two months from the receipt of Surveyor report till actual payment and the respondent is further directed to pay a sum of Rs.10,000/- as cost of proceedings. Order be complied within 30 days after preparation of copy of this order failing which penal action under section 27 of the Consumer Protection Act will be initiated.”

6. Aggrieved by the above order of the District Forum, the OP Insurance Co. went in appeal before the State Commission which allowed the same and set aside the order of the District Forum. Aggrieved by the impugned order, the complainant has now filed the present revision petition against the order of the State Commission.

7. It is seen from the impugned order that the State Commission has nonsuited the claim of the petitioner keeping in view the admission on the part of the petitioner that the truck had entered into the area of Meghalya without any valid route permit. It is observed that the report received from the Regional Transport Authority, Yamuna Nagar also indicated that the complainant had obtained the route permit only for Haryana, Punjab, U.P. and Uttrakhand. Considering these admitted facts, the State Commission has accepted the appeal of the OP Insurance Co. applying the ratio laid down by the National Commission in the judgement dated 9.11.2010 rendered in R.P. No 2976 of 2006 (United India Insurance Co. ltd. Vs . Trilok Kaushik ). We agree with the view taken by the State Commission in its impugned order which is in line with the view taken by the National Commission. It is well-established in the light of various judgements of the Apex Court that the terms and conditions of the insurance policy have to be construed strictly and if there is any violation of the terms, the party cannot claim any relief. Mr. Abhishek Garg, Advocate, learned counsel for the petitioner has tried albeit unsuccessfully persuaded us to accept the claim of the petitioner on non-standard basis but in view of the settled position of law, we cannot accept this request. The facts and circumstances of the two cases relied upon by the learned counsel for the petitioner in the cases of G. Kothainachiar Vs. Branch Manager United India Insurance Co. Ltd. & Ors . [R.P. No.1503 of 2004] decided on 29.10.2007 by the National Commission and Oriental Insurance Co. Ltd. Vs . Banto Devi & Ors . [2007 (1) T.A.C. 1000 (P&H) decided by the High Court of Punjab and Haryana were different and hence the same cannot be applied to the present case. Consequently, we do not find any merit in the present revision petition which would justify our interference with the impugned order. The revision petition, therefore, stands dismissed at the threshold with no order as to costs. ..……..………Sd/-……..……….

(K.S. CHAUDHARI, J.)

PRESIDING MEMBER

……..………Sd/-………………

(SURESH CHANDRA)

MEMBER SS/

REVISION PETITION NO. 2448 OF 2012 (Against the order dated 08.05.2012 in First Appeal No. 7 of 2011 of the

Goa State Consumer Disputes Redressal Commission,Panaji)

M/s Transasia Bio-Medicals Ltd. (through Authorised representative Mr. Transasia House, 8 Chandivali Studio Road, Mumbai- 400072

... Petitioner

Versus Dr. D. J. Desouza, Proprietor, Clinical Laboratory, “Luz Lab” Libania Building, New Market, Margao, Goa

... Respondents

BEFORE:

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

HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner : Ms. Anjali Manish, Advocate with Mr. Priyadarshi Manish, Advocate Mr. Apoorva Rajnish, Advocate

Pronounced on : 22 nd January, 2013 ORDER

1. The respondent is absent despite service. The learned counsel for the respondent submits that a sum of Rs.10,000/- has already been paid to him and despite accepting the same he has not turned up. He be proceeded against ex parte. The counsel for the petitioner heard at length.

2. On 4th December, 2001, Dr. D. J. De Souza, complainant/respondent had purchased a Erba Chem 5 Plus auto analyzer, 2001 model (No. 103741) for a sum of

Rs.1,35,800/-. The same was installed on the same day. The complainant noticed that the second auto analyzer was not functioning properly and brought this fact to the notice of the petitioner-Engineer on or about 19.10.2001 i.e. within 15 days of the purchase of the machine. The complainant also wrote a letter to the petitioner that second auto analyser was defective specially in the kinetic mode. The complainant asked for the replacement or in the alternative, he would approach the consumer forum by

31.10.2001. Vide letter dated 16.11.2001, the complainant wrote to the petitioner that he was not interested in having the said defective instrument in his laboratory nor he was interested in having a replacement of the same. He required the petitioner to return his amount in the sum of Rs.1,35,800/- lakh.

3. On 20.12.2001, the petitioner filed a complaint before the District Forum. The

District Forum allowed the complaint. The opposite party was directed to refund

Rs.1,35,800/- being the purchase price of the medical instrument with interest @12% from the date of its purchase till actual payment. The opposite party was further directed to pay to the complainant consolidated amount of Rs.10,000/- as compensation/damages on the ground of mental tension, anxiety, loss of professional income, inconvenience and hardship suffered by the complainant.

4. Aggrieved by that order, the opposite party preferred an appeal before the State

Commission. The State Commission modified the order and directed the complainant to refund the purchase price of Rs.1,35,800/- with interest at 6% from 20.12.2001 until payment plus damages/compensation of Rs.5,000/-. The complainant was also directed to return the second auto analyzer to the opposite party.

5. We have heard the learned counsel for the petitioner. She contended that there is no report of the expert that machine in question is defective. However, record reveals that the District Forum had appointed Dr.. Asha Naik as Commissioner in this case. She filed her report dated 25.1.2006 and 2.2.2006 stating that the second auto analyser was not fit for lab test in kinetic mode. At the request of the opposite party, the said doctor was also cross examined. The contention raised by the opposite party that he was not informed about the inspection by Dr. Asha Naik was given a short shrift as the District Forum had already directed both the parties to remain present before the Commissioner on 25.1.2006 at 10.00 a.m.

6. Learned counsel for the petitioner vehemently argued that they are ready to replace the machine. The case pertains to the year 2001. The machine is with the complainant. The complainant never signified his willingness for replacement of his machine.

7. The argument advanced by learned counsel for the petitioner does not carry any conviction. This is not a matter of new machine. This is the second hand machine. There is a marked difference between the new machine and old machine. What is the guarantee that the second hand machine will have no defect. The facts of this case speak for themselves. Within 15 days of availing the machine, the defects were detected. The petitioner should have returned the money after 15 days.

8. Under the circumstances, the order of the State Commission cannot be faulted.

The revision petition is, therefore, dismissed.

……………Sd/-……..………..

(J. M. MALIK, J)

PRESIDING MEMBER

……………Sd/-….……………

(VINAY KUMAR)

MEMBER

Naresh/

CONSUMER COMPLAINT NO. 145 OF 2012

1. The Society for Consumers’ and investors Protection (SCIP) 118, IInd Floor, DDA Site-1 New Rajinder Nagar, New Delhi-110060

2. M/s Sampark Securities Pvt. Ltd. 1E/18, 4th Floor, Jhandewalan Extension, New Delhi-110055

3. Mr. Ankur Sachdeva 1E/18, 4th Floor, Jhandewalan Extension, New Delhi … Complainant (s)

Versus

Haryana State Industrial & Infra Development Corporation Limited, C-13-14, Sector-6, Panchkula, Haryana … Opposite Party (s)

BEFORE:

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

For the Complainant(s) ….. Mr. B. R. Sachdeva, Advocate

For the Opp. Party ….. Mr. Ravindra Bana, Advocate

Pronounced on 22 nd January , 2013

O R D E R

1. We have heard learned counsel for the parties on the maintainability of this case. Learned counsel for the opposite party vehemently argued that this is a case of open auction. The plot was taken on ‘as is where is basis’. Learned counsel for the opposite party vehemently argued that under the circumstances, the complainants are not the consumers as per law laid down in UT Chandigarh Administration and another vs. Amarjeet Singh and Ors . 2009(4) SCC 660. Learned counsel for the opposite party invited our attention towards paras 18, 19, 20 and 21 of the said authority. He contended that under the circumstances, the present complaint is not maintainable.

2. On the other hand, learned counsel for the complainant invited our attention towards the orders of this Commission in Haryana Urban Development Authority (HUDA) and another vs. M/s Suneja and Sons, revision petition No. 2951 decided on 18.8.2011 and Rajil Khod vs. Haryana Urban Development Authority through Estate Officer, Hisar , revision petition No. 729 of 2011 decided on 18.11.2011 wherein it was held that in the peculiar facts and circumstances of the case, the above said authority is not applicable. This Commission also referred two Supreme Court authorities in H.U.D.A. & Anr . Vs. Satish Hans 2009(7) SCC 282 and Madan Kumar Singh vs. District Magistrate, Sultanpur IV (2009) SCPJ 3 (SC) decided on 29.4.2009 and 7.8.2000, respectively. In the said cases, the Apex court did not set aside the orders of this Commission on the ground that the complainant being an auction purchaser could not at all qualify as a consumer. However, the Apex Court remanded the case back to this Commission.

3. In view of this discussion, the complainants have produced enough material for admission of this case. The case is, therefore, admitted but it is made clear that the above said question requires investigation and evidence. The same question cannot be disposed of at this initial stage whether the petitioner is a consumer for the above said reason or whether this is a commercial transaction or a transaction for self employment is being kept open. This will be decided at the final stage. The case is, therefore, admitted and the opposite party is directed to file counter till 6.3.2013.

The case is fixed for filing of the written statement on 6.3.2013.

Copy of this order be sent to both the parties immediately.

.…..…………Sd/-………………

(J. M. MALIK, J)

PRESIDING MEMBER

………………Sd/-……………...

(VINAY KUMAR)

MEMBER

Naresh/reserved

REVISION PETITION NO. 1387 OF 2011 (From the order dated 17.03.2011 in Appeal No. 286/2010 of the State Consumer Disputes Redressal Commission, UT Chandigarh)

Prof. Arun K Lall House No.653 Punjab Engineering College Campus Sector 12 Chandigarh – 160 012 … Petitioner/OP

Versus

The Manager Credit Card Section M/s. ICICI Bank Ltd. SCO 180 – 182 Sector 9-C, Chandigarh – 160 017 … Respondent/Complainant

BEFORE

For the Petitioner : NEMO For the Respondent : NEMO

PRONOUNCED ON 22 nd January, 2013

O R D E R

17.3.2011 passed by the Karnataka State Consumer Disputes Redressal Commission,

Bangalore (in short, ‘the State Commission’) in Appeal No. Appeal No. 286/2010

– Prof. Arun K. Lall Vs. The Manager, Credit Card Section by which appeal for enhancement of compensation was dismissed and order of District Forum allowing complaint with compensation was affirmed.

2. Brief facts of the case are that petitioner/complainant and his wife used credit card of respondent/OP bank from 2001 to 2004 and after depositing final amounts of Rs.6875/- and Rs.1040/- on 1.10.2004 and 12.10.2004 respectively, closed credit card. On 19.7.2008, complainant received a phone from Delhi Police who apprised the complainant that non-bailable warrants have been issued against him and further directed him to contact Mr. Sunit Soni, Advocate for getting further details. Complainant contacted Mr. Soni and as per his advice complainant deposited Rs.4422/- with ICICI

Bank shown outstanding against him on the very day i.e. 19.7.2008. In spite of repeated requests, opposite party did not supply him details of outstanding payment, though, complainant had already cleared dues while closing credit card and as such, alleging deficiency, filed complaint before the District Forum. Opposite party contested complaint and submitted that account of outstanding amount due against the complainant as per statements Annexure C3 and C4 have already been provided to the complainant and complainant has deposited only outstanding amount on

19.7.2008. Allegation of information regarding non-bailable warrants was also denied.

District Forum after hearing both the parties allowed complaint and directed

OP/respondent to refund Rs.4422/- along with Rs.10,000/- as compensation and

Rs.5,000/- as litigation charges. Petitioner not satisfied with the compensation awarded to him filed appeal against the order of the District Forum which was also dismissed by impugned order.

3. Petitioner did not appear at admission stage but requested by circulating a letter dated 2.1.2013 to dispose of the petition.

4. Perused record.

5. Learned District Forum while allowing refund of Rs.4422/- awarded compensation of Rs.10,000/- and further awarded Rs.5,000/- as cost of litigation. Learned State

Commission has rightly observed that object of Consumer Protection Act is not to enrich the complainant at the cost of the service provider and its object is only to adequately compensate the consumer. Learned State Commission observed that petitioner’s case was not a fit case in which punitive damages should be awarded to him and in such circumstances, appeal was dismissed.

6. We do not find any jurisdictional error or material irregularity in the order of learned State Commission in upholding compensation awarded by the District Forum and not enhancing the compensation. Petitioner has drawn our attention towards compensation awarded by District Forum in other similar case. As per the statement, in another case Rs. 50,000/- were awarded by the District Forum on 6.8.2008 to the complainant Premendu Roy whereas only Rs.10,000/- have been awarded to the petitioner in order dated 14.7.2010. He could not supply details of order passed by State

Commission in Premendu Roy case. In such circumstances, the comparison of his case with Premendu Roy cannot benefit him, as there is no illegality or material irregularity or jurisdictional error in not enhancing compensation. Revision Petition is liable to be dismissed at admission stage.

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

..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER

..…………Sd/-…………………

REVISION PETITION NO. 2452 OF 2011 (From the order dated 28.06.2011 in Appeal No. 1727/2011 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

M.R. Anand Prabha S/o Late Ramachandra Shetty Archana Finnace Neem Street Now R/at Shariff Street Chikmagaluru Karnataka State

… Petitioner/OP

Versus

Smt. Sreelakshmi W/o Ravindra Venkateshwara Medicals Chikmagaluru Karnataka State

BEFORE

For the Petitioner : Mr. Anand Sanjay M. Nuli, Advocate For the Respondent: NEMO

PRONOUNCED ON 22 nd January, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, MEMBER This revision petition has been filed by the petitioner against the order dated 28.6.2011 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal No. Appeal No. 1727/2011 – M.R. Anand Prabhakar Vs. Smt. Sreelakshmi by which application for condonation of delay and appeal filed by the petitioner/OP was dismissed. 2. Brief facts of the case are that complainant/respondent filed complaint and alleged that he kept some amount in four fixed deposits with the petitioner/OP and OP agreed to pay interest @ 24% p.a. OP did not return money, hence, after giving notice filed complaint for recovery of Rs.3,09,400/-. OP contested complaint but learned District Forum vide its order dated 26.7.2010 partly allowed complaint and petitioner was directed to refund a sum of Rs.1,77,000/- with interest @ 12% p.a. Against this order petitioner filed appeal with a delay of 283 days and also moved application for condonation of delay which was dismissed by the impugned order and in consequence thereof appeal was also dismissed.

3. Heard learned Counsel for the petitioner and perused record. 4. Petitioner moved application for condonation of delay of 283 days before the State Commission on the ground that he had no personal income and he was dependent on his son who is an Engineer, got job in a multinational company 3 months back so he could not arrange Rs.25,000/- for filing appeal. In his affidavit he further submitted that he had also preferred two appeal Nos. 421 & 422 of 2010 before the State Commission against other orders of District Forum and State Commission directed him to deposit Rs.25,000/- in each appeal but he could not arrange funds and his aforesaid appeals were also dismissed by State Commission. Learned State Commission has rightly observed in its order that reasons assigned by the petitioner for condonation of delay does not constitute sufficient cause for condonating inordinate delay of 283 days. Learned State Commission has not committed any error in rejecting application for condonation of delay and in dismissing appeal. 5. Learned Counsel for the petitioner further submitted that petitioner had already undergone 3 months imprisonment, as he failed to deposit money with the District Forum. This cannot be the ground for admitting revision petition, as we do not find any infirmity in the order passed by learned State Commission in disallowing application for condonation of inordinate delay of 283 days. 6. Consequently, the revision petition filed by the petitioner is dismissed at admission stage with no order as to cost. ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER

..……………Sd/-………………

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1032 OF 2012 (Against the order dated 13.10.2011 in First Appeal No. 2294/2006 of the State Commission Haryana, Panchkula)

Jiwan Spinners Pvt. Ltd. Delhi Sanoli By Pass Opposite Sector – 25 Panipat, Haryana Through The Director Shri Ashok Singla ...... Petitioner

Vs. New India Insurance Co. Ltd. Regd. Office At SCO No.36-37, Sector-17A, Chandigarh

...... Respondent BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER For the Petitioner : Shri Vinod Kumar, Advocate For the Respondent : Shri Abhishek Kumar, Advocate Dated : 22 nd January, 2013 ORDER PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision petition is directed against the order of State Consumer Disputes Redressal Commission Haryana, Panchkula ( for short, ‘the State Commission’) dated 13.10.2011.

2. Briefly stated facts relevant for disposal of this revision petition are that the petitioner – company got insured stock of raw material, finished goods as also building and machinery with the respondent-opposite party vide two insurance policies which were valid for the period 24.02.2004 to 23.022005. Due to fire accident on 04.03.2004, the stock in process, material stocked in the factory and the card machine got damaged. The matter was reported to the P.S.Chandni Bagh Panipat on 05.03.2004. The opposite party appointed a surveyor who submitted his report to the insurance company estimating the loss due to fire as Rs.7,73,059.39P. It is alleged that the insurance company, however, paid a sum of Rs.2,15,176/- to the petitioner through a cheque no.105857 dated 07.09.2004 and the payment of balance amount of loss was illegally denied to the petitioner. Thus there was deficiency in service on the part of the opposite party.

3. The opposite party in his written statement denied the allegations of the petitioner and submitted that the petitioner had voluntarily accepted Rs.2,15,176/- as full and final settlement of his claim. The opposite party also denied that petitioner – company was forced to sign unfilled form of settlement by the insurance company and that there was any deficiency in service on the part of the respondent.

4. The District Forum vide its order dated 25.08.2006 came to the conclusion that the petitioner was coerced to accept the amount of Rs.2,15,176/- and sign unfilled form and blank papers. Accordingly, the District Forum allowed the claim of the petitioner and directed the respondent – opposite party to pay a sum of Rs.4,60,380/- to the petitioner on account of loss of stock and machinery as per Surveyor Report together with interest @ 18% from 31.08.2004 till the realisation of the amount.

5. Aggrieved by the order of the District Forum, respondent / opposite party preferred an appeal before the State Commission and the State Commission came to the conclusion that the petitioner had accepted a sum of Rs.2,15,176/- in full and final settlement of his claim under the insurance policies and signed the discharge voucher voluntarily. Thus, the State Commission accepted the appeal and reversed the order of the District Forum.

6. The petitioner being aggrieved of the order of the State Commission has preferred this revision petition.

7. It is contended on behalf of the petitioner that the State Commission has passed impugned order in complete disregard of the settled law and failed to consider the ratio of judgment of the Supreme Court in United India Insurance Vs. Ajmer Singh Cotton & General Mills & Ors. 1999 (II) CPJ 10 SC. It is contended that State Commission in the aforesaid judgment has held that the consumer forum can impose liability upon the insurance company notwithstanding execution of Discharge Voucher by the insured provided the Discharge Voucher has been obtained by the insurance company by resorting to fraud, pressure, undue influence or coercion. Learned counsel further submitted that the State Commission has failed to appreciate that as per the report of the respondent’s own Surveyor, the loss was quantified at Rs.7,73,059.39P and if that is so, the petitioner could not have accepted Rs.2,15,176/- in full and final settlement of discharge of his claim unless there was undue influence and coercion exerted upon the petitioner.

8. Learned counsel for the respondent on the contrary has contended that there is no evidence on record to suggest that the signatures of the petitioner were obtained on the Discharge Voucher by practicing fraud, undue influence or coercion. Therefore, as per the law laid down in the judgment relied upon by the petitioner, after having settled the matter and taken cheque of Rs.2,15,176/-, the petitioner now cannot re-agitate the matter and claim further amount under the insurance claim. 9. The only question which requires consideration in this revision petition is whether or not the Discharge Voucher mentioning payment of Rs.2,15,176/- in full and final settlement of the claim of the petitioner was obtained by the respondent by practicing fraud, misrepresentation or coercion?

10. We have considered the rival contentions and perused the record. The case of the petitioner as set up in para 6 of the complaint, copy of which is placed on record is that the officials of the respondent-company forced the complainant to sign blank unfilled form as a pre condition to give the cheque to him and they threatened that if the petitioner failed to sign the blank forms, no cheque would be issued to him against his claim. This allegation of the petitioner is belied by the averments in the registered notice dated 04.12.2004 sent to the opposite party by the petitioner wherein it is alleged that the respondent-company took almost seven months in deciding the claim of the petitioner and during that period, harassed and mentally tortured him. It is also alleged in the notice that the amount of Rs.2,15,176/- was accepted by the petitioner under protest and pressure reserving the right to recover the balance amount from the respondent – company. It is nowhere mentioned in the notice that the petitioner was threatened by the officials of the respondent – company that if he failed to sign the blank forms, no cheque would be delivered to him and he would not be paid anything against the claim. This material contradiction in the stand taken by the petitioner in notice dated 04.12.2004 and his complaint lead us to the obvious conclusion that the stand of the petitioner in his complaint is an after thought with a view to exhort further money after having received a cheque from the respondent in full and final settlement of his claim. We may note that on perusal of copy of the discharge voucher we found that petitioner has accepted the cheque in full and final settlement of his claim without any protest.

11. On perusal of the impugned order, we find that the State Commission on consideration of the Discharge Voucher dated 31.08.2004 signed by the petitioner and acceptance of the cheque of Rs.2,15,176/- in full and final settlement of claim, allowed the appeal and dismissed the claim of the petitioner with following observations:

“ DISCHARGE VOUCHER

Received from the New India India Assurance Company Limited, the sum of Rs.2,15,176 ( Two Lakh fifteen thousand one hundred and seventy six only which I / We agree to accept in full satisfaction and discharge or all claims present or future under policy no.353900/11/03/00048 / 353200/11/03/02711 in respect of which occurred on or about the _____ day of ______year ______. Sd/- For Jiwan Spinners Pvt. Ltd. Director / Manager

Having considered the facts and circumstances of the case and the ‘Discharge Voucher’ dated 31.08.2004. We find force in the contention r raised on behalf of the appellant – opposite party. It is well settled law that once the claim has been accepted by the claimant without any objection by signing discharge voucher in full and final settlement of claim offered by the Insurance Company, thereafter, the claimant cannot be allowed to reopen his claim seeking any further relief. However, mere execution of consent letter in the form of letter of indemnity cannot deprive the claimant of consequential relief if discharge voucher was obtained by fraud, misrepresentation or under coercion. There is no evidence on behalf of the complainant that any fraud or misrepresentation or coercive method was adopted by the Insurance Company upon the complainant at the time of signing the discharge voucher dated 31.08.2004 and as such the complainant is not entitled for any further compensation.

Admittedly, the complainant, is running a business of raw material, finished goods, semi finished goods which are used in the mill and must have signed the discharge voucher dated 31.08.2004 with full knowledge after going through the contents mentioned therein and therefore question of any pressure tactics by the opposite party upon the complainant does not arise. The District Consumer Forum has not appreciated the facts of the present case in its true perspective and committed error in allowing the complaint.

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

12. In view of the above, we do not find any legal or factual infirmity in the impugned order of the State Commission which may call for interference by this Commission in exercise of revisional jurisdiction. Accordingly, revision is dismissed with no order as to costs.

…………………………. (AJIT BHARIHOKE) ( PRESIDING MEMBER)

………………………… (SURESH CHANDRA) MEMBER Am/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3353 OF 2011 (Against the order dated 28.04.2011 in Appeal No. 918/2009 of the State Commission Madhya Pradesh, Bhopal)

M/s Mahindra & Mahindra Financial Services Ltd. 2nd Floor, Sadhna House 507, P.B.Marg, Worli Mumbai – 400018 Through its Authorized signatory Samarjeet Khokhar Legal Executive Branch Office Aggarwal Corporate Tower 3rd & 4th Floor, plot No.23 Rajindra Place, New Delhi – 110008

...... Petitioner

Vs. Naresh Singh 204, Princess Price Building Janjeer Wala Chauraha Indora, M.P.

...... Respondent

BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER For the Petitioner : Mr.Amit Singh and Mr.Rajan Singh, Advocates Dated : 23 rd January, 2013 ORDER PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

The petitioner being aggrieved by the order of M.P.State Consumer Disputes Redressal Commission ( in short, ‘the State Commission’) has preferred this revision petition. Alongwithrevision petition, the application for condonation of delay of 71 days in filing of revision petition has been filed.

2. Briefly stated facts of the case are that the petitioner (opposite party) provided a loan of Rs.3,50,000/- to the complainant – respondent for purchase of a Mahindra Tourist vehicle on hire purchase basis. The loan amount was to be paid in 34 instalments. It was agreed that the first instalment would be of Rs.24,500/- and remaining instalments would be of Rs.12,250/- each.

3. According to the respondent-complainant, he had paid all the instalments against loan during the period w.e.f.01.06.2004 to 02.09.2005. Despite of that the petitioner repossessed the vehicle on 23.10.2005 without giving notice, on the ground that a sum of Rs.4,29,000/- was outstanding against the loan and sold the vehicle without any notice to the respondent for a sum of Rs.2,50,000/-. On the aforesaid averments, the respondent filed complaint claiming a sum of Rs.82000/- as compensation and also for other charges. 4. The petitioner admitted that they had financed Rs.3,50,000/- for purchase of vehicle by the opposite party. The petitioner, however, denied that the respondent had paid the instalments regularly. It was claimed by the petitioner that on 23.10.2005, a sum of Rs.85,650/- was outstanding against the respondent and, therefore, the vehicle was possessed in a lawful manner and sold. The petitioner denied deficiency of service on his part.

5. The District Forum after considering the evidence came to the conclusion that the possession of the vehicle was taken by the petitioner without informing the respondent about any amount outstanding against him and, thereafter, the vehicle was unlawfully sold without notice. Thus, the District Forum awarded a sum of Rs.42,000/- as compensation to the respondent besides Rs.15000/- as the amount spent on obtaining permit and registration and Rs.1000/- as cost.

6. Being aggrieved by the order of the District Consumer Forum, the petitioner preferred an appeal which was dismissed by the State Commission.

7. It is against the aforesaid dismissal of his appeal, the petitioner has preferred the revision petition. He has also filed the application for condonation of delay of 71 days in filing the revision petition.

8. Learned counsel for the petitioner has contended that the delay caused in filing of revision petition is unintentional. Actually the documents received from the office were not legible. Therefore, the counsel for the petitioner asked for the original copies of those documents from Bombay Head Office of the petitioner – company. It took some time in tracing the original documents and, thereafter, the documents were received back in the local office of petitioner in third week of September which were then transmitted to the Advocate for drafting the preparation of revision petition. It is further contended that some of the documents were in Hindi, therefore, sometime was taken in getting those documents translated in English. Thus it is contended that delay caused in filing of revision petition is not deliberate and it has occurred because of the aforesaid reason. Learned counsel for the petitioner thus urged us to condone the delay in filing of revision petition.

9. We are not convinced with the submissions made on behalf of the petitioner, firstly, for the reason that the explanation given in the application for condonation of delay in filing of revision petition is vague. The application does not disclose the name of the counsel for the petitioner who insisted for original copies of the documents. It also does not disclose various dates of the movement of papers and the date on which the counsel for the petitioner asked for original copies. It also does not disclose the date on which the original documents were traced and also the date on which the documents were sent to the Advocate for drafting the preparation of revision petition. Further, we may note that the application for condonation of delay is not even supported by affidavit of either some responsible officer of the petitioner – company or the concerned Advocate. Law relating to the condonation of delay in filing of suit or petition after the expiry of period of limitation is well settled. The condonation of delay cannot be as a matter of routine and the petitioner in such cases is required to explain the delay for each and every date after the expiry of period of limitation. In the matter of Anshul Aggarwal Vs. New Okhla Industrial Development Authority IV (2011) CPJ 63 (SC), the Hon’ble Supreme Court has held that while deciding an application 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 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 the instant case, as discussed above, the petitioner has failed to disclose sufficient cause for delay caused in filing of revision petition. Therefore, we are not inclined to condone the delay on this count alone and revision petition fails.

10. Even on merits, we find that both the District Consumer Forum as well as the State Commission have given concurrent finding of fact that the vehicle in question was repossessed by the petitioner without serving notice of outstanding amount on the respondent and it was also sold without giving any notice to the respondent. The counsel for the petitioner has failed to show any material irregularity or illegality in the impugned order which may call for interference by this Commission in revisional jurisdiction. Therefore, also the revision petition fails.

11. In view of the above discussion, application for condonation of delay in filing revision petition is dismissed. Accordingly, revision petition being time barred is also dismissed. No order as to costs. …………………………. (AJIT BHARIHOKE) ( PRESIDING MEMBER)

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

1. Rajasthan Khadi and Gramudhyoug Board, Through Pyare Lal Bairwa AAO, Jawahar Lal Nehru Marg, Jaipur, Rajasthan

2. Deputy Director (Khadi) Through Pyare Lal Bairwa AAO, District Industries Centre, Bharatpur, Rajasthan …Petitioners/OP 3 & 4

Versus

1. Manvendra Dev S/o Keshav Dev, R/o Village Jaghina Teh. & Distt. Bharatpur, Rajasthan …Complainants/ Respondent-1

2. The Bharatpur Central Co-operative Bank Ltd. Head/Main Office, through its Managing Director Bharatpur, Rajasthan

…OP-1/ Respondent-2

3. Branch Manager The Bhartpur Central Co-operative Bank Ltd. Kumher, District Bharatapur, Rajasthan

…OP-2/ Respondent-3

BEFORE

For the Petitioner : Mr. S.K. Sinha, Advocate

For the Respondent no.1: NEMO

For the Res. Nos.2 & 3 : Mr. Amit Agrawal, Advocate

PRONOUNCED ON 23 rd January , 2013

This revision petition has been filed by the petitioner against the impugned order dated 14.06.2011 passed by the Rajasthan State Consumer

Disputes Redressal Commission, Jaipur (in short, ‘the State Commission’) in Appeal

No. 2173 of 2008 – Manvendra Dev & Ors. Vs. Rajasthan Khadi and Gramudhhyoug Board & Anr. by which while accepting appeal set aside the order of learned District Forum and allowed complaint against OP Nos. 3 & 4.

2. Brief facts of the case are that complainant/Respondent No.1 submitted application for loan with petitioner/OP NO. 4 under KVIC project for Bees Farming Industries and petitioner/OP-4 recommended sanction of loan for Rs.2,63,200/- to the OP Nos. 1 & 2/Respondents No. 2 & 3 and also approved that on payment of the first instalment of the loan, 30% of the total loan by way of margin money will be deposited in term deposit. Opposite party sanctioned loan of Rs.2,00,000/- and it was incumbent upon the opposite party No. 2-Bank to inform OP

No. 4/petitioner and demand 30% of the margin money which they failed and in such circumstances, claiming deficiency on the part of opposite parties filed complaint with a prayer/direction to Opposite party to deposit Rs.78,960/- along with interest. Opposite party resisted claim and filed their reply. Learned District Forum after hearing both the parties dismissed complaint against which this revision petition has been filed.

3. Heard Learned Counsel for the petitioner and respondents no. 3 & 4. None appeared for the complainant/respondent no. 1.

4. Learned Counsel for the petitioner submitted that as no information was given by the bank authorities to the petitioner, margin money could not have been released and learned State Commission has committed error in allowing complaint against them, hence, petition be accepted and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by the learned State

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

5. Perusal of complaint reveals that complainant has mentioned in para 3 of the complaint that by letter dated 15.3.2004 the bank informed OP. OP Nos. 3 & 4 also admitted this fact in para 3 of its written statement but further alleged that claim for grant was not submitted in prescribed form along with other documents, hence, amount was not paid. Perusal of record reveals that by letter dated 25.6.2003, Annexure R-2/1 petitioner/OP requested Respondent/OP Bank to sanction loan and intimate so that OP may proceed for payment of margin money. In this letter this fact has not been mentioned that intimation was to be sent in any prescribed form. Once, bank authorities informed to the petitioner about disbursement of loan, it was obligatory on the part of

OP to process margin money and pay and if any intimation was required in prescribed prorforma, OP/petitioner should have informed to the bank authorities which has not been done.

6. As Opposite party/Respondent Nos. 2 & 3 intimated to the petitioners in time about disbursement of loan, it was obligatory on the part of the petitioner to disburse margin money in the account of complainant and learned State Commission has not committed any error in passing impugned order. As there is neither any illegality nor irregularity in the impugned order which calls for interference, revision petition is liable to be dismissed.

7. Consequently, revision petition filed by the petitioner is dismissed with no order as to costs. ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER

..……………Sd/-………………

REVISION PETITION NO. 3691 OF 2010 (From the order dated 18.08.2010 in Appeal No.A/10/486 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

Mr. Sayyed J.A. Wadood, Flat No.401, A-Wing, Poonam Enclave, Near Golden Nest, Opposite Himalaya Complex, Mira-Bhayandar Road, Mira Road (E), District – Thane – 400107

… Petitioner/OP

Versus

The Manager, United India Insurance Company Ltd. 226, Canada Building, Dr. D.N. Road, Fort, Mumbai – 400001

BEFORE

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

For the Petitioner : Mr. R.R. Shinde, Advocate For the Respondent: Mr. Ravi Bakshi, Advocate

PRONOUNCED ON 23 rd January , 2013

O R D E R

18.8.2010 passed by the Maharashtra State Consumer

Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in Appeal

No. Appeal No.A/10/486 – United India Insurance Co. Vs. Sayeed J.A. Wadood by which while allowing appeal order of District Forum allowing complaint was set aside and complaint was dismissed.

2. Brief facts of the case are that petitioner/complainant purchased Bolero GLX 200 vehicle in 2001 and got it registered with RTO and got Regd. No. MH-04-BD- 3763. Petitioner got the vehicle insured as comprehensive from OP/respondent for Rs.3,84,000/- for the period from 30.10.2003 to 29.10.2004. When this vehicle was in custody of his friend ShriPrakashchandra Sanghavi residing in Goregaon, Mumbai the vehicle was stolen on 22.4.2004. His friend lodged complaint of theft on 27.4.2004 and also informed to Tata Finance Ltd. and RTO. OP was also informed about theft. Claim was lodged with the opposite party. As no decision was taken after serving notice, petitioner filed complaint for recovery of claim. Opposite party filed written statement and denied the allegations made by the complainant and further submitted that claim was repudiated on 21.3.2005 on account of complaint being time barred. It was further submitted that vehicle was used by the complainant for hire and reward against the terms and conditions of insurance policy which is evident from complainant’s income tax return and prayed for dismissal of the complaint. Learned District Forum after hearing both the parties allowed complaint and directed respondent/OP to pay Rs.3,84,000/- with 9% p.a. interest. Respondent filed appeal before the State Commission and learned State Commission vide impugned order allowed appeal and set aside order of District Forum and dismissed complaint against which order this revision petition has been filed.

3. Heard Learned Counsel for the parties at admission stage and perused record.

4. Learned Counsel for the petitioner submitted that report of theft was promptly lodged with the police station and respondent was also intimated immediately and complaint was filed within limitation even then learned State Commission has committed error in accepting appeal and dismissing complaint and in such circumstances petition may be accepted and order of learned State Commission be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law which does not call for any interference, hence, petition may be dismissed.

5. It is admitted case of the complainant that vehicle was stolen on 22.4.2004 and report of theft was lodged on 27.4.2004. In the complaint further it has been mentioned that intimation of theft was given to Tata Finance Ltd. vide letter dated 29.4.2005 and to RTO, Thane vide letter dated 6.5.2004. Only this fact has been mentioned in paragraph 6 of the complaint that complainant also informed to the OP in respect of theft but no date has been mentioned. It appears that OP was not informed at least before 6.5.2004 meaning thereby there was no intimation to the OP at least upto 15 days from the date of commission of theft. In such circumstances, OP/respondent has not committed any error in repudiating claim of the Insurance Company vide letter dated 21.3.2005.

6. Admittedly, theft was committed on 22.4.2004 and claim was repudiated by OP on 21.3.2005 but complaint was filed on 19.7.2007 which is about after 2 year and 4 months. Complaint should have been filed within a period of 2 years from the theft or from the repudiation of claim as complaint has been filed without any application under Section 24-A of Consumer Protection Act, learned State Commission has not committed any error in allowing appeal and dismissing complaint as complaint being time barred. Learned District Forum committed error in allowing time barred complaint.

7. Learned Counsel for the petitioner could not place any citation in support of his complaint to show that complaint was filed within limitation and complainant has not committed breach of any condition of policy. In such circumstances, order passed by learned State Commission does not call for any interference and revision petition is liable to be dismissed.

8. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to cost. ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER

..…………Sd/-…………………

Mrs. Lajwanti W/o Shri Fateh Singh R/o H. No. 2779, Urban Estate, Jind (Haryana) Also at: R/o H. No.4577, Sector – 11 Extn., Urban Estate, Jind – 126102 Haryana. … Petitioner/OP

Versus

1.Chief Administrator Haryana Urban Development Authority HUDA Complex, Sector 6, Panchkula (Haryana)

2.Administrator HUDA, Hissar, (Haryana)

3.Estate Officer HUDA, Jind District Jind (Haryana)

4.D.C.T.P.O. Jind Kothi No.1242, Urban Estate, Jind (Haryana)

5.S.D.O. HUDA (Electricity Water, Roads, Sewear and Disposal Drainage Services) HUDA, Jind (Haryana)

6.Executive Engineer HUDA, HUDA Office Hissar, (Haryana)

… Respondents/Complainants

BEFORE

For the Petitioner : Mr. Madhurendra Kumar, Advocate

For the Res.Nos.1 to 3, 5&6: Mr. R.S. Badhran, Advocate

PRONOUNCED ON 23 rd January, 2013

O R D E R

This revision petition has been filed by the petitioner against the impugned order dated 24.11.2010 passed by the Haryana State Consumer Disputes Redressal

Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 1514 of 2005 –

HUDA Vs. Mrs. Lajwanti by which appeal of the respondent/opposite party was partly accepted and order of District Forum was modified.

2. Brief facts of the case are that complainant/petitioner was allotted Plot No.4577,

Sector II, Extension Urban Estate, Jind by respondent/OP vide allotment letter dated

11.10.2000. Possession of flat was offered vide letter dated 20.3.2001 and possession certificate was received by the complainant on 30.3.2001. Complainant raised construction upto DPC level for which certificate was issued on 28.6.2002. As electric wire was passing 3 ft. over the rear portion of the plot, the complainant could not continue construction work. Electric line was removed on 5.9.2002, hence, alleging deficiency in service filed complaint. Opposite Party resisted the claim and submitted that electric line was removed within 67 days from the date of submitting certificate and thus there was no deficiency in service 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.1,50,000/- and further to refund amount of interest recovered from the complainant and further extended period of construction which was wasted in removing electric line. Respondent filed appeal and learned State Commission vide impugned order partly accepted the appeal and modified order of compensation and reduced it to

Rs.10,000/- against which this revision petition has been filed.

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

4. Learned Counsel for the petitioner submitted that as construction was delayed due to non-removal of electric wire, learned District Forum rightly allowed compensation of Rs.1,50,000/- and learned State Commission has committed error in reducing it to Rs.10,000/-, hence, petition may be accepted and order of State

Commission 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 as electric wires were removed within a very small span, hence, petition may be dismissed.

5. It is admitted fact that possession certificate was received by petitioner on

30.3.2001 and complainant raised construction upto DPC level without permission.

Certificate for construction was issued on 28.6.2002 and in such circumstances, petitioner could have started construction only after that date. It is also clear that electric wire was removed by respondent within 67 days from the date of issuing DPC level certificate. In such circumstances, there was no occasion for the District Forum to grant huge compensation of Rs.1,50,000/-. Petitioner has not mentioned in her complaint that how much amount she intended to spend on the construction activities and within a period of two months how much cost escalated. Learned State

Commission has rightly observed in its impugned order as under:

“ We find force in the contention raised on behalf of the appellants-opposite parties. Admittedly, the complainant had submitted the DPC certificate on 28.6.2002 and the electric wire was removed by the opposite parties on 5.9.2002. Thus, within a period of about two months and seven days a huge increase of Rs.2,50,000/- in the cost of construction material is not believable. The report dated 2.7.2003 obtained by the complainant first the valuer in the cost of construction is not in accordance with law because the valuer has not disclosed the period for which the alleged escalation in the cost of construction was assessed by him to the tune of Rs.2,50,000/-. Therefore, the report of the valuer is of no consequence. It is a matter of common knowledge that within a period of two months and seven days, so much escalation in the construction material cannot go high. We have no data before us with respect to the rising in the cost of construction material is not believable. The valuer has not disclosed the rates of bricks, cement, sand and Bajri etc. Thereafter, awarding of compensation to the complainant to the tune of Rs.1,50,000/- is not justified.

As a sequel to our aforesaid discussion, we feel that the opposite

parties was under an obligation to offer the possession of the

plot to the complainant after removing the electric wire from the

back portion of her plot so that she could raise construction on

the plot of her free will at any time after completing the

construction upto DPC level. Due to the inaction on the part of

HUDA in not removing the electric wires/pole from the back

portion of the plot, it has definitely caused a hindrance for a

period of two months in completing the construction by two

months. We therefore feel that instead of awarding an amount of

Rs.1,50,000/-, if the complainant is at the most awarded

compensation of Rs.10,000/- for deficiency of service, it would

meet to the ends of justice and we order accordingly”.

5. We do not find any infirmity in the impugned order in modifying amount of compensation to the petitioner and there is no justification for enhancement of compensation and in such circumstances, revision petition is liable to be dismissed. Learned Counsel for the petitioner submitted that period for construction may be extended but perusal of District Forum order reveals that extension of period had already been extended for the aforesaid 67 days.

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

..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER

..…………Sd/-…………………

REVISION PETITION NO. 397 OF 2010 (From the order dated 28.10.2009 in Appeal No.FA-09/644 of the State Consumer Disputes Redressal Commission, Delhi)

Delhi SC/ST/OBC/Minorities/ Handicapped/Financial and Development Corpn. Ltd., Ambedkar Bhawan, Institutional Area, Sector 16, Rohini Delhi

… Petitioner/OP

Versus

Kamal Kishore S/o Itwari Lal R/o D-476, Jahangir Puri, Delhi – 110033.

BEFORE

For the Petitioner : Mr. Vivek Kumar Tandon along with

Mr. Manish C., Advocates

For the Respondent : Mr. Madhurendra Kumar, Advocate

O R D E R

This revision petition has been filed by the petitioner against the impugned order dated 28.10.2009 passed by the State Consumer Disputes Redressal Commission,

Delhi (in short, ‘the State Commission’) in Appeal No. FA-09/644 – Delhi

SC/ST/OBC/Minorities/Handicapped Financial and Development Corporation Ltd. Vs.

Kamal Kishore by which application for condonation of delay was rejected and consequently, appeal was dismissed.

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

Forum and ex-parte order allowing complaint was passed by learned District Forum on

21.5.2007 against which petitioner filed appeal before learned State Commission along with application for condonation of delay. Learned State Commission by impugned order dismissed application for condonation of delay as there was delay of 750 days in filing appeal and consequently, appeal was dismissed.

4. Learned Counsel for the petitioner submitted that learned State Commission has committed error in rejecting application for condonation of delay and dismissing appeal as delay was beyond control of the petitioner, hence, petition be accepted and order of

State Commission be set aside and matter be remanded to learned State Commission for disposal of appeal on merits. On the other hand, learned Counsel for the respondent submitted that order passed by State Commission is in accordance with law, hence, petition be dismissed.

5. Petitioner filed application for condonation of delay before the State Commission in which period of delay to be condoned has not been mentioned purposely. The explanation given for condoantion of delay in paragraph 2 of the application is as follows:

“ 2. That due to inadvertence and wrong noting of the date the file was not assigned to the counsel within time therefore Ex- parte order was passed. That therefore upon coming to know about the present order immediately file was sent for approval of the competent authority for permission and disbursement of the requisite expenses of the counsel and the counsel kept file with his office but did not filed an appeal despite the fact that the appellant corporation was pursuing the case with their counsel and later on the said counsel returned the said file stating the fact that he will not be in position to contest the present case and then the file was handed over to the present counsel who immediately prepared the appeal and filed before this Hon’ble Commission for consideration”. 6. In paragraph 3 it was further alleged that delay caused was purely due to administrative functioning and delay is neither intentional nor deliberate but due to above stated bonafide reason. In this application nothing has been mentioned when file was sent for approval of competent authority for filing appeal, when filed was returned by the counsel and when another counsel was engaged to prepare appeal who filed it immediately before the State Commission. In written arguments submitted by leaned

Counsel for the petitioner in paragraph 20,it was submitted that -

“That the petitioner took back the file of the case and handed over to another counsel on 4.12.2008, but as the ill luck would have been prevailing over the petitioner, the other counsel also slept over the file for 6 months”.

This fact has nowhere been mentioned in application for condonation of delay filed before learned State Commission and fresh efforts have been made for covering 6 months delay which cannot be believed at this stage. Learned State

Commission has rightly dismissed application for condonation of inordinate delay of 750 days and this order does not call for any interference.

7. Learned Counsel for the petitioner has placed reliance on (1981) 2 SCC 788 –

Rafiq and Anr. Vs. Munshilal and Anr. in which High Court’s order dismissing appeal was set aside by Hon’ble Supreme Court as High Court rejected the appeal on the ground that appeal was prepared and drafted and affidavit was sworn on 29th October,

1980 whereas appeal was filed on 12.11.1980. Thus, it becomes clear that as there was no satisfactorily explanation of 13 days, High Court rejected application for condoantion of delay which was set aside by the Supreme Court. This citation does not help to the petitioner as there is inordinate delay of 750 days and no satisfactory explanation has been given by the petitioner. He has also placed reliance on 2009 (6)

SCALE 677 – State of Karnataka Vs. Y. Moideen Kunhi (dead) by Lrs. and Ors. in which inordinate delay of about 300 days against the review petition and nearly 6,500 days against the original order was condoned by Hon’ble Apex Court because Government made out a case of public interest and has further shown to have suffered due to acts of fraud or bad faith on the part of its officers or agents in surrendering land and this delay was condoned subject to payment of exemplary cost of Rs.10,00,000/-. In the case in hand, there is no allegation of petitioner against its officers. Allegations are only against the advocates but name of the advocate and any action taken against any advocate has not been reflected in the application and in such circumstances, this citation does not help to the petitioner. He has also placed reliance on (1973) 3 SCC

800 – The Punjabi University, etc. Vs. Acharya Swami Ganesh and Anr. in which Apex

Court set aside the order of High Court as High Court did not condone delay of 2 days in filing appeal. This citation does not help to the petitioner as there is delay of 750 days.

8. Petitioner also did not appear before learned District Forum which shows that petitioner was reluctant in contesting the matter and so appeal was also filed after 750 days.

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

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

..………………Sd/-…………

( V.B. GUPTA, J)

PRESIDING MEMBER

..……………Sd/-………………

REVISION PETITION NO. 3848 OF 2007 (From the order dated 14.08.2007 in Appeal No.2177/06 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

1. Life Insurance Corpn. Of India Divisional Manager, No. 37, Jeevan Prakash, Mysore- Bangalore Road, Bannimantap, Mysore

2. Branch Office, LIC of India M.C., Road, Bandi Gowda Layout Mandya Through: Assistant Secretary Northern Zonal Office, LIC Jeevan Bharti, Connaught Circus, New Delhi … Petitioners/OPs

Versus

1. Smt. Kempamma W/o Late Hemagirigowda

2. Hemagirigowda @ Thammaiah Both R/o Yadavanahally Village, Bekkalale Post Koppahobli, Maddur Taluk Mandya, Karnataka

… Respondents/Complainants

BEFORE

For the Petitioners : Mr. Ashok Kashyap, Advocate For the Respondents: Mr. Jojo Jose, Advocate

O R D E R

14.8.2007 passed by the Karnataka State Consumer Disputes Redressal Commission,

Bangalore (in short, ‘the State Commission’) in Appeal No. 2177 of

2006 – Kempamma & Anr. Vs. LIC of India & Anr. by which, while allowing appeal, reversed order of District Forum and allowed complaint and directed petitioner/OP to pay Rs.1,00,000/- along with 6% p.a. interest.

2. Brief facts of the case are that Complainant No. 1 husband and Complainant No.

2 father, Hemagirigowda obtained policy of Rs.1,00,000/- on 13.3.2001 from petitioner/respondent which lapsed due to non-payment of premium. On the application of the assured, policy was revived on 19.9.2003 but unfortunately assured died on

7.5.2005 due to heart attack. Complainants submitted claim for policy amount which was repudiated by petitioner, hence, complainants filed complaint. Petitioner/OP filed written statement and admitted issuance and renewal of policy but submitted that policy was issued under medical scheme and on the declaration made in the proposal form and also before the medical examiner. At the time of renewal the deceased submitted his personal statement regarding health and medical report. Medical examiner also medically examined assured but assured falsely answered questions in the personal statement regarding his health and there was no discloser of material facts, so claim was repudiated. Assured died due to heart attack which had direct nexus with disease suffered by assured and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint but on appeal learned State Commission vide impugned order set aside order of District Forum and allowed complaint against which this revision petition has been filed.

4. Learned Counsel for the petitioner submitted that at the time of revival the assured suppressed fact of undertaking treatment and also falsely answered the questions in personal statement regarding his health and learned District Forum rightly dismissed the complaint but learned State Commission has committed error in allowing complaint, hence, petition be accepted and order of State Commission be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law as there was neither suppression of material facts nor nexus of death to treatment undertaken by assured, hence, petition be dismissed. 5. It is admitted case that assured policy lapsed which was revived on 19.9.2003 and at that time he submitted information regarding his health and treatment. Learned

District Forum in its order dated 21.8.2006 observed that assured suppressed material fact about health at the time of revival of policy. Learned District Forum observed as under: “15. Coming to the facts of this case at the time of revival of the policy

i.e. on 19.9.2003 the life assured has given answers in his personal

statement regarding his health as below:

Q.No.2 a) Have you suffered from any illness/

Disease requiring treatment for a week

or more? : No b) Did you ever have any operation,

accident or injury? : No. c) Did you ever undergo ECG, X-ray

Screening, blood, Urine or stool

Examination? : No Q.No. 4 Are you at present in sound health : Good

16. This health statement was given on 19.9.2003. The evidence of

RW-2 and the documents Ex.D-6 and D-7 reveal that on 29.7.2003

the insured visited VinayakaHospital in Hanumant Anagara,

Bangalore with a complaint of breathlessness on exertion and

cough and sputum production since one month. On examination

on the lungs, he found murmur sound, he is suspected bronchitis

(lower respiratory tract infection) and he prescribed medicines and

also X-ray as per Ex.D-6. As pere Ex.D-7 on 30.7.2003 the life

assured had undergone chest X-ray and the diagnosis was

right hilar and right basal pneumatics (? Koch’s). According to the

evidence of RW-2 as per the X-ray there was infection in the right

lung at lower part in central portion and Koch’s means tuberculosis. He was also advised to take the test of sputum continuously for

three days. Of course, he has taken treatment as an

outpatient. Though in the cross-examination, RW-2 has deposes

that tuberculosis is a curable disease depending upon the infection

and there was no heart problem to the life assured it is evident that

at the time of renewal of the policy the deceased assured was

aware that he had taken treatment for tuberculosis and under gone

X-ray in spite of it he answered the questions narrated above in the

negative though the treatment for tuberculosis and undergoing X-

ray were within the knowledge of the deceased assured. Though it

is contended that the deceased died due to heart attack and there

is no nexus between tuberculosis and heart attack that the National

Commission and our State Commission has held that there need

not be any nexus between the decease at the time of obtaining the

policy or revival to that of cause of death. It is established law that

contract of insurance is of utmost good faith and the proposal

statement regarding health shall be basis of contract at the time of

revival and if it contains any untrue averments, the contract will be

null and void. So the opposite party has proved that the deceased

assured as suppressed undergoing treatment for tuberculosis for

more than a week and also subjecting to the X-ray and in spite of

the knowledge of tuberculosis, he concealed those facts at the time

of revival of the policy though those material facts were within his

knowledge. Therefore we answer point no. 1 in the affirmative”.

6. Learned District Forum rightly observed that at the time of revival of lapsed policy the assured suppressed material facts about his health. Learned State Commission while allowing appeal observed as under:

“ No doubt the insurance company has examined one Dr. C.J. Girish in support of its defence. The said doctor in his evidence has deposed that the insured was subjected to medical tests conducted by it. In the test he has also appears to have diagnosed that the complainant was suffering from lower respiratory tract infection for which he prescribed medicine. In the cross examination he has deposed that the patient was not anemic and there was no illness pertaining to the heart and the patient had taken treatment as an outpatient and that tuberculosis infection is curable if the infection is not severe.

From this it is seen that at no point of time the insured had taken any treatment as an in-patient in any of the hospital. Further the death is due to the heart attack. The above said disease has no nexus with the cause of death. If that is so, there is no reason for the insurance company to repudiate the claim that too in the absence of any evidence to that the complainant had the knowledge of any of diseases even though he was subjected to certain medical tests by Dr. C.J.Girish.

Before the revival of the policy the insured was also subjected to medical test by the panel of doctors of the insurance company. If at all if the insured was suffering from any disease necessarily the doctor who conducted the medical examination would not have certified the insured was hale and healthy. Therefore, in our view the DF is not right in dismissing the complaint of the complainant”.

7. Observances given by learned State Commission are apparently not correct because assured gave wrong answers regarding his health at the time of revival of policy which is apparent from the perusal of form and further treatment of disease which was also proved by petitioner by evidence of treating doctors before the District Forum. In such circumstances, it cannot be said that assured had not suppressed material facts and had not given wrong statement pertaining to his health.

8. Learned Counsel for the opposite party submitted that burden of proof regarding false representation and suppressing material fact lies on the Corporation. In support of his contention he placed reliance on (AIR) 1991 SC 392 – LIC of India Vs. G.M. Channabasemma, IV CPJ 269 (NC) – Asha Garg & Oth Vs. United India

Insurance Co. Ltd. and II CPJ 9 (NC) – LIC of India Vs. Badri Nageswaramma & Oth. in which it was held that burden to prove false representations and fraudulent suppression of facts by the assured lies on Insurance Company. We agree with the principles laid down in aforesaid citations but perusal of record reveals that OPs discharged its burden by proving false representation and suppression of material facts by the assured by evidence of RW1 Dr. C.J. Girish and treatment documents as well X-ray report. As the assured suppressed material facts and made false statements in the revival form the petitioner was right in repudiating claim and learned State Commission has committed error in allowing complaint.

9. Learned Counsel for the petitioner placed reliance on IV (2009) CPJ 8 (SC) – Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. in which Hon’ble Apex Court held that insured is under obligation to make true and full disclosure of information within his knowledge. Where insured is on regular treatment and fully aware about his state of health and statements made in the proposal form regarding as to state of health are palpably untrue to his knowledge, repudiation of claim is justified. In the matter in hand, petitioner has proved that at the time of revival, assured suppressed material facts regarding his treatment and gave false answers to the questions and in such circumstances, petitioner rightly repudiated the claim.

10. Learned Counsel for the OP placed reliance on AIR (1962) SC 814 – Mithoolal Nayak Vs. LIC of India in which it was observed –

“ The principle underlying the Explanation to S.19 of the Contract Act is that a false representation whether fraudulent or innocent, is irrelevant if it has not induced the party to whom it is made to act upon it by entering into a contract. We do not think that that principle applies in the present case. The terms of the policy make it clear that the averments made as to the state of health of the insured in the proposal form and the personal statement were, the basis of the contract between the parties, and the circumstance that Mahajan Deolal had taken pains to falsify or conceal that he had been treated for a serious ailment by Dr. Lakshmanan only a few months before the policy was taken shows that the falsification or concealment had an important bearing in obtaining the other party’s consent. A man who has so acted cannot afterwards turn round and say: “It could have made no difference if you had known the truth.” In our opinion no question of waiver arises in the circumstances of this case, nor can the appellant take advantage of the Explanation to S.19 of the Indian Contract Act”.

This citation does not help to the respondent rather supports the case of petitioner as deceased has suppressed material fact and made false representations in the revival form.

11. Learned Counsel for the respondent further argued that statement regarding his health at the time of revival of lapsed policy is not to be seen. This argument is devoid of force in the light of judgment rendered by this Commission in R.P. No. 85 of 2007 – Pritam Kaur Vs. LIC of India in which it was held that “At the time of revival fresh declaration is taken on the basis of which new contract is entered into”. Thus, it becomes clear that at the time of revival of policy new contract comes into existence and if assured suppresses material fact or gives false declaration regarding his health, Insurance Company is entitled to repudiate claim.

12. As assured has suppressed material facts regarding his treatment before revival and gave wrong answers intentionally regarding his health and he died due to heart attack which had direct nexus with disease suffered by him, petitioner has not committed any error in repudiating claim. Learned District Forum rightly dismissed complaint of the complainant/OPs and State Commission has committed error in allowing appeal and accepting complaint.

13. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 14.8.2007 passed by learned State Commission is set aside and order of District Forum dated 21.8.2006 dismissing complaint is affirmed. There shall be no order as to cost.

..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER

..…………Sd/-…………………

Ram, Pal Singh S/o Shri Dayalram R/o Katlabas Outside Deen Darwaja Kata, Didwana District Nagor … Petitioner/OP

Versus

General Manager Shri Transport Finance Co. Ltd. Regd Office: 123 Angappa Naikaen Street Madras

BEFORE

PRESIDING MEMBER

For the Petitioner : Mr. J.B. Mudgil Advocate

For the Respondent : Mr. Lenin Singh Hijam, Advocate

O R D E R

This revision petition has been filed by the petitioner against the impugned order dated 3.10.2011 passed by the State Consumer Disputes Redressal Commission, Delhi

(in short, ‘the State Commission’) in Appeal No. 1692 of 2011 – Ram Pal Singh Vs.

General Manager Sri Ram Transport & Ors. by which appeal was dismissed and order of District Forum dismissing complaint was upheld.

2. Brief facts of the case are that complainant/petitioner obtained loan of Rs.

5,00,000/- from OP/respondent for purchasing truck for a sum of Rs. 6,11,000/-. This loan was to be repaid in 54 instalments. Due to illness of father of the complainant, loan instalments could not be paid and muscle persons of OP snatched truck and OP sold it for Rs.3,11,500/- and further raised demand of Rs.2,71,832/- from the complainant and thus committed deficiency in selling truck at very low price and further demanding money, hence, filed complaint for damages. OP contested the complaint and submitted that complainant does not fall within purview of consumer as per loan-cum- hypothecation Agreement. Vehicle was repossessed and sold as per terms and conditions of agreement and notice for recovery is still pending before Arbitrator and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint against which appeal filed by the complainant was dismissed by impugned order, hence, this revision petition has been filed.

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

4. Learned Counsel for the petitioner submitted that impugned order passed by learned State Commission is non-speaking order and petitioner fall within purview of consumer as he obtained loan from the respondent, hence, petition be accepted and impugned order be set aside and matter be remanded back to the learned State

Commission for passing speaking order. On the other hand, learned Counsel for the

OP submitted that orders passed by learned State Commission and District Forum are in accordance with settled law which does not call for any interference, hence, petition be dismissed.

5. It is admitted case of parties that complainant purchased truck on finance provided by OP and parties entered into hypothecated agreement and this amount was to be paid by the complainant in instalments. Complainant failed to pay instalments and in such circumstances, vehicle was repossessed by the OP and after notice vehicle was sold.

6. Learned Counsel for the petitioner submitted that learned State Commission has not passed speaking order, hence, matter may be remanded back. It is true that learned State Commission has not passed speaking order and learned State

Commission ought to have passed speaking order after dealing with arguments placed by Counsel for the appellant but only on this count there is no justification to remand the matter if there is no merit in the complaint at all.

7. Learned District Forum after referring many citations of this Commission held that complainant does not fall within purview of consumer and repossessing vehicle under the terms and conditions of hire purchase agreement cannot be considered as any negligence on the part of OP. When complainant failed to pay instalments it was within the domain of OP to repossess vehicle and dispose it as per agreement and law.

Similar complainant has been dismissed in IV (2012) CPJ 93 (NC) – Shriram Transport

Finance Co. Ltd. Vs.Chaman Lal after referring judgment of Hon’ble Supreme Court reported in II (2012) CPJ 8 (SC) – Suryapal Singh Vs. Siddha Vinayak Motors & Anr. I do not find any infirmity in the order of District Forum which has been upheld by learned

State Commission and in such circumstances, I am not inclined to set aside the impugned order and remand the matter back to the learned State Commission only on the ground that order is not speaking order.

..………………Sd/-……………

(From the order dated 03.08.2011 in First Appeal No. 1016/2011

of Haryana State Consumer Disputes Redressal Commission)

Shri Balraj Sharma S/o Shri Ramsaroop Sharma R/o H No. 220/4 Birbal Nagar Narwana District – Jind (Haryana)

... Petitioner / Complainant

Versus

Manager ICICI Lombard General Insurance Co. Ltd. Hisar

… Respondents / OP

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. J. B. MUDGIL, Advocate

O R D E R

This revision petition has been filed by the petitioner against the impugned order dated 03.08.2011 passed by the learned Haryana State Consumer Disputes Redressal

Commission (for short ‘the State Commission’) in FA No. 1016 / 2011 ‘Balraj Sharama

Vs. Manager, ICICI Lombard General Insurance Co. Ltd.’, by which appeal was dismissed and order of District Forum dismissing the complaint was affirmed.

2. Brief facts of the case are that complainant / petitioner is registered owner of HR –

56 – T – 0066 which was insured with opposite party / respondent from 30.03.2008 to

29.03.2009. Complainant sent aforesaid vehicle along with driver Rajpal from Kaithal to

Kandla on 12.05.2008 but vehicle did not turn back. On 24.07.2008, complainant received information from Economic Cell Office of S.P. Kaithal regarding dispute in repayment of the instalments between driver Rajpal and purchaser

Satyawan. Complainant immediately approached S.H.O. P.S. Sadar Kaithal on

25.07.2008 to register a case of theft and intimation was also given to OP on

28.07.2008 through registered Post. As case was not registered by Police, complainant approached to Punjab & Haryana High Court and as per direction of Hon’ble High

Court, F.I.R. was registered on 5.02.2009. But vehicle could not be traced out by the

Police. Opposite Party insurance company appointed a surveyor. Complainant submitted claim which was repudiated by the Opposite party on the ground of delay in lodging FIR, hence alleging deficiency in service on the part of the Opposite Party

Insurance Company, filed a complaint before the District Forum. Opposite party contested the complaint and submitted that no intimation of theft was received by opposite party on 28.07.2008 but complainant intimated to opposite party on 7.01.2009 and thus, complainant violated terms and conditions of the policy. Learned District

Forum after hearing both the parties, dismissed the complaint and appeal filed by the complainant was also dismissed by the State Commission vide impugned order.

3. Heard learned counsel for the petitioner / complainant at admission stage and perused record.

4. Counsel for the petitioner / complainant submitted that intimation of theft was given to opposite party on 28.07.2008 just after knowledge of theft even then learned State

Commission has committed error in dismissing the appeal and District Forum committed error in dismissing the complaint hence petition be accepted and the order passed by the State Commission be set aside.

5. It is admitted case that vehicle was stolen on 12.05.2008. As per complainant FIR was lodged on 25.07.2008. But it appears that on that date no FIR was lodged but as per directions of Hon’ble Punjab and Haryana High Court, FIR was registered on

05.02.2009. Complainant alleged in the complaint that intimation was given to Opposite

Party on 28.07.2008 through registered post to which Opposite Party denied in written statement and submitted that intimation was received on 07.01.2009. District Forum disbelieved that intimation to OP was given on 28.07.2008 and observed that there was delay of 267 days in lodging the FIR and delay of 230 days in giving intimation of theft to opposite party and on the ground of delay in lodging the FIR and intimation to Opposite Party, dismissed the complaint. Complainant has not proved that intimation was received by OP on 28.07.2008. The State Commission also upheld the order of District

Forum as there was inordinate delay in giving intimation to opposite party. Even if it is presumed that by letter dated 28.07.2008 intimation of theft was given by complainant to OP, there was clear delay of two and half months and in such circumstances learned

District Forum has not committed any error in dismissing the complaint and State

Commission has also not committed any error in dismissing the appeal in the light of judgement passed by Apex Court in “Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United

India Insurance Co. Ltd. and Anr.” [2011 CTJ 11 (Supreme Court) (CP)]. I do not find any illegality or material irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed at admission stage.

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

(K.S. CHAUDHARI J.)

PRESIDING MEMBER RS/

(Against the order dated 26.09.2006 in Complaint Case No. 22/1997 of the Bihar State

Consumer Disputes Redressal Commission, Patna)

Birendra Kumar S/o Shri Baban Prasad R/o Mohalla Hanuman Nagar Punaichak, P.S. Shastrinagar District Patna Bihar-800023

… Appellant

Versus

Dr. Usha Kiran Jha Consultant, Histopathologist-cum-Cytologist (U.K. Histopath) Daughter of Dr. Bodh Krishna Jha R/o Chandrakanta Apartment Pandue Kothi Front of Bata India Gali Boring Road Patna-1

… Respondent

BEFORE:

For Appellants : Mr. Sumit Kumar, Advocate with

Mr. Anil Kumar, Advocate

For Respondent : Mr. Mahesh K. Chaudhary, Advocate

1. This first appeal has been filed by Birendra Kumar, original Complainant before the Bihar State Consumer Disputes Redressal Commission, Patna (hereinafter referred to as the State Commission) and Petitioner herein being aggrieved by the order of that

State Commission, which had disallowed his complaint of medical negligence against

Dr. Usha Kiran Jha, Opposite Party before the State Commission and Respondent herein. FACTS :-

2. In his complaint before the State Commission, Appellant had stated that he had taken his minor son Ashish Priyadarshi (hereinafter referred to as the Patient) to a

Specialist-Pediatrician Dr. Mohan Choudhary with a complaint of small gland on the left side of his neck and who after examination advised some tests, including an x-ray of the chest and biopsy on the lymph gland. The names of two doctors were recommended;

(i) Dr. K.K. Kanth and (ii) Dr. Usha Kiran Jha. On 18.11.1995 Appellant again went to

Dr. Mohan Choudhary, who advised FNAC of the left lymph gland. Appellant, accordingly, contacted Dr. Usha Kiran Jha, who took specimens for the FNAC of the neck gland and after a laboratory examination gave a report that the Patient appeared to be suffering from Tuberculosis. On the basis of this diagnosis, the consulting

Pediatrician prescribed medicines for Tuberculosis and when the condition of his son did not improve he took him to the All India Institute of Medical Sciences, New Delhi, where after seeing the FNAC slide the doctors there opined that this was indicative of

Hodgkin’s disease i.e. Cancer. The Appellant thereafter took his son to Tata Memorial

Hospital for Chemotherapy and he is presently recovering from Hodgkin’s disease. However, because of the wrong report given by the Respondent, on the basis of which the Pediatrician also prescribed medicines which were not required, the Patient apart from suffering adverse side effects also had to undergo delay in the correct treatment for the Cancer. Appellant thereafter filed a complaint of medical negligence and deficiency in service against the Respondent and requested that she be directed to pay Rs.5,41,413.34 as compensation.

3. Respondent on being served filed a written rejoinder denying any medical negligence on her part. It was stated that the Appellant had approached her with a written recommendation of the Pediatrician requiring her to only conduct an FNAC procedure and not Biopsy. The FNAC was accordingly scientifically conducted in a well-equipped laboratory and on the basis of this the Appellant gave her opinion. There was no negligence in this matter and even if there was a misdiagnosis after due care was taken to conduct the FNAC, it did not amount to medical negligence as per settled law. Respondent further contended that it was the Appellant who delayed getting a Biopsy done on his son because admittedly he did not get it conducted on 17.11.1995 and 06.12.1995 despite advice from the Pediatrician and instead went to All India

Institute of Medical Sciences. Even there he did not get the necessary tests done and instead took the Patient to Tata Memorial Hospital delaying the Biopsy and proper treatment by several weeks. Respondent further contended that she had not prescribed/administered any medicine for Tuberculosis, which was done by the

Pediatrician, since she was only the Histopathologist and not the treating doctor i.e. the clinician in the present case.

4. In the first round of litigation, the State Commission after hearing both parties vide its order dated 08.12.1999 dismissed the complaint. Aggrieved by this, the Appellant filed an appeal before the National Commission, which on 02.06.2006 remanded the case back to the State Commission with a direction that the Opposite Party

(Respondent herein) be permitted to file evidence by way of affidavits and if so desired to cross-examine each of the deponents as also refer the matter for obtaining expert opinion on this subject. The State Commission after complying with the above directions but not allowing impleadment of consulting Pediatrician as an Opposite Party again dismissed the complaint by observing as follows : “12. The O.P. is a cytologist and she is not a clinician and on the basis of the slide she has expressed suspicion of tuberculosis for which the reason is mentioned. She has explained that she has given only one prick to collect smear and that might have been given at a place where lymphoma was not present at that point of time. The clinician has not discussed the case with the O.P. He did not advise her for rechecking of the slide. On the other hand he has advised for biopsy test to eliminate lymphoma which was never done by her and the complainant himself did not opt for this test. The physician has insisted for proper biopsy test to exclude lymphoma but the complainant was himself negligent in not opting for this test at Patna and he himself wasted time for more than 15 days and thereafter he went to Delhi. As stated above at Delhi also he did not cooperate in full test as advised at AIIMS but returned back to Patna and after six months he went to Bombay. Had the complainant got the biopsy test done of his son as per advice by Dr. M. Choudhary in between 17-11-95 to 6-12-95 the Hodgkin’s disease could have possibly been detected through biopsy test and he would have even advised for the line of treatment by the physician who was treating him at Patna. It was the fault on the part of the complainant that he allowed waste of time in the treatment of his son by not adopting the advise of the treating physician. The O.P. in support of her case that her report was correctly prepared on the basis of guidelines under the medical science as detailed in journal of clinical pathology of March, 98 which mentions that FNAC test in conjunction with immunocyto chemistry could give reliable result but such facility is not available in Patna. It is mentioned in the journal that excision biopsy and histopathological diagnosis remain the gold standard for the diagnosis of malignant lymphoma i.e. why the doctors at Patna and at AIIMS have advised for biopsy test which the complainant willfully avoided. Therefore, the negligence was on the part of the complainant and not on the part of the O.P. that she gave a report showing symptom of tuberculosis on the slide which she prepared while doing test of FNAC. There is no expert opinion on record before us to support the case of the complainant that on the slide prepared for FNAC test the finding given by the O.P. suffers from defect and it was done under the method not acceptable to the medical science or it lack technical know how. There is nothing on record to support the contention of the complainant that slide prepared by O.P. suffers from any defect or her suggestive finding suffered from deficiency as she adopted wrong line in examining the slide against the norms of the medical science. The slide prepared by the O.P. was handed over to the complainant when he asked for. The allegation of the complainant that doctor at AIIMS on examination of this slide came to the conlusion that patient was suffering from Hodgkin’s disease is not supported from the papers of the AIIMS as referred to above. ..” (Emphasis provided)

5. The State Commission also cited a number of judgments, including the case of Hacher v. Blare Lancet (1954-2-880), in which it was opined that a doctor cannot be held to be negligent simply because as a matter of opinion he made an error of judgment, as also Jacob Mathew v. State of Punjab [(2005) 6 SCC 1], wherein the

Hon’ble Supreme Court has laid down the principles defining medical negligence by applying the well-known Bolam test. Hence, the present first appeal.

6. Learned counsel for the Appellant was present. Neither Respondent nor her counsel was present. Since service on the Respondent is complete, it was decided to proceed with the case ex-parte.

7. Learned counsel for the Appellant in his oral submissions while reiterating the facts stated by him in his complaint before the State Commission contended that the

State Commission erred in not appreciating the fact that the Respondent herself had admitted that the FNAC procedure without the supporting Immunocyto Chemistry

Technology does not give the best results and she did not use the said technology because it was not available in Patna. Under the circumstances, she should not have given a categorical opinion that the Patient was suffering from Tuberculosis. Had she raised a doubt regarding the diagnosis, then the consulting Pediatrician would have definitely advised for a Biopsy. Unfortunately, because of this lapse the consulting

Pediatrician also did not prescribe a Biopsy till 06.12.1995, by which time the Patient’s condition had deteriorated and he had to be rushed to the All India Institute of Medical Sciences. Appellant further stated that Respondent’s contention that he had himself delayed the Biopsy on his son is factually not correct. The State Commission also erred in concluding that the Appellant had not been able to provide any expert medical opinion to support his contention regarding the faulty FNAC because Respondent had filed a supplementary affidavit along with the report of the Department of Pathology of the Mahavir Cancer Sansthan in Patna, which clearly stated that the FNAC report of the

Respondent was indicative of Cancer and not Tuberculosis. The first appeal, therefore, deserves to be allowed.

8. We have heard the submissions made by learned counsel for the Appellant, including his written synopsis filed in Court today as also the entire evidence on record. The fact that the FNAC was conducted on the minor son of the Appellant by

Respondent on the specific written advice of the consulting Pediatrician, who had examined the Patient, is not in dispute. It is also an admitted fact that Respondent, who is a consultant Histopathologist, had opined in writing that “this appeared to be a case of Tuberculosis Lymphadenitis despite on ATT”. This report was accepted by the consulting Pediatrician and he did not raise any doubts regarding this diagnosis and, therefore, Biopsy was not immediately recommended until 06.12.1995 when the

Patient’s condition deteriorated. The State Commission noting these facts had concluded that the Respondent had only given an opinion based on a scientifically conducted FNAC that it was Tuberculosis and it was for the Pediatrician to have reached a conclusive finding either after discussing this case with her or after having recommended a Biopsy. We find force in the finding of the State Commission since admittedly the Respondent was not a clinician and there is no evidence that a reasonable degree of skill and care was not taken by her in conducting the

FNAC. Further, we agree with the State Commission that at the most Respondent could be held responsible for misdiagnosis, which, as per settled law quoted in para-13 of the State Commission’s order, clearly does not amount to medical negligence. Further, the Appellant has not been able to pin point how the Respondent erred in conducting the FNAC test. The expert opinion filed by him along with his affidavit also does not indicate any specific deficiency. If at all there was any medical negligence in not applying reasonable care and precaution, it could have been attributed to the Pediatrician, who, however, has not been impleaded as a party by the

Appellant in this case.

9. Keeping in view these facts, we see no reason to differ with the order of the State

Commission which had dismissed the Appellant’s complaint of medical negligence and deficiency in service against the Respondent. We, therefore, uphold the order of the

State Commission in toto and dismiss the first appeal. No costs.

(ASHOK BHAN, J.)

PRESIDENT

(VINEETA RAI)

MEMBER Mukesh

Haryana Urban Development Authority Through its Estate Officer, Sonepat Haryana. … Petitioner/OP

Versus

Jai Pal Singh S/o Sh. Ganga R/o House No.29, Sector 14, Sonepat, Tehsil and Distt. Sonipat, Through its Power of Attorney Sh. Pawan Kumar S/o Sh. Rattan Lal, R/o House No.1134, Sector-14, Sonepat, Haryana.

BEFORE

For the Petitioner : Mr. R.S. Badhran, Advocate

For the Respondent : NEMO

O R D E R

Haryana (in short, ‘the State Commission’) in Appeal No. 1949 of 2005 – HUDA vs. Jai

Pal Singh by which while dismissing appeal order of District Forum was affirmed.

2. Brief facts of the case are that complainant/respondent was allotted Plot No.323-

P in Sector 13 Part, Sonepat vide letter dated 19.9.2001, but petitioner/OP failed to deliver actual physical possession of the plot to the complainant after providing all basic amenities, hence, complainant filed complaint alleging deficiency on the part of OP and prayed for delivery of possession of alternative plot. OP contested complaint and learned District Forum while allowing complaint granted following reliefs: “ … ..the respondents are directed to allot an alternative plot to the

complainant bearing No.2145P, in Sector-7, Sonepat in place of plot

No.323P, situated in Sector-13 Part, Sonepat. However, it is made clear

that the payment of excess area, if any, will be made by the complainant

to the respondents.

As far as interest-compensation is concerned, the respondents are

directed to pay interest-compensation to the complainant at the rate of

12% per annum on the amount lying deposited with the respondents from

the date of allotment of the plot till the actual physical possession of

alternative plot No.2145P, Sector-7,Sonepat, is delivered to the

complainant. The respondents are also directed to deliver the actual

physical possession of the alternative plot No.2145P, Sector-7,Sonepat to

the complainant and to refund or adjust the amount of interest already

deposited by the complainants with the respondents and not to charge any

interest or penalty or any other amount from the complainant at the time of

handing over the actual physical possession of alternative plot to the

complainant. The respondents are further directed to pay compensation

to the tune of Rs.5,000/- for causing mental agony and harassment and

further to pay Rs.2000/- under litigation expenses to the complainant.

With these observations, findings and directions, the present

complaint stands accepted and the respondents are directed to make the

compliance of this order within 30 days from the date of this order”.

3. Petitioner filed appeal before the State Commission and the State Commission vide impugned order dismissed appeal on the count of delay of 255 days as well as on merits. 4. Heard learned Counsel for the petitioner and perused record.

5. This petition has been filed after inordinate delay of 140 days. Petitioner has not filed any application for condonation of delay with revision petition filed on 4.1.2012. On

19.9.2012, learned counsel for the petitioner sought adjournment to file application for condonation of delay. Even after lapse of 4 months, application for condonation of delay has not been filed. As revision petition has been filed with inordinate delay of 140 days and no application for condonation of delay has been filed, petition being barred by time liable to be dismissed at admission stage.

6. Learned State Commission also dismissed appeal on the count of inordinate delay of 255 days as well as on merits. It appears that petitioner is in the habit of filing appeal or revision petition after inordinate delay and in such circumstances, in the absence of any application for condonation of delay, revision petition is liable to be dismissed.

7. Petitioner has challenged in this revision petition only rate of interest awarded to the complainant and period for which interest has been allowed and only to this extent notice has been issued by this Commission to the respondent. Apparently, rate of interest and period for which interest awarded by the District forum and affirmed by the learned State Commission does not call for any interference.

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

..……………Sd/-………………

PRESIDING MEMBER K NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(Against the order dated 28.02.2006 in S.C. Case No. 61/O/2001 of the W.B. State

Consumer Disputes Redressal Commission, Kolkata)

Dr. Sunil Thakur Avenue Nursing Home 3A, Madan Street Kolkata-700072 Residing at 34, Bagmari Road Plot No. D/4, Kolkata-700054 … Appellant

Versus

1. Gorachand Goswami S/o Late Manick Lal Goswami Residing at Dakshini Housing Estate Phase-II, House No. C-1/19 P.S. Metiabruz, Kolkata-700018

2. M/s Avenue Nursing Home 3A, Madan Street Kolkata-700072 Jointly owned by

(i) Fatima Khatoon

(ii) Hasma Khatoon

(iii)Mahasur Rahaman

3. Lions District 322 B Blood Bank 27/8A, Waterloo Street Kolkata-700069

… Respondents

BEFORE:

HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER

For Appellant : Mr. Suchit Mohanty, Advocate For Respondents : Ms. Meenakshi Midha, Advocate for R-1

NEMO for R-2

R-3 already ex-parte

ORDER PER VINEETA RAI, MEMBER

1. This first appeal has been filed by Dr. Sunil Thakur, Appellant herein and Opposite

Party before the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the State Commission) which had allowed the complaint of medical negligence filed against him by Gorachand Goswami, Respondent

No.1 and others herein and Complainant before the State Commission.

FACTS :

2. Manick Lal Goswami (hereinafter referred to as the Patient) fell down from his bicycle while returning home from his office on 14.11.2000 and sustained injuries, which included a fracture in the neck of the femur. Respondent No.1, who was Patient’s son, contacted Appellant-Dr. Sunil Thakur, who was a Consultant Orthopedic Surgeon attached to M/s Avenue Nursing Home on telephone the same night and who advised him to bring the Patient for medical examination the next day i.e. on 15.11.2000, where after an x-ray was taken confirming the fracture, patient was admitted in the Avenue

Nursing Home and operated upon by the Appellant on 17.11.2000. Prior to the surgery, the Appellant advised that one bottle of blood would be required, which would be provided by the Avenue Nursing Home. Blood was accordingly supplied and transfused and the operation completed by 5.00 p.m. However, blood transfusion continued even after the surgery. Soon after the blood transfusion, the Patient started frothing from the mouth and complained of difficulty in breathing and shivering. The next day, he could not urinate and his eyes were found to be deep yellow in colour. Subsequently, a

Nephrologist after examining the Patient advised that since he might need Dialysis and this facility was not available in the Avenue Nursing Home, the Patient be shifted to

Calcutta Medical Research Institute (CMRI), which was done. On request of CMRI to the Blood Bank attached to it, one bottle of blood of A+ group (being the blood group of the Patient) was supplied for the Patient’s Dialysis. However, the condition of the

Patient continued to deteriorate and despite being put on a ventilator he passed away on 01.12.2000. As per the death certificate issued by CMRI, one of causes of death was attributed to the “history of mismatched blood transfusion”. It was contended that while the blood group of the Patient was A+, the blood which was transfused to him at the Avenue Nursing Home on 17.11.2000 was of B+ group as per the report of the

Blood Bank which supplied the blood based on an enclosed blood specimen sent with the requisition slip. It was also stated that the Patient’s condition actually deteriorated following the transfusion of B+ blood while the Patient was under the treatment and care of the Appellant, which clearly reveals gross medical negligence as also deficiency in the treatment of the Patient on the part of the Appellant as also the Nursing

Home. Being aggrieved by the loss of his father, who was the sole earning member of the family, Respondent No.1 filed a complaint before the State Commission on grounds of medical negligence and deficiency in service and requested that the Appellant and

Avenue Nursing Home be directed to jointly and severally pay Rs.6 Lakhs as compensation.

3. Appellant on being served filed a written rejoinder disputing the allegations made in the complaint. It was stated that as an Orthopedic Surgeon he operated successfully on the Patient and no complaint regarding the surgery was made by Respondent

No.1. So far as the arrangement for transfusion of blood was concerned, it was submitted that this was arranged by the Patient’s relatives directly from the Lions District

322B Blood Bank at Waterloo Street, Kolkata and it was the duty of the Blood Bank to correctly identify the blood group of the Patient and thereafter supply the blood after matching it with the Patient’s blood group. Further, as per the usual practice, it is for the doctors and para-medical staff present in the operation theater of the Nursing Home to carefully verify the name and blood group of the Patient before transfusion and for this the responsibility cannot be fixed on the Orthopedic Surgeon. It was further stated that the Patient subsequently developed other complications like urination problems etc., which were not due to any medical negligence or deficiency in service in operating the

Patient and, therefore, the allegations of medical negligence and deficiency in service are without basis.

4. The State Commission after hearing the parties allowed the complaint and held the Appellant guilty of deficiency in service and medical negligence. The operative part of the State Commission’s observations is reproduced: “27. … we are inclined to say O.P. No.-2* is evidently responsible for deficiency in service in terms of Sec.2(g) of the C.P. Act, 1986 on the following counts:- (i) O.P. No.-2 failed to ascertain the blood Group of the deceased before sending the sample to the Blood Bank despite the fact that there was a reliable document with the complainant’s relatives in respect of Blood Group of the deceased though the Complainant had drawn attention of O.P. No.-2 to the said document. (ii) O.P. No.-2 failed to mention the blood group of the deceased while sending sample to the blood Bank with a requisition which is otherwise mandatory. (iii) O.P. No.-2 committed gross negligence by accepting and transfusing a blood group other than A+ve which was the deceased’s confirmed blood group. *(i.e. the Appellant before the National Commission)

(iv) O.P. No.-2 failed to follow instructions contained in the Issue Document of Blood Bank where caution is printed on the Poly Bag containing Blood that in case of any reaction, the Surgeon/Physician must send sample of patient’s blood, a small sample of the blood transfused, patient’s symptoms evident on transfusion.”

5. The State Commission, therefore, directed the Appellant to pay a compensation of

Rs.5,28,000/- and Rs.10,000/- as costs to Respondent No.1. The Avenue Nursing

Home (Opposite Party No.1 before the State Commission) was also directed to pay

Rs.10,000/- as compensation for their act of negligence and deficiency in service for failing to carry the correct blood sample of the Patient to the Blood Bank. The State

Commission, however, concluded that no case of negligence against the Blood Bank was established. Appellant as well as the Avenue Nursing Home were directed to pay the above amount within 30 days from the date of communication of the order, failing which it was to carry interest @ 12% per annum till the amounts were paid.

6. Aggrieved by this order, only the Appellant (i.e. Opposite Party No.2 before the

State Commission) filed this first appeal.

8. Learned counsel for the Appellant reiterated that the State Commission gave an erroneous finding of medical negligence against Appellant since his responsibility was only that of an Orthopedic Surgeon and admittedly the surgery was successfully conducted by him without any complications. So far as provision of blood is concerned, the responsibility is that of the concerned Nursing Home as also the Blood Bank to cross check the blood group with the blood required and clearly state these requirements in the requisition slip sent to the Blood Bank. In case of any deficiency in doing so, including not giving the full details, it is the Nursing Home (i.e. Opposite Party

No.1 before the State Commission) and the Blood Bank, which are solely responsible and not the operating surgeon i.e. the Appellant in the instant case. It was further stated that the CMRI to whom the Patient was referred issued a death certificate without careful consideration of the facts and, therefore, gave multiple reasons for the cause of death but nowhere did it say that it was because of the faulty surgery. Further, Respondent No. 1 did not produce any expert medical evidence or person to prove his case. The Appellant was only a consulting doctor who had been called to the Avenue

Nursing Home to conduct the surgery and was not a regular member of its staff. Therefore, in respect of any negligence committed by the Nursing Home and its staff in not verifying the blood group before sending it to the Blood Bank, the Appellant cannot be held responsible.

9. Learned counsel for Respondent No.1 on the other hand stated that the Appellant cannot take the plea that the blood was arranged for the Patient by his relatives and it was the responsibility of the relatives, the concerned hospital and the blood bank to ensure that a correct requisition slip was sent because there is evidence on record that the requisition slip dated 16.11.2000 to the blood bank was signed by Dr. Sunil Thakur

(i.e. the Appellant) stating that one unit of blood for the Patient was required and a specimen blood sample attached. The requisition slip did not mention the blood group of the Patient. The blood sample was cross-checked in the blood bank and found to be of B+ group and accordingly blood of B+ group was sent for transfusion for the

Patient. It is clear from this that the Appellant had signed the requisition slip without verifying whether the correct blood specimen had been sent and whether any blood group was mentioned. In view of these facts and the death certificate, which confirmed that one of the causes of death was “mismatched blood transfusion”, the same was rightly attributed by the State Commission to the Appellant’s medical negligence.

10. We have considered the submissions made by learned Counsel for both parties and have carefully gone through the evidence on record. The fact that the Patient was admitted in the Avenue Nursing Home for a surgery by the Appellant following fracture of the femur neck is not in dispute. It is further a fact that a requisition slip was sent to the Blood Bank for blood transfusion required during and after the surgery and that the blood specimen attached to it was not of the Patient but of some other person and, therefore, the blood sent by the Blood Bank did not match with the Patient’s blood group leading to serious complications, which contributed to his death. Appellant’s contention that he was not responsible for arranging the blood is not acceptable in view of the fact that he had admittedly signed the requisition slip sent to the Blood Bank enclosing with it a wrong specimen of blood. Because of this serious lapse, the Patient developed other complications following the blood transfusion relating to his liver and kidney functions because as per medical literature there is a nexus between transfusion of mismatched blood and renal urinary and liver problems*. [*Source : (i) Medical Dictionary – FARLEX (ii) Complications of Blood Transfusion (Maxwell & Wilson Oxford Journal)]

11. Counsel for Appellant’s contention that Respondent had been unable to produce any medical evidence in support of their case is also not tenable because in the instant case the principle of ipsa res loquitur is clearly applicable. 12. Further, Counsel for Respondent No.1 has brought to our notice judgments of the National Commission in Dr. Kam Inder Nath Sharma & Ors. V. Satish Kumar & Ors. [II (2005) CPJ 75 (NC)] and Dr. K. Vidhyullatha v. R. Bhagawathy [I (2006) CPJ 136 (NC)] as also of the Hon’ble Supreme Court inPost Graduate Institute of Medical Education & Research v. Jaspal Singh & Ors. [II (2009) CPJ 92 (SC)] in support of the contention, wherein it has been concluded that wrong blood transfusion is an error, which no doctor/hospital exercising ordinary skill would have made, and such an error is a sure instance of medical negligence. Keeping in view the facts in this case, as discussed above, and respectfully following the judgment of the Hon’ble Supreme Court as also of this Commission, which are relevant in the instant case, we agree with the finding of the State Commission that the Appellant was guilty of medical negligence and uphold the same. 12. This first appeal having no merit is dismissed. Appellant is directed to comply with the order passed by the State Commission and pay the awarded amount of Rs.5,38,000/- (i.e. Rs.5,28,000/- as compensation and Rs.10,000/- as cost) to Respondent No.1. No costs. Sd/-

(ASHOK BHAN, J.)

PRESIDENT

(VINEETA RAI)

MEMBER Mukesh

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

REVISION PETITION NO. 98 OF 2013 (From the Order dated 4.08.2009 in F.A. No. 3469/2001 of Haryana State Consumer Disputes Redressal Commission, Panchkula)

IA/171/2013 IA/172/2013 (DELAY & STAY)

Smt. Krishna W/o Sh. Mohan Lal R/o Mahavir Nagar Tehsil and Distt. Rewari Petitioner

Versus

Sub Divisional Officer (OP) Sub Division No.2 Rewari Respondent

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

For the Petitioner : Mr. Himanshu Gupta, Advocate

This revision petition is directed against the order dated 4.8.2009 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula (‘State Commission’ for short) by which the State Commission allowed First Appeal No.3469 of 2001 filed by the respondent / opposite party and set aside the order dated 8.8.2001 passed by the District Consumer DisputesRedressal Forum, Rewari.

2. There is delay in filing this revision petition for which the petitioner has filed I.A. No.171 of 2013 praying for condonation of the delay. There is no indication about the period of delay in the application of the petitioner and the space regarding the number of days of delay has been left blank. Since the impugned order was passed on 4.8.2009 and the same was received by the petitioner on 18.8.2009 and yet the revision petition came to be filed by the petitioner on 9.1.2013, it is seen that there is delay of 1150 days beyond the prescribed period of limitation.

3. We have perused the application filed by the petitioner for condonation of delay and heard Mr. Himanshu Gupta, Advocate, counsel for the petitioner. It is submitted by the petitioner that after engaging her counsel to pursue the First Appeal No.3469 of 2001 filed by the respondent before the State Commission, she had engaged another person, viz., Mr. Pradyuman Yadav, Advocate as her counsel. It is submitted that though she was in touch with the said counsel but he kept on assuring her that the appeal was pending before the State Commission. However, in the meanwhile she was in dark about the impugned order of the State Commission accepting the appeal of the respondent and as such believed that the matter was still pending for final decision. In view of this, it is submitted by her that because of the conduct of her counsel, she was misled and came to know about the decision of the State Commission against her some time in 2012 and accordingly applied for certified copy which was received on 27.9.2012. Learned counsel has submitted that she is a poor lady who is not familiar with the legal provisions and procedures, and as submitted in the application, the delay in question was unintentional and occurred due to inadvertence and for the reasons beyond the control of the petitioner since she was misled by her advocate.

4. We have considered the application of the petitioner for the condonation of delay. The reasons and the explanation put forth by the petitioner are general and vague. Admittedly, no action has been taken by the petitioner against the Advocate who is alleged to have kept her in the dark and thereby misled her regarding the decision of the State Commission. According to the petitioner, the free copy of the impugned order had been supplied to the parties/counsel on 18.8.2009. Without specifically denying the knowledge about or the receipt of the free copy of the impugned order supplied by the Commission, it is simply stated that the certified copy of the impugned order was not received by her from her counsel. We are unable to accept this story which appears to have been cooked up by the petitioner as an afterthought to justify such a long and inordinate delay of about three years in filing the petition.

5. Besides the fact that no action was taken by the petitioner against the concerned Advocate for this serious professional lapse on his part, it is unbelievable that the petitioner would be unaware about the impugned order for such a long time. In fact, it is stated in para 4 of the application that the petitioner instituted execution proceedings on 31.8.2010 against the respondent for compliance of the order of the District Forum dated 8.8.2001. Firstly, it is not understood as to how the petitioner could file the execution petition without ascertaining the fate of the appeal filed by the opposite party before the State Commission to which she was a party and where she had also engaged a counsel for representing her. Besides this, if she was really not aware of the impugned order having been passed on 4.8.2009, it is not understood as to why she waited for such a long time of more than 8 years to approach the District Forum for execution of the order which had been passed on 8.8.2001. It is obvious that she must have come to know about the impugned order but in order to justify the inordinate delay on her part in filing the present revision petition and to prove her “bonafides” in the matter, she has mentioned about the filing of the execution petition on 31.8.2010. In this context, no documents have been placed before us, which would indicate institution of the execution proceedings on 31.8.2010. Even if the execution petition was filed on 31.8.2010, it is highly improbable that the petitioner would not come to know about the impugned order for the next more than two years of the pendency of the execution petition before the District Forum. Nothing has been mentioned about the issuance of notice by the District Forum in the execution proceedings to the respondent and further progress of the execution petition.

6. In view of the above factual position which emanates from the application and the oral submissions made by learned counsel, we are not at all convinced about the explanation and reasons put forth by the petitioner to justify the delay of more than three years in filing this revision petition. Even after receipt of the certified copy on 27.9.2012, the petitioner has taken more than 90 days to file the revision petition. In view of this, her application for condonation of delay is dismissed. With this, the revision petition also stands dismissed as hopelessly barred by limitation.

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

……………Sd/-……..……….. (SURESH CHANDRA) MEMBER SS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2300 OF 2012 (Against the order dated 07.03.2012 in Appeal No. 905 of 2010 of the State Commission Gujarat)

1. Amitaben Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah

2. Apexa Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah

3. Smruti Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah

4. Pratik Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah

(all residents of 502, Nandishwardeep Apartment Parle Point, Surat)

...... Petitioners

Vs. Varachha Co.op Bank Ltd. Effil Tower L.H.Road, Surat, Gujarat Through its Chief Manager / Branch Manager ...... Respondent

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

For the Petitioners : Dr.Bipin K Dwivedi, Advocate For the Respondent : Mr.Sanjay Mehta, Advocate Dated : 30 th January, 2013

ORDER PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

Petitioners are legal heirs of complainant Late Shri Dilip Kumar Rasiklal Shah. They have preferred this revision petition against the impugned order of Gujarat State Consumer Disputes Redressal Commission ( in short, ‘the State Commission’) whereby State Commission allowed the appeal preferred by the respondent bank herein against the order of District Consumer Disputes Redressal Forum ( Additional) of Surat which reads thus:

“1. The complaint by the complainant is allowed as under.

2. The opponent in the case has allowed a withdrawl of Rs.1,68,450/- vide cheque no.7780 in the frozen Account No.4226. The said amount shall be credited in the Deceased Complainant’s Account with interest as per rules and regulations of the bank effective Dt.09.08.2005. 3. The opponents in the matter shall pay to complainants in all sum of Rs.10,000/- (in words Rupees Ten Thousand only) towards cost of the complaint and mental physical torture.

4. The complainants as per relief prayed under complaint para -5 is not entitled to any additional relief.

5. The opponent shall bear the cost of suit himself.

6. The opponent shall comply the order within 30 days of this order”.

2. Briefly put, the facts relevant for disposal of this revision petition are that late complainant filed consumer complaint against the respondent – opposite party claiming that he had an account bearing no.4226 with the opposite party, namely, Varachha Co- op Bank Ltd, Varachha Road, Surat. That on 04.12.2004 complainant gave written instructions to the respondent– bank stating that he had lost certain cheques, as such no payment be made against those cheques from his aforesaid bank account without his written consent. That therespondent bank recorded the numbers of the lost cheques in their register. Despite that, bank allowed withdrawl of Rs.1,68,450/- from the bank account no. 4226 of the complainant against one of those lost cheques bearing no. 7780 without informing or obtaining consent from the complainant.

3. The respondent – bank contested the complaint by filing a written submissions denying the allegations.

4. The District Forum after hearing the parties and on the basis of the evidence produced came to the conclusion that the opposite party bank had encashed the cheque regarding which stop payment instructions were issued from the bank account no. 4226 of the complainant without seeking consent from him. This according to the District Forum amounted to deficiency in service. As such, District Forum allowed the complaint and passed the order reproduced above.

5. Feeling aggrieved by the order of the District Forum, the respondent bank preferred an appeal before the State Commission and the State Commission concluded that the instructions issued by the deceased – complainant to the bank vide letter dated 14.02.2004 were unclear and vague and as such there was no deficiency in service on the part of the bank. Accordingly, the State Commission accepted the appeal and set aside the order of the District Forum and also dismissed the complaint.

6. Learned Shri Bipin K Dwivedi, Advocate for the petitioner has contended that order of the State Commission is perverse and against the facts. He argued that State Commission was not justified in setting aside the well reasoned order of the District Forum holding deficiency in service on the part of the respondent bank despite the fact that petitioner had not only given clear instructions not to encash certain cheques without his consent from his account which were claimed to have been lost particularly when numbers of those cheques were got entered in the “unused cheques register” maintained by the respondent – bank. In support of this contention, learned counsel for the petitioner has drawn our attention to the petitioner’s letter dated 14.02.2004 as also the photocopy of the relevant entry in the unused cheques register maintained by the respondent bank. It is further contended that the State Commission has committed a grave error in holding that in a business city like Surat, the bank is not supposed to seek confirmation from the customer before encashing the cheque irrespective of the customer having requested the bank not to allow operation of the bank account. Learned counsel thus urged us to accept the revision petition and set aside the impugned order of the State Commission accepting the appeal against the order of the District Forum.

7. Shri Sanjay Mehta, Advocate, learned counsel for the respondent bank on the contrary has argued in support of the order of the State Commission. He has drawn our attention to the letter dated 14.02.2004 addressed by late complainant to the bank and submitted that the letter in question is vague inasmuch as it does not mention a specific account number in the subject and at the bottom of letter, there are five account numbers mentioned under a note asking upto date statement of account. It is contended that from this letter no instructions regarding stop payment of any cheque is perceived and as such bank was not at fault in enashing the cheque which was presented in the year 2005. Learned counsel for the respondent bank further contended that mere entry of the cheque number in the unused cheque register relates to A/c No 0503/4226 by itself does not mean that there were any instructions not to make payment against the cheques detailed therein. Learned counsel for the respondent further contended that whenever a duly signed cheque is presented for encashment before the bank, the bank is under a legal obligation to encash the cheque failing which the bank would risk legal proceedings by the beneficiary of the cheque issued by the account holder. Thus it is contended that impugned order does not suffer from legal or factual infirmity which may call for interference by this Commission in its revisionaljurisdiction, scope of which is limited.

8. In order to appreciate the rival contentions, it would be useful to have a look on the relevant portion of the impugned order of the State Commission which interalia reads thus:

“Now, it is also necessary to be decided that whether the responsibility of blame to be poured out on the Bank of any dispute between the Deceased Complainant and with his professional friends. And any refund’s cheque number 775629 drawn on State Bank of Saurashtra for Rs. 1,68,476 by the Surat Municipal Corporation and that was collected by the Architeet Parikshitlal Talati and that cheque was to be given to Deceased Complainant instead of that, has given to MansukhlalSanghani and that cheque was deposited in the Account No.4226 of Deceased Complainant and thereafter, that amount was withdrawn from the Account Number 4226 and while the aforesaid cheque deposited in the account of Deceased Complainant at the relevant time may have presented that cheque in the Bank to obtain amount with the signature of Deceased Complainant, so obviously information have to Deceased Complainant as to whose name that cheque is wrote and hence, the Deceased Complainant could have stopped payment of that cheque instead of unclear and vague language in the letter dated 14.02.2004. And to be obtained written consent of deceased person for each and every cheque which may submit and arrangement of bank may disturb if every account holder may write letter according to that and it seems that now the responsibility is being poured out on the bank in any dispute in respect of refund amount obtained from the Corporation. And the learned Forum has recorded in their judgment that the Bank could have demanded more clarity regarding that letter for the aim of better services to be provided to the Deceased Complainant. But that responsibility is not of the bank and account holder is bound to inform amount of cheque, date, number, account number in which person’s favour which has wrote, and hence Learned Forum’s Judgment is not proper and justified and therei interfere is required, so the appeal is granted and final order is being passed”.

9. On perusal of above, we find that the State Commission has accepted the appeal against the order of the District Forum mainly for the reason that the instructions dated 14.02.2004 given by the complainant to the respondent bank was vague and it could not be treated as clear instructions of ‘stop payment’. On careful consideration of record, we find that aforesaid conclusion of the State Commission is erroneous as the State Commission while arriving at the conclusion has ignored the fact that the numbers of cheques stated to have been misplaced vide instructions dated 14.02.2004 were recorded by the respondent bank in the unused cheque register officially maintained in this regard. Photocopy of the unused cheque register maintained by the respondent bank is available on record. On perusal of the aforesaid photocopy, we find that on 14.02.2004, the entry regarding seven unused cheques pertaining to the bank account no.4226 of the complainant including cheque no.7780, which is the bone of contention in this revision, was actually made by the respondent bank in the unused cheque register pursuant to the instructions dated 14.02.2004 of the complainant. From this, it is obvious that the respondent bank actually understood the instructions given by the complainant and it is because of the said reason, the entries pertaining to unused cheques was made in the unused cheque register. That being the case, the respondent bank now cannot take shelter of vagueness in the letter dated 14.02.2004 of the complainant addressed to the respondent bank. From the above referred entry in the unused cheque register, it is clear that on 14.02.2004, the respondent bank was fully aware that as per the instructions of the complainant, the cheques entered in the unused cheque register were not to be encashed without first referring to the complainant. Admittedly, the respondent bank encashed one of those cheques bearing no.7780 for Rs.1,68,450/- relating to account no.4226 of the complainant without referring to and seeking instructions from the complainant. This in our view obviously amount to deficiency in service. The State Commission has allowed the appeal of the respondent bank against the order of the District Forum without taking into account the entries made in the relevant unused cheque register maintained in the bank. Thus in our view, the order of the State Commission suffers from material irregularity and is unsustainable. Accordingly, we accept the revision petition and set aside the impugned order of the State Commission and restore the order of the District Forum. No order as to costs.

………………………… (AJIT BHARIHOKE,J) PRESIDING MEMBER

………………………… (SURESH CHANDRA) MEMBER Am/

(Against the order dated 21.02.2007 in O.P. No. 108/99 of the Tamil Nadu State

Consumer Disputes Redressal Commission, Chennai)

Smt. V. Bhavani W/o S. Vijayraja No. 18, Srirengapalayam East Kumarasamy Raja Nagar Rajapalayam … Appellant

Versus

Dr. S. Siva Subramaniam M.S.M.R.S.H. (London) Karthik Nursing Home Chettiarpatti Rajapalayam

… Respondent

BEFORE:

For Appellants : Mr. V. Prabhakar, Advocate

For Respondent : Ms. Hetu Arora Sethi, Advocate

1. Smt. V. Bhavani, original complainant before the Tamil Nadu State Consumer

Disputes Redressal Commission, Chennai (hereinafter referred to as the State

Commission) and Appellant herein had filed this first appeal being aggrieved by the order of that Commission which had dismissed the complaint of medical negligence against Dr. S. Sivasubramaniam, Respondent herein and Opposite Party before the

State Commission.

FACTS : 2. Appellant approached Respondent for treatment of irregular menstrual bleeding

on 24.02.1998 and Respondent after examining her and conducting relevant tests

advised that she be admitted in the Hospital for undergoing a Trans Cervical

Endometrial Resection (TCER). She was required to purchase the medicines from

Respondent’s clinic and also pay Rs.3000/- for the surgery. The surgery, which lasted

nearly four hours, was conducted under epidural anaesthesia but because the surgical

tools and apparatus were not sterilized in advance and there was no pre-arrangement

for a generator in case of power failure, which failed four times during the surgery, she

experienced severe pain during the surgery and on the third day from the surgery she

developed Sepsis, resulting in high fever, body pain, retention of urine and abdominal

swelling. Respondent prescribed some medicines but she suffered renal failure and her

husband was advised to admit her to Meenakshi Mission Hospital for treatment of renal

failure. She was shifted to that Hospital and admitted in the Intensive Care Unit, where

she was treated for Septicaemia, Jaundice and Renal Failure and was also put on

ventilator support. Because of the sincere and effective steps taken by a team of

doctors at that Hospital, the Patient recovered from her coma and though she was

discharged from the Hospital, she continues to have joint pains, nervous weakness and

shrunken kidneys because of which she might need renal transplantation in due

course. Being aggrieved because of the medical negligence on the part of Respondent,

which resulted in enormous pain and suffering as also heavy expenditure, Appellant

issued a legal notice to him claiming a sum of Rs.15 Lakhs as damages and

compensation for medical negligence and deficiency on his part. Respondent, however,

sent an evasive reply and denied the charges. Aggrieved by this, Appellant filed a

complaint before the State Commission and requested that the Respondent be directed

to pay her total amount of Rs.15 Lakhs as compensation under the following heads: 1) Medical expenses .. Rs.3,50,000-00 2) Attendance and Nutrition till 6-5-98 .. Rs.50,000-00 3) Pain and suffering and Transportation .. Rs.4,00,000-00 4) Future attendance for transplantation, Nutrition .. Rs.3,00,000-00 and Hospital 5) Reducal of the normal span of life and damage .. Rs.4,00,000-00 Total .. Rs.15,00,000-00”

3. Respondent on being served filed a written reply denying that there was any medical negligence on his part, as alleged by the Appellant. The charge that the equipments were not sterilized was specifically denied by Respondent, who stated that the Resectoscope, Telescope and Cautery Loops were sterilized by immersion in cidex solution prior to the surgery as also all other equipments, which included electrical cords, suction and irrigation tubes as per standard procedure. It was also specifically denied that there was any power-cut during the surgery, which was completed within an hour. Since the Patient was under epidural anaesthesia throughout the surgery, the possibility of her seeing anything, including her contention that there was a power failure, is not factually correct. After successful completion of the surgery, the Patient was recovering satisfactorily until the fourth day when it was noted that her urine output was very low and, therefore, her Blood Urea and Serum Creatinine were tested and found to be high. After medical examination, Appellant was diagnosed with Acute Renal

Failure and immediately referred to Meenakshi Mission Hospital for

Dialysis. Respondent stated that even after examination in Meenakshi Mission Hospital he visited her to check her progress and the doctors there informed him that she had developed Respiratory problems, Jaundice and Vomiting and, therefore, put on ventilator and kept in the Intensive Care Unit. However, she never lost consciousness and subsequently recovered. Respondent gave the best possible medical treatment and care exercising the required professional skills needed in this case. The post- operative condition was because of her pre-existing renal problems, for which she was also taking treatment. Therefore, the charges of medical negligence and deficiency in service are totally baseless.

4. The State Commission after hearing the parties and considering evidence before it concluded that no case of medical negligence could be established against the

Respondent. The relevant part of the State Commission’s observations in this regard is reproduced: “ … In the present case the allegation that due to improper sterilization of instruments the complainant suffered septicaemia has also not been substantiated. The opposite party has clearly set out his stand in the version and in the proof affidavit to the effect that the instruments like Resectoscope Telescope and Cautery Loops were all sterilized by immersion in Cidex solution and that it was carried out in the morning of 26/2/98 and the Electrical chords, suction and irrigation tubes were all sterilized by keeping in Formaline tray in the previous night itself. Cidex is the brand name of Activated Glutaradehyde Solution which is used as a sterilant and high level disinfectant into which sensitive instruments could be immersed to attain fully sterilized conditions prior to surgical procedures. The opposite party had followed all accepted procedures with regard to sterilization of equipments prior to the start of the medical procedure on the complainant. Even with regard to the post operative surgical care, it has already been noted that the complainant had been given proper medicines and she was also put on I.V. fluids. It is also to be noted that the opposite party had stated that the complainant brought to his attention her previous history of renal disorder and the treatment she was undergoing from Dr. Dhanam only after the operation was completed by him. This fact had not been controverted by the complainant. There was already a history of renal failure and treatment which the complainant had been following, which, for reasons best known to her, she had not disclosed to the opposite party. The complainant has not substantiated her case set out in the complaint. She has not established that the opposite party was negligent and consequently there was deficiency in service on his part while treating the complainant. She has not produced any expert evidence in support of her stand. She has not chosen to controvert the contents of the affidavit of Dr. Sampathkumar who treated her at the Meenakshi Mission Hospital and who has given a clean chit to the opposite party with regard to the treatment given to the complainant in Karthik Nursing Home.”

6. Learned counsel for the Appellant reiterated that the State Commission erred in concluding that there was no medical negligence whereas it was clearly established that the infection leading to renal failure occurred because the surgical equipments were not properly sterilized and the situation was further aggravated because the electric supply failed four times during the critical surgery. In proof of these contentions, it was stated that prior to the surgery the blood test did not indicate the presence of any bacteria or infection whereas the Blood Culture conducted after the surgery and which takes 3 to 7 days to confirm, clearly indicated that there was infection. Obviously, this occurred during the surgery and because of the non-sanitary conditions in the operation theater and non-sterilized surgical equipments. He brought to our attention the medical history of the Appellant, which did not indicate that she had any pre-existing problem, apart from the menstrual problems which necessitated the TCER. It was also specifically stated that the epidural anaesthesia being mild, the Appellant was fully conscious during the surgery and, therefore, her observation of power failure is based on facts.

7. Counsel for Respondent on the other hand reiterated that he was a well-qualified doctor, who had conducted several surgeries, and that after the clinical examination and laboratory investigations, the Appellant was diagnosed as suffering from chronic cervicitis with dysfunctional uterine bleeding because of which she underwent TCER, which is a standard management procedure in such cases. The surgery was conducted with properly sterilized state of the art equipments and there was no negligence or deficiency in conducting the surgery and there was also no power failure. During the surgery it was found that the entire Endometrium was badly affected due to infection and it was possible that the infection had spread to the bloodstream earlier and was in a dormant stage since the uterine cavity is not an absolutely sterilized area. Further, this also would explain the subsequent Sepsis which was not due to any negligence in the surgery or non-sterilization of the equipments. Counsel for the Respondent further stated that the Nephrologist from the Meenakshi Mission Hospital, who had treated the

Patient, had filed an affidavit before the State Commission as an expert, in which he clearly stated that the renal failure and other problems encountered by the Patient were not due to any negligence or deficiency in service on the part of Respondent but due to pre-existing endomentrial infection and because of which occurrence of Septicaemia is an inherent and accepted complication of TCER. The State Commission had, therefore, rightly concluded that there was no medical negligence on Respondent’s part and had rightly dismissed the Appellant’s complaint.

8. We have heard learned Counsel for both parties and have carefully gone through the evidence on record. Patient’s admission in Respondent’s clinic with complaints of irregular menstrual bleeding and related problems, where she underwent TCER surgery, are admitted facts. It is also a fact that four days following the surgery, she suffered from symptoms of Septicaemia, retention of urine and renal failure, because of which she was referred to another Hospital, wherein she was treated for the same and discharged after recovery. Appellant’s contention that the Septicaemia and the renal failure problems occurred because of insanitary conditions in the operation theater as also non-sterilization of the equipments, we note, is not borne out by any independent or credible evidence to prove the same. It is merely Appellant’s conjecture to explain the subsequent complications. Apart from this, we agree that a Patient who is under epidural anaesthesia is unlikely to observe during that period that power was disrupted on four occasions during the surgery. Therefore, this is also based on either conjecture or hearsay and cannot be relied upon. On the other hand, we note from the evidence on record that due care was taken in treating the Patient in respect of the diagnosis as also the medical treatment and the Respondent’s explanation that the Septicaemia occurred because a pre-existing infection is confirmed by the evidence of an expert,

Nephrologist from the Meenakshi Mission Hospital and Research Centre, where the

Patient was subsequently admitted, and who stated on affidavit as follows :- “9. … it was a known fact that Mrs. V. Bhavani was suffering from chronic cervicitis and endometritis even before TCRE, for over a period of 6 months. She underwent TCRE for removing the infected endometrium. In such a situation, in spite of the reasonable care and skill exercised by the surgeon, there is every possibility that the pre-existing infection could enter into the blood stream through the cut ends of the capillaries (the terminal end of an arteriole which are fine hair-like blood vessels forming a network) in the inner wall of the uterus after the removal of the endometrium. This possibility can neither be fully anticipated nor prevented. In my view this should have been the most probable reason for septicaemia suffered by Mrs. V. Bhavani after TCRE. This septicaemia should have given rise to the other ailments including the acute renal failure suffered by Mrs. V. Bhavani.

10. I submit that the renal problems encountered by Mrs. V. Bhavani was not due to any negligence or deficiency of service on the part of Dr. S. Sivasubramanian; but it is due to the pre-existing endometrial infection and in such a situation occurrence of septicaemia is an inherent and accepted complication of the TCRE. Even when a surgeon exercises best care and skill, such complications do occur. In this case, Dr. Sivasubramanian responded with a sense of urgency and referred Mrs. V. Bhavani for further management to me within time. In fact it is because of this immediate response that we could prevent further deterioration in the clinical condition of Mrs. V. Bhavani thereby saving her life.”

This evidence has not either been controverted or challenged by the Appellant, on whom there was onus to prove that there was medical negligence. On the other hand, from the evidence on record as also the expert opinion of the Nephrologist from a

Hospital where the Appellant was admitted and in whom she admittedly had full faith clearly confirms that there was no medical negligence or deficiency in service in the medical diagnosis, treatment and post operative care of the Appellant.

9. What constitutes medical negligence is now well established [Jacob Mathew v.

State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be followed: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated.

10. In the instant case, there is adequate evidence as discussed in the foregoing paras to conclude that on all these counts the Respondent, who was a well-qualified doctor, used his best professional judgment and the required medical skills to diagnose the Appellant’s illness and thereafter conduct the required surgery and also take due post-operative care, including referring her to a higher medical institution when it was considered necessary. We, therefore, agree with the order of the State Commission that there was no medical negligence in this case and uphold the same.

11. The present first appeal having no merits is, accordingly, dismissed. No costs.

(ASHOK BHAN, J.)

PRESIDENT

(VINEETA RAI)

MEMBER Mukesh

REVISION PETITION NO. 3176 OF 2012 (From the order dated 23.08.2011 in Appeal No. 5008 of 2010 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Mallikarjun S/o Jagdevappa Durga R/o Harsur Village, Gulbarga Taluk & District Karnataka State.

… Petitioner/Complainant

Versus

1. The Oriental Insurance Co. Ltd. By its Divisional Manager Opp Mini Vidhana Soudha Main Road, Gulbarga Karnataka State Herein represented by Regional Office, 44/45, Leo Shopping Complex, Residency Road, Bangalore – 560025.

… Respondents/OP-1

2. Mysore Sales International Ltd. III Floor, Asian Plaza Sardar Vallabha Bhai Patel Chowk Gulbarga, Karnataka State.

… Respondents/OP-2

BEFORE

PRESIDING MEMBER

For the Petitioner : Mr. N.K. Verma, Advocate

O R D E R

This revision petition has been filed by the petitioner against the impugned order dated 23.08.2011 passed by the Karnataka State Consumer Disputes Redressal

Commission, Bangalore (in short, ‘the State Commission’) in Appeal No. 5008 of 2010 – The Oriental Ins. Co. Ltd. Vs. Mallikarjun & Anr. by which while allowing appeal, order of

District Forum was set aside, and complaint was dismissed.

2. Brief facts of the case are that petitioner/complainant was registered owner of

Motor Cycle KA-32/R-8285 which was insured by OP-1/Respondent No. 1 and financed by OP-2/Respondent no.2. Complainant parked his vehicle in parking place of office premises on 6.9.2008 which was stolen by someone and he lodged report with the police authorities on 9.9.2008 and intimated to Respondent/Insurance Company on

10.9.2008. As claim was not settled by Respondent no. 1, complaint was filed. OP contested claim and OP-1 further submitted that complainant has not informed them about commission of theft within 48 hours, hence, complaint is liable to be dismissed.

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

OP-1/Respondent No.1 to pay a sum of Rs.35,000/- along with 9% p.a. interest,

Rs.5,000/- as compensation, Rs.2,000/- as litigation charges and further directed that out of the said amount, Rs.17,000/- be paid to OP-2/Respondent No.2. Respondent

No. 1 filed appeal and learned State Commission vide impugned order allowed appeal and dismissed complaint, hence, this revision petition was filed.

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

4. Petitioner moved application for condonation of delay of 321 days and submitted that copy of impugned order dated 23.8.2011 was received by him in the first week of

October, 2011 and petitioner sent papers to his Counsel in Delhi for filing revision petition. It was further alleged that parcel of documents was missing in the office of

Counsel and petitioner was under the impression that revision petition has been filed but on an inquiry in July, 2012 he came to know that petition had not been filed. Later on, his documents were traced and petition was filed and prayed for condonation of 321 days delay in filing revision petition. As per office report, there is delay of 259 days in filing revision petition.

5. Learned Counsel for the petitioner submitted that delay is bonafide as petitioner had already sent papers to his Counsel, hence, delay may be condoned and petition may be proceeded further. 6. As alleged in the application, petitioner received copy of order in the first week of

October 2011 and sent it to his Counsel in Delhi. He has not mentioned to whom these papers were sent and when his papers were not traceable in the office of his

Counsel. He has also not mentioned when these papers were traced and in these circumstances, there appears to be no explanation at all about delay of 259 days in filing revision petition. He has not filed any affidavit of Counsel in whose office petitioner’s papers were missing. On account of inordinate delay of 259 days without any explanation application for condonation of delay deserves to be rejected and consequently revision petition is also liable to be dismissed on the count of delay.

7. As far merits of the case are concerned, learned District Forum dismissed complaint as complainant did not inform to OP/Respondent No. 1 within 48 hours of theft and thus violated terms and conditions of insurance policy and learned State

Commission has not committed any error in allowing appeal and dismissing complaint on account of delayed information to Insurance company.

8. Consequently, revision petition is dismissed at admission stage on the count of delay as well as on merits with no order as to costs.

..……………Sd/-………………

REVISION PETITION NO. 186 OF 2013 (From the order dated 01.10.2012 in Appeal No.260 of 2012 of the State Consumer Disputes Redressal Commission, UT, Chandigarh)

HDFC ERGO General Insurance Co. Ltd. Zonal Office N-22, 2nd Floor, Sector 18 NOIDA – 201301 (U.P.).

… Petitioner/OP

Versus

Rachhpal Singh S/o Sh. Gurcharan Singh House No.1156/1, Sector-44B, Chandigarh … Respondent/Complainant

BEFORE

PRESIDING MEMBER

For the Petitioner : Mr. K.L. Nandwani, Advocate

O R D E R

This revision petition has been filed by the petitioner against the impugned order dated 1.10.2012 passed by the State Consumer Disputes Redressal Commission, UT,

Chandigarh (in short, ‘the State Commission’) in Appeal No. 260 of 2012 – HDFC

ERGO General Insurance Co. Ltd. & Anr. Vs. Rachhpal Singh by which while dismissing appeal, upheld order of District Forum allowing complaint.

2. Brief facts of the case are that complainant/respondent got

Health Suraksha Policy from OP/petitioner for a period of one year commencing from

3.9.2009 to 2.9.2010. On 8.11.2009, complainant was admitted in Fortis Hospital for treatment. Bye-pass surgery was done on 10.11.2009 and he was discharged on

17.11.2009 and he incurred expenses of Rs.2,29,492/- on the treatment. Complainant lodged claim with OP which was repudiated by OP on the ground that complainant was suffering from pre-existing disease. Complainant filed complaint alleging deficiency. OP contested complaint before the District Forum and submitted that as complainant was suffering from pre-existing disease, his operation and treatments were not covered under the policy. Learned District Forum after hearing both the parties allowed the complaint against which appeal filed by the petitioner was dismissed on the count of 75 days delay in filing appeal as well as on merits.

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

4. Learned Counsel for the petitioner submitted that learned State Commission has committed error in dismissing appeal on the ground of delay of 75 days in filing appeal and submitted that learned State Commission ought to have condoned delay in filing appeal. It was further submitted that learned State Commission committed error in dismissing appeal on merits also, hence, petition be admitted.

5. It is admitted fact that petitioner preferred appeal before the learned State

Commission after 75 days. Learned State Commission has dealt in length application for condonationof delay and has rightly disallowed application for condonation of delay after citing many judgments of Hon’ble Supreme Court and other High

Courts. Impugned order reveals that appeal was prepared and sent to petitioner on

2.5.2012, but appeal was filed on 30.7.2012 and apparently there was no plausible explanation regarding condonation of delay from 2.5.2012 to 30.7.2012. 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. Learned State Commission also relied on 2012 (2) CPC 3 (SC) – Ansul Aggarwal Vs. New Okhla Industrial Development

Authority in which it was 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”.

Thus, it becomes clear that unless there is reasonable explanation, delay cannot be condoned. Learned Counsel for the petitioner placed reliance on 2009 (II) SCALE – State of J&K & Ors. Vs. Mohmad Mazbool Sofi & Ors. in which the matter was remanded back by Hon’ble Apex Court to the High Court for fresh consideration as High Court refused to condone delay of 97 days. This citation does not help to the petitioner in the light of latest judgments of Apex Court and particularly when no reasonable explanation has been given forcondonation of delay of 75 days.

6. Learned State Commission also dismissed appeal on merits and I do not find any infirmity in the order passed by the learned State Commission. Petitioner was duty bound to supply the terms and conditions of the policy to the complainant immediately after receipt of premium and as petitioner failed to supply terms and conditions of the policy to the complainant immediately, claim could not have been repudiated by petitioner/OP on the basis of terms and conditions of policy. I do not find any illegality or material irregularity or jurisdictional error in the matter and revision petition is liable to be dismissed at admission stage.

7. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to cost. ..………………Sd/-……………

REVISION PETITION NO. 507 OF 2012 (From the order dated 28.07.2011 in Appeal No.555/09 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)

M/s. Karuna Sagar Tractor Sales & Service Residing at Near Chikhdra Chokdi, At & PO Anand, Distt. Anand, Gujarat State

… Petitioner/OP-1

Versus

Jagrut Nagrik’s Managing Trusty P.V. Murjani, 3rd Fl., Amin Building, Genigate, Vadodara, Gujarat.

… Respondent-1/Complinant-1

2. Legal Heirs of Laljibhai Punjabhai Parmar: Vasantbhai alias Vishnubhai parmar Vasantbhai Laljibhai Parmar Residing at 3rd Pole, Vadtal, Distt. Nadiad, Gujarat

… Res.-2/Complainant-2

3. MRF Ltd. Opp. Fertilizer, Near Main gate, Chhani, Vadodara, Gujarat.

… Respondent.-3/Complainant-3

4. Senior Sales Executive MRF Ltd. Gr. Fl., “Mahakant” Near V.S. Hospital Ellis bridge, Ahmedabad, Gujarat.

5. Punjab Tractor Ltd. Sahibzada Ajitsinh Nagar Phase IV, Distt. Ropar Near Chandigarh Punjab.

BEFORE

PRESIDING MEMBER

For the Petitioner : Mrs. Girija Wadhwa, Advocate PRONOUNCED ON 31 st January, 2013

This revision petition has been filed by the petitioner against the impugned order dated 28.7.2011 passed by the Gujarat State Consumer

Disputes Redressal Commission, Ahmedabad (in short, ‘the State Commission’) in Appeal No. 555/09 by which while allowing appeal partly, filed by the petitioner, order of

District Forum was modified and amount awarded by District Forum was reduced.

2. Complainants/Respondent Nos. 1 & 2 filed complaint against OP/petitioner and

Respondent Nos. 3,4 & 5 and District Forum allowed complaint and ordered that

Complainant No. 2 is entitled to receive Rs.1,07,975/- from OP Nos. 1 & 2 along with interest @ 9% p.a. and Rs.10,000/- for mental agony and Rs.3,000/- as cost. This order was challenged by appellants/petitioner and Respondent No. 5 before the State

Commission and learned State Commission vide impugned order dated 28.7.2011 partly allowed appeal and modified order passed by District forum and held that OPs are liable to pay Rs.90,000/- with 9% interest from the date of impugned order till realization against which this revision petition has been filed.

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

4. Revision Petition has been filed with delay. Petitioner moved application for condonation of delay and submitted that petitioner is sick since more than 5 months because of heart trouble and operated, hence, delay of 5 months and 25 days in filing appeal may be condoned. As per office report, there is delay of 91 days in filing this revision petition. Petitioner has not placed any document pertaining to his heart operation. Petitioner has annexed only prescription dated 27.9.2011 and further check up on 2.11.2011, 1.12.2011, 2.1.2012, 12.1.2012 and 17.1.2012 on which dates his blood pressure was checked and some medicines were prescribed. He has also annexed ECG taken on 27.9.2011. Thus, it becomes clear that petitioner was checked by Doctor from 2.1.2012 to 17.1.2012 after a gap of one month every time. Merely because petitioner was checked up by physician after a month every time, it cannot be inferred that petitioner was not in a position to file revision petition. No reasonable explanation has been given for condonation of delay of 91 days.

5. 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. Learned State Commission also relied on 2012 (2) CPC 3 (SC) – Ansul Aggarwal Vs.

New Okhla Industrial Development Authority in which it was 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”.

Thus, it becomes clear that unless there is reasonable explanation, delay cannot be condoned. Learned Counsel for the petitioner placed reliance on 2009 (II) SCALE – State of J&K & Ors. Vs. Mohmad Mazbool Sofi & Ors. in which the matter was remanded back by Hon’ble Apex Court to the High Court for fresh consideration as High Court refused to condone delay of 97 days. This citation does not help to the petitioner in the light of latest judgments of Apex Court and particularly when no reasonable explanation has been given forcondonation of delay of 75 days.

6. As there is no satisfactory explanation for condonation of 91 days delay in filing revision petition, and order of District Forum allowing complaint has been upheld by learned State Commission except modifying amount to some extent, revision petition is liable to be dismissed on the count of delay alone.

7. Consequently, revision petition filed by petitioner is dismissed on the count of delay at admission stage with no order as to costs.

..………………Sd/-……………

PRESIDING MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 4473 OF 2012 (From the order dated 4.10.2010 in Appeal No.540/08 of the State Consumer Disputes Redressal Commission, Delhi)

Smt. Sapna Jain W/o Sh. Naveen Jain M/s. Paras Holidays Pvt. Ltd. 321-322, Gold Plaza Building Gurudwara Road, Karol Bagh, New Delhi – 110005

… Petitioner/OP

Versus

Jai Pal Singh S/o Sh. Ganga R/o House No.29, Sector 14, Sonepat, Tehsil and Distt. Sonipat, Through its Power of Attorney Sh. Pawan Kumar S/o Sh. Rattan Lal, R/o House No.1134, Sector-14, Sonepat, Haryana.

BEFORE

PRESIDING MEMBER

For the Petitioner : Mr. Baldev Singh, Advocate

PRONOUNCED ON 31 st January, 2013

O R D E R

This revision petition has been filed by the petitioner against the impugned orders dated 4.10.2010 and 20.3.2012 passed by the State Consumer Disputes Redressal

Commission, Delhi (in short, ‘the State Commission’) in Appeal No. 540 of 2008 – Smt.

Sapna Jain vs. Sanjay Goyal & Ors. by which appeal filed by the petitioner was dismissed in default and restoration application was also dismissed.

2. Petitioner/appellant filed appeal before the State Commission challenging order of

District Forum. Petitioner’s appeal was dismissed in default in presence of Counsel for the respondent by learned State Commission vide impugned order dated

4.10.2010. Later on, petitioner filed restoration application and that too was also dismissed by impugned order dated 20.3.2012 and both these orders have been challenged by the petitioner in this revision petition.

3. Petitioner also moved application for condonation of delay and submitted that order dated 20.3.2012 was received by petitioner on 15.4.2012 and he approached Shri

Ravinder Singh Chaudhary, Advocate who apprised him that revision can be filed within

180 days and he assured to file revision petition and obtained petitioner’s signatures on papers and affidavits. It was further alleged that petitioner got notice of execution on

6.11.2012 and then rushed to the office of her Advocate Shri R.S. Chaudhary and from there she came to know that no revision was filed. Then petitioner approached her previous Counsel and then this revision petition was filed on 26.11.2012, hence, delay of 125 days in filing revision petition may be condoned.

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

5. As far order dated 26.11.2012 is concerned, this order is in accordance with law as the State Commission had no power of review its earlier order of dismissal in default. Learned Counsel for the petitioner could not show any law on account of which order dated 20.3.2012 can be assailed. As this order is in accordance with law, the revision petition is liable to be dismissed.

6. Order dismissing appeal in default was passed on 4.10.2010 and this order has been challenged by this revision petition on 26.11.2012, thus there is delay of 687 days in filing revision petition. Learned Counsel for the petitioner submitted that time taken in filing restoration application and its disposal has to be condoned as at the time of filing restoration application, State Commission used to restore appeals dismissed in default and later on as per Apex Court’s judgment, State Commission had no power to review its order, hence, restoration application was rejected.

7. For the sake of argument if this period is condoned even then there is delay of

125 days in filing this revision petition from the date of dismissal of restoration application. Petitioner has submitted in his application that he received copy of order on

15.4.2012 and approached Shri R.S. Chaudhary, Advocate who apprised him that period of limitation for filing revision petition is 180 days and he would be filing revision petition. It appears that petitioner was very careless and never enquired from her

Counsel whether the revision petition has been filed or not, and only after receiving notice of execution on 6.11.2012, she enquired from her Counsel and came to know that revision petition has not been filed. On the very day, Mr. R.S. Chaudhary,

Advocate returned papers to the petitioner. When petitioner contacted her previous

Counsel on the same day even then revision petition was filed after 20 days and no reasonable explanation has been given for condonation of 20 days delay. Learned

Counsel for the petitioner also could not show whether any action was taken against

Shri R.S. Chaudhary, Advocate for not filing revision petition in time and in such circumstances, merely on the basis of affidavit of petitioner it cannot be presumed that she approached Shri R.S. Chaudhary, Advocate for filing revision petition who did not file revision petition in time. As the revision petition has been filed after a period of 125 days from the date of restoration order dated 20.3.2012 and after 687 days from order dated 4.10.2010 dismissing appeal in default and there is no reasonable explanation for condonation of delay, the revision petition is liable to be dismissed on the count of delay alone at admission stage.

..……………Sd/-………………

REVISION PETITION NO. 3989 OF 2011 (From the order dated 28.08.2011 in Appeal No.2010/827 of the State Consumer Disputes Redressal Commission, Delhi)

G.M. Satyapriya E-209, Bathia Apartment 43, IP Extension, Patparganj, Delhi – 110092

… Petitioner/Complainant

Versus Bank of India Through The Branch Manager, Patparganj, Delhi – 110092

… Respondent/OP

BEFORE

For the Petitioner : Mr. G.M.V. Ramana, Advocate

For the Respondent : Mr. Shweta Kapoor, Advocate

PRONOUNCED ON 31 st January, 2013

O R D E R

Delhi (in short, ‘the State Commission’) in Appeal No. 2010/827 – G.M. Satyapriya vs.

Bank of India by which while dismissing appeal and confirming order of District Forum imposed Rs.5,000/- as cost.

2. Brief facts of the case are that complainant/petitioner withdrew Rs.41,000/- from

OP/Respondent Bank on 24.1.2009 from her saving bank account. The amount withdrawn included 82 currency notes of Rs.500/- denomination. Soon after withdrawal,

Rs.17,000/- were robbed by three miscreants at the counter of the bank from the complainant and she reported incident to Hall In charge and the Branch Manager and also lodged FIR. As she was robbed in bank premises, it was alleged that bank was responsible for its negligence and filed complaint. OP/respondent contested claim and submitted that some third person in the Hall pointed out to the complainant that one of the notes in her hand was fake and in that process first took the note from the complainant’s hand and then handed back the currency notes to her and left bank hall.

Complainant did not raise any alarm about this incident and she was also shown CCTV recording from which it appeared that the main miscreant was accompanied by two persons. Complainant identified the miscreant who had taken currency notes from her. OP further submitted that there were 8 CCTV cameras installed in the banking hall covering all important functions and there was also a security guard present on the main gate at the time of occurrence and denied negligence on its part and prayed for dismissal of the complaint. Learned District Forum after hearing both the parties dismissed complaint on the ground that police investigation was still pending and matter requires evidence as witnesses have to be examined and complainant was advised to approach appropriate Court of law. Against this order, appeal filed by the complainant was dismissed by impugned order, hence, revision petition was filed.

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

4. It is admitted fact that complainant received money from the bank counter and during the curse of counting Rs.17,000/- were robbed from her by miscreants. CCTV cameras were also in working condition in the hall from where money was snatched and security guard was also on the gate. In such circumstances, no negligence can be attributed on the part of OP/respondent. Learned State Commission while dealing this aspect held as under: “ 10. From the side of the Bank it has been averred in their

affidavit that there are CCTV camera fixed in the Branch of the

Bank at appropriate places and are functional. It has also to be

noticed that during the course of police investigation in the replay

of CCTV camera the picture portrayed the person who took the

notes from the complainant was available and the complainant

identified him and his accomplices. That will show that there was

proper affixation of CCTV cameras in the bank and there was no negligence in respect of this matter on the part of the Bank. There

was also security guard available at the door but the security

guard did not come into picture because the lady did not raise an

uproar and did not shout. It appears that it was only after the

tricksters had left the bank that the lady awoke to the situation.

The lady is herself responsible for the loss because she handed

over the notes to an unknown person and that she has therefore

been herself negligence and is responsible for the

consequences”.

Thus, it becomes clear that there was neither any deficiency nor any negligence on the part of respondent and learned State Commission has not committed any error in dismissing appeal, though, on other counts.

5. Learned Counsel for the petitioner has placed reliance on (2004) 6 SCC 113 – Sumatidevi M. Dhanwatay Vs. Union of India in which compensation awarded by State Commission was upheld by Hon’ble Apex Court as complainant was travelling in 1st class air-conditioned berth and a violent crowd entered the compartment, broke the doors, windows, etc., and assaulted the complainant and other persons and took away ornaments and other valuables of the complainant. This judgment does not help to the petitioner in the case in hand because in aforesaid case, complainant was travelling in air-conditioned coach after purchasing ticket and it was obligatory on the part of railway authorities to provide safety to the passengers till destination, whereas in the case in hand it was not obligatory on the part of bank authorities to provide extra-ordinary safety to bank customers as bank authorities had already installed 8 CCTV cameras in the hall and had security guard on the gate. Learned Counsel for the petitioner also placed reliance on the judgment of this Commission in R.P. No.1690 of 2000 – Union of India (UOI) and Ors. Vs. Sanjiv Dilsukhrai Dave and Anr. in which baggage was stolen of the passenger from sleeper coach and awarded compensation was upheld by the National Commission. This judgment also does not help to the petitioner in the aforesaid case. Negligence on the part of railway administration was proved and negligence was observed as under:

“ 10. As regards the issue of negligence of the railway administration, a list of duties prescribed by railway administration "TTE for Sleeper Coaches" is brought on record. Of these, duties prescribed at Sl. No. 4, 14, 16 and 17 are very relevant. These read as follows:

"4. He shall check the tickets of the passengers in the coach, guide them to their berth/seats and prevent unauthorised persons from the coach. He shall in particular ensure that persons holding platform tickets, who came to see off or receive passengers do not enter the coach.

14. He shall ensure that the doors of the coach are kept latched when the train is on the move and open them up for passengers as and when required.

16. He shall ensure that the end doors of vestibuled trains are kept locked between 22.00 and 6.00 hrs. to prevent outsiders entering the coach.

17. He shall remain vigilant particularly during night time and ensure that intruders, beggars, hawkers and unauthorised persons do not enter the coach".

11. The above duties clearly show that there is a responsibility cast on the TTE attached to the second class sleeper coach to be very vigilant about anyone other than the reserved ticket holders entering the compartment, to such an extent that he is required to prevent even a relation of the passenger holding a platform ticket who comes to see off a passenger from entering a coach. The TTE is particularly required to take special care in the night as brought out in Sl. No. 16 and 17. Sl. No. 14 clearly casts a responsibility on him to ensure that the doors of the coach are kept latched when the train is on the move. In the case before us, it is the contention of the Respondent that the intruder came when the train was on the move in the night and this has not been seriously challenged. Admittedly, the TTE has failed in the performance of his duties which lead to the incident of theft. The arguments of the Petitioner that the rules nowhere provide that there should be a TTE for each sleeper coach cannot be accepted because, then, the impressive list of duties which would remain only on the paper, since they cannot be effectively enforced”.

6. In the case in hand there appears to be neither any negligence nor any deficiency on the part of respondent and in such circumstances, learned State Commission has not committed any error in affirming judgment of District Forum dismissing complaint. Apparently, there is neither any jurisdictional error nor any illegality or material irregularity in the impugned order and in such circumstances, revision petition is liable to be dismissed. 7. Learned State Commission while dismissing appeal and affirming order of District Forum imposed Rs.5,000/- as cost to be payable to respondent bank. Learned State Commission did not agree with the finding of District Forum and dismissed appeal on other counts. In such circumstances, it was not warranted to impose cost on the petitioner and in such circumstances, order imposing cost is to be set aside.

8. Consequently, revision petition is partly allowed and order imposing cost of Rs.5,000/- by impugned order is set aside and rest of the impugned order is affirmed with no order as costs ..………………Sd/-……………

(Against the order dated 11.08.2009 in RBT No. 15/2008 in Complaint No. 9 of 1998 of

the State Consumer Disputes Redressal Commission, U.T. Chandigarh)

Shri Anand Parkash, Husband of Smt. Usha Rani (Deceased), Resident of House No. 138, Block 18, Mohalla Dogran, Hisar … Appellant

Versus

1. Dr. Satya Sawant, Sawant Clinic, 6-7, Churamani Shopping Complex, Hisar 2. Churamani Vishnu Devi Maternity Hospital, Through Dr. Satya Sawant, Medical Superintendent, Hisar

… Respondents

BEFORE:

For Appellant : Ms. Sangeeta Sondhi, Advocate For Respondents : Mr. Prasenjit Keswani, Advocate for R1

Mr. Sanchar Anand, Advocate for R-2

1. This First Appeal has been filed by Anand Parkash, Appellant herein and original complainant before the State Consumer Disputes Redressal Commission, U.T. Chandigarh (hereinafter referred to as the State Commission) being aggrieved by the order of that Commission which had dismissed his complaint of medical negligence against Dr. Satya Sawant and Anr., Respondents No. 1 and 2 herein. 2. In his complaint before the State Commission, Appellant had stated that his late wife Smt. Usha Rani (hereinafter referred to as the Patient) on conceiving her second child in March, 1996 was under the medical supervision and care of Respondent No.1, who apart from working in Respondent No.2-Hospital was also doing private practice. On 22.12.1996, the patient approached Respondent No.1 with mild labour pains and was admitted on advice of Respondent No.1 in Respondent No.2-Hospital, where she was put on a drip to induce labour for a normal delivery. Respondent No.1 was fully aware that patient’s first child had been delivered through cesarean section and that she was also suffering from anaemia with a very low haemoglobin count but no arrangements for blood transfusion in anticipation of any emergency was made. She was kept in the labour room, where after 40 hours of labour she delivered a male child. The patient developed complications immediately after delivery and blood transfusion became necessary. Appellant and his family donated seven units of blood on the spot, which was infused without any cross checking. Soon after, the patient went into an irreversible shock and was declared dead at 5.40 P.M. Shocked and aggrieved by her untimely and avoidable death, Appellant lodged an FIR at the Police Station and also a complaint with the Commissioner, Hisar Division, after which an enquiry was conducted by doctors from the Medical College & Hospital, Rohtak but nothing came out of it because of Respondent No.1’s political clout. Appellant, therefore, filed a complaint before the State Commission alleging medical negligence and deficiency in service against Respondents, which led to the tragic and untimely death of his wife, who was gainfully employed. It was requested that the Respondents be jointly and severally directed to pay compensation amounting to Rs.10,65,512/-, which included loss for future earnings at Rs.6500/- per month, medical and other expenses as also litigation costs. 3. Respondents on being served filed written submissions, in which they denied that there was any medical negligence or deficiency in service on their part. Respondent No.1 while admitting that the basic cause leading to the death of the patient was Post Partum Haemorrhage (PPH) contended that following Patient’s death independent enquiries were conducted by a Medical Board of PGIMER, Chandigarh, which confirmed that there was no negligence or deficiency in service in the medical treatment and care to the Patient. Further, an enquiry conducted by another Board of experts from Medical College & Hospital, Rohtak also concluded on the basis of evidence before it, including the medical records, that there was no medical negligence in this case. It was specifically concluded that at the time of her delivery, the Patient was not anaemic as contended by the Appellant and it was only after careful assessment of her condition that she was cleared for a normal delivery. The fact that she had previously undergone a cesarean section by itself was not contraindicated in this case since the first cesarean section was necessitated because of pre-oclasptia and not because of any cephalo pelvic disproportion. The process of her labour was carefully monitored and the labour period in fact was less than 24 hours during which period all care and precautions were taken. The Appellant was also asked to arrange blood well in advance. After the PPH occurred, standard emergency treatment was given, including seven units of blood, but unfortunately patient went into irreversible shock and she could not be saved. It was also contended that the police had investigated the matter and found no medical negligence on the part of Respondents. Respondent No.1 also stated that she had not taken any monetary consideration from the Patient. She treated her not in her capacity as a private practitioner but in the Respondent-Hospital which is run as a Trust. Under the circumstances, the case is not legally maintainable under the Consumer Protection Act, 1986.

4. The Haryana State Consumer Disputes Redressal Commission, after hearing the parties and on the basis of evidence produced before it, including the reports of the Medical Boards of PGIMER, Chandigarh and Medical College & Hospital, Rohtak, dismissed the complaint, following which the Appellant filed an appeal before the National Commission, who vide its order dated 28.04.2008 remanded the complaint to the U.T. Chandigarh State Consumer Disputes Redressal Commission on the grounds that despite a specific request by the Appellant seeking permission of the State Commission to appoint any of the two doctors, namely, Dr. Vijay Luxmi Lal or Dr. G.I. Dhall, to give their expert opinion, this application was not disposed of by the State Commission either by accepting or rejecting it and it, thus, remained pending. The National Commission opined that in the interest of justice, the matter be reconsidered by the State Commission in detail and the Appellant may be given an opportunity to lead the evidence of any of the two doctors as sought by him in his application dated 28.01.1999 before the State Commission. On remand, the State Commission permitted Appellant’s request to replace the earlier two experts named by her who were not in a position to give expert evidence by either of two other experts, namely, Dr. Vijay Kumar Kadam and Dr. M.C. Gupta. Consequently, Dr. M.C. Gupta appeared before the State Commission and Respondents were given an opportunity to cross examine him. The second doctor (Dr. Vijay Kumar Kadam), however, sent his views in writing and did not appear in person. The State Commission after hearing the parties and considering the entire evidence, including the evidence filed before the Haryana State Consumer Disputes Redressal Commission, concluded that there was no medical negligence in the treatment of the Patient. The relevant observations of the State Commission are reproduced:

“25. In view of the above findings by the two Medical Boards constituted by the specialists in the field who had gone into the record of the patient as well as her treatment and who had given a clean chit to the doctors attending upon the deceased, which the complainant has not been able to rebut with any cogent medical evidence/literature, we are of the opinion that in this case, no negligence could be attributed to the doctor for waiting for normal delivery to take place or in the management of PPH. In this context, it is also relevant to mention that Dr. M.C. Gupta, who himself is not a specialist in Gynaecology, has in his evidence not been able to pinpoint or indicate as to where the Medical Boards had gone wrong or what was wrong with the conclusion they had drawn. Consequent to the order of Hon’ble National Commission, full opportunity had been afforded to the complainant to assail the opinion of the Boards but as stated earlier, in our opinion, the complainant has not been successful in doing the same. It is unfortunate that the wife of the complainant died after her delivery but it is on record that the death was due to uncontrollable Post Partum Haemorrage, which the doctors tried their best to manage but were unable to do so and failed despite their best efforts.

26. In the circumstances narrated above, we are of the clear opinion that no medical negligence can be attributed to the treating doctors or the hospital and consequently, the complaint is dismissed. However, under the peculiar circumstances of the case, the parties are left to bear their own costs of litigation.”

5. Learned counsel for both parties made detailed oral submissions. 6. Learned counsel for the Appellant contended that the State Commission erred in concluding that there was no medical negligence in the treatment of the Patient despite clear cut evidence that due care was not taken in her treatment and by disregarding the evidence of two medical experts, Dr. M.C. Gupta as also Dr. Vijay Kumar Kadam. It was specifically contended that the Patient being anaemic with a Haemoglobin count of 7.8 gms. and having undergone an earliercaesarian section was made to undergo prolonged and induced labor, which was responsible for both the PPH and her eventual death. The situation was further aggravated by the fact that there was also a doubt whether the blood that was transfused was cross-checked with the Patient’s blood group since no arrangement was made for blood by Respondents in anticipation of any emergency. It was specifically contended, as observed by Dr. M.C. Gupta, that the Patient had six high risk factors, apart from anaemia and an earlier caesarian section (which makes the wall of the uterus weak) and these and other factors including obesity, small stature as also hypertension makes prolonged and induced labour very risky and is clearly contraindicated. It is safer to perform a caesarian section in such cases. Counsel for the Appellant stated that the two Medical Boards of PGIMER, Chandigarh and Medical College & Hospital, Rohtak gave biased findings of there being no medical negligence and this had also been reported in the local press, which was filed in evidence before the State Commission. It was contended that the State Commission erred in not relying on the medical evidence of Dr. M.C. Gupta merely because he was not a Gynaecologist whereas he had a Post Graduate Degree in Medicine as also the statement/affidavit of Dr. Vijay Kumar Kadam, a well-known Gynaecologist of Delhi, who had opined that there was medical mismanagement of the case.

7. Counsel for the Respondents on the other hand challenged the above allegations and stated that the contention of the Patient having high risk factors was not factually correct. It was specifically pointed out that the Haemoglobin count which was 7.8 gms. during the Patient’s earlier visits in July and September, 1996 increased to over 10 gms. at the time of admission (as recorded in her bed-chart) because she had been prescribed iron tablets and other drugs to increase the Haemoglobin count. Further, her blood pressure during these visits as also at the time of her admission and in labour room was within normal limits. It was also stated that the actual period of her labour was less than 24 hours and not 40 hours. The enquiries conducted by two highly reputed medical institutions into this case also clearly confirmed that there was no medical negligence or deficiency in service in the treatment of the Patient. Appellant’s contention that all the enquiry reports were biased is based on pure conjecture and is prima facie unreasonable.

8. We have considered the submissions made by both learned Counsel as also the evidence on record, including the medical reports and opinions of the Medical Boards and Medical Experts. Patient’s admission in Respondent’s nursing home and her death from PPH following a normal delivery are admitted facts. It is further not in dispute that following her death and to ascertain if it was because of any negligence or deficiency in her treatment, as alleged by her husband, detailed enquiries were conducted, including by two Medical Boards as also by a Chief Medical Officer. All these enquiries concluded that there was no medical negligence or deficiency in service in the case and the PPH was an unfortunate and unforeseen incident, for which also emergency treatment was given. This was sought to be challenged by the Appellant on the ground that Patient being high risk case should not have been permitted to undergo prolonged labour and an immediate cesarean section would have saved her life. From the evidence on record, we are unable to conclude that the Patient was a high risk case. Admittedly her Haemoglobin count was low, three months prior to her delivery as per the medical records but at the time of her admission (as per the bed chart) because of medication, including iron supplementation it had increased to 10 gms., which is not indicative of anaemia. There has been no evidence to controvert that there was any error in the bed chart prepared at the time of her admission. Further, Appellant’s contention that the Patient had hypertension is also not borne out by the medical records, which clearly indicated that it was very much within normal limits. It is also a fact that though the first delivery was conducted by cesarean section, this was undertaken not because of any cephalo pelvic disproportion but because of her temporary medical condition (pre-oclasptia) at that time, which necessitated a cesarean section. It is also on record that the progression of the Patient’s labour and delivery was carefully monitored and even when the PPH occurred standard emergency treatment was given, including blood transfusion. These were clear findings of the Medical Boards consisting of highly eminent doctors from PGIMER, Chandigarh, a premier referral institution of excellence, and also from the Medical College & Hospital, Rohtak. Appellant’s contention that these reports were biased appears to be both unreasonable and not acceptable since there can be no plausible reason for the medical boards of PGIMER, Chandigarh and Medical College & Hospital, Rohtak to be biased in this case. Also no concrete evidence has been produced by the Appellant in support of these contentions. The Appellant was given a second opportunity to produce evidence of medical expert in support of his contention alleging medical negligence. We agree with the State Commission that the evidence of the medical expert Dr. M.C. Gupta, who had neither examined the Patient nor was a Gynaecologist, has little evidentiary value in this case. In fact, this witness had admitted during his cross-examination that his evidence was based on advice obtained by him from a Gynaecologist. Further, neither he nor other medical expert Dr. Vijay Kumar Kadam, who had filed his written evidence, have been able to point out any deficiency, shortcoming or bias in the reports of the two Medical Boards. Dr. Gupta has made some vague allegations that the report does not mention the date when it was signed by experts and that it does not indicate what evidence they had actually examined. These are trivial observations since they do not in any way contradict the actual findings of the two Medical Boards.

9. Keeping in view these facts, we are unable to conclude that the Appellant, on whom there was onus to do so, has been able to prove that there was any medical negligence in the treatment of his late wife by the Respondents. On the contrary, keeping in view the findings of the Medical Boards from two major institutions PGIMER, Chandigarh and Medical College & Hospital, Rohtak as also the documentary evidence pertaining to the medical records of the Patient, it is clear that there was no negligence or deficiency in the medical treatment and care of the Patient. We, therefore, uphold the order of the State Commission in toto. The first appeal having no merit is hereby dismissed. No costs.

(ASHOK BHAN, J.)

PRESIDENT

(VINEETA RAI)

MEMBER SB/Mukesh NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(Against the order dated 15.02.2007 in O.P. No.9/1993 of the Tamil Nadu State

Consumer Disputes Redressal Commission, Chennai)

Javeed S/o Ameer No. 7, C. Kaladipet Market Lane Tiruvottiyur Chennai-19 Tamil Nadu … Appellant

Versus

Manager/Officer-in-charge C.S.I. Rainy Hospital G.A. Road, Chennai-600021 TamilNadu

… Respondent

BEFORE:

For Appellant : Mr. CKR Lenin Sekar, Advocate

For Respondent : Mr. Parivesh Singh, Advocate

1. This first appeal has been filed by Javeed, Appellant herein and original complainant before the Tamil Nadu State Consumer Disputes Redressal Commission,

Chennai (hereinafter referred to as the State Commission) being aggrieved by the order of that Commission which had dismissed his complaint of medical negligence against

Manager/Officer-in-charge, C.S.I. Rainy Hospital, Respondent herein.

FACTS : 2. Appellant, who was around 6 years old at the time of filing the complaint before the State Commission, was admitted to Respondent hospital with complaint of temporary Inguinal Hernia (R) and after diagnostic tests, confirming that he was suffering from Inguinal Hernia (R), he was operated on 12.08.1989. However, instead of operating on the Right side, Appellant was operated for Left Inguinal Hernia and

Hernitomy. This mistake was noted by the main doctor of the hospital and after his discharge on 26.08.1989 he was advised to come back in September,

1989. Appellant’s father, therefore, got him back on 07.09.1989, when he was informed that an operation is required on the Right Inguinal Herniatomy. His father refused to get another surgery done and he was taken to Maharaja Hospital, Chennai, where after a medical check-up he was informed by Dr. A.P. Subramaniam that Respondent had made a mistake in conducting the first surgery on the Left Inguinal Hernia. Being aggrieved by the medical negligence on the part of Respondent, Appellant filed a complaint before the State Commission and requested that Respondent be directed to pay him Rs.1,50,000/- as compensation.

3. Respondent on being served denied these allegations and stated that Hernia in children are often bilateral, as is in the instant case. Since it is well established that surgery cannot be done on both sides at the same time, Appellant’s parents were informed that both sides would have to be operated through two separate surgeries, which they had agreed. At the operation theater, the doctor conducting the surgery noted that the left side scrotum was bulging more and, therefore, it was necessary to conduct an operation on the Left side first, about which the Appellant’s mother, who was waiting outside the operation theater, was duly informed. The surgery was successfully conducted and after the wound was sutured on 26.08.1989 Appellant was discharged and was asked to come back for the second surgery in September, 1989 during school vacations. In the meantime, Appellant was administered medicine and injection for the second surgery. However, when the Appellant was readmitted for repair of the Right side Herniatomy, his father for reasons best known to him got him discharged without waiting for the surgery. It was specifically denied that the Appellant’s parents were informed that surgery was required only on the Right side. Thus, there was no medical negligence on the part of the Respondent.

4. The State Commission after hearing the parties dismissed the complaint filed by the Appellant against the Respondent by stating as follows: “The fact remained that the mother of the complainant was aware of the operation of the left side hernia as she had given consent for herniatomy which meant operation of both sides as explained by RW-2. Further, right through the treatment and surgery of the complainant, only the mother of the complainant was present and only on 08.09.1989, the father had as suggested in the cross-examination, had compulsorily asked for the discharge of the complainant. This was with an intention to extort money from the opposite party. He had projected a false stand as if he was present throughout from the beginning till the complainant was discharged. RW-2 had also in her evidence clearly stated that in children, the swelling would appear and dis-appear and that was the reason why while operating a child for hernia, the consent was got only for herniatomy which related to both sides of the scrotum. The opposite party had taken due care in the discharge of their duties and there was no negligence whatsoever in operating the complainant. As a competent surgeon, RW-2 had taken the necessary care and caution so that the child’s life could be saved. The complainant’s father had also published the case that he had consulted one Dr.A.P. Subramaniam. But, no evidence was produced to show that any other doctor had been consulted. There was also no proof produced by the complainant with regard to the expenses incurred.”

The State Commission also cited medical literature entitled “The Surgical Clinics of

North America” [Vol. 65/Number 5, October 1985], confirming that Hernias in children are often bilateral but both may not always be diagnosed during a medical examination and further that Inguinal Herniatomy also has a silent side which may not always be apparent on sight.

5. Being aggrieved by the dismissal of his complaint Appellant has filed the present first appeal.

6. Learned Counsel for both parties made oral submissions.

7. Learned Counsel for the Appellant stated that the State Commission erred in not taking cognizance of the medical records pertaining to the Appellant’s case history in

Respondent hospital, which was in evidence before it. As per these records, a clear diagnosis of obstructed Inguinal Herniatomy on the Right side was made which was also recorded. This diagnosis was again confirmed in the detailed case history recorded on 13.08.1989. On 25.08.1989 when the Appellant was admitted for surgery, it was again clearly noted that he was “Posted for (R) Herniatomy on

25.08.1989”. However, it was only on 26.08.1989 i.e. just prior to the surgery that it was noted in the case sheet that Appellant had Left Inguinal Herniatomy, which required to be operated. Counsel for the Appellant stated that Respondent’s contention that the

Herniatomy was bilateral and that before the surgery the Appellant’s mother was informed that the surgery would be first done on the Left side is not factually correct because nowhere does the diagnosis in the case history indicate that the Appellant was suffering from bilateral Inguinal Herniatomy. By operating on the Left side of the

Herniatomy, when it was not required Respondent was clearly guilty of medical negligence, for which the compensation sought of Rs.1,50,000/- is fully justified.

8. Learned Counsel for Respondent on the other hand stated that the State

Commission had rightly relied upon the medical literature as also the evidence on record to conclude that there was no medical negligence by stating that it was clear from the record that the Appellant was suffering from bilateral Herniatomy, i.e. both on the Right and Left sides, which is a common phenomenon in children, and in the operation theater when a well-qualified pediatric doctor observed that the bulging was more prominent on the Left side, after informing the mother of the Appellant, she rightly conducted the surgery first on the Left side and advised that the Appellant be brought for the second surgery on the Right side in September, 1989. Counsel for Respondent stated that this is evident from the consent letter signed by Appellant’s parents as also the case history recorded on 07.09.1989.

9. We have carefully considered the submissions made by learned counsel for both parties and have gone through the evidence on record, including the documentary evidence from the Respondent hospital pertaining to the Appellant’s case. We note from the recorded case history of the Appellant that right from the time when he was brought to the hospital i.e. on 12.08.1989, he was subjected to a number of diagnostic and clinical tests and on the basis of these tests, a clear cut diagnosis of obstructed

Inguinal Herniatomy (R) was made. These findings were confirmed on 13.08.1989 following a physical examination when it was specifically noted that the Appellant was a known case of Inguinal Herniatomy (R) and there was no other complaint. This diagnosis was confirmed at the time of his admission for the required surgery on

24.08.1989 and again on 25.08.1989, when it was stated that the Appellant was posted for (R) Herniatomy. It was only on 26.08.1989 at the time of the operation that for the first time it was stated that this was a case of Left Inguinal Herniatomy. We have also gone through the consent letter signed by the Appellant’s parents (since he was a minor) and it only states that the Appellant’s mother had given permission for operation of Herniatomy. No mention is made about bilateral Herniatomy. Respondent has not been able to produce any evidence that Appellant’s parents were informed that

Appellant was suffering with bilateral Herniatomy or that just prior to the surgery they were informed that the surgery would be conducted on the Left side and not on the

Right side. The letter dated 07.09.1989 only states that the Appellant is posted tentatively for Right Herniatomy, which does not help the Respondent and only proves the Appellant’s contention that a surgery on the wrong side was carried out on

26.08.1989. In view of the overwhelming documentary evidence from Respondent’s own hospital discussed in the foregoing paras, we are unable to agree with the finding of the State Commission that as per the evidence on record there was no medical negligence in the treatment of the Appellant. Clearly, Appellant was diagnosed for conducting a surgery on the Right Inguinal Herniatomy whereas without any evidence that it was the Left side which required the surgery, this surgery was conducted. Had the Respondent advised the Appellant’s parents during their visit to the hospital that the

Appellant had bilateral Herniatomy, then perhaps there would be some case for the

Respondent to explain how the surgery was conducted on the Left side. In the instant case, nowhere did the case history state that the Appellant had symptoms of bilateral

Herniatomy. On the contrary, as stated above, after clinical and diagnostic tests, it was recorded that the surgery was for Herniatomy on the Right side. In view of these facts, we are of the view that there is force in the Appellant’s contention that he was wrongly operated for Left Inguinal Herniatomy whereas the surgery should have been conducted on the Right side.

10. What constitutes medical negligence is now well settled through a number of judgments of this Commission as also of the Hon’ble Supreme Court of India. One of the principles to test medical negligence is whether a doctor exercised a reasonable degree of care and caution in treating a patient [Supreme Court Case Indian Medical Association v. V.P. Shantha (1995) 6 SCC 651 and this Commission case Tarun

Thakore v. Dr. Noshir M. Shroff (OP No. 215 of 2000)]. In the instant case, the facts clearly indicate that the required reasonable degree of care and caution was not taken by Respondent in the treatment of the Appellant and, thus, Respondent was guilty of medical negligence, for which the Appellant should justifiably be compensated.

11. In view of these facts and respectfully following the judgment of the Hon’ble

Supreme Court cited above, we are unable to uphold the order of the State Commission and set aside the same. Respondent being guilty of medical negligence is directed to pay the Appellant Rs.1,00,000/- as compensation for the unnecessary suffering and agony caused to him and to his family within two months from the date of this order.

12. The present appeal stands disposed of on the above terms. No costs.

Sd/- (VINEETA RAI)

MEMBER Mukesh