National Consumer Disputes Redressal Commission New Delhi s1

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

CONSUMER COMPLAINT NO. 307 OF 2012

M/s. Moran Plantation Pvt. Ltd. 108, Ansal Bhavan, K.G. Marg New Delhi – 110001 Through its Director, Mr.S.R.Yadav … Complainant

Versus

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

M/s. Parasramka Holdings Pvt. Ltd. 108, Ansal Bhavan, K.G. Marg New Delhi – 110001Through its Director, Mr.Narendra Kumar Jain … Complainant

Versus

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

M/s. Mili Marketing Pvt. Ltd. H-108, Connaught Circus New Delhi – 110001 Through its Director, Mr.Kamal Kumar Singh … Complainant

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

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

For the Complainants in all cases :Mr. Neeraj Jain, Senior Advocate With Mr. Rajiv Kapoor & Mr. Avinash Mishra, Advocates

For the Opposite Party in all cases : Mr. Gaurav Mitra, Advocate With Mr. Dhruv Kapur & Ms. Samreen, Advocates

PRONOUNCED ON 2 ND SEPTEMBER, 2013

O R D E R

JUSTICE J.M. MALIK

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

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

Pvt. Ltd., are stated to be sister concerns. M/s. Ambience Private Ltd., OP, is the same in all the three cases. In all the three cases, similar questions of facts and law are involved. Consequently, this judgment will decide all the three cases by a common judgment. We will take up the facts from Consumer Complaint No. 307 of 2012, detailed above.

2. The main question pivots around the controversy “Whether a Private Company, for the purposes of getting apartment, is a ‘Consumer’, under the given circumstances?”. In all the cases, the complainants applied for booking one apartment, each, measuring approximately, 7362.76 sq.ft. each. The complainant paid an amount of Rs.50,00,000/- each, to the OP, on 24.03.2007. The said amounts were acknowledged by OP vide its letter dated 10.04.2007. The OP sent the Brochure and Scheme for payment of installments. One of the clauses provided for the completion of the flat and the delivery thereof to the Buyer within a period of 3 years of the execution of Flat Buyer’s Agreement, which was supposed to have been executed between the complainant and OP soon after the aforesaid transaction had taken place.

3. On 08.02.2008, the OP informed the complainant that the construction was going on in full swing and the OP had completed excavation of the Basement and commenced the structure work, besides informing the complainant that its apartment

No.1602, had been shifted in Block ‘J’ on the same floor and mentioned that the area would be 7672.14 sq.ft instead of 7362.76 sq.ft., in each of the case. The complainant objected to the OP about increase of area and change of flat. The complainant also asked to execute the agreement, but it was put off, on one pretext or the other. The complainant was also informed that the apartment Buyer’s Agreement was executed only after receipt of 60% of the payment from the prospective Buyers. The complainant was surprised to receive such like letter. The Company had assured that the flats would be ready within a period of

36 months from the date of execution of the apartment Buyer’s agreement. In between, the relations between the parties were far from being cordial. OP had threatened to cancel the flat, a show-cause notice was also given. After much deliberations and discussions, the Apartment Buyer’s Agreement came to be signed formally, on

27.10.2009. There was delay in construction of the apartment.

4. On 23.12.2009, the OP raised a demand in the sum of Rs.24,00,000/- The work was still incomplete. In between, there was disputes of payment and further demands made by the OP. The complainant has been paying all the installments. The total price of the apartment was Rs.7,49,04,637.50, each, out of which the complainant has already paid a sum more than 70% of the total amount, through installments. The complainant has not yet got the possession of the premises. It is alleged that the OP is trying to extort more and more money from the complainant and is guilty of deficiency. Consequently, the present complaint was filed with the following prayer :-

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

thereby allegedly raising the illegal demand of interest; b) Pass an order setting aside the letter dated 23.10.2012 and directing the OP not to cancel the allotment of the complainant of flat No.H-102 as threatened vide letter dated 23.10.2012, which if done would be illegal and unwarranted in the facts and circumstances of the case;

c) Pass an order declaring the apportionment of the amount towards interest to be illegal and direct the OP to apportion all the payments toward sale consideration only;

d) Pass an order restraining the Opposite Party from taking any steps towards putting the property up for sale or creating any third-party interest as threatened by the Opposite Party and/or interfere with the rights of the complainant in the said property in any manner whatsoever;

e) Pass an order directing Opposite Party to pay interest @ 24% per annum on the amount paid to the Opposite Party so far and remaining with the Opposite Party after the date originally contemplated date of completion by October, 2010;

f) Pass an order directing the OP to compensate the complainant suitably for having put the complainant to lot of harassment and agony; g) Award cost and compensation in favour of the complainant;

h) May pass any other order in favour of the complainant as the Hon’ble Commission may deem it fit and proper in the facts and circumstances of the case”.

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

Commission, therefore, we are bound to decide this point, first of all, as per the law laid down by the Hon’ble Apex Court in the case “K.Sagar, Managing

Director, Kiran Chit Fund, Musheerabad Vs. A. Bal Reddy & Anr., (2008) 7 SCC

166”.

6. The learned counsel for the complainant vehemently argued that the complainant is a “consumer”. He has invited our attention towards the casedecided on 09.02.2009, by Hon’ble Supreme Court, in ‘Karnataka Power Transmission

Corporation & Anr. Vs. Ashok Iron Works Pvt. Ltd., [2009] 1 SCR 1109, in which it was held :- “ In view of the discussion already made by us above, while dealing with the contentions (ii) and (iii) in Civil Appeal No.1879/2003, it has to be held that the complaint by H.V.Balchandra Rao is covered under Section 2(1)(d)(i)(ii) of the Act, 1986”.

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

1992-93. The amendment of the CP Act, 1986, was made in the year, w.e.f.15.03.2003, that amendment was not considered in this case.

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

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

CPJ 27 (NC).

9. That judgment pertains to the insurance policy. It was held that taking of the insurance policy is for protection of the interest of the assured in the “articles” or “goods” and not for making any profit or trading for carrying on commercial purposes. Reference was made to New Delhi

Municipal Council Vs. Sohan Lal Sachdev (Dead) represented by Mrs.Hirinder

Sachdev, W/o late Sohan Lal Sachdev, II (2000) 2 SCC 494, wherein the Hon’ble

Apex considered the meaning of the words “commerce” and “commercial purpose” in the context of a question where use of premise for the purpose of guest house can be termed as domestic use, for the purpose of electricity charges by the New Delhi

Municipal Council (NDMC). Lastly, it was held in the authority :- “25. Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words ‘for any commercial purpose’ it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose. 26. In this view of the matter, a person who takes insurance policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only for indemnification and actual loss. It is not intended to generate profit”.

10. On the other hand, counsel for the OP has cited the following authorities. Laxmi

Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583 and three judgments of this Commission.

11. Instead of touching the heart of the problem, the learned counsel for the complainant has tried to skirt it. Counsel for the complainant has himself invited the attention of this Commission towards Memorandum of Association, the relevant extracts run as follows:-

III. The object for which the company is established are :- (A) Main objects to be pursued on incorporation :- (1) To carry on the business of planters, cultivators, manufacturers, buyers, sellers, importers and exporters of tea, tea seed, rubber, timber, rhea, sisal and other fibres and to render the same marketable and to buy, sell, trade and deal in any such produce either in its prepared, manufactured or raw state, and to manufacture and sell tea shooks, tea boxes and other articles used in connection with the cultivation manufacture packing or sale of tea and other produce, and to carry on any business connected with any of the above purposes or convenient to be carried on therewith. (B) Objects incidental or ancillary to the attainment of main objects : (1) To lend invest or deal with money either with or without interest or security, including in current or deposit account with any Bank or Banks, other person or persons and also in investment in shares, securities, bonds and debentures, upon such terms, conditions and manner as may, from time to time, be determined and to receive money on deposit or loan upon such terms and conditions as the Company may approve, provided that the Company shall not do any banking business as defined under the Banking Regulations Act, 1949”.

12. In the same judgment, 14 & 15 run as follows :-

“ 14. To acquire by purchase, lease, exchange, hire or otherwise develop or operate land, buildings and hereditaments of any tenure or description and any estate or interest therein and any right over to connected with land and building situated and develop or to turn the same to account as may seem expedient and in particular, by preparing buildings sites and by constructing, reconstructing, altering improving, decorating, furnishing and maintaining hotels rooms, inns, flats, houses, restaurants, markets, shops, workshops, mills, factories, warehouses, cold storages, wharves, godowns, offices safe deposit vaults, hostels, gardens, swimming pools, play- ground, buildings, works and conveniences of all kinds and by leasing, hiring or deposing of the same.

15. To manage land, building and other properties, whether belonging to the company or not, and to collect rents and income, and to supply tenants and occupiers and others refreshments, attendance, light, waiting rooms, reading rooms, meeting room, electric conveniences and other advantages”.

13. It must be borne in mind that the amendments made in Section 2(1)(d)(ii) on

15.03.2003 are of infinite importance. Those have changed the law altogether. It will be worthwhile to reproduce the definition of term “consumer “, as under :-

“ (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose”; “ Explanation:--- For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him andservices availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.

14. As per Explanation, vide amendment dated 15.03.2003, it is thus clear that it was never averred that these flats would be used exclusively for the purposes of earning their livelihood by means of self-employment. These words are conspicuously missing in the averments. 15. In a judgment of this Commission, in Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. – IV (2010) CPJ 299 (NC) has held that:- “ Housing – Purchase of space for commercial purpose - There was delay in possession. Complainant was a private limited company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed was not executed. Deficiency in service was alleged. It was held that even if private limited company was treated as ‘person’, purchase of space could not be for earning its livelihood. Purchase of ‘space’ was for commercial purpose”.

16. In M/s. Purusharath Builders Pvt. Ltd. Vs. M/s. Uppal Housing Ltd & Anr., decided by this Commission, comprising Justice J.M. Malik, Presiding Member and Sh.Vinay Kumar, Hon’ble Member, on 05.07.2012, held as under : “M/s. Purusharath Builders had purchased flats for the use of its officers. Learned counsel for the complainant argued that these flats will be used for the officers of the company. Learned counsel for the complainant could not deny that those officers would transact the commercial activity. A bare-look on this Resolution clearly goes to show that these flats would be meant for commercial purposes”.

17. Aggrieved by that order, SLP was filed by the complainant, before the Hon’ble Supreme Court. The Hon’ble Supreme Court in Civil Appeal Nos.8990- 8991 of 2012, vide order dated 07.01.2013, held :- “ We have heard learned counsel for the appellants, and perused the record. We do not see any cogent reason to entertain the appeals. The judgment impugned does not warrant any interference. The Civil Appeals are dismissed”.

18. It is clear that the object of the complainant is to re-sell the same and collect the rent. These flats were not taken for personal use of ‘consumer’. The Hon’ble Apex Court in Laxmi Engginering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, held :-

“ 11. …….. (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression ‘resale’ is clear enough. Controversy has, however, arisen with respect to meaning of the expression “commercial purpose”. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. ‘Commercial’ denotes “pertaining to commerce” (Chamber’s Twentieth Century Dictionary); it means “connected with, or engaged in commerce; mercantile; having profit as the main aim” (Collins English Dictionary) whereas the word ‘commerce’ means “financial transactions especially buying and selling of merchandise, on a large scale” (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit” he will not be a ‘consumer’ within the meaning of Section 2(1)(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion – the expression “large scale” is not a very precise expression – Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993.

19. In Satish Kumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India) Ltd., & Anr., Consumer Complaint No.296 of 2011, decided by this Commission, through the Bench headed by Justice R.C.Jain, on 03.07.2012, held :- “We have considered the contention raised by the learned counsel, but we do not quite agree with his plea as the complainant, in our view, does not qualify to be a ‘consumer’ as defined in Section 2(1)(d) of the Consumer Protection Act, 1986. We say so because as per his own admission the complainant is a resident of Delhi and he intends to purchase some permanent accommodation at Mumbai for his stay during his business visits to save on the expenditure incurred in hotels. For that purpose, he has booked not one but two flats. Clearly, the transaction is relatable to his business activity and, therefore, it will fall in the category of ‘commercial purpose’, which has been taken out of the purview of the Consumer Protection Act, 1986 vide Amendment Act No.62 of 2002, effective from 15th of March, 2003.

20. Again, this Commission, in the case of Jag Mohan Chhabra & Anr. Vs. DLF Universal Ltd. IV (2007) CPJ 199 (NC), (Original Petition No.91 of 2006, decided on 23.08.2007), held in a somewhat similar case, that the complaint was not maintainable under the Consumer Protection Act, 1986. This Commission held :- “2. We have heard Mr.K.P.S.Rao for the complainants on admission. Evidently, ground, first and second floors in Town Houses and apartment No.308B in Hamilton Court were purchased by the complainants for earning profits and transaction is thus relatable to commercial purpose and complainants not being the “consumers” within the meaning of Section 2(1)(d) of Consumer Protection Act, 1986, the complaint itself is not maintainable under the Act. Moreover, for adjudicating the claim made, voluminous evidence will be needed and the complaint, therefore, cannot be decided in summary procedure under the Act”. It had, therefore, disposed of the complaint, with liberty to the complainant to approach Civil Court.

21. The said order has since been upheld by the Hon’ble Supreme Court, as Civil Appeal Nos.6030-6031 of 2008, vide order dated 29.09.2008.

22. This Bench also, took the same view in another case reported in Singhal Finstock (P) Ltd, Through its Director I.C.Singhal, & Ors., Vs. Jaypee Infratech Ltd., Through its Director, in Consumer Complaint No.250 of 2012, decided on 01.10.2012, as under :-

“ The word “commercial” according to the Oxford Dictionary, means viewed as a matter of profit and loss. The word “purpose” means “object which is in view or for which is made” :“aim” “amend”. The word “Commercial purposes” would, therefore, cover an undertaking the object of which is to make a profit out of the undertakings. (Municipal Board, Unnao Vs. The State of U.P 1957 All. L.J. 479 at 498). According to Oxford dictionary, it means “Viewed as a matter of profit or loss”.

The word “commercial” is defined in the Concise Oxford Dictionary, New Edition of the 1990, at page 227, the word “Commercial” is defined as ‘having profit as a primary aim rather than artistic etc. value’ (Vide Dena Bank, Ahmednagar Vs. Prakash Birbhan Katariya, MANU/MH/0059/1994 : AIR 1994 Bom 343 at 345)”.

23. Thus, collection of rent is earing profits. In the facts of the present case, we maintain the same view, and while dismissing the complaints, as not maintainable, reserve the rights of the complainants to approach the appropriate Civil Court to seek their remedy, if so advised. They may take advantage of the ruling of the Supreme Court in the case of Laxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583 to seek exclusion of the time spent in prosecuting these complaints before this Commission. .…..………………………… (J. M. MALIK, J) PRESIDING MEMBER

.…..………………………… (DR.S. M. KANTIKAR) MEMBER dd/20-22 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

ORIGINAL PETITION No. 12 OF 1999

M.O.H. Leathers Ltd. 12, Langs Garden Road Chennai – 600002 … Complainant Versus Indian Bank Nandanam Branch Represented by its Chief Manager Nandanam Chennai – 600035 … Opposite Party

BEFORE:

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

For the Complainant : Mr. R.Venkatramani, Sr.Advocate

With Mr.V. G. Pragasam,

Mr. S. Prabu Ramasubramanian,

& Ms. Neelam Singh, Advocates

For the Opposite Party : Mr. M.C. Kochhar, Advocate

PRONOUNCED ON _2 ND SEPTEMBER, 2013

O R D E R

JUSTICE J.M. MALIK

1. The whole controversy pivots around the question, “Whether the consumer

fora can poach into the jurisdiction of Delhi Debt Recovery Tribunal?”. M.O.H.

Leathers Ltd., a partnership concern, approved as SSI

Unit and 100% Export Oriented Unit, was formed in the year 1986. UCO

Bank was the Banker of the said firm. In the year 1990, Indian Bank became the

Banker of the Partnership firm. The aforesaid Partnership firm was converted into

a Private Limited Company, i.e., the complainant and the Indian Bank, OP, in this

case, was retained as its Banker.

2. In the year 1991-92, the turnover of the complainant was

Rs.11,05,46,874.00. The Bank took into consideration the above said turnover and performance and enhanced the credit limits, w.e.f. 21.05.1992. The said limit was further enhanced on the basis of turnover of Rs.16,11,02,131/- and performance by the Bank on 16.08.1993. During the year 1994-95, there was decline in Leather Industry because of (1) Global Recession (2) Central Water

(Prevention and Control of Pollution) Act, 1974, Air Prevention and Control of

Pollution) Act, 1981, and Environment (Protection) Act, 1986.

3. During the year 1994-’97, the complainant, with its own resources, was able to achieve turnover of Rs.9.00 crores, approximately, every year. At the top of the above said Enactments, the Hon’ble Supreme Court of India, issued

Directives which added more burden resulting in many of the tanneries being closed down and the turnover of tanned leather diminished. The export trade was hard hit.

4. In the meantime, the Indian Bank, OP, wrote a letter dated

03.02.1997, under the Caption “Your Overdue Packing Credit, Overdue Export

Bills and Advance Bills Liabilities”. The Indian Bank requested the complainant to regularize the facilities, detailed in the said letter, immediately and submit compliance report on doing the same. It was further requested to arrange to submit necessary papers immediately to enable the Bank to put up renewal proposal to their higher authorities as operations cannot be allowed, without a proper renewal sanction. The complainant approached the OP. It was informed that under the Guidelines of RBI, the OP would help the Unit under the

Rehabilitation Programme and asked the representatives of the complainant to give proposal for rehabilitation on the lines as contained in the complainant’s proposal dated 21.04.1997.

5. OP agreed to rehabilitate the complainant in principle and asked the complainant for additional security, vide letter dated 17.05.1997. In June, 1997, the complainant furnished additional security. Vide letters dated 11.08.1997 and

20.08.1997, the Export Credit Guarantee Corporation of India Ltd (hereinafter referred to as ‘ECGC’, in short), allowed the sanction relating to post- shipment and pre-shipment credit facility with certain conditions. As desired by

ECGC, the complainant submitted the Schedule of Shipment, on 20.08.1997.

6. The complainant submitted a Bill for DM 1,41,440 (equivalent to

Rs.28,60,724/-) as part shipment against order of Rs.2.5 crores from M/s. Arma

Leather (Holland) to the OP for discounting the same but the same was not discounted and was sent on collection basis, on 13.08.1997. The complainant paid

Rs.5,00,000/- as compensation as it was the case of part-shipment and the complainant was unable to confirm that the remaining order will be supplied in full as per the Schedule. The payment received in respect of the Bill was adjusted against the old packing credit and in turn new packing credit was not released. The complainant submitted Bill and LC at site from Space 2000 Italy, being part shipment of USD 22,787 against the whole LC amount of USD 83,681, valid till

31.08.1997 for shipment. The said Bill was not discounted as agreed by OP. Even after the receipt of the payment, the same was not released in contravention to the terms of the Rehabilitation Programme. The Bank accepted the Bill, but did not discount the same and sent the said Bill to the Foreign Buyer on collection basis. Even after receiving the money on collection basis, which normally takes about 30-40 days for the money to come to the account, the Bank adjusted the said amount in the old account, but even at this stage of the matter, did not release the packing credit to the said extent.

7. It is alleged that the said act of the OP, amounted to chocking out of the entire function of the organization. In the meantime, M/s. Arma Leathers

Placed order supply of goods worth Rs.2.5 crores with the complainant. Goods worth Rs.68.00 lakhs were dispatched but other goods could not be prepared because the amount could not be released by the OP Bank. The Complainant had to pay Rs.5.00 lakhs as compensation to the Buyer. The complainant had to loose the offer of Rs.2.5 crores. The amount was not released despite the fact that another LC from Space 2000 of the value of USD 83,681.50 and another LC from

Court International, London, the total being Rs.43 lakhs, approximately. The complainant dispatched merchandise to the extent of USD 22,787 as a partial shipment against order of Space 2000. The said Bill was lodged by the complainant with the OP in August, 1997. The OP did not discount the said

Bill, also in violation of the terms and conditions of the rehabilitation programme. The said Bill was accepted under the LC and sent the same on collection basis and on receipt of the amount, adjusted in the old account and even at that stage of the matter, the OP did not release the packing credit for further consideration. The balance amount in LC was expiring in August, 1997 and because of the default of the OP, further goods could not be manufactured and shipped. The complainant suffered huge loss due to expiry of the LC. Both the

Buyers cancelled the shipment for the balance goods. Space 2000, was a client of the complainant for the past more than 10 years. The complainant was earning a lot of money.

8. The grouse of the complainant is that the Bank after approving the rehabilitation programme, sanctioned the recommendation of the same to the

ECGC and after getting the positive directions from ECGC, failed to release the funds for further production for the export purposes. The complainant had to suffer huge losses. In order to cover up its default, OP, on or about 04.11.1997 and

10.11.1997, came out with a plea that the complainant should get its viability study conducted by IndBank Merchant Banking Services Ltd, which is a Sister Concern of the OP and intimated that it will cost a sum of Rs.98,000/- and thereby a person, who is in a position to dominate the Will of the company, the OP undertook to rehabilitate the complainant company which was showing signs of sickness and dictated its arbitrary terms to the complainant, which had no choice but to obey and accept. It is alleged that the

Bank did not fulfill its own self-serving agreement in time and played for illegal gains at the cost of the complainant company and to its detriment. The complainant had to suffer loss of Rs.148 lakhs, detailed in the complaint.

9. Again, the OP has charged penal interest over overdue PC. The amount of Rs.1.15 crores was charged excess, as being own claim. In between, there was a compromise between the parties. Vide Notice dated

18.12.1997, calling back the loan amounts, the OP should have applied to ECGC for claiming amount due from the complainant and should not have charged any interest. Consequently, the complainant is not liable to pay the sum of Rs.1,16,67,434/-. The beneficiary under the

ECGC policy is OP itself. They are supposed to pay premium for the said policy out of their own pocket. The OP had charged the complainant every month, premium paid to ECGC on their account but debited to the complainant’s account, unlawfully. The amount charged was

Rs.28,26,414/-. Due to fluctuation in exchange rate for USD and D.MARKS against rupees, the OP charged extra amount in the sum of

Rs.1.48 crores.

10. Ultimately, the complainant company had to close the shutters and send away 450 employees from the job who were directly employed by it. Vide

Registered AD Notice, dated 02.12.1998, the complainant claimed an amount of

Rs.7,15,93,848/- but it did not evoke any response from the OP. Ultimately, this complaint, dated 05.01.1998 was filed with the following prayers:-

“ a) Direct the Opposite Party to pay a sum of Rs.7,15,93,848/- as detailed in para 35 hereinabove; b) Direct the Opposite Party to pay a sum of Rs.1 crore to the Complainant on account of mental pain and agony suffered by the complainant; c) Direct the Opposite Party to pay interest @ 18% per annum from the date of filing of the complaint till the date of payment of the amount awarded; d) Direct the Opposite Party to pay cost of this litigation; e) Pass such other or further orders as this Hon’ble Commission may deem fit and proper under the circumstances of the case”.

11. DEFENCE:-

The Indian Bank, OP, has enumerated the following defences in its reply. It is contended that the complainant is ‘not’ a “consumer”. No rehabilitation programme was ever granted or even agreed to by the OP. As a matter of fact, the

OP asked certain clarifications/details and additional security from the complainant, but the complainant could not pass on the same and hence rehabilitation package was never agreed or granted by the OP to the complainant. The complainant did not fulfill the requirements for considering the rehabilitation programme by the OP. The complainant has filed the present complaint due to frustration and as a counter blast in view of the application filed by the OP before the Debts Recovery Tribunal, Chennai, for recovery of loan dues against the complainant, its Directors, Guarantors, etc., which was pending at the time of filing of the Written Statement. The complainant could agitate the points before the Debts Recovery Tribunal, Chennai, and as such, the present complaint is not maintainable.

12. It is explained that during the year 1993-94, the Bank had released packing credit advances and it had enabled the complainant to achieve approximate turnover of Rs.9.00 crores. It is explained that the complainant did not submit its proposal for rehabilitation programme vide their letter dated

21.04.1997. It is explained that by that time, the accounts of the complainant

Company had already become irregular and the OP had been requesting the complainant to regularize the accounts. The Final statements, stock statements, sealed projections and details of security offered by the complainant to take up for the rehabilitation programme to the concerned authority, the complainant could not give the additional securities in the form of mortgage by deposit of title deeds. The title deeds submitted by the complainant were not clear for the acceptance of mortgage. The Bank never assured or promised to grant or sanction loan, by way of rehabilitation programme or otherwise. The overdues of the complainant were alarming. The affairs of the complainant were not handled in a professional way and were mismanaged and mishandled by the management of the complaina nt company. As per proposal for re-phasement/renewal of credit facilities, the

Bank was asked to produce documents vide order dated 25.09.1997, but the needful was not done. Vide letter dated 25.09.1997, the complainant was asked to produce the following documents :-

a) Conducting an audit by outside agency preferably by Indian Bank Merchant Banking Service Limited.

b) Conducting of turn around viability by

IBMBS c) Creation of equitable mortgage of properties offered as security

d) Company to bring their own funds for adjustments of advance bills liabilities.

13. It is explained that the proposal of the complainant for rehabilitation recommending the same to Export Credit Guarantee Corporation of India Ltd, was never accepted. The bank never gave any understanding that the amount of the bills mentioned would be purchased and adjusted against the previous old packing credit and to that extent, new packing credit would be released in order to make further production. The rehabilitation programme was never approved nor sanctioned by the Bank. It is explained that the OP was entitled to charge penal interest as per RBI Guidelines since the accounts of the complainant company became irregular. Whatever amount received from ECGC by the Bank under the guarantee taken by OP and that payment has to be repaid to ECGC on recovery from Borrowers and Banks. The conversion from foreign currency to Indian rupees is to be assessed as per RBI Rules. All other allegations have been denied.

14. Both the parties have adduced evidence, by way of affidavits.

15. We have heard the learned counsel for the parties and perused their written synopses. It was argued by the counsel for the complainant that OP, in principle, agreed to rehabilitate the complainant as is apparent from their letter dated 17.05.1997 wherein the complainant was requested to furnish certain documents and the OP also asked the complainant to give details of additional security. The complainant offered the security of a City flat of 4-Bed rooms, in a posh locality valued around Rs.60.00 lakhs and in addition thereto, collateral security of 50 acres of land valued around Rs.90.00 lakhs had already been furnished. It was mentioned that the complainant was trying to arrange security of one more flat. OP accepted the proposal of rehabilitation programme and recommended to ECGC of India Ltd. ECGC also considered the said proposal. Vide letter dated 11.08.1997, ECGC allowed the sanction relating to post-shipment and vide letter dated 20.08.1997, allowed the pre- shipment. When the OP assured the complainant that its proposal for rehabilitation programme has been approved by it as well as by ECGC, the Complainant Company submitted a Bill under its packing credit limit for DM 1,41,440 vide Bill No.2, dated 08.08.1998 equivalent to Indian Rupees 28,60,724/- and gave the assurance that the money released against the said Bill would be utilised for further production for the export purposes for which the limit had been granted and for which the rehabilitation programme had been approved.

16. The learned counsel for the complainant submitted that the complainant was taken for a ride. The Bank has been, long in promises but short in performances. Due to Bank’s inaction, the complainant had to lose 2-3 big Buyers. It was explained that if the Bank did not want to help the complainant it should have informed it from the very start that they are not going to do the needful, in that event, the complainant would have made an attempt to deal with another Bank. Although, in the written arguments, it is submitted that the rehabilitation programme was approved and sanctioned by the Bank as well as the ECGC in order to rehabilitate the Unit, but at the stage when the Company needed funds urgently, the Bank failed to provide the much needed credit. However, at the time of the final arguments, counsel for the complainant admitted that there was no sanction order either from the Bank or from any other authority.

17. The plea raised by the learned counsel for the complainant is mere palliative and does not delve deep to the roots of malady. To top it all, the complainant has kept the main facts under the hat. We fully agree with the arguments advanced by the learned counsel for OP that the present complaint has been filed due to frustration and as a counter blast, in view of the application filed by the OP, before the DRT, Chennai, for recovery of loan dues against the complainant, its Directors, Guarantors, etc., and the same has already been decided in favour of the OP in a hotly contested case. The DRT, Chennai, has directed the complainant to pay a sum of Rs.104,90,82,386.83. The said complaint was filed in the year 1998. First of all, the counsel for the complainant submitted that the said complaint was filed in the year 2002 but when his attention was invited to the fact that the said application pertains to the year 1998 by the counsel for the OP, he did not pick up a conflict with this point. These facts found no mention in the complaint. The complaint is conspicuously silent about it.

18. Secondly, the matter was pending before the DRT, Chennai, for recovery of debt. Consequently, the consumer fora do not have jurisdiction to try this case. While we were dealing with a case of SARFAESI Act in Shri Yashwant G. Ghaisas & Ors. Vs. Bank of Maharashtra, on 06.12.2012, in Consumer Complaint No.302 of 2012, this Commission, dismissed the case in limine, on the ground that consumer fora have no jurisdiction to try this case. Against this order Special Leave to Appeal (Civil) No.1359 of 2013 was preferred by the complainant, before the Hon’ble Apex Court. The Hon’ble Apex Court, vide order dated 01.03.2013, was pleased to approve our following observations:-

“19.The National Commission is not empowered to arrogate to itself the powers which come within the jurisdiction of Debt Recovery Tribunals. This matter is purely covered within the jurisdiction of DRT or DRAT. If there is any grievance against the notice under Section 13(2) of the SARFAESI Act, that should be brought to the notice of the concerned authority. It is well settled that main Creditor and the Guarantors are equally responsible. There lies no rub for the Bank to take action against the Guarantor directly. It cannot be alleged that he is adopting the policy of pick and choose. From the allegations stated above, there appears to be no deficiency on the part of the opposite party. In case the Bankers are working within the ambit of SARFAESI Act, it cannot be said to be deficiency on the part of the Bank. It must be established that there is deficiency on the part of the Bank. In that case, this Commission can take action. For the reasons stated above, the complaint is dismissed at the stage of its admission. Nothing will preclude the complainants from approaching appropriate Forum as per law”.

19. In a case decided by four Members’ Bench of this Commission, comprising of Hon’ble Mr.Justice D.P.Wadhwa, Hon’ble President, Mr.Justice J.K.Mehra, Mrs.Rajyalakshmi Rao & Mr.B.K.Taimni, Hon’ble Members, titled as Traxpo Trading Ltd., Vs. The Federal Bank Ltd., (Original Petition No.116 of 2001, decided on 15.10.2001) I (2002) CPJ 31 (NC), it was held :-

“ Under Section 18 of the Act, jurisdiction of this Commission is barred where the Bank has filed suit. Defendant in that suit can claim set-off or even counter claim against the Bank under Section 19 of the Act. Complainant would have ample opportunity to raise all the issues presented in the present complaint. That apart, when we examined the complaint, it raises complex questions both of facts and law which is not possible to decide in our summary jurisdiction. Then we also feel that this complaint has been filed more as a counter blast to the proposed action of the Bank. No doubt this complaint has been filed four months earlier of filing of the suit by the Bank before the Debt Recovery Tribunal. But from that we cannot lose sight of the fact that the Bank would have threatened the complainant for filing a suit and when such suit was imminent, complainant chose to file this complaint. We, therefore, decline to entertain this complaint and return the same to the complainant to seek remedy, if any, elsewhere. This complaint is disposed of accordingly. Opposite Party – Bank shall be entitled to costs of these proceedings which we quantify at Rs.5,000/-“.

20. Thirdly, the complainant should have ventilated all his grievances before the learned DRT, Chennai. He could have claimed set-off against the Bank. There lies no rub. It appears that the present complaint was filed in order to harass the Bank authorities and to take revenge against them. The order passed by the DRT, Chennai in favour of OP dated 22.07.2010 and the Appeal, if any, have attained finality. It cannot be challenged in a consumer fora.

21. The complainant has made a vain attempt to make bricks, without straw. Vide notice dated 03.02.1997, the complainant was called upon to clear the outstanding dues. The rehabilitation package was never mooted. The complainant was asked to complete the formalities, but it did not. The complainant had only submitted its proposal for rehabilitation which could not proceed further due to the fact that the complainant could never give the additional securities and the assurance to provide all additional securities in the form of mortgage by deposit of title deeds which was never fulfilled because it transpired that the additional securities were not clear to accept the mortgage. Legal opinion dated 31.03.1998 goes to confirm this fact. All the alleged promises were made orally. There was nothing in black and white. Such like excuses can be made at any time. The proposal sent by the complainant was never accepted. The Bank was already aware of the fact that the complainant is bordering to be the sick company. Under these circumstances, to accept that the Bank will come to its rescue is unacceptable. The story created by the complainant does not just stake up. On 02.12.1997, the talks of negotiations for compromise took place. As a matter of fact, all these points should have been put up before the DRT, Chennai, if the same were not put, in that case, the complainant had missed the bus. It will be deemed to have been given up under Order II, Rule 2 of CPC. Last, but not the least, counsel for the complainant candidly admitted that there was no sanction order in favour of the complainant. Is it this Commission’s duty to write definitions on invisible blackboard with non-existent chalk?. The complainant’s tilt at windmills, does not ring the bell. The complaint is, therefore, dismissed. No costs. .…..…………………………

(J. M. MALIK, J)

PRESIDING MEMBER

……………………………...

(DR.S.M. KANTIKAR)

MEMBER dd/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 4871 OF 2012

(From the order dated 23.08.2012 in First Appeal No. 756/2011 of State Consumer Disputes Redressal Commission, KERALA )

Ms. Anjana Abraham Chembethil, Mutholapura P.O Ernakulam District Represented by Power of Attorney Holder Abraham C Mathew Chembethil Mutholapura P.O. Ernakulam District Kerala

…Petitioner

Versus

The Managing Director The Koothattukulam Farmers Service Co-operative Bank Ltd No. E-45, Koothattukulam – 686662

…Respondent

BEFORE:

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

HON’BLE DR. S.M. KANTIKAR, MEMBER

For the Petitioner : Sh. Vinod Joseph PJ, Advocate

For the Respondent : Mr. Biju P.Raman, Advocate With Ms. Usha Nandini, V, Advocate

PRONOUNCED ON _2 nd SEPTEMBER, 2013 ORDER

JUSTICE J.M. MALIK

1. The key question which falls for consideration is, “Whether a Member can pick up a conflict with Co-operative Society, under the Consumer Protection Act?”. The facts of this case are these. Ms.Anjana Abraham, the petitioner/complainant has filed this case through her Power of Attorney, Mr.Abraham C.Mathew, who is her father. On 29.05.1989, Mr. Abraham C. Mathew, deposited a sum of Rs.10,000/- under Mangalya Deposit Scheme with the OP/respondent. As per the Scheme, the complainant was entitled to get back Rs.1,60,000/- on the date of maturity, i.e. 29.05.2009. When the complainant requested on 05.06.2009, to pay the said maturity amount, the respondent refused to pay the same. The OPs have admitted that the said deposit was made. It is averred that the General Body of the Bank reduced the rate of interest. The petitioner/complainant invested the same and the OP was ready to pay the interest, as mentioned in the letter dated 30.06.2003.

2. The District Forum partly allowed the complaint, filed by the complainant. The

State Commission accepted the appeal filed by the opposite party/respondent and dismissed the complaint.

3. We have heard the arguments. As a matter of fact, the consumer fora have no jurisdiction to try the disputes arising between Co-operative Societies and its

Members. Section 69 of the Co-operative Societies Act, 1969, runs as follows:- “Chapter IX Settlement of Disputes 69. Disputes to be decided by Co-operative Arbitration Court and Registrar. – (1) Notwithstanding anything contained in any law for the first time being in force, if a dispute arises :-

a) among members; past member or person claiming through members, past members and deceased members; or

b) between a member, past member or deceased member and the society, its committee or any officer, agent or employee of that society; or

c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society; or

d) between the society and any other society; or

e) between a society and the members of a society affiliated to it; or

f) between the society and a person, other than a member of the society, who has been granted a loan by the society or with whom the society has or had business transactions or any person claiming through such a person; or

g) between the society and a surety of a member, past member, deceased member or employee or a person, other than a member, who has been granted a loan by the society, whether such a surety is or is not a member of the society; or

h) between the society and a creditor of the society; such dispute shall be referred to the Co-operative Arbitration Court constituted under Sec.70A, in the case of non-monetary disputes and to the Registrar, in the case of monetary disputes and the Arbitration Court, or the Registrar, as the case may be, shall decide such dispute and no other authority, shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute”.

4. Similar view was taken in the case reported as P.P.Kapoor Vs. Government

Servants Co-operative House Building Society Ltd., I (1999) CPJ 81, wherein it was held in Para 7 of its judgment, as under :- “ In our view, the dispute sought to be raised was a dispute arising out of the alleged non-compliance of provisions of the Delhi Co-operative Societies Act and the Rules framed thereunder, under Section 60 of the said Act. Section 93(1)(c) of the said Act vests jurisdiction in respect of the disputes required to be referred to the Registrar under Section 60. Sub-rule 3 ousts jurisdiction of “any Court, on any ground, whatsoever” to question any order/decision or award made under the Act. In Dilip Bapat & Anr., Vs. Panchyati Co-operative Housing Society Limited, I (1993) CPJ 68 (NC), it was observed in Para-11 of the report that dispute of this nature is not a consumer dispute under the Consumer Protection Act and the right Forum was to have ones remedy under the Co- operative Societies Act”.

5. Consequently, we dismiss the revision petition, but grant opportunity to the petitioner/complainant to seek his/her grievance(s) before the appropriate forum, except the consumer fora, as per law.

..…………………..………J

(J.M. MALIK)

PRESIDING MEMBER

……………….……………

(DR.S.M. KANTIKAR)

MEMBER

Dd/9 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2654 OF 2012 (From the order dated 24.02.2012 in First Appeal No. 159/2012 of Haryana State Consumer Disputes Redressal Commission)

1. Saurav, Minor s/o Sh. Lalit Mohan Arora

2. Vandana, Minor d/o Sh. Lalit Mohan Arora

3. Lalit Mohan Arora s/o Sh. Gurditta Mal

all residents of H.N. 2272/2, Hari Palace Road, Ambala City ... Petitioners

Versus The New India Assurance Co. Ltd. through its Branch Manager S.C.O.-19, Municipal Shopping Complex Ambala City

… Respondent

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

APPEARED AT THE TIME OF ARGUMENTS

For the Petitioner(s) Mr. Ritesh Khare, Advocate with Petitioner No.3

PRONOUNCED ON : 2 nd SEPT. 2013 O R D E R

PER DR. B.C. GUPTA, MEMBER

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 by the petitioners against the impugned order dated 24.02.2012, passed by the Haryana State Consumer Disputes Redressal Commission, (for short ‘the State Commission’) in FA No. 159/2012, “Saurav and others versus New India Assurance Co. Ltd.,” vide which, while dismissing the appeal, order dated 26.07.2011 passed by the District Consumer Disputes Redressal Forum, Ambala, in consumer complaint no. 229/2011, dismissing the complaint, was upheld.

2. Brief facts of the case are that one Smt. Sunita Arora, since deceased, who was the wife of petitioner/complainant no.3, L.M. Arora, and mother of petitioner 1 & 2, her minor children, was a teacher in Bhartiya Public School, Ambala Cantt. She was the owner of an ActivaHonda vehicle, bearing registration No. HR01M-1059, which was insured with the OP, The New India Assurance Co. Ltd. (hereinafter referred to as ‘insurance company’) from 07.02.2008 to 06.02.2009. On 05.08.2008, when Smt. Sunita Arora was going to the school on the said vehicle, she met with an accident, resulting in her death at the spot. Her husband, petitioner/complainant no. 3 made an application dated 22.08.2008 to the OP requesting them to pay the amount of personal accident cover, i.e., Rs.1 lakh along with cost of repairs. It has been stated in the complaint that the necessary documents were handed over to the representatives of the OP, except the driving licence, which was lost at the time of accident. The insurance company, however, sent a letter dated 16.03.2009, repudiating the claim on the ground of non-completion of necessary formalities. The complainant again sent a letter dated 15.07.2009 to the OP informing that the licence had been lost at the time of accident and OP again replied vide letters dated 18.08.2009 and 27.08.2009 that the claim had been declined for non-submission of documents. A consumer complaint was filed by the complainants but the same was dismissed by the District Forum on the ground that it was time barred, because it had been filed beyond a period of two years from the date of cause of action and hence, beyond limitation as per section 24(A) of the Consumer Protection Act, 1986. It was held that the cause of action arose from the date of the letter of repudiation dated 16.03.2009, but the complaint was filed on 22.07.2011. An appeal against this order was dismissed by the State Commission upholding the view taken by the District Forum. It was also stated that the appeal filed before the State Commission was beyond limitation, as there was a delay of 154 days in filing the appeal. It is against this order that the present petition has been made.

3. At the time of hearing before us, learned counsel for the petitioner stated that the letter dated 16.03.2009, vide which the claim was repudiated, was never received by them. The cause of action should be taken from the date of subsequent letters dated

18.08.2009 and 27.08.2009, received from the insurance company. The complaint was very much within limitation, if the cause of action is taken from these dates.

4. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

5. A perusal of the complaint in question reveals that it has been stated in paragraph

9 of the complaint that letter dated 16.03.2009 addressed to Smt. Sunita Rani was sent by OP giving information about closing the claim case on the ground of non-completion of formalities, though the complainant had already handed over all documents to

Mr. Rajesh of the OP insurance company, except driving licence, because it was lost at the time of accident. The District Forum stated in their order that this was an admission on the part of the complainant that the letter of repudiation was sent on 16.03.2009 and hence, the complaint was barred by limitation. The District Forum has observed in their order as follows:- “We have observed that the complainants have not even filed an application for condonation of delay along with this complaint. The reasons mentioned in the complaint are not sufficient to condone the delay. The claim file of the complainant was closed due to non completion of formalities by the OP vide letter dated 16.03.2009. Hence, complainants had the period of two years to file the present complaint, i.e., upto15th March, 2011 as per the C.P. Act. It is argued by the complainants counsel that actually the complainant No. 3 was informed through letter dated 18.8.2009 as well as 27.8.2009 by the OPs, i.e., claim has been made as no claim though it is admitted by him that letter dated 16.3.2009 was received at his address but was in the name of Smt. Sunita Arora – deceased. It is not the case of complainant that he never received the letter dated 16.3.2009. The cause of action arose on receipt of letter dated 16.3.2009 and not from the letter dated 18.8.2009 or 29.8.2009, which the OP has written in reply to his letter dated 14.7.2009. Repeated correspondence and reply sent on the basis of same would not extend the period of limitation. Even otherwise, if the driving license of Smt. Sunita Arora was lost at the time of accident in question, complainant No. 3 could have supplied the particulars of her driving license to the OP which he failed to do. The complainant No. 3 is an educated person and ignorance on his part is no excuse at all.

In view of these facts and circumstances, we are of the opinion that the complaint is hopelessly time barred and the same is hereby dismissed in limine. Copy of this order be sent to the parties free of costs. File be consigned to records after due compliance.”

6. Further, it has been clearly mentioned in the order passed by the State

Commission that there was a delay of 154 days in filing the appeal before the State

Commission. The reasons given in the application for condonation of delay stated that the petitioner no. 3 had lost his job due to political reasons and had been compulsorily retired from job. He had also lost his wife in accident and because of these shocks, he had lost his senses. The State Commission reached the conclusion that this was not a sufficient ground for condonation of delay.

7. The facts and circumstances of the case clearly show that the consumer complaint was barred by limitation under section 24(A) of the Consumer Protection Act, 1986, so much so, that application for condonation of delay was also not filed before the District

Forum. The inordinate delay in filing the appeal before the State Commission has also not been properly explained by the petitioners. The Hon’ble Apex Court have also held in a number of cases decided recently that unless there are cogent and convincing reasons for condoning the delay in filing a petition, the same should not be condoned. Reference may be made to the case, Oriental Aroma Chemical Industries

Ltd. Vs.Gujarat Industrial Development Corporation reported in (2010) 5 SCC

459, where it has been observed as under: “ We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”

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

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

9. Based on the discussion above, this revision petition is ordered to be dismissed and the orders passed by the State Commission and the District Forum upheld with no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

MEMBER RS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1979 OF 2008 (From the order dated 07.02.2008 in Appeal No. 1077/2002 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

New India Assurance Co. Ltd. Delhi Regional Offoce-1 Level – V, Tower – II, Jeevan Bharti Connaught Circus, New Delhi – 110001 Through its Manager

… Petitioner/Opp. Party (OP)

Versus Mohinder Kaur Widow of Mohan Singh R/o Village Solkhian Tehsil & District Ropar (Punjab)

… Respondent/Complainant

BEFORE

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

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr. R.B. Shami, Advocate

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

PRONOUNCED ON 3 rd September, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

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

07.02.2008 passed by the Punjab State Consumer Disputes RedressalCommission,

Chandigarh (in short, ‘the State Commission’) in Appeal No. 1077/2002 – M/s.

The New India Assurance Co. Ltd. Vs. Mohinder Kaur by which, while allowing appeal partly, order of District Forum allowing complaint was modified.

2. Brief facts of the case are that complainant/respondent’s husband Mohan Singh obtained medi-claim insurance policy from the OP/petitioner on 24.10.2000 for a period of one year for a sum of Rs.1,00,000/-. During the subsistence of the insurance policy, Mohinder Singh developed brain tumor and spent more than Rs.1,20,000/- on his treatment and ultimately died on 06.11.2001. Mohan Singh during his life time approached OP for reimbursement of medical expenses, but to no effect. Later on, complainant filed complaint before District Forum alleging deficiency on the part of OP. OP resisted complaint and submitted that deceased Mohan Singh did not disclose that he was suffering from aforesaid disease and in such circumstances, was not entitled to reimbursement of the medical expenses and claim was rightly repudiated by letter dated 31.3.2002 and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to pay Rs.1,00,000/- along with 18% p.a. interest and awarded cost of Rs.2500/-. Appeal filed by the petitioner was partly allowed by learned State Commission vide impugned order and interest awarded @ 18% p.a. by District Forum was modified to 9% p.a. and rest of the order was upheld against which, this revision petition has been filed.

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

4. Learned Counsel for the petitioner submitted that on account of suppression of pre-existing disease, petitioner rightly repudiated claim of the insured; even then, learned District Forum committed error in allowing complaint and learned State Commission further committed error in upholding order; hence, revision petition be allowed and impugned order be set aside, complaint be dismissed. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. Learned Counsel for the petitioner submitted that it is well proved by evidence that complainant’s husband while taking medi-claim policy fraudulently suppressed pre- existing disease. In such circumstances, petitioner has not committed any deficiency in repudiating claim. In support of his contention, he has placed reliance on –

i. III (2011) CPJ 43 (NC) – Maya Devi Vs. Life Insurance Corpn. of India; ii) IV (2011) CPJ 71 (NC) – Bhanwari Devi Vs. Bharatiya Jeevan Bima Nigam & Anr. iii) IV (2011) CPJ 603 (NC) – Life Insurance Corpn. of India Vs. Francis Antony D’souza iv) IV (2012) CPJ 354 (NC) – New India Assurance Co. Ltd. Vs. K.M. Babu Reddy v) I (2012) CPJ 547 (NC) – National Insurance Co. Ltd. Vs. Ashok Kumar Gupta.

6. We agree with the principle laid down in the aforesaid judgments, but the question is whether deceased suppressed pre-existing disease at the time of taking medi-claim policy or not. Admittedly, in the proposal form, he has denied that he was having any cancer, malignant growth which did not heal or improve despite treatment. As per Annexure P2, discharge summary issued by Rancan Gamma Knife Centre, deceased was having Stereotactic contrast MRI on the date of treatment (20.7.2001) which revealed right frontal basal region enhancing meningioma measuring 7.6 cubic cm in volume. Operation was conducted and he was discharged on 21.7.2001 with history which runs as under:

“ The patient presented with history of severe headache in June 2001. He consulted a physician at the Punjab Health Systems Corporations, Ropar, who advised MRI head. MRI dated 2.7.2001 revealed a right-sided basifrontal enhancing meningioma with surrounding edema. He was given the option of both microncurosurgery and Gamma Knife Radiosurgery and the patient opted for Gamma Knife Radiosurgery for tumor control”. 7. In this history, operating doctor and other doctors has nowhere stated that disease dates back to 1998, whereas in response to investigator’s letter Dr.M.S. Gaur, who conducted surgery has intimated to the investigator by letter dated 1.11.2001 i.e. almost after 27 months as under:

“1. History of patient’s disease as given to us dates back to 1998

when he had a epileptic attack and CT scan was taken which

showed a right basifrontal meningioma. No definitive time of existence of this tumor, before this can be imagined or

suggested.

2. Growth rate of Meningioma cannot be standardized like that

as it vary from patient to patient.

3. We know that there is a Meningioma in patient’s brain since

1998, so already more than 2 years”.

8. This report has been given by Dr. Gaur after 27 months in which it has specifically mentioned that there was epileptic attack and CT scan was taken which showed a right basifrontal meningioma, but petitioner has not placed on record CT scan taken in 1998 and record of any treatment taken in 1998. In such circumstances, this report which has been given after 27 months and that too just before 5 days of death of Mohan Singh cannot be believed. Investigator has also submitted in his report that he also discussed the case with Dr. Jindal, Neuro Surgeon on 27.10.2001 and according to him, disease was at least two years old, but he has also mentioned that Dr. Jindal did not give him any opinion in writing. Dr. Jindal has not been examined by the petitioner before District Forum. In such circumstances, no reliance can be placed on the investigator’s report regarding Dr. Jindal’s opinion.

9. Learned District Forum has elaborately discussed evidence and allowed complaint and reasons given by District Forum have been reiterated in the impugned order and we do not find any reason to differ with the opinion given by learned District Forum and upheld by learned State Commission.

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

( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1693 OF 2012 (From the order dated 22.12.2011 in Appeal No.42/2011 of the M.P.State Consumer Disputes Redressal Commission, Bhopal)

Smt. Heeru Mehra D/o Shri Mahesh Kumar Mehra W/o Shri Chandan Mehra R/o Tehsil Chouraha, Pachmari Road, Pipariya Dist. Hoshangabad

… Petitioner/Complainant

Versus

1. P.C., Systems, Thro’ Proprietor Pankaj Kumar Chouksey, S/o Late Narayan Prasad Chouksey R/o Sobhapur Road, Sadar Ward, Pipariya Dist. Hoshangabad.

2. Ramesh Mohan Nair, Branch Manager Punjab National Bank, Jhumerati Branch Bhopal

3. Puranmal Mourya, Field Officer Punjab National Bank, Branch Pipariya Tehsil Pipariya Dist. Hoshangabad

4. Manager, Punjab National Bank Branch Pipariya Distt. Hoshangabad.

…Respondents/Opp. Parties (OP)

BEFORE

For the Petitioner : Ms. Richa Srivastava, Advocate

O R D E R

This revision petition has been filed by the petitioner/complainant against the order dated 22.12.2011 passed by the M.P. State Consumer Disputes Redressal

Commission, Bhopal (in short, ‘the State Commission’) in Appeal No. 42 of 2011 – P.C.

System Vs. Smt. Heeru Mehra & Ors. by which, while allowing appeal, partly, order of

District Forum allowing complaint was modified.

2. Brief facts of the case are that complainant/petitioner after obtaining loan from

Punjab National Bank for purchase of computers, purchased 4 computers from OP-

1/Respondent no.1. OP No. 1 took away all the 4 computers for repairs on 5.5.2008 and were not returned to the complainant after removal of defects. Alleging deficiency on the part of OPs, complainant filed complaint before District Forum. OPs resisted complaint and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP No. 1 to repair the computers or in the alternative to pay Rs.1,20,000/-, price of the computers along with Rs.5,000/- for harassment and mental agony. OP No. 4 was directed to pay Rs.2500/- for mental agony and all OPs were directed to pay Rs.1,000/- as legal expenses. Appeal filed by the OP No.1 /Respondent No.1 was allowed partly and order of District Forum allowing

Rs.1,20,000/- was modified and substituted by Rs.30,000/- and rest of the order was affirmed against which, this revision petition has been filed.

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

4. Learned Counsel for the petitioner submitted that inspite of proving the fact that 4 computers were given for repairs by the petitioner to Respondent No.1, learned State

Commission has committed error in modifying order of District Forum allowing complaint for 4 computers; hence, revision petition be admitted.

5. Perusal of record clearly reveals that in response to the notice of Respondent

No.1, petitioner vide letter dated 28.6.2008 admitted that on 5.5.2008 one system

(computer), which was taken for repairs was not returned. Learned Counsel for the petitioner has put much stress on the word ‘ izkIr fd;sa ’ tried to submit that this word cannot be used for single computer. Admittedly, this receipt is of 5.5.2008 and in reply dated 28.6.2008, this receipt dated 5.5.2008 has been referred by which only one system was taken by OP No. 1 for repairs. In such circumstances, it becomes clear that merely by using plural word it cannot be inferred that 4 computers were taken by

Respondent no. 1 for repairs. Petitioner is bound by its admission in reply dated 28.6.2008 and learned State Commission has not committed any error in modifying

District Forum’s order and reducing amount to Rs.30,000/- from Rs.1,20,000/-. We do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed at admission stage.

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

..………………Sd/-……………

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4279 OF 2012 (From the order dated 17.07.2012 in Appeal No.1519 of 2010 of the Haryana State Consumer Disputes Redressal Commission, Panchkula) Dr. Vir Singh Malik Jeet Hospital Park Road, Gohana Distt. Sonepat, Haryana

… Petitioner/Complainant Versus The Oriental Insurance Co. Ltd. Branch Office: Gohana Through Regional Manager Regional Office, LIC Building, 2nd Floor, LIC Building Jagadhari Road, Ambala Cantt. Haryana

… Respondent/Opp. Party (OP)

BEFORE

For the Petitioner : Mr. K.L. Nandwani, Advocate For the Respondent : Mr. Rajesh K. Gupta, Advocate

O R D E R

This revision petition has been filed by the petitioner/complainant against the order dated 17.07.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 1519/2010 – Oriental Ins. Co. Ltd. Vs. Dr. Vir Singh Malik by which, while allowing appeal, order of District Forum allowing complaint was modified.

2. Brief facts of the case are that complainant/petitioner got his car insured with OP/respondent for a period of one year commencing from 31.8.2001 to 30.8.2002 for Rs.5,50,000/-. On 3.2.2002, car met with an accident and car was taken for repairs to the authorized service station of the Company, who submitted estimate of repairs of about Rs.6,25,000/-. Surveyor appointed by OP assessed damage to the vehicle to the extent of Rs.2,40,000/- net of salvage on the basis that market price of the vehicle on the date of loss was between Rs.3,90,000/- to 4,00,000/- and maximum salvage value of the damaged vehicle was Rs.1,60,000/-. Complainant not satisfied with the report of the surveyor, filed complaint before District Forum. OP resisted complaint and submitted that settlement may be made as per surveyor’s report and prayed for dismissal of the complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.5,50,000/- along with 9% p.a. interest along with 9% p.a. interest and further awarded Rs.20,000/- for mental agony and Rs. 5,000/- as litigation expenses. Appeal filed by the respondent was partly allowed by learned State Commission vide impugned order modifying order of District Forum and directed respondent to pay Rs.4,00,000/- including salvage value of Rs.1,60,000/- and rest of the order was affirmed against which, this revision petition has been filed.

4. Learned Counsel for the petitioner submitted that learned State Commission has committed error in reducing amount awarded by District Forum as policy was for Rs.5,50,000/- and it was a case of total loss; hence, revision petition be allowed and order of District Forum be restored. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. It is admitted case of the parties that complainant’s vehicle was insured for a sum of Rs.5,50,000/- at the time of accident. Insurance coverage was from 31.8.2001 to 30.8.2002 and vehicle met with an accident on 5.2.2002 meaning thereby after 5 months of taking insurance coverage. Surveyor assessed loss on the basis of market value of the vehicle being between Rs.3,90,000/- to Rs.4,00,000/-.

6. Learned Counsel for the petitioner submitted that petitioner is entitled to receive compensation on the basis of value of the vehicle shown in the insurance policy because premium has been charged on that amount. He has placed reliance on (2008) 8 SCC 279 – Dharmendra Goel Vs. Oriental Insurance Company Ltd. in which price of the vehicle shown in the insurance policy was Rs.3,54,000/- and surveyor assessed loss of Rs.1,80,000/-, but Hon’ble Apex Court allowed Rs.3,54,000/- after deducting Rs.10,000/- as deprecation for 7 months.

7. In the case in hand, petitioner paid premium on amount of Rs.5,50,000/-, price of the vehicle shown in the insurance policy and compensation cannot be awarded on the basis of market price of the vehicle on the date of loss. Learned Counsel for the respondent could not place any citation in support of his contention that claim can be allowed on the basis of market price of the vehicle. When petitioner has charged premium on the declared value of the vehicle which is a contract between the parties, petitioner is not entitled to reduce payment on the basis of market price of the vehicle and learned State Commission has committed error in modifying order of District Forum and reducing payment by Rs.1,50,000/- on the assumption that there is tendency of the claimant to submit claim on higher side by securing false and bogus bills. In this matter, authorized service station of the company submitted estimate of repairs to the tune of Rs.6,25,000/- and in such circumstances, it cannot be said that petitioner has lodged his claim on higher side by securing false and bogus bills.

8. Hon’ble Apex Court in Dharmendra Goel’s case (supra) deducted Rs.10,000/- as depreciation for use of vehicle for 7 months. In the case in hand, vehicle met with an accident after 5 months and in such circumstances, looking to the value of vehicle, we deem it proper to reduce the amount payable by Rs.20,000/- and hold that petitioner is entitled to get Rs.5,30,000/-.

9. Consequently, revision petition filed by the petitioner is allowed partly and impugned order dated 17.7.2012 is modified and order dated 13.09.2010 passed by learned District Forum is also modified to the extent that respondent shall pay to the petitioner Rs.5,30,000/- instead of Rs.5,50,000/- and rest of the order passed by the District Forum is upheld.

..………………Sd/-……………

( K.S. CHAUDHARI, J) PRESIDING MEMBER

..……………Sd/-……………… ( DR. B.C. GUPTA ) MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 06.05.2008 in First Appeal No. 92/2008 of State Consumer Disputes Redressal Commission, U.T., Chandigarh)

The New India Assurance Co. Ltd. Registered Office at 87, M.G. Road, Fort, Mumbai Regional Office at Jeevan Bharti Building, Level V, Tower II, 124, Connaught Circus, New Delhi – 110001.

... Petitioner

Versus

1. Shri C.D. Singla, s/o Sh. Ami Chand

2. Saroj Singla, w/o Sh. C.D. Singla Both R/o House No. 357, Sector – 6, Panchkula

… Respondents

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

For the Petitioner(s) Ms. Anjalli Bansall, Advocate

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

PRONOUNCED ON : 3 rd SEPT. 2013 O R D E R

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 by the petitioner against the impugned order dated 06.05.2008, passed by the Chandigarh State Consumer Disputes Redressal Commission, (hereinafter referred as ‘the State Commission’) in Appeal No. 92 of 2008, Sh. C. D. Singla & Anr. Vs. New India Assurance Company Limited & Anr., vide which, while allowing appeal, the petitioner/OP was directed to pay an amount of Rs. 2.5 lakhs to the appellants on account of reimbursement of the value of diamond bangles. This appeal had been filed against the order dated 23.01.2008 passed by District Consumer Disputes Redressal Forum, U.T. Chandigarh, vide which, the District Forum had allowed a sum of Rs. 5,100/- as compensation in addition to a sum of Rs. 45,900/- already paid by the Insurance Company and also allowed Rs. 2,100/- to the complainants as costs of litigation.

2. Briefly stated, the facts of this case are that the complainants/respondents had taken a Householder’s Insurance Policy from the petitioners/OPs valid from 02.02.2005 to 01.02.2006, insuring the household goods, including risk for jewellery, valuables, breakdown of domestic appliances and public liability etc. It has been stated in the complaint that the purse of Complainant no. 2/Respondent no. 2 SarojSingla was stolen from Car No. HP48-0055 containing a jewellery pouch and some other items. She lodged an FIR at Manimajra Police Station, Chandigarh immediately after the incident and also sent intimation to the Insurance Company. The Insurance Company appointedMr. S. P. Singh as Surveyor-cum-Investigator for investigation of the complaint. The said Surveyor-cum-Investigator collected the relevant documents, statements and information and submitted his report but thereafter, the Insurance Company appointed another Surveyor. The Insurance Company approved the claims of the complainants for a sum of Rs. 45,900/- based on the report of the second Surveyor and the said amount was paid to them. However, the complainants alleged that the amount approved was much less than the loss sustained by them, which was for an amount of Rs. 3,31,500/-. The complainants accepted the amount of Rs. 45,900/- under protest and filed Consumer Complaint before the District Forum. The District Forum, vide their order dated 23.01.2008, held the complainants entitled to a further amount of Rs. 5,100/- as compensation and Rs. 2,100/- as costs of litigation. The District Forum observed that the complainant no. 2 nowhere mentined that she was having diamond karas in her purse. An appeal was filed against this order before the State Commission, which was allowed and the Insurance Company was directed to pay an amount of Rs. 2.5 lakhs to the complainants on account of reimbursement of the value of diamond bangles and also an amount of Rs. 10,000/- for deficiency in service and Rs. 5,000/- as costs of litigation. It is against this order that the present petition has been made. 3. At the time of arguments before us, the learned counsel for the petitioner has drawn our attention to the copy of the Household Insurance Policy in question saying that the description of the jewellery items as stated in the policy was as follows:- Diamond items 1 set Necklace-60,000, 1 Ring-10,000/-, 1 pair Tops-40,000, 2 Bangles-2,50,000,1 set Necklace-1,55,000 Gold items-4 Bangles-35,000, Necklace-16,800, 1 Necklace-36,600, 2 Karas- 33500. 4. Learned counsel argued that as per copy of the FIR No. 313 recorded by the police on 22.09.2005, under Section 379 IPC, it has been stated that total value of the property stolen was Rs. 10,000/- only. The particulars of the articles stolen have been mentioned as, “One mobile phone Nokia No. 6681 and some cash, gold ornaments, necklace, kady”. However, subsequently, the complainants asked the police on 23.09.2005 to add in the FIR the following items:- 1. One diamond Kara/Chain valuing Rs. 2.5 lakhs. 2. One diamond necklace/pendant valuing Rs. 60,000/-. 3. One Nokia mobile phone valuing Rs. 17,000/-. 4. Cash Rs. 4,000/- to 5,000/- with home key. 5. The learned counsel argued that in the first instance, there was no report about the loss of any diamond kara, rather the report was about the loss of gold ornaments only. Further, in the Insurance Policy also, the coverage was for diamond bangles and not for Karas. Hence, the demand made by the complainant for loss of diamond Kara was not justified as the same was not covered under the policy. She, further, stated that under the special exceptions under section, ‘jewellery and valuables of the policy’, the company was not liable to make payment for the said loss. However, the company had already made payment to the complainants for an amount of Rs. 45,900/-, as per the report of the second Surveyor. They had also made payment of Rs. 5,100/- as allowed by the District Forum. 6. In reply, the learned counsel for the respondents has also drawn our attention to a copy of the Insurance Policy in question saying that under the item, “Jewellery” two diamond bangles at a price of Rs. 2.5 lakhs were included in the list of items assured. He mentioned that there was no difference between a “bangle” and a “kara”, and the State Commission had very clearly spelt out that the only difference between the two was in the thickness of the item. A bangle which had more thickness was often referred to as Kara. The learned counsel further stated that the respondents were not at all negligent in any manner, when the theft took place. He further referred to the reports submitted by S. P. Singh, Surveyor cum Investigator where it had been concluded that the theft claimed of Jewellery as filed by the respondents was correct and genuine claim and no malafide intention was found in the case. The State Commission had rightly relied upon the report of S. P. Singh, Surveyor cum Investigator. The District Forum had not taken note of the fact that the complainant, in statement before the police had informed that she had lost her diamond necklace and diamond kara and diamond churis having value of Rs. 2.5 lakhs. The learned counsel has drawn our attention to the orders passed by the National Commission in Baldev Singh Malhi v/s. New India Assurance Co. Ltd. as reported in I (2003) CPJ 79 (NC), in which, it has been stated that where two investigation reports are contrary to each other, the first one has to be taken into account. He also referred to the order of the National Commission in Murli Agro Products v/s. Oriental Insurance Companyas reported in I (2005) CPJ 1 (NC) in support of his arguments. 7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. 8. From the material on record, it is made out that the most crucial document in this whole episode is the FIR lodged with the police by complainant no. 2, Smt. Saroj Singla on 22.09.2005. It has been very clearly stated in the said FIR that the total value of the property stolen was Rs. 10,000/- and in addition to one mobile phone and some cash, gold ornaments and necklace was stolen. There was no mention of any diamond kara etc. in the said FIR. The complainants have stated subsequently on 23.09.2005 that they had asked the police to add diamond Kara/Chain, diamond necklace/pendent etc. in the list of items stolen. However a copy of any FIR or report recorded by the police on 23.09.2005 has not been produced on record. 9. In the memo of appeal filed before the State Commission, it has been mentioned that it was explained by the complainants in the statements made to the police that she had lost her diamond necklace and diamond karas/churis valuing Rs. 2.5 lakhs. In the letter sent to the insurance company on 23.09.2005, the details of the loss or any estimate of loss have not been mentioned. It has been observed that in the report filed by S. P. Singh, Surveyor cum Investigator, there is a mention of the FIR lodged on 22.09.2005, but there is no mention of any subsequent report made to the police on 23.09.2005. In the report of the second investigator, Surya Surveyor, it has been mentioned that the second report made to the police appears to be “second thought”, for the reasons best known to the complainants. From the above facts, it becomes clear that in the FIR lodged with the police, there is no mention of any diamond item and the total loss is stated to be Rs. 10,000/- only. It is not clear, therefore, as to why the complainants omitted to mention about the diamond items at the time of lodging the FIR before the police. There is a natural presumption, therefore, that the inclusion of the diamond items in the list of articles is an after-thought. 10. Further referring to the Policy in question, it has been mentioned against diamond items that two bangles with a cost of Rs. 2.5 lakhs are in the list of items insured. Against the gold items, two karas with value of Rs. 33,500/- have been mentioned. While, we agree with the contention of the State Commission that the only difference between a bangle and a kara is of thickness and thick bangles are generally referred to as karas; in the policy, however, the term bangle has been used against diamonds whereas the term kara has been used against gold items. We, therefore, tend to agree with the line of argument advanced by the learned counsel for the petitioner that in the instant case, the loss as reported in the FIR relates to gold items only and hence, there is no justification in giving compensation for any diamond item. We, therefore, find no reason to agree with the report of the first investigator, as he has not mentioned any valid ground to include the diamond items in his report while, he has mentioned in detail about the FIR lodged with the police on 22.09.2005. 11. Based on the discussions above, we do not find any justification to be in agreement with the order passed by the State Commission vide which, they have allowed the compensation of Rs. 2.5 lakhs on account of the reimbursement of the value of diamond bangles. It has been stated in the order of the State Commission that the complainants had asked the police to add in the FIR one diamond kara/chain valuingRs. 2.5 lakhs, in addition to some other items. The State Commission has, however, not made it clear as to why they have allowed claim for two diamond bangles. 12. In the light of the discussion above, this revision petition is allowed and the order passed by the State Commission is set aside. It is observed that the order passed by the District Forum reflects a true appreciation of the facts and circumstances on record and hence it is held that the complainants are entitled to receive compensation, as per the order passed by the District Forum. There shall be no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

MEMBER PSM/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

FIRST APPEAL NO. 428 OF 2008

(Against the order dated 11.09.2008 in Complaint No. 11 of 2008 of the State Consumer

Disputes Redressal Commission, UT Chandigarh)

New India Assurance Company Ltd. SCO No. 510/14 Pehowa Road, Govind Nagar Ambala Road, Kaithal (Punjab) Through Manager New India Assurance Company Ltd. Regional Office-I Jeevan Bharti Building 124, Connaught Circus New Delhi-110001

… Appellant

Versus

1. Gopal Gupta S/o Sh. Banarsi Dass Proprietor M/s Varun Jute Industries Peoda Road Kaithal (Punjab)

2. M/s Varun Jute Industries Through its Proprietor Gopal Gupta Peoda Road Kaithal (Punjab)

… Respondents

(Against the order dated 11.09.2008 in Complaint No. 11 of 2008 of the State Consumer

Disputes Redressal Commission, UT Chandigarh)

Gopal Gupta S/o Sh. Banarsi Dass Sole Proprietor M/s Varun Jute Industries Peoda Road Kaithal (Punjab … Appellant

Versus

New India Assurance Company Ltd. Regional Office at SCO No.36, Sector 17-A Near Jagat Theatre, Chandigarh And Branch Office at SCO No. 510/14 Pehowa Road, Govind Nagar Ambala Road, Kaithal Haryana

… Respondent

BEFORE:

HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

Appearance in both matters

For Insurance Company : Mr. Kishore Rawat, Advocate

For Gopal Gupta, Proprietor : Mr. Jos Chiramel, Advocate

M/s Varun Jute Industries

Pronounced on : 3 rd September, 2013

ORDER PER VINEETA RAI

1. First Appeal No.428 of 2008 has been filed by New India Assurance Company

Ltd., Respondent before the State Consumer Disputes Redressal Commission

(hereinafter referred to as the State Commission), being aggrieved by the order of that

Commission which had partly allowed the complaint filed byGopal Gupta (Proprietor of

M/s Varun Jute Industries), Original Complainant before the State Commission, and directed the Insurance Company to pay a sum of Rs.15,15,072/- alongwith Rs.20,000/- as costs to the Complainant. Being aggrieved by the award of lesser amount towards insurance claim, Complainant has also filed First Appeal No. 431 of 2008 seeking enhancement of the insurance claim to Rs.50,53,475/- alongwith interest @ 18% per annum from the date of survey report i.e. 28.03.2007.

Since the parties as also cause of action is common in both First Appeals, it is proposed to dispose of these appeals by one common order. The parties will be referred to in the manner in which they were referred to in the complaint i.e. Gopal Gupta as Complainant and New India Assurance Company Ltd. as

Respondent.

2. Learned Counsels for both parties made oral submissions.

3. Counsel for Respondent/Insurance Company stated that the State Commission

UT Chandigarh erred in not taking cognizance of their preliminary objection that it did not have the territorial jurisdiction to try the complaint as no cause of action had arisen within the territorial jurisdiction of that Commission. It is an admitted fact that the

Complainant had his business at Kaithal (Haryana), the insurance policies were also taken at Kaithal and the claim was lodged and repudiated at Kaithal. Respondent No.1, which is a Branch of Respondent/Insurance Company, has nothing to do with the issuance of insurance policy or repudiation of the claim and had only been impleaded as a party by the Complainant to invoke the territorial jurisdiction of the State

Commission UT Chandigarh.

4. Counsel for the Complainant had taken a contrary plea stating that since the

Respondent/Insurance Company had a Branch in UT Chandigarh, the State

Commission UT Chandigarh was fully justified in entertaining the complaint and disposing of the same. However, the Complainant has filed the appeal only for enhancement of the awarded amount.

5. We have carefully considered the preliminary submissions of

Respondent/Insurance Company challenging the territorial jurisdiction of the State

Commission UT Chandigarh to try this case since admittedly this objection was not discussed or decided by the State Commission in its order. From a perusal of the records filed by both parties, it is not in dispute that the premises which were insured by

Complainant were in Kaithal, the insurance policy was issued inKaithal and the claim was filed and repudiated therein. While it may be a fact that the Respondent/Insurance

Company has a Branch office in Chandigarh, this by itself does not give the State

Commission UT Chandigarh the territorial jurisdiction to entertain the complaint. This issue is squarely covered by a judgment of the Hon’ble Supreme Court of India in Sonic

Surgical Vs. National Insurance Company Ltd. [(2010) 1 SCC 135], wherein it has been held as under: “ Moreover, even if it had application, in our opinion, that will not help the case of the appellant. Learned counsel for the appellant submitted that the respondent-insurance company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala , then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression 'branch office' in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity.”

(Emphasis supplied)

Respectfully following this judgment, we had also ruled accordingly in P.D.

Memorial Religious & Educational Association Vs. New India Assurance Company Limited (First Appeal No. 448 of 2008 decided on 18.04.2013.

6. Learned Counsel for the Complainant fairly concedes that under these circumstances he would have no objection if this case is heard de-novo by the Court having the territorial jurisdiction to decide the same.

7. In view of the above facts, the order of the State Commission UT Chandigarh is set aside on ground of territorial jurisdiction. The case is remitted back to the State Commission UT Chandigarh to transfer the complaint alongwith the evidence recorded by it to the Haryana State Consumer Disputes Redressal Commission within two weeks from the date of receipt of this order for disposal as per procedure laid down in law. Parties through their Counsel are directed to appear before the Haryana State Consumer Disputes Redressal Commission on 09.12.2013. Since it is an old case pertaining to the year 2008, Haryana State Commission is requested to dispose of the complaint as expeditiously as possible and preferably within a period of six months from the date of first appearance.

Counsel for the Respondent/Insurance Company states that in compliance with the order dated 28.01.2009 of this Commission the Insurance Company had deposited a sum of Rs.10 Lakhs with the State Commission, which Complainant was at liberty to withdraw. Counsel for the Complainant states that Complainant has not withdrawn that amount. In view of this, Counsel for the Respondent/Insurance Company states that the said amount be refunded to it. If that be so, the State Commission UT Chandigarh is directed to refund the amount of Rs.10 Lakhs deposited by the Respondent/Insurance Company to the Respondent/Insurance Company with accrued interest.

(VINEETA RAI)

PRESIDING MEMBER

(VINAY KUMAR)

MEMBER Mukesh NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2199 OF 2008 (From the order dated 17.04.2008 in Appeal Case No. 64/2008 of the State Consumer Disputes Redressal Commission, U.T., Chandigarh)

ICICI Prudential Life Insurance Co. Ltd. Having its Regd. Office at: ICICI Prulife Towers 1089, Appasaheb Marathe Marg Prabhadevi Mumbai – 400025 Branch at: ICICI Prudential Life Insurance Co. Ltd. SCO 9-10, 1st Floor Sector 9-D, Madhya Marg, Chandigarh … Petitioner/Opp. Party (OP)

Versus

Dr. Sudhir Kumar Garg Residing at House No.1121 Sector 7, Panchkula – 134109 Haryana

…Respondent/Complainant

BEFORE

For the Petitioner : Mr. Sanjay K. Chadha, Advocate

For the Respondent : NEMO PRONOUNCED ON 4 th September, 2013

O R D E R

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

17.04.2008 passed by State Consumer Disputes Redressal Commission, UT

Chandigarh (in short, ‘the State Commission’) in Appeal Case No. 64 of 2008 – ICICI

Prudential Life Insurance Co. Ltd. Vs. Dr. Sudhir Kumar Garg by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent obtained ICICI Prudential

Forever Life Policy for a sum of Rs.2,19,000/- on 31.1.2002 for a term of 20 years by paying annual premium of Rs.10,037/-. After making payment of 5 annual premiums, complainant surrendered the policy on guaranteed surrender value as per policy documents and requested the OP/petitioner to confirm the cash value of the surrendered policy which was Rs.56,360/-. According to the complainant, OP vide letter dated 23.5.2007 intimated to the complainant that surrender value was Rs. 23,681.26, which was arrived at by assigning some low fraction value to guaranteed additions. Alleging deficiency on the part of OP, complainant filed complaint. OP resisted complaint and submitted that complainant initially approached Ombudsman which was quasi-judicial authority and his complaint was dismissed vide order dated

12.7.2007 and in such circumstances, complaint filed before District Forum is not maintainable. It was further submitted that full value of guaranteed additions was payable only when the policy resulted in a claim by death or by maturity and guaranteed additions on surrendering policy would be restricted to cash value of the said additions arrived at application of discounting factor and surrender value payable to the respondent as on 1.6.2007 was Rs.23,762/- and prayed for dismissal of complaint.

Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.55,155/- along with compensation of Rs.5,000/- for harassment and

Rs.1,500/- as costs. Appeal filed by the petitioner was dismissed by learned State

Commission vide impugned order against which this revision petition has been filed.

3. Authorized Representative of respondent appeared on 23.4.2013 and submitted that he would be filing written arguments and he would not be appearing on next date. Authorized Representative sent written submissions by post, but did not appear on 27.8.2013. Heard learned Counsel for the petitioner and perused record as well as written submissions submitted by respondent.

4. Learned Counsel for the petitioner submitted that as respondent surrendered policy after paying 5 annual premium, he was not entitled to full value of guaranteed additions and was entitled to only Rs.24,000/- on 25.9.2007; even then, learned District

Forum has committed error in awarding Rs.55,155/- and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be modified.

5. Perusal of record clearly reveals that respondent obtained policy for a period of 20 years and surrendered after making payment of 5 annual premiums. Copy of policy at page 40-A of the paper book clearly reveals that policy was subject to and governed by the terms of the policy document and all the terms and schedule contained therein

(enclosed) shall together form a single agreement. As per terms of policy documents, bonus was payable as under:

“Bonus: Guaranteed additions and bonuses (if applicable, under with profit

policies) will be payable in terms of the prospectus and Company’s

internal guidelines and policies and Insurance Regulatory and

Development Authority (IRDA) rules and regulations”.

6. Thus, it becomes clear that bonus was payable as per guidelines and policies issued by IRDA and learned State Commission committed error in coming to the conclusion that there was no evidence that terms of the prospectus and Company’s internal guidelines and policies and Insurance Regulatory and Development Authority

(IRDA) rules and regulations were brought to the notice of the respondent. When these documents were part of the policy itself, respondent cannot say that he did not receive policy documents and terms and conditions and in such circumstances, respondent is bound by the terms and conditions of the policy documents as held by Hon’ble Apex

Court in 2013 (I) SCALE 410 – Export Credit Guarantee Corpn. of India Ltd.

Vs. M/s. Garg Sons International

7. Learned State Commission further observed that there was no evidence as to how petitioner arrived at the figure of approved guaranteed additions. Perusal of record clearly reveals that Insurance Ombudsman by order dated 12.7.2007 after calculation came to the conclusion that respondent was entitled to Rs.23,762/- and not Rs.56,360/-, as per calculations in paragraph 3 of the order which were provided by Vice President’s claim. In such circumstances, it cannot be said that without any calculations petitioner arrived at the figure of Rs.23,762/-.

8. Learned Counsel for the petitioner also placed reliance on II (1996) CPJ 69 (NC)

– Branch Manager, LIC of India & Anr. Vs. A. Paulraj in which also the cash value of any existing vested bonus additions was permissible and it was observed as under: ”Guaranteed Surrender Value: This policy can be surrendered for

cash after the premiums have been paid for at least three years.

The minimum surrender value allowable under this policy is equal

to 30% of the total amount of the mentioned premiums paid

excluding premiums for the first year and all extra premiums and/or

additional premiums for accident benefit that may have been

paid. The cash value of any existing vested bonus additions

will also be allowed.

(Emphasis supplied) The question for decision, therefore, is as regards the cash value of

any existing bonus additions. The contention of the insured is that

the cash value of the bonus should be the same as the accrued

bonus thereon even before the maturity of the policy. That

obviously is not the correct in terms of Condition No. 7. If the

intention was to pay the entire bonus accrued on the policy at any

given point of time before maturity, then the concept of cash value

would not have been incorporated in this condition for calculating

the guaranteed surrender value. The total amount of bonus is paid

on the maturity of the policy along with the final payment and till

then it remains with the LIC which can utilise it for investment

purposes. If it has to pay the accrued bonus earlier than the final

payment, the Condition No. 7 introduces the concept of cash value

of the total accrued bonus upto that point to time, and the cash value has been calculated according to the surrender value factor

which has been clearly indicated in the sheet showing calculation of

the surrender value of the policy. We, therefore, find that the State

Commission has erred in construing the cash value to be the same

as the accrued bonus even, when paid before the maturity”.

9. In the light of aforesaid judgment, it becomes clear that respondent was entitled to only Rs.23,762/- on account of pre-mature surrender of the policy and learned District

Forum committed error in awarding Rs.55,155/- and learned State Commission further committed error in upholding order of District Forum and revision petition is liable to be allowed.

10. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 17.04.2008 passed by learned State Commission in Appeal No. 64 of 2008

– ICICI Prudential Life Insurance Co. Ltd. Vs. Dr. Sudhir Kumar Garg is set aside and complaint is dismissed. We hold that surrender value intimated by petitioner to the respondent is correct and respondent is entitled to receive cheque of only Rs.23,681.26 from the petitioner along with 9% p.a. interest from 23.5.2007 till realization of amount.

There shall be no order as to costs.

..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER K NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3061 OF 2008 (From the order dated 03.05.2008 in Appeal No. 02/2008/CSD/09 of the State Consumer Disputes Redressal Commission, U.T. of Daman and Diu and Dadra and Nagar Haveli at DIU)

United India Insurance Co. Ltd. Dhanlaxmi Market, Subhash Road, Veraval. … Petitioner/Opp. Party (OP) Versus 1. Smt. Havaben W/o Sabhirbhai Mansuri, Adult, R/o Vanakbara, Diu.

2. M/s. Arif Enterprise, Through Partner Suleman Haji, Ismail, Navabandar, Taluka: UNA, Junagadh District, Gujarat.

…Respondents/Complainants

BEFORE

For the Petitioner : Mr. A.K. De, Advocate

For the Res. No. 1 : Mr. R.M. Vithlani, Advocate

For the Res. No. 2 : Ms. Kalpana, Advocate

PRONOUNCED ON 4 th September , 2013

O R D E R

3.5.2008 passed by the State Consumer Disputes RedressalCommission, U.T. of

Daman and Diu and Dadra and Nagar Haveli at DIU (in short, ‘the State Commission’) in S.A. No. 02/2008/CSD/09 – Smt. Havaben Vs. United India Ins. Co. Ltd.

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

2. Brief facts of the case are that complainant/Respondent No. 1’s husband Sabirbhai Mansuri was a driver of truck no. GJ – 17-X-5373 owned by OP No.

2/Respondent No. 2 and truck was insured by OP No. 1/ petitioner. Truck met with an accident on 24.12.2004 and Sabirbhai Mansuri died. It was further alleged that package policy in which personal accident insurance was also incorporated was taken and in case of accident owner/driver were entitled to compensation of Rs.2,00,000/- in case of death. Complainant being wife of Sabirbhai Mansuri filed claim with OP No. 1 which was repudiated on 26.4.2006 on the ground that only the owner was entitled to get compensation. Alleging deficiency on the part of OP, complainant filed complaint before

District Forum. OP resisted claim and submitted that claim was rightly repudiated, as only owner-driver was covered in the policy and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, dismissed complaint. Appeal filed by the complainant was allowed by learned State Commission vide impugned order and directed petitioner to pay Rs.2,00,000/- along with 6% p.a. interest and further awarded Rs.10,000/- as cost against which, this revision petition has been filed. 3. Heard learned Counsel for the parties and perused record.

4. Learned Counsel for the petitioner submitted that as per terms and conditions of the policy, owner-driver was covered under the policy and learned District Forum rightly dismissed complaint, but learned State Commission has committed error in allowing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the Respondent No.1 submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed. Learned Counsel for the Respondent No. 2 supported Counsel for the

Respondent No.1.

5. Learned State Commission has held that there was no dispute that Sabirbhai Mansuri was employed by Respondent No. 2 as a driver and there was no dispute that package policy was taken by Respondent No. 2 from petitioner and there was no dispute that driver died in accident.

6. Now, the main question to be decided in this case is as to whether; deceased Sabirbhai Mansuri was covered under the policy or not. Learned

District Forum came to the conclusion that deceased was neither owner of the vehicle, nor policy was issued in his name; hence, he was not covered under the policy, whereas learned State Commission came to the conclusion that driver as well as owner both are independently covered under the package policy and further observed the words “owner-driver” are employed to cover both the situations and not the one that only the owner-driver is covered and that the driver who is not the owner is not covered.

7. Perusal of insurance policy clearly reveals that this policy was taken by OP No.

2 through partner Suleman Haji Ismail and personal accident cover for “owner driver” was provided to the extent of Rs.2,00,000/-. Section 4 of the package policy reveals that in case of death of owner-driver of the vehicle in direct connection with the vehicle insured, etc., he was entitled to 100% compensation. The proviso 4 of Section 4 runs as under:

“4. This cover is subject to: (a) The owner-driver is the registered owner of

the vehicle insured herein; (b) The owner-driver is the insured named in this

policy; (c) The owner-driver holds an effective driving

license, in accordance with the provisions of

Rule 3 of the Central Motor Vehicles Rules,

1989, at the time of the accident.

This proviso makes it very clear that owner-driver means, he must be registered owner of the vehicle and his name must be shown as insured in the policy and further, owner- driver must hold effective driving licence at the time of accident. Learned Counsel for the petitioner has also placed Annexure ‘B’ at Page 36 of the paper book and Clause ‘A’ of GR 36 runs as under:

“A. Compulsory Personal Accident Cover for

Owner-Driver

Compulsory Personal Accident Cover shall be applicable under

both Liability only and Package policies. The owner of insured vehicle

holding an effective driving licence is termed as Owner-Driver for the

purposes of this section.

Cover is provided to the Owner-Driver whilst driving the vehicle including

mounting into/dismounting from or travelling in the insured vehicle as a co-

driver.

NB: This provision deals with Personal Accident cover and only the

registered owner in person is entitled to the compulsory cover where

he/she holds an effective driving licence. Hence compulsory PA cover

cannot be granted where a vehicle is owned by a company.

8. Perusal of terms and conditions of package policy and GR 36 makes it very clear that person holding an effective driving licence for the purpose of this policy and compulsory personal accident cover cannot be granted when the vehicle is owned by a

Company. Learned State Commission has committed error in arriving at the conclusion that driver of the vehicle is also covered under the policy, whereas only owner of the vehicle that too having valid driving licence is covered under this policy only if insurance policy has been issued in his name. In the case in hand, insured is Respondent no. 2, i.e., M/s. Arif Enterprise and in such circumstances, by no stretch of imagination, deceased Sabhirbhai Mansuri who was driver was covered under package policy issued by petitioner and learned State Commission committed error in allowing appeal. Learned District forum rightly dismissed complaint, as deceased was not covered under the policy. 9. Learned State Commission has allowed appeal on the ground that if there is any ambiguity with regard to clauses in the insurance policy and when two interpretations are reasonably possible one of which favours policy holder, is to be accepted. We agree with this proposition of law, but we do not find any ambiguity in the clauses of policy issued by the petitioner and in such circumstances, complainant being beneficiary are not entitled to any claim and petitioner has not committed any deficiency in repudiating the claim.

10. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 3.5.2008 passed by learned State Commission is set aside and order of

District Forum dated 4.12.2007 is affirmed. There shall be no order as to costs.

..……………Sd/-………………

PRESIDING MEMBER

..…………Sd/-…………………

( DR. B.C. GUPTA )

(From the order dated 10.03.2008 in First Appeal No. FA-07/849 of Delhi State Consumer Disputes Redressal Commission)

1. M/s. New India Assurance Co. Ltd. R.O. –I, Jeevan Bharthi Building, Connaught Place, New Delhi.

2. The New India Assurance Co. Ltd. Through its Divisional Manager, CDU, 31700, C- 2 Mahavir Bhawan, 4th F. Karampura Community Complex New Delhi

... Petitioner(s)

Versus

Sh. Ajit Kumar B-I, Suneja Tower-I, District Centre, Janakpuri, New Delhi – 110058

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Ms. Pankaj Bala Varma, Advocate

For the Respondent Mr. M.C. Premi, Advocate

With Respondent in person

PRONOUNCED ON : 4 th SEPT. 2013 O R D E R

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

Act, 1986 by the petitioner, New India Assurance Co. Ltd. (hereinafter referred to as

‘Insurance Company’) against the impugned order dated 10.03.2008 passed by the

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

Commission’) in FA No. FA-07/849, “M/s. New India Assurance Co. Ltd. versus AjitKumar”, vide which while allowing the appeal, the order passed by District

Consumer Disputes Redressal Forum, Janakpuri allowing the complaint filed by the respondent was slightly modified and the awarded amount of Rs.2.65 lakh by the

District Forum was reduced by 5% on account of depreciation of the value of the vehicle in question.

2. Brief facts of the case as contained in the complaint are that the respondent/complainant is doing trading business of communication accessories at Suneja Tower-I, District Centre Janakpuri, New Delhi. He got his Maruti Zen Car bearing registration number DL-09-CE-8578 insured with the petitioner/OP vide policy no. 311700/31/04/01/00001575 covering the period from 29.06.2004 to 28.06.2005 for a sum of Rs.2.65 lakh on payment of a premium amount of Rs.9,841/-. It has been stated by the complainant that on 18.02.05 at about 11:30 p.m., he was coming back from his office at District Centre Janakpuri by the above-said car to his residence at C

Block, Janakpuri. When he reached near Bharti College, he felt a strong need for urination. He stopped his car on the left side of the road, when there was no one in the vicinity at that time. The complainant switched off his car, took out the ignition key and went for urination. When he returned back, he did not find his car there. The briefcase of the complainant was kept in the car, which contained important documents, including a set of documents of the car as also the second key of the car. The complainant informed the local Police about the theft of the car and also the financing bank and the respondent insurance company. An FIR no. 85/05 was registered at Police

Station Janakpuri, New Delhi. On 25.5.2005, he submitted the requisite claim papers vide claim No. 311700/31/04/0652 with the respondent after fulfilling all the requirements. However, the claim was repudiated vide letter dated 24.08.2006 on the recommendations of the investigator. The complainant filed the consumer complaint in question, which was allowed by the District Forum vide order dated 24.09.2007 and a sum of Rs.2.65 lakh was allowed to be given to him, besides a sum of Rs.7,000/- as compensation for harassment. An appeal against this order was allowed by the State

Commission on 10.03.2008 and the said order was slightly amended and the State

Commission reduced the awarded amount of Rs.2.65 lakh by 5% on account of depreciation and maintained the rest of the order. The present revision petition has been filed against this order of the State Commission.

3. At the time of arguments before us, learned counsel for the petitioner Insurance

Company stated that the complainant/respondent, as per his own version had left the car unlocked on road and hence violated the terms and conditions of the insurance policy in question. It had been stated in the general conditions to the policy that, “the insured shall take all reasonable steps to safeguard the vehicle from loss or damage…….”. In his statement recorded by Shri Sanjeev Nijhawan, investigator, appointed by the petitioner, the complainant stated that, “at the time of incident, the key was in the car which has been taken away with car and duplicate key is with me.” In the complaint, however, he stated that he had taken away the ignition key and went for urination and the second key of the car was there in the briefcase, kept inside the car. This was an apparent contradiction in the stand taken by the complainant. Learned counsel has drawn our attention to the order passed by this

Commission in “The New India Assurance Co. Ltd. versus T.V. Sarathi” [RP No.

2555 of 2005 dated 19.03.2009], in which it has been stated that the insurance company would not be liable to loss/damage of the unattended property, if the insured was found negligent in safeguarding the said property. Further, in another case,

“Jagdish Parshad versus ICICI Lombard General Insurance Co. Ltd.” [II (2013)CPJ

578 (NC)], the National Commission had taken a similar view saying that negligence on the part of the complainant leaving the vehicle unattended and unlocked was sufficient to hold that there was violation of terms and conditions of the policy. The facts in this case were almost similar to the present case as the driver and cleaner had left the vehicle unattended on road, with keys within the said vehicle for urination and in the meanwhile, some unknown persons had taken away the said vehicle.

4. Learned counsel for the respondent stated that as mentioned in the complaint, it was very clear that he had taken the ignition key of the car, when he went for urination. In the statement recorded by the investigator, the version that duplicate key was with him had been added later. Learned counsel further stated that the complainant had lodged report with the nearest police station. He further stated that even if, there was violation of the terms and conditions of the policy, the claim should at least be settled on ‘non-standard’ basis. Learned counsel invited our attention to the case “National Insurance Company versus Lajwanti” [II (2007) CPJ 48 (NC)]”, saying that when the factum of theft was not doubtful, the order passed allowing the claim was not illegal. Further in case, “National Insurance Co. versus Ajay Kanwar” [II (2008)

CPJ 381 NC], the National Commission has held that the appointment of an investigator was not backed by any statute and hence there report should not be given any credence. In “National Insurance Co. Ltd. versus Sanjay Shivhare” [Revision

Petition No. 2393/2003 and 2/2004 decided on 13.09.2007], the National Commission laid down the guidelines for settlement of claims on ‘non-standard’ basis.

6. From the factual matrix of the case, it becomes abundantly clear that the complainant has violated the terms and conditions of the policy, by leaving the car unlocked on the road-side in the late hours of the night. As per the version contained in the complaint, he took away the ignition key with him and the duplicate key was in a briefcase inside the car, whereas in his own statement before the investigator, the complainant stated that the main key had been taken away with the car and the duplicate key was with him. There is a clear contradiction in the stand taken by the complainant in his complaint and in his statement made before investigator. Had the ignition key been with him, he would have mentioned this fact in FIR and submitted key along with FIR to Police Station. Further, it is very clear that the complainant had his office at District Centre, Janakpuri and at the time of alleged incident, he was going to his residence at ‘C’ BlockJanakpuri. It is highly improbable that while travelling from his place of work to his residence, both of which are located in the same colony of New

Delhi, the complainant felt such a strong urge for urination that he had to stop his car on a public road and then go for urination. The investigation made by the Police by which they have sent untraced report, makes it appear that it is a concocted story built-up by the complainant for lodging claim with the insurance company. It has been stated in the report of the investigator that the complainant unofficially informed him that his car was snatched from the same spot by some unknown persons at gun-point. The investigator reached the conclusion that the complainant failed to take care of the car as is expected from a person of ordinary prudence. It has been stated in the written statement filed by the insurance company that the maxim, “sic utere tuo ut alienum loedas” – A person is held liable at law for the consequence of his negligence.”

7. The citations quoted by the learned counsel for the petitioner at the time of arguments make it clear in categorical terms that when the complainant had left the vehicle unattended and unlocked, it amounted to violation of terms and conditions of the policy and the claimant was not liable to be paid for compensation. The citations cited by the respondent do not help him in any manner, because there is a clear violation of the terms and conditions of the policy in the present case.

8. Based on the discussion above, this revision petition is allowed and the orders passed by the District Forum and State Commission are set aside and the complaint is ordered to be dismissed. There shall be no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

(Against the order dated 12.09.2007 in Complaint Case No. 07/123 of the

Delhi State Consumer Disputes Redressal Commission)

M/s Tilda Riceland Pvt. Ltd. 42nd Milestone, NH 8 Delhi Jaipur National Highway Gurgaon

… Appellant

Versus

1. M/s United India Insurance Co. Ltd. Regional Office Kanchenjunga Building, 8 th Floor 18, Barakhamba Road New Delhi-110001

2. Branch Manager United India Insurance Co. Ltd. Branch Office-I 30-31A, Jeevan Vikas, 4th Floor Asaf Ali Road New Delhi-110002

… Respondents

BEFORE:

For Appellant : Mr. S.M. Tripathi, Advocate

For Respondents : Mr. Kishore Rawat, Advocate

Pronounced : 4 th September, 2013

PER VINEETA RAI

1. Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) had dismissed this case at the admission stage on the ground that since this is a case of charging of extra premium and seeking refund of the same, it is not a consumer dispute and, therefore, does not fall within the ambit of deficiency in service on the part of Insurance Company and the complaint, if any, pertains to a breach of contract between the parties for which remedy lies in the Civil Court. Being aggrieved by this order, M/s Tilda Riceland Pvt. Ltd., Appellant herein and Original

Complainant before the State Commission, have filed the present First Appeal.

2. Briefly stated, the facts of the case as per the Appellant/Complainant are that it is a company in the business of buying, selling, distributing and dealing in import and export of rice. It also carries on research and development in all spheres of production, processing and DNA testing of rice etc. It had obtained an Erection All Risk (EAR)

Policy from the Respondent/Insurance Company by paying a premium of

Rs.66,76,171/- which was payable in installments over a period from 01.04.1999 to

01.10.2002. It was contended that on a subsequent date, while examining the insurance policy and the endorsement, the Appellant/Complainant came to know that under the EAR Policy and subsequent extensions the premium charged for the

Earthquake risk had not been in accordance with the Memorandum of Understanding

(MoU) entered into between both parties from time to time and that the

Respondent/Insurance Company had wrongly charged the full premium whereas since the coverage for this risk was only 20% of the sum insured Respondent/Insurance

Company could not have arbitrarily charged full premium against a limited liability and

Appellant/Complainant was entitled to 50% refund which amounted to Rs.17,09,679/- with 18% interest apart from 1,00,000/- on account of harassment and mental agony and Rs.50,000/- as litigation costs. As stated earlier, the State Commission dismissed the complaint at the admission stage itself holding it not to be a consumer dispute and observing that the Appellant has a civil remedy. Hence, the present First Appeal.

4. Counsel for the Appellant/Complainant contended that the State Commission had wrongly dismissed the complaint on the ground that the issue involved relates only to breach of contract and not deficiency in service. It was stated that the Appellant had obtained EAR Policy from the Respondent/Insurance Company effective from

01.04.1999 to 31.03.2003 in respect of his business. Before obtaining the insurance policy, a Memorandum of Understanding was entered into and signed by the parties in

1999 specifying the coverage required by the Appellant/Complainant. As per the MOU in 1999, which was confirmed by subsequent MoUs in 2001 and 2003, the earthquake risk in the policy would be on first loss basis by which the insurance liability under the claim would be limited to 20% of the project sum insured and for this limit on liability a discount of 50% on earthquake premium would be admissible under the Tariffs. Later,

Appellant/Complainant came to know that the Respondent/Insurance Company had not granted 50% deduction in respect of the earthquake premium and as soon as it came to know of the same, Appellant/Complainant wrote a letter dated 14.02.2005 to the

Respondent/Insurance Company seeking refund of Rs.16,77,608/- charged in excess from him. Since no response was received, Appellant/Complainant filed a complaint before the State Commission seeking refund and other reliefs as stated earlier.

Counsel for the Appellant/Complainant contended that there was clearly deficiency in service and unfair trade practice on the part of Respondent/Insurance

Company in not honouring the commitment made in the MoU/insurance policy. During the course of arguments, Counsel for the Appellant/Complainant brought to our notice the first MoU wherein it was stated in Para-B that the EAR covers earthquake risk on first loss basis and also the renewed MoU dated 28.03.2003 where in Clause-VII it is reiterated that the coverage for earthquake risk shall be on first loss basis for which

50% discount on the premium towards this head is there and insurance liability under a claim shall be then limited to only 20% on the project sum insured. Since the premium was not bifurcated under different heads in the policy, there was some delay on the part of Appellant/Complainant in detecting this unfair trade practice. The State Commission without appreciating the fact that there was clearly an unfair trade practice on the part of

Respondent/Insurance Company dismissed the complaint in limine without even issuing notice to the Respondent/Insurance Company and thereby depriving them of an opportunity to cross-examine the Respondent/Insurance Company.

5. Counsel for the Respondent/Insurance Company on the other hand contended that the State Commission had rightly held that the dispute is not a consumer dispute because what should be the premium and whether the premium has been rightly charged or that the premium has to be refunded or not, are purely questions of breach of contract where no service per se is involved and, therefore, the same would not fall within the purview of the Consumer Protection Act, 1986. Further, a perusal of the MoU entered into between the parties in the year 1999 would clearly show that there was no clause with regard to discount in the earthquake premium. The policy was issued on the basis of a proposal form submitted by the Appellant/Complainant and a perusal of the policy would also show that normal excess had been provided and the policy document nowhere stated that the Insurer would be liable only to the extent of 20% in case of earthquake claim. Since a normal policy without any stipulation was issued, the

Respondent/Insurance Company was right in charging 100% premium without discount. Further, the MoU in question was entered into between the parties in the year

1999 and the claim for refund of premium was raised in the year 2005 and, therefore, the claim, if any, was time barred.

6. We have heard learned Counsels for the parties and have also carefully gone through the evidence on record, including the MoU and the insurance policy. Clearly from the order of the State Commission it is evident that since the case was dismissed in limine, the State Commission has not gone into the details of the MoU of 1999, the insurance policy as also the subsequent MoUs including those dated 28.03.2003 which deal with various details and specifically the earthquake risk covered. The State

Commission has also not considered the premium chargeable as laid down in the tariffs by the Tariff Advisory Committee appointed under the Insurance Act, 1938, which have a bearing in this case. We are also not in agreement with the finding of the State

Commission that this is not a consumer dispute since the case pertains to a breach of contract. In Synco Textiles Pvt. Ltd. Vs. Economic Transport Organisation & Ors.

[I (1999) CPJ 40] this Commission had held that the mere fact that the default or deficiency on the part of the carrier may also amount to a breach of contract under the general law will not in any way affect the jurisdiction of the forums set up under the special law namely the Consumer Protection Act, 1986 and once it is found that there is hiring of service for consideration and that loss has been caused to the complainant on account of any deficiency in rendering the service, the aggrieved consumer is entitled to seek his remedy under the Consumer Protection Act. In the instant case, the State

Commission instead of going into all these aspects erred in dismissing this case at the admission stage. 7. In the interest of justice, we, therefore, remit the case back to the State

Commission to hear it afresh in accordance with law by affording opportunity to both parties to lead their evidence and other arguments. Nothing said in this order should be construed to be an opinion on the merits of the case. Parties through their Counsels are directed to appear before the State Commission on 02.12.2013.

(VINEETA RAI)

PRESIDING MEMBER

(VINAY KUMAR)

MEMBER

Mukesh

REVISION PETITION NO. 2893 OF 2008 (From the order dated 01.04.2008 in Appeal No.113 of 2006 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla)

Himachal Road Transport Corporation Through its Managing Director, Shimla – 171003

Versus 1. National Insurance Co. Ltd. through its General Manager, 3 Middleton Street, Calcutta

2. National Insurance Company Ltd. Divisional Office Dehradoon through its Divisional Manager, Himland Hotel, Circular Road, Shimla 171001

… Respondents/Opp. Parties (OP)

REVISION PETITION NO. 2894 OF 2008 (From the order dated 01.04.2008 in Appeal No.114 of 2006 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla) Himachal Road Transport Corporation Through its Managing Director, Shimla – 171003

REVISION PETITION NO. 2895 OF 2008 (From the order dated 01.04.2008 in Appeal No.220 of 2006 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla) Himachal Road Transport Corporation Through its Managing Director, Shimla – 171003

BEFORE

For the Petitioners : Mr. G.P. Singh, Advocate

For the Respondents : Ms. Hetu Arora Sethi, Advocate

O R D E R

As these revision petitions arise out of common order of learned State

Commission involving same question of law, we are deciding all these revision petitions by common order.

2. These revision petitions have been filed by the petitioner/complainant against the order dated 1.4.2008 passed by the Himachal Pradesh State Consumer

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

Nos. 113, 114 & 220 of 2008 – National Insurance Co. Ltd. Vs. Himachal Road

Transport Corporation by which, while allowing appeal, order of District Forum allowing complaint was set aside.

3. Brief facts of the case are that complainant/petitioner insured 8500 employees with OP/respondent for Rs.3,00,000/- each for a period of one year i.e. from 22.12.1995 to 21.12.1996. During the subsistence of insurance policy, 17 employees of the complainant/Corporation died and OP made payment in respect of the death cases, but has not made payment in respect of death claims of remaining employees. In separate complaints it was alleged that KitabSingh died on 4.8.1996, Gajender Singh died on

16.5.1996 and Jagat Ram-I died on 21.6.1996. Complainant lodged complaint in respect of death of aforesaid employees and OP asked complainant to submit original documents of post-mortem report and FIR. Complainant informed OP that original documents are lying with the Police authorities and OP assured that claims would be settled, but so far claims have not been settled. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP/respondent resisted complaint and submitted that complaint was not maintainable due to acts, deeds and conduct of the complainant. District forum has no jurisdiction to entertain the present complaint and further submitted that deceased was not covered under the policy and prayed for dismissal of complaint Learned District Forum after hearing both the parties allowed all the complaints and directed OP to pay Rs.3,00,000/- along with 9% p.a. interest and

Rs.3,000/- as cost in each case. Appeals filed by the OP were allowed by learned

State Commission vide impugned order against which, these revision petitions have been filed.

5. Learned Counsel for the petitioner submitted that merely by non-inclusion of names of deceased persons by inadvertence in the list of employees, respondent had no right to repudiate the claim and learned District Forum rightly allowed the complaint, but learned State Commission has committed error in allowing appeal; hence, revision petitions be allowed and impugned order be set aside. On the other hand, learned

Counsel for the respondent submitted that as there was no coverage of aforesaid three employees, learned State Commission has not committed any error in dismissing complaint; hence, revision petitions be dismissed.

6. It is not disputed that deceased persons were employees of the petitioner. It is also not disputed that names of aforesaid three employees in whose respect complaints have been filed were not included in the list of employees given by petitioner to the respondent for whose benefit insurance coverage has been taken by the petitioner from respondent. As names of deceased employees were not included in the list of employees covered under insurance policy, petitioner was not entitled to get claim in respect of aforesaid three deceased employees and learned State Commission has not committed any error in allowing appeal and dismissing complaint.

7. Learned Counsel for the petitioner submitted that by inadvertence, names of aforesaid three employees were not included in the list, but the same were included subsequently, when the mistake was detected, vide letter dated 20.02.1997; hence, petitioner is entitled to get compensation. This argument is devoid of force because at the time of accident, names of aforesaid three employees were not forming part of 8500 employees who were given insurance coverage under the policy. Admittedly, death of aforesaid three employees occurred before 20.02.1997 and in such circumstances, by correction in the list after death of aforesaid employees, petitioner does not get any benefit.

8. In the light of aforesaid discussion, we do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petitions are liable to be dismissed.

9. Consequently, revision petitions filed by the petitioner are dismissed with no order as to costs.

..……………Sd/-………………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER k NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION NEW DELHI

ORIGINAL PETITION NO. 398 OF 2000

1. Adarsh Chemicals & Fertilizers Ltd. Udhna, Surat – 394210 Gujarat

2. Dr.Prakash D.Patel Director Adarsh Chemicals & Fertilizers Ltd. Udhna, Surat – 394210 Gujarat … Complainants Versus

United India Insurance Company Ltd. Head Office, 24, Whites Road Chennai – 600014 … Opposite Party

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

For the Complainants : Mr. Anil Nauriya, Advocate With Ms. Sumita Hazarika, Advocate

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

PRONOUNCED ON 05.09.2013

JUSTICE J.M. MALIK

1. This complaint was filed before this Commission, on 01.02.1999. The Registry has given wrong number as, 398 of 2000. They are directed to be more careful.

2. This is a unique case, where the Insurance Company contends that report of its Surveyor should be discarded because this witness and his report cannot be said to be guileless. The Insurer were to appoint another Surveyor, but for the reasons best known to them, the needful was not done. Can a party claim the benefit by keeping the facts under the hat or to burry one’s head in the sand?.

3. The facts of this case are these. Adarsh Chemicals & Fertilizers Ltd., Udhna, Surat, Gujarat and Dr.Prakash D.Patel, Director of the said Company, complainant Nos. 1 & 2, respectively, filed a claim for Rs.166.07 lakhs, as per the Surveyors report, along with interest @ 18% p.a. They have also claimed consequential losses, including the loss of business to the complainants, in the sum of Rs.60.00 lakhs besides special damages. The complainants obtained insurance policy from the United India Insurance Co.Ltd., the Oppoiste Party, in the sum of RS.22,22,25,000/-. A fire occurred on 16.04.1995, in the reactor of the complainants’ Maleic Anhydride Plant, which gutted the plant and machinery situated in Surat, Gujarat, leading to a major fire loss. The OP was informed telephonically as well as vide letter dated 26.04.1995.

4. In order to produce Malelic Anhydride, a mixture of Benzene and Air, has to be reacted in a shell and tube reactor, in the presence of vandadim pentoxide catalyst. The temperature is controlled through cooling, by circulation on the shell side of fused salt consisting of potassium nitrate, sodium nitrite and sodium nitrate. The technology for producing Maleic Anhydride was licenced from Scientific Design Company Inc., USA.

5. The plant was shut down at about 8.14 hours on 16.04.1995 due to the failure of Gujarat Electricity Board Grid Power Supply on account of tripping of three feeders. The power could not be fully resotred until after 7.00PM. After the re-starting of the reactor, temperature reached high levels and crossed the auto-ignition temperature for the gas mixture which resulted in fire. Due to fire, the entire batch of catalyst was damaged irreversible and non-selectively along with the springs, besides gas mixture and thermocouples. The excessively high temperature generated by fire also brought about change in the microstructures, reactor, tube sheets. The cause of fire was auto-ignition of the gas mixture in the reactor due to rise in temperature caused by continued reaction and the lack of salt circulation, which otherwise could have aided in the removal of heat.

6. The facts of the fire stands confirmed vide Panchanama, dated 29.04.1995, the report dated 24.07.1996 of the Loss Prevention Association of India Ltd., Assessment made by Technical Collaborator, Scientific Design Company Inc., USA, vide their letters dated 23.05.1995, 19.09.1995, 31.07.1996 and 23.09.1996, which confirmed the temperatures at which fire could occur and catalyst would sinter, the comments received from the Indian Institute of Petroleum, Dehradun, Analysis reports received from the Gujarat Industrial Research & Development Agency, Baroda, a Government of Gujarat Organisation, Analysis report dated 17.06.1995 of Electrical Research & Development Association, Vadodara. The Metallographic report, dated June, 1995 of Larsen & Toubro Ltd, Mumbai, confirmed that the tubesheet of the reactor was affected. The data sheets of the Loss Prevention Association of India Ltd. and the technical work on Maleic Anhydride by B.C.Trivedi and E.M.Culbertson, complainant’s Technology Development Centre at Pune, Joint Survey Report, dated 09.12.1996, confirmed the auto-ignition temperatures.

7. The OP refused to accept the survey report. Thereafter, negotiations took place between the parties. The OP Company vide its letter dated 03.11.1997, contended that it will re- examine the matter. Vide their letter dated 05.02.1998, the OP informed the complainant that, although, the matter had been re-examined, yet, they had concluded that the loss did not fall within the ambit of the policy. OP repudiated the claim, vide its repudiation letter, dated 05.02.1998. The main plea taken by the OP was that no fire occurred in the premises, in dispute. Ultimately, this complaint was filed with the prayers, detailed above.

8. In the written statement, the OP has placed reliance on the repudiation letter dated 29.08.1997. The claim of the complainant was repudiated on the following grounds, as per repudiation letter :- “ 1. At 8.00AM, power failure stopped the reactor from working and the power was restored at 7.00PM, i.e., after 11 hours. The reactor was started without warming up the catalyst bed. Reportedly, this was overlooked. 2. While feeding Benzene at 8.00PM, salt circulation pump was not started. This was also overlooked. 3. The reactor did not start and the reactor was shut down at 9.20PM. In this duration of 75 minutes the temperature reading of the Bottom of reactor alone was observed. Temperature reading of the top of the reactor was not monitored. 4. Salt outlet temperature was not monitored. Salt circulation pump was not started. 5. It is claimed that temperature of salt outlet was 476 C (against normal temperature of 380 C). The gas outlet temperature is claimed to be at 1200 C. Besides only bottom of reactor temperature was observed and top of reactor temperature was not monitored. One fails to understand as to how only one out of the 3 temperatures was continued to be monitored by the operator for 70 mints. The control panel of the reactor will normally contain all these reacorders together. The operator can look at them in a single glance, in which case it is curious to note how he could look fixedly at one guage without allowing his eyes to wander to rest of the temperatures for a long period of 70 minutes. 6. The report of I.I.P. is of a general nature only. Insured did not refer the exact parameters and sequence to IIP to come out with their views. In fact, the date on the catalyst was not supplied to IIP. 7. Considering the report of Alpha and the stimulation exercise of the insured the following are observed. a) Heat balance exercise not carried out

b) The high temperature readings observed simulation study are not agreed by Alpha. c) Dynamic simulation study of insured is not verified from any unbiased source. d) The temperature at which sintering of the catalyst occurs is disputed by Alpha. e) Alpha observes that fire, if at all, cannot be prolonged for 75 minutes. f) The reactor has high gas velocity. So the high temperature of the salt solution indicates only runaway reaction and not a fire. A careful consideration of all the above points, reveal that :- a. There is no damage to any part of reactor except catalyst. b. No fire came out of shell/ tube sheet joints

c. No show of open flame or glow was observed. d. No fire fighting took place.

e. No external accidental spark or any other cause is established for the origin of the alleged fire. In view of the above, we regret to inform that the claim is to be treated as “No Claim” since the alleged occurance did not get established”.

9. Other defences set up in the written statement are these. Complicated and disputed facts are involved in this case. The case should be decided by the Apex Court as per law laid down in Syncho Industries Vs. State Bank of Bikaner, (2002) 2 SCC 1. The complaint is barred by time. There is no deficiency on the part of the OP. All the allegations are incorrect.

10. We have heard the counsel for the parties. The learned counsel for the Insurance Co., OP, vehemently argued that there is no deficiency on the part of the OP. The above said loss occurred due to negligence on the part of the complainants. They did not take the action in time. There was no fire at all. The report submitted by the Surveyor is not correct. He admitted that no Second Surveyor was appointed. Only one Investigator inspected the spot and another one was assigned the work of assessing the loss, if any. It was argued that the OP cannot be held liable for the mistake committed by the complaiant itself.

11. His argument is a strawman intended to divert us from real issue. His plea is typically gauche. Attention of this Commission was invited towards the report submitted by Alpha Project Services Pvt. Ltd., Baroda, who were employed by United India Insurance Co. Ltd., through Surveyors Rakesh Narula & Co., to investigate the above said incident on 16.04.1995. The relevant extracts of its report rather go contrary to the repudiation report and support it to some extent. It was mentioned :- “ 4. Incident Description :-

………. After introduction of the feed, it was observed that the temperature in the bottom section of the reactor was dropping instead of going up and there was no sign of reaction being initiated. Temperature data in the top section of the reactor could only be seen on the DCS screen and they were not stored. The gas temperature at the reactor outlet had jumped from 228 to above 480* C (average outlet being 477*C). Operators may not have seen the temperature rise in the top section as well as at the outlet and therefore the salt circulation pump was not turned on. As a result, the salt outlet temperature also had shot up to 480*C. This temperature probably was also overlooked by the operators. The plant was then taken under shut-down as the operators felt that reaction was not commencing.

6.2 Reaction Initiation :- … … . Based on the information provided by ADARSH, the reaction can initiate when the bed temperature is about 300- 325*C. Since the bed in the top section was well above the reaction initiation temperature, the reaction had started there”.

12. Ultimately, he came to the following conclusions in his 19-page long report :- “ 6.7 Combustion/Fire:- … Since the gas mixture was ignitable, occurrence of a small fire cannot be theoretically denied in the last stage of the operator.. 7. Conclusions :- 2. Based on the reactor gas inlet temperature, gas outlet temperature and salt temperature, fire could not have occurred due to static charge. 4. The gas temperature was 477*C at the reactor outlet. Heat transfer area available in the top head is too small to heat the salt solution to 480*C. Thus, high gas temperature must have occurred in the tubes. 5. Since salt circulation was not turned on and the reaction was started in the top section, catalyst temperature jumped to about 400*C in less than fifteen minutes. Once the temperature of catalyst was 400*C, the reaction rate would have been very high resulting into further temperature rise. Thus the catalyst bed in the top had experienced runaway temperature condition with peak temperature of 550-600*C” 6. ……. The heat balance indicates that only 20% feed benzene would have burnt after reaching the auto-ignition temperature had the fire ocurred. 7. Due to high gas velocity in the tubes, fire could have occurred only at the outlet of the tubes. Thus, heat transfer to salt could take place only through the tubesheet. Heat transfer area through the tubesheet was too smalll to heat the salt solution to 490*C. Thus the high salt temperature indicate that high temperature have reached in the tubes because of run-away temperature conditions and not because of long continuous fire in the dome”.

13. The final survey report dated 09.12.1996, prepared by M/s.P.C.Gandhi & Associates & M/s. Rakesh Narula & Co., running into 40 pages, reveals the following facts :- “ 10.12.21 In view of all above facts, follwing facts can be summarised. a) Auto ignition temperature of the mixture was 450 degree C to 475 degree C and was much lower than sintering temperature of catalyst which was above 525 degree C. b) The gas mixture was always under ignitible condition. c) The physical measurements of temperatures and mettallurgical analysis of L & T, concludes that temperature of gases must have gone above 700 degree C. Insured’s dynamic analysis indicates localised gas temperatures to be as high as 1243 degree C, at about 2.1 m bed height inside the tubes just before Benzene feed was stopped. d) Dynamic analysis carried out by Insured confirms the results more close to actual recording. It is understood that insured had applied the same simulation module for actual operating conditions and results were found to be satisfactory. 10.12.22 Considering above discussions, we are of the opinion that damage to the catalyst by all probability was due to rise in temperature following fire as gases will ignite at 450 degree C to 475 degree C before temperature would increase further. Further, initiation of fire would quickly raise temperature of the adjacent catalyst bed which in this case would be the layers just below, and as soon as temperature of the bed reaches above 450 degree C, gases will ignite at that level. In this manner, the flame travelled down from 3.1m to 1.9m by the time Benzene feed was stopped. Therefore, damage to the catalyst can be said to have been caused by an insured peril, i.e. Fire”. [Emphasis supplied]

14. The Surveyors came to the conclusion that the net payable amount is Rs.1,66,06,993/-. The Joint Surevyors’ Report also opined :- “ 15.0 Consequential Loss:-

15.1 Insured have not yet submitted their claim in respect of the consequential loss. Estimated loss is visualised at Rs.50 to 60 lacs”.

15. It must be borne in mind that the claim does not include the consequential loss. It is not to be granted by mere asking of the Surveyors. We are of the considered view that there is no reason to discard the report of the Surveyor. No cogent and plausible reason was given by the OP. In D.N.Badoni Vs. Oriental Insurance Co. Ltd, 1 (2012) CPJ 272 (NC), the Bench headed by his Lordship, Mr. Justice Ashok Bhan, was pleased to hold :- “ It is well settled law that a Surveyor’s report has significant evidentiary value unless it is proved otherwise, which petitioner has failed to do so in the instant case”.

16. In United India Insurance Co. Ltd., & Ors. Vs. Roshan Lal Oil Mills Ltd. & Ors., (2000) 10 SCC 19, the Hon’ble Apex court was pleased to hold :- “ 7. The appellant had appointed joint surveyors in terms of Section 64-UM(2) of the Insurance Act, 1938. Their report has been placed on the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on this basis that the claim was not found entertainable. This is an important document which was placed before the Commission, but the Commission, curiously, has not considered the report. Since the claim of the respondent was repudiated by the appellant on the basis of the joint survey report, the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint survey report, specially the facts enumerated therein. In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission. The case has, therefore, to be sent back to the Commission, for a fresh hearing”.

17. In New India Assurance Co. Ltd., Vs. Protection Manufacturers Pvt. Ltd., (2010) 7 SCC 386, it was held that in the absence of any material to support investigator’s report, National Commission rightly held that fire was accidental and that Investigator’s attempt to attribute the same to arson was motivated and intended to benefit insurer.

18. Counsel for the complainant has also cited few authorities in his favour. In Harris Vs. Poland, Lloyd’s List Law Reports, Vol.69-35, March, 12, 1941,it was held :- “ The object of the contract is to indemnify the assured against accidental loss by fire, and so long as the property is accidentally burnt, the precise nature of the accident seems to be immaterial. It may be therefore concluded that the loss in both cases falls equally, within the contract”.

19. In Sri Venkateswara Syndicate Vs. Oriental Insurance Co.Ltd. & Anr., (2009) 8 SCC 507, it was held that appointing surveyors one after another so as to get a tailor-made report to the satisfaction of the insurer is impermissible.

20. In New India Assurance Co.Ltd., Vs. Zuari Industries Ltd. & Ors., (2009) 9 SCC 70, it was held that the duration of fire is not relevant as long as there is fire, which caused the damage, claim is maintainable even if the fire is for a fraction of a second.

21. Consequently, and according to the Surveyor’s report, we allow the complaint and hereby direct the Insurance Company, OP, to pay a sum of Rs.1,66,09,493/- with interest @ 9% p.a. from the date of filing of this complaint, i.e. 01.02.1999, which be paid within 60 days, otherwise, it will carry interest @ 9% p.a., till the date of realisation. Costs in the sum of Rs.25,000/- be also paid by the opposite party to the complainant, within 60 days, failing which, it will carry interest @ 9% p.a, till realisation.

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

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

dd/14 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2940 OF 2013 (From the order dated 26.03.2013 in Appeal No.131 of 2008 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh) Balbir Singh S/o Sh. Ranjit Singh R/o H. No. 5471/3, Modern Housing Complex, Mani Majra, Chandigarh – 160101

Versus 1. The Chief Administrator, Punjab Urban Development Authority (PUDA) Greater Mohali Urban Development Authority (GMUDA) PUDA Bhawan, Phase – IX, S.A.S. Nagar, Mohali.

2. The Estate Officer, Punjab Urban Development Authority (PUDA) Greater Mohali Urban Development Authority (GMUDA) PUDA Bhawan, Phase – IX, S.A.S. Nagar, Mohali.

BEFORE

For the Petitioner : Mr. Balbir Singh, In person PRONOUNCED ON 5 th September , 2013 O R D E R

This revision petition has been filed by the petitioner/complainant against the order dated 26.03.2013 passed by the Punjab State Consumer

DisputesRedressal Commission, Chandigarh (in short, ‘the State Commission’) in

Appeal No. 131/2008 – Balbir Singh Vs. Chief Administrator, Punjab Urban Dev.

Authority & Anr. by which, while dismissing appeal, order of District Forum dismissing complaint was upheld.

2. Brief facts of the case are that complainant/petitioner vide application no. 235 applied for allotment of commercial booth in Sector-71, SAS Nagar, Mohali. As there was also provision to submit the application under Tatkaal scheme, complainant submitted application under Tatkaal scheme. On the day of draw, complainant was allowed to exercise option in Sector 70 and complainant was asked to visit the vacant booth sites in Sector 70, but no site plan was made available to the complainant before, or at the time of allotment. Complainant visited site and selected site no. 10, which was between site nos. 9 & 11, where the booths were already constructed. Complainant selected site no. 10 and intimated to the OP/respondent and letter of intent for commercial booth no. 10 in Sector 70 was issued by OP to complainant on

29.10.2002. Complainant deposited money from time to time. After allotment of booth, complainant came to know that another site of booth no. 10A was created by OP adjacent to booth no. 10 allotted to the complainant. Booth no. 10A has already been constructed by the allottee resulting into considerable decrease in front of booth no.

10. Inspite of protests from the complainant, his grievances were not remedied and in such circumstances, complainant started construction. OP levied compounding fee. As booth was not suitable to the complainant, he abandoned construction. Alleging deficiency on the part of OP, complainant filed complaint for refund of extra amount charged from him along with interest with a prayer to allot alternative booth at appropriate site. OP resisted complaint and submitted that complaint was not maintainable, as complainant was not a consumer and further submitted that complaint was barred by limitation. It was further submitted that booth was allotted to the complainant as per his choice and he deposited amount after inspecting the site and booth no. 10A already existed before allotment of booth no. 10 to the complainant and as such, there was no deficiency and prayed for dismissal of complaint. Learned

District Forum after hearing both the parties dismissed complaint against which, appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

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

4. Petitioner submitted that he was consumer within the purview of C.P. Act and complaint was filed within limitation. Even after proving the deficiency, the learned District Forum committed error in dismissing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be admitted.

5. Perusal of record clearly reveals that commercial booth was allotted to the petitioner meaning thereby booth was allotted for commercial purpose. Petitioner has nowhere stated in the complaint that booth was taken by him for earning his livelihood by means of self-employment. In such circumstances, complainant does not fall within the purview of consumer under the C.P. Act and complaint was not maintainable before District Forum.

6. Admittedly, booth was allotted on 29.10.2002 and last payment was deposited on 18.7.2003, whereas complaint was filed on 14.5.2007 without any application under Section 24-A of the C.P. Act, which was patently time barred and in such circumstances, District Forum and State Commission in the light of judgment of Hon’ble Apex Court in the case of JT 2009 (4) SCC – State Bank of India Vs. M/s. B.S. Agricultural Industries and IV (2010) 191 (SC) – V.N. Shrikhande ( Dr. ) Vs. Anita Sena Fernandes has not committed any error in dismissing complaint being barred by limitation.

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

..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-……………… ( DR. B.C. GUPTA )

REVISION PETITION NO. 2383 OF 2013 (From the order dated 16.01.2013 in Appeal No. 3663/2012 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)

1. Jyotiben Rajnikant Halani 2. Rajnikant Jethalal Halani Both having add. At: Shri Harihar Co. Op. Hou. Soc. Ltd., Plot No. 25/B-1, Kalavad Road, Rajkot … Petitioners/Complainants Versus Gordhanbhai Ramjibhai Pipalva Add: Sheri no. 3, Chitrakunj Society Akshar Road, Nr. Panchvati Society, Rajkot

…Respondent/Opp. Party (OP)

BEFORE

For the Petitioners : Mr. Varshal M. Pancholi, Advocate PRONOUNCED ON 6 th September, 2013

O R D E R

This revision petition has been filed by the petitioners/complainants against the order dated 16.01.2013 passed by the Gujarat State Consumer DisputesRedressal Commission, Ahmedabad (in short, ‘the State Commission’) in Appeal No. 3663/2012 – Smt. Jyotiben Rajnikant Halani & Anr Vs Shr GordhanbhaiRamjibhai Pipalva by which, while dismissing appeal, order of District Forum dismissing complaint was upheld. 2. Brief facts of the case are that complainants/petitioners purchased house from the OP/respondent constructed on sub plot No. 25/B-1 by registered Sale Deed dated 25.3.2010. At the time of purchase of house, OP told to the complainant that construction of the house is of good quality, whereas construction was of poor quality and there were various types of defects in the constructed house. It was further alleged that inferior material was used. OP has committed deficiency in service in selling house of inferior quality. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that there is no relationship between the complainant-OP that of consumer-trader. It was further stated that there were no defects in the house and inferior material was not used and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint. Petitioner filed appeal before the learned State Commission, which was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

4. Learned Counsel for the petitioner submitted that respondent was a builder and sold house of inferior construction and thus, committed deficiency in service; even then, learned District Forum committed error in dismissing complaint and learned State Commission committed error in dismissing appeal; hence, revision petition be admitted.

5. Perusal of record clearly reveals that respondent has not sold the house to the petitioner in the capacity of any contractor or developer, but has sold the house constructed by him for his own residence. Completion certificate of the house was issued on 25.3.2008, whereas house has been sold by registered Sale Deed dated 25.3.2010. In such circumstances, there cannot be any relationship of service provider between the petitioner and the respondent and learned District Forum has not committed any error in dismissing complaint. 6. As far as quality of construction is concerned, learned District Forum came to the conclusion that petitioner failed to prove inferior quality of construction. Learned State Commission also affirmed this finding and we do not find any illegality, irregularity or jurisdictional error in the impugned order which calls for any interference.

..………………Sd/-……………

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

REVISION PETITION No. 3292 of 2012 (From the order dated 15.02.2012 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in Appeal no. FA no. 225 of 2010)

The Oriental Insurance Company Ltd. Represented by its Divisional Manager, Innespeta Rajahmundry Through its Chief Manager Head Office, New Delhi Petitioner

Versus 1. Bikkina Lakhsmi Kantham Wife of B N L N Narayana Rao H NO. 80-28 – 2, A V Appararao Rao Thotaramulunagar, Opp. Bible Place Rajahmundry Andhra Pradesh

2. Dr Smt Yarlagadd Uttamalakshmi M S Wife of Y Jaya Prasad, Sreeram Nursing Home Gowthami Grandhalaya Street Rajahmundry Andhra Pradesh Respondents

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

For the Petitioner Ms Savita Singh, Advocate with Mr Arvind Gupta, Advocate

For the Respondent Mr Maibam N Singh, Advocate

Pronounced on 6 th September 2013

REKHA GUPTA

RP no. 3292 of 2012 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the final judgment and order dated 15.02.2012 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (‘the State Commission’) in First Appeal no. 225 of 2010. The brief facts of the case as per the respondent no. 1/complainant are that the respondent/complainant is a resident of Rajahmundry and she approached respondent no. 2/ opposite party no. 1 who is running a nursing home under the name and style of “Sreeram Nursing Home’. On 20.01.1998, as an outpatient for treatment of back pain and bleeding at the time of monthly periods due to uterus trouble.

The respondent no. 2/ OP no. 1 after verification of the annexure B & C reports, advised the respondent to undergo Hysterectomy operation. Respondent no. 2/ OP 1 conducted the operation on 07.02.1998 and discharged the respondent on 14.02.1998. In spite of the medicines, used as prescribed by the respondent no. 2, the respondent no. 1 has been suffering with over sweating, folding of the skin, getting frequent fever and the entire body suffering with soothing pains.

The respondent informed the respondent no. 2 on 22.03.1998 about the troubles suffered by her subsequent to the operation and after discharge from the hospital, such as over sweating, folding of skin (Wrinkles), shooting pains in the entire body and frequent fever etc. Thereupon the respondent no. 2 informed the respondent that these side effects may be caused due to the removal of ovaries as the respondent no. 2 removed the ovaries of the respondent at the time of operation, and the problems will be cured, if medicines are used for a period of six months.

The respondent then lost confidence on the treatment administered by the respondent no.2 and approached another Gynaecologist on 26.03.1999. The said Gynaecologist informed the respondent no. 1 that side effects may occur due to the removal of ovaries and in the case of the respondent, there was reason for removal of ovaries of the respondent as per the scanning report.

The respondent no. 1 is a house wife with two children aged about 15 and 13 years to look after. Her husband is working as an employee (i.e., LDC) in the State Government and the entire family is dependent upon the monthly salary of her husband. Soon after the discharge from the respondent no.2’s hospital, the she became handicapped and disabled person due to over sweating, frequent fever, shooting body pains, folding of skin and other problems. She has become dependant on her husband and her children for every day to day needs.

Respondent no. 1 has claimed Rs.3.00 lakh as compensation, general damages for the loss or injury and continuous suffering due to the negligence of respondent no. 2 and further an award of Rs.10,000/- as cost.

In their written reply, the petitioner/ opposite party no. 2 and respondent no. 2/ OP 1 have stated that it is an admitted fact the respondent consulted the respondent no. 2 on 20.01.1998 as an outpatient. During that visit, the respondent no. 1 stated that she was suffering from pain in abdomen, backache, excessive menstrual bleeding and bysmenorrhoca, since a year prior to the consultation. The respondent no. 1 stated that she is the mother of two children. Respondent no. 2 conducted clinical examination and found the general condition good, except that the respondent was nervous and apprehensive. Respondent no. 2 after systematic clinical examination found tenderness in the lower abdomen. The internal examination revealed enlargement of uterus, which was found to be firm and tender and both the ovaries were tender. After such clinical and internal examination, the respondent no. 2 put the respondent on differential diagnosis of chronic pelvic inflammatory disease or adenomyosis of uterus or endometriosis of pelvic organ. The respondent no. 2 advised the respondent to undergo ultrasonic test, blood and urine examinations. After prescribing antibiotics, the respondent no. 1 was advised to come for check-up after fifteen days. Thus, after systematic clinical and internal examination only the respondent no. 2 prescribed medicines. Respondent no. 2 took into consideration the fact that the respondent no. 1 is the mother of two children that she was suffering from bleeding and pain, that there was no relief in spite of medical treatment and advised the surgical treatment of removal of uterus and exploration of pelvic organs. Respondent no. 2 explained these facts to the respondent and her husband in detail. She also explained to them the merits and demerits of the surgical intervention. A study of Exhibit A 3 (trans-vaginal and transabdominal of pelvis) established presence of fibroid, indicating tumour on the uterus. Respondent no. 2 on the surgical table, did exploration of the uterus, tubes, ovaries, bowels and intestines of the respondent. After such exploration, the respondent no. 2 found that the uterus was enlarged and fixed because of adhesions and both the ovaries were adherent very much posterior to uterus. This was due to endometriosis. The respondent found that the ovaries were very much inflamed and haemorrhagic, i.e., blood stained. The respondent no. 2 on observing this condition of the respondent no. 1 after exploration of the organs on the surgical table diagnosed that the respondent no. 1 is suffering from adeaomyosis of uterus and pelvic endometriosis with adhesions.

The respondent no. 2 thus found that the ovaries were very much adherent and in an inflamed condition and therefore found it essential to remove the ovaries. The respondent no. 2 after such diagnosis informed the respondent no. 1 about the condition of the ovaries and the necessity of removing them while removing the uterus. The respondent no. 2 also informed PW2 who was present at the time of the surgery about the necessity of removing the ovaries. The respondent no. 1 who was conscious on the surgical table informed the respondent no.2 that she got full confidence in her and gave consent for removal of the ovaries. PW2 who was also informed of the necessity to remove the ovaries also gave his consent. The respondent no. 2 thus in the interest of the respondent and in order to provide her relief, removed her ovaries. During the course of surgery, the respondent no.2 also removed the appendix of the respondent. All the removed organs were shown to PW2 and the respondent no. 2 explained about the observations found by her on the organs of the respondent and the necessity of removing the ovaries and appendix to PW2.

The District Consumer Disputes Redressal Forum II, Rajahmundry EG District (‘the District Forum’) “allowed the complaint and directed the petitioner/ OP 2 to pay a sum of Rs.3.00 lakh as compensation and general damages to the respondent/ Complainant. A further amount of Rs.10,000/- to be paid as costs”.

Aggrieved by the order of the District Forum, the petitioner filed a First Appeal no. 225 of 2010 before the State Commission and respondent no. 2 filed a first appeal no. 229 of 2010 before the State Commission. The State Commission vide its order dated 15.02.2012 dismissed both the appeals.

Hence, this present revision petition.

We have heard the learned counsels for the parties and have also gone through the records of the case. Along with the present revision petition, the petitioner has filed an application for condonation of delay of 89 days. The reasons given in the application for condonation of delay are as follows:

 The impugned order dated 15.02.2012 was dispatched on 06.03.2012 and then the certified copy was made available to the petitioner by the counsel in the last week of March.  The matter was taken up at the divisional office of the insurance company at Rajahmundry and deliberated upon till 1st week of May. Thereafter the matter was sent to the counsel Syed Moinuddin, Advocate and Notary, Vishakapatnam who gave his opinion to file the revision petition on 4th June 2012. Thereafter a letter was forwarded by the Vishakhapatnam Branch Manager of the petitioner to Delhi Branch Manager of the petitioner by last week of June 2012.  Further, Delhi office of the petitioner sought for the second opinion and thereby forwarded the file to Advocate M J Paul and Co. on 1st week of July 2012.  It is submitted that the petitioner got an opinion from Advocate M J Paul and Co. as to whether a revision petition is to be filed in National Commission against the order dated 15.02.2012 passed by the State Commission in FA nos. 225 and 229 of 2010. Advocate M J Paul and Co. vide letter dated 23.07.2012 opined that the petitioner should file the revision petition stating the merits of the case. Thereafter, it was considered appropriate to file a revision petition before the Hon’ble National Commission and accordingly the files were entrusted to the present counsel for preparing the petition.  All these efforts took some time before a decision was taken at the highest level of the insurance company. The matter was yet again sent back to Advocate M J Paul and Co., in the first week of August to file the revision petition.  The counsel for the insurance company prepared the draft petition and sent it over to the insurance company for settlement and signature in the second week of August. There were certain changes recommended by the insurance company and the draft was returned back to the counsel for incorporating certain changes in the petition in the third week of August. Therefore, the final draft was sent after necessary modifications for signatures of the competent authority of the insurance company. The petition was thereafter returned back to the counsel for filing a revision petition before the National Commission only in the last week of August.

The petitioner is supposed to explain the day-to-day delay, but the needful has not been done. The petitioner has failed to provide ‘sufficient case’ for the delay of 89 days. This view is further supported by the following authorities.

In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”. In R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that “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”. In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that “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 Section 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 bonafides may fall for consideration; but the scope of the inquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.” Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;

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

In Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that “the expression ‘sufficient cause’ cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such ‘sufficient cause’ stated in the application and no such interference in the impugned order is called for”. In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held: “The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”. The present case is fully covered under the case laws cited above Supra. Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 89 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.5,000/-. (Rupees five thousand only). Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer Legal Aid Account of this Commission’ within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 25th October 2013 for compliance.

Sd/- ..……………………………… [ V B Gupta, J.]

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

REVISION PETITION NO. 3563 OF 2012 (From order dated 30.07.2012 in First Appeal No. 1395 of 2010 of the State Consumer Disputes Redressal Commission, Circuit Bench No.3, Jaipur, Rajasthan)

Smt. Pinki Devi Sharma W/O Sh. Mahesh Sharma R/O Ward No. 11,Udaypurwati District Jhunjhunnu, Rajasthan … Petitioner

Versus

1. Sahara India Sahara India Bhawan, 1, Kapurthala Complex, Aliganj, Lucknow Through its Managing Director

2. M/s National Insurance Company Limited D.O.-4, Jeevan Bhawan Phase-1, 43, Hazratganj, Lucknow (UP) … Respondents

BEFORE:

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

For the Petitioner : Mr. J.M. Bari , Advocate With Ms. Meenakshi Bari, Advocate

For the Respondent No.1 : Mr. Deependra Narain Singh, Advocate

For the Respondent No. 2 : Mr. RCS Bhadoria, Advocate for Ms. Sonia Sharma , Advocate.

Pronounced On 9 th September , 2013

PER DR. S.M. KANTIKAR

1. That the present petition has been filed for setting aside the order dated 30.07.2012 of the State Consumer Disputes Redressal Commission, (herein after, ‘State Commission’) Circuit Bench No. 3 Rajasthan which held that the Heart Valve Operation is not included in the Coronary Artery Surgery and for confirming the order dated 10.06.2010 passed by the District Consumer Redressal Forum (Jhunjhunu) Rajasthan which held that the Heart Valve Operation is included in the Coronary Artery Surgery.

2. Facts in brief: That the Complainant had deposited Rs.22,538/- in a term account under the Sahara Silver Labh Yojna Scheme of Respondents/OP under which depositor was covered from any critical illness expenses on treatment. For this petitioner took a policy cover from National Insurance Company. National Insurance Company had issued a Special Contingency Policy No. 451500/9500024/2003, through which employees, agents, associates, journalists, Sanchar Sathis of this Company were covered under Section 1 and depositors / investors were covered under Section 2 details of which is mentioned in Annexure-2. Details of critical illness are mentioned in Annexure-3. During the subsistence of her account there was Heart Valve Operation of the Complainant in Mumbai Hospital, Mumbai for which about Rs.48,000/- were spent. Her claim for reimbursement of expenses was rejected by OP on the ground that Heart Valve Operation is not included in the list of critical illness of insurance company. Therefore, alleging the deficiency in service Complainant filed a complaint before District Forum.

3. The District Forum after considering the facts allowed the complaint by concluding that the Complainant had undergone surgery for mitral valve replacement which is a coronary (artery) surgery and therefore, her medical condition was very much covered under the purview of critical illness declared in the said Scheme. The District Forum directed the OP to pay Rs.48224.50 with interest @ 9% p.a. from 18/10/2004 and cost of Rs.3000/-

4. The OP preferred an appeal No. 1395/2010 before State Commission which was allowed vide its order dated 30.07.2012 holding that in the list of ‘critical illness’ Heart Valve Operation is not included. However, it was admitted the ‘Coronary Artery Surgery’ was included in the said list. It was also observed that Angioplasty and/or any other intra-arterial procedures are excluded from this definition. It has been further observed by the Ld. State Commission in the impugned order as under:

i) Heart Valve Operation comes under that category of critical illness in the list issued by Life Insurance Company. ii) In the list as per Annexure-3 issued by National Insurance Company, Heart Valve Operation is not included. It only includes Coronary Artery Surgery. Angioplasty and/or any other intra-arterial procedures are excluded from this definition. iii) Such amount is not payable for any other heard disease except Coronary Artery Surgery.”

5. Aggrieved by the order of State Commission the Petitioner/complainant filed this revision.

6. We have heard the counsels of the both parties who argued vehemently. The petitioner brought our attention to the decisions on similar issue have been fully settled by this Commission in the following cases:

i. R.P. No. 1588/2010 titled LIC of India Vs. Dajadu Sitaram Mahale decided on 22.09.2011.

ii. R.P. No. 2835/2007 titled LIC of India & Ors. Vs. Pathivada Mrutyunjaya Rao decided on 21.10.2011.

iii. R.P. No. 4259 of 2007 titled The Branch Manager, Sahara India & Anr. Vs. Smt. Rekha Dey decided on 04.04.2012.

7. We have perused the evidence on file, the records like policy, terms and conditions. Therefore, we are of considered view that Mitral Valve Operation for the replacement or for repair of the same definitely comes under the broader category of critical illness and specific category of Coronary Artery Surgery. The present case similar facts and is made against the same party in Rekha Day’s case; it has been categorically held that the surgery for mitral valve replacement is a critical illness under the provisions of the scheme.

8. That according to Insurance Company under Sl. No. 10 of ‘Critical Illness Rider’ repair or transplant of Heart Valve Operation is accepted to be critical illness.

9. As per the Special Contingency Policy Schedule Annexure -2 , in present case the petitioner is covered under Section II- For Registered Depo /Investors. Advance Booking holders for Housing and various services of Sahara India. The petitioner deposited Rs.22538/- ; as per Section II mentioned above petitioner’s critical illness cover is up to Rs.100000/- .

10. It is also clear from the Annexure 1-the copy of Insurance Policy issued by OP- 2 ; under caption Compensation for Coronary Artery Surgery which states : as “ The compensation for coronary Artery Surgery shall be limited to 20% of lint of indemnity mentioned in schedule”.

11. Considering the above condition as per Annexure 1, the complainant is entitled for 20% of Rs.100000/- i.e. Rs.20000/- only. But, the Consumer Protection Act 1986 (in short CP Act) is a social act, therefore very stringent approach towards Complainant’s prayer will defeat the purpose of CP Act. At this juncture we cannot ignore the entire circumstances and sufferings of Complainant in this case.

12. Therefore, we set aside the order of State Commission and modify the order of District Forum as;

The Revision Petition is partly allowed. The OPs are directed to pay Rs.20,000/- along with interest @ 9% p.a. from 18/10/2004. We impose punitive cost of Rs.20,000/- (Rs.10,000/- for each OP) should be paid to the Complainant. This entire order should be complied within 45 days otherwise it will carry further interest of 9% p.a. till realization.

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

……………….…………… (Dr. S.M. KANTIKAR) MEMBER Jr/3

(Against order dated 26.06.2012 in First Appeal No. 95 of 2011 of the State Consumer Disputes Redressal Commission, Tamil Nadu, Chennai) WITH INTERIM APPLICATION NO. 5440 OF 2013 (DELAY)

Dr. S. Alagusundarammal, Asst. Civil Surgeon, Government Hospital, Rajapalayam, Virudhu Nagar District, Tamil Nadu … Petitioner Versus

V. Karuppiah S/o Vel Devar, Pillaiyar Koil Street Ashilapuram, Sholapuram Post Rajapalayam Taluk, Virudhunagar District … Respondent

BEFORE:

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

For the Petitioner (s) : Mr. Yusuf Khan, Advocate for Mr. S. Nambi Aroran, Advocate

PRONOUNCED ON September 9, 2013

1. The Revision Petition is filed against the impugned order of Tamil Nadu State Commission Disputes Redressal Commission, Chennai (in short, State Commission, Tamil Nadu) in First Appeal No. 95/2011 against the Consumer Complaint No. CC/188/2009 of Consumer Disputes Redressal Forum,Virudhunagar. (In short District Forum). 2. Facts in Brief: On 06.08.1999, the complainant admitted his wife Thangam (deceased) for her third delivery in the Government Hospital, Rajapalayam. On 9.8.1999 the complainant was informed that caesarian delivery of Thangam to be conducted at 10 am. The OP instead of attending Thangam attended another delivery. Therefore, the complainant’s wife was taken to operation theatre at 11-25 AM who gave birth to a female child and subsequently Thangam diedat 12-05 PM. Hence, alleging death of Thangam due to negligence of OP due to delay in the delivery. The complainant has been filed before the District Forum seeking compensation of Rs.200000/-. 3. District forum dismissed the complaint with observations as the Complainant is not a consumer. 4. Against the order of District Forum the Complainant preferred an appeal FA 388/2002 before the State Commission. The state commission in it’s order dated 31/10/2006 held that the Complainant is a consumer. The case was remanded back to District Forum for fresh consideration on the specific clarification as word “ES” mentioned in a case sheet of Thangam whether “Elective Surgery” or “Emergency Surgery”. 5. Thereafter, the District Forum decided the case as a fresh and on merits and passed an order directing the OPs to pay Rs.50000/-as compensation and Rs.2000/- as cost. 6. Against the order of District Forum the OP filed an appeal FA 95/2011 before State Commission which dismissed the appeal with following observations: “ On perusal of the case records, it is found that on the date of admission of the complainant, under Ex,. B3 it is recorded as DIL i.e., Dangerously ill. On 8.8.99 also it is recorded so. But the operation performed belatedly only on 9.8.99. We are unable to find any reason for any immediate steps taken by the opposite parties when it is noted as DIL. Though they state that the surgery need for the complainant’s wife is an Elective one, there is no explanation on the part of the opposite parties about the recording as ‘Dangerously ill”. Thus, irresistibly we reiterate that the opposite parties have utterly failed to prove themselves. Hence, we find no merit in this appeal.”

7. Aggrieved by the impugned order of State Commission, the OP filed this revision. 8. We have heard the counsel for the both the parties and perused the evidence on record. 9. The first point of consideration that there is huge delay of 260 days in filing this revision. 10. Counsel for the parties heard. The application moved by petitioner for condonation of delay did not specify the sufficient cause for delay. The petitioner explained the delay in “ para 3 of application as: “ 3. I submit that I was under impression that Government will file an Appeal before this Hon’ble Commission. But it did not do so and on contrary, the medical officer directed me to pay the compensation amount. Therefore, I decided to appeal against the State Commission order. Hence, there is delay of 60 days in filing the present appeal.”

11. It is clear that the ground set up by the petitioner was procedural and departmental delay, which is not ground for condonation of delay as per the Apex Court orders. 12. On this point we have referred several judgments of Hon’ble Apex Court and this commission. In the judgment of Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. and Anr. 2012 STPL (Web) 132 (SC), Hon’ble Supreme Court was pleased to hold: “ 13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/ years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

13. Also we have placed reliance upon the celebrated authorities i) Anshul Aggarwal V. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), ii) R.B. Ramlingam Vs. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)-I (2009) SLT 701-2009 (2) Scale 108 and iii) Ram Lal and Others V. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361. 14. Furthermore, it is necessary to explain that the C.P. Act envisages summary procedure where special period is mentioned for disposing of appeals and revision petitions. The Commission cannot adopt excessive liberal approach

which would defeat the very purpose of the C.P. Act. The case is squarely barred by time. 15. Now, considering the petition on merits; the State commission has rightly observed as stated in para 6 supra. It is quite surprise that the why OP delayed Elective Caesarean Surgery of Thangam patient despite it was recorded as “Dangerously ill” on admission slip. Also, the death of patient within 30 mins of Elective Surgery creates many doubts upon the conduct and treatment by OP. As, even though it was a Govt hospital OP should have advised the post mortem for the cause of death of Thangam. Hence, the entirety appears to be deficiency in service by the OP. 16. It is the fact that in present days the Hippocratic Oath is at stake; Medical Ethics are being violated by some medical professionals have led to demoralized health services to the poor who lost their precious life..!! In this present case deficiency in service by the Complainant lost his wife as well as the new born baby deprived of her mother’s love and feed from birth. 17. Hence, with all forgoing discussions we are of considered view that, this revision petition sans the merit as well there is huge delay which cannot be condoned. We dismiss this revision petition with modification of orders of for a below as; the OP is directed to pay Rs.50,000/- with interest @ 9% p.a. from the date of filing the complaint. In addition we impose punitive cost of Rs.50,000/- to be paid to complainant. This order should be complied within 45 days; otherwise it will carry interest @ 9% p.a. till its realization.

……………….…………… (DR.S.M. KANTIKAR) MEMBER Jr/2

(From the order dated 16.11.2010 in First Appeal No. 399/2008 of Andhra Pradesh State Consumer Disputes Redressal Commission)

1. Smt. Yashoda Jain w/o Late Ramesh Kumar Jain

2. Rasmi Jain d/o Late Ramesh Kumar Jain

3. Rusub Jain s/o Late Ramesh Kumar Jain

4. Raj Jain, s/o Late Ramesh Kumar Jain

All residents of D. No. 9-15-15, Khazi Street, Rajamundry, Andhra Pradesh

... Petitioner(s)

Versus

Life Insurance Corporation of India through its Divisional Manager, Morampudi Rajahmundry, East Godavari District Andhra Pradesh

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. D. Bharat Kumar, Advocate

Mr. Sayooj Mohandas M. Advocate

For the Respondent(s) Mr. U.C. Mittal, Advocate

Act, 1986 against the impugned order dated 16.11.2010, passed by the Andhra

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

Commission’) in FA No. 399/2008, “Life Insurance Corporation of India versus Smt. Yashoda Jain & Ors.,” vide which, while allowing appeal of the respondent, Life

Insurance Corporation of India (hereinafter referred to as ‘LIC’), the order dated

07.01.2008 passed by the District Consumer Disputes Redressal Forum, East Godavari

District in complaint no. 12/2007, allowing the said complaint, was modified and the LIC was directed to make payment, in question, treating it as a case, where the nominee had not given any option.

2. Brief facts of the case are that late Ramesh Kumar Jain took Jeevan Suraksha Endowment Funding Policy with guaranteed addition for an assured sum of Rs.2 lakh. The complainant no. 1 is the wife of Ramesh Kumar Jain and complainant nos. 2 to 4 are his children. Ramesh Kumar Jain died on

08.08.2005. When the claim form was given to the LIC, the LIC took the stand that the complainants were not entitled to get the whole claim in lump-sum, as demanded by them. The complainants filed the consumer complaint in question before the District

Forum demanding payment of Rs.2 lakh as sum assured, along with a bonus of

Rs.75,000/- till filing of the complaint and a further bonus of Rs.15,000/- along with

Rs.25,000/- as compensation and Rs.10,000/- as costs of litigation. In this way, they demanded a total sum of Rs.3.25 lakh from the OP. The District Forum vide their order dated 07.01.2008, allowed the complaint and directed the OP to pay a sum of Rs.2 lakh along with Rs.75,000/- as guaranteed addition with interest @12% p.a. from 1.1.2006 till the date of payment and Rs.5,000/- by way of damages and Rs.2,000/- as costs of litigation. The District Forum made the observations that the terms and conditions printed on the policy bond could not be read or understood, as they were in microscopic printing. An appeal against this order was filed by the OP before the State Commission which was accepted with the State Commission observing that complainants should give the necessary option as required under the terms and conditions of the policy within one month from the date of receipt of their order and on failure to give option, the

LIC was directed to make payment, treating it as a case where the nominee had not given any option. It is against this order that the present petition has been made.

3. At the time of hearing before us, the learned counsel for the petitioner stated that there was a minor delay of 31 days in filing the saidpetition, because the copy of the impugned order dated 16.11.2010 was received by them on 17.1.2011. It took some time for petitioner No. 1 to consult the local Advocate, as she has to manage the household affairs as well. The other complainants are too young to manage this kind of affair. It also required some time to arrange the basic funds for presenting the present petition.

4. In view of the position explained by the learned counsel for the petitioner, the delay of 31 days in filing the present petition is ordered to be condoned.

5. Learned counsel for the petitioner has further drawn our attention to the copy of the policy in question, saying that the policy was in microscopic print and hence, it was not possible to read the same to have knowledge about the terms and conditions, governing the policy. The learned counsel referred to the observations of the District Forum in their order, in which the said forum has observed that they could not make out even a single word about the conditions specified in the policy, as the policy was in microscopic print and hence was not legible or understandable. The learned District Forum held it to be a clear case of deficiency in service on the part of the OP, because they were guilty of not furnishing the conditions in a legible manner and for not educating the policy-holder on such terms and conditions.

6. On the other hand, learned counsel for the LIC stated that although, the terms and conditions printed on the front page of the policy were in microscopic print, but conditions and privileges were printed on the last page of the policy which could be read without any difficulty. As per paragraph 12, entitled Special Conditions, options were required to be exercised for the payment of annuity. The learned counsel, however, admitted that these Special Conditions were required to be applied in conjunction with the term and conditions on the main page of the policy.

8. The State Commission have observed in the impugned order as follows:- “8. It is an undisputed fact that deceased late Ramesh Kumar Jain had taken Jeevan Suraksha Endowment Funding Policy with guaranteed additions for sum assured of Rs.2 lakh vide Ex. A1 covering the period from 23.08.2000 to 23.09.2019. The assured died on 8.8.2005. No doubt the terms of the policy are in fine print. However, it cannot be said that it is undecipherable. Clause-6(1)(a) of the terms reads as follows:

If the proposer dies before the date on which annuity vests and while the policy is in force the following benefits shall become payable.

In case, the spouse named in the proposal is alive on the date of death of the proposer, then basic sum assured together with accrued guaranteed additions will be utilised to purchase annuity to the spouse and the spouse will have the option I, II & IV detailed in the special conditions. The annuity will be payable to the spouse from the first of the month following the month of the death of the proposer and every month thereafter as per selected option. This spouse will have an option to receive 25% of the sum assured (basic sum assured and accrued guaranteed additions, if any) in lump sum and the balance in annuity. In case the spouse is not named in the proposal, the basic sum assured with guaranteed additions, if any, will be payable in lump sum to the nominee or legal heirs.”

9. It is made out from the above terms and conditions read with para 12, “Special Conditions” that in the present case, since the spouse was alive on the date of death of the proposer, she was entitled to receive 25% of the sum assured (basic sum assured and accrued guaranteed additions) in lump sum and the balance amount is to be received by her in annuity. As per para 12 of the special conditions, she was supposed to exercise her option to receive the balance in annuity; as per one of the options mentioned in para 12 special conditions. The State Commission have rightly relied upon the judgement of the Hon’ble Supreme Court in the case of “United India Insurance Co. Ltd. versus Harchand Rai Chandan Lal” as reported in [IV (2004) CPJ 15 (NC)] saying that the policy is a contract between the two parties and both the parties are bound by the terms of the said contract. The State Commission also allowed the present petitioner time of one month to exercise her option and in case, the option was not exercised, the Insurance Company was directed to make payment, treating it as a case, where the nominee had not given any option.

10. It is observed, therefore, that the order of the State Commission has been passed by making a correct appreciation of the facts and circumstances on record. The petitioner is not entitled to receive the entire money in lump sum, looking at the terms and conditions of the policy, in question. It is held, therefore, that there is no illegality, irregularity or jurisdictional error in the order passed by the State Commission and the same is ordered to be upheld and the present revision petition is ordered to be dismissed. There shall be no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

(From the order dated 28.08.2012 in First Appeal No. 691/2010 of Delhi State Consumer Disputes Redressal Commission)

Delhi Development Authority, Through its Director (H), Vikas Sadan, I.N.A. New Delhi – 110023

... Petitioner(s)

Versus

Dinesh Kumar Gupta s/o Late Shri Panna Lal Gupta r/o 56 Ground Floor Navjeevan Vihar New Delhi.

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Ms. Arti Bansal, Advocate

Mr. Vishal Tyagi, Advocate

For the Respondent(s) Mr. Atanu Saikia, Advocate

Act, 1986 by Delhi Development Authority (hereinafter referred to as ‘DDA’) against the impugned order dated 28.08.2012, passed by the Delhi State Consumer Disputes

Redressal Commission (for short ‘the State Commission’) in FA No. 691/2010, “Delhi

Development Authority versus Dinesh Kumar Gupta”, vide which, the appeal filed against the order dated 04.03.2010 passed by District Consumer Disputes Redressal Forum, in complaint no. 709/2009 was ordered to be dismissed on grounds of delay in filing the said appeal.

2. Brief facts of the case are that the petitioner DDA floated a scheme known as “New

Pattern Registration Housing Scheme 1979” and the complainant/respondent registered himself on 26.09.1979 for allotment of an MIG flat vide application no. 15257. The complainant was given registration no. 23549 and priority number 21715. According to the complainant, he was residing at D-4, Hakikat Rai Road, Adarsh Nagar, Delhi at the time of registration. Later on, he changed his address and informed the petitioner/OP vide letter dated 30.04.81 for the change of address. However, he did not hear anything from the OP for about 30 years. The complainant has stated that the OP floated another scheme, “DDA Housing Scheme 2008” on 06.08.2008, whereupon he approached the OP to know about the fate of his registration made in 1979. He was informed that he had already been allotted a flat in the year 1997 at Rohini and a demand-cum-allotment letter was also sent to him. As per the complainant, he never received the said allotment letter, because the same was sent by the OP at his previous address. The complainant requested for a direction to the OP to allow and deliver the possession of an MIG category flat in Delhi and also to pay a compensation of Rs.1 lakh on account of mental torture and agony. The District Forum vide order dated 4.3.2010 directed that the OP shall allot a MIG flat in Rohini, preferably in sector 23, at the prevalent cost and deliver the possession as early as possible. An appeal filed before the State Commission against this order was ordered to be dismissed vide impugned order, saying that there was delay of 171 days in filing the appeal, which was a serious lapse on the part of the appellant. It is against this order of the State Commission that the present petition has been filed.

3. At the time of arguments before us, the learned counsel for the petitioner stated that in response to his application for registration under the “New Pattern Housing

Registration Scheme 1979,” an MIG Flat 268, 2nd floor Pocket I, Sector 23, Rohini had been allotted to the complainant on 26.3.97 on cash down basis. A demand-cum- allotment letter was also issued to him with block date 10.07.98 to 14.07.98 and it was sent at his address, D-4, Hakikat Rai Road, Adarsh Nagar, Delhi. However, since nothing was heard from the complainant and no money was deposited by him, the said allotment was cancelled by the DDA on 19.04.99, but before that, a show-cause notice was also issued to him on 21.01.99. As per letter dated 19.04.99, he was also asked to apply for refund of his deposited amount by submitting the original documents like

FDR/Registration Certificate, etc. The learned counsel stated that the letters regarding change of address were not received by them. Learned counsel further stated that the

State Commission had rejected their appeal against the order of the District Forum on the grounds of delay in filing the appeal. However, they had shown sufficient reasons for condonation of delay in their application filed before the State Commission along with the appeal.

4. Learned counsel for the respondent, however, has drawn our attention to the application for condonation of delay, filed before the State Commission by the petitioner, saying that they have admitted that the copy of the order of the District Forum was received in their office on 04.03.2010. It has been stated therein that the case remained under examination at various levels and hence, there was delay in filing the petition. There were no sufficient reasons given for condoning the said delay and hence the State Commission had passed their order after making a correct appreciation of facts on record. Learned counsel further stated that the complainant never received the allotment letter sent by the DDA in July 1998 and that the complainant duly informed them about the change in address by sending letters in writing.

5. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us. The State Commission while dismissing the appeal on grounds of delay have observed as follows:- “ The order was passed on 10.02.2010 which as will appear from the Forum’s record, was dispatched to the appellant OP on 10.2.10, which in normal course, would have reached OP appellant by or before seven days, i.e., 17.2.10. The limitation for filing of the appeal is of 30 days. The appeal could or should have therefore been filed by 19.3.10 while the appeal was filed on 1.09.10. The appellant in his delay condonation application has not mentioned the period of delay. It is a serious lapse on the part of the appellant. The actual delay in filing of the appeal is of 171 days. The reason assigned for condonation of delay is, that the complaint was itself time barred, and this aspect is not properly dealt with by the District Consumer Forum. This contention, cannot be looked into at this stage at the time of deciding the delay condonation application, as it pertains to the merits of the appeal.”

6. A perusal of the application for condonation of delay filed by the DDA before the

State Commission reveals that they have admitted having received copy of the order of the District Forum on 04.03.2010. Thereafter, the matter remained under examination at various levels in the office, for example, the Dealing Assistant, the Assistant Director,

Director (Housing), Commissioner (Housing), etc. The matter was also sent for obtaining legal opinion and finally the file was sent to the petitioner’s lawyer on

26.08.2010. The appeal in question was filed on 1.09.2010. No other reason has been advanced in the application for condoning the delay in filing the appeal.

7. It is crystal clear from these facts that the matter remained under examination at various levels in the office of the DDA without any justifiable reason. It appears that there was no sense of urgency on the part of any official of the DDA to ensure that the appeal was filed within the prescribed time of 30 days. It has been clearly stated in the section 15 of the Consumer Protection Act, 1986 that an appeal against the order of the

District Forum can be preferred before the State Commission within a period of 30 days from the date of the order. It has been laid down in the proviso to this section that if the

State Commission is satisfied that there was sufficient cause for not filing the appeal within time, it may entertain the appeal even after the limitation. In the present case, however, the facts stated in the application for condonation of delay do not provide any sufficient reasons for the condonation of such delay and the view taken by the State

Commission seems to be quite rational and correct. It has been observed by the

Hon’ble Supreme Court in a number of judgements given recently that unless a cogent and convincing explanation is there for the delay in filing an appeal/petition, the same should not be condoned. Reference may be given to the decisions of the Hon’ble Apex

Court in (2012) 3 SCC 563 – Post Master General & Ors. Vs. Living Media India Ltd. and Anr. where the court 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.

7. Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Ansul Aggarwal Vs. New Okhla

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

8. From the above discussion, it becomes clear that since there was no sufficient ground explained by the petitioner for the delay in filing the appeal, the State

Commission rightly took the decision to dismiss the appeal on grounds of delay. The order passed by the State Commission, therefore, does not suffer from any illegality, infirmity or jurisdictional error. The order is, therefore, uphold and the present revision petition is ordered to be dismissed with no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

MEMBER RS/

REVISION PETITION NO. 2406 OF 2012 (From order dated 10.02.2012 in First Appeal No. 1878 of 2008 of the State Consumer Disputes Redressal Commission, U.P., Lucknow)

Life Insurance Corporation of India H-39 1st Floor, New Asiatic Building Connaught Place, New Delhi-01, Through its Assistant Secretary (Legal Cell) Sh. Balihar Singh … Petitioner

Versus

1. Smt. Shahida Khatoon R/o Bhagirathi Colony Nayee Abadi Sultanpur Road, Shahganj, Jaunpur (UP)

2. Km. Fatima Shamim Under the guardianship Of her mother Smt. Shahida Khatoon R/o Bhagirathi Colony Nayee Abadi Sultanpur Road, Shahganj, Jaunpur (UP) … Respondents

BEFORE:

For the Petitioner s : Mr. U.C. Mittal, Advocate For the Respondent : Mr. S.D. Singh, Advocate

Pronounced On September 10 , 2013 ORDER

1. This Revision Petition is filed against the impugned order of U.P. State Disputes Redressal Commission, Lucknow (in short, State Commission, U.P.) in First Appeal No. 1878/2008 against the Consumer Case No. 68/2007 of Consumer Disputes Redressal Forum, Jaunpur (in short District Consumer Forum). 2. Facts in Brief: The Complainant is a nominee of her husband late Mohammad Shamim Khan, who took two LIC policies for Rs.1,00,000/- each on 28.09.2002. At the time of his death on 15.02.2005 both the policies were in operation. The Insurance claim made by the Complainant was rejected by the OP on illegal grounds. Hence, alleged deficiency in service, the Complainant filed a complaint before District Forum.

3. The OPs in their counter affidavit stated that the terms and conditions of insurance policy were violated. The husband of the Complainant obtained insurance policies by way of fraud and by concealing the diseases which he was suffering from. Hence, the claim was rejected. 4. The District Forum allowed the complaint partially and passed an order as :

“ The dispute no. 68 of 2007 is allowed partially against the opposite parties and opposite parties are directed to pay the complainant the insured money of rupees one lakh against policy no. 282982311 and similarly rupees one lakh against policy no. 2829830001 taken by her husband along with benefit of accident and interest @ 6% PA within two months from the date of this order”.

5. Against the order of District Forum the OP preferred an appeal before the State Commission.

6. The State Commission heard counsel of both the parties and on basis of evidence & documents on record, dismissed the appeal by making observations as follows:

“We reach the conclusion that in absence of legally based evidences, it cannot be established that before taking both the insurance policies in question, the policy holder was ailing and he had knowledge of the alleged defect in kidney and disease of diabetes. Only on the basis of imagination, rejecting the insurance claim by the Insurance Corporation is illegal.”

7. Aggrieved by the order of the State Commission, the OP filed this revision before this Commission.

8. We have heard arguments of learned counsel of both sides. The counsel for Complainant brought our attention towards the discrepancies in the Medical Certificate issued by Dr. PK Rai, Opal Hospital Rathyatra Varanasi.

9. The medical attendant’s certificate of LIC which was filled by Dr. Pardeep Kumar Rai. In para 4 of the certificate, which is in Hindi version and after it’s translation, the heading 4.’c’ is,

“ For how long the deceased was suffering from this disease”, which was answered as, “one year”. But in the next column the same doctor wrote in the heading 4 ‘d’ that :- “DM x10yrs. HT+ 1 yr.” ; this clearly indicates the deceased was suffering from Diabetes Mellitus for past 10 years and by Hypertension for 1 year.

Hence both the statements appear to be contradictory.

10. We have carefully perused another document - the medical prescription on letter head of Dr. Pradeep Kumar Rai , Opal Hospital ,Varanasi . The one of the entry on 06/02/2004 shows DM x 10yrs, HT(+) and diagnosed as ‘DM,DN,CKD,CRD with CAD’ The same prescription shows multiple entries on date 21/2/2004, 5/3/2004,12/7/2004. 11. But, in fact the above said deceased insured filled proposal forms for both policies in October 2002 ; and concealed the material facts that he was suffering and under treatment for Diabetes Mellitus for past 10 years as per Annexure P-7 the prescription of Dr. PK Rai Opal Hospital Rathyatra Varansi’

12. We have relied upon several judgments of Hon’ble Supreme Court in cases Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd. (2009) 8 SCC 316 P.C. Chacko and anr. Vs. Chairman, LIC of India (2008) 1 SCC 321 LIC of India Vs. Smt. Asha Goel (2001) 2 SCC 160 have discussed the term “Material Fact” as fact which goes to the root of the contract of insurance and has a bearing on the risk involved would be material. The term material fact is not defined in the Act and therefore, it has been understood and explained in general terms to mean as any fact which influence the judgment of a prudent insurer in fixing the premium or determine whether he would like to accept the risk.

13. Therefore, we do not find any force in the arguments of counsel for complainant/respondent. Both the fora below have erred in not considering the non- disclosure of material facts by the deceased and filled the proposal form. Accordingly, we set aside the orders passed by fora below and allow this revision petition by dismissing the complaint. No order as to cost. ……………….…………… (J.M. MALIK J.) PRESIDING MEMBER

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

REVISION PETITION NO. 2482 OF 2011 (From the order dated 13.04.2011 in Appeal No. 1260/2010 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

S.V. Hari S/o Late R.V. Rajan C/o R. Srinivasan MIG – 1510, Lakshmikanthnagar Mysore – 17 Karnataka State … Petitioner/Complainant Versus The Commissioner Mysore Urban Development Authority, JLB Road, Mysore Karnataka State

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mrs. Vaijayanthi Girish, Advocate

For the Respondent : Mr. Gurmehar S. Sistani, Advocate PRONOUNCED ON 11 th September, 2013

O R D E R

This revision petition has been filed by the petitioner/complainant against the order dated 13.4.2011 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal No. 1260/2010 – S.V. Hari Vs. The Commissioner, Mysore Urban Development Authority by which, while allowing appeal partly, order of District Forum dismissing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner applied for allotment of site in the project floated by OP/respondent and deposited Rs.3,510/- on 29.9.1986 and Rs.2,00,000/- on 11.3.1989. Complainant waited for allotment of site. After lapse of so many years, complainant contacted OP in 2004 and came to know that site no. 425 measuring 50’ x 80’ was allotted to him on 25.2.2001 at the cost of Rs.3,03,000/- and he was directed to pay the remaining amount. In fact, complainant had not received any intimation regarding allotment of site. He made representation on 11.2.2005 and 29.5.2007, but with no result. After serving legal notice, complainant alleging deficiency on the part of OP, filed complaint before District Forum. OP contested complaint and submitted that allotted site was cancelled due to non-payment. Further submitted that complaint was time barred and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint. Petitioner filed appeal before State Commission and learned State Commission vide impugned order allowed appeal partly and directed respondent to refund amount deposited by petitioner along with interest @ 9% p.a. and further awarded compensation of Rs.15,000/- and litigation cost of Rs.5,000/-. Petitioner filed revision against the order of the State Commission with a prayer that site may be allotted to him.

4. Learned Counsel for the petitioner submitted that in the absence of intimation regarding allotment to the petitioner, OP had no right to cancel allotment and learned State Commission has committed error in allowing appeal, partly; hence, revision petition be allowed and site may be allotted to him. On the other hand, learned Counsel for the respondent submitted that learned State Commission committed error in partly allowing appeal, as complaint was time barred, but as no revision petition has been filed by the respondent against the impugned order, prayed for dismissal of revision petition.

5. Perusal of record clearly reveals that complaint was time barred. Admittedly, complainant applied for allotment in the year 1986 and made payment in 1986 and 1989 and plot was allotted to him by OP on 25.2.2001, which was cancelled on account of non-payment of balance money.

6. Learned Counsel for the petitioner submitted that intimation of allotment was sent by OP at the wrong address and in such circumstances, petitioner had no intimation of allotment so; could not deposit balance money and no response was given by OP on the representations made by petitioner vide letters dated 11.2.2005 and 29.5.2007 and cause of action continues; hence, complaint filed in the year 2009 is well within the limitation. This argument is devoid of force as complainant has placed copy of representation dated 29.5.2007 on record in which he has mentioned that when he visited the office of the respondent in the year 2004 to get refund of deposited amount, he was shocked to know about allotment of site and its cancellation. By this admission, it becomes clear that he came to know about allotment and cancellation of site in 2004. In the complaint petitioner has admitted that he moved an application on 12.6.1994 and requested OP to consider his application and after lapse of few days, he received letter of cancellation of allotment of site from OP. In representation dated 8.12.2004 made by the petitioner to OP, he has admitted that he visited OP’s office on 22.11.2004 for refund of money and came to know that his name was in the register of persons to whom refund was made. Thus, it becomes clear that in the year 2004, petitioner came to know that allotment of site has been cancelled and money was to be refunded to him. Merely by making representations in the years 2005 and 2007, limitation to file complaint does not extend and there is no question of continues cause of action. Learned District Forum rightly dismissed the complaint being barred by limitation, but learned State Commission has committed error in partly allowing complaint treating recurring cause of action.

7. As complaint was barred by limitation, petitioner is not entitled to get allotment of site. As respondent has not filed revision petition against the impugned order, impugned order cannot be set aside; though, complaint is barred by limitation.

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

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA ).

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2018 OF 2012 (From the order dated 01.02.2011 in Appeal No. 499/2003 of the U.P. State Consumer Disputes Redressal Commission, Lucknow)

1. The Vice Chairman Kanpur Development Authority, Kanpur 2. The Joint Secretary (Sales) Zone-3, Kanpur Development Authority, Kanpur Nagar …Petitioners/Opp. Parties (OP) Versus

1. Narendra Kumar Dwivedi R/o MIG – 2, Phase- I, Jarauli (Barra), Kanpur Nagar

2. Parmeshwardeen Mishra R/o MIG – 5, Phase- I, Jarauli (Barra), Kanpur Nagar

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioners : Mr. Daleep Kr. Dhayani, Advocate

For Mr. Pradeep Misra, Advocate

For the Res. No. 1 : Mr. Neeraj Gupta, Advocate For the Res. No. 2 : NEMO

O R D E R

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

01.02.2011 passed by the U.P. State Consumer

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

No. 499/2003 – The Kanpur Development Authority

Vs. Narendra Kr. Dwivedi & Anr. bywhich, while allowing appeal partly, modified order of

District Forum allowing complainant.

2. Brief facts of the case are that complainant/respondent No.1 was allotted M.I.G.-2 house by OP/Respondent but after allotment from time to time price of the house was increased. Complainant alleging deficiency on the part of OP filed complaint before

District Forum with a prayer that OP may be directed to accept the previous price amount of Rs.1,98,000/- and not to charge any interest if the complainant deposits the entire amount in single instalment. OP resisted complaint. Learned District Forum allowed complaint to the extent of Complainant No. 1-Respondent No.1 and directed

OP to calculate 15% interest on the amount deposited by the complainant till mid-

November, 1999 and further awarded Rs. 50,000/- towards compensation for incomplete house and further directed not to charge interest on remaining amount of the allotted house. Appeal filed by the petitioner was partly allowed and order of District

Forum was modified and ordered that petitioner is entitled to receive

Rs.5,63,333.72 cost of Flat No. 2 M.I.G. from the respondent, but petitioner is liable to pay interest @ 15% from the date of amount deposited by respondent till he receives possession of the house with basic amenities. Petitioner filed revision petition against the impugned order along with application for condonation of delay.

3. Heard learned Counsel for the petitioner and respondent no.1 on application for condonation of delay of 483 days in filing revision. Learned Counsel for petitioner submitted that delay may be condoned, as it occurred due to maternity leave of the concerned Clerk. On the other hand, learned Counsel for the respondent no. 1 submitted that there is no reasonable explanation for condonation of delay; hence, application for condonation as well as revision petition may also be dismissed.

4. Application for condonation of delay filed by the petitioner runs as under: “2. That the above revision is belated by 483 days due to the following reasons: (a) That the impugned judgment was passed on 1.2.2011 and copy of the same was received by the Counsel of the Petitioners on 03.02.2011. (b) That after receipt of certified copy, instructions were issued to file a Revision Petition, however, the concerned clerk proceeded on maternity leave and his charge was handed over to another clerk. (c) That both the clerks did not take any further action for filing the appeal, hence, delay has been caused. (d) That when the Respondent executed proceedings before the District Forum, then it reveal that petition has not been filed. (e) That a warning has been given to both the clerks who were responsible for not taking action to which delay has been caused. (f) That thereafter official was sent to Delhi along with record and Revision Petition was drafted and is being filed. 3. That delay so occasioned is bonafide, unintentional and liable to condoned in the interest of justice”.

5. Impugned order dated 1.2.2011 was received by Counsel for the petitioner on

3.2.2011 and this revision petition has been filed on 22.5.2012. The reason given in the application for condontion of delay is that the concerned Clerk proceeded on maternity leave and another Clerk, who took charge, did not take any further action and petitioner came to know about the order only when execution proceedings were filed before

District Forum. It was further alleged that warning has been given to both the Clerks.

Neither name of any Clerk has been mentioned in the application, nor warning letter has been placed on record. Even this fact has not been mentioned in the application, when the concerned Clerk proceeded on leave and when she returned back. As per office report, there is delay of 384 days in filing revision petition and apparently, no reasonable explanation has been given for condonation of delay.

6. As there is inordinate delay of 384 days, this delay cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

7. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed; “It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

8. In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has been observed: “ We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

9. Hon’ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries

Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC

459 as under; “ We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”

10. Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed as under: “ It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

11. Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General & Ors . Vs. Living Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.

Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 384 days application for condonation of delay deserves rejection. Revision petition is liable to be dismissed on the ground of delay alone.

12. In the light of aforesaid judgements, we do not find it appropriate to condone the inordinate delay of 384 days. As application for condonation of delay has been rejected, revision petition being barred by time is liable to be dismissed.

13. Consequently, revision petition filed by the petitioner being barred by limitation is dismissed with no order as to costs.

..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

(From the order dated 23.02.2012 in First Appeal No. 1318/2009 of Haryana State Consumer Disputes Redressal Commission)

Shamsher Singh s/o Sh. Nafe Singh r/o Village Kair Kheri Tehsil and District Jind, Haryana

... Petitioner

Versus

1. M/s Bagri Beej Bhandar Opp. Town Hall, Fowara Chowk, Tehsil and District Jind, Haryana Through its Proprietor

2. M/s Severn Seas Hybrid Seeds Pvt. Ltd., Flat No. 301, S.V.R. Sai Above, C.B.I. Colony, Behinds Sai Baba Temple Kavidigada Hyderabad – 500080 Through its Proprietor

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s Mr. Madhu Ranjan, Advocate

PRONOUNCED ON : 11 th SEPTEMBER 2013 O R D E R

Act, 1986 against the impugned order dated 23.02.2012 passed by the Haryana State

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

1318/2009, “M/s. Bagri Beej Bhandar & Anr. versus Shamsher Singh & Anr.”, vide which, while allowing the appeal, order dated 16.07.2009 passed by the District

Consumer Disputes Redressal Forum, Jind in complaint no. 180/2008 was set aside and the said complaint was ordered to be dismissed.

2. Brief facts of the case are that complainant Shamsher Singh is an agriculturist/labourer by profession, but he was not owner in possession of agricultural land situated anywhere. According to him, he used to take agricultural land on contract basis for a period of one year and earn his livelihood from cultivation on the said land. The complainant has stated that he had taken 9 acres of agricultural land on contract from Munshi Ram’s family. He purchased three packs of certified paddy seeds of ‘Pepsi Seven Seas’ variety and two packs of ‘P-1121 Diamond Variety’ on

22.05.2007 for a sum of Rs.2,300/- from OP No. 1, M/s. Bagri Beej Bhandar, who is authorised sales agent of the producer, OP No. 2. The said seed was sown in the land taken on contract after following the practices as mentioned in the brochure and pamphlets. Pepsi Seven Seas variety of paddy was planted in 3 acres of land, whereas

P-1121 Diamond Variety was planted in 5 acres 18marlas of land. He spent huge amounts on cultivating the land and use of fertilizers, pesticides, irrigation, labour etc. However, the growth in paddy crop was not satisfactory. The complainant reported the matter to OP No. 1, but he allegedly did not pay any heed in the matter. A written complaint was, therefore, made to the Agricultural Officer at Jind on 08.10.2007. The

Agriculture Department conducted spot survey and inspection of the standing crop on

16.10.2007 and found that there was mixture of other poor quality seeds in the packing of seeds purchased by the complainant from OP No.1. An inspection report stated that

25%–30% of substandard varieties in Pepsi Seven Seas and about 60% of poor quality seeds was mixed in P-1121 Diamond variety of seeds. The complainant alleged a loss of Rs.3,10,000/- to him and he approached OP No.1 to compensate him for the loss, but despite sending a registered legal notice, OP No. 1 did not take any action. A consumer complaint was then filed before the District Forum, claiming payment of

Rs.3,10,000/- as compensation and Rs.1 lakh as damages on account of mental pain and agony plus Rs.10,000/- as cost of litigation. The District Forum vide their order dated 16.07.2009 allowed a sum of Rs.5,000/- per acre as compensation to the complainant and directed the OPs to pay a sum of Rs.45,000/- to the complainant jointly and severally. However, the appeal filed against this order was accepted, the order of the District Forum was set aside and the complaint was ordered to be dismissed. It is against this order that the present petition has been made.

3. At the time of hearing before us, learned counsel for the petitioner was asked to file copies of the necessary documents filed before theFora below to prove that the complainant had taken the said 9 acres of land on contract. The petitioner filed I.A. No.

5292 of 2013, enclosing therewith a copy of ‘thekanama’ saying that 22 acres of their land was taken by Shamsher Singh complainant on contract. A copy of theJamabandi for the year 2003-2004 and the inspection report of the Agricultural

Department was also filed with the I.A. However, at the time of admission hearing, the learned counsel for the petitioner admitted that copy of the contract or ‘thekanama’ had not been filed by them before the District Forum or the State Commission. Learned counsel also could not give any satisfactory explanation when asked to explain about the proof of cultivation including entries in the cultivation column of Jamabandi. Learned counsel relied upon the report made by the Agricultural

Department only.

4. A perusal of the order passed by the State Commission reveals that the State

Commission observed in their order that the complainant had not got the seeds, in question, tested from a Laboratory as required under section 13(1)(c) of the Consumer

Protection Act, 1986. He also never moved an application before the concerned authority for getting the seeds tested from some laboratory. The report of the Dy.

Director (Agriculture) revealed that there was mixture of other poor quality of paddy plants, but the same was not substantiated by report of any laboratory.

5. The State Commission has also observed that as per the report by the Haryana

State Seed Certification Agency, the said seeds had been certified to be of prescribed standard. The State Commission has also given reference to some Government

Instructions, in which it has been laid down that when there is a complaint by farmers regarding quality of seeds, an inspection committee has to be constituted, comprising two officials of Agricultural Department, one representative of concerned seed agency and scientists of Krishi Vigyan Kendra. The said instructions had not been followed by the Agricultural Department while giving their report.

6. The facts narrated above lead to the conclusion that the factum of the complainant having suffered a loss due to the poor quality seeds has not been established by any scientific or other evidence. Based on the report of one officer of the Agricultural

Department, it cannot be stated that the version of the complainant is true.

7. Based on the above discussion, we do not find any illegality, irregularity or jurisdictional error in the impugned order passed by the State Commission which may require interference at the revisional stage. The revision petition is, therefore, ordered to be dismissed and order passed by the State Commission is upheld with no order as to costs.

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

(From the order dated 04.10.2010 in First Appeal No. 1202/2010 of Rajasthan State Consumer Disputes Redressal Commission)

National Insurance Co. Ltd. Regional Office No. 1 Jeevan Bharti 124 Connaught Circus New Delhi And Also Branch Office National Insurance Co. ltd. Kanchan Sadan Khoja Gate Road, Bundi Rajasthan – 323001

... Petitioner

Versus

1. Anandi Lal s/o Narayan r/o Village Onkarpura Tehsil & District Bundi (Rajasthan)

2. Kailashi Bai, w/o Chhitar Lal r/o Village Onkarpura Tehsil & District Bundi (Rajasthan)

3. Durga Lal s/o Chittar Lal r/o Village Onkarpura Tehsil & District Bundi (Rajasthan)

4. Gyarsi Bai w/o Radheyshyam r/o inside of Ganeshlal Garden Anand Vihar Nagar, Near Railway Station Bundi, Tehsil & District Bundi (Rajasthan)

5. Meera Bai d/o Chittar Lal r/o Village Onkarpura Tehsil & District Bundi (Rajasthan)

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. Pradeep Gaur, Advocate

For Respondent 1 Mr. Rajendra Kumar Sharma, Adv.

For Respondent 2 to 5 Mr. Vikram Singh, Advocate

Act, 1986 against the impugned order dated 04.10.2010, passed by the Rajasthan State

Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 1202/2010, “National Insurance Co. (hereinafter referred to as ‘insurance company’) versus Anandilal & Ors.”, vide which while dismissing the appeal, order dated

07.05.2010 passed by District Consumer Disputes Redressal Forum, Bundi in consumer complaint no. 49/2009 was upheld.

2. Brief facts of the case are that a vehicle tractor-trolley, bearing no. RJ-08/RA-0012 was insured with the petitioner Insurance Company in the joint name of Anandi Lal and Chittar Lal vide policy no. 370801/47/05/9700001847 for the period from 17.03.2006 to 16.03.2007 for a sum insured of Rs.4,16,400/- on payment of premium of Rs.5293/-. The vehicle was allegedly stolen on the intervening night of 10.07.2006 and 11.07.2006, when it was stated to be parked outside a hotel at village Budhpura. An FIR no. 418/2006 dated 21.07.2006 under section 379 IPC was lodged with the local Police. The intimation to the Insurance Company is stated to have been given on 1.02.2007. The insurance company repudiated the claim filed by the complainant on 26.08.2008, based on the report of the investigator who stated that theft had not taken place. A complaint was filed before the District Forum. Vide order dated 07.05.2010, the District Forum directed the insurance company to pay the cost of tractor-trolley within a period of one month, along with Rs.1,000/- towards mental agony and Rs.1,000/- as litigation charges. An appeal filed by the insurance company before the State Commission was dismissed by them vide impugned order dated 04.10.2010. It is against this order that the present revision petition has been made.

3. At the time of hearing before us, learned counsel for the insurance company stated that as made out from the report of the investigator, there was no theft in this case and it was a made-up story by the complainant, Anandi Lal. He stated that the insurance policy was in the name of two persons, Anandi Lal and Chittar Lal but the complaint in question had been made by Anandi Lal only. Moreover, FIR in this case was lodged 10 days after the alleged incident. The intimation to the insurance company was also given late by 6 to 7 months. The order passed by the State Commission was vague/sketchy and they had not discussed the issues involved at all, while upholding the order of the District Forum.

4. In reply, the learned counsel for the respondent stated that the petitioner had already deposited the amount awarded by the District Forum and hence, there was no justification for the continuance of the present petition.

5. The impugned order passed by the State Commission reads as follows:- “Heard the counsels and perused the documents.

The appellant has filed this appeal with the delay of 5 days. In view of the grounds mentioned in the appeal and affidavit, the delay of 5 days is condoned.

Keeping in view the facts and circumstances of the case, we do not find any infirmity in the order passed by the Distt. Forum. Therefore, confirming the order passed by the Distt. Forum, Bundi in appeal No. 49/2009 dated 07.05.2010 the appeal of the appellant is dismissed.

Rs.25,000/- deposited by the appellant before the Distt. Forum be included in the amount along with accrued interest to be paid to the complainant respondent. One month is granted to the appellant to comply with the orders from today.”

6. A plain reading of the above order indicates that the Rajasthan State Commission have not given any detailed reasons for agreeing with the order passed by the District Forum. It was the duty of the State Commission to carry out a detailed analysis of the issues involved in the case and give their clear findings on each issue before announcing their verdict. The main issue to be decided is whether the factum of theft is genuine or not. Moreover, the facts make it clear that the FIR was lodged with the Police after 10 days and there was a lot of delay in informing the insurance company. The investigator of the insurance company has stated that there was contradiction in the statement given before the Police and during the examination at the place of occurrence.

7. In view of the above facts, it is absolutely necessary that the appellate authority should consider all the facts and circumstances in detail, analyse the same and then given their clear-cut findings. The order passed by the State Commission is, therefore, liable to be set aside and we order accordingly. This revision petition is allowed and the case is remanded back to the State Commission for hearing the parties afresh and then take a decision. The parties are directed to appear before the State Commission on 4.11.2013. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

MEMBER RS/

REVISION PETITION NO. 2074 OF 2013 WITH (I.A. NO.3407 OF 2013, FOR STAY)

(Against the order dated 21.02.2013 in Appeal No.123/2012 of the State

Commission, Kerala)

M/s Muthoot Leasing and Finance Ltd. Muthoot Chambers Opposite Saritha Theatre Complex Banerjee Road Cochin – 682018

...... Petitioner

Versus

Mr.Sabu K S/o Mr.Kujuraman R/o Sabu Sadanam Nellimukal P.O. Manakala, KadampanadKollam

…... Respondent

BEFORE:

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

HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. S.S.Sobti, Advocate

Pronounced on : 12 th September, 2013

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

Being aggrieved by impugned order dated 21.2.2013, passed by Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (short, “State Commission”) Petitioner/Opposite Party No.2 has filed the present revision petition.

2. Brief facts are that Respondent/Complainant purchased an Ambassador car by executing an agreement availing vehicle loan of Rs.2,25,000/- on 10.12.2004 from the petitioner. It is stated that petitioner collected 10 post-dated signed cheques, signed blank papers and unfilled printed documents from the respondent and the sureties. It was assured by the petitioner that at the time of effecting payment of last installment of the loan amount, the documents along with no objection certificate would be returned to the respondent. The repayment of loan amount was a period of four years including interest and other charges and 47 installments @ Rs.5,500/- each and balance of Rs.3,500/- as 48th installmentcommencing from 19.1.2005 to 19.12.2008. After repayment of the entire amount, the petitioner has failed to return the documents. However, it demanded an amount of Rs.44,345/- for issuance of no objection certificate. The act of petitioner claiming exorbitant amount and denial of issuance of termination letter resulted in mental agony and financial loss to the respondent for which petitioner is liable to compensate and also for the deficiency in service. Respondent has claimed compensation amount of Rs.15,000/- and cost apart from the documents lying with the petitioner.

3. Petitioner in its version has stated that the forum lacks jurisdiction to try this case wherein a hire purchase agreement which is holding as a bailee and does not come under the definition of “consumer”. Further, the dispute is covered under the arbitration clause and as such, complaint does not lie before the Consumer Forum. It is also stated that as per clause 3 of agreement, respondent had agreed to pay flat rate interest at 7.79% per annum. The allegation with regard to the 48th installment was to be paid only Rs.3,500/- is utter false and is bound by the terms of agreement. The repayment schedule along with the agreement stated that the 48th instalment was to be paid Rs.47,062/- No deficiency in service has been committed by the petitioner.

4. District Consumer Disputes Redressal Forum, Kollam (for short, “District Forum”) vide order dated 30.12.2011, allowed the complaint and passed the following order ;

“In the result, the complaint is allowed and the opposite parties are directed to return the signed cheques and other documents obtained from the complainant in connection with sanctioning of vehicle loan account No.D.215/04 along with loan termination letter and no objection certificate of Ambassador Car bearing Reg. No.KL/3L/2862 to the complainant and to pay a compensation of Rs.5,000/- for their deficiency in service and Rs.1,000/- towards costs. The order is to be complied with, within one month from the date of this order.”

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

6. Being aggrieved by the order of State Commission, petitioner has filed the present revision petition.

7. We have heard the learned counsel for the petitioner and gone through the record. 8. It has been contended by learned counsel for the petitioner that respondent is bound by the terms and conditions of the Hypothecation Agreement and its guarantee dated 18.12.2004 and schedule of payment appended along it. Since, respondent did not pay the entire loan instalments, as such he was a defaulter. Moreover, petitioner was not a consumer and therefore, the complaint filed under the Consumer Protection Act, 1986 (for short, ‘Act’) is not maintainable.

9. District Forum in its order held ;

“ The specific case of the complainant is that the act of the opposite parties claiming exorbitant and unlawful amounts and denial of issuance of termination letter, no objection certificate, cheques and other documents to the complainant resulted in much mental agony and financial loss to the complainant. Hence, there is deficiency in service on the part of the opposite parties, for which the opposite parties are liable to compensate the complainant. The opposite parties have no case that Ext.P1 card was prepared by the opposite parties at the time of executing the loan agreement. But the opposite parties have produced Ext.D1 agreement and argued that the repayment schedule attached to Ext.D1 agreement is in tally with the terms of the agreement, that as per clause 3 of the agreement, the complainant had agreed to pay interest at the rate of 7.79% flat per annum and as per the repayment schedule attached to Ext. D1 agreement, the complainant has to pay Rs.47,062/- as the last instalment and admittedly the complainant did not pay this amount, whereas the complainant paid only Rs.3,500/- which is reflected in Ext.P1. But the specific case of the complainant is that Ext.D1 agreement produced by the opposite party was unilaterally prepared by the opposite party after obtaining signature of the complainant and sureties in unfilled printed forms and without knowledge of the complainant and apart from the schedule attached to the agreement is a fabricated document subsequently prepared for the purpose of producing before this Forum. Even, though such an allegation was raised by the complainant, opposite party has not cared to examine the alleged guarantors in Ext.D1 to substantiate as to whether Ext.D1 was blank while they were affixing their signature. So also the witness who signed in Ext.D1 agreement not seen signed in the repayment schedule attached to The repayment schedule is seen written by a person at a stretch and not the one prepared earlier before issuing Ext.P1. In schedule – I attached to Ex.D1 also it is seen written as instalments Rs.5,000/- each from 19.1.2005 to 19.11.2008. Installments Rs.47,062/- each from 19.12.2008. So the allegation of the complainant that it may be the one prepared in blank signed printed papers cannot be brushed aside. The instalments mentioned in Ext.D1 and the repayment schedule tally with each other upto 47th instalment. For 48th instalment in Ext.P1, the amount of hire to return is Rs.3,500/- and was remitted on 18.12.2008. But in the repayment schedule the 48th instalment seen written as Rs.47,062/-. If that be so, why the opposite party has not written the same amount in Ext.P1 creates doubt in the mind of this Forum. The opposite parties have no case that Ext.P1 was not issued by them. It is in their printed card in which their seal seen affixed. It is in evidence that the complainant had remitted the full amount shown in Ext.P1 without any default. It is true that it is a matter of pure mathematical calculation but why during preparation of Ext.P1 the opposite parties mentioned 48th installment as Rs.3,500/- and in the repayment schedule attached to Ext.D1 48th instalment as Rs.47,062/-. Why they have not splitted that amount and included in the other instalments so as to enable the complainant for easy remittance also stands unexplained. After remitting the entire instalments in Ext.P1, the complainant demanded the termination letter, no objection certificate, cheque and other documents which the opposite parties are bound to return and not to harass the complainant by creating such documents. It is argued by the learned counsel for the opposite parties that the complainant has admitted his signature in Ext. D1. It is true that he has admitted his signature in Ext.D1 but the complainant’s case that after getting his signature along with the signature of guarantors in blank printed forms later filled the same and produced before the Forum stands unexplained. According to us, after remitting the instalments as per Ext.P1 when the complainant requested for the issuance of the termination letter, no objection certificate, cheque and other documents, the opposite parties denied the same and created such documents and it is deficiency in service on the part of the opposite parties for which the opposite parties are liable to compensate the complainant.”

10. State Commission while dismissing the appeal in its impugned order has held ;

“As per the calculation appellant’s total amount comes to Rs.3,55,000/-. The complainant took the loan from opposite parties for Rs.2,25,000/- and already remitted Rs.2,62,000/-. The appellant collected an excess amount of Rs.37,000/- as per the repayment card. Though the agreement produced in evidence by the appellant, a copy was not provided to the respondent. The custodian of agreement being the appellant and not issued the filled up copy of the agreement to the complainant. We find in the allegation of the complainant that the agreement was signed by the complainant in blank forms. Nothing in evidence that a copy of the agreement was issued to the respondent. The respondent paid promptly on the correct dates and the excess payment in addition to the loan amount being Rs.37,000/-, we have to ignore the terms and conditions which were concealed from the respondent. Appellant being in a dominant position have all the chance to fill up the application form at their will. Attested copy of photocopy of the agreement should have been provided to the respondent who was already a party to the contract. In this case, the respondent already paid the loan amount and an excess of Rs.37,000/- and we find the claim for Rs.47,000/- is not sustainable.”

11. Respondent in para 3 to 5 of its complaint filed before the District Forum has made the following averments ;

“3. At the time of execution of the said agreement, the 1st opposite party had collected 10 post-dated signed cheques, signed blank papers and other documents from the complainant and kept them in their custody. It was assured that at the time of effecting payment of the last instalment of the sad loan amount, these documents, blank signed papers, unused cheques, termination letter and no objection certificate would be returned to the complainant.

4. As per the terms arbitrarily set out by the opposite parties, the said amount with interest for 4 years and other charges were to be repaid by the complainant in 47 installments of Rs.5,500/-each and balance Rs.3,500/- as 48th instalment, commencing from 19.1.2005 to 19.12.2008.

5. The complainant was very particular in making repayment of the said loan amount in time. Accordingly, the 48th instalment of the said loan amounting to Rs.3,500/- was remitted by the complainant on 19.12.2008. Hence, entire loan amounts with interest as per the terms of the said loan agreement were remitted by the complainant in time. Thereafter, on various occasions the complainant approached the opposite parties and requested for the termination letter, no objection certificate, cheques and other documents which the opposite parties are legally bound to give to the complainant. In spite of repeated requests made by the complainant, the opposite parties failed to return the documents and demanded the complainant to remit an additional amount of Rs.44,345/- for giving the termination letter and no objection certificate.”

12. In response to the above paras, petitioner in its written statement has stated ;

“ 3. In view of the aforesaid decision of the National Commission, it is well settled that this complaint is not maintainable before this Hon’ble Forum, and therefore, the same is liable to be dismissed as not maintainable.

4. The subject matter involved in this dispute is covered by an arbitration clause which is specifically provided as Clause 27 of the agreement. Therefore, the complaint before this Hon’ble Forum is not maintainable.

5. Without prejudice to the aforesaid contentions, the following version is submitted in reply to the averments in the original complaint. All the averments and allegations in the complaint, except those that are specifically admitted hereunder, are false and hence denied.”

13. As per reply of the petitioner, there is no specific denial to the averments made by the respondent in para 3 to 5 of the complaint thus, it amounts to admission on the part of the petitioner.

14. Further, as per case of the petitioner, respondent is a defaulter. However, petitioner has not placed on record the Statement of Account qua the respondent so as to show how many installments and total amount has been paid by the respondent in this case. It would be pertinent to point out that during the course of arguments, we had put a specific query to the learned counsel for the petitioner as to why the Statement of Account has not been filed. In response thereto, learned counsel replied that there is no necessity for filing of the same.

15. Since, Statement of Account which is very relevant for deciding the controversy between the parties, has been deliberately withheld by the petitioner, under these circumstances inference has to be drawn against the petitioner.

16. It is well settled that under Section 21 (b) of the Consumer Protection Act, 1986 (for short ‘Act’), the scope of revisional jurisdiction is very limited. Under Section 21 of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

17. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; “ Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

18. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, two fora below have givendetailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only). 19. Petitioner is directed to deposit the cost of Rs.10,000/-, by way of demand draft in the name of ‘Consumer Legal Aid Account of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization. 20. Pending application, if any also stands dismissed. 21. List on 25.10.2013 for compliance. ..………………..………..J

(V.B. GUPTA)

PRESIDING MEMBER …………………..………..

(REKHA GUPTA)

MEMBER

St/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2817 OF 2012 (Against order dated 26.04.2012 in First Appeal No. 423 of 2008 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

Reena Devi W/o Sh. Gorishankar R/o near Balaji Mandir Bukalsar Bass, Ward No. 24, Sardarshahar, District Churu (Rajasthan) … Petitioner Versus

1. Navjeewan Hospital and Diagnostic Centre Bahadur Singh Colony, Sardarshahar, District Churu (Rajasthan) Through it’s Manager

2. Dr. Poonam Bhojwani, Gynecologist Navjeewan Hospital and Diagnostic Centre Bahadur Singh Colony, Sardarshahar, District Churu (Rajasthan) … Respondents

BEFORE:

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

For the Petitioner (s) : Mr. Sandeep Sharma, Advocate

For the Respondent (s) : Mr. J.P. Sharma, Advocate

ORDER PER DR. S.M. KANTIKAR 1. The main question in this petition swirls around, “Whether the OP Doctor performed D & C properly? Whether she has acted as per the standards of Medical Practice? Was it a medical negligence?”

2. Facts in Brief: The complainant got here urine pregnancy tests (UPT) performed in different labs on 16/2/2007, 15/4/2007 shown positive test result. The UPT performed on 7/5/2007 and 25/5/2007 showed Negative result. The complainant consulted OP on 10/6/2007; OP prescribed medicines and Sonography was done and advised for D & C. The OP performed D & C on 13/6/2007. The D & C was done negligent manner, no cleanness. Part of fetus came out which was sent to Bikaner for examination. Complainant felt one part of fetus remained in her womb, felt pain and bleeding for which on 23/6/2007 she went to Bikaner at Chalana Hospital and took treatment form Dr. Sunita Gupta from 26/6 to 1/7/2007. Therefore, alleged negligence by OP for performing incomplete D & C a complaint No.155/2007 was filed by complainant before District Consumer Disputes Redressal Forum, Churu.

3. The District Forum allowed the complaint and directed the OP to pay Rs.101000/- to the complainant. 4. Against the order of District Forum the OP filed an appeal FA 423/2008 before the State Consumer Disputes Redressal Commission, Jaipur, Rajasthan(in short ‘State Commission’).

5. The State Commission after hearing both the parties accepted the appeal and dismissed the complaint.

6. Aggrieved by the order of the State Commission the complainant filed this revision petition.

7. We have heard the counsel of both parties who argued at length and reiterated the same arguments advanced before the State Commission. We have perused the evidence on record and referred several medical texts of Obstetrics and Gynecology.

8. It was admitted fact that complainant underwent D & C by OP-2 and advised the D & C material for HPE and called her for further treatment after getting HPE report. But, it is pertinent to note that complainant neither brought HPE report nor turned up for follow-up. But, she went to Bikaner and taken treatment from Dr. Sunita Gupta for pelvic pain. She was admitted for 5 days from 26/6/2007 to 1/7/2007.

9. Dr. Sunita Gupta advised for Ultrasonography (USG) by Radiologist Dr. R.K. Vishnoi who performed it and opined that the Uterus is bulky but no Products of Conception (POC) seen. Therefore, it is clear that the OP-2 performed D & C properly and nothing left in the uterus.

10. It should be borne in mind that the D & C is a blind procedure, despite the gynecologist curette properly there are chances of material to be left in uterine cavity. If D & C performed with excessive/ vigorous force may result in to injury to uterine cavity. Therefore, we do not find any element of negligence by OP-2 in performing D & C.

11. It is true that, subsequently, the entire management of such patient (complainant) depends upon the HPE report but, the complainant failed to bring HPE report. But, complainant took treatment form Dr. Sunita Gupta at Bikaner, who also treated her conservatively on the basis of USG report which confirms that No products of conception (POC) in uterus. But, the constitutional symptoms of pain and bleeding are the sequel of previous D & C not negligence by OP.

12. There was no pregnancy which was ascertained by the HPE report given by a Pathologist Dr. V.K. Choudhari, MD Path as a Placental Polyp. As per report grossly it was 5x3x2 cm; complete removal of such large polyp is difficult by D & C; and if any remnants remain in uterus will expelled spontaneously.

13. What constitutes Medical Negligence is now well established by a plethora of Rulings of the Honorable Supreme court of India and by several orders of this commission. Three principles are applied;

i. Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; ii. Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field.

iii. Whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated.

Our answer on all the points are “ YES”. The both OP adopted standard of practice in proper diagnosis, referral and further management.

14. In the present case the OP-2 -Dr.Poonam is a qualified gynecologist and performed the procedure with all caution and as per the standard of practice. Subsequently she advised for HPE study of material. The complainant did not bring the HPE report; therefore the OP -2 was handicapped and unable to decide further line of treatment without a HPE from the laboratory.

15. Therefore, we rely upon the Bolam’s Test (Bolam Vs. Frien Hospital Management Committee (1957)1 WLR 582) it was also held that a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view.

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

16. Hence, considering the entirety of discussions we are of considered view that there was no negligence by OP-2 in treating the complainant. Accordingly, we dismiss this revision petition. No order as to costs.

……………….…………… (DR. S.M. KANTIKAR) MEMBER Mss/2

REVISION PETITION NO. 3255 OF 2011 With

I.A./5526/2013 (For permission for addl. Documents)

(From the order dated 31.05.2011 in Appeal No. 653/2009 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

K.P. Bushara W/o Muhammed Ali Thadathil House Kanayam Post, Kulappully Shornur, Palakkad Kerala … Petitioner/Complainant Versus 1. The Regional Manager, Bajaj Allianz General Insurance Co. Ltd. Door No. 11, People’s Park 3rd Floor, Government Arts College Road, Coimbatore, Tamilnadu.

2. The Manager Bajaj Allianz General Insurance Co. Ltd. III Floor, Finance Tower Kaloor, Ernakulam 682017 Kerala

3. Customer Care Cell Bajaj Allianz General Insurance Co. Ltd. G.E. Plaza, Airport Road, XX, Pune – 411006 Maharashtra

4. Bajaj Allianz General Insurance Co. Ltd. S.M. Complex, College Road, Palakkad – 678001 Kerala

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. K.P. Rajagopal and

Mr. S.I.A.K. Bagadur Sha, Advocates

For the Respondents : Mr. Anil Kumar Chandel, Advocate

O R D E R

This revision petition has been filed by the petitioner/complainant against the order dated 31.5.2011 passed by the Kerala State Consumer

DisputesRedressal Commission, Thiruvananthapuram (in short, ‘the State Commission’) in Appeal No. 653/2009 – The Regional Manager, Bajaj Allianz General

Ins. Co. Ltd. Vs. K.P. Bushara by which, while allowing appeal partly, order of District

Forum allowing complaint was modified.

2. Brief facts of the case are that complainant/petitioner is owner of a petrol bunk which was insured by OP/respondent for a sum of Rs.32,00,000/- for a period of one year from 2.5.2007 to 1.5.2008. In the early morning of 19.6.2007, the retaining wall of the petrol bunk collapsed. Intimation was immediately given to OP, but no one turned up. Independent surveyor Mr. Babu assessed loss of Rs.9,00,000/- after inspection of site. OP was not disbursing the claim amount. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP/respondent contested complaint.

OP admitted policy and incident of collapse of retaining wall. It was further submitted that on the next date of incident, independent surveyor inspected the site and submitted report on 26.7.2007. It was further submitted that claim submitted by the complainant was incomplete and loss to the retaining wall was not covered under the policy; hence, claim was repudiated. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.7,00,000/-. OP filed appeal before learned State

Commission and learned State Commission vide impugned order while allowing appeal partly, modified order of District Forum and awarded Rs.1,50,000/- as compensation instead of Rs.7,00,000/- and further awarded cost of Rs.5,000/- against which, this revision petition has been filed.

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

4. Learned Counsel for the petitioner submitted that learned District Forum rightly allowed compensation of Rs.7,00,000/-, but learned State Commission has committed error in restricting it only to the extent of Rs.1,50,000/- without any basis; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that firstly, retaining wall was not covered under the policy and secondly, amount awarded for retaining wall is proper; hence, revision petition be dismissed.

5. First of all, it is to be seen whether; insurance policy covers retaining wall.

Description of property covered under the Standard Fire and Special Perils Policy runs as under:

Sr. No. Block Description

1. “On Petrol/Diesel Bunk Building with Plinth and

Foundation – Rs.7,00,000/-, Stocks of Petroleum

Products – Rs. 24,50,000/-,Furnitures, Fixtures and

Fittings – Rs.50,000/-“

6. Perusal of policy clearly reveals that it does not cover retention wall, though, learned District Forum has opined that retaining wall is covered under the insurance policy. Learned State Commission held coverage of retaining wall on the basis of previous year’s policy in which retention wall was covered under the policy. Complaint has to be decided in pursuance to insurance policy for the period 2.5.2007 to 1.5.2008.

It may be by omission that retaining wall was not covered under the insurance policy, but when retaining wall coverage is not found under the policy; petitioner was not entitled to get any compensation for damage to retention wall. Surveyor appointed by

OP clearly mentioned in his surveyor report that damage to retaining wall was not covered under the policy. Learned Counsel for the petitioner could not place any document on record to show that retaining wall was also covered under the policy. In such circumstances, we are of the view that retaining wall was not covered under the policy.

7. As far as quantum of damage to the retaining wall is concerned, learned District

Forum placed reliance on report of assessor appointed by complainant and assessed loss to the tune of Rs.9,00,000/-, but confined it to Rs.7,00,000/- as insurance coverage was only to the extent of Rs.7,00,000/-. Learned State Commission vide impugned order observed that no reliance can be placed on the estimate by building supervisor and further observed that cost of reconstruction of wall alone cannot be Rs.9,00,000/-, whereas entire building and other constructions have been covered for Rs.7,00,000/- only. Learned State Commission placed reliance on surveyor’s report appointed by the respondent.

8. Learned Counsel for the petitioner submitted that no reliance can be placed on surveyor’s report because surveyor appointed by OP has not assessed the loss as per surveyor’s report. Surveyor has clearly mentioned in his report that he has not assessed loss as claim documents were not submitted and damaged retaining wall was not covered under the policy, but on inspection he estimated loss to the retaining wall around Rs.1.5 lakhs subject to improvement, etc. No doubt, surveyor has not assessed loss to the retaining wall, but when Petrol/Diesel Bunk Building with Plinth and

Foundation were insured for Rs.7,00,000/-, the cost of retaining wall, by no stretch of imagination, can be assessed for Rs.9,00,000/- as opined by complainant’s assessor. It is also not clear what was the height of retaining wall and what was its length and width and in such circumstances, amount of loss estimated by learned State Commission cannot be said to be on lower side. We agree that leaned State Commission has not committed any error in modifying order of District Forum and substituting compensation of Rs.7,00,000/- by Rs.1,50,000/- for the retaining wall.

8. Though, retaining wall was not covered under the insurance policy as held by us, but as no revision petition has been filed by the respondent challenging impugned order, we cannot set aside impugned order and dismiss the complaint.

9. We do not find any illegality, irregularity or jurisdictional error in the impugned order assessing damage to the extent of Rs.1,50, 000/-to the retaining wall and revision petition is liable to be dismissed.

..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1579 OF 2013 (From the order dated 18.02.2013 in Appeal No. 1088/2011 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad)

With IA/2757/2013 (Stay)

1. R. Suri Babu S/o Sri Satyanarayana Managing Director M/s. Raja Constructions & Infrastructures R/o Flat No. 23, Lakshmi Gayatri Enclave Pragati Nagar R.R. District (A.P.) 2. Y. Nagesh Babu S/o Sri Seetharamaswamy Managing Partner M/s. Raja Constructions & Infrastructures R/o Flat No. 502, Sai Mayuri Chaitanya Estates MIG 515, 516, KPHB Colony IV Phase Kukatpally, R.R. District (A.P.) …Petitioners/Opp. Parties (OP) Versus

Abhishek Govi S/o Sri M.N. Govil Employee R/o Flat No. 203, Sai Nilayam Apts Kondapur, Kothaguda, R.R. District,

Andhra Pradesh. …Respondent/Complainant

BEFORE

For the Petitioners : Mrs. Radha, Advocate PRONOUNCED ON 12 th September , 2013

O R D E R

18.2.2013 passed by the Andhra Pradesh State Consumer

DisputesRedressal Commission, Hyderabad (in short, ‘the State Commission’) in

Appeal No. 1088/2011 – Abhishek Govil Vs. R.Suri Babu & Anr. by which, while allowing appeal, order of District Forum dismissing complaint was set aside and complaint was allowed. 2. Brief facts of the case are that complainant/respondent entered into an agreement to purchase flat No. 109 in Block-C Raja’s Sunrise Height from OP/petitioner for a sum of Rs.24,00,000/- out of which, complainant paid Rs.25,000/- by cheque dated

10.8.2008. Complainant also paid Rs.10,75,000/- loan taken from LIC to the

OP. Complainant entered into an agreement of construction with the OP for semi- finished flat and this document was registered on 26.11.2008. OP failed to complete the semi-finished flat and permitted conversion of the residential project into commercial complex and later on handed over Block–C of the building to M/s. Gayatri Education

Society for running Boys Hostel and did not handover flat to the complainant. On demand made by the complainant, OP agreed to return total Rs.12,28,615/- including

Rs.11,00,000/- received and issued two cheques for Rs.50,000/- and Rs.1,50,000/- which were dishonoured. Alleging deficiency on the part of OP/complainant filed complaint before District Forum. OP resisted complaint and submitted that complainant is not entitled to any relief without cancellation of agreement of construction dated

26.11.2008. It was further alleged that District Forum had no jurisdiction to entertain the complaint. It was further alleged that complainant ought to have filed suit for recovery of the amount or specific performance of the agreement and complaint filed by the complainant is not maintainable and prayed for dismissal of complaint. Learned District

Forum after hearing both the parties, dismissed complaint in view of the agreement dated 5.3.2010 and 10.6.2010. Appeal filed by the petitioner was allowed by learned

State Commission vide impugned order by which petitioner was directed to deposit before District Forum the amount in terms of agreement dated 5.3.2010 and respondent was permitted to withdraw the amount after executing deed cancelling the agreement in respect of aforesaid flat no. 109 in Block C in Raja’s Sunrise Height against which, this revision petition has been filed by the petitioner/OP.

4. Learned Counsel for the petitioner submitted that complaint was not maintainable before District Forum and learned District Forum rightly dismissed the complaint, but learned State Commission has committed error in allowing appeal; hence, revision petition be admitted.

5. Perusal of record clearly reveals that petitioner has not carried out construction as per agreement dated 26.11.2008 and petitioner converted residential project into commercial complex and handed over Block-C of the building to M/s. Gayatri Education

Society for Boys Hostel. Thus, it becomes clear that petitioner failed to handover flat to the respondent and petitioner agreed to pay the amount received from respondent vide agreement dated 5.3.2010 and 10.6.2010 and cheques issued by petitioner were also dishonoured. In such circumstances, District Forum had jurisdiction and District Forum committed mistake in dismissing complaint for want of jurisdiction. 6. Learned State Commission while deciding appeal rightly observed as under:

21. In terms of Exs.A2 and A3 the respondents agreed to pay back amount received from the appellant and the appellant was required to cancel the sale deed executed by the respondents and handover vacant possession of the flat to the respondents. The leasing out of block-C to M/s Gayatri Educational Society by the respondents does not disentitle the appellant from invoking jurisdiction of consumer forum, for the respondents entered into lease agreement with M/s Gayatri Educational Society on their failure to carry out the construction of flat and provide amenities thereto. Even if it is assumed that the appellant along with other flat owners authorised the respondents to let block-C of the building to M/s Gayatri Educational Society, it would not in any manner affect the right of the appellant to clutch the jurisdiction of the Consumer Forum.

22. Having agreed to return the amount mentioned in Exs.A2, A3 and A4, the respondents failed to keep their promise and their failure to return the amount to the appellant constitutes deficiency in service on the part of the respondents. The respondents are liable to pay the amount in terms of agreement dated 5.3.2010. The appellant shall execute deed cancelling the agreement dated 26.11.2008.

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

..………………Sd/-……………

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

REVISION PETITION Nos. 2461 and 2500 of 2013 (From the order dated 25.10.2012 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh in Appeals no. 158 and 1173 of 2009)

Jalandhar Improvement Trust Through its Chairman Having Office at the Jalandhar Improvement Trust Building Jalandhar, Punjab Petitioner

Versus Prem Chand Resident of House no. 1076 D Ward no. 1 Garhi Mohalla, Rohatak Through its G P A Holder Shri Naveen Sikka Resident of 57 D, Tagore Nagar Street no. 3, Jalandhar Punjab Respondent

For the Petitioner Mr Karan Dewan Advocate with Mr S C Pathela, Advocate

ORDER REKHA GUPTA

Revision petition no. 2461 of 2013 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the impugned order dated 25.10.2012 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (‘the State Commission’) in First Appeal no. 158 of 2009 and RP no. 2500 of 2013 has also been filed against the impugned order dated 25.10.2012 in First Appeal no. 1173 of 2009. Since FA nos. 158 and 1173 of 2009 were disposed of by a common order dated 25.10.2012, we also propose to pass a common order in RP nos. 2461 and 2500 of 2013.

The facts of the case are being taken from RP no. 2461 of 2013 – Jalandhar Improvement Trust vs Prem Chand.

The brief facts of the case as per the respondent/ complainant are that:

A residential plot no. 265 measuring 200 square yards was allotted to the respondent/ complainant for a total sum of Rs.3,10,000/- by the petitioner/ opposite party – the Jalandhar Improvement Trust under its 94.5 acre G T Road Bye Pass, Jalandhar scheme vide allotment letter no. 6138 dated 16.06.1998 as per the terms and conditions enumerated in the said allotment letter. Some of the important terms and conditions are being highlighted as under: (i) Rs.62,650/- which is ¼ of the total sale price of Rs.3,10,000/- is to be deposited within 30 days from the issuance of allotment letter. (ii) Balance sale consideration can be deposited in five instalment of six month interval along with simple interest @ 12% per annum. (iii) In the event of non-deposit of instalment in time, interest rate @ 13% in the first month, 14% in the second month, 15% in the third month 16% in the fourth month, 17% in the fifth month and 18% in the sixth month will be charged and this penal interest will not be remitted. (iv) Agreement to sell is to be executed within 30 days from the issuance of the allotment letter. (v) Possession of the plot can be obtained within 30 days from the issuance of the allotment letter. (vi) Construction can be raised after getting the site plan sanctioned from the trust and in the event of non-construction within the period of 3 years from the issuance of the allotment letter, it will be obligatory to deposit Building Extension Fee as per relevant directions of the Government.

The very first payment towards the earnest money of Rs.15,000/- was sent by the respondent himself from his native place Rohtak on 24.09.1996 before the allotment of plot and thereafter payments were made after the issuance of allotment letter dated 15.07.1998 towards the sale price of the said plot as per the terms and conditions of the allotment of plot along with interest on delayed payment of instalment.

In spite of deposit of ¼ amount of the total sale consideration the requisite agreement to sell has not been executed so far, which was required to be executed within the period of 30 days from the issuance of allotment letter dated 16.06.1998.

The modus operandi of the officials of the petitioner to receive the payments is such that they used to receive the payment along with forwarding application from theallottee and used to issue proper receipt for the amount received later on and such practice started causing problem to the respondent when the officials of the petitioner started avoiding the issuance of the receipt to the respondent in spite of repeated requests and demands.

The petitioner was supposed to issue a site plan and for this purpose a letter dated 30.10.2000 was issued to the respondent and the respondent was asked to deposit Rs.50/- towards the cost of the site plan. The same was deposited vide receipt no. 1427/1 dated 31.10.2000, however, the requisite site plan has also not been issued so far.

There is also another unfair practice of the officials of the petitioner that they used to raise demand verbally and never cared to issue any proper letter for the demand of interest and other fees explaining calculations details.

After the allotment of plot, stamp paper were purchased and submitted on 09.04.2007 and transfer fee of Rs.15,000/- was also deposited on 23.05.2007 and further Rs.200/- towards the photograph fee vide demand draft no. 007426 dated 01.06.2007 was also deposited for which no receipt was issued.

All the payments, fees, costs of documentation and interest on the delayed payments have already been made as per the verbal demands raised by the officials of the petitioner but No Due Certificate has yet not been issued to the respondent in spite of his repeated requests and demands. The respondent has deposited the entire payment for the said plot but the said pay orders have not yet been presented into bank for the purpose of encashment and in this way the petitioner was bent upon charging the interest on the payments for which the pay order have already been deposited with the petitioner because they have not presented the said pay orders for the purpose of encashment.

Despite of the entire payment of the plot, the possession of the plot has yet not been transferred to the respondent but the petitioner was bent upon charging non- construction charge for which they are not entitled till the petitioner did not give any opportunity to raise construction by handing over the possession of the plot.

No calculations sheet for the interest, penal interest, other fees and costs have been provided nor the same have been explained to the respondent in any manner but the officials of the petitioner used to collect the payment from the allottee without explaining any calculations. Recently, the details of the payments were demanded by the respondent vide his application dated 13.07.2007 under right to information act but the opposite party remained reluctant to provide the same by giving lame excuses vide letter dated 02.08.2007.

Since the respondent, being a resident of a distant place, was facing great hardships in pursuing the matter of allotment of plot and he was not given possession of plot within stipulated period of time then the complainant had to appoint his relative Shri Naveen Sikka, local resident as his General Power of Attorney to deal with the above said matter. The said General Power of Attorney was duly verified on 27.06.2006 by the official of the petitioner by personal visiting at the place of the execution of attorney. Since the respondent is old aged and he is unable to pursue the present complaint personally so the same was being filed through his General Power of Attorney holders who is fully conversant with the facts of the present case.

However, the respondent through his General Power of attorney has subsequently sold out the above said plot to Ms Poonam Khattar vide an agreement to sell dated _____ (not mentioned) and applied to the petitioner for transfer of the plot in the name of purchaser Ms Poonam Khatter but the transfer deed has not yet been executed in her favour.

The respondent has therefore, prayed that the petitioner may be ordered to grant the following relief:

(i) To execute the agreement of sale/ sale deed with the respondent for the plot no. 265; (ii) To provide calculations sheet for the payments, interest and all other charges received from the respondent from time to time for the above said plot and to issuance of refund for amount paid in excess; (iii) To issue ‘no due certificate’ to the respondent’; (iv) To refrain from charging any interest on payments for which pay orders have already been deposited by the respondent but the same have not been presented into bank and nor any proper receipt has been issued to the respondent; (v) To waive non-constructions charges and refund the same to the respondent; (vi) To execute transfer and conveyance deed in favour of Poonam Khatter, who has purchased the above said plot from the respondent through his General Power of Attorney Shri Naveen Sikka; (vii) Rs.50,000/- towards compensation and damages for mental tension, torture and physical harassment of the respondent since 1998; (viii) Rs.5,500/- towards the cost of the present litigation.

In their written statement the petitioner/ opposite party in their preliminary objections have stated that Naveen Sikka has held himself out to be hold of General Power of Attorney and has filed the complaint as such. Firstly, he does not have any attorney. Secondly, if he had any, his attorney and its exercise came to end with sale of plot toPoonam Khattar on the basis of attorney of Prem Chand. Thereafter, he is left with no authority to act and conduct for Prem Chand, Hence the respondent being not consumer, could not file the complaint.

The complaint involves the determination of the property in issue. The respondent Prem Chand had asked the petitioner not to transfer the plot as he has not received the full payment of my plot till today. As the dispute relates to the non-receipt of consideration by him on sale of plot either to Naveen Sikka or to Poonam Khattar, it is required to be adjudicated by the Civil Court.

The plot in issue was allotted to Prem Chand. Prem Chand is said to have given irrevocable power of attorney to Naveen Sikka who on its basis in turn sold the plot toPoonam Khattar. Hence, the respondent neither represents Prem Chand or Poonam Khattar.

The agreement could not be executed because Prem Chand sold the plot by giving irrevocable power of attorney. But the power of attorney was neither legal nor valid. Hence, who was the competent person to enter into agreement could not be ascertained. The petitioner as such was not responsible.

No due certificate could be issued only on receipt of all payments due and outstanding against the plot and on the determination of the right to the particular plot.

The District Consumer Disputes Redressal Forum, Jalandhar (‘the District Forum’) in their order dated 08.12.2008 have observed that:

“Considering the contributory lapse on the part of the respondent and also the petitioner – Jalandhar Improvement Trust, we order for payment of Rs.90,000/- towards the non-construction fee though we do not find any justification for claiming Rs.62,407/- towards sale price because the respondent has already deposited Rs.5,15,610/- which includes the interest and penal interest and further direct the petitioner – Jalandhar Improvement Trust to issue ‘No Due Certificate’ after the deposit of this amount within two months from the receipt of copy of this judgment. Further direction is also issued to the respondent to comply with the necessary formalities of the Trust for execution of the conveyance deed/ sale deed either in his favour or in favour of the prospective vendee after due permission is accorded by the petitioner/ Jalandhar Improvement Trust as required under the rules.

In the circumstances of the case, we award Rs.4,000/- as compensation on account of deficiency in its service and Rs.1,000/- as costs of litigation within two months from the receipt of copy of this judgment”.

Aggrieved by the order of the District Forum, the respondent filed Appeal no. 158 of 2009 and the petitioner filed appeal no. 1173 of 2009 before the State Commission. The State Commission after hearing the counsels for the parties and going through the records of the case in their order dated 25.10.2012 have observed as under:

“17. It is strange that the respondent Trust, without handing over the possession, is demanding the non-construction charges, as if the appellant or his Attorney or Special Power of Attorney is to construct the building in the air. The District Forum asked the appellant to deposit Rs.90,000/- as non-construction fee, whereas the respondent demanded Rs.1,92,000/- as non-construction fee, but as stated above, the appellant or its General Power of Attorney or Special Power of Attorney cannot be made liable to pay the non-construction fee, once the possession has not been delivered. In-spite of this, the appellant has deposited the said amount under protest, but nothing has been brought on record that even thereafter the possession has been delivered to the appellant.

18. In view of above discussion, the order of the District Forum, directing the appellant to pay Rs.90,000/- towards the non-construction fee is not sustainable and is liable to be set aside and the respondent Trust is not entitled to recover any non-construction charges and is liable to refund the same, if recovered, to the appellant. For the last 14 years, the appellant and his Attorney including Special Power of Attorney have been running from pillar to post to get the possession and have been paying the amount as demanded, but still the possession was not delivered. The mental tension, physical harassment and financial loss suffered by the appellant cannot be so small that a mere compensation of Rs.4,000/- is sufficient to compensate the same.

19. Accordingly, the appeal filed by the appellant/complainant is accepted and the impugned order dated 08.12.2008 under appeal passed by the District Forum, directing the appellant to pay Rs.90,000/- towards the nonconstruction fee is set aside and the respondent Trust shall refund the same, if recovered, to the appellant. The compensation of Rs.4,000/- is enhanced to Rs.40,000/- (Rupees Forty Thousand) and litigation expenses from Rs.1,000/- to Rs.10,000/- (Rupees ten thousand). With this modification, the remaining part of the impugned order is affirmed and upheld”.

First Appeal No.1173 of 2009:-

“ 21. In view of the reasons and discussion held in First Appeal No.158 of 2009 (Prem Chand Vs Jalandhar Improvement Trust), the First Appeal No.1173 of 2009(Jalandhar Improvement Trust Vs Prem Chand) being false and frivolous is dismissed with costs of Rs.10,000/- (Rupees Ten Thousand), payable by the appellant-Trust to the respondent/complainant within two months of the receipt of copy of the order”.

After accepting the appeal in FA No. 158 of 2009 of the respondent and dismissing the First Appeal no. 1173 of 2009 of the petitioner. The State Commission observed that:

“20. We are so agonized that we feel that an inquiry should be conducted by the Chairman, Improvement Trust, Jalandhar, to find out as to who were the officials who have caused hindrances in the delivery of the possession and have been demanding money from the appellant on one pretext or the other, and to take disciplinary action against the erring officials. The inquiry be completed within three months after the receipt of copy of the order and copy of the report be sent to this Commission”.

Revision petition no. 2461 of 2013 has been filed by the petitioner with an application for condonation of delay of 120 days and revision petition no. 2500 of 2013 has been filed with an application for condonation of delay of 147 days.

Identical reasons for condonation of delay have been mentioned in each application which reads as under:

 It is stated that the certified copy of the impugned order was ready on 09.11.2012 and the same was dispatched by the Registry of the State Commission by post and subsequently received by the petitioner Trust herein on 03.12.2012.  Thereafter the petitioner Trust herein being a Government body after studying and consulting the house officials at various levels, finally took the decision in February 2013 to send the papers relating to the case to the retained Advocate at Chandigarh for his opinion regarding the filling of the revision petition before this Hon’ble Commission. After that the present matter with the opinion of the Advocate was sent to the competent authority for obtaining the sanction for filling of present revision petition in the third week of March 2013, sometime was lost in procuring the above said sanction for filling of the present revision petition. Finally sanction was granted regarding the expenditure to be incurred for in pursuing the present case. Thereafter the counsel at Chandigarh was engaged to prepare the draft of the present petition in the month of April who in turn took some time to prepare the draft of the petitioner and sent the draft of the present petition for vetting by the petitioner Trust herein somewhere in the last week of April. Thereafter some time was lost in finalising the draft of the petition by the officials of the petitioner herein as the file has to be processed and cleared by various department.  Thereafter the duly signed revision petition along with the affidavits could only be received by the counsel in Delhi in the First week of June 2013.

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

The petitioner is supposed to explain the day-to-day delay, but the needful has not been done. The petitioner has failed to provide ‘sufficient cause’ for the delays of 120 and 147 days respectively. This view is further supported by the following authorities.

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

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

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

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

In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed:

“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

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

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

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

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

The Court further observed;

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

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

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

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

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

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

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

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

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

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

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

The present case is fully covered under the case laws cited above Supra.

Accordingly, we find that there is no ‘sufficient cause’ to condone the delays of 120 and 147 days in filing the present revision petitions. The applications for condonation of delay are without any merit as well as having no legal basis and are not maintainable. Consequently, the present revision petitions being time barred by limitation and are dismissed with cost of Rs.10,000/- (Rupees ten thousand only) in each case.

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

With regard to the above impugned order of the State Commission the petitioner should submit an affidavit regarding the status of the enquiry and disciplinary action taken against the erring officials. The report may be submitted within four weeks.

List on 25th October 2013 for compliance.

..……………………………… [ V B Gupta, J.]

Sd/- ……………………………….. [Rekha Gupta]

Satish

REVISION PETITION NO. 4128 to 4133 OF 2012

Gujarat Insecticides Ltd. Plot No. 805/806, G.I.D.C., Ankleshwar 393002 Gujarat Through Its Deputy General Manager (Marketing) Authorised Representative

... Petitioners

Versus

1. Ram Niwas s/o Ami Chand r/o Village Amargarh, Tehsil Narwana District Jind

2. M/s. Luxmi Beej Bhandaar, Mal Godown Road, Narwana District Jind Through its Proprietor

And others

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. Pankaj Middha, Advocate

For the Respondent–1 Ms. Savita Dhanda, Advocate

For the Respondent–2 Ex-parte

These revision petitions have been filed under section 21(b) of the Consumer

Protection Act, 1986 against the impugned order dated 1.08.2012, passed by the

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

Commission’) in FA Nos. 2680 – 2685/2007, M/s. Gujarat Insecticides Ltd. versus different respondents, vide which, while dismissing the appeals, the order passed by

District Consumer Disputes Redressal Forum, Jind in consumer complaint no. 236/2001 dated 10.07.2007, allowing the complaint, was upheld. This single order shall dispose of all the revision petitions and a copy of the same be placed on each file.

2. Brief facts of the case are that all the complainants are permanent residents of Village Amargarh, Tehsil Narwana, District Jind and are agriculturists by profession. The facts as taken from RP No. 4128/2005 are that the complainant purchased 5 Ltr. (Gilphos – 20 E.C .)Chlorpyriphos Pesticide from OP No. 1, Laxmi Beej Bhandar, who are the sale agents of the petitioners, Gujarat Insecticides Ltd., the manufacturers of the said pesticide. It has been alleged that the said pesticide was sprayed on the cotton crop by the complainant and as per their version, the crop was completely damaged after treatment with the said pesticide. The complainant made a complaint to the Sub Divisional Magistrate, Narwana, upon which the SDO, Agriculture Narwana inspected the crops of the complainants and reported about the damage due to the said pesticide. The SDO, Agriculture, Narwana also sent sample of the pesticide for chemical analysis. The complainants filed complaints before the District Forum and as per the orders passed by the said Forum, the complaints were accepted and the respondents were asked to pay a sum of Rs.15,000/- jointly and severally to the complainants for damages, alongwith a sum of Rs.1,000/- as cost of proceedings. Appeals were filed against the order of the District Forum before the State Commission. The State Commission vide impugned order dismissed the said appeals. It is against these orders of the State Commission that the present revision petitions have been made.

3. At the time of hearing before us, the learned counsel for the petitioner pleaded that the Central Insecticides Laboratory, Faridabad had tested the samples of the said pesticide and found that they were conforming to the relevant I.S. specifications. However, the analysis made by Quality Control Laboratory of Insecticides, Sirsa, Haryana, the samples had been stated to be ‘misbranded’. The learned counsel has drawn our attention to the copies of these reports on record, saying that as per report dated 12.12.2001 given by the Central Insecticides Laboratory, Faridabad on a reference made by Judicial Magistrate-Ist class, Narawana, the said Laboratory had stated that the sample was conforming to I.S. specifications. In another report dated 12.12.2001 made by the same Laboratory on reference from Chief Judicial Magistrate, Hisar, Harayana, similar findings had been recorded. In report made by the same Laboratory and sent to Sub Divisional Agricultural Officer, Narwana, Harayana vide letter dated 5.10.2001, it had been stated that the sample was found non-phytotoxic to the cotton crop. On the other hand, the Sub- Divisional Agricultural Officer, Narwana has written in his report dated 24.08.2001 that there were signs of malformation on three and a half acre crop of farmer, after spraying Gilphos 20 E.C.. The plants were affected to the extent of 50% to 55%. It has also been mentioned in this report that the samples of these insecticides had been sent to C.I.L. Faridabad, Sirsa. There is a report of Quality Control Laboratory of State Agricultural Department, Haryana which has declared the samples as ‘misbranded’, after carrying out chemical analysis of the same. Learned counsel invited our attention to section 3(k) of the Insecticides Act, 1968, in which the definition of ‘misbranded’ had been given. Learned counsel argued that the sample in question does not qualify to be called ‘misbranded’ in accordance with the provisions contained in section 3(K). Moreover, if it is a ‘misbranded’ insecticide, it is bound to be ‘phytotoxic’. Learned counsel has also drawn our attention to some interrogatories sent to the Agricultural Development Officer, in reply to which he has admitted that malformation cannot be possible because the sample was found nontoxic to the crop. Learned counsel further argued that the same product was sold in Hisar District also. There were some complaints in that District, but the same were filed. He stated that the State Commission had ignored the evidence brought on record while pronouncing their order. The learned counsel also invited our attention to the document ‘Package of Practices for the Crops of Punjab (Kharif) 1999’ issued by the Punjab Agricultural University, Ludhiana, saying that cotton was highly sensitive to 2, 4 – D weedicide. Due to the volatile nature of 2, 4 – D weedicide, its vapours are carried by wind over long distances and these may cause injury to the cotton crop. It is necessary, therefore, that the spraying equipment as well as tubs, buckets, etc. should be washed with 0.5% washing soda solution; otherwise, there were chances of contamination with 2, 4 – D.

4. Learned counsel for the respondents, however, maintained that there were two concurrent findings of the State Commission and the District Forum in their favour. The complainants had acted in accordance with procedure by making complaint to the SDM, Narwana, who forwarded the same to the SDO Agriculture, Narwana and the said officer had taken action in the matter in accordance with rules. He also stated that the samples sent to the Central Insecticides Laboratory, Faridabad were forwarded at the instance of the OPs and hence they were not representative samples. The reports of the said laboratory cannot form the basis of decision in the present case. The laboratory at Faridabad had held the samples to be ‘misbranded’ and hence, the orders passed by the State Commission and District Forum reflect a correct appreciation of the material on record. The learned counsel has drawn our attention to the orders passed by the National Commission in RP No. 3336/2011 saying that National Commission had taken a similar view in the said case as taken by the State Commission. Learned counsel also referred to the orders of the Hon’ble Apex Court in “Madhusudan Reddy versus National Seeds Corporation” [2012 (2) SCC 506] in support of his arguments.

5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The basic issue for consideration in the present case is whether the use of Chlorpyriphos pesticides leads to any damage to the cotton crop or not. There are reports of two technical institutions, the Central Insecticide Laboratory, which is a part of the Directorate of Plant Protection, Quarantine and Storage, Department of Agriculture and Cooperation, Government of India. The other report is made by the Quality Control Laboratory of the State Agriculture Department, Haryana at Sirsa. It has been categorically stated in the report made by the Central Insecticide Laboratory, Faridabad that the sample of insecticide, in question, sent to them conforms to the relevant I.S. specifications. It has also been stated that the sample was found non-phytotoxic to the cotton crop. In view of the clear-cut findings of the Central Insecticide Laboratory, it is not understood how the State Laboratory at Sirsa, labelled the said insecticide as ‘misbranded’. The State Laboratory has also not explained how the insecticide falls under the definition of ‘misbranded’ as contained in section 3(K) of the Insecticide Act. We have no reason to agree with the findings of the District Forum that the samples sent to the Central Laboratory were not representative samples since they were sent at the instance of the OPs. These samples have been sent under the authority of the Chief Judicial Magistrate and the Judicial Magistrate Ist class, and hence it cannot be stated that they were not representative samples. Even if, there are conflicting findings given by the Central Laboratory and the State Laboratory, it is very much clear that the finding of the Central Laboratory which is a part of the Ministry of Agriculture, Government of India, must take precedence over the views expressed by the State Laboratory. Further, even if some damage has occurred to the cotton crop, there could be some other reasons like contamination with weedicide like 2, 4 – D, or due to any other reason, but it cannot be concluded that the findings given by the Central Laboratory are false by any standard.

6. Based on the discussion above, these revisions petitions are allowed and the orders passed by the State Commission and District Forum are set aside. The complaints, in question, are ordered to be dismissed with no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

REVISION PETITION NO. 374 OF 2013 (From the order dated 18.12.2012 in Appeal No. 344/2012 of the State Consumer Disputes Redressal Commission, U.T. Chandigarh)

Oriental Bank of Commerce Through Authorized Representative SCO 128-129, Sector 8-C, Chandigarh …Petitioner/Opp. Party (OP)

Versus 1. Sh. Dev Raj Mahajan

2. Kamlesh Mahajan W/o Sh. Dev Raj Mahajan Both R/o: Flat No. 9, GD Rail Vihar S4 MDC, Panchkula

BEFORE

For the Petitioner : Mr. Dhanesh Relan, Advocate For the Res. Nos. 1 & 2 : Mr. D.R. Mahajan, R-1 in person/AR of

PRONOUNCED ON 13 th September, 2013

O R D E R

18.12.2012 passed by the State Consumer Disputes Redressal Commission, UT

Chandigarh (in short, ‘the State Commission’) in Appeal No. 344/2012 – Oriental Bank of Commerce Vs. Dev Raj Mahajan & Anr. by which, while dismissing appeal, order of

District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainants/respondents obtained two FDRs for a sum of Rs.10,000/- each on 14.1.2002 from OP No. 2-Global Trust Bank Ltd. for 10 years with the maturity value of Rs.26,203/-. OP No. 2 merged with OP No. 1-Petitioner and all the assets and liabilities were taken over by OP No. 1. On maturity, complainant approached to OP No. 1 and complainants were paid Rs.20,466/- against each FDR, whereas maturity value of FDRs was Rs.26,203/-. Alleging deficiency on the part of

OP, complainants filed complaint before District Forum. OP No. 1 admitted issuance of

FDRs and merger of OP No. 2 with OP No. 1, but submitted that maturity value was generated on the basis of interest payable by OP No. 1 as per notification issued by the

Ministry of Finance dated 13.8.2004. It was further submitted that OP No. 1 also informed all the customers of Global Trust Bank Ltd. vide letter dated 13.9.2004 about rate of interest. OP has not committed any deficiency in service and prayed for dismissal of complaint. OP No. 2 was proceeded ex-parte. After hearing both the parties, learned District Forum allowed complaint and directed OP No. 1 to refund

Rs.11,474/- of two FDRs along with 9.75% p.a interest and awarded Rs.10,000/- as compensation. Appeal filed by the petitioner was dismissed by learned State

3. Heard learned Counsel for the petitioner and Respondent No. 1 in person and perused record.

4. Learned Counsel for the petitioner submitted that payment was made on maturity of FDRs in accordance with notification issued by Ministry of Finance and intimation about change of rate of interest was also given to the respondent; even then, learned

District Forum has committed error in allowing complaint and directing petitioner to pay difference of amount and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside.

On the other hand, respondent submitted that he has not received any intimation about change of rate of interest and order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. It is admitted case of the parties that respondent obtained two FDRs from Global

Trust Bank Ltd. for a sum of Rs.10,000/- each for 10 years with the maturity value of

Rs.26,203/- and Global Trust Bank Ltd. merged with petitioner. It is also not disputed that petitioner made payment of Rs.20,466/- against each FDRs and maturity value shown in the FDRs issued by Global Trust Bank Ltd. was not made. Now, the question to be decided is whether; petitioner has committed any deficiency in reducing maturity amount.

6. Learned Counsel for the petitioner submitted that interest has been paid on the

FDRs as per notification issued by Ministry of Finance dated 13.8.2004. He further submitted that information regarding rate of interest was also given by the petitioner to all the customers of Global Trust Bank Ltd. vide letter dated 13.9.2004. Respondent submitted that he has not received any intimation from the petitioner about change of rate of interest and had he received this intimation, he would have taken pre-mature payment of FDRs and invested it somewhere else. Petitioner in its written statement submitted that intimation regarding change of rate of interest was given to all the customers of Global Trust Bank Ltd. and respondent has not filed replica to deny this fact. In such circumstances, it cannot be presumed that intimation about change of rate of interest was not given by the petitioner to respondent and other customers of Global

Trust Bank Ltd. Learned State Commission has committed error in holding that petitioner was required to prove service of notice on every individual and complainants.

7. Learned Counsel for the petitioner has placed reliance on judgment delivered by this Commission in R.P. No. 2952 of 2006 – Bank of Baroda, Uttar Pradesh Vs. Parul

Agarwal and others decided on 1.9.2010. In that case, Banaras State Bank Ltd. merged with Bank of Baroda and FDR issued by Banaras State Bank Ltd. depicting maturity value of Rs.1,34,490/- was not paid by the Bank of Baroda and on maturity,

Bank of Baroda paid Rs. 93,841/-. This Commission held that Bank of Baroda acted in accordance with the scheme formulated by the Government of India under the Statute after due notification which was in public interest and specifically in the interest of its depositors to ensure minimum loss of money to them and there was no deficiency on the part of Bank of Baroda and order passed by District Forum and State Commission allowing complaint was set aside. In the aforesaid case, petitioner also did not give any notice about merger. On the other hand, in the case in hand, respondent himself admitted in complaint that merger was effected between OP No. 1 and OP No. 2 and in such circumstances, even if individual notice has not been received by the respondent regarding reduction of rate of interest on FDRs, petitioner has not committed any deficiency in reducing maturity value in accordance with notification issued by Ministry of Finance dated 13.8.2004 and scheme of amalgamation of Global Trust Bank Ltd. with the petitioner.

8. Learned State Commission has committed error in dismissing appeal and learned

District Forum has committed error in allowing complaint and awarding difference of interest and complaint is liable to be dismissed.

9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 18.12.2012 passed by learned State Commission in Appeal No. 344 of

2012 - Oriental Bank of Commerce Vs. Dev Raj Mahajan & Anr. is set aside and complaint filed by the respondents stand dismissed. There shall be no order as to costs.

..………………Sd/-……………

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

REVISION PETITION NO. 3832 OF 2012 (From the order dated 04.06.2012 in Appeal No. 308/2012 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

1. The Union of India Department of Posts Rep. by its Director General New Delhi – 110001 2. Superintendent of Post Offices Head Post Office Postal Division, Sikar, Sikar …Petitioners/OP-2 Versus 1. Kumari Renu Agarwal D/o Sh. Suresh Kumar Agrawal R/o Near Natoriyo Ki Chhatri Ward No. 23, Sikar, District Sikar.

2. Shyam Small Saving Agency Inside Shiv Market Suraj Pole Gate Sikar, Through Proprietor, Sunita Agrawal W/o Kamal Kishore Agrawal, R/o Near Dal Mill Ram Leela Maidan Sikar.

…Respondent/OP-1

3. District Small Saving Officer District Treasury Officer office, Sikar

…Respondent/OP-3

4. Kamal Kishore Agrawal S/o Shri Keshav Dev Agrawal R/o Near Dal Mill, Ram Leela Maidan Sikar

…Respondent/OP-4

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioners : Mr. Baldev Malik, Advocate

For the Respondents : NEMO/Ex-parte

O R D E R

04.06.2012 passed by the Rajasthan State Consumer DisputesRedressal Commission,

Jaipur (in short, ‘the State Commission’) in Appeal No. 308/2012 – Superintendent of Police Vs. Kumari Renu Agrawal by which, while dismissing appeal, order of District

Forum allowing complaint was upheld.

2. Brief facts of the complainant are that OP No. 1 is agent of OP No. 2 & 3 and runs business on commission basis. Complainant had been depositing Rs.620/- per month as Recurring Deposit (RD) with OP No. 1 through OP No. 1’s husband Kamal

Kishore Aggarwal-OP No. 4. OP No. 1 used to keep passbook after entry from OP No.

2. Initially, RD was for a period of 5 years, which was extended for another 5 years. After completion of second term, complainant contacted OP No. 2 for release of payment, but OP No. 2 asked complainant/Respondent to bring passbook. Complainant contacted OP No. 1, where OP No. 4 was also present and they demanded illegal amount for giving passbook and also insulted complainant and thus, they have committed unfair trade practice. Alleging deficiency on the part of OP, complainant filed complaint. OP No. 1 admitted depositing amount in RD by complainant through her, but submitted that passbook was returned to complainant’s father after entry. Further, denied allegations of demand of money and insulting. OP No. 4 submitted that maturity amount of first RD was obtained by father of the complainant in 1999 at his own level and further denied allegations levelled by the complainant and prayed for dismissal of complaint. OP No. 2 submitted that complainant was directed to submit application along with passbook to obtain duplicate passbook for release of payment and denied any deficiency and prayed for dismissal of complaint. Learned District Forum after hearing all the parties directed OP NO. 2-Petitioner to issue duplicate passbook if complainant submits application and documents for issuance of duplicate passbook and further directed to release payment with interest @ 8% p.a. OP No. 1 & 4 were directed to pay Rs.2,000/- for mental agony and complaint was dismissed against OP

No. 3. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

3. Heard learned Counsel for the petitioners and perused record. Respondents have already been proceeded ex-parte.

4. Learned Counsel for the petitioner submitted that impugned order is not a speaking order and learned State Commission has not dealt with the arguments submitted by the petitioner; hence, petition be allowed and matter may be remanded back to the learned State Commission for disposal by speaking order.

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

State Commission has observed as under: “ Keeping in view the facts and circumstances, we don’t find any

error in the order dated 07.02.2012 passed in the Complaint No.

75/2011 by the learned District Forum, Seekar. As, the District

Forum has applied the right mind on the records available on

record, there becomes no ground to interfere in the same. Besides

above, there seems no base in the appeal on merits also”.

6. Hon’ble Apex Court in (2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as under:

“1.In a number of cases coming up in appeal in this Court, we find

that the State Consumer Disputes Redressal Commission, Haryana

at Chandigarh is passing a standard order in the following terms:

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

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

in the detailed and well-reasoned order passed by District

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

dismiss the appeal’.

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

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

refer to the pleadings of the case, the submissions of the counsel,

necessary points for consideration, discuss the evidence and dispose of the matter by giving valid reasons. It is very easy to

dispose of any appeal in this fashion and the higher courts would

not know whether learned State Commission had applied its mind

to the case. We hope that such orders will not be passed by the

State Consumer Disputes Redressal Commission, Haryana at

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

the Commission”.

7. In the light of above judgment, it becomes clear that Appellate Court while deciding an appeal is required to deal with all the arguments raised by the appellant and as learned State Commission has not dealt with arguments of the appellant, it would be appropriate to remand the matter back to the learned State Commission for disposal by speaking order after dealing with all the contentions and arguments raised by the petitioner.

8. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 04.06.2012 passed by the learned State Commission is set aside and matter is remanded back to the learned State Commission for deciding it by speaking order after giving an opportunity of being heard to the parties.

9. Parties are directed to appear before the learned State Commission on 29.10.2013. A copy of this order be sent to the Rajasthan State Commission, Jaipur.

..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 2507 OF 2013 With I.A./4210/2013 (For C/delay)

(From the order dated 05.11.2012 in Appeal No. 420/2010 of the State Consumer Disputes Redressal Commission, Rajasthan, Circuit Bench No. 3, Jaipur)

Amar Nath Bansal S/o Sh. Maman Chand Bansal R/o House No. 3/80, Rajasthan Housing Board, Bhiwadi, Tehsil Tizara, Distt. Alwar Rajasthan … Petitioner/Complainant Versus

1. National Metropolitan/Capital Area Scheme/Plan And Secretary Urban Trust, Bhiwadi, Distt. Alwar (Rajasthan)

2. The Director, N.C.R. Project and Secretary Urban/Town Development Trust, Alwar Rajasthan

BEFORE

For the Petitioner : Ms. Garima Tiwari, Advocate

O R D E R

This revision petition has been filed by the petitioner/complainant against the order dated 05.11.2012 passed by the State Consumer

Disputes RedressalCommission, Rajasthan, Circuit Bench No.3, Jaipur (in short, ‘the

State Commission’) in Appeal No. 420/2010 – Amar Nath Bansal Vs. National

Metropolitan &Anr. by which, while dismissing appeal, order of District Forum dismissing complaint was upheld.

2. Brief facts of the case are that complainant/petitioner was allotted plot No. D-

89, Bhagat Singh Colony, Bhiwadi by Urban Improvement Trust and as per allotment letter dated 22.8.2008, construction was to be completed within a period of 10 years.

As OP has not given possession of the plot inspite of depositing full price of the plot, complainant/petitioner filed complaint before District Forum alleging deficiency on the part of OP. OP/respondent contested complaint and submitted that possession has already been given on 10.4.1989 and site plan was also given on 7.8.1989, but as complainant has not carried out construction within a period of 2 years, this complaint has been filed to avoid penalty which may be imposed for non-construction and prayed for dismissal of complaint. District Forum after hearing both the parties dismissed complaint against which appeal filed by the petitioner was also dismissed by learned

State Commission vide impugned order against which this revision petition has been filed along with application for condonation of delay.

4. Petitioner has filed application for condonation of delay, but has not mentioned period of delay to be condoned. As per office report, there was delay of 134 days. In the application, petitioner submitted that as petitioner was diagnosed with Type II

Diabetes Mellitus, acute coronary syndrome and surgery was done on 11.1.2013 and money was spent in treatment, revision petition could not be filed in time. Further, it was alleged that petitioner recovered in health and got papers in May, 2013 and after that he contacted Advocate and filed revision petition. Revision petition has been filed on

4.7.2013. As per discharge certificate by Medanta, the Medicity hospital, petitioner was admitted in the hospital on 11.1.2013 and discharged on 14.1.2013 and petitioner was further directed to review with the doctor after one week. In such circumstances, it can be inferred that petitioner recovered latest by 20.1.2013, but this revision petition has been filed on 4.7.2013 meaning thereby after 5½ months of recovery. No reasonable explanation has been given for condonation of delay in the application.

5. As there is inordinate delay of 134 days, this delay cannot be condoned in the light of the judgment passed by the Hon’ble Apex Court and the National Commission in (1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Anr.; (2) (2012) 3 SCC 563 – Office of The Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State Commission) – Anshul AggarwalVs. New Okhla Industrial Development Authority.

6. As application for condonation is liable to be dismissed, revision petition filed by the petitioner being barred by limitation is bound to be dismissed.

7. As far as merits of the case are concerned, petitioner submitted that he has not been given possession of the allotted plot, whereas respondent has submitted in reply that possession has already been given on 10.4.1989, whereas complaint has been filed in the year 2008 meaning thereby almost after 19 years which is apparently time barred. Learned State Commission has not committed any error in dismissing appeal and learned District forum has also not committed any error in dismissing complaint.

..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

Sohan Singh Bhullar S/o Sh. Gajjan Singh R/o A-6, DLF Colony, Patiala … Petitioner/Complainant Versus The Estate Officer, Punjab Urban Planning & Development Authority SAS Nagar, District Mohali Punjab State

BEFORE

For the Petitioner : In person

O R D E R

This revision petition has been filed by the petitioner/complainant against the order dated 29.09.2011 passed by the Punjab State Consumer

DisputesRedressal Commission, Chandigarh (in short, ‘the State Commission’) in

Appeal No. 855/2006 – Sohan Singh Bhullar Vs. The Estate Officer, Punjab Urban

Planning and Development Authority by which, while allowing appeal partly, order of

District Forum dismissing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner was allotted Plot No. 484,

Phase IX, SAS Nagar. Due to certain reasons, complainant could not construct the house upon the plot and complainant deposited extension fee as per paragraph 4 of the complaint totalling Rs.1,67,207/-. There was no provision for charging non-construction fee and complainant served notice to OP on 8.3.2004, but OP refused to refund money by letter dated 9.6.2004. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP filed written statement and submitted that claim is time barred, as extension fee was deposited from 1989 till 2003. He further submitted that plot has already been sold by complainant and now complainant no more falls within the purview of consumer and prayed for dismissal of complaint. District Forum after hearing both the parties dismissed complaint. Petitioner filed appeal before State

Commission and learned State Commission vide impugned order partly allowed appeal and directed OP to refund Rs.51,975/- deposited on 16.6.03 with 9% p.a. interest against which, this revision petition has been filed by the petitioner.

3. Heard petitioner in person at admission stage and perused record.

4. Petitioner has also filed application for condonation of delay of 32 days. As per office report, there is delay of 72 days. Petitioner submitted that he went to USA and forgot to file revision petition. As per application, petitioner went to USA in the last week of November and returned back on 31.1.2012, but this revision petition has been filed on 28.3.2012. In the interest of justice, we condone delay in filing revision petition for the reasons mentioned in application.

5. Petitioner submitted that limitation is to be counted from the date of refusal from refunding the amount and learned State Commission has committed error in dismissing complaint being barred by limitation; hence, revision petition be admitted.

6. Perusal of complaint clearly reveals that petitioner deposited extension fee from

1989 to 2003. Complaint was filed in the year 2005. Learned State Commission rightly dismissed complaint in respect of refund of amount deposited upto 2001. Petitioner submitted that limitation should be reckoned from the date of refusal to refund the amount, i.e. 9.6.2004. This argument is devoid of force and learned State Commission has elaborately dealt this aspect and rejected this contention in the light of Hon’ble Apex

Court and National Commission’s judgements. 7. We do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed.

..………………Sd/-……………

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

REVISION PETITION NO. 3035 OF 2013 (From the order dated 27.02.2013 in Appeal No. 1292/2009 of the U.P. State Consumer Disputes Redressal Commission, Lucknow)

With IA/5243/2013, IA/5244/2013, IA/5245/2013

(Stay, C/Delay, Exemption from filing Translation of documents)

Kanpur Development Authority Through its Vice-Chairman Motijheel, Kanpur (UP). …Petitioner/Opp. Party (OP) Versus

Karuna Shankar Shukla R/o L-II/77, Gangapur K.D.A.Colony, District Kanpur

BEFORE

For the Petitioner : Mr. Rishi Jain, Proxy Counsel PRONOUNCED ON 16 th September, 2013

O R D E R

27.02.2013 passed by the U.P. State Consumer Disputes Redressal Commission,

Lucknow (in short, ‘the State Commission’) in Appeal No. 1292/2009 – Kanpur

Development Authority Vs. Karuna Shankara Shukla by which while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent applied for a house in

KDA Colony of OP and House no. L-II/87 was allotted to him in a lottery drawn on

16.6.1989. Some amount was to be paid in 56 quarterly instalments. Complainant deposited money time to time and possession of house was also handed over to the complainant on 29.9.1992. Later on, complainant came to know that complainant was required to deposit instalments from 1990, whereas agreement was executed in the year 1992 and thus, he deposited excess amount; even then, OP has not executed and registered sale deed in favour of the complainant. OP contested complaint and submitted that complainant failed to deposit instalments in time so sale deed could not be executed in his favour and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.28,000/- along with 10% p.a. interest and further directed to execute sale deed and get it registered in favour of the complainant. Appeal filed by the OP was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed along with application for condonation of delay.

3. Heard learned Counsel for the petitioner on application for condonation of delay and perused record.

4. Learned Counsel for the petitioner submitted that delay of 78 days occurred in filing revision petition as approval was not granted by higher authorities in time and sometime was taken in getting translations of the documents and drafting of the revision petition; hence, delay may be condoned.

5. Paragraphs 3, 4 and 5 of the application for condonation of delay run as under: “ 3. That after the passing impugned order was passed on

27.2.2013, the copy of the impugned order was received to the

Petitioner’s department on 12.3.2013 through the letter dated

7.3.2013 written by N.C. Upadhyay, Advocate, Lucknow thereafter

the copy of the order was received to Zone-IV on 23.3.2013.

4. That the comments in respect of appeal was received on

15.4.2013, whereupon the approval was granted through letter

dated 1.5.2013 by Vice-Chairman, which was received on 3.5.2013.

5. That in respect of the appointment of advocate, the letter

dated 6.5.2013 was sent to Law Department where after

undersigned counsel was appointed and the letter dated 8.5.2013

for same was received to the Petitioner’s department. Thereafter,

the entire file was assigned to the undersigned advocate on

12.5.2013 in respect of the filing of revision petition. Thereafter it

took some time in drafting the petition, translations etc. Shri Manoj

Kumar, departmental officer contacted undersigned on 30.6.2013.

That the affidavit of the concerned officer was sent via courier on

16.7.2013 at the office of undersigned. Thereafter the revision

petition was filed.”

6. Perusal of application reveals that petitioner’s Counsel received copy of impugned order dated 27.2.2013 on 7.3.2013 which was received by petitioner-Authority on

12.3.2013, but approval for filing revision was granted on 1.5.2013 meaning thereby 50 days were taken in approval for filing revision and no explanation has been given for this inordinate delay.

7. Counsel for the petitioner was appointed on 6.5.2013 and petitioner’s Counsel received entire file on 12.5.2013, but revision petition has been filed on 21.8.2013 and apparently, no explanation has been given by Counsel for taking almost almost 100 days in preparation and filing revision petition. As per para 5 of the application affidavit in support of revision petition was received by Counsel for the petitioner on 16.7.2013 meaning thereby after that no further steps except filing revision petition were required, but revision petition has been filed on 21.8.2013 and no explanation has been given for condonation of this period of delay. It appears that on account of negligence of petitioner’s Counsel revision petition could not be filed in time and application for condonation of inordinate delay of 78 days without any explanation is liable to be dismissed.

8. As there is inordinate delay of 78 days, this delay cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

9. In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has been observed: “ We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

10. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed; “It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

11. Hon’ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries

Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC

459 as under; “ We have considered the respective submissions. The

law of limitation is founded on public policy. The legislature

does not prescribe limitation with the object of destroying the

rights of the parties but to ensure that they do not resort

to dilatory tactics and seek remedy without delay. The idea

is that every legal remedy must be kept alive for a period

fixed by the legislature. To put it differently, the law of

limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time,

the courts are bestowed with the power to condone the

delay, if sufficient cause is shown for not availing the

remedy within the stipulated time.”

12. Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General &

Ors. Vs. Living Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.

13. Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla

Industrial Development Authority observed as under: “ It is also apposite to observe that while deciding an

application filed in such cases for condonation of delay, the

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

has been prescribed under the Consumer Protection Act,

1986, for filing appeals and revisions in Consumer matters

and the object of expeditious adjudication of the Consumer

disputes will get defeated, if this Court was to entertain highly

belated petitions filed against the orders of the Consumer

Foras”.

Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 78 days. Revision petition is liable to be dismissed on the ground of delay alone.

14. As application for condonation of delay has been rejected, revision petition being barred by time is liable to be dismissed.

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

……..………Sd/-

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3266 OF 2008 (From the order dated 07.07.2008 in Appeal No. 1235/2008 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Bajaj Allianz General Insurance Co. Ltd. Having its registered office at GE Plaza, Airport Road, Yerwada, Pune – 411 006 and Branch Office, inter alia, at M.G. Palace, Gopi Circle, Shimoga – 577201 Through: Shri Sanjay Gupta, Assistant Manager (Legal) Bajaj Allianz General Insurance Co. Ltd. Regional Office, 1 DLF 2nd Floor, Moti Nagar, New Delhi 110015. …Petitioner/Opp. Party (OP) Versus

Smt. R. Suguna widow of Late H. Srinivasa, D.No. 60, Sri Narasimha Sannidi, 2nd Keerthi Nagar, Shimoga – 577201 (Karnataka)

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Ms. Kanupriya Jaipuria, Proxy Counsel

For the Respondent : Mrs. Vaijayanthi Girish, Advocate

O R D E R

07.07.2008 passed by the Karnataka State Consumer Disputes RedressalCommission,

Bangalore (in short, ‘the State Commission’) in Appeal No. 1235/2008 – M/s. Bajaj

Allianz General Ins. Co. Ltd. & Ors. Vs. Smt. R. Suguna by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent’s husband H. Srinivasa, owner of Motor Cycle No.KA-14-U-2526 obtained insurance policy from OP/petitioner for a period of one year from 27.11.2006 to 26.11.2007 along with personal accident cover for Rs.1,00,000/-. Deceased H. Srinivas was holding valid driving licence and was not disqualified from holding driving licence. On 9.3.2007, H. Srinivasa met with road accident due to rash and negligent driving of another vehicle being run by one Raju and H. Srinivas succumbed to injuries. Complainant lodged claim, but

OP/petitioner repudiated claim. Alleging deficiency on the part OP, complainant filed complaint before District Forum. OPs were proceeded ex-parte and District Forum passed ex-parte order on 6.10.2007, which was later on recalled on the application of

OPs. Later on, OP filed reply and admitted issuance of policy, but submitted that complainant’s husband was not holding valid driving licence on the date of accident; hence, not entitled to get benefits under the personal accident coverage and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.1,00,000/- along with 10% p.a. interest and further awarded Rs.5,000/- towards mental agony and Rs.2,000/- towards litigation expenses. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been has been filed.

4. Learned Counsel for the petitioner submitted that as per terms and conditions of the policy, owner-driver was covered under the policy and learned District Forum wrongly allowed complaint and learned State Commission has committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the Respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. It is admitted case of the parties that complainant’s husband obtained policy from

OP with personal accident coverage of Rs.1,00,000/-. It is also not disputed that on the date of accident i.e. 9.3.2007, insured was not possessing valid driving licence as it had already expired on 5.11.2005.

6. Now, the main question to be decided in this case is as to whether; deceased was entitled to personal accident coverage inspite of not holding valid driving licence on the date of accident.

7. Section 3 of the package policy reveals that in case of death of owner-driver of the vehicle in direct connection with the vehicle insured, etc., he was entitled to 100% compensation. The proviso 1 of Section 3 runs as under:

“4. This cover is subject to: (a) The owner-driver is the registered owner of

the vehicle insured herein; (b) The owner-driver is the insured named in this

policy; (c) The owner-driver holds an effective driving

license, in accordance with the provisions of

Rule 3 of the Central Motor Vehicles Rules,

1989, at the time of the accident.

This proviso makes it very clear that owner-driver means, he must be registered owner of the vehicle and his name must be shown as insured in the policy and further, owner- driver must hold effective driving licence at the time of accident.

8. Driver has been defined in the package policy as under: “DRIVER : Any person including the insured Provided that a person

driving holds an effective driving licence at the time of the accident

and is not disqualified from holding or obtaining such a licence.

Provided also that the person holding an effective Learner's licence

may also drive the vehicle and that such a person satisfies the

requirements of Rule 3 of the Central Motor Vehicles Rules, 1989

9. Thus, it becomes clear that insured will be treated as driver only when he holds effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence. Thus, it becomes clear that insured should not have only hold valid driving licence at the time of accident, but should also not have been disqualified from holding driving licence. Learned District Forum allowed complaint on the basis that deceased was not disqualified from holding or obtaining licence which is apparently not proper interpretation of the word ‘owner driver’.

10. Learned State Commission observed that if accident is not on account of negligence of the insured, insurance company cannot repudiate liability whether insured had licence or not. Apparently, this observation is not in accordance with law. In the case in hand, complainant is claiming personal accident benefits under the package policy which are admissible only when insured was possessing valid driving licence at the time of accident. As insured was not possessing valid driving licenced at the time of accident, petitioner has not committed any deficiency in repudiating claim and learned

State Commission has committed error in dismissing appeal and complaint is liable to be dismissed.

11. Consequently, revision petition filed by the petitioner is allowed and impugned order date 7.7.2008 passed by learned State Commission in Appeal No. 1235 of 2008 –

M/s. Bajaj Allianz General Ins. Co. Ltd. Vs. Smt. R. Suguna is set aside and complaint stands dismissed. There shall be no order as to costs.

..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

(From the order dated 10.05.2013 in Revision No. 16/2010 of Uttar Pradesh State Consumer Disputes Redressal Commission)

Dr. Inder Bhushan Dua s/o Shri Duni Chander r/o 189, Preetam Nagar Allahabad City

... Petitioners

Versus

1. Universal Instrument Regional Office 189, Preetam Nagar Allahabad

2. Director / General Manager-Sales Universal Instruments 3694/16, Har Dayal Road 2nd Floor, Karol Bagh New Delhi

3. Shri Urmi Rajesh G 3 Mangalam Apartments 5-3 Old Phalesia, Indore Madhya Pradesh

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Ms. Vatsala Rai, Advocate

Act, 1986 against the impugned order dated 10.05.2013 passed by the U.P. State

16/2010, “Dr. Inder Bhushan Duaversus Director/General Manager (Sales), Universal

Instrument & Ors.,” vide which while dismissing the appeal of the present petitioner/complainant, the order dated 06.11.2009 in Complaint No. 215/2007, passed by District Consumer Disputes Redressal Forum, Allahabad, was upheld.

2. Brief facts of the case are that the petitioner/complainant is a General Physician and as per his complaint, he purchased one life–saving DefiMonitor Machine, used for U.M.Aa. E.E.M. heart disease from the respondents for Rs.60,000/- and the same was installed at his nursing home in Allahabad on 12.07.2001. It has been stated that the machine was purchased by the complainant from respondent no. 2 from Karol Bagh,

New Delhi but the bill was issued by respondent no. 3 on 29.07.2001 from Indore

(M.P.). The complainant has alleged that just a few days after the date of installation, the machine was not functioning properly and he duly informed the respondents to this effect. He had the apprehension that an old machine was supplied to him. An engineer and agent of respondent no. 2 could not repair the machine and his request for replacement of the machine was not accepted. The complainant filed a consumer complaint in question on 12.04.2007 which was dismissed by the District Forum mainly on the ground that the District Forum at Allahabad had no jurisdiction to entertain the complaint, the complaint was time-barred having been filed after six years of cause of action and there was no valid warranty for the machine. An appeal filed against this order was dismissed by the State Commission. It is against this order that the present petition has been made.

3. At the time of admission hearing, the learned counsel for the petitioner stated that ever since purchase, the machine had been found to be defective and his request for replacement of the same had not been accepted by the OPs. Referring to the point of limitation, the learned counsel maintained that there was a continuing cause of action and hence, the complaint should be treated as within limitation. He had sent intimation to the respondents at various time intervals requesting for replacement/repairing the machine.

4. A careful examination of the record of the case and the orders passed by the State

Commission and the District Forum indicates that the said machine was got installed at the nursing home of the complainant at Allahabad on 12.07.2001 and as per the version of the complainant, the machine started malfunctioning within a few days of purchase. However, the complaint was filed after a lapse of six years, i.e., in the year

2007. The complaint is, therefore, clearly time-barred as it was filed beyond a period of 2 years as allowed for filing consumer complaints from the date of cause of action, as per section 24 (A) of the Consumer Protection Act, 1986. The complainant has not been able to give any cogent and convincing reason for not filing the complaint within the period of limitation. Further, the State Commission have rightly observed that the machine was purchased from New Delhi and the bill thereafter was issued from Indore

(M.P.); hence the cause of action cannot be stated to have arisen in Allahabad. The complainant has also mentioned in his complaint that the respondents had opened their

Regional Office at Allahabad, but the same was closed after a period of three months only. Further, there is no evidence regarding any warranty for the machine. It has not been substantiated anywhere that it was an old machine.

5. Based on the discussion above, it is held that the order passed by the State

Commission does not suffer from any illegality, irregularity or jurisdictional error. The same is, therefore, ordered to be upheld and the present petition is ordered to be dismissed at admission stage, with no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

(From the order dated 06.02.2013 in First Appeal No. A/08/904 of Maharashtra State Consumer Disputes Redressal Commission)

Mukhtiar Singh 41-A, Bandstand Building, Kane Road, Bandra (W) Mumbai – 400091.

... Petitioners

Versus

S.R. Vohra flat No. B-605, MRIGOLD CHS LTD. Ram Mandir Road, Borivali (W) Mumbai – 400091

… Respondent

BEFORE

PRESIDING MEMBER

For the Petitioner(s) In person

PRONOUNCED ON : 16 th SEPTEMBER 2013 O R D E R PER DR. B.C. GUPTA, MEMBER

Act, 1986 against the impugned order dated 06.02.2013 passed by the Maharashtra

State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in

FA No. A/08/904, “Mukhtiar Singh versus S.R. Vohra”, vide which while dismissing appeal, order dated 23.05.2008 passed by District Consumer Disputes Redressal

Forum, allowing the consumer complaint in question was upheld.

2. Brief facts of the case are that the complainant Mukhtiar Singh and OP

S.R. Vohra both were working in Larsen and Toubro Ltd., Mumbai, when the OP

S.R. Vohra collected money from some persons under the pretext of formation of a cooperative housing society inBorivali (West). He proposed a housing society in Goregaon (West) in Feb. 1996 and collected Rs.30,000/- from each member but the project did not materialise, because the selected site was found to be under litigation. An alternative site was proposed in Goregaon (East) in July 1996, but the same was also found under litigation and the deposited amount was returned to the members without interest. In 1997, the OP proposed formation of Luvkush Cooperative

Housing Society, B-20, Vijay Nagar C.H.S. Eksar Road, Borivali (West), Mumbai –

400092. The complainant paid a sum of Rs.3,18,240/- in four instalments in the year

1997 to the OP S.R. Vohra. However, there was no progress in the matter and the complainant demanded his money back from the OP. The OP gave him a cheque for

Rs.2,93,240/- but requested the complainant not to deposit the cheque in bank. Another cheque was given for the same amount a few days later, but the said cheque was dishonoured for want of sufficient balance. It has been stated in the complaint that the complainant had taken the money from his Provident Fund Account and also raised loan for making payment to the OP. The complainant made the following prayer in his complaint:- “Mr. S.R. Vohra is liable to compensate as follows:-

a) The amount of Rs.2,63,275/- which is detailed in Page-4 as interest @18% per year on balance payment.

b) The amount of Rs.45,000/- against losses on delay in acquiring house, buy a car (perks @ 4860 p.m. as car allowance), loss of tax rebate on PF interest etc.)

c) The amount of Rs.40,000/- for mental harassment and strain.

d) The amount of Rs.10,000/- spent on litigation expenses and time lost in litigation.

The total amount (as above) of RS.3,58,275/-(Rupees Three Lakhs Fifty Eight Thousand Two Hundred Seventy Five only) thus Mr. S.R. Vohrais liable to pay.”

3. The District Forum vide 23/05/2008 ordered that OP should pay an amount of

Rs.3,18,240/- to the complainant alongwith an interest @9% p.a. from 01.07.97 till

30.06.2000 and after that period with interest @6% p.a. and also pay Rs.5,000/- for mental depression and Rs.2,000/- as litigation expenses. An appeal against this order before the State Commission was dismissed on 06.02.2013. It is against this order that the present petition has been made.

4. At the time of hearing before us, the complainant/petitioner appeared in person and handed over his written submissions along with copies of some documents. He stated that an alternative house of same size and same location should be given to him on payment of balance and he should also be compensated for the cost appreciation in the value of the house from 1997. The opponent should also be asked to refund Rs.9.9 lakh with interest @18% or 24% and should be given Rs.10 lakh for mental harassment and Rs.2,50,000/- towards cost of litigation. It has been stated in the written submissions that the OP had defaulted in providing him house at Kandivali at the cost of

Rs.13,18,044/- by Diwali 1998. Moreover, he was supposed to get a sum of

Rs.1,90,000/- from the OP as interest balance since the year 2000. When the attention of the petitioner was drawn to the contents of the complaint filed by him saying that such demands were not made in the complaint, he still stated that he is entitled to get an alternate house and adequate compensation.

5. An examination of the material on record indicates that in the consumer complaint in question, the petitioner in his complaint had demanded a sum of Rs.3,58,275/- from the OP S.R. Vohra. The District Forum after taking into account the material on record, ordered the OP to pay a sum of Rs.3,18,240/- alongwith interest and also awarded

Rs.5,000/- for mental depression and Rs.2,000/- as litigation expenses. The State

Commission also held that the petitioner was not entitled to receive anything more than that allowed by the District Forum. It is very clear from these facts on record that the petitioner is now saying that he should be given a house in the same locality and should be given heavy amounts for mental harassment etc. but his stand is not justified on any ground, because whatever demand was made by him in the complaint has already been considered and relief allowed by the District Forum and the State Commission. We do not find any illegality, infirmity or jurisdictional error in the orders passed by the State

Commission and District Forum. The present petition is, therefore, ordered to be dismissed and the orders passed by the State Commission and District Forum are upheld with no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

(From the order dated 19.01.2012 in First Appeal No. 141/2011 of Chhattisgarh State Consumer Disputes Redressal Commission)

M/s. Vijay Concerns, 70, Shakti Nagar, Rajnandgaon Through : Proprietor – Sheetal Sahu r/o Shakti Nagar, Rajnandgaon (C.G.)

... Petitioner

Versus

1. State Bank of India, Through : Branch Manager Branch : Gaushala Para Rajnandgaon (C.G.)

2. United India Insurance Company Limited Through : Branch Manager, Kamthi Line, Patel Complex Rajnandgaon (C.G.)

… Respondent(s)

(From the order dated 19.01.2012 in First Appeal No. 159/2011

of Chhattisgarh State Consumer Disputes Redressal Commission)

M/s. Vijay Concerns, 70, Shakti Nagar, Rajnandgaon Through : Proprietor – Sheetal Sahu r/o Shakti Nagar, Rajnandgaon (C.G.)

... Petitioner

Versus

1. State Bank of India, Through : Branch Manager Branch : Gaushala Para Rajnandgaon (C.G.)

2. United India Insurance Company Limited Through : Branch Manager, Kamthi Line, Patel Complex Rajnandgaon (C.G.)

… Respondent(s)

BEFORE

PRESIDING MEMBER

APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. R.K. Bhawnani, Advocate

For the Respondent-1 Mr. S.L. Gupta, Advocate

For the Respondent-2 Mr. Abhishek Kumar, Advocate

Protection Act, 1986 by the petitioner against the impugned order dated 19.01.2012, passed by the Chhattisgarh State Consumer Disputes Redressal Commission (for short

‘the State Commission’) in appeals, i.e., Appeal No. 141/2011, “M/s. Vijay Concerns versus State Bank of India & Anr.” and Appeal No. 159/2011, “United India Insurance

Co. Ltd. versus M/s. Vijay Concerns & Anr.”, vide which the order dated 10.02.2011 passed by the District Consumer Disputes Redressal Forum in complaint case No.

56/2010 was set aside. The District Forum vide their order had allowed the complaint filed by the present petitioner/complainant and ordered the United India Insurance

Company (hereinafter referred to as ‘Insurance Company’) to pay a sum of Rs.3.6 lakh to the complainant. The State Commission, however, allowed the appeal of the insurance company and dismissed the complaint.

2. Brief facts of the case are that the petitioner/complainant, who is a contractor by profession, had initially availed a cash-credit limit of Rs.3 lakh from respondent no. 1/OP

No. 1, State Bank of India in the year 2004, which was subsequently raised to Rs.9 lakh. It has been stated in the complaint that the complainant is a single ownership firm whose proprietor is Sheetal Sahu. As per the complainant, the OP No. 1 Bank had taken the Insurance Policy from the Insurance Company/OP No. 2 for the security of the loan and paid the requisite premium and deducted the same from the account of the complainant. The policy issued by the Insurance Company is known as Shopkeeper

Insurance Policy and was issued in the name of ‘State Bank of India Account M/s. Vijay

Concerns’. After taking loan from the Bank, the complainant was constructing a bridge at Shivnath River, Gram Girri, District Rajnandgaon. During the construction of the bridge on 15.07.2009, the bridge which was constructed by the complainant was destroyed due to heavy rains and flood. The complainant informed the insurance company which appointed a surveyor to assess the loss. The said surveyor submitted his report on 23.11.2009 and assessed the loss as Rs.3,73,942/-. However, the amount was not paid to the complainant by the Insurance Company taking the stand that the complainant had taken the Shopkeeper Insurance Policy, under which the company was not liable to pay damages for the bridge. The Insurance Company informed that the insurance had been done regarding the building material for the shop situated at

Shakti Nagar. The complainant has alleged that it was the duty of the Bank to take correct insurance policy, as they had filled the proposal form themselves. No intimation was given to the complainant by the Bank while filling the proposal form. The policy was got renewed by the Bank from time to time. The complainant alleged that the Bank had committed deficiency in service by filling proposal form wrongly. The complainant demanded a sum of Rs.5,16,451/- for the loss suffered and Rs.25,000/- for mental harassment along with interest @18% p.a. from the OPs. The District Forum after taking into account the evidence of the parties, directed that a sum of Rs.3,60,000/- should be paid by the Insurance Company to the complainant for the loss suffered by him. Two appeals were filed before the State Commission – one by the petitioner/complainant and other by the Insurance Company. The State Commission dismissed the appeal filed by the petitioner/complainant and allowed the appeal of the Insurance Company and held that both the Bank and the Insurance Company had not committed any deficiency in service, and hence the complainant was dismissed. It is against this order that the present petitions have been filed.

3. At the time of hearing, the learned counsel for the petitioner stated that the policy in question was obtained from the Insurance Company by the Bank and they had filled the necessary proposal form. Learned counsel has drawn our attention to the terms and conditions of the CC Loan saying that the entire building material kept at the construction sites was hypothecated to the Bank, and hence it should be covered by the insurance policy. The learned counsel has also drawn our attention to the written statement filed by the Bank before the District Forum, in which they have stated that the

Insurance Company by mistake had issued the Shopkeeper Insurance Policy. Learned

Counsel stated that it was within the knowledge of the Bank that Insurance Policy was wrongly issued; hence they should have got it rectified. Further, on the policy itself, it had been written that the business of the complainant was building material shop. The said building material was to be placed at the construction site only.

4. The learned counsel for the Insurance Company stated that they had issued the policy, based on the proposal form submitted by them and it was a Shopkeeper

Insurance Policy.

5. The learned counsel for the Bank submitted that it was the responsibility of the complainant to inform the OPs about the change of site of construction. In fact, the insurance policy had been taken by the complainant himself for the first time, but the

Bank had only got it renewed from time to time. It was the duty of the complainant to have remained vigilant about the terms and conditions of the Policy. The Bank could not be blamed for any deficiency in service.

7. In the copy of the “Agreement for Cash Credit for Hypothecation of Goods” executed between the petitioner/complainant and the Bank, it has been stated in paragraph 5 as follows:- “ That the said goods shall be kept at the borrower’s risk and expense in good condition and fully insured against loss or damage as may be required by the Bank.”

8. It has been rightly observed by the State Commission in their order that as per this document, the obligation was on the petitioner/complainant to have the goods insured against loss or damage. Further, the petitioner /complainant was required to submit to the Bank regular stock statements with lists of insured articles duly verified. It may be true that in practice, the Bank had availed and submitted the proposal form and obtained the insurance policy on behalf of the complainant, but it was also the duty of the complainant to be vigilant about the terms and conditions of the policy and also to inform the concerned quarters about the exact place, where the building material was kept. In the absence of such information, the Insurance Company is well within its rights to say that the insurance was done only for shop at Shakti Nagar and it was a

Shopkeepers Insurance Policy and hence they are not liable to make payment against the claims under the Policy. From the material on record, it is very clear that the place where the loss has occurred was not within the knowledge of the Insurance

Company. Moreover, the Bank can also not be held liable for any deficiency in service, because it was the primary duty of the complainant/ petitioner to obtain the Insurance

Policy and to have knowledge about its terms and conditions.

9. The State Commission while passing the impugned order have rightly placed reliance on the orders passed by the Hon’ble Supreme Court in the case “United India

Insurance Co. Ltd. versus M/s. Harchand Rai Chandan Lal [(2005) (1) CPR 64 (SC)] and in the case “DeokarExports Pvt. Ltd. versus New India Assurance Co. Ltd.” [I

(2009) CPJ 6 (SC)], according to which the rights and obligations of the parties are strictly governed by the policy of Insurance and no exception or relaxation can be made on the grounds of equity. Further, a similar view has been expressed by the Hon’ble Supreme Court in the case of “Suraj Mal Ram Niwas Oil Mills Private Ltd. versus United India Insurance Co. Ltd. & Anr.” [(2010) 10 SCC 567], in which it has been observed by the Hon’ble Supreme Court as follows:- “The Courts should always try to interpret the “words” in the insurance contract as they have been expressed by the parties. It is not open for the Court to add, delete or substitute any words. The words used in the Insurance Contract must be given paramount importance.”

10. In the light of these facts stated above, we do not find any merit in these petitions. There is no illegality, irregularity or jurisdictional error in the impugned order passed by the State Commission. The revision petitions are, therefore, ordered to be dismissed and the order passed by the State Commission is upheld with no order as to costs.

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

(From the order dated 25.10.2007 in First Appeal No. 07/553 of Delhi State Consumer Disputes Redressal Commission)

Assistant Housing Commissioner (Loans) National Capital Territory of Delhi A – Block, Vikas Bhawan New Delhi

... Petitioners

Versus

Dharam Pal s/o Late Sh. Jug Lal r/o Village Shai Amar, Delhi

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. Braj Mahapatra, Advocate

For the Respondent(s) Mr. B.K. Sharma, Advocate

PRONOUNCED ON : 16 th SEPTEMBER 2013

O R D E R

Act, 1986 against the impugned order dated 25.10.2007 passed by the Delhi State

07/553, “Assistant Housing Commissioner (Loans) versus Dharam Pal”, vide which while dismissing the appeal, the order dated 13.04.2007 passed by District Consumer

Disputes Redressal Forum, Kashmere Gate, Delhi in complaint case No. 312/2005, allowing the said complaint, was upheld.

2. Brief facts of the case are that the complainant Dharam Pal raised a loan of

Rs.5,000/- from the petitioner on 27.06.1978, payable in 20 equal instalments of

Rs.250/- per month. The repayment was to commence after 18 months from the date of receipt of first instalment of Rs.1500/- which included principal amount of Rs.250/-. The complainant made payment of 3 instalments together and deposited a sum of Rs.750/- on 26.03.1983. However, the OP referred the case for recovery of dues as arrears of land revenue to the collector to recover a sum of Rs.5,000/- as principal amount and

Rs.4,245.87ps. as interest although a sum of Rs.750/- had already been paid by the complainant. According to the complainant, a total sum of Rs.9,224/- was paid by him as full and final payment to the Collector. However, the OP did not return the original documents to him, although several requests were made to this effect. The complainant claimed a compensation of Rs.50,000/- along with interest @12% p.a. and the return of the original documents and cost of litigation. The District Forum came to the conclusion that the OP had committed deficiency in service by not accounting for a sum of Rs.750/- as already paid by the complainant. The District Forum directed the

OP to pay a sum of Rs.2,000/- as compensation for mental harassment suffered by the complainant and also directed to pay Rs.500/- as cost of litigation. An appeal against this order was made before the State Commission which was dismissed vide impugned order dated 25.10.2007. It is against this order that the present petition has been made.

3. It has been stated in the grounds of revision petition that the complainant was wilful defaulter in the repayment of loan taken by him from the petitioner. He had not deposited a copy of challan with respect to sum of Rs.750/- deposited by him in the year

1983. The complainant had deposited the said challan in the year 2003, and the amount was appropriately adjusted by the petitioner. It has further been stated that the request made by the petitioner to the District Collector for recovery of loan amount was based on calculation upto25.09.1984, wherein the respondent was liable to pay a sum of Rs.5700/- as principal and Rs.4243/- as interest till that date. The respondent was also liable to pay interest for the period from 3.09.1984 to 2.09.1984 upto the date of full and final payment.

4. It was stated by the counsel for the respondent that the entire outstanding amount had already been paid by the respondent to the petitioner and his original documents should be ordered to be released by the petitioner.

5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. It is clearly admitted from the record that the petitioner failed to take into account the amount deposited by the complainant for the first three instalments (total Rs.750/-) before sending the necessary recovery certificate to the District Collector. It has also been admitted that the principal amount of Rs.5,000/- and the interest of Rs.4244/- has already been recovered from the complainant. The petitioner has also admitted that they have corrected their record and given a credit of Rs.750/- to the complainant. The State Commission have rightly observed that had the amount of Rs.750/- been duly shown in record, the interest amount would have been reduced and the complainant would have been saved from the agony of reference sent to the Collector for the recovery of dues as arrears of land revenue.

6. From the above discussion, it is clear that the District Forum and the State

Commission have passed their order after making proper analysis of the facts on record and awarded a sum of Rs.2500/- to the complainant. The petition is, therefore, dismissed and the order passed by the State Commission and District Forum are upheld. The petitioner is directed to return the original documents of the respondent within a period of 30 days from the date of pronouncement of this year. There shall be no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

(Against order dated 20.09.2012 in First Appeal No. 806/2011 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

V. Nagamani W/O Krishna Rao NS Temple Street Bheemunipatnam Vishakhapatnam Dist. …Petitioner Versus 1. The Manager Sriram City Union Finance Ltd. 123, Angappa Naiken Street, Chennai

2. The Regional Manager, Sriram City Union Finance Ltd. 123, Angappa Naiken Street, Chennai …Respondents

REVISION PETITION NO. 364 OF 2013 (Against order dated 20.09.2012 in First Appeal No. 810/2011 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

Ch. Krishna Rao NS Temple Street Bheemunipatnam Vishakhapatnam Dist. …Petitioner Versus 1. The Manager Sriram City Union Finance Ltd. 123, Angappa Naiken Street, Chennai

2. The Regional Manager, Sriram City Union Finance Ltd. 123, Angappa Naiken Street, Chennai …Respondents

BEFORE:

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

For the Petitioner in both cases : Mrs. Radha, Advocate

For the Respondent in both cases : Mr. Vadrevu Pattabhi Ram, Advocate

Pronounced On 16 th September, 2013 ORDER

PER DR. S.M. KANTIKAR 1. V. Nagamani & Ch. Krishna Rao are husband and wife. They have filed the case against the same Respondents. The facts are similar and, therefore, this order will decide both these cases in a common judgment. I take the facts from RP/363/2013 filed by V. Nagamani. The Complainant Smt. V. Nagamani who has invested Rs.1,00,000/- with the OPs on 06.12.2008. The agent of OP issued an acknowledgement slip and thereafter a debenture certificate was issued by OP and the date of redemption was 22.01.2010 for a period of 12 months. Accordingly, the Complainant approached the OP on 22.01.2010 to get back her amount on which she was informed by OP that only she deposited Rs.10,000/- only ; but due to technical error it was wrongly reflected as Rs.1,00,000/- in the debenture certificate and which can be rectified. Hence, money was not paid to the Complainant. Therefore, the Complainant filed a complaint before the District Consumer Disputes Redressal Forum (in short, ‘District Forum’).

2. The District Forum allowed the Complaint by observing material discrepancies of acknowledgement slip produced by the complainant and it’s copy filed by the OPs. Thus concluded that it was a fraud by OPs in collusion with the staff and their agents.

3. Against the order of the District Forum the OP preferred an Appeal in the State Consumer Disputes Redressal Commission (in short, ‘State Commission’).

4. The State Commission heard both the parties and allowed the appeal by modifying the relief of redemption value as Rs.10,000/- and upholding the order of the District Forum in regard to the reliefs of interest, compensation and costs and The Respondent is liberty to approach competent court for the claim of disputed redemption value.

5. Aggrieved by the order of the State Commission complainant filed this Revision Petition.

6. We heard the counsel of both the parties who have argued vehemently.. There is a delay of 27 days in filling both the Revision Petitions. The reasons stated in application for condonation of delay filed by the Petitioner satisfied us. Therefore, the delay is condoned.

7. On merit the debenture amount is the subject matter of this petition. The Complainant contends that she deposited a sum of Rs.1,00,000/- with the OPs whereas the OPs submitted that she has deposited an amount of Rs.10,000/-. The OP contended that only 10 debentures were issued with serial No. from 66759395 till 66759404 and value of total debentures was Rs.10,000/- and the complainant altered it as to Rs.1,00,000/-. Further OPs contention was the original bonds were tampered therefore, the complainant informed them that the debenture certificate was misplaced and she submitted notarized affidavit stating that the original debenture certificate was misplaced.

8. Such false stories can be built at any stage. It is strange that why OP should have accepted huge amount of Rs.1,00,000/- by cheque instead of cash? Whether OP was blind while accepting cash and issuing the acknowledgment slip by hand written and issuing the printed debenture certificate for Rs.1,00,000/- . Such submissions which do not sustain OPs contention that he received only Rs.10,000/-. Such cash transactions certainly lead to loss of Govt exchequer in the form of Income Tax as well deceiving the complainant also.

9. We have perused the Acknowledgement slip and debenture certificate issued by OPs. The Debenture Certificate which is a computerised print out mentions as “Debenture of Rs.1000/- each”. “The redemption value as Rs.1,00,000/-“ and “Number of debentures 100” would further clarify the facts.

10. Similarly the Acknowledgement Slip No.5343942 dated 6/12/2008 which is hand written by authorised signatory of OPs clearly show the debenture amount as Rs.1,00,000/- and No. of units as 1,000/-.

11. Considering the entirety of this case which confirms that each of the Complainant paid Rs.1,00,000/- towards debentures and not Rs.10,000/-. It is not a material error in writing but it’s a bad intention of OPs and a case of deficiency in service . Therefore, we allow these revision petitions set aside the orders of the State Commission and restore the orders of the District Forum. Parties are directed to bear their own cost.

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

.…..………………………… (Dr. S. M. KANTIKAR) MEMBER Mss/10

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 72 OF 2001

Smt. Nirmal Devi Chopra W/o Late Sh.R.C.Chopra B-28, Lajpat Nagar-III New Delhi

… Complainant

Versus

1. Union of India Through Secretary, Railway Board (Rail Mantralaya) Raisina Road, New Delhi

2. General Manager, Northern Railway Baroda House, New Delhi

3. Divisional Railway Manager Northern Railway, Delhi Division State Entry Road, New Delhi

4. Divisional Railway Manager Northern Railway, Muradabad, U.P.

5. Divisional Railway Manager Northern Railway, Lucknow Hazarat Ganj, Lucknow, U.P.

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

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

For the Opp, Parties : Mr. Apurb Lal & Mr.Niraj Anand, Advocates PRONOUNCED ON_16.09.2013 O R D E R JUSTICE J.M. MALIK

1. Smt. Nirmal Devi Chopra, the complainant has claimed a sum of Rs.35.00 lakhs for the deprivation of the income that R.C.Chopra, her deceased husband, would have earned during his balance life span, Rs.10,00,000/- for widowhood and lack of consortium suffered by the complainant, due to being widowed prematurely and Rs. 5,00,000/- as compensation for the death and bereavement suffered by the four daughters and their families.

2. Sh.R.C.Chopra, died while he was travelling in Lucknow Mail, AC-III Tier, in the night falling between 21st -22nd December, 1998, due to deficiency in the service and for non-compliance of the rules on the part of the administration and employees of the Northern Railways, the Doctors and Staff of SuchetaKriplani Hospital, New Delhi. He was allotted berth No.15 by the Train Conductor/Coach TTE, Lucknow. Due to fog, the train was running late. On 23.12.1998, at about 7.30AM, it transpired that an unknown passenger (Late Sh.R.C.Chopra), was admitted in an unconscious condition in the above said hospital at 11.25 hrs by Government Railway Police, New Delhi Station on 22.12.1998. His son-in-law, identified him. Sh.R.C.Chopra, passed away, on 24.12.1998 at about 10.50 hrs, without regaining consciousness. The cause of his death was shown as (i) unknown poisoning (ii) pontine Haemorage. The patient was brought by the police from the Railway Station. The autopsy report mentions the cause of death due to Nitrazepam and acute adverse effect thereof happening subsequently. Subsequently, it also came to light that R.C.Chopra was looted off all his cash and Demand-drafts. His briefcase, alongwith suit-case, was delivered in an open condition to the family by Government Railway Police, New Delhi. The brief-case contained few documents only.

3. The main grouse of the complainant is that no medical aid was given to the patient, on the way. The train halted at Ghaziabad Station for over one hour, for this purpose and no steps were taken. Memo was given but Railway DMO or any other Doctor did not attend the patient. Improper and inadequate medical aid was given at the Sucheta Kriplani Hospital, New Delhi. It also transpired that one, Mr. H.M.Behal, along-with his wife and son was to travel fromLucknow to Delhi. He held reserved accommodation for three persons. However, due to thick and foggy weather, he abandoned his plan to travel by this train and got refund for his tickets. Their tickets were treated as ‘non-issued’ by the Reservation Office at Lucknow and were re-sold to some unauthorized persons, perhaps those persons who were travelling, robbed off R.C.Chopra of his cash and demand-drafts. Those three unauthorized persons travelled in the train, while working in cahoots with the reservation staff and the TTE. The said miscreants gave tea to the deceased, after making friendship with him. The tea was heavily laced with Nitrazepam, which induced deep sleep to the victim. No medical assistance was given to the patient. After their arrival, in New Delhi, the TTE and the Coach Attendant left the patient in lurch. They did not swing into action. No ambulance or doctors were arranged by the Railway authorities at the New Delhi Railway Station. The empty rake of the train was shunted into the yard and washing lines from where Sh.Chopra was carried in a luggage trolley to the Sucheta Kriplani Hospital by the GRP, New Delhi at 11.30 hrs. The Railway authorities did not make any attempt to identify those three miscreants. Their identity was never established.

4. The deceased was an affluent and influential person and his relatives would have taken him to a superior medical hospital, if they were intimated in time. Immediate medical help would have saved the life of the deceased. It is alleged that the Railway authorities washed off their hands from the medical emergency. The deceased was aged about 65 years and was physically very active and mentally alert, who, could have lived upto age of 85 years. His grand-father lived upto the age of 95 years. The deceased was having high income. His declared income was Rs.6,66,790/-, he was paying income tax of Rs.1,37,069/- for the year 1998- 99. The deceased had declared an income of Rs.6,00,000/- in the year 1998, which was, in addition to his declared income in the regular Income Tax Returns.

DEFENCE :

5. The Opposite Parties have enumerated the following defences in their written statement. The Railway Claims Tribunal Act, through its Sections 13,15 and 28, strikes a snap over the jurisdiction of other Tribunals. The Railway Claims Tribunal has got the executive jurisdiction to try this compensation case. In this case, best efforts were made to call the Railway Doctors at Ghaziabad Railway Station, but could not arrange due to short stoppage. When the train arrived at New Delhi Railway Station, the message was conveyed to the police and the deceased was immediately taken to the hospital. As such, there is no deficiency on the part of the Railways. A message was sent to the New Delhi Railway Station that a passenger was lying in a coach in an unconscious condition. The deceased was admitted in ICU. It is explained that the coach of Lucknow Mail, wherein the deceased was travelling was locked from inside, as soon as the train left from Lucknow Station and remained under the watch and duty of Conductor and Attendant, upto New Delhi. Nounauthorized person entered the compartment. The schedule stoppage of the train at Ghaziabad Railway Station is for two minutes only and during the stoppage also, necessary arrangements were made, for providing medical facility at Ghaziabad Railway Station and New Railway Station. Under the said circumstances, the possibility cannot be ruled out that the deceased might have consumed the Nitrazepam himself. It is stated that from Ghaziabad, the train arrives at New Delhi, after about 40 minutes.

6. Both the parties have led evidence by way of filing their affidavit. The complainant has also filed affidavit of Shri H.M.Behal, which carries infinite value.

7. The principal argument advanced by the counsel for the OPs was that the consumer fora have no jurisdiction to try this case. He submitted that thisCommission can not arrogate to itself, the powers which do not vest in it. He has invited our attention towards Sections 13 & 15 of the Railway Claims Tribunal Act, 1987, which are reproduced hereunder :-

13. Jurisdiction, powers and authority of Claims Tribunal. -

(1) The Claims Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority as were exercisable immediately before that day by any Civil Court or a Claims Commissioner appointed under the provisions of Railway Act,-

(a) relating to the responsibility of the railway administrations as carriers under Chapter VII of the Railways Act in respect of claims for-

(i) compensation for loss, destruction, damages, deterioration or non-delivery of animals or good entrusted to a railway administration for carriage by railway ;

(ii) compensation payable under Sec. 82-A of the Railways Act or the rules made thereunder; and

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

[(1-A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Sec.124-A of the Railways Act, 1989 (24 of 1989), all such jurisdiction, powers and authority as were exercisable immediately before that date by any Civil Court in respect of claims for compensation now payable by the Railway Administration under Sec. 124-A of the said Act or the Rules made thereunder.]

(2) The provision of the [Railways Act, 1989] and the rules made thereunder shall, so far as may be, be applicable for inquiring into or determining any claims by the Claims Tribunal under this Act.

15. Bar of jurisdiction.-On and from the appointed day, no Court or other authority shall have, or be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in [sub-sections (1) and 1-A] of Sec.13.

8. He has also cited one authority reported in Chairman, Thiruvalluvar Transport Corporation Vs. Consumer Protection Council, AIR 1995 SC 1384. The relevant para runs as follows :-

“ 6. …………The complaint in the instant case cannot be said to be in relation to any service hired or availed of by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed of by him but the fatal injury was the direct result of the accident, on account of which, he was thrown out of his seat and dashed against the iron handle of the seat in front of him. We, have, therefore, no manner of doubt that this case squarely fell within the ambit of section 165 of the 1988 Act and the Claims Tribunal constituted thereunder for the area in question had jurisdiction to entertain the same.

9. We have perused the above provisions of law and the above said authority. We are of the considered view that there lies no rub in entertaining this complaint because it does not fall under Section 13 of the Railway Claims Tribunal Act, 1987. This case pertains to the ‘service’ provided by the Railways. Consequently, the arguments advanced by counsel for OP, have to be eschewed out of consideration.

10. Now, we turn to the facts of this case. The learned counsel for the complainant invited our attention towards the affidavit of Mr.Hari Mohan Behal. Mr.H.M. Behal was to travel in the said train. We have seen the reservation chart for AC-III Tier, which has been placed on the record. It clearly goes to show that R.C.Chopra was allotted seat No. 11, and Mr.H.M.Behal, Mrs.Manju Behal and Rohit Behal were allotted seat Nos. 14, 15 and 16. Mr.H.M.Behal, i.e. Hari Mohan Behal has filed an affidavit which goes to show that he, along with his wife Smt.Manju Behal and son, Mr.Rohit Behal, were to travel in this train. They had confirmed tickets. It was further stated on oath that it was height of winter season and the trains were notorious for late running due to thick foggy weather. He further stated that he cancelled his programme at the last moment and asked his driver to return the tickets and obtain the refund. He further stated that his driver returned the tickets and obtained a refund of 50% of the fare paid by him, as it was a last minute cancellation.

11. However, it is surprising to note that in the record of the Railways, it was argued that all of them had travelled. Their seats were not kept vacant, somebody had travelled, on their behalf. The learned counsel for OPs did not pick up a conflict with this contention. They did not state that Mr.H.M.Behal and his close relative had cancelled their seats. They have made a vain attempt to file frivolous defence in support of their case.

12. The learned counsel for the complainant argued that those three passengers must be miscreants who, after putting the complainant in an unconscious stage, robbed off his valuable belongings and went away. He contended that those persons must have given poison to the passenger for which the OP is liable.

13. The first deficiency is apparent on record. Three passengers did not travel, but they were shown to have travelled. From where, those three persons cropped up, dollops of mystery surround this case. No explanation of Conductor, T.T.E. was called. The attempt was made to whitewash the truth.

14. However, the other part of the story that the three miscreants came, gave a cup of tea, laced with poison and robbed off the passenger, is not worthy of credence. The possibility of the passenger committing suicide can not be ruled out. It is not this Commission’s duty to write definitions on invisible blackboards with non- existent chalk. However, the Conductor and the Assistant/Attendant, could not get knowledge about this incident, is the second deficiency, on their part. Their bizarre conduct is unfathomable.

15. The third deficiency on the part of OP is discernible. Memo has been placed on the record, which reads as follows :-

“DMO/GZB, NDLS

Through ASM, Mehrauli

Please attend a patient in AC-3 Tier Coach No.15535 on Berth No.13 as passenger is serious ill by 4229 UP, Dt.22.12.98. Coach position is 13 from Engine. Sd/-

Shiv Singh

Received by

ASM, Inform to NDLS & CHC

At 8.15A.M”.

16. The counsel for the OPs vehemently argued that the Railway administration was conscious about the serious condition of the deceased. The saidMemo was sent from Mehrauli. Best efforts were made to call the Doctors at the Railway Station, Ghaziabad, but could not be arranged due to short stoppage of the train, i.e., for two minutes. Consequently, message was conveyed to the New Delhi Railway Station & GRP. After arrival at New Delhi, the complainant was admitted in the well-known hospital, i.e., Sucheta Kriplani Hospital by GRP staff.

He received the best treatment in ICU.

17. This argument is a strawman, intended to divert our intention from the main issues. It came to light that a patient was lying sick, at about 7.25 AM/8.25AM. He could not get any medical aid till 11.25AM. This is a case of negligence, inaction and passivity on the part of the Railway authorities. Para3.35 of the Indian Railways Commercial Manual, Vol.I, enjoins upon the Railways to secure medical assistance to the sick passengers. Noexplanation is forthcoming, as to why did the train not halt at Ghaziabad? Had the medical aid been given to the patient at Ghaziabad Station itself, it could have saved the precious life of the deceased. It is well said that “A Stitch in Time, Saves Nine”. What are the duties of Train Conductor/ Coach Attendant and the TTE?. All of them were sleeping and did not do the needful. Where was the Doctor? Negligence is rust of soul that corrodes through all her best resolves. The Railway Department itself is trying to defend their own employees. The names of concerned employees, did not find mention in the written statement. As a matter of fact, those were the persons, liable for the death of late Sh.R.C.Chopra. The compensation should have been recovered from them. It is surprising to note that the Railway Department commits so many mistakes as well as the mistakes of defending their wrong officers. These persons are also responsible f or giving the seats of Mr.H.M.Behal and his family members, illegally and unauthorisedly to the three unknown persons, for earning some illegal amount, they have played havoc with the life of a person. No Ambulance was called at the Ghaziabad Railway Station. No Ambulance was called at the New Delhi Railway Station. The patient was carried in a Railway Luggage Trolley, i.e. Thela. The Railway staff was not sensitive and was discharging their duties in a ‘happy-go- lucky’ manner. Had it been a case of their near and dear, the things would have been otherwise. Flushing off the stomach by the Doctors immediately, could have saved the life of the deceased, irrespective of the fact, whether, it is a case of murder or it is a case of suicide. The train should have halted at Ghaziabad, itself. The person should have been removed in the Ambulance and be treated, immediately. The Great Shakespeare says, “In persons, grafted in a serious trust, negligence is a crime”. In the lump, the higher authorities are prone to turn a Nelson’s eye to indiscipline, in the Department, rather than taking the bull, by horns. The case also stands proved under Section 123(c) andSection 124 A of the Railway Act.

18. We, therefore, allow the complaint, but the compensation demanded b y the complainant is on the excessive side. Keeping in view the facts and circumstances, we grant total compensation in the sum of Rs.10,00,000/- amount be paid, within 90 days, otherwise, it will carry interest @ 9% p.a., till its realization.

19. We, further, direct the Divisional Railway Manager, Northern Railway, Muradabad, U.P, to make an enquiry against the Doctor at Ghaziabad, Conductor, T.T.E. and Assistant/Attendant, within a period of six months and file the report, with the Registrar of this Commission on or before 1st April, 2014. Disobedience shall tantamount to contempt of court.

The original petition is disposed of, in the above terms. .…………………………J.

(J. M. MALIK)

PRESIDING MEMBER

……………………………..

(DR.S.M. KANTIKAR)

MEMBER dd/24 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3037 OF 2013 (From order dated 01.07.2013 in First Appeal No.264 of 2013 of the State Consumer Disputes Redressal Commission, U.T., Chandigarh)

K.K. Bheniwal, Ex-Deputy Advocate General, Punjab R/o 1234, Sector- 21-B, Chandigarh … Petitioner Versus

1. Sterling Holiday Resorts (India) Limited, 3rd , Cross Street, City Tower, Kasturba Nagar, Adyar, Chennai-600020

2. Managing Director, Sterling Holiday Resorts (I) Ltd. 3rd , Cross Street, City Tower, Kasturba Nagar, Adyar, Chennai-600020

3. Manager, Sterling Holiday Resorts (I) Ltd. 3rd , Cross Street, City Tower, Kasturba Nagar, Adyar, Chennai-600020 … Respondents

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

For the Petitioner : Ms. Nishtha Chawla, Advocate

1. That the present Petition is filed under Section 21 (B) of the Consumer Protection Act, 1986 against the Impugned Order of the State Consumer Disputes Redressal Commission, (herein after State Commission) Punjab, Chandigarh. The Hon’ble State Commission vide its order dated 01.07.2013 dismissed the First Appeal of the Petitioner filed against the order of the District Consumer Disputes Redressal Forum, (hereinafter, District Forum), Punjab, Chandigarh.

2. Facts in brief:

The Complainant got a membership of the Sterling Holiday Resorts (India) Limited/ OPs by paying full amount of Rs.66,650/- towards the purchase of 21 SFC Units on 10.04.2003. The membership period of the Complainant was from 2003 to 2035. Complainant in year 2004 and 2005 availed two holidays at the company’s resorts and also paid annual amenity charges of Rs.3570/-. As such, Complainant visited the OPs at Chandigarh office to get reserved the resort for the year 2006, but it was locked. It is averred that the company is in crisis hence closed; but later on 01.12.2009 complainant received OP’s letter with assurances that in the next 1 or 2 years there will be far reaching improvements in the services provided by the company. Therefore, complainant could not get the resort facility from 2006-2012 but he was

kept on false promises and asked for annual amenity charges (AAC) for the year 2012. The Complainant paid Rs.66,650/- to the OPs towards the resort facility, but they neither provided the resorts facility nor returned the amount. Hence, complainant filed a complaint alleging deficiency in service and unfair trade practice on the part of OPs for refund of the amount with interest since 2006 till realization.

3. The District forum dismissed the complaint; subsequently the complainant preferred an appeal before State Commission.

4. The State Commission heard the matter and after considering evidence on record, dismissed the appeal.

5. Hence, the present revision petition before this commission.

6. On admission hearing we have heard the counsel for petitioner. We have perused the evidence on record, the rules of membership and findings of both the fora are mentioned as below.

7. In our observations it is the OPs never closed their business nor left their members helpless. OPs have sent intimation to all members about shifting of office from Manimajra to Chandigarh in the year 2012. The OPs were providing holidays to all members, except the defaulters during the years 2006 to 2012 who had not paid their Management/AAC Charges. It was further stated that the Complainant was sent reminders to pay the AAC Charges/ Management Charges for the period 2005 to 2012, but he failed to remit the outstanding dues of Rs.35,951/- till 31.12.2011. It was further stated that neither any request for refund was ever received from the Complainant, nor the same was permissible as per Rules 6.8.1 of the membership Rules which read as below;

“ In case of cancellation of his/her/its units by the Member/Associate Member beyond 14 days, but within 21 days of commencement of holiday entitlement as per the SFCHU Certificate an amount equivalent to 20% of the Unit/s price paid to the company and cost of holidays including bonus holiday and compensation and service charge incurred by the company on credit card sale and membership fee paid to RCI and other benefits, if any, avail by the member/associate member, calculated on the basis of prevailing tariff applicable free individual travellers, shall be deducted. In case of cancellation after the period mentioned above, the entire amount paid by the member/associate member will be appropriated by the company and no refund of any kind whatsoever will be made to the members/associate members.”

8. . It was further stated that the OPs, were always ready and willing to provide facilities, as per the membership Rules, but the Complainant neither made payment towards the AAC charges nor requested for any booking.

9. As per the terms and conditions of membership complainant was required to deposit annual amenity charges. The evidence on record reveals that the petitioner/Complainant did not deposit the annual amenity charges, from the year 2005 onwards. As per complainant’s evidence, he had received letters dated 01.12.2009 and 31.12.2011 from OP with demand of Rs.35,951/-. Thereafter, complainant contacted the OPs by serving legal notice on 30/8/2012 in which he did not mention any reference of OPs letter dated 1/12/2009., Therefore, it is clear that there were several communications between both the parties; hence the company was in existence and carrying on its activities. It was a wrong presumption of the Complainant that the company had closed the business as it suffered losses and went in the crisis.

10. The letter dated 31.12.2011 sent by OPs with the subject matter, ‘letter of intimation on AAC payable for the year 2012’ which reads as follows:

Dear Sir/Madam,

We hereby inform you that AAC for the year 2012 is fixed at Rs.5067 (Rupees Five Thousand Six Hundred and Seven only fo r Timeshare/units/postal receipts. The previous amounts intimated and not paid toward AAC is Rs.30344/- .

11. Hence, we are of considered view that the Complainant failed to comply with the conditions of the payment and did not continue the membership. There is no apparent error, illegality or infirmity in the orders of both the Fora below warranting our interference. Therefore, the Revision Petition is accordingly dismissed. No order as to costs.

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

……………….…………… (Dr. S.M. KANTIKAR) MEMBER Mss-11

(Against the order dated 30.08.2007 in OP No. 160/1998 of the Tamilnadu State

Consumer Disputes Redressal Commission)

1. C.K. Pandian No.13, Manali Salai Ezhil Nagar, B-Block Kodungaiyur Chennai- 600118

2. P. Vinayakaselvi No.1, Anna Road, K.K. Colony Kodungaiyur Chennai-600118

3. C.K.P. Parmasundari

4. C.K.P. Aiyan Ram

5. C.K.P. Srinivasalingam Appellants 3 to 5 are residing at No.13, Manali Salai Ezhil Nagar, B-Block Kodungaiyur Chennai-600118

… Appellants

Versus

1. S.R. Trust Rep. by Founder Chairman Dr. N. Sethuraman Meenakshi Mission Hospital and Research Centre (Run by S.R. Trust) Lake Area, Melur Road Madurai- 625107 Tamil Nadu

2. Meenakshi Mission Hospital and Research Centre (Run by S.R. Trust) Lake Area, Melur Road Madurai-625107 Tamil Nadu

3. Dr. Ramesh Meenakshi Mission Hospital and Research Centre (Run by S.R. Trust) Lake Area, Melur Road Madurai-625107 Tamil Nadu

4. Dr. Pandian Meenakshi Mission Hospital and Research Centre (Run by S.R. Trust) Lake Area, Melur Road Madurai-625107 Tamil Nadu

5. M/s New India Assurance Co. Ltd. No. 242-B, Kamarajar Salai Madurai

Tamil Nadu

… Respondents

BEFORE:

For Appellants : Mr. V. Ramasubramanian, Advocate with

Mr. A. Lakshmi Narayanan, Advocate and

Mr. V. Balachandran, Advocate

For Respondents : Mr. K. Perumal, Advocate for R-1 to 4 Mr. Nitesh, Advocate for R-5

Pronounced : 17 th September, 2013

PER VINEETA RAI

1. This appeal has been filed by C.K. Pandian, Appellant herein and Complainant

No.1 before the Tamil Nadu State Consumer Disputes Redressal Commission

(hereinafter referred to as the State Commission) and others being aggrieved by the order of that Commission which had dismissed their complaint of medical negligence, which resulted in the death of Appellant No.1’s wife Parvathi, against Meenakshi

Mission Hospital and Research Centre (hereinafter referred to as the Respondent

Hospital), its founder Chairman and concerned Doctors.

2. In his complaint before the State Commission, it was stated by Appellant No.1 that his wife Parvathi (hereinafter referred to as the Patient) was a heart patient with diabetes. Following an advertisement issued by the Respondent Hospital regarding their “Meenakshi Health Care Scheme”, Patient joined the scheme on 05.06.1996 and the Duty Doctors of the Respondent Hospital after examining her informed Appellant

No.1 that she had a minor problem in her ECG and she should seek admission in the

Respondent Hospital to undergo various tests. The next day, Patient was informed that apart from the earlier medical problems she was also detected with stones in the gallbladder for which immediate surgery was advised since a delay could endanger her life. Appellant No.1 and the Patient specifically enquired from the concerned Doctors whether in view of her heart ailments and diabetes Patient could withstand the surgery, to which they were informed that it will be done under laparoscopic method which only required a small hole and the stones could be removed within 10 minutes and she would be discharged the next day. Appellant No.1, therefore, reluctantly gave consent for this procedure. During the course of surgery on 12.06.1996 before the Patient could even complete the glucose drip administered to her, she started complaining of chest pain, following which the nurse on duty removed the glucose drip and the surgery was postponed. Appellant No.1 expressed concern about this incident to Respondent

Doctors i.e. OPs 3 and 4, who, however, reiterated that it was necessary to remove the gallbladder stones by laparoscopic procedure and the procedure was refixed for

14.06.1996. Following the surgery the Patient was taken to Intensive Care Unit and was in a coma. When Appellant No.1 met the Patient, he was shocked to see a big plaster about 6 to 7 inches on the right side near the hip of the Patient. Appellant No.1 thereafter immediately approached OP-3 seeking clarification as to why the procedure was not conducted through laparoscopic method since consent for the same had been given. It was only on 19.06.1996 that Respondents informed him that the laparoscopic procedure could not be done because gas was required to be infused which the

Patient’s heart would not withstand and, therefore, an open surgery was conducted. Patient’s condition continued to deteriorate. On 20.06.1996 Patient was taken in an ambulance for a CT scan (head) to Vita Diagnostics Limited, MR & CR

Imaging Centre and though the result of the scan was made available to the Doctors at the Respondent Hospital, they failed to furnish the same to Appellant No.1 and instead shifted the Patient to a separate ICU Room on additional payment. Patient remained there from 21.06.1996 to 26.06.1996 without any improvement in her comatose position. On 26.06.1996 Appellant No.1 was informed by the Founder and Chairman of

OP-1/Trust that Patient’s heart and lung were on artificial support and advised that she be taken to home. After obtaining signatures of Appellant No.1, Patient was put in the ambulance with a ward boy holding a rubber pump in his hand and pumping a tube inserted in the nose of the Patient. During the course of the journey, Patient breathed her last. Appellant No.1 thereafter approached the Respondents to obtain the discharge summary and other medical papers which were not given to him on the grounds that the Patient was discharged against medical advice and in order to get the discharge summary he should pay Rs.6312/-. However, till date the discharge summary was not given. Appellant No.1 contended that the Patient passed away because an open surgery for which no consent was taken and which was contraindicated in patients with diabetes and heart ailments was conducted on her instead of a surgery by laparoscopic procedure to remove the gallbladder stones. Alleging medical negligence, Appellants filed a complaint before the State Commission and requested that Respondents be directed to pay them Rs.10,00,000/- towards the loss of life of the Patient and for medical expenses, mental agony etc.

3. In the written rejoinder filed by Dr. Ramesh Ardhanari (Respondent No.3) on his behalf and that of Respondents No.1, 2 and 4 the allegations of medical negligence were denied. While admitting that the Patient had been admitted to the Respondent

Hospital, it was denied that the operation was to be performed only through laparoscopic method and Appellant No.1 as well as the Patient had been clearly informed that it would be performed by open cholecystectomy method because a laparoscopic surgery could lead to gas infusion which can be unsafe for patients with heart ailments. The operation was conducted on 14.06.1996 after all the necessary tests confirmed that the sugar level and other indicators were normal. The operation through open cholecystectomy was successfully concluded and the Patient was shifted in a satisfactory condition to the post-operative general ward and she was given liquid food on 17.06.1996 and solids on 18.06.1996. Her condition was normal till 19.06.1996 when Patient suddenly became unconscious and started frothing from the mouth. She was immediately shifted to IMCU and preliminary tests indicated that there were some problems with the brain for which a CT scan was taken which confirmed that there was a brain stroke. Since the condition of the Patient did not improve, she was shifted to

IRCU on 23.06.1996. Appellants were not prepared to spend money on the Patient and kept demanding for her discharge. Despite having explained her serious condition,

Appellants continued to be adamant and, therefore, Patient was discharged against medical advice and she passed away during transit. Appellant’s contention that

Respondents had informed him that it was necessary to urgently remove the gallbladder stones is not correct. Patient was never forced to undergo the operation which was conducted after full consent of the Patient and Appellant No.1. It was also denied that

Appellant No.1 was not given the discharge summary. In fact, he was requested to come personally to the Respondent Hospital and collect the same after clearing the necessary bills. Respondents contended that they work in a super-speciality hospital having all the facilities with fully qualified doctors and the surgery was conducted taking into account all important facts including the co-morbidities from which the Patient suffered. The brain stroke which caused the death of the Patient was not related to the surgery in any way.

4. The State Commission after hearing the parties and considering the evidence produced before it dismissed the complaint by observing as follows:- “10. … It was for the experts namely the opposite parties in the instant case to decide on which method would suit the patient best. Merely because it had been mentioned as lop Cholecystectomy, it would not mean that the opposite parties had agreed to do only laparoscopy. The consent letter given by the first complainant is also to the effect that permission was granted for the performance of any diagnostic examination, biopsy, transfusion or operation and for the administration of any anaesthetics as may be deemed advisable in the course of the hospitalization. PW1, the first complainant, has also admitted in his evidence in cross-examination that he had gone through the consent letter, read it and signed it. It is also to be noted further that the patient had blood pressure, ischemic heart disease and diabetes mellitus. The first complainant had also taken away the patient against medical advice. There was no post mortem conducted. He did not give any complaint to the police. Even in the correspondence, he had not alleged that there was deficiency in service on the part of the doctors and that only because of that, the patient died.

11. When the complainants have not substantiated the case of medical negligence on the part of the opposite parties, we are unable to give any relief to the complainants. OP3 examined as RW1 has given clear and cogent evidence as to the circumstances under which the developments took place. They had satisfied themselves that the patient was fit to undergo operation and only thereafter suggested surgery. They had not decided on laparoscopic surgery but only on open surgery. It is also not correct to say that they have convinced the patient and her spouse only for laparoscopic surgery. In the consent letter, the mode of operation was not mentioned. Since the patient had a history of heart problem, they thought that open surgery should be the better option. The patient got discharged against medical advice and bills were also pending and that was the reason why discharge summary was not furnished to the patient or her spouse immediately. Ex.B4 series would show that after surgery, the patient took solids. Since the physician had given the green signal for the surgery and other tests also had been done, they went ahead with the surgery. In view of the discussion above, we hold that the complainants have not established any deficiency in service on the part of the opposite parties.”

Hence, the present First Appeal.

5. Learned Counsels for both parties made detailed oral submissions.

6. Counsel for the Appellants recounted the submissions made before the State

Commission and earlier in their written statement and reiterated that when the Patient had gone to the Respondent Hospital, it was for a general medical check-up and there were no complaints in respect of her gallbladder. Even when the gallbladder stones were detected following ultrasound, consent to remove the same was given primarily because the Respondent Doctors stated that delay in surgery could cause severe complications and further the gallbladder stones could be removed through a laparoscopic procedure, which is only a key hole surgery with minimum risk and Patient would be discharged next day. However, behind the back of Appellant No.1 and without the consent of either Patient or Appellant No.1, an open surgery was conducted which is clearly contraindicated as per medical literature for patients suffering from diabetes and heart ailments and this was reiterated before the State Commission by a medical expert Dr. M. Saravanabhavnantham, who is Assistant Professor (Surgery) in

Government Stanley Hospital, Chennai. Counsel for the Appellants also brought to our notice medical literature on the subject and quoted from “Clinical Course and

Complication” (MORTARN), which had emphasized as follows :- “ Patients with diabetes mellitus have an increased operative risk with elective and emergency cholecystectomy, largely because of concomitant cardiovascular disease. Prophylactic cholecystectomy in diabetic persons is not recommended.”

Further, as opined by the above expert Doctor since gallstones are fairly common but everyone does not necessarily suffer because of them, it is not always necessary to operate unless otherwise indicated since the benefit of prophylactic cholecystectomy may sometimes outweigh the risk of conducting the surgery. In the case of the Patient, as per the ultrasound report, there was only a single stone which may not have warranted an emergent open surgery. Further, the opinion of an expert

Cardiologist was not taken prior to the surgery on the Patient even though her LV

Ejection Fraction was 56% while the normal is 70% and, thus, the operation was conducted without adequate pre-operative evaluation. The evidence of the medical expert was not given due importance and credence by the State Commission primarily on the grounds that the medical expert Dr. Saravanabhavnantham had not physically examined the Patient and his evidence was based on the clinical and surgical records and secondly in his cross-examination he had admitted that the normal LV Ejection

Fraction is 50% and not 70%, which, therefore, contradicted his deposition that evaluation of a Cardiologist was necessary which was obviously not required in the instant case. However, according to the Counsel for the Appellants, the State Commission should have taken note of his expert opinion backed by medical literature that open surgery in patients with diabetes and other co-morbidities is clearly contraindicated.

Counsel for the Appellants also stated that the State Commission erred in concluding that the Patient was taken out of the operation theatre in a satisfactory condition. This was not factually correct and she was critical right from the time of the surgery till she expired and it was because of this that Appellant No.1 had also complained to the Chairman of the Respondent Hospital about the medical treatment of the Patient.

Finally, it was reiterated that consent for open cholecystectomy was never taken and the medical records prior to the surgery clearly indicated that the procedure was to be conducted through laparoscopic method. All these facts were indicative of medical negligence and deficiency in service since the Respondents had initiated open surgery without even considering the laparoscopic method and without taking into consideration the serious medical problems in the Patient because of which the surgery was contraindicated. All this contributed to the Patient’s demise.

7. Counsel for Respondents at the outset denied that there was any coercion or misrepresentation in respect of Respondents conducting the gallbladder surgery. In the interest of Patient’s health, the surgery to remove the gallbladder stones was strongly advised. The surgery was conducted after conducting the pre-operative tests and it was clear from the consent letter that there was no assurance of the surgery being done through a laparoscopic method which was ruled out because the Patient having suffered a heart attack may not have been able to sustain the gas pressure if the laparoscopic method was adopted. Respondents wanted to avoid conversion of the surgery midway and, therefore, decided on the open surgery. Counsel for the

Respondents further stated that the State Commission had rightly not given credence to the evidence of Dr. Saravanabhavnantham inter alia because of the contradictory statements made by him in respect of the normal level for LV Ejection Fraction. His statement as an expert thus lacked credibility. Further, the textbooks referred to by the expert Doctor were of recent publication and not available in the year 1996. In fact, the Respondent Doctors followed the standard practice acceptable in the medical field and in this connection Counsel for the Respondents brought to our notice the medical literature cited before the State Commission and contained in the Textbook of

Essentials of Surgical Practice, IV Edition wherein it is clearly mentioned that if gallstones are associated with Cholecystectomy even if there are no overt symptoms, surgery must be performed. There is no evidence that the Patient was in a critical condition after the surgery. As per the medical records, she was in a satisfactory condition after the same. Patient’s death due to brain stroke was not the result of any negligence in performing the surgery and she was given the best possible treatment. It was also contended that the Patient was taken away against medical advice without the

Appellants even settling the medical bills that were due.

8. We have considered the submissions made by Counsels for both parties and have also carefully gone through the evidence on record. Patient’s admission in the

Respondent Hospital for a medical check-up since she had a previous case history of diabetes and had earlier suffered a heart attack is not in dispute. Respondents have contended that they had never decided to remove the gallbladder stones through laparoscopic procedure and, therefore, it was done through an open surgery in the interest of Patient’s health. We are unable to accept this contention of the

Respondents. While it is a fact that in the consent form no specific type of surgery has been mentioned, it is clearly stated in the notings made by the Doctors on 14.06.1996 i.e. on the day of the surgery that the Patient is “posted for lap cholecystectomy”. Therefore, the Respondents’ contention that this was never an option is not borne out by their own medical records. In the medical literature which has been filed on the subject it has been clearly indicated that open cholecystectomy is contraindicated in patients with a history of diabetes and other specific co- morbidities. The literature pertains to the year 1995 and was thus available prior to the year when the surgery was conducted and was not subsequent to that as contended by the Counsel for the Respondents. In view of the above facts, particularly the notings made by the Respondent Doctors that the surgery was proposed to be conducted by laparoscopic procedure, we are of the view that Respondents have not been able to satisfactorily explain why this earlier decision was recalled and an open cholecystectomy was done. It has, of course, been mentioned by the Respondents that a surgery by laparoscopic procedure could have led to problems in the Patient because of the required gas infusion in such procedures which the Patient being a heart-patient may not have been able to withstand it. On the other hand, it is also documented that there are several major risks in conducting a surgery through open cholecystectomy method in patients with history of diabetes and heart diseases. Respondents have not been able to displace these documents by any other medical literature giving a contrary view. All surgeries carry some inherent risks and in the instant case it appears from the medical literature filed in evidence that the risks in conducting an open cholecystectomy in patients with heart and diabetes are higher than those listed for laparoscopic procedure. As stated earlier, Respondents being well qualified professional doctors have not adequately explained the reasons why they opted for an open surgery which was prima facie clearly contraindicated in such a Patient, particularly since as per their own medical records it was not their initial intent to conduct an open cholecystectomy procedure.

9. 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. In the instant case, there is no doubt that the Respondent Doctors are well qualified and there may not have been any technical mistake in conducting the open surgery. However, since as per their own records Respondents had decided on a laparoscopic procedure and without being able to satisfactorily explain why they thereafter decided to conduct the surgery through open cholecystectomy which is medically contraindicated in such patients, we are of the view that the reasonable degree of care and caution as required was not taken in the instant case. We are also not convinced that the Appellants and the Patient were duly informed that the procedure would be done only through an open surgery and not through laparoscopic method. No doubt, this was not specifically stated in the consent form but clearly since the surgery was posted for laparoscopic procedure as per the notings of the Respondent Doctors on the day of the surgery i.e. 14.06.1996, the

Appellants’ contention that they had been assured by the Respondents that the procedure would be done only through a laparoscopic method appears to be plausible.

The State Commission while noting these facts has discarded the same by observing that merely because lap cholecystectomy has been mentioned, it does not mean that the Respondent Doctors had agreed to do only Laparoscopic procedure. We also note that the State Commission has not given any credence to the statement of Dr.

Saravanabhavnantham, who had given his expert medical opinion backed by medical literature that open cholecystectomy in patients with diabetes and other co-morbidities is contraindicated primarily on the grounds that he had not physically examined the

Patient and had made a contradictory statement in respect of the normal LV Ejection

Fraction level. Since this expert opinion was based after a study of the medical records of the Patient and after citing relevant medical literature, the opinion of Dr.

Saravanabhavnantham did have evidentiary value, which was not fully appreciated by the State Commission.

10. In view of the above facts, we have no option but to set aside the order of the

State Commission and partly allow the appeal/complaint. We order accordingly. Taking into view all circumstances of the case, including the medical expenses incurred, we are of the view that a lump-sum compensation of Rs.3,00,000/- would be fair and reasonable. Respondents are directed to pay this amount to the Appellants within a period of two months from the date of receipt of copy of this order. No costs.

(VINEETA RAI)

PRESIDING MEMBER

(VINAY KUMAR)

MEMBER

Mukesh NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 07.03.2008 in First Appeal No. 615/2007 of Punjab State Consumer Disputes Redressal Commission)

1. Kulbhushan Churra Senior Commercial Manager, Usha International Limited Lali Nivas, G.T. Road, Jalandhar City – 144001

2. Officer in Charge cum General Manager Usha International Limited, Registered Office : Surya Kiran, 19, Kasturba Marg, New Delhi – 110001 Through its Attorney Mr. Rajiv Khanna

... Petitioners

Versus

Simar Kaur w/o Shri Ram Kishan r/o VPO Bhogpur, Tehsil and District Jalandhar Punjab

… Respondent(s)

BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. Pawanjit S. Bindra, Advocate

For the Respondent In person alongwith

Mr. Sukhvinder Kumar, A.R. & son of respondent

Act, 1986 against the impugned order dated 07.03.2008, passed by the Punjab State

615/2007, vide which, while dismissing the appeal, the order dated 14.03.2007 passed by the District Consumer Disputes Redressal Forum, Jalandhar, allowing the consumer complaint number 135/2005, filed by the present respondent Simar Kaur was upheld.

2. Brief facts of the case are that as stated by the complainant, she wanted to run the business of running a sewing school in the name of M/s. Ram Simar Institute of Fashion

Technology, Janta Colony, Bhogpur, in affiliation with the present petitioners and Usha Sewing School network. The complainant deposited a bank draft No. 011018

1442960001 dated 16.04.2003 of amount Rs.51,032/- in favour of the petitioner/OP, which was encashed by the petitioners. The complainant has stated that she constructed four rooms on a plot of 1 kanal 10marlas area and arranged for furniture, fixtures, etc. for setting up the said school, but affiliation was not granted by the petitioner, due to which she suffered huge loss amounting to Rs.10 lakh. The complainant sought a direction to the petitioner/OP to pay an amount of Rs.5 lakh as compensation for deficiency in service, negligence and unfair trade practice on his part due to non-affiliation/approval of sewing school/institution. The District Forum vide their order dated 14.03.2007, allowed the said consumer complaint and directed the petitioners to return the amount of Rs.51,032/- alongwith interest @ 9% p.a. from the date of deposit till payment. The District Forum also allowed a compensation of

Rs.5,000/- for unfair trade practice and Rs.2,000/- as litigation expenses. An appeal preferred against this order was decided by the State Commission vide impugned order dated 07.03.2008. The State Commission upheld the order of the District Forum, stating that the amount of Rs.51,032/- had admittedly passed on from Simar Kaur to the petitioner.

3. At the time of hearing before us, the learned counsel for the petitioner contended that as stated in their written reply in the consumer complaint, the said draft was given by the complainant to Mr. Prem Sabharwal of M/s. P.S. Enterprises, Guru Nanak Nagar,

Jalandhar. Mr.Prem Sabharwal handed over the same draft to the petitioner against his own outstanding dues with the petitioners. The petitioners had nothing to do with the complainant and even otherwise, the complainant was not a consumer, as she had given the money for commercial activity. They also stated that the complainant never gave any application to them for setting up any school etc. Learned counsel stated that the said Prem Sabharwal of M/s. P.S. Enterprises had not been made a party in this case. The State Commission have observed in their order that it was for the petitioners to verify as to whether the bank draft had been got prepared by Mr. Prem Sabharwal of

M/s. P.S. Enterprises or by Simar Kaur respondent. Learned counsel argued that once draft was handed over to them by Prem Sabharwal, it was nowhere their duty to find out, as to by whom the said draft was made. Learned counsel further invited our attention to the letters written by the complainant to the petitioners and complaint lodged by them to the Station House Officer (S.H.O.), Police Station Bhogpur, in which the complainant has clearly stated that the said draft of Rs.51,032/- was handed over by them to Mr. A. Sabharwal, Manager (Sales), P.S. Enterprises, Guru Nanak Nagar,

Jalandhar. The complainant had paid another sum of Rs.59,543/- in cash to Mr. A. Sabharwal for the purchase of machines. A letter was sent by the petitioner also to the SHO, Police Station, Bhogpur dated 15.09.2003, in which it has been stated that M/s. P.S. Enterprises was their dealer for the promotion of sale of Usha Sewing

Machines. In March 2002, a cheque of Rs.2,06,208/- was issued by Prem Sabharwal of

P.S. Enterprises in favour of the petitioner, but it was returned unpaid and accordingly, the petitioners had filed complaint against them under section 138 of the Negotiable

Instruments Act, and also fileed Civil Case against them for the recovery of their money. However, on 22.04.2003, Mr. Prem Sabharwal and his son Arthen Sabharwal visited their office and deposited the said demand draft of

Rs.51,032/-as part payment. The petitioner was neither aware, nor it was his concern that the said draft was made by Simar Kaur. Learned counsel stated that the petitioner had not done any unfair trade practice with the complainant and hence, he was not liable to pay any compensation to her.

4. In reply, the authorised representative of the complainant stated that they wanted to do business with the petitioner and hence, they made the demand draft in question in their favour. However, the petitioner failed to supply them the necessary machines and had not returned their money, which constitutes deficiency in service and unfair trade practice. They had filed a complaint with the Police also, stating these facts.

5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. It is established from the facts of the case that Prem Sabharwal and his son Arthen Sabharwal of M/s. P.S. Enterprises are in business relationship with the petitioners for the supply of sewing machines etc. It is also an admitted fact on record that the complainant Simar Kaurhad handed over the draft to Arthen Sabharwal, as stated by her in report to the local Police. The said draft was handed over by ArthenSabharwal to the petitioners, against their outstanding dues with the petitioner. It is made out from these facts that Prem Sabharwal, ArthenSabharwal and P.S. Enterprises are necessary parties in this case, but the complainants have not impleaded them as parties, despite admitting clearly that the draft, in question, was handed over to Arthen Sabharwal. It is true that the money belongs to the complainant, which got passed on to the petitioners through

P.S. Enterprises, but it is nowhere established as to how the petitioners indulged in any unfair trade practice or shown any deficiency in service, vis-à-vis, the complainant. It is also stated in clear terms that the said money was handed over for starting a commercial activity and hence, the complainant does not fall within the definition of

‘consumer’ in the strict sense of term.

6. Based on the discussion above, it is held that the petitioner is not liable to pay any compensation or any relief to the complainant, as they have not indulged in any unfair trade practice against the complainant. It is made out from the facts on record that this is purely an issue for invoking jurisdiction of the civil court, if the complainant wants her money back from the petitioner or from M/s. P.S. Enterprises. The revision petition is, therefore, allowed and the orders passed by the State Commission and District Forum are set aside. The consumer complaint is ordered to be dismissed. There shall be no order as to costs.

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

(From the order dated 11.01.2008 in First Appeal No. 1227/2007 of Karnataka State Consumer Disputes Redressal Commission)

M/s Mandovi Motors Pvt. Ltd Arvind Building Balmatta Building Mangalore-575001 Karnataka Rep. by its Director, Shri A. Sanjay Rao

... Petitioner

Versus

1. Pravenchandra Shetty s/o Y.K. Sanjeeva Shetty 311, Kunil Complex, Bendoorwell, Mangalore – 575001 Karnataka

2. Maruti Udyog Limited, Rep. by Authorised Attorney 11th Floor, Jeevan Prakash 25, Kasturba Gandhi Marg New Delhi – 110001

… Respondent(s)

(From the order dated 11.01.2008 in First Appeal No. 1220/2007 of Karnataka State Consumer Disputes Redressal Commission)

Maruti Suzuki India Limited, 11th Floor, Jeevan Prakash 25, Kasturba Gandhi Marg New Delhi – 110001

... Petitioner

Versus

1. Pravenchandra Shetty s/o Y.K. Sanjeeva Shetty 311, Kunil Complex, Bendoorwell, Mangalore – 575001 Karnataka

2. M/s Mandovi Motors Pvt. Ltd Arvind Building Balmatta Building Mangalore- 575001

… Respondent(s)

BEFORE

PRESIDING MEMBER

RP No. 1445 of 2008

For the Petitioner(s) Mr. D.P. Chaturvedi,

Advocate For the Respondent-1 Mr. Pravenchandra Shetty, In

person

For the Respondent-2 Mr. T.K. Ganju, Sr. Advocate

Mr. Rakesh Agarwal, Advocate

Mr. Ashish Chauhan, Advocate

RP No. 1961 of 2008

For the Petitioner(s) Mr. T.K. Ganju, Sr. Advocate

Mr. Rakesh Agarwal, Advocate

Mr. Ashish Chauhan, Advocate

Advocate For the Respondent-1 Mr. Pravenchandra Shetty, In

person

For the Respondent-2 Mr. D.P. Chaturvedi

These two revision petitions, RP No. 1445/2008 and RP No. 1961/2008, have been filed under section 21(b) of the Consumer Protection Act, 1986 by the petitioners against the impugned order dated 11.01.2008, passed by the Karnataka State

1227/2007, “Mandovi Motors Pvt. Ltd. versus Pravenchandra Shetty & Anr.” and FA No.

1200/2007, “MarutiUdyog Ltd. versus Pravenchandra Shetty & Anr.” respectively. Both these appeals were directed against the order dated 03.05.2007 passed by District

Consumer Disputes Redressal Forum, Mangalore, vide which the petitioners/OPs were directed to replace the defective car sold to complainant/respondent no.1 and also to pay compensation of Rs.17,000/-.

2. For the convenience, parties are referred as they were before the District Forum, i.e., Pravenchandra Shetty, complainant, M/s Mandovi MotorsPvt. Ltd., OP No. 1 and Maruti Udyog Limited, OP No. 2. Brief facts of the case are that OP No.1 is the authorised dealer of OP No.2, Maruti UdyogLtd., having right of sale and service of Maruti vehicles to Dakshin Kannada District. The OP No.2 is the manufacturer of Maruti Cars. The complainant had purchased a Maruti Wagon R VXI Euro – 2 car from OP No.1 for Rs.3,73,364.62ps. on 29.03.2003, which was duly registered by the

Regional Transport Officer, Mangalore. The complainant also availed a loan of Rs.3 lakh from ICICI Bank and the said car was covered by warranty for a period of 24 months from the date of delivery or 40,000/- km whichever occurs first. It has been alleged in the complaint that since the date of purchase, abnormal vibration was being felt during driving of the vehicle between the speed of 40 Km/hour to 80 km/hour. The complainant took the vehicle to OP No. 1 a number of times and they tried to remove the defects every time and replaced certain parts as well but to no avail.

3. The complainant has cited a number of specific dates and specific instances in the complaint, concerning the defect in the vehicle. The District Forum, after taking into account the evidence of the parties, allowed the complaint and directed the opposite parties to replace the car and also pay Rs.17,000/- as compensation and litigation cost. The State Commission also upheld this order by dismissing the two appeals filed by petitioners/OPs. It is against this order that the present petitions have been filed.

4. The learned counsel for OP No. 1 argued that after purchase of the vehicle on

29.03.2003, the complainant made a complaint about the alleged defect on

18.04.2003. The petitioner removed the defect promptly after modifying brake callipers with brass brushes. On 23.08.2003, when the vehicle had run more than 5000 kms, the complainant came for service which was promptly done. Learned counsel stated that on subsequent dates also, whenever the complainant turned up with any complaint, that was promptly attended to. He has drawn our attention to a note recorded on

3.3.2005 by some Technical Officer of the company, where it is stated that trial of the vehicle was taken and the vibration was found in line with other Wagon R vehicles. There was no deficiency in service in so far as the petitioner dealer was concerned.

5. In his detailed arguments, learned counsel for the OP No. 2, Maruti Udyog Ltd., stated that the only complaint related to abnormal vibration of the vehicle, which could not be classified as manufacturing defect in the vehicle. The learned counsel vehemently argued that the vehicle in question had already run about

1,24,000 Kms since its purchase, and hence, it was wrong to presume that there was any manufacturing defect in the vehicle. The orders passed by the courts below could not be sustained on this ground alone. The defect of vibration was recorded for the first time on 14.09.2004 and it was attended to by dealer. The defects pointed out on

14.09.2004 had been mentioned in the job-card, (copy of which is on record). M/s. Mandovi Motors has also taken trial of the vehicle and vibration was found in line with other Wagon R vehicles. In the conditions governing the warranty for the vehicle, it had been stated in clause 4 (m) as follows:-

“Insignificant defects which do not affect the function of the vehicle including without limitation sound, vibration and fluid seep”

6. The OPs had also made a reference in this regard to Automobile Research

Institute of India (ARII) Pune and in their reply, the said Institute stated that under the

Central Motor Vehicles Rules, no limit had been notified for vibration levels. Referring to the report of National Institute of Technology, Karnataka, learned counsel stated that the said Institute was not a recognised institute to give any opinion in the matter. The learned counsel has drawn our attention to judgement of the Hon’ble Apex Court in

“Maruti Udyog Ltd. versus Susheel Kumar Gabgotra & Anr.” [(2006) 4 SCC 644], saying that if the petitioner had already taken steps to remove defects in some parts of the vehicle, it was not justified to order replacement of the entire vehicle. He has also drawn our attention to order passed by this Commission in “Maruti Udyog Ltd. versus Hasmukh Lakshmichand &Anr.” [III (2009) CPJ 229 (NC)] saying that in the instant case, the vehicle had run for 11 years and covered approximately 1,20,000 kms; the manufacturing defect in the vehicle had not been proved and it was held that it was not justified to direct replacement of the vehicle.

7. The complainant, Pravenchandra Shetty, argued the case in person and stated that there was complaint of abnormal vibration in the vehicle from the very beginning and it was quite clear that there was manufacturing defect in the same. He had complained about the defect to the OPs many times and also took the car for repairs. He mentioned that the defect had surfaced on the third day of the purchase and till now, he had taken the vehicle 23 times for repairs to the petitioners/OPs. He was also asked to take the vehicle to another workshop at Udipi, which was 341 km away, for repairs. The complainant stated that as per the report and statements given by the experts from National Institute of Technology, Karnataka, the vehicle suffered from manufacturing defects. The said Institute is highly reputed Institute and prominent scientists from the Institute have deposed in his favour. The orders passed by the lower courts were based on a correct appreciation of facts on record.

8. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. A simple glance at the contents of the consumer complaint in question reveals that the complainant had taken the vehicle to the petitioner/OP No. 1, a number of times and most of times, some or other part was replaced. The vehicle was purchased on 29.03.2003 and when it was taken to OP No.

1 on 18.04.2003, when the said car had run 847 kms only, the defect was recorded by

OP No. 1 as front suspension noise. The car was delivered back after modifying brake callipers with brass bushes. The petitioner/OP No. 1 have admitted in their revision petition that on 18.04.2003, there was complaint of grinding noise, the steering noise, callipers sound etc. which were attended to by the petitioner/OP No.1. The petitioner has also admitted that on 16.3.2004, when the vehicle had run more than 15,000 kms, it was brought to the petitioner with complaint of :-

(a) gear shifting very hard;

(b) clutch operation not smooth and become hard after car warms up;

(c) jerk while releasing clutch;

(d) AC compressor noise during engaging and vibrating when engaged;

(e) rear shock abnormal leaking;

(f) front strut hard;

(g) door rattling and

(h) drive shaft grinding noise.

Petitioner has admitted that all these defects were attended to, to the full satisfaction of the complainant. Again on 9.07.2004, when the car had run 19,801 km, it was brought with a complaint of jerking, engine jerking, etc. and the same was again attended to.

9. On 14.09.2004, when the car had run up to

22,430 kms, the vehicle was again brought to M/s. Mandovi Motors and the following defects have been recorded on the job card (Copy of which is on record):-

“Engine jerking at low speeds and also at high speeds (40-50 KMPH & also at 70-80

KM/hr speed)

Delay starting

Engine knocking at high speeds Check suspension (frt & rear)

Check brakes

Vehicle vibration at 70 km/hr

Tappet noise – valve clearance to be readjusted.”

10. It has also been stated in the complaint that the car was taken to M/s.

A. Bharana Motors, Udupi and the service engineer confirmed that there was vehicle vibration at 70Km/hr, suspected due to mounting.

11. On 2.08.2005, the complainant took the car to the experts of the National Institute of Technology, Karnataka, Mangalore (for short ‘N.I.T.) for inspection. The experts confirmed the abnormal vibration at speed of 45 km/hr and 70km/hr and have reconfirmed the abnormal vibration by conducting sound level measurements.

12. The sequence of events narrated above leads to the irresistible conclusion that the vehicle suffered from many defects for which it had to be taken for repairs again and again. A perusal of the written statement filed by M/s. Mandovi Motors Pvt. Ltd. before the District Forum also reveals that the petitioner has admitted having replaced several parts in order to satisfy the grievance of the complainant. A perusal of the orders passed by the District Forum and the State Commission reveals that they have passed these orders after carrying out detailed analysis of the facts on record. Before the

District Forum, the complainant examined two witnesses from the National Institute of

Technology, Karnataka, i.e., Dr. Appu Kuttan, Professor Department of Mechanical

Engineering and Dr. K.V. Gangadharan, Assistant Professor, Mechanical

Engineering. Both these witnesses confirmed their written report which states clearly that there were defects in the vehicle.

13. In so far as clause 4 (m) in the warranty for the vehicle is concerned, it deals with

“insignificant” defects like sound, vibration and fluid seep etc. which do not affect the functioning of the vehicle. The facts on record project in very clear terms that the defect of vibration in this vehicle cannot be called “insignificant” by any standard. Since the vehicle was taken to the workshop a number of times and every time some part or the other was changed, leads to the conclusion that there is ‘significant’ defect in the vehicle.

14. It is abundantly clear from the facts on record that the vehicle, in question, did suffer from defects and the petitioners have been trying to rectify these defects by replacing certain parts from time to time. The definition of ‘defect’ has been given in the

‘Consumer Protection Act, 1986’ itself as per section 2(1)(f) as follows:- “ "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods;”

15. The reports submitted by a reputed technical institute, like the National Institute of

Technology, Karnataka and also the remarks recorded by the technical personnel of the petitioner from time to time, make it very clear that the vehicle was a defective vehicle. The petitioner itself has admitted in their revision petition that they replaced the parts from time to time. It is, therefore, immaterial whether the “subject” of vibration is covered in the warranty under the strict sense of ‘word’ or not. It also does not matter if any parameters have not been quantified to measure the vibration levels or laid down in the statutory rules. The definition of the word ‘defect’ as contained in the Consumer

Protection Act, 1986, makes it very clear that there was fault, imperfection and shortcoming in the quality and standard of the vehicle. To summarise, it can be safely concluded that the vehicle is a defective one, as made out from the following factors:-

(a) The vehicle had to be taken for repairs a number of times. Most of the times,

there was replacement of some part or the other. The first time, it was taken

shortly after purchase of the vehicle, when it had run only 847 km and within one

month of purchase of the vehicle. The defects have been recorded on the job-

cards on most of the visits.

(b) The scientists from a reputed Institute like the N.I.T., Mangalore, have appeared

in the witness box before the District Forum and confirmed the defects in the

vehicle.

(c) The petitioners have themselves admitted in their revision petition that there were

many complaints of defects from time to time and they were attended to by the

petitioners.

16. From the above narration of facts and circumstances, it becomes crystal clear that the complainant has undergone a lot of mental harassment and agony, amounting to torture, because of the defects in the vehicle. There cannot be a case of bigger mental harassment than to carry the vehicle for repairs to the workshop so many times and still, the problem remaining unsolved. The complainant has also been agitating the matters in consumer courts for the last 8 years and he still has to get the requisite relief. He, therefore, deserves to be given handsome compensation as he has been a victim of circumstances and he has fought a valiant struggle to get his grievance redressed. The word ‘compensation’ although not defined in the Consumer Protection Act, 1986, has been explained in the order passed by the Hon’ble Supreme Court in

“Lucknow Development Authority versus M.K. Gupta” as reported in [(1994) 1 SCC 243 at 262-263]. It has been stated by the Hon’ble Supreme Court as follows:- “The word ‘compensation’ is of very wide connotation. It has not been defined in the Act. According to dictionary it means, ‘compensating or being compensated; thing given as recompense’. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been vested with the jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision enables a consumer to claim and empowers the Commission to redress any injustice done to him. Any other construction would defeat the very purpose of the Act. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him.”

17. The Hon’ble Apex court have thus, made it very clear that the Commission or

Forum in the Act is entitled to award not only value of goods or services, but also to compensate a ‘consumer’ for injustice suffered by him.

18. In the present case, the District Forum rightly ordered on 03.05.2007 that the OPs should replace the vehicle with a new car alongwith a fresh warranty and also give

Rs.17,000/- as compensation and costs. The District Forum have thus, allowed to the complainant the value of the goods in question and also compensation for injustice suffered by him, in accordance with the principle laid down by the Hon’ble Apex

Court. The State Commission in their order dated 11.1.2008 dismissed the appeals filed by both OPs. The Revision Petitions against these orders have been pending for almost five years as brought out at the time of arguments. Since the vehicle has already travelled more than 1,00,000 Kms, looking at the overall facts and circumstances of the case, it shall meet the ends of justice if a total compensation of Rs.3,00,000/- is awarded as compensation to the complainant. Both the revision petitions are therefore, partly allowed. The orders passed by the District Forum and

State Commission are set aside and it is ordered that both the OPs shall jointly and severally pay a sum of Rs.3,00,000/- by way of compensation to the complainant within

30 days from the date of pronouncement of this order. There shall be no order as to costs.

List on 28.11.2013 for compliance. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

REVISION PETITION NO. 796 OF 2013 (From order dated 14.12.2012 in First Appeal No. 1 of 2012 of the State Consumer Disputes Redressal Commission, U.T., Puducherry)

1. The Chairman, Aravind Eye Hospital, Having Its Office at Pondy-Cuddalore, Main Road, Abishegapakkam, Pondicherry 2. The Managing Director, Aravind Eye Hospital, Having its office at Pondy- Cuddalore, Main Road, Abishegapakkam, Pondicherry … Petitioners

Versus

Minor Kanmani, Rep. By her father and guardian Ramamurthy, residing at Puliyur Village and Post, Kullanchavady, Via Panruti Taluk … Respondent

BEFORE:

For the Petitioner (s) : Mr. Manvendra Verma, Advocate Mr. B.K. Goel, Advocate

For the Respondent : Mr. Y. Arunagiri, Advocate Mr. P. Ramesh, Advocate

1. The present Revision Petition is filed against the order dated 14.12.2012, whereby the State Consumer Disputes Redressal Commission, (herein, ‘State Commission’) at Puducherry allowed the order of the District Consumer Disputes Redressal Forum, Puducherry (herein, ‘District Forum’) dated 27.09.2011 holding the Petitioner hospital guilty of medical negligence without appreciating the law of medical negligence as declared by the Hon’ble Supreme Court of India.

2. The Complainant/Respondent took his 1 ½ year old daughter to the Opposite Parties (OP) /Petitioner hospital on 29.03.2005 with the complaints of since two days unable to open her left eye. The Doctor at Petitioner hospital examined the child as an out-patient and found the left eye had lid swelling with conjuctival congestion. There were multiple caterpillar hairs and it was inferior corneal epithelial defect. Under topical local anesthesia caterpillar hairs in upper tarsal conjunctiva in left eye were removed and antibiotic eye ointment applied and the eye was bandaged. Patient’s father was asked to bring the child for review the next day. But, the child brought to OPD on 31/03/2005 , and admitted as in patient on 1/4/2005 and discharged on 4/4/2005. The child was again brought for review on 26/4/2005 but the OP informed the complainant that child lost her vision in left eye.

3. Therefore, the father of child (complainant) filed a complaint No 37/2007 before the District Forum, Pondicherry alleging negligence in treatment his child who lost her vision of left eye and prayed for the compensation of Rs.490000/- from OP hospital.

4. OP denied the negligence on their part. OP contended that the complainant did not attend as per the doctor’s instructions for follow up. At the first instant the child was examined and treated on 29/3/2005 and called on very next day, but it was brought on 31/3/2005. Thereafter again, the child was advised for review on 12/4/2005 but child was brought on 26/4/2005 which on examination by the cornea specialist noted severe deterioration of left eye, there was corneal edema and anterior chamber, vitreous cavity showed severe fibrinous exudates suggestive of endophthalmitis due to migration of caterpillar hair posteriorly. The retina could not visualized, the ultrasound showed total retinal detachment. Such condition of child was informed to the complainant and advised to continue treatment by steroid eye drops and atropine ointment for 20 days. Child attended the OP for 4 times till 3/1/2006, thereafter stopped attending the OP hospital. Hence, OPs were confined to their stand as the treatment was in accordance with accepted medical practice and there was no negligence.

5. The District forum after considering the evidence on record allowed the complaint partly holding the OP hospital guilty of negligence. The compensation was computed on the basis of age of child and financial status of complainant, hardship to be faced by him for her education, marriage etc. and accordingly awarded payment of Rs.4,50,000/- as compensation and Rs.10, 000/- towards costs.

6. Against the order of District Forum the OP filed First Appeal No.1/2012 before the State Commission, Pondicherry. 7. State Commission heard the counsel for the both parties. The OP’s contention was that they took all care and caution and the treatment given was in accordance with accepted standard of care.

8. On perusal of evidence and hospital records the State Commission dismissed the FA 1/2012.

9. Aggrieved by the order of State Commission the OP preferred this revision.

10. We have heard the arguments at length advanced by counsel of both the parties. We have carefully examined the evidence, the hospital record sheets. As per the written version filed by OP (RW 1) Dr. R. D. Ravindran, Chief Medical Officer of the OP hospital that when the child attended the hospital on 29/3/2005 which was referred to Pediatric Ophthalmology Department, under local anesthesia caterpillar hairs in left upper tarsal conjunctiva were removed and antibiotic ointment applied and bandaged and called for review on next day ; but child was brought on 31.03.2005 on which the left eye developed corneal oedema; diagnosed that the anterior chamber showed fibrinous reaction to be due to the intraocular migration of the caterpillar hairs into the anterior segment; and hence admitted for treatment from 1/4/2005 to 4/4/2005. From the above admitted statement corroborated by the evidence of RW 1. it is clear that there was no defect in the posterior segment of the eye. There was no movement of the caterpillar hair to the posterior segment till then. Hence, it was not a cause for vitritis or endophthalmitis by any migration of the caterpillar hairs posteriorly. The RW 1 admitted that if caterpillar hair enters an eye it is a complicated one; that if evidence hair enters the intraocular cavity, definitely it would cause loss of vision. We find lot of contradiction between evidence of RW1 and the opinion of two expert evidence.

11. The expert evidences of two highly qualified experts play imminent role in deciding this petition. One Dr. Vasudev Anand Rao, as CW.2; the Head of the Department, Director and Professor of Ophthalmology, JIPMER, Puducherry and another Dr. A. Dhanashree Ratra CW 3, the Senior Consultant of Vitrep Retinal Department of Sankar Nethralaya, were examined as expert witnesses.

12. According to the expert CW 2 that falling of caterpillar hairs in the eye is a serious condition as the caterpillar hairs have fine spines and they have tendency to migrate to the cornea or sclera that produce inflammation in the eye and in rare cases might lead to the detachment of retina.

13. Expert CW 3 evidence has deposed to the effect that entering of caterpillar hair in to eye is scientifically termed as ‘Opthalmia Nodosa’. Normally ‘Opthalmia Nodosa’ includes range of signs, range of symptoms including redness of the eye and watering to decreased vision and infection in the eye. It is true that the Complainant baby as per records of Ex. R2 the course of treatment given to the patient up to 26.04.2005 is in order. It is also admitted by Dr. A. Dhanashree Ratra Sankara Netralaya, stated that on 29.03.2005 if ultrasound scan is performed in the Complainant baby the caterpillar hair that are present in interior portion of the eye, may be detected, and such treatment could be conducted by admitting the patient as in-patient, further it is a long course of treatment. The Opposite Party’s hospital if they have taken up the Complainant’s baby case seriously they could have saved her vision. It is admitted that ‘Opthalmia Nodosa’ is a curable surgically by means of “intro retinal surgery” of which OP hospital failed to do so and not taken steps for further treatment. It is known that it is difficult to remove the caterpillar hair from the inner portion of the eye and which could be removed by Vitreo Retinal Surgery; that the petitioner doctor did not advise such kind of surgery. which amounts to deficiency in service and the medical negligence.

14. On perusal of affidavit of opposite parties, it is contented that every detail about the treatment is explained to the Complainant’s father, but there is no documentary evidence to that extent, it is also admitted by RW1 Dr. R.D. Ravindran, Chief Medical Officer, Aravind Eye Hospital in his Chief. OPs have not recorded the reason for retinal canal detachment in their hospital records as per Ex. R2.

15. We are aware that petitioner hospital is one of the renowned hospital in India , possess Research and a Post Graduate Ophthalmology Department, run by charitable trust. The OP doctors diagnosed the case but, despite knowing the seriousness and complication of the ailment, the petitioner has treated the child in a very casual manner. It was the duty of OP when the child presented herself first time for treatment on 29-03-2005 and diagnosed as existence of caterpillar hair in the eye, which would cause impairment of vision. OP merely removed the hairs in the anterior portion of the eye, applying eye ointment, bandaging the eye and called for review on next day. Such patient needs hospitalization for sustained and constant care and proper investigations as per expert evidence of CW 2 & 3.

16. Hence, considering the evidence of RW1 and both the experts we are of considered opinion that being the seriousness of the ailment it was necessary to keep the child under constant care in the hospital till the ailment is completely cured off. But OP neglected it and treated he child in casual manner. The child on the first day of her presentation and discharging the child by clearing the exudates without confirming that the ailment was completely cured and the vision was normal that would certainly tantamount to negligence on the part of the OP. The discharge summary and hospital records lack many details of history and treatment given. It appears a careless approach by OP.

17. The principles of what constitutes medical negligence is now well established by number of judgments of this commission as also the Hon’ble Supreme Court of India, including Jacob Mathew vs State of Punjab[(2005) 6 SSC 1] and in Indian Medical Association Vs V.P.Shantha [(1995) 6SSC 651]. One of the principles is that a medical practioner is expected to bring a reasonable degree of skill and knowledge and must also exercise a reasonable degree of care and caution in treating a patient. In the instant case, it is very clear from the facts stated in forgoing paragraphs that a reasonable degree of care was not taken by OP in treatment of the child’s left eye.

18. Therefore, we are of considered opinion that there is deficiency in service by OPs and negligence in proper treatment which resulted in loss of vision in left eye of complainant. Hence, we do not find any illegality in the orders pass by for below. While quantifying the compensation it is necessary to consider the age of the child, her father’s economic conditions. It is being a female child of 11 years as of now, lost her eye at the age of 1-1/2 years. Considering a tender age of child and her future, we are of considered opinion that she should be compensated adequately. Therefore, we confirm the orders of fora below and impose additional punitive compensation of Rs.2, 00,000/- to be paid to the complainant.

19. Hence, the revision petition is dismissed. OPs are directed to comply entire order within 60 days otherwise it will carry interest @ 9% per annum. It is further directed that the amount to be deposited in any convenient nationalized bank in the name of minor Complainant Kanmani daughter of Ramamurthy till she attains majority. The accrued interest shall be utilized for her education and medical expenses by her father.

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

……………….…………… (Dr. S.M. KANTIKAR)

MEMBER Mss-11

REVISION PETITION NO. 102 OF 2013 (From the order dated 8.11.2012 in First Appeal No.1669/2011 of the Haryana State Consumer Disputes Redressal Commission Panchkula)

Devender Singh S/o Sh. Niranjan Singh R/o Village Bindhroli, Tehsil & Distt. Sonepat … Petitioner Versus

Oriental Insurance Co. Ltd. Regd. Office at: Oriental House PN No.7037, A-25/27, Asaf Ali Road, New Delhi … Respondent

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

For the Petitioner : Mr. T.P.S. Teji, Advocate For the Respondents : Ms. Amrita Swaroop, Advocate

Alongwith Mr. Gaurav Malhotra, Advocate

PRONOUNCED ON: 19 th SEPTEMBER, 2013 ORDER PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER This revision is directed against the order of the State Consumer Disputes Redressal Commission, Haryana (for short, ‘the State Commission’) dated 8.11.2012 whereby the State Commission accepted the appeal preferred by the opposite party/Insurance Company against the order of the District Forum and set aside the said order holding that the complaint was barred by limitation. 2. Briefly put, facts relevant for the disposal of this revision petition are that the complainant’s truck No. HR 69-7163 was insured with the respondent/opposite party. The said truck was stolen on 3.5.2008 and FIR in this regard was registered at police station Jhajhar vide FIR No.288 under Section 379 IPC on 13.6.2008. The complainant lodged his insurance claim with the opposite party but despite of several visits to the office of the opposite party the respondent/opposite party failed to settle the claim.

Consequently, the petitioner was compelled to file consumer complaint under Section 12 of the Consumer Protection Act, 1986. 3. The respondent/opposite party in its written statement took a preliminary objection that the complaint was pre-mature as the claim of the complainant had not been repudiated. On merits respondent took the plea that theory of the theft of the truck was false and the complainant had obtained untraced report in collusion with the police. It was also claimed that the complainant had failed to intimate the respondent- Company about the theft of vehicle within a reasonable period. 4. District Forum, Sonepat on consideration of evidence came to the conclusion that the respondent was deficient in service and allowed the complaint with following reliefs: -

“ Accordingly, it is directed to the respondents to make the payment of Rs.10,40,000/- (Rs.Ten Lacs forty thousands) to the complainant alongwith interest at rate 9% per annum from the date of the theft of truck no.HR69/7163 and further to compensate the complainant to the tune of Rs.2000/- (Rs.Two thousands) for rendering deficient services, unnecessary harassment and further to pay a sum of Rs.2000/-(Rs. Two thousands) under the head of litigation expenses. The present complaint stands allowed with the direction to the respondent to make compliance of this order. It is made clear here that the complainant shall complete the formalities and shall submit the required documents and shall transfer the RC of the truck no.HR69/7163 in the name of the respondent insurance company for the settlement of his claim at the earliest possible. With these observations, findings and directions, the present complaint stands allowed and the respondent is directed to make the compliance of this order within one month from the date of passing of this order.”

5. Being aggrieved of the impugned order respondent preferred an appeal before the State Commission and the State Commission set aside the order of the District Forum and dismissed the complaint filed by the petitioner as barred by limitation vide the impugned order. The State Commission, however did not address the merits of the case. 6. Being aggrieved of the finding of the State Commission petitioner has preferred this revision petition. Learned Shri T.P.S. Teji, Advocate for the petitioner has contended that the impugned order of the State Commission is erroneous as the State Commission has failed to appreciate that as per the allegations in the written statement the insurance claim of the petitioner was still under the consideration of the respondent. Learned counsel submitted that since the claim was not repudiated the State Commission had fallen in error in holding that the complaint was barred by limitation. 7. Learned counsel for the respondent on the contrary has contended that the State Commission has rightly held that the cause of action arose in favour of the complainant on the date on which the theft took place and since the complaint was filed on 4.2.2011 i.e. after the expiry of three years and seven months the State Commission was right in holding that it was barred by limitation in view of Section 24A of the Consumer Protection Act, 1986. 8. We have considered the rival contentions. On perusal it is seen that the State Commission in support of its conclusion has relied upon the judgment of the Supreme Court. Relevant portion of the order is reproduced thus: -

“ The Hon’ble Supreme Court in case cited as Kandimalla Raghavaiah & Co. vs. National Insurance Co. Ltd. & Anr., 2009 CTJ 951 (Supreme Court) (CP) relied upon its earlier decision in State Bank of India vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP)= JT 2009 (4) SC 191 and in para No.12 of the judgment held as under:

“ 12 Recently, in State Bank of India vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP)=JT 2009 (4) SC 191, this Court, while dealing with the same provisions, has held:

“8 It would be seen from the aforesaid provision that it is premptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

9. The Supreme Court in the above noted judgment has interpreted the scope of Section 24A of the Consumer Protection Act. There can be no dispute regarding the legal position enumerated in the above judgment. The import of the said judgment is that a consumer complaint should be filed within two years from the date of accrual of cause of action. Thus, the crucial issue in this revision petition is as to when the cause of action has accrued. Admittedly, this is a case of insurance claim which was still under consideration of the insurance company. Therefore, till the insurance company had taken the decision on the complaint, the cause of action for filing the complaint continued. Therefore, in our considered view the State Commission has committed a grave error in holding that the complaint was barred by limitation. As such, the impugned order cannot be sustained. 10. Consequently, we accept the revision petition, set aside the impugned order of the State Commission and remand the matter back to the State Commission to decide the appeal on merits after giving opportunity of being heard to the parties. 11. Parties are directed to appear before the State Commission on 21.10.2013.

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

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

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2810 OF 2013 (From the order dated 11.10.2012 in F.A. No.615/2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula) WITH I.A. NO.4826, 4827 & 4828 OF 2013 (STAY, DELAY & EXEMPTION FOR FILING ADDL. DOCS.)

1. M2K Country Heights Dharuhera, E-13/29, Harsha Bhawan, Connaught Place, New Delhi

2. M2K Country Heights, Marketing Office B-86, Sector 50, May Field Garden, Gurgaon, Haryana Represented by M/s M2K Infrastructure Pvt. Ltd., E-13/29, Ist Floor, Harsha Bhawan, Connaught Circus, New Delhi – 110001 through its authorized signatory .….. PETITIONER (S) Versus Rajesh Kumar s/o Shri Zile Singh r/o H. No. 36/2, Hans Enclave, Near Rajeev Chowk, Gurgaon, Haryana ...... RESPONDENT

BEFORE: HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER For the Petitioners : Mr. Rohit Sharma, Advocate

PRONOUNCED ON : 19 th SEPTMEBER, 2013 ORDER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the impugned order of the State Commission dated 11.10.2012 whereby the State Commission dismissed the appeal preferred by the petitioner against the order of the District Forum Gurgaon dated 24.03.2011 which reads as under:

“ Hence, the complainant is entitled to refund of his amount of Rs.3,00,000/- deposited with the opposite party on 16.01.2007 vide receipt dated 19.01.2007 with interest at the rate of 9% per annum from the date of deposit till its realization. The complainant is also entitled to a compensation of Rs.20,000/- for his harassment and mental agony caused by the opposite party. He is also entitled to litigation charges of Rs.5000/- from the opposite party. The opposite party is directed to comply the order within 30 days”.

2. Briefly stated the facts relevant for the disposal of this revision are that the respondent / complainant filed a consumer complaint against the petitioner / opposite party alleging that lured by the advertisement / brochures of the petitioner company, the complainant booked a flat in the proposed project of the petitioner, namely, M2K Country Heights Dharuheda on payment of Rs.3,00,000/-. Pursuant to the booking, the complainant was allotted apartment no. E-1108, Tower No.E, 11th Floor measuring 1425 sq. ft @ 1495 per sq. ft. It was alleged in the complaint that the complainant visited the office of the petitioner / opposite party on several occasions to find out about the location and progress of the project but no information was given to him. The complainant even sent written reminders to the opposite party to find out about the progress of the project but to no avail. It was also alleged that opposite party had taken a booking amount of Rs.3,00,000/ without having any CLU or license to construct. Claiming this to be deficiency in service, the complaint was filed. The petitioner / opposite party contested the complaint claiming it to be false and frivolous. It was further admitted that the complainant vide his application dated 16.01.2007 booked an apartment in the proposed housing project “M2K Country Heights” at Dharuheda, Haryana. The complainant was informed about the specifications including tentative super area, basic sale price as also the tentative date of delivery of possession vide letter dated 17.05.2007 and the allotment letter was issued in favour to the respondent complainant on 14.08.2007. It was also pleaded that the construction of the residential complex commenced on 21.09.2007 after obtaining requisite approvals and permissions from the competent authority. According to the petitioner, the possession of the apartment is to be delivered within the parameters of the terms and conditions of the agreement and that there is no deficiency on the part of the opposite party and on the contrary, complainant has defaulted in making payment of instalment as per the agreed payment schedule, therefore, his allotment / booking is liable to be cancelled.

3. The District Forum Gurgaon on consideration of the evidence allowed the complaint in above noted terms.

4. Feeling aggrieved by the orders of the District Forum, the petitioner preferred an appeal before the State Commission and State Commission after hearing the parties returned the concurrent finding of fact and dismissed the appeal with following observations:

“ After hearing the counsel for parties and going through facts and circumstances of the case, we are of the opinion that complainant vide his application dated 16.01.2007 booked an apartment with OP in their project M2K Country Heights at Dharuheda, Haryana on payment of Rs.3,00,000/-. The complainant was not satisfied with their project as he could not find its whereabouts at the spot. Moreover, the OPs alleged that they started constructions from the competent authority but they failed to disclose it and show it to the complainant. Hence, the OPs could not assure the complainant regarding status of their project by disclosing the factual position to complainant. Thus, District Consumer Forum after considering each and every aspect of the case rightly allowed the complaint of the complainant. No ground to interfere with the impugned order is made out”.

5. Learned counsel for the petitioner has assailed the impugned orders of the fora below claiming that they have committed a grave error in failing to appreciate that the respondent complainant is not a consumer as he had booked a flat with the petitioner with a view to earn speculative profits. We do not find any merit in this contention for the reason that aforesaid plea was not taken in the written statement and otherwise also, counsel for the petitioner has failed to show us any evidence to indicate that the respondent complainant has booked the flat for commercial purpose i.e. earning speculative profits.

6. Secondly, it is contended that there is no deficiency of service on the part of the petitioner / opposite party. It is submitted by the learned counsel for the petitioner that fora below have failed to appreciate that the petitioner had commenced construction after obtaining all necessary sanctions from the concerned authorities in the year 2007 itself and the complainant / respondent is himself guilty of failing to pay the instalments as per the agreement despite of several demand notices sent by the petitioner. In support of this contention, learned counsel for the petitioner has drawn our attention to the copies of the communication purported to have been sent to the respondent for execution of Apartment Buyer Agreement respectively dated 01.02.2008, 04.04.2008, 21.04.2008, 12.05.2008 & 05.06.2008. Counsel has also drawn our attention to the copies of the Allotment Advise-cum-Demand Note dated 14.08.2007 as also the reminders calling upon the respondent to pay the outstanding dues respectively dated 01.05.2008, 15.05.2008, 02.06.2008, 16.06.2008, 01.07.2008, 03.07.2008, 28.07.2008 & 28.08.2008. On the basis of the above letters, it is urged that respondent himself is a defaulter. Therefore, the impugned orders holding the petitioner to be deficient in service are not sustainable.

7. Before adverting to the submissions made on behalf of the parties, it would be useful to have a look on the scope of the revisional jurisdiction of the National Commission. The revisional jurisdiction of National Commission flows from section 21 (b) of the Consumer Protection Act and such powers can be exercised by the National Commission to revise the order of the State Commission if the State Commission –

(i) has exercised the jurisdiction not vested in it by law; or,

(ii) has failed to exercised the jurisdiction vested in it; or,

(iii) has acted in exercise of his jurisdiction illegally or with material irregularity.

In the instant case, it is not the case of the petitioner that the State Commission has either exercised a jurisdiction not vested in it or has failed to exercise the jurisdiction vested in it. Basic plea of the petitioner is that the impugned order of the State Commission is based on incorrect appreciation of facts. On perusal of the record, we find that both the foras below have arrived at a concurrent finding by passing the reasoned order. Therefore, we do find no reason to interfere in the aforesaid finding of fact.

8. On perusal of the copy of the complaint annexed to the revision petition, it is clear that main grievance of the complainant / respondent is that after booking a plot and paying Rs.3,00,000/-, complainant visited the office of the petitioner on several occasions to find out about the particulars and status of the proposed project but no information was given. It is also the case of the complainant that he asked the respondent to convey him the date by which the possession would be delivered but no response was received from the petitioner. In response to this allegation, petitioner has taken a plea in his written statement filed before the District Forum that the tentative date of completion of the project was intimated to the respondent in the application form sent alongwith the letter dated 14.08.2007. We have perused the copy of the application form sent alongwith the aforesaid letter wherein in the clause 41, the tentative date of completion of construction of apartment is given as 36 months from the date of the commencement of construction. As per the written statement of OP filed in the District Forum, the construction process started on 21.07.2007. Therefore, as per the agreement construction should have been completed by the year 2010. The impugned order was passed on 11.10.2012. Admittedly till then, the construction of the apartment was not complete, although five years period from the date of commencement of construction had elapsed. This by itself amounts to the deficiency in service on the part of the petitioner builder. Therefore, also the impugned order of the State Commission cannot be faulted. Otherwise also, both the District Forum as well as the State Commission have returned a concurrent finding of fact after due analysis of the evidence. As such we find no reason to interfere with the impugned order in exercise of the revisional jurisdiction under section 21 (b) of the Act.

9. In view of the discussion above, we do not find any jurisdictional error, illegality or material irregularity in the impugned order which may call for interference by this Commission in exercise of the revisional jurisdiction. Revision petition is, accordingly, dismissed.

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

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

REVISION PETITION NO. 1046-1047 OF 2008 (From the order dated 16.10.2007 in Appeal No. 799/2006 & 206/2007 of the Orissa State Consumer Disputes Redressal Commission, Cuttack)

United India Insurance Co. Ltd. Rourkela Main Road, Rourkela P.S. Plant Site, Dist. Sundargarh At present represented by the Manager Regional Cell, Bhubanewar …Petitioner/Opp. Party (OP-1)

Versus

1. Visakha Enterprises Prop. M.J. Pattnaik Basanti Colon, Qrts. No. FL-279, P.O. Rourkela 769012 P.S. Udit Nagar Distt. Sundargarh

…Respondent-1/Complainant

2. Central Bank of India Steel Township Branch Rourkela-6, PO Rourkela-2, P.S. Sector-7, Dist. Sundargarh

…Respondent-2/OP-2

REVISION PETITION NO. 1948 OF 2008 (From the order dated 16.10.2007 in Appeal No. 799/2006 & 206/2007 of the Orissa State Consumer Disputes Redressal Commission, Cuttack)

Visakha Enterprises Prop. M.J. Pattnaik Basanti Colon, Qrts. No. FL-279, P.O. Rourkela 769012 P.S. Udit Nagar Distt. Sundargarh

…Petitioner/Complainant

Versus

United India Insurance Co. Ltd. Rourkela Main Road, Rourkela P.S. Plant Site, Dist. Sundargarh At present represented by the Manager Regional Cell, Bhubanewar

…Respondent No.1/Opp. Party-1 2. Central Bank of India Steel Township Branch Rourkela-6, PO Rourkela-2, P.S. Sector-7, Dist. Sundargarh

…Respondent-2/OP-2

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For United India Ins. Co. Ltd. : Mr. Vineet Malhotra, Advocate with Mr. Vishal Gohri & Mr. Parag Sharma,

Advocates

For Visakha Enterprises : Mr. Arunav Patnaik, Mr. D.B. Ray & Mr.

Bhabha Das, Advocates. For the Res. No. 2 : Ex-parte

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

All these revisions arise out of judgement dated 16.10.2007 in appeals filed against judgement of the District Forum. Accordingly, the revisions were heard together and are being disposed of by common order.

These revision petitions have been filed by the petitioners against the order dated 16.10.2007 passed by the Orissa State Consumer

Disputes RedressalCommission, Cuttack (in short, ‘the State Commission’) in Appeal

No. 799/2006 – United India Ins. Co. Ltd. Vs. Visakha Enterprises and Appeal No.

206/2007 – Visakha Enterprises Vs. United India Ins. Co. Ltd. by which, while dismissing appeal of the Insurance Company, appeal of complainant was partly allowed and while confirming order of District Forum allowing complaint, compensation was enhanced.

2. Brief facts of the case are that complainant Visakha Enterprises was dealing in acid, etc. for which loan from Central Bank of India under hypothecation was taken and business premises were insured with OP No. 1 – United India Insurance Co. for a period of one year from 25.7.2003 to 24.7.2004. On 25.10.2003, fire broke out in the insured premises as a result of which, complainant’s stock was burnt. Complainant lodged claim with the Insurance Company, but claim was not allowed. Alleging deficiency on the part of OPs, complainant filed complaint with District Forum. OPs resisted complaint and OP No. 1 submitted that shifting of godown by the complainant in the premises where fire took place was beyond the knowledge of OP and also denied value of stocks in the premises and prayed for dismissal of complaint. OP No. 2 submitted that as complaint did not disclose any cause of action against OP No. 2, complaint may be dismissed. After hearing both the parties, learned District Forum allowed complaint against OP No. 1 and directed OP No. 1 to pay Rs.9,50,000/- and

Rs.10,000/- as compensation towards mental agony and Rs.5,000/- towards cost of litigation and complaint was dismissed against OP No. 2. Both the parties filed appeal against impugned order and learned State Commission while dismissing appeal of

Insurance Company, partly allowed appeal of complainant and enhanced compensation to Rs.12,51,000/- from Rs.9,50,000/- against which, these revision petitions have been filed.

3. Respondent No. 2 did not appear even after service; hence, proceeded ex-parte.

4. Learned Counsel for the petitioner-Insurance Co. submitted that insured premises were changed by the complainant without any intimation to the Insurance Co. and the place where the fire took place was not covered under policy; even then, learned State

Commission has committed error in dismissing appeal. It was further submitted that though insurance policy was only of Rs.10,00,000/-; even then, learned State

Commission committed error in allowing Rs.12,51,000/-;hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for Visakha Enterprises submitted that insured premises were changed under intimation to the Insurance Company and learned District Forum has not committed any error in allowing complaint. Learned Counsel for Visakha Enterprises admitted that as policy was for Rs.10,00,000/-, State Commission should not have allowed Rs.12,51,000/-, but submitted that learned District Forum and State Commission have committed error in not granting interest; hence, revision petition be allowed and interest be awarded.

5. Learned District Forum rightly observed that OP No. 2 Central Bank of India intimated to OP-Insurance Co. regarding shifting of godown by the petitioner vide letter dated 18.8.2003 and fire took place on 25.10.2003 and in such circumstances, matter of shifting of godown was within the knowledge of OP No. 1. Letter dated 14.1.2005 issued by United India Ins. Co. to complainant clearly reveals that endorsement regarding change of insured place has been made on the basis of letter of complainant dated

16.8.2003 addressed to Central Bank of India for shifting of godown due to lack of space. This admission makes it crystal clear that change of godown by the complainant before fire took place was within the knowledge of insurance company and arguments of learned Counsel for the Insurance Co. is devoid of force to the extent that fact of change of godown was not communicated by the complainant to Insurance Co.

6. Learned Counsel for the Insurance Co. further submitted that in the complaint reason for change of godown has been shown as due to marriage of complainant’s son, whereas as per letter dated 14.1.2005, it was changed due to lack of space which is contradictory. This argument has no bearing on the dispute because we are not concerned with the reason for shifting of the godown, but we are concerned only to the extent that whether shifting of godown within the knowledge of Insurance Co. or not. Further, Insurance Co. has not placed on record letter of complainant dated

16.8.2003, which would have revealed reason for change of godown. Thus, it becomes clear that complainant shifted godown within the knowledge of Insurance Company and learned District Forum rightly allowed complaint.

7. As far as amount of compensation is concerned, learned State Commission has based its finding on the basis of statement of stock in complainant’sgodown, which was available with the Financer Bank as on 25.10.2003. As per stock statement, goods were worth Rs.12,50,493.88 in the godown and everything burnt due to fire, but as insurance policy was only for Rs.10,00,000/-, State Commission should not have enhanced compensation to Rs.12,51,000/- and compensation should have been awarded only to the extent of Rs.10,00,000/- for which insurance policy was taken. To this extent, revision petition filed by the insurance company is to be allowed.

8. Learned Counsel for the complainant Visakha Enterprises submitted that interest has not been granted to the complainant. Perusal of complaint reveals that complainant claimed compensation along with bank interest. There is nothing on record to arrive at conclusion about rate of bank interest at the time of filing complaint. Learned Counsel for the complainant placed reliance on judgment of Hon’ble Apex Court in C.A. Nos.

6075-76 of 1995 – The United India Insurance Co. Ltd. Vs. M.K.J. Corporation with M.K.

J. Corporation Vs. The United India Insurance Co. Ltd. in which, interest @ 12% p.a. was allowed, as Insurance Co. was investing money in the securities specified by the

Government of India @ 11.3% p.a. He also placed reliance on judgment of this

Commission decided on 24.3.2008 Jamnadas Madhavji International Ltd. Vs. The New

India Assurance Co. Ltd. and D. Himatlal and Co. in which 12% p.a. interest was allowed. In the case in hand, as Bank interest on the date of filing complaint has not been specified, we deem it proper to allow interest @ 9% p.a. normally granted by the

Banks on FDRs. Learned Counsel for the Insurance Co. submitted that by order dated

16.4.2008 this Commission stayed operation of impugned order subject to depositing

Rs.10,00,000/- with the State Commission. Learned Counsel further submitted that

Rs.10,00,000/- has already been deposited with the State Commission. In such circumstances, we hold that complainant is entitled to interest @ 9% p.a. on

Rs.10,00,000/- from the date of filing till the amount was deposited by Insurance

Company with the State Commission and complainant is further entitled to receive accrued interest, if any, on Rs.10,00,000/- deposited with the State Commission.

9. Consequently, Revision Petition Nos. 1046-1047 of 2008 filed by United India

Insurance Co. Ltd. are partly allowed and impugned order dated 16.10.2007 passed by learned State Commission in Appeal No. 799/2006 and Appeal No. 206/2007 is modified and Insurance Co. is directed to pay Rs.10,00,000/- instead of Rs.12,51,000/- to complainant, Visakha Enterprises. Revision Petition No. 1948 of 2008 filed by complainant, Visakha Enterprises is also allowed and impugned order passed by learned State Commission is modified and it is held that complainant is entitled to receive Rs.10,00,000/- along with 9% p.a. interest from the date of filing complaint till money deposited by Insurance Co. with the State Commission and further any interest accrued on Rs.10,00,000/- deposited with the State Commission along with

Rs.10,00,000/- deposited with the State Commission. There shall be no order as to costs. ..……………Sd/-………………

PRESIDING MEMBER

..…………Sd/-…………………

( DR. B.C. GUPTA )

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4173 OF 2012 (From the order dated 18.07.2012 in Appeal No. 342/2007 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Life Insurance Corporation of India Manager (L&HPF) Divisional Office, Sector – 17B, Chandigarh Through Assistant Secretary (Legal) C.O. Legal Cell (LICI), H-39, New Asiatic Building First Floor, Connaught Place, New Delhi …Petitioner/Opp. Party (OP)

Versus Mr. Gyaninder S/o Mewa Singh H. NO. 7322, Urban Estate Block-D, Jind

BEFORE

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

For the Respondent : NEMO

O R D E R

18.07.2012 passed by the Haryana State Consumer

Disputes RedressalCommission, Panchkula (in short, ‘the State Commission’) in Appeal

No. 342/2007 – LIC of India Vs. Mr. Gyaninder by which, while partly allowing appeal cost of Rs.20,000/- was imposed and order of District Forum allowing complaint was modified.

2. Brief facts of the case are that insured Gyaninder, brother of the

Complainant/respondent obtained insurance policy on 15.9.2002 for Rs.10,00,000/- with double accidental benefits from OP/petitioner disclosing income of Rs.1,20,000/- p.a. from agriculture. Assured died on 10.8.2003 in a road accident. Complainant preferred claim before OP/petitioner, which was repudiated on the ground of wrong information regarding his annual income. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.20,00,000/-.

Appeal filed by the petitioner was partly allowed by learned State Commission vide impugned order and State Commission set aside order granting relief for double accident benefits and directed petitioner to pay Rs.10,00,000/- instead of Rs.20,00,000/- but while disposing appeal imposed cost of Rs.20,000/- which was to be recovered from erring officials of the petitioner responsible for repudiation of claim against which, this revision petition has been filed.

3. None appeared for the respondent, but by letter dated 3.9.2013, respondent expressed that matter may be decided.

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

5. Learned Counsel for the petitioner submitted that petitioner had every right to file first appeal against the order of District Forum and appeal was partly allowed by District

Forum and amount was reduced from Rs.20,00,000/- to Rs.10,00,000/-; even then, learned State Commission has committed error in imposing cost of Rs.20,000/- to be recovered from erring officials of petitioner which was not warranted and prayed for setting aside imposition of cost.

6. Perusal of record clearly reveals that though there was no accidental benefit available in the policy of Rs.10,00,000/-, complainant claimed double accident benefits before District Forum and District Forum allowed double accidental benefits and ordered the petitioner to pay Rs.20,00,000/- which was not in accordance with law as policy was not issued for double accidental benefits. Learned State Commission rightly partly allowed appeal and substituted Rs.10,00,000/- for Rs.20,00,000/- awarded by District

Forum.

7. When appeal was partly allowed by State Commission, imposition of cost on erring officials of petitioner was not warranted at all as no double accidental benefits were available in the policy issued by petitioner. Officials of the petitioner acted in bonafide and in the light of Section 47 of the Life Insurance Corporation Act, officials were not liable for any cost.

8. Learned Counsel for the petitioner has also placed reliance on 2013 (2) SCALE

239 - Lucknow Development Authority Vs. Shyam Kapoor in which,Hon’ble Apex

Court set aside cost imposed upon the appellant by the National Commission.

9. In the light of above discussion, we are of the opinion that imposition of cost of

Rs.20,000/- on petitioner was not warranted at all as appeal was partly allowed by learned State Commission. In such circumstances, revision petition is allowed.

10. Consequently, revision petition filed by the petitioner is allowed and order imposing cost of Rs.20,000/- in impugned order dated 18.7.2012 passed by learned

State Commission in Appeal No. 342/2007 – LIC Vs. Gyaninder is set aside.

..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

1. Sanjivani Urban Co-operative Bank Ltd. Parbhani, Mondha, Parbhani, Dist. Parbhani Maharashtra

2. Chairman Sanjivani Urban Co-operative Bank Ltd. Parbhani, Nava Mondha, Parbhani, Dist. Parbhani Maharashtra

3. Manager Sanjivani Urban Co-operative Bank Ltd. Parbhani, Nava Mondha, Parbhani, Dist. Parbhani Maharashtra

4. Vaidyanath Urban Co-operative Bank Ltd. Parli through its Branch at Parbhani, Parbhani, Dist. Parbhani Maharashtra

... Petitioners

Versus

Dharnidhar s/o Anantrao Namade, r/o Kshitij, 42, Shivramnagar Vasmat Road, Parbhani, District Parbhani, Maharashtra

… Respondent(s)

1. Sanjivani Urban Co-operative Bank Ltd. Parbhani, Mondha, Parbhani, Dist. Parbhani Maharashtra

2. Chairman Sanjivani Urban Co-operative Bank Ltd. Parbhani, Nava Mondha, Parbhani, Dist. Parbhani Maharashtra

3. Manager Sanjivani Urban Co-operative Bank Ltd. Parbhani, Nava Mondha, Parbhani, Dist. Parbhani Maharashtra

4. Vaidyanath Urban Co-operative Bank Ltd. Parli through its Branch at Parbhani, Parbhani, Dist. Parbhani Maharashtra

... Petitioners

Versus

Swati w/o Dharnidhar Namade, r/o Kshitij, 42, Shivramnagar Vasmat Road, Parbhani, District Parbhani, Maharashtra

… Respondent(s) BEFORE

PRESIDING MEMBER

For the Petitioner(s) Mr. S.P. Adgaonkar, Advocate

For the Respondent Mr. Abhijit Namde, Advocate

These two revision petitions, RP No. 1575/2013 and RP No. 1576/2013, have been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 24.01.2013 passed by the Maharashtra State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No. A/730/2007, “Sanjivani Urban Cooperative Bank Ltd. & Ors. versus Dharnidhar” and FA No. A/731/2007, “Sanjivani Urban Cooperative Bank Ltd. & Ors. versus Swati Dharnidhar” vide which, while dismissing these two appeals, the order dated 21.04.2007 passed by the District Consumer Disputes Redressal Forum, Parbhani in complaint nos. 19/2007 and 20/2007, allowing the said complaints was upheld.

2. The facts in brief, giving rise to these revision petitions are that the complainants who are husband & wife had kept as fixed deposit a sum of Rs.45,000/- each, total Rs.90,000/- for 27 months with the petitioner bank. The other two petitioners are the Chairman and the Manager of theSanjivani Urban Cooperative Bank, whereas petitioner no. 4 Vaidyanath Urban Cooperative Bank Ltd. is another bank with which the Sanjivani Urban Cooperative Bank happened to merge later on. The said fixed deposit matured on 06.09.2005 at the expiry of 27 months, but the maturity amount was not paid to them by the OP Sanjivani Urban Cooperative Bank; hence they alleged deficiency in service on their part. The OP Sanjivani Urban Cooperative Bank maintained that the said payment was not made because of some restriction on transactions imposed upon them through some circular of the Reserve Bank of India (for short, ‘RBI’) issued on 26.12.2005.

3. The District Forum after considering the evidence produced by the parties directed vide their order dated 21.04.2007 that a sum of Rs.45,000/- should be paid to the complainants in each case along with an interest @12% p.a. within three months form the knowledge of the order, otherwise, the complainant shall be entitled to interest

@15% p.a. It was also ordered that the OPs should pay Rs.5,000/- towards compensation within one month from the date of the said order. Appeals were preferred by the OPs against this order of the District Forum, but vide impugned order dated

24.01.2013, the State Commission dismissed the appeals and upheld the order of the

District Forum. It is against this order that the present revision petitions have been made.

4. At the time of hearing before us, the learned counsel for the petitioners has drawn our attention to the circular dated 26.12.2005 issued by the RBI saying that the RBI had imposed restrictions upon them from discharging their liabilities and obligations except with the prior approval of the RBI. The maturity amount of FDR could, therefore, be not paid to them. However, when asked to explain that the said FDRs had matured on

06.09.2005, whereas the circular of the RBI in question is dated 26.12.2005 through which restrictions had been imposed w.e.f. 30.12.2005, the learned counsel for the petitioners could not give any satisfactory reply, as to why the payment had not been made by the petitioners on maturity of the FDRs. He simply stated that the financial health of the bank did not permit them to make such payments. The learned counsel further stated that the Sanjivani Urban Cooperative Bank had already merged with petitioner no. 4, Vaidyanath Urban Co-operative Bank Ltd. on 20.10.2008. The learned counsel also stated that the complainants had previously filed a joint complaint on this issue which was ordered to be dismissed on 16.05.2006. The filing of the second complaint by the complainants was hit by the principle of res judicata and hence the present complaints were not maintainable.

5. The learned counsel for the respondent stated that the complainants had made several attempts to get their money back on maturity of the fixed deposits, but the bank had not made payment to them.

6. An examination of the facts on record indicates that the complainants deposited a sum of Rs.45,000/- each, with the petitioner/ OP SanjivaniUrban Cooperative Bank in

June 2003 for a period of 27 months. It has been admitted by OPs that the said fixed deposit matured on 06.09.2005. It was the duty of the petitioner Sanjivani Urban

Cooperative Bank to make the payment of the maturity amount to the complainants at that stage. The petitioners cannot take shelter under the circular issued by the RBI on

26.12.2005, according to which restrictions were imposed on Sanjivani Urban

Cooperative Bank upon transactions on various counts, without the prior approval of the

RBI. In the instant case, the FDRs matured much before the said restrictions were issued and hence the OPs were duty bound to make payment to the depositers even if the financial position did not permit them to make such payment. In this way, the fault does not lie with the complainant in any manner. The OPs are under obligation to make payment on maturity and there is a clear-cut deficiency in service on their part, because they failed to make payment to the complainant on maturity of the fixed deposit. Even after the issuance of the RBI circular, it was their duty to make reference to the RBI for getting the requisite approval and then make payments to the complainants.

7. The arguments raised by the petitioners about the applicability of the principle of res judicata is also without any force, because the complainants had earlier filed a joint complaint and were asked to file separate complaints vide orders of the District

Forum issued on 16.5.2006.

8. In view of the above discussion, it is evident that the petitioners failed in their duty to disburse the maturity amount to the complainants without any justifiable reason. The directions of the RBI came much later and hence the petitioners could not take shelter under the said directions. The present revision petitions are therefore ordered to be dismissed and the orders passed by the State Commission and District Forum are upheld with no order as to costs.

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

(From the order dated 06.07.2012 in First Appeal No. 218/2011 of West Bengal State Consumer Disputes Redressal Commission)

Mahindra & Mahindra Ltd. Through Mr. Abhishek Chand, Authorised Representative Mahindra Towers Worli Road, Mumbai – 400018

... Petitioner

Versus

1. Sri Chandan Mondal s/o Sri Mohan Mondal r/o Vill – Gopalnagar, P.O. – Dabra, P.S. Pandua, Dist. – Hooghly, West Bengal

2. Rudra Automobiles Pvt. Ltd. Having its office at Khagragarh More, B.T. Road, Golap Bag, P.O. & Dist. – Burdwan, West Bengal

3. Rudra Automobiles Pvt. Ltd. Having its head office at Asansol, P.O. – Asansol, Dist – Burdwan, West Bengal

4. Rudra Automobiles Pvt. Ltd. Pandua, Kalitala, G.T. Road, P.O. & P.S. – Pandua – Distt. Hooghly West Bengal

5. Hooghly Co-operative Agri & Rural Development Bank Ltd. Pandua, Dist – Hooghly West Bengal

… Respondent(s)

(From the order dated 06.07.2012 in First Appeal No. 218/2011 of West Bengal State Consumer Disputes Redressal Commission)

1. Rudra Automobiles Pvt. Ltd. Having its office at Khagragarh More, B.T. Road, Golap Bag, P.O. & Dist. – Burdwan, West Bengal

2. Rudra Automobiles Pvt. Ltd. Having its head office at Asansol, P.O. – Asansol, Dist – Burdwan, West Bengal

3. Rudra Automobiles Pvt. Ltd. Pandua, Kalitala, G.T. Road, P.O. & P.S. – Pandua – Distt. Hooghly West Bengal

... Petitioner(s)

Versus

1. Sri Chandan Mondal s/o Sri Mohan Mondal r/o Vill – Gopalnagar, P.O. – Dabra, P.S. Pandua, Dist. – Hooghly, West Bengal

2. Mahindra & Mahindra Ltd. Through Mr. Abhishek Chand, Authorised Representative Mahindra Towers Worli Road, Mumbai – 400018 3. Hooghly Co-operative Agri & Rural Development Bank Ltd. Pandua, Dist – Hooghly West Bengal

… Respondent(s)

BEFORE

PRESIDING MEMBER

RP No. 4146 / 2012

For the Petitioner(s) Ms. Aparna Mattoo, Advocate

For the Respondent-1 Mr. Sanjoy Kumar Ghosh, Advocate

For Respondent 2 – 4 Mr. Avrojyoti Chatterjee, Advocate

Mr. Mithun Chandola, Advocate

For Respondent-5 Exparte

RP No. 3580 / 2012

For the Petitioner(s) Mr. Avrojyoti Chatterjee, Advocate

Mr. Mithun Chandola, Advocate

For the Respondent-1 Mr. Sanjoy Kumar Ghosh, Advocate

For Respondent 2 Ms. Aparna Mattoo, Advocate

For Respondent 3 Exparte

PRONOUNCED ON : 19 TH SEPTEMBER 2013 O R D E R

Protection Act, 1986 against the impugned order dated 06.07.2012, passed by the West

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

Commission’) in FA No. 218/2011, “Sri Chandan Mondal versus Rudra Automobiles

Pvt. Ltd. & Ors.” by which, while allowing appeal, the order dated 07.03.2011 passed by the District Consumer Disputes Redressal Forum, Hooghly, dismissing the consumer complaint no. 139 of 2008 filed by respondent no. 1/complainant was set aside. This single order shall dispose of both these revision petitions and a copy of the same be placed on each file.

2. Brief facts of the case are that the complainant/respondent no. 1, Sri Chandan Mondal and another, purchased one Mahindra Tractor known as “Bhumi Putra” Model No. 47501 REV-3371 in the month of December 2006 from the petitioner, Rudra Automobiles Pvt. Ltd. GolapBag, P.O. & District Burdwan after raising a loan from the Hooghly Co-operative Agri and Rural Development Bank Ltd., Pandua, District Hooghly. The other petitioner, Mahindra and Mahindra Ltd., are the manufacturers of the said tractor. It has been alleged in the complaint filed by Sri Chandon Mondal that just after 15 days of the purchase of the vehicle, he started facing problems with the same. It was found that the water pump system of the vehicle had broke down without any reason, fan was also not operating and then the battery allotted at the time of purchase, was found to be not functioning. The tractor had to be shut down for many days and the complainant incurred heavy losses. The complainant lodged a complaint with the office of OP, Rudra Automobiles Pvt. Ltd. Asansol, District Burdwan. The water system was repaired by the OP, but the battery was not replaced. Again, after a few months, the pump nozzle element was badly damaged and the vehicle was taken to the OP who detained the same for 7 days in their factory, but the repair work done was not to the full satisfaction of the complainant. Thereafter, the engine started giving problems and there was frequent percolation of water inside the vehicle, resulting in non-functioning of the vehicle. All these problems faced by the complainant were within the warranty period of the vehicle. The complainant had to hire another tractor for his agricultural operations and moreover, he had to pay the instalments of loan amount raised from the bank. The complainant requested that the OPs should be asked to replace the tractor or to refund the purchase amount to the complainant and also compensate him for mental agony and harassment. The District Forum vide their order dated 07.03.2011 dismissed the complaint, saying that there was no credible and adequate evidence for manufacturing defect in the vehicle. An appeal was filed against the said order of the District Forum before the State Commission. The State Commission passed the following order:- “That the respondents shall take immediate steps to take the vehicle to their workshop at their cost and shall thoroughly examine the vehicle for rectification of any defect or fault, manufacturing defect or whatever so that the vehicle becomes operational to the perfect satisfaction of the Appellant within 45 days from the date of this order. The appeal succeeds and is allowed on contest. Further, a sum of Rs.1,00,000/- shall be payable within 45 days from the date of this order for the mental agony and actual loss suffered so far by the idleness of the vehicle, failing which an interest @ 8% per annum shall be charged on the said amount till the date of realisation.”

It is against this order that the present revision petition has been filed.

3. Heard the learned counsel for the parties and examined the material on record.

4. It has been stated by the learned counsel for Rudra Automobiles Pvt. Ltd. that they had not shown any deficiency in service or negligence in the matter, because they had attended to the defects pointed out by the complainant from time to time and removed those defects to the satisfaction of the complainant. He also stated that they have produced sufficient evidence before the District Forum, saying that they had repaired the vehicle many times to the satisfaction of the complainant. The District Forum has also observed that the petitioners Rudra Automobiles were not found to be negligent in providing their services from the face of record.

5. Learned counsel for Mahindra & Mahindra Ltd. stated that they there was no evidence of any manufacturing defect in the said vehicle. Whatever defects had been pointed out from time to time, always related to problems in the running of the vehicle only. The job cards made by M/s. Rudra Automobiles Pvt. Ltd. from time to time also indicated that the defects as pointed out by the complainant were removed from time to time, to the satisfaction of the complainant and there was no evidence of any manufacturing defect. In case, the complainant felt that there was any manufacturing defect in the vehicle, the matter should have been referred for seeking an expert opinion to establish this version.

6. Learned counsel invited our attention to the order passed by this Commission in “Sushila Automobiles Pvt. Ltd. versus Dr. BirendraNarain Prasad” [RP No. 1652/2006 decided on 07.05.2010] in which it was held that the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert that the vehicle suffered from inherent manufacturing defect.

7. In “M/s. Sydney & Lydon Realtors & Associates versus M/s. Goa Motors Pvt. Ltd.

[Revision Petition No. 3220 of 2012 decided on 25.09.2012]”, the National Commission have taken a similar view. The orders passed by the Hon’ble Apex Court in many other cases have been relied upon by them, while deciding this case.

8. Learned counsel for the respondent no. 1/complainant vehemently argued that the vehicle, in question, started showing defects only 15 days after its purchase and had to be taken to M/s. Rudra Automobiles Pvt. Ltd. for repairs. The very fact that the vehicle developed problems many a time and had to be taken for repairs, shows it clearly that it is a defective vehicle. As a consequence, the complainant who was a buyer had suffered very badly. He had to hire another tractor for his agricultural operations. Moreover, the order by which the State Commission had ordered to examine the vehicle thoroughly for rectification of any defect or fault or manufacturing defect or whatsoever, was perfectly valid, because it was the duty of the petitioner to repair the vehicle within the period of warranty. The learned counsel further stated that at the moment, the tractor was lying idle, as it could not be used till the defects were removed. Referring to the revision petition filed by M/s. Mahindra & Mahindra, learned counsel for the respondent/complainant stated that the said petitioner never appeared before the District Forum and they did not file any document or written version in their support. Before the State Commission also, they had not filed any reply.

9. Learned counsel invited our attention to a number of cases decided by this

Commission in support of his arguments.

10. In “Abhaya Kumar Panda versus M/s. Bajaj Auto Limited” [First Appeal No. 83 and

90 of 1991 decided on 10.12.1991], the National Commission held that when the vehicle suffered from major manufacturing defect, it should have been replaced by the manufacturer.

11. In “Mahindra & Mahindra Ltd. versus Vasantrao Dagaji Patil and Anr.” [First Appeal

No. 36 of 1996 decided on 24.05.2002], it has been held that there was deficiency in service, because the new vehicle was having defects.

12. In “Shankar Automobile versus Deepak Kumar Singh” [I (2009) CPJ 80 (NC)], it has been held that when the vehicle was found defective, immediately after purchase, the dealer cannot escape liability towards manufacturing defect.

13. In “R. Raja Rao versus Mysore Auto Agencies” [II (2006) CPJ 64 (NC)], it has been held that when trouble started within few days of purchase of vehicle and persisted even after several repairs, the OPs/Dealer and Manufacturer were jointly and severally liable to refund cost of the defective vehicle with interest @12% p.a.

14. Learned counsel argued that the order passed by the State Commission is based on correct appreciation of the facts and circumstances on record and should be upheld.

15. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. It is clearly borne out from the facts on record that the tractor in question did suffer from many defects, ever since the date of purchase and it had to be carried to the dealer for repairs many times. Copies of job-cards placed on record are ample evidence of proof that the vehicle did have defects and the complainant was put to lot of hardship on account of that. It cannot be stated by any stretch of imagination that the vehicle was taken for repairs without any problem of any kind. The definition of ‘defect’ as given in the Consumer Protection Act,

1986 is hereby reproduced below:- “ "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods;”

16. The manufacturer of the vehicle M/s. Mahindra and Mahindra tried to explain that there was no defect in the vehicle and there is no opinion of any expert to establish any manufacturing defect. Looking at the definition of ‘defect’ in the Consumer Protection

Act, 1986 and the facts and circumstances of the case, it is very clearly proved that the vehicle, in question, was a defective vehicle. It shall be futile to go into minute/extreme technicalities in order to establish whether the defects pointed out qualified to be classified as manufacturing defect or not. It is a hard fact that the consumer who is a farmer, was put to a lot of mental agony, harassment by the purchase of the said defective vehicle and even now, it has been stated that the vehicle is lying idle and a lot of time has already been consumed in litigation between the parties.

17. It has been stated very clearly in a number of orders pronounced by the National

Commission, as pointed out by the respondent that the liability lies on the OP to remove the defects in the vehicle to the satisfaction of the consumer/complainant. It may also be stated here that it has been acknowledged by the Hon’ble Apex Court in several

Judgements that the Consumer Protection Act, 1986 is a benevolent legislation and its sole aim is to secure social purpose to promote the facilities in a comprehensive manner for settlement of issues involved in the consumer complaints and to assess the damage. Hon’ble Apex Court have clearly stated in the case “Lucknow Development

Authority versus M.K. Gupta as reported in [1994 (1) SCC 243]” as under:- “ The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer, which he faces against powerful business, described as, ‘a network of rackets’ or a society in which, ‘producers have secured power’ to ‘rob the rest’ and the might of public bodies which are degenerating into store house of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked.”

18. As stated earlier by the impugned order, the State Commission have directed the respondents/OPs to take immediate steps to take the vehicle to their workshop at their cost and to thoroughly examine the vehicle for rectification of any defect or fault, manufacturing defect or whatsoever, so that the vehicle becomes operational to the perfect satisfaction of the appellant/complainant. We do not find anything wrong with this order, as it is the bound duty of the OPs to take care of the interest of the consumer by removing the defects in the vehicle. The State Commission has also allowed a sum of Rs.1,00,000/- as compensation for mental agony and loss suffered by the consumer by the idleness of the vehicle. We do not find any fault with this part of the order as well.

19. Based on the discussion above, when it is made out that the tractor in question is a ‘defective’ vehicle, whether it is a manufacturing defect in the strict technical sense or not, it becomes the paramount duty of the opposite parties to attend to this aspect and ensure that the defects are removed and the vehicle is delivered in a perfectly fit condition to the consumer alongwith a certificate of fitness under the signatures of a top technical officer of the manufacturer not below the rank of General Manager. Both the opposite parties are, therefore, directed to take necessary steps to make the vehicle defect free and then deliver to the complainant/respondent alongwith a certificate duly signed by a technical authority as stated above within a period of two months. The matter be listed on 17.12.2013 for compliance and for further hearing.

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

MEMBER RS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSON NEW DELHI

REVISION PETITION NO. 4150 OF 2007 (From the order dated 02.08.2007 in Appeal No.1499/2006 of the Rajasthan Consumer Disputes Redressal Commission, Jaipur)

1. Life Insurance Corporation of India Branch Office Bharatpur Distt. Bharatpur (Rajasthan)

2. Life Insurance Corporation of India Divisional Office “Jeevan Prakash”, Ranade Marg, P.B. No. 2, Ajmer – 305008, (Rajasthan)

3. Life Insurance Corporation of India Northern Zonal Office, Jeevan Bharti 124 Connaught Circus, New Delhi – 110001 All through Mr. J.C. Ahuja Asstt. Secretary (L&HPF) … Petitioners/Opposite Parties (OP) Versus

1. Smt. Ram Sakhi W/o Late Shri Mahaveer Singh R/o Village Kelluri, Post Ronija Tehsil Nadbai, Distt. Bharatpur, (Rajasthan) 2. Government of Rajasthan Through District Collector, Bharatpur, Rajasthan 3. The Chief Medical & Health Officer Medical and Health Department Government of Rajasthan Sawaimadhopur, Rajasthan … Respondents/Complainants

BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. Mohinder Singh, Advocate For the Respondent No.1 : Mr. Ritesh Agrawal, Advocate For the Respondent Nos.2&3: Ex- parte

O R D E R

In Revision Petition No. 4150/07 – Life Insurance Corporation of India & Ors. Vs. Smt. Ram Sakhi & Ors. arguments were heard on 01.08.2013 by our Bench. Judgment was dictated by Hon’ble Presiding Member and sent for approval to Hon’ble Dr. B.C. Gupta, Member. Hon’ble Dr. B.C. Gupta sent dissenting judgment. As Members of the Bench differ in their opinion, the matter may be placed before Hon’ble President, NCDRC under Section 20 (i) (iii) of the Consumer Protection Act for appropriate directions.

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

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER COMPLAINT NO.266 OF 2013

Devendra Kumar Goel S/O Late Shri Daya Prakash Goel 4051, Joy Apartments Plot No.2, Sector -2 Dwarka New Delhi – 110075

… Complainant

Versus Commissioner (Housing) UP Housing and Development Board U.P. Avas Evam Vikas Parishad 104, Mahatma Gandhi Marg Lucknow – 226001 Uttar Pradesh

... Opposite Party

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

PRONOUNCED ON : 20 th SEPTEMBER, 2013

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

Shri Devendra Kumar Goel has filed this consumer complaint on 26th August, 2013 with the following prayers:

1. Order restoration of Plot No. 15/34 in Vasundhra Yojna, Ghaziabad by withdrawing the order of cancellation.

2. Order grant of bank interest on money deposited so as to adjust against the cost of the plot.

3. Since the plot allotted to me is two side open corner plot on the main road of Vasundhara Yojana which is worth Rs.2.5 crores as per present market value. Therefore, the plot of similar size and location be allotted to me on the strength of merit of my case.

2. Briefly stated allegations in the complaint are that Late Shri Daya Prakash Goel, father of the petitioner registered with the OP for allotment of plot in Vasundhra Yojna on 14.02.1985 by depositing registration fee of Rs.5000/-. After his death, the registration was transferred in the name of the complainant on 17.09.1991 and he was allotted plot no. 15/34 measuring 175.35 sq. mtr in the aforesaid scheme on 07.12.1991 at the cost of Rs.2,31,462/-. In view of the heavy consideration amount, the complainant vide letter dated 16.03.1992 requested the OP to relax the payment condition by allowing the complainant to pay the consideration amount in easy instalments spread over the years. The Commissioner, UP Housing and Development Board vide order dated 12.02.1993 cancelled the allotment of the plot and forfeited Rs.40,951/- from the amount already paid. Thereafter, the complainant approached various officers of the Housing Development Board but no suitable reply was given except that his allotment was cancelled and deposited money was forfeited because of default. It is alleged that petitioner made representations to various authorities but in vain. Claiming this to be deficiency in service, the complainant has filed this complaint alleging that the complainant has come to know that vide order dated 27.07.1989 in the matter of U.P.Avas Vikas Parishad Vs. Garima Shukla & Ors. andorder dated 30.01.1996 in the matter of Lucknow Vikas Pradhikaran Vs. Devender Kumar, the National Commission has granted relief to the complainants in similar matters.

3. On bare perusal of the complaint, it is evident that the allotment of the petitioner was cancelled way back in February 1993 and the complaint has been filed after a period of more than 20 years.

4. Section 24A of the Consumer Protection Act, 1986, deals with the limitation for filing the complaints and it reads thus:

“24A Limitation period. - (l) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.”

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1) if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period;

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be records its reasons for condoning such delay”.

5. Reading of the above would show that period of limitation for filing of original complaint before the National Commission, State Commission or the District Forum is two years and no complaint beyond the said period of limitation can be entertained unless the National Commission, State Commission or the District Forum records its reason for condoning the delay in filing of the complaint. In the instant case, admittedly the complaint has been filed after inordinate delay of more than 20 years from the date on which cause of action accrued i.e. the date of cancellation of the allotment and forfeiture of the deposit. The complainant has neither filed the application for condonation of delay nor he has given any explanation for the delay in the body of the complaint nor he has been able to orally explain the reason for delay in filing of complaint. Therefore, in our view, the complaint is hopelessly barred by limitation. It is accordingly dismissed with no order as to costs.

…………………..………..

(AJIT BHARIHOKE, J.)

PRESIDING MEMBER

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

Malwa Automobiles Pvt. Ltd. NH-1, 119/4, K.M. Stone, G.T. Road, Karnal

... Petitioner

Versus

1. Sunanda Sangwan d/o Sh. Chander Mani r/o House No. 447, Sector – 13, Urban Estate, Kurukshetra

2. Tata Motors Ltd. Regional Office at: Jeevan Tara Building 5, Sansad Marg, New Delhi.

… Respondent(s)

M/s. Tata Motors Ltd. Lala Bahadur Shashtri Marg, Wagle Estate, Thane – 400604 (Maharashtra)

... Petitioner

Versus

1. Sunanda Sangwan d/o Sh. Chander Mani r/o House No. 447, Sector – 13, Urban Estate, Kurukshetra

2. Malwa Automobiles Pvt. Ltd. NH-1, 119/4, K.M. Stone, Karnal through its Managing Director/Manager (authorized dealer of Tata Motors Ltd.,) Mumbai

… Respondent(s)

BEFORE

PRESIDING MEMBER

In RP No. 7/2013 For the Petitioner : Mr. Sunil Kumar Agarwal, Advocate For the Respondent No. 1 : Mr. Shish Pal Laler, Advocate

For the Respondent No. 2 : Mr. Aditya Narain, Advocate

Mr. Davesh Bhatia, Advocate

Mr. Shashank Bhushan, Advocate

In RP No. 297/2013

For the Petitioner : Mr. Aditya Narain, Advocate

Mr. Davesh Bhatia, Advocate

Mr. Shashank Bhushan, Advocate For the Respondent No. 1 : Mr. Shish Pal Laler, Advocate

For the Respondent No. 2 : Mr. Sunil Kumar Agarwal, Advocate

These two revision petitions have been filed under section 21(b) of the Consumer

Protection Act, 1986 against the impugned order dated 01.10.2012 passed by the

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

Commission’) in FA No. 1704 & 1731 of 2011, vide which while dismissing both the appeals filed by the petitioners, the order dated 28.10.2011 passed by District

Consumer Disputes Redressal Forum, Karnal in consumer complaint no. 822/2010, allowing the said complaint was upheld. The consumer complaint in question was filed by Sunanda Sangwan, who is respondent no. 1 in both the petitions. The petitioner Malwa Automobiles Pvt. Ltd. is the authorised dealer of Tata Motors Ltd. and is OP No. 1 in the complaint. In RP No. 297/2013, the petitioner is Tata Motors Ltd., which is manufacturer of the vehicle in question and has been made OP No. 2 in the complaint. This single order shall dispose of both the revision petitions and a copy of the same be kept on each file.

2. Brief facts of the case are that the complainant, who is a Professor in the OP Jindal

University, Sonepat, purchased a Tata Indigo CS LXI car from OP No.

1 Malwa Automobiles Pvt. Ltd. on 14.09.2010 for a consideration of Rs.4,77,900/. As alleged, the car started creating abnormal sound from the engine, within two days of purchase. A telephonic complaint was registered with the sales person Sanjeev Kumar of OP No. 1. The complainant, thereafter, took the car to Tayal Motors, authorised dealer of OP No. 2 at Faridabad on 04.10.2010, where service was done and the

Engineers assured that the car will run smoothly. However, the defect of abnormal noise in the engine continued and the engine also emitted bad smell, like smoke coming out of burnt rubber. The factum of abnormal noise has been mentioned in the job cards also. The complainant obtained second opinion from Markandeshwar Service Garage at Pipli, Kurukshetra, where she was told that the vehicle suffered from manufacturing defect, which could not be removed by repairs. Further, when the complainant was going to attend to her job, the car got jammed on the road in the way. It was taken to

OP No. 1 on 14.10.2010 and it remained in their workshop for three days. The car was again brought to OP No. 1 on 19.10.2010, when it was sent back after test drive only. Again the car was taken to OP No. 1 on 20th October and the job cards do mention about the problems in the running of the car. The defects in the car could not be removed by the Engineers of OP No. 1, despite many requests. OP No. 1 refused to replace the car or refund the price of the same. The complainant requested that the car be replaced with a new car or in the alternative, an amount of Rs.4,77,900/- be paid to her along with interest @12% p.a. from the date of the purchase of the car till realisation, and in addition, demanded a sum of Rs. 2 lakh for mental harassment etc. and Rs.22,000/- as litigation expenses. The District Forum vide their order dated

28.10.2011 came to the conclusion that there was manufacturing defect in the vehicle in question. They ordered that the cost of the vehicle, amounting to Rs.4,77,900/- should be refunded to the complainant along with interest @9% p.a. from the date of filing of the complaint, i.e., 29.10.2010 till realisation. Two appeals were preferred against this order, one by the dealer, Malwa Automobiles Ltd. and the other by the manufacturer, i.e., Tata Motors Ltd. The State Commission vide impugned order dated 1.10.2012 dismissed both the appeals, upholding that the deficiency in service on the part of the

OPs stood proved. It is against this order that the present revision petitions have been made by the OPs.

3. At the time of hearing before us, learned counsel for the petitioner Malwa Automobiles Pvt. Ltd. submitted that the complainant never complained of any manufacturing defect in the car till the date of her filing complaint before the District Forum. The documents on record produced by the complainant showed that on 04.10.2010, within 20 days of purchase of car, the vehicle had travelled

2570 kms. The car had travelled 3258 km within 30 days and 4395 km within one month and 7 days of purchase. The complaint made after running of the car of

2570 kms related to adjustment of timing belt tensioner and fuel filters. After running

4395 kms, there were complaints relating to noise and were made with the intention of leaving the car in the workshop of the petitioner. It was unfair on the part of the complainant to write on the job card on 20.10.2010, that it was her 7th visit in one month. She refused to take the vehicle back, although a request was made by the petitioner to do so. Regarding the second opinion taken from Markandeshwar Service

Garage at Pipli, Kurukshetra, the learned counsel stated that this opinion was taken after six months. Referring to the report of Er. J.K. Sharma, Automobile Engineer,

Surveyor & Loss Assessor, learned counsel stated that it was not clear why it took him one month to prepare the report after inspection.

4. The learned counsel for the petitioner Tata Motors Ltd. stated that there was no manufacturing defect in the vehicle, as the vehicle had covered long distances during the first few days of its purchase. The learned counsel has drawn our attention to condition no. 2 of the terms and conditions of the warranty issued by Tata Motors that their obligation under the warranty was limited to repairing or replacing, free of charge, such parts of the car, which in their opinion were defective. Learned counsel placed reliance on the orders passed by the Hon’bleSupreme Court in “Maruti Udyog Ltd. versus Susheel Kumar Gabgotra & Anr.” [(2006) 4 SCC 644], saying that the duty of the petitioner was to replace or repair the defective parts only. Learned counsel also referred to the order passed by the National Commission on 07.08.2012 in “Tata Motors

Limited versus Navin Nishchal” [RP No. 2207 of 2007 decided on 07.08.2012], in which same view had been taken by the National Commission. Learned counsel further placed reliance on the following cases in support of his arguments:-

(i) “Manager, Premanchal Motors Pvt. Ltd. and Punjab Tractors Ltd.

versus Ramdas s/o Shri Khayaliram and Ors.” [II (2009) CPJ 98 (NC)]

(ii) “Tata Motors Ltd. versus Ashok Kesharilal Saraf”,

[FA No. 524 of 2005 decided on 12.01.2009]

(iii) “Tata Engineering & Locomotive Co. Ltd.

& Ors. versus Bachchi Ram Dangwal & Anr.” [II (2009) CPJ 90 (NC)]

(iv) “Tata Motors Ltd. versus Shri Kushal Singh & Ors.” [RP No. 1153 of 2005 decided

on 21.08.2009]

(v) “Sushila Automobiles Pvt. Ltd. versus Dr. Birendra Narain Prasad & Ors.” [MANU /

CF / 0076 / 2010]

(vi) “Classic Automobiles versus Lila Nand Mishra & Anr.” [I (2010) CPJ 235 (NC)]

5. Learned counsel vehemently argued that there was no evidence of any manufacturing defect in the vehicle and they had no liability towards replacement of car or making refund to the complainant. Referring to the report of Er. J.K. Sharma,

Automobile Engineer, Surveyor & Loss Assessor, learned counsel stated that the vehicle had not been given even a test drive by the said engineer. A perusal of the order of the District Forum also shows that there was no manufacturing defect in the vehicle.

6. Learned counsel for the respondent based his arguments on the report of Er. J.K.

Sharma, Automobile Engineer, Surveyor & Loss Assessor, in which it had been stated that there were manufacturing defects in the vehicle and the said vehicle was not fit for an innocent buyer. It was not safe to drive this vehicle on busy roads and it could endanger the lives of the passengers and the passers-by. Learned counsel stated that the opposite party had allowed Er. J.K. Sharma, Automobile Engineer to inspect the vehicle and hence they could not challenge his report at this moment. The vehicle faced problem during the first month of purchase, showing thereby that there was an inherent defect in the vehicle at the time of purchase.

7. Learned counsel referred to the judgement passed by the Supreme Court in

“C.N. Anantharam versus Fiat India Ltd.” [2011 (84) ALR 253], in which it has been stated that if manufacturing defect was found in the vehicle by an expert, the petitioner is entitled to get the refund of the whole amount alongwith interest.

8. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. A perusal of the orders passed by the State Commission and District Forum reveals that they have placed reliance on the job cards dated 14.10.10 and 20.10.2010 made by the personnel of the OP, when the vehicle was brought to them with complaints of certain defects. It has been alleged by the complainant that the vehicle started creating abnormal noise from the engine within two days of the purchase. The job cards recorded on 14.10.2010 and 20.10.2010 contain the following entries:- “Job card dated 14.10.2010

Timing belt tensioner Renew (including timing) +idle bearing noise Fule filters cartridge Renew+ engine missing Exterior treatment – 3 M.

Job card dated 20.10.2010

Compression check + Roof light CHK Gear linkage lubricate Tighten + gear liver Noise. Replace door striker Adjust + diggi noise Check AC system and determine Fault + blower fan noise Disassemble/assemble front seat sliding Mechanism with parts+ Rear seat noise Washing & vacuuming Engine Oil and filter Change.

9. Further, there is a report submitted by Er. J.K. Sharma, Automobile Engineer,

Surveyor & Loss Assessor dated 15.5.2011, in which the detailed observations and opinion has been given as follows:- “ This report was prepared after inspecting the vehicle in the workshop of M/s. Malwa Automobiles in the presence of both the parties and discussion with them and also making a test drive of the vehicle.

1. The test were made at various speeds on a plain road to check the Smoke Emission, Engine Noise and Engine Vibration.

2. The vehicle was taken on G. T. Road for road test and the supervisor Mr. Amit Pawar drove the vehicle. The vehicle was started and the idle running was checked. The idle running was not proper and there was excessive smoke and abnormal noise.

3. Tappet noise was detected at 3000 rpm while the vehicle was static. Tappet is either tight or loose and this may be the cause. 4. There was engine vibration that may be due to the fault in setting of electronic system particularly for ECU and electronically controlled Nozzle or there may be defect in sensor or in wiring.

5. High temperature was noted at speed of 80-85 km and the vehicle stopped. This may be due to engine problem and this is a manufacturing defect and it can lead to road accident endangering life of the passengers.

6. Axel noise during U turn from left side noise indicating the shaft is faulty.

7. A bluish smoke was noted and this may be due to less power of engine causing bluish smoke as noted by the buyer. Consumption of engine oil needs further diagnosis.

8. Gear box gives constant humming noise at various speeds. (Reported in the complaint)

9. The generation of power did not perform properly; hence the pickup was not proper. This may be due several manufacturing problems relating to the malfunction in fuel pump, nozzle, and controlling sensor or all of them. These are matters of further diagnosis.

10. The shifting of gears were not smooth (Requires further diagnoses)

11. Even it is a new vehicle but there was leakage of steering box and engine oil. 12. The body vibration in Tata Cars is very common but particularly in this case it may be due to abnormal engine vibration.

Conclusions 1. In consideration to the above mentioned observations which are of fundamental in nature, I am of the firm opinion that the performance of the tested vehicle was highly unsatisfactory and the said vehicle clearly malfunctions due to multiple reasons, and have defaults that may not be repairable, especially in the long run.

2. The manufacturing defects in the vehicle are present and the vehicle is not fit for an innocent buyer.

3. Even if seemingly repaired in the short term, these may cause serious harm to the car engine and body and the user overtime.

4. The manufacturing related defects present in the vehicle have the potential to seriously affect the life of the vehicle, and harm and endanger the lives of the passengers and of the passers-by. The vehicle is not be safe to be driven on busy roads and at best would require very frequent visitations to the automobile workshops. The report is being issued being an automobile engineer and having a long experience in automotive field. ”

10. At this stage, it shall be worthwhile to quote the definition of ‘defect’ as contained in the section 2(1)(f) of the Consumer Protection Act, 1986, which reads as follows:- “ "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods;”

11. The main argument taken on behalf of the petitioners is that there was no manufacturing defect in the vehicle and whatever defects were pointed out by the complainant, they were attended to and repaired from time to time and hence, they were not liable to replace the vehicle or to refund the price of the vehicle to the complainant. However, a perusal of the job-cards recorded by the technical personnel of the dealer, the report of the Er. J.K. Sharma, Automobile Engineer, Surveyor & Loss

Assessor and the definition of ‘defect’ as contained in the Consumer Protection Act,

1986 do indicate that it was a defective vehicle, although in the strict technical parlance, there could be two opinions whether the same could be called a manufacturing defect or not. The District Forum reached the conclusion that the complainant is entitled to refund of the whole cost of the vehicle, i.e., Rs.4,77,900/- along with interest @9% p.a. from the date of filing the complaint till realisation. This order was confirmed by the

State Commission in appeal. The vehicle has since been lying with the dealer because, according to the complainant, the dealer failed to remove the defects in the vehicle. Under these circumstances, it is absolutely clear that in order to provide justice to the consumer, the manufacturer and the dealer should either replace the vehicle or refund the cost of the vehicle to the complainant along with interest from the date of filing of the complaint, OR provide the vehicle in absolute ‘defect-free’ condition to the complainant, duly certified by an appropriate technical authority. In fact, in the circumstances of this case, it was the duty of the dealer and the manufacturer to play a pro-active role and remove the defects in the vehicle, leaving no element of ambiguity about its fitness from technical point of view. The basic spirit behind the enactment of a benevolent legislation like the Consumer Protection Act, 1986, involves better protection of the interests of consumers and the basic job given to the authorities set-up under the

Act is to provide speedy justice to the consumer and remove his helplessness vis-à-vis powerful business class, within the ambit of law. We are, therefore, inclined to give an opportunity to the dealer and the manufacturer, jointly and severally, to make attempt to remove the defects in the vehicle, make it ‘defect-free’ and have it certified from the technical personnel of the manufacturer himself, not below the rank of a General

Manager. This task may be taken in hand and accomplished within a period of two months from today; including the issuance of the necessary certificate. We, therefore, order accordingly in modification of the orders passed by the State Commission and the

District Forum.

12. Fix the case for submitting compliance report on 16.12.2013. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

(DR. B.C. GUPTA)

MEMBER RS/

Mr. C. Jayapal Reddy, S/o Shri Y. A. Chenna Reddy, R/o 6-3-609/14-1, Anand Nagar Colony, Khairatabad, Hyderabad - 500004

... Complainant Versus

1. Shri G. S. Rao, Managing Director, 1. Shri G. S. Rao, Managing Director, Secunderabad - 500003. 2. Dr. Padmini Valluri (Gynecologist), Yashoda Hospitals, Secunderabad 3. The Secretary (Health), Govt. of India, Ministry of Health & Family Welfare, C-Wing, Nirman Bhawan, New Delhi - 110001. 4. The Secretary, Medical Council of India, Pocket-14, Sector-8, Dwarka Phase-I, New Delhi - 110077. 5. The Deputy Secretary, Govt. of India, DAR Public Grievance Cell, 5th Floor, Sardar Patel Bhawan, Parliament Street, New Delhi - 110001.

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

For the Complainant : In person For the Opp. Parties : Ex-parte

Pronounced On 20 th September, 2013

Dr. Charles Clay, who performed the first hysterectomy in year 1843 in Manchester, UK, must be in distress. Today, his remarkable surgical invention, which has given hope & cure to millions of women, has turned in to a scandalous business. Hysterectomy is the most common non–pregnancy-related major surgery performed on women worldwide. The present complaint filed against allegations of medical negligence necessitates to discuss crucial issue of unscrupulous hysterectomies in India and worldwide.

1. The complainant seeks compensation for loss and damage which his wife claims to have sustained as a consequence of the alleged negligence of OPs 1 and 2 , while carrying out a total abdominal hysterectomy (removal of the uterus) and bilateral salpingo-oophorectomy , on 17/7/2010. It is also disputed by the complainant that Informed Consent was not taken in the course of this operation. 2. The complainant took his wife, Smt. C. Kusuma Reddy, aged about 36 years to the OP-2 Dr. Padmini in the month of July 2010, for her complaints of abdominal pain and menstrual disturbances and other complaints. Since birth of 1st child, in 2006 she was a known patient of OP, Dr. Padmini, and consults for her menstrual complaints, since the year 2009. The patient, Kusuma , was examined by OP and was diagnosed as a case of fibroid uterus with Endometriosis. She was advised treatment of Tab. Danogen -50 mg and Tab. Pyricontin 10mg for 30 days. Thereafter, on 13.07.2010, during the follow up visit, she was subjected for ultrasound scanning examination and advised the total abdominal Hysterectomy. The complainant contended that the operation was conducted on his wife, without the valid consent of his wife or himself. Due to abdominal pain, fear and disturbed status of mind, she could not give informed consent for the said operation; and the OP hospital took his signatures on the blank form. It was also stated that resistance of the complainant and without any serious problem, the OP –Dr. Padmini, has performed the total abdominal Hysterectomy with Bilateral Salpingo-Opherectomy with Adhesiolysis. The complainant has requested the management to provide information relating to operation theatre documents and copy of case sheet, but OPs turned a deaf ear to it. Even after the operation, Dr. Padmini did not inform anything about the said operation of hysterectomy. OP has removed both the fallopian tubes and ovaries unnecessarily, despite alternative methods to treat such patient, and to remove the fibroids, were available. The complainant had only one child and he wanted to have a second child by IVF or test tube baby method with surrogate mother, but as his wife lost her ovaries after operation by OP, he had to search for an ovum donor and incur heavy expenditure. Therefore, with these allegations and due to negligent attitude of the OP, his young wife lost her reproductive organs, therefore, no chance of second child also. His wife had to suffer lot of serious side effects due to early hysterectomy and removal of ovaries. The complainant contended that he had worked in Nigeria and intended to travel to New Zealand; also he had plans to settle in European or Western Country, in which cost of living and medical expenditure will be higher, hence he is seeking heavy compensation from OP. Therefore, the complainant filed this complaint with different prayers, for directions and relief as stated in the complaint.

The main prayer against OPs 1 and 2 is as under:-

To declare deficiency of service by OP No. 1 and OP No. 2 award compensation Rs. 1,25,00,000/- (one crore twenty five lacs) and for pain and suffering Rs. 25,00,000 (twenty five lacs) and as prayed in the complaint with interest from the date of Notice dated 16-01-2012 with interest at 25% P.A. or pass any other order/s or direction in the interest of justice.”

3. Notice upon OPs was served by registered post, but they have not filed any written version within 45 days. Therefore, as per provision of Section 13 of the Consumer Protection Act 1986 (in short CP Act) OPs right to file the written version is forfeited.

4. Case was called on 5/9/2013; no body appeared on behalf of OPs; they remained absent. The service of notice upon OPs is held sufficient. The complainant appeared in person and argued vehemently. He reiterated the facts of this case, hospitalization details and brought our attention towards several authorities of Hon’ble apex court. Hence, we proceeded for exparte order. The points of our consideration are:-

i) Whether the complainant proved his case of alleged negligence on the part of the doctor?

ii) Whether the doctor acted cautiously in accordance to the standard medical practice?

iii) If there is medical negligence then what is the liability of opposite parties?

5. We have perused the affidavit evidence of complainant and the available medical records of OP hospital. It is clear that Smt. C. Kusuma Reddy, wife of complainant is 36 yrs. old, and was under treatment of OP Dr. Padmini, for menstrual disturbances, from 2009 and in the month of July 2010, after investigations she was diagnosed as a case of uterine fibroid with Endometriosis. She was treated by Tab. Danogen -50 mg and Tab. Pyricontin 10mg for 30 days.

6. We find that before filing this complaint the complainant had approached several authorities like NHRC, SHRC, Medical Council of India, Secretary, H & FW, and Government of India for redressal of his grievances against OPs. Thereafter, complainant served legal notice upon the OP 1 and 2, on 16/1/2012 and reminder on 29/02/2012; but the OPs turned deaf ears to legal notices on both occasions.

7. We have perused the medical record like Follow-up visit slip of OP hospital written by Dr. Padmini on 13/7/2010, which reads as follows:

 Provisional Diagnosis : Degenerating Fibroid with ?Endometriosis.  She was investigated by TVS Scan (Trans vaginal scan); blood for CA-125 and other routine investigations.

 “will require TAH/BSOPH and urgent admission” .

8. As per advise of OP-2, a High Resolution Real Time Ultrasonography (USG) of Pelvis was performed at Nitya Diagnostic Centre, on 14/7/2010; the report is reproduced as follows;

Trans-vaginal Scan: Uterus: 134 x 91 x 85mm – Increase in size. Antevert Evidence of large anterior wall fibroid of 87 x 62mm Endometrial echo 12.5mm, thick. Rt. Ovary: 41 x 82mm - Increase in size with altered echotexture. Lt Ovary: 107 x 82mm – Increase in size with mixed echoic lesion showing cystic and solid area measure 61 x 45mm. Color Doppler show increase in vascularity in both ovaries. Free fluid in pouch of Douglas.

Conclusion : U S findings are suggestive of Anteverted bulky uterus with large anterior wall fibroid and thick endometrium. Bulky Rt ovary with altered echo texture, enlarged Lt ovary with mixed echoic lesion showing cystic & solid areas and increased vascularity in both ovaries on color Doppler-----? Neoplastic

9. Observations on Discharge Summary of Mrs. Kusuma Reddy C/111046 dated 23/7/2010 issued by Department of Gynecology of OP hospital, reads as follows:

The Final Diagnosis as “ Adenomyosis with Polyp with DUB with left ovarian cyst.”

On 19/7/2010 “Total Abdominal Hysterectomy+ Bilateral Salpino-oopheraectomy+ Adhesiolysis surgery was performed under Spinal anesthesia. It also mentions several blood investigations of Pre –operative profile and Thyroid profile which are within normal limits . The specific assay of CA-125 vale is 339.5 U/ml. Ovarian fluid cytology was insignificant.

10 .We have carefully examined the hospital record on file, under the heading title as “The Summery of Hospital Course”, the relevant portion, of which reads as follows:

Details of surgery : “ Total Abdominal Hysterectomy + Bilateral Salpino- oopheraectomy+ Adhesiolysis done under Spinal anesthesia.

O.T. Findings: (Operation Theatre ) Uterus bulky with multiple fibroids – 25 x 15 cms Cervix – Normal Ovaries –Left – large chocolate cyst – 20 x 20 cms., Right – Normal Fallopian tubes and Adnexa – Normal

11. The main crux of this case is the opinion of pathologist i.e. final diagnosis; who has examined the surgical specimen grossly and microscopically. Hence, the Surgical Pathology report 3501/HP/2010 (in short HPE report), dated 24/7/2010 play a vital role in deciding this complaint. The HPE is reported by Pathologist of Department of Laboratory medicine of OP-1 hospital, which runs as follows:

Lab No. 3501/HP/2010 (in short HPE report) dated 24/7/2010

NATURE OF SPECIMEN :

Total abdominal hysterectomy with Bilateral salphingo-oopherectomy.

GROSS:

Received a specimen of Total abdominal hysterectomy with Bilateral salphingo – oopherectomy. Uterus with cervix measures 15 x 9 x 8 cm in size. External surface shows bosselated areas. On cutting open endometrial cavity is fleshy. The endometrium and myometrium measures 0.7 and 2 cm, in thickness,respectively. Myometrium shows gross evidence of Adenomyosis. Myometrium also shows two cystically dilated congested areas.

Right ovary measures 4 x 3 x 2 cm in size. On cut section shows a corpus luteal cyst . Right fallopian tube measures 7 cm in length. Cut section is grossly unremarkable.

Left ovary measures 7.5 x 4 x 2 cm in size. External surface is congested and shows focal haemorrhagic areas. On cutting open, it shows a large cyst, measuring 6 x 4 cm, in size. Inner wall shows haemorrhagic and congested areas.

Sections:

I. Endomyometrium.

II. Cervix and isthmus.

III. Right Ovary with right fallopian tube.

IV. Left ovary with left fallopian tube.

MICROSCOPIC EXAMINATION:

- Multiple sections studied from the uterus shows endometrium with secretory changes.

- Extensive foci of Adenomyosis are noted in the myometrium.

- Cervix and isthmus are unremarkable.

- Right ovary shows a haemorrhagic corpus luteal cyst.

- Multiple sections studied from the left ovarian cyst is lined by a single layer of columnar epithelium. Underlying strauma is fibrous and shows areas of haemmorhage and hemosiderin laden macrophages. Few foci of endometriosis are also noted.

- Both fallopian tubes are unremarkable.

IMPRESSION:

- Adenomyosis of the uterus.

- Benign ovarian cyst, Endometriotic type, Left ovary. .

12. On careful analysis of reports in paras 8,9 and 10 above , we have noticed gross of discrepancies in the USG report, Operation Theatre(OT) findings and the Gross Findings of specimen in Surgical Pathology (HPE) report. The USG report mentions about anterior wall fibroid measuring 87x62 mm, while the OT findings mentioned as “Bulky uterus with multiple Fibroids of size 25x15 cm”, i.e 250x150 mm..! but in HPE report , the Gross specimen did not mention single word about presence of any fibroid and also microscopically, there was no evidence of leiomyoma i.e. fibroid. Hence, there is no correlation between their clinical, diagnostic and operative findings.

13 . Also it very pertinent to note that the provisional diagnosis of OP was degenerating fibroid with Endometriosis. The USG findings confirms “the Right ovary normal; only single fibroid” . Therefore, we are in doubt that why OP has not tried the alternative line of conservative treatment in this patient? What necessitated the OP to perform pan hysterectomy ( Removal of uterus with both ovaries)? Instead of removing one ovary OP would have preserved one ovary, at least. It tantamount the deliberate attempt and therapeutic misadventure in this young woman of 36 yrs of age, who suffers from early menopausal symptoms and need lifelong hormonal therapy.

14. To know the adverse effects hysterectomy with removal of both the ovaries before age of 40 yrs;we have referred the standard medical text books namelyTeLinde’s Operative Gynecology 10th edition, Jeffcot’s Text

book of Gynaecology, Shaws’s Text book of Gynaecology 15th edition, Sabiston Textbook Of Surgery. Also perused research articles on this subject published in National and International medical journals.

15. Even after viewing the evidence in a light most favorable to complainant, the OP, Dr. Padmini, not only lacked consent, but removed both the ovaries and tubes in circumstances that were neither pathologically necessary nor reasonably incidental to the surgery contemplated. An ovary is of distinct value to the female patient—one that cannot be determined by a physician without, at a minimum, an express dialogue with that patient regarding the possibility of its removal and its side effects.

The starting point is of course, the well-known dictum of Lord President Clyde in Hunter v Hanley 1955 SC 200 at 206. Since the present case is based upon an allegation of deviation from ordinary professional practice, it is worth quoting the relevant passage: "To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course, the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on the pursuer to establish these three facts, and without all three, his case will fail."

16. We feel necessary to discuss about “What is the valid consent ?”

Consent is “not a ‘one-off’ event of signatures on paper” and not a submission of the patient to a particular treatment but rather a process of communication. It is then perceived as a proactive process empowering the patient to consciously decide on what s/he considers best. Thus, consent is “a process of communication requiring the fulfilment of certain established elements, like competence, sufficient disclosure, understanding and volunteering”. The ICMR guidelines acknowledge the patient’s consent as a necessary prerequisite to the medical process. However, consent is not systematically required as it is formulated in the case of redesign of treatment,though, with the existing formulation, the achievement of the written consent is misguiding and may ultimately allow the practitioner to override the patient’s opinion.

The doctrine of informed consent finds its common law roots in the landmark decision of Justice Cardozo in Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914), in which he wrote:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.

17. MEDICAL ETHICS - NEED FOR HYSTERECTOMY?.

In our country, few studies were conducted which showed;

A significant percentage of women

 had been referred to the private hospitals by the RMPs who will receive a “honorarium” as payment for their referral services  limited dialogue regarding their illness and different options were not offered to them  Undergone hysterectomies with no proper procedures and protocols without proper medical records and follow up.  Operated without valid consent as most of women were from the lower income group and illiterate also such patients had to incur debts in order to meet the surgery expenses.

18. Hysterectomy is the partial or full removal of uterus. Sometimes ovaries and fallopian tubes are also removed. Ethically doctor should suggest this operation, in case certain medical conditions or when all other treatment options fail. Scandalous hysterectomies, for petty monetary gains are well known and can cause disastrous consequences. Few years back, there was a report on increasing number of young women (some as young as 25 years), from Chennai ,undergoing hysterectomies in order to raise insurance claims (The Times of India, Nov 12, 2009). Indications for hysterectomies had been as frivolous as small fibroids causing excessive bleeding. The unfortunate story of a group of Lambada women in Kannaram village of Medak district, Andhra Pradesh is well known (The Times of India, July 31, 2010). Most women, even as young as 20 years in this village of 125 households have undergone hysterectomies for complaints of abdominal pain and whitish discharge. These women now suffer from results of surgical menopause. Few days back, National Press reported over 16,000 hysterectomies most of them “unnecessary”, done at private hospitals across Bihar during the last one year allegedly to “avail insurance benefit” under the Rashtriya Swasthya Bima Yojna (RSBY) (The Indian Express August 27, 2012). Under the RSBY, a BPL family can avail Rs.30,000/-, in case of hospitalization. Private hospitals in turn claimed reimbursement of Rs.12 crores , over last one year. 89% of hysterectomies were conducted, in private hospitals. Also, in Chhattisgarh about 7,000 uterus removal surgeries performed, over a period of 30 months, while a total of 11,000 hysterectomies were performed in Andhra Pradesh in two years.

19. Unnecessary hysterectomy results inability to have future conceptions, pregnancies& children. This can have disastrous medical, social and psychological consequences of those couples, who desire to have children. Removal of both ovaries, in young and middle aged women (below 40 yr.), leads to loss of female sex hormones, resulting in premature surgical menopause. Medical studies have established that it can lead to menopausal hot flushes, emotional labiality and osteoporosis (bone softening and propensity to bone fractures on minor trauma), heart diseases. Such women need long term follow up and hormone replacement therapy (HRT). They are also more likely to become depressed.

20. Uterus worth if it's valued as a hormone responsive sex organ that supports the bladder and bowel, and provides cardiovascular protection. Hysterectomy is rarely, a life saving surgery, and it is almost always performed on women, who were not given information about the consequences of the surgery. In law, this is considered lack of informed consent, a case that is almost impossible to win, because, women had no idea of the damaging effects of hysterectomy, when they signed the consent form. In fact, even women ask queries about the consequences of hysterectomy, and they are routinely lied to, by gynecologists. Of course, no amount of money can fix the damage that is done to a woman, when she is hysterectomized and castrated. However, don’t think that hysterectomized women don't deserve any compensation.

21. Such doctors are shrinking their Hippocratic Oath for money and removing the very essence of womanhood. Standard protocol demands that women have to be informed about the after-effects of such a surgery. Instead of following the normal protocols while examining women with complaints of abdominal pain, bleeding or vaginal discharge the doctors advice hysterectomies. However, experts believe that with advances in medical science, the operation need not be a necessity. Women can opt for oral remedies, hormonal injections, intra-uterine devices and endometrial ablation to get rid of problems like heavy bleeding and fibroids. Experts also suggest that doctors should resort to this operation only when all other treatment options fail.

Rashtriya Swastha Bima Yojana (National Health Insurance Scheme) has

become such a craze among private nursing homes and several thousand nursing homes in India took advantage of RSBY and cheated the women by carrying out

hysterectomies where they were not required. The Ministry of Health and Family Welfare, Govt of India and statutory body like MCI should initiate stringent action against such doctors. Data of hysterectomy surgeries should be made mandatory for each private and Govt Hospitals in the country. There is need to protect the innocent women in our country and stop such rampant unscrupulous hysterectomies. We believe that unless there is an effective, efficient and accountability of public health system such unethical practices will continue. 22. On the basis of foregoing discussions we are of considered view that OP 1 and 2 are negligent in all points of diagnosis and treatment. Further OPs did not bother to reply to the complainant’s legal notice and did not appear before this Commission, even after due service of notice. Hence, OP 1 and 2 are liable for deficiency in service and medical negligence. At this point, we do not want to consider the issue of complainant’s desire to settle in European country and have second child through surrogate mother etc., such submissions appear to be purely hypothetical and are meritless. But, it is important that the wife of complainant who anticipate lifelong unforeseen complications of hysterectomy and removal of her both ovaries; she deserves for just and proper compensation. Also she lost the chance of second baby.

Therefore, we pass the following order as ;

OP 1 and 2 are directed to pay Rs.10, 00,000/- (Ten lacs) jointly and severally to the complainant, along with interest @9% pa from the date of operation i.e., 17/07/2010. The entire amount should be paid, within three months otherwise it will carry further interest @ 9% pa, till its realization.

The copy of this order to be sent to the Secretary, Ministry of Health and Family welfare, Govt of India and Medical Council of India, New Delhi for the necessary steps to protect innocent women.

……………….…………… (DR.S.M. KANTIKAR) MEMBER Mss/12

REVISION PETITION No. 4047 of 2006 (From the order dated 12.10.2006 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad in Appeal no. 741 of 2006)

1. M/s H & R Johnson (India) Ltd. Rajehas, 3rd Floor, Coroner of Main Avenue V P Road, Santacruz (West) Mumbai 400054

2. The Director H & R Johnson (India) Ltd. Rajehas, 3rd Floor, Coroner of Main Avenue V P Road, Santacruz (West) Mumbai 400054

3. The Manager H & R Johnson (India) Ltd., Industrial Area no. 2 Dewas, Madhya Pradesh 4. The Sales Executive H & R Johnson (India) Ltd., 105, Hariprupa Complex Near City Gold Cinema Ashram Road. Ahmedabad 380009

Petitioners Versus

1. Lourdes Society Snehanjali Girls Hostel Opp. Megh Mayur Apartments Athwa Lines, Surat 2. M Soledad Rubie, Treasurer/ Secretary Opp. Megh Mayur Apartments Athwa Lines, Surat 3. K Sathapatyakamal Tiles 5/363 Buranpuri Bhagol, Surat Respondents

For the Petitioner Mr Sudhir K Makkar, Advocate with Mr Nitish Kumar, Advocate and Mr D Kumar, Advocate

For the Respondent Mr N M Varghese, Advocate

Pronounced on 23 rd September 2013

REKHA GUPTA

Revision petition no. 4047 of 2006 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the judgment and order dated 12.10.2006 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (‘the State Commission’) in First Appeal no. 741 of 2006.

The brief facts of the case as per the complaint of the respondent no. 1 and 2/ complainant no. 1 and 2 are as follows:

Respondent no. 1 is a Girls Hostel namely Lourdes Society and the said Society registered under Society Registration Act, vide society Registration no.Guj/ 525/ Surat and also registered under Trust Act vide its Trust Registration no. F/ 430/ Surat.

The respondent had purchased the dirty shade in 30 x 30 ivory floor glazed tiles from petitioner no. 5 who is a local agent of petitioner no. 1 -companythrough its Sales Department of petitioner no. 4. The said goods of tiles were delivered by petitioner no. 3 to the respondent. The particulars of goods of tiles which purchased by respondent are as under:

S No. Date Invoice no. Bill/ D O no. Amount in Rs. 1. 02.02.2000 006932 6811 1,12,480/- 2. 18.02.2000 007283 7164 1,04,000/- 3. 02.03.2000 07643 7522 93,933/- 4. 24.03.2000 8107 808 1,17,166/- 5. 06.03.2001 8810 8187 42,000/- TOTAL 4,69,579/-

At the time of purchasing the above mentioned goods of tiles, the petitioner company had also given a guarantee of quality of goods of tiles and as per the guarantee given by the petitioner no. 1 company. After purchasing the said tiles from the petitioner company, the respondent had started affixing the said tiles on flooring by using material and spend the labour charges. After fixing the said goods of tiles within a year, the said tiles fixed on 1st and 2nd floor of the respondent Hostel premises started developing white spots and the glazed surface of the tiles was damaged. Thereafter, the respondent has written letters on September 01, 23.05.2002 and on 28.06.2002 to Sales Executive of petitioner no. 4 bearing bill no. 6811, 7522 and 8008 of goods of tiles dated 02.02.2000, 02.03.2000 and 24.03.2000 with regard to the defective, inferior quality of tiles which had developed white spots and damage to the glazed surface. The petitioner no. 5/OP No. 5 who is the local agent of opponent company and the Sales of the said goods of titles “ K Sthapatya – Kamal Tiles” also visited their site and verified the tiles and they also agreed with respondent regarding defective quality of glazed tiles supplied by petitioner company as the defect started appearing on glazed surface of first floor and second floor of respondent premises. The petitioner company did not give proper attention and have not taken any action to solve the complaint regarding dirty shade in 30x30 ivory floor tiles. The petitioner company has not even given any reply to the said letters and also not given any response and taken subsequent action regarding those letters. The respondent had contacted the licenciate and registered architect Mr J MVimawala who is a local architect interior designer for estimation of removing of old flooring tiles and application of new flooring material. The said architect and interior designer also issued certificate regarding estimation of the substandard and inferior quality of first/ second flooring tiles and application of New Flooring Material total damaged including material plus labour (Rs.1,20,745.92+ 31,952.60+ 61,950.60+ 1,94,418.36 = 3,99,077.37 plus octroi and transport charges Rs.28,635/-. Total amount of Rs.4,27,712.37 as damages).

Thereafter the respondent has given a legal notice on dated 12.08.2002 to petitioner, by registered post AD for recovery of said amount Rs.4,27,712.37with interest at the rate of 24% per annum. The said notice was received by petitioner no. 4 on 14.08.2002, petitioner no. 2 on behalf of petitioner no. 1 company on 16.08.2002 and petitioner no. 3 on dated 17.08.2002, but after receiving the said notice by petitioners they have not given any reply to the said notice and also did not comply with the said notice, therefore, the respondent preferred to file the petition/complaint for recovery of an amount of Rs.4,29,712.67 paise from the petitioners.

The respondents’ hence asked for the following reliefs:

* The Hon’ble Court may be pleased to allow the present complaint and be ordered to petitioner that the goods of tiles which purchased by the respondent from the petitioner which are defective, the good quality tiles be given instead of damaged good tiles to respondent otherwise the Hon’ble Court be passed to order for damages worth Rs.4,27,712.37 along with interest at the rate of 24% per annum to respondent.

* This Hon’ble Court may be pleased to pass an order to opponents for damages and mental harassment to the respondent for Rs.5,000/-.

* This Hon’ble Court may be pleased to pass an order for expenses of this complaint for Rs.10,000/- to respondent from the petitioner.

* This Hon’ble Court be ordered to pay to the respondent suitable and just amount of compensation evaluating the facts and circumstances of this case.

In response, the petitioners who were opposite parties no. 1 to 4 have taken preliminary objections and stated that at the outset, that the aforesaid complaint is not maintainable under the provisions of the Consumer Protection Act, 1986. The respondents have not brought on record the correct facts of the case, that the present dispute between the respondent and the petitioners is basically a commercial dispute not falling within the specific parameters of the said act.

The respondent laid the tiles after purchasing the same from the petitioners. The respondents appointed their own labour to lay the tiles.

The respondent had written a letter on 01.09.2001. In response to the respondent’s letter the petitioner had sent their representative Mr D Naik who visited the respondents place and brought back one floor tile and tested it in the petitioner’s laboratory. A letter dated 09.10.2001 along with the lab report was sent to the respondent which clearly stated that after all the relevant tests had been carried out it was found that the tiles were as per the EN/IS specification and there was no defect in the tiles.

After verifying the sample tile in the laboratory it was very clear that there was no defect in the product. It is, therefore, obvious that there was a defect in laying the tiles or some other reasons other than defect in the tiles which may have led to the complaint.

While agreeing with the details given regarding the tiles purchased, they pointed out that there was no shade called as dirty shade which the respondent has referred to at various places in his complaint. The tiles in question are Glazed Floor Tiles of Ivory Colour.

Petitioners denied that they had never given such guarantee as described in paragraph 4 of the complaint. In fact on every carton of the petitioner’s tiles it was very clearly stated that “the company shall bear no liability after the tiles are fixed”. As per the instructions on the tile cartons it was made very clear that before fixing of the tiles they must be laid out in the desired pattern and if the customer was not satisfied with the tiles for any reason relating to size or shade variation then the same could be replaced by the Company before fixing but once the tiles were fixed the company would bear no liability. In the present case the complaint arose after more than a year, this was a long duration during which the tiles may not have been properly maintained apart from the possibility that there was a defect in laying the tiles due to which the complaint may have arisen.

The petitioners again denied that the respondents are not consumers and as such thus this Hon’ble Forum has no jurisdiction to decide this dispute.

In regard to the same as to whether the respondents were ‘consumers’ under the Consumer Protection Act, 1986, the District Consumer DisputesRedressal Forum, Surat (‘the District Forum’) vide order dated 31.12.2005 stated that with regard to issue as to whether the complainant could be defined as Consumer under Consumer Protection Act, 1986 that “the undisputed facts about transaction between let us first resolve the dispute as to whether the respondent is a consumer or not. As per the provisions of C P Act, particularly definition of consumer, where a person hires or avails any service for commercial purpose for any commercial purpose is not a consumer. It is not in dispute that respondents are running girls hostel in the name of respondent no. 1, commercial purpose is also explained under the provisions of the Act. So far as activities of respondents are concerned, they are running girls hostel and receive fees from the students. The respondents are not carrying out commercial activities. Purchase of goods namely tiles are for the purpose of their hostel and it cannot be said that tiles is subject matter of their business. Whenever any person purchases goods for carrying out business for commercial or for livelihood then only question regarding purchase of goods or availing any service from trader or professional arises. The respondents are not carrying (not readable) of purchase from the petitioners. Otherwise also hostel premises can be constructed and there is no direct relation between commercial activity. Therefore, the defence of petitioners that respondents are carrying on business activities and thereby, respondents are not consumer is not acceptable. Hence, we hold that respondents are consumer of petitioners and defence of petitioner is rejected”.

The State Commission vide order dated 12.10.2006 while dealing with the submissions advanced by the learned counsel for the appellant/ petitioner as to whether the original complainants were consumers within the meaning of Consumer Protection Act, 1986 in as much as the respondents had purchased tiles for the ladies hostel which was for commercial purpose held that:

“ In this regard, reliance has been placed on a decision in the case of M/s Kusum Hotels Private Limited vs M/s Neycer India Limited reported in 1993 (3) CPR P 405 by the honourable National Commission, the complainant was a hotel and the tiles were purchased by the hotel for commercial purpose since the activity of the hotel would be to run the business to earn profit. In our opinion, this judgment would not be applicable to the facts of the present case for the simple reason that the complainant trust purchased the tiles and got them fitted in the ladies hostel wherein the accommodation was provided to the girl students receiving education in the educational institution. Charges, if any, for accommodation in the hostel would not be for any profit making but would be for maintaining the hostel. Thus, the complainant cannot be regarded as a commercial establishment and therefore, the principle enunciated in the aforesaid judgment of the National Commission cannot have applicability to the facts of the present case and we therefore, negative the contention of Mr Kapadia on this score”. Hence, both the Fora below have held that the respondent nos.1 and 2 were consumers of petitioners and the defence of the petitioner was rejected.

With regard to merits of the case the District Forum depended largely on the letters written by the respondent nos. 1 and 2 to the petitioners and the letter issued by the technical executive, the report of J M Vimawala, Architect as also the report of local commissioner dated 21.09.2006 and allowed the complaint. They observed as follows:

“The petitioners have produced letter issued by Technical Executive stating that their representative Mr Naik had visited the premises of the respondent and had taken on sample of tile as specimen for testing from the floor and test was carried out in lab. The petitioners have also produced test certificate. The petitioners have also produced letter dated 23/01/2003 wherein complaint regarding defect in tiles have been carried out. Test report produced on behalf of the petitioners is required to be considered in detail. There are same specifications and test results are taken into account. Some of the items are not in consonance with EN/IS specification. Not only this, but the respondents have relied on certificate of architect Mr Vimawala wherein he has stated that he has assessed and surveyed tiles. He has also opined that there is manufacturing defects in tiles and he has also taken into account prescribed specification on which the petitioners have relied. It is specifically mentioned that actual estimate of damage come to Rs.3,99,077.37 as cost of flooring tiles supplied by petitioners. Respondents have also relied on the report of Court Commissioner appointed by this forum. He has submitted his report on the basis of this forum’s order. If we peruse the said report dated 21.09.2004, it is specifically stated therein that he had personally visited the site and inspected the damages. He has mentioned that installed ceramic tiles in rooms and partly in toilet blocks seem damaged due to their poor absorbance and chemical resistance. The black patches seen on the tiles are also due to weak absorbance. He has further stated that passage tiles are still in good condition and no damage is found. However, quality of tiles in rooms is poor. Further, he has stated that petitions performed test only on one and half tiles, whereas IS Codes prescribe the same test to be performed with five numbers of tiles. The Court Commissioner has also submitted photographs of tiles with his report. On the basis of these facts, it is clearly goes to show that the petitioners have supplied tiles which had manufacturing defects and guarantee given by petitioners to respondents. Therefore, the respondents are able to prove that tiles are defective and thereby the petitioners have failed to provide proper service to the respondents and there is deficiency in service on the part of the respondents by not replacing the defective goods or by refunding the price thereof. Report the Court Commissioner shows that tiles had manufacturing defect. Therefore, it could be definitely believe that petitioners are carrying on unfair trade practice and therefore, the petitioners are liable and responsible for supplying defective goods to the respondents.

Respondents have claimed damages worth Rs.4,27,012.37. This claims appear to have been assessed on the basis of report of the architect Mr Vimawala. But the petitioners are able to show that they have used tiles in their premises since the day they fixed the same in their premises or after 06.03.2001. Considering the period of use of tiles, it would not be just and fair to refund the whole amount as by removing the tiles fixed in floors, the petitioners would not get back them in good condition. If forum orders that petitioners should pay amount claimed by respondents considering that tiles fixed in premises should be returned to the petitioners would not serve the purpose. Therefore, the petitioners are not liable to pay whole amount damages to the respondent.

The respondent is not able to show how much tiles are defective. Considering these facts, respondents would be sufficiently compensated if total amount of Rs.2 lakh is given towards defective tiles along with mental agony harassment etc., and including cost of present proceedings. The total sum granted as above is fixed keeping in mind the fact that respondents are still using defective tiles in their premises. The respondents did not say any where that because of defects in tiles, they have removed and replaced new tiles by purchasing the same from another trader. This fact would definitely go in favour of petitioners for the purpose of quantifying total amount of damages, compensation and cost of present proceedings. Accordingly, in the absence of any sufficient and proper defence on behalf of petitioners, the present complaint is required to be allowed partly. We have taken into consideration all the documents contentions taken on behalf of petitioners and nothing is found in favour of petitioners. The respondents have also claimed interest @ 24% per annum but it is very excessive as present rate of interest is required to be taken into account. We therefore, grant interest @ 9% per annum the above amount and pass the following order:

The present complaint filed by the respondent is hereby partly allowed. All the petitioners are jointly and severally held liable to pay to the respondents Rs.2 lakh as damages, compensation towards defective tiles supplied by petitioners along with compensation towards mental harassment and cost of present proceedings with interest @ 9% per annum from the date of complaint i.e., from 30.10.2002 till its recovery to the respondents”.

Aggrieved by the order of the District Forum, the petitioners filed an appeal before the State Commission. The State Commission while rejecting the appeal observed that:

“Considering the prima facie merit in the appeal it is not much in dispute that the respondent trust purchased vitrified tiles and got the same fitted on the floor of the hostel including rooms as well as passages in the hostel. It is suggested from the evidence on record that most of the tiles fitted in the hostel premises developed black spots and therefore, the complaint. The officer of the petitioner company sent its personnel to visit the site and he took samples for laboratory testing. Copy of the laboratory test report is to be found at page 27. Remarks at the bottom of the report says that the tiles are as per IS specifications and it has been hoped that some strong chemical is used on the surface which reacted. Thus, the report does not suggest any definite finding that some strong chemical was used but it is only hoped that some strong chemical may have been used. If any chemical was used, then, in that case, when the chemical came in contact with the tiles, all the tiles would be affected, but here some of the tile are affected and some are not. When a chemical is used, it is uniformly used in the entire room / premises. Letter page 76 suggests that as far as the dirty shade in the tiles is concerned, it should not happed normally as the tiles of the petitioner company are acid and alkali resistant. It is common experience that acid/ alkali is used for cleaning tiles. It is also suggested that the black spots which developed on the tiles at the time of personal visit of the officer disappeared after sometime but again in 10-15 minutes the black spots were visible and therefore, the officer of the petitioner company was unable to convince the respondent.

It is submitted by Mr Kapadia that it is not proved as to how many tiles were defective which showed black spots. Even if a single tile shows black spot, then the entire tiles fitted in the room/ passage would be required to be replaced. Simply because 10-15 or particular number of tiles are found to have developed black spots would not mean that only those numbers of tiles are required to be replaced because there should be uniformity in the tiles fitted in the premises or on a particular floor or building. One of the submissions advanced by Mr Kapadia is that it is not proved that the tiles are defective as per definition of Section 2 (f) of the Consumer Protection Act. To this, reference may be made to the letter of the petitioner company, copy whereof is produced on page 78. Reading of the same suggest that most of the tiles fitted were found to have developed black spots which were noticed during the personal visit of the officer of the petitioner company. This in our opinion provides answer to the submission of Mr Kapadia on this score.

It is submitted by Mr Kapadia that in the order awarding Rs.2,00,000/- by way of compensation, the element of mental agony is also included. It is true that the amount of Rs.2,00,000/- is awarded as damages/ compensation towards defective tiles supplied by the petitioner along with compensation towards mental harassment and cost of the present proceedings. Under none of the heads, the amount has been specifically or distinctly mentioned. It is the quantified amount which has been awarded which includes cost also. Under the circumstances, it cannot be said what amount is quantified for mental agony. That, however, by itself would not suggest that other components would not assume any importance. The beneficiaries of the tiles were the students occupying the rooms and they also must have undergone mental annoyance because of the black spots which they would see day in and day out. Considering all these, the amount has been quantified at Rs.2,00,000/- and we do not find any substance in this submission of Mr Kapadia.

Thus, it appears that there is defect in most of the tiles purchased by the respondent trust and fitted. In this prima facie view of the matter, we do not find any merit in the appeal and there is no question involved requiring consideration in the appeal. In our opinion, the appeal is devoid of prima facie merit and therefore, liable to be rejected at the admission stage”.

Hence the present revision petition.

The main grounds for the revision petition are:

 The Hon’ble Forum has erred in placing reliance upon the report of the Court Commissioner dated 21.09.2004. The said report is purported to be signed by Mr Mahesh Nagecha, Project Coordinator, SADC, Faculty of Architecture, SCET, Surat. No qualification of the said person is stated in the report. The report is not of testing the tile for any defect but is only a report of visual inspection. In fact the said report states that the tiles of the passage are in good condition. This in fact gives credence of what is stated in the test report of the company that some strong chemicals might have been used on the glazed surface of the tiles which might have reacted causing white patches on the tile. The Commissioner’s report also does not dispute the correctness of the test certificate issued by the petitioner company, however, only states that the test is conducted on one and half tiles whereas IS code prescribed test to be performed on five number of tiles. The said observation test is required to be performed on the five number of tiles as per IS code is also false. The Commissioner’s report does not prove that the tiles were defective.  The Hon’ble Forum erred in not placing reliance upon the test certificate produced by the petitioner company in respect of the test conducted by it at its laboratory on the tile sample. The petitioner company has modern tiles testing facilities at its laboratory. The correctness of the test certificate has not been impugned by the respondents. The Forum ought to have held that the tiles were not containing any manufacturing defect.  The Hon’ble Forum failed to appreciate that the estimate given by the Architect Mr Jimmish M Vimawala states that the tiles were damaged. It does not state that the tiles were defective.  The Hon’ble Forum has erred in holding that the petitioners have supplied tiles contrary to the guarantee given by them. The petitioner had given no guarantee or warranty in respect of the tiles supplied by them. The record of the complainant does not bear out that the petitioners had given such guarantee to the respondents. Such observation of the Forum is extraneous to the record of the complaint.  The State Commission failed to appreciate the ratio of decision in the case of M/s Kusum Hotel Pvt Ltd., vs M/s Nicer India Ltd., reported in 1993 33 CPR 405 and failed to appreciate that the respondent is not a consumer within the meaning of the provisions of the Consumer Protection Act, 1986 in as much as the respondent had purchased the tiles and fitted it in the ladies hostel for commercial purpose. Hence, the ratio of the judgment in M/s Kusum HotelPvt. Ltd., would squarely be applicable in the facts and circumstances of the present case. The State Commission erred in upholding the judgment of the District Forum while holding that the tiles were defective on the basis of the test report submitted by the complainant without recording any expert evidence in respect of the said finding. Without any evidence being placed on record by the complainant except the test record by the complainant except the test report, the learned State Commission erred in upholding the judgment of the District Forum. Even otherwise, the judgment of the State Commission was contrary to the principles of natural justice. Moreover, in the facts and circumstances of the present case it was appropriate for the State Commission to set aside the judgment of the District Forum.  The State Commission lost sight of the fact that the District Forum has no jurisdiction to award a huge sum as compensation without any corroborative evidence to substantiate the estimated loss suffered by the respondent, particularly in view of the principles of law as laid by the Hon’ble Supreme Court of India in a case reported as 1995 (1) CPJ (1) SC by this Commission in (ii) 1995 (CPJ) 183 National Commission that compensation can only be awarded for actual loss suffered due to the negligence of the opposite party and both the loss suffered as well as the negligence has to be proved by corroborative evidence by the complainant.  The State Commission committed a grave error while upholding the judgment of the District Forum awarding an amount of Rs.2 lakhs as damages/ compensation for defective tiles along with compensation towards mental harassment and cost of the proceedings which was awarded in the absence of any material on record to substantiate the contention in this regard made by the complainant.  The State Commission failed to appreciate that it was not proved that the tiles were defective as per the definition of Section 2F of the Consumer Protection Act and hence, the State Commission erred while upholding the judgment of the District Forum whereby an amount of Rs.2 lakh was awarded as damages/ compensation for defective tiles supplied by the petitioner.  The State Commission failed to appreciate that the amount of Rs. 2 lakh awarded towards damages/ compensation towards defective tiles supplied by the petitioners and mental harassment and cost of the present proceedings awarded by the District Forum was excessive in view of the fact that the total amount spent by the respondent towards purchase of the tiles was only Rs.4,69,579/-.  The State Commission failed to interpret Section 2F of the Consumer Protection Act and Section 14 (1) (d) of the Consumer Protection Act while upholding the compensation of Rs.2.00 lakh awarded by the District Forum without assessing the actual loss suffered by the respondent and ascertaining whether the same was due to any negligence on the part of the opposite party or whether the compensation could be awarded for the losses suffered due to the negligence of the opposite party whereas it was imperative to ascertain both the negligence and defective supply by the opposite party before awarding any amount by way of compensation.  The Hon’ble Forum has also categorically observed that the petitioners are still using the defective tiles in their premises. The aforesaid facts clearly point out that the complaint is filed with an oblique motive of exacting money as much as possible from the petitioners. The respondents have been using the tiles for about a period of five years and they have not found the need to changes the tiles. In the said facts, the compensation of Rs. 2.00 lakh is unjustified and excessive.  The Hon’ble Forum failed to appreciate that the petitioners were not called upon to replace the defective tiles before filing the complaint. As is borne out from the notice dated 12.08.2002 issued on behalf of the respondents, the respondents were not interested in getting the defective tiles replaced but were only interested in extracting the maximum amount of money from the petitioners. The Forum also erred in awarding the compensation of Rs.2.00 lakh rather than getting the defective tiles replaced.  The Hon’ble Forum erred in awarding compensation to the respondents on account of mental agony and harassment. The tiles have been purchased by the respondent society which is a juristic personality and incapable of undergoing mental agony and harassment.

We have heard the counsels for the petitioners and the respondents and carefully gone through the record.

Counsel for the respondent filed registration certificate dated 24.07.1996 issued by the Assistant Charity Commissioner, Surat to the respondent no. 1 Society as also Memorandum of Association of M/s Lourdes Society. Counsel for the parties confirmed that these documents had not been filed before the District Forum hence, they are not being taken on record.

It is an undisputed fact that the respondent nos. 1 and 2 - Society has purchased tiles from the petitioner for girls hostel namely Lourdes Society. It is seen from the paragraph three of the complaint that most of the tiles were purchased in February and March 2000. Nowhere in the complaint have the number of cartoons or number of tiles purchased been mentioned. It is also an undisputed fact that after receiving the tiles the respondent had started laying the said tiles on the floor in the year 2000-2001. The first complaint, however, was sent to the petitioner in September 2001 and thereafter vide letters dated 23.05.2002 and 28.06.2002. The complaint was regarding the tiles developing white spots and glazed surface getting damaged. To support their complaint, the respondent contacted the registered Architect Mr. J M Vimawala, who is the local architect and interior designer for an estimate for removing the old flooring tiles and application of new flooring material. As per the estimate of Shri Vimawala, Architect, the total cost would come to Rs.3,99,077/-. Shri Vimawala, has annexed the “Actual quantity of flooring damaged as per site”. He has nowhere mentioned that the tiles were defective – only damaged. Hence, this report cannot be relied upon to prove that the tiles received were received defective. The report of Shri Vimawala does not also establish that what were the total number of tiles procured and laid on the floor and the number of tiles found defective. As mentioned earlier the District Forum had appointed a Court Commissioner. The petitioners have submitted, as one of the grounds of appeal, that nowhere has the qualification of the person been given by the Court Commissioner in his report. It is also clear from the Court Commissioner’s report is that it based on observation and visual inspection and not on any standard method laid down by the Bureau of Indian Standards (BIS). Counsel for the respondents today confirmed that all tiles used for flooring in the hostel were from the same source. Hence, in view of the same the counsel failed to explain observation of the Court Commissioner, Shri Mahesh Nagecha, that “some tiles were damaged due to poor absorbance and chemical resistance. Black patches seen on the tiles are also due to its weak absorbance. Premises also have ceramic tiles with different pattern in the passages outside the rooms and both are maintained simultaneously with the same cleaning agent, yet the passage tiles are still in good condition and they have remained stainless and have shown no damage even after extensive use. This fact strengthens the assumptions that the quality of tiles in the rooms is poor”. If all the tiles were bought from the same source there is no explanation as to why only some tiles were found damaged in the toilets and rooms while those in the passages were still found in good condition. Further, nowhere has the Court Commissioner spoken about any defect in the tiles, he has only noted that some tiles were found damaged. He mentions the presence of black patches whereas the complaint mentions white spots.

The Court Commissioner has dismissed the test results of the damaged tiles stating that the company has performed the tests only on one and a half tiles, whereas IS codes prescribe the same test to be performed with five numbers of tiles even though the Court Commissioner himself has given his conclusions based only on observation and visual inspection.

As per the test results submitted by the petitioner the tiles passed the test as per the standard methodology - BIS. In their letter to respondent no. 1 they have clearly stated that “our representative Mr D Naik visited your place and had brought one floor tile for our laboratory testing. As far as the dirty shade in the tile is concerned, it should not happen normally as our tiles are acid and alkali resistant. Yet we tested the tile for by cleaning it with acid and alkali and found that these have no effect on the glaze surface. We test the tiles for acid and alkali resistance regularly in our lab and find no effect on the glaze surface. We have done other test also as per IS specification and the test certificate”.

They have also enclosed the test certificate which reads as under: “ Tile is passed in all respect as per IS specification. Hope that some strong chemicals has been used on the Glaze Surface which reacted”.

Counsel for the respondent could not explain why the tiles were found defective on opening of the boxes they were not sent for replacement. The Counsel could not also explain as to why the damage and spots came to notice only after the tiles were laid on the floor and after more than 17/18 months of purchase.

As is seen from the complaint that the tiles were purchased over a period of one year from February 2000 to March 2001, in five consignments. The tiles were also being laid parallel during the year. If the tiles were found defective or damaged then why did the petitioners/ complainants continue to procure the tiles from the same source without pointing out the defects and also without asking for replacement.

With the regard to the plea of the petitioner that the respondent cannot be construed as consumer as per Consumer Protection Act, 1986, the counsel for the respondents failed to prove that the girls hostels was not being used for commercial purpose and confirm that they were not taking charges from the inmates. It is not known on what facts/ basis the District Forum came to the conclusion that the complainants were not carrying ‘commercial activities’. It is also not known on what basis the State Commission came to the conclusion that “the complainant trust purchased the tiles and got them fitted in the floor of the hostel, wherein accommodation was provided to the girl students receiving education in the educational institutions. Charges, if any for accommodation in the hostel would not be for any profit making but would be for maintain the hostel”. The respondent/complainant has nowhere in their complaint mentioned as to what are the fees being charged/ taken from the inmates of the hostel.

As such we hold that respondents/ complainants have not been able to establish beyond doubt that they are consumers as per the definition in the Consumer Protection Act, 1986. Hence, we are of the view that the complaint is not maintainable.

Even for a moment if it is accepted that the complaint is maintainable, as discussed, respondents 1 and 2 have failed to prove that the tiles procured by them in the year 2000 and 2001 were defective and not damaged thereafter. The petitioner, in their reply before the District Forum, had clearly indicated that on every carton of tiles it has been very clearly stated that ‘the company will bear no liability after the tiles are fixed’. Further, as per the instructions on the tile cartons it was very clearly stated that before fixing of the tiles they must be laid out in the desired pattern and if the customer is not satisfied with the tiles for any reasons relating to the size or shades variation then the same can be replaced by the Company before fixing but once the tiles are fixed the company bears no liability. In the present case it is an undisputed fact that the respondent/complainant complained after more than 17/18 months of the first purchase in February 2000 and they could not prove beyond doubt that the damage was not due to poor maintenance or rough usage. It has also nowhere been mentioned that out of the total number of tiles purchased how many were received defective/ damaged. Further, instead of replacing the damaged tiles the respondents for reasons not on record seeking the cost of replacement of the entire flooring.

In view of the above, the revision petition is allowed and the orders of the Fora below are set aside and the complaint is dismissed with cost of Rs.20,000/-

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

List on 15th November, 2013 for compliance.

Sd/- ..……………………………… [ V B Gupta, J.]

REVISION PETITION No. 2044 of 2011 (From the order dated 19.01.2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in Appeal no. 2839 of 2006)

Balwant Rai Son of Shri Banarasi Dass Resident of Panipat Through G P A Ashok Kumar Son of Balwant Rai Reisdent of 6, Kartar Shah Nagar Panipat Haryana Petitioner Versus

1. Housing Board Haryana Through its Chief Administrator C – 15, Sector 6, Panchkula

2. The Estate Manager Housing Board Haryana Panipat Office at House no. 1806 Sector 13 – 17 Panipat, Haryana Respondents

BEFORE:

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

For the Petitioner Mr Madhurendra Kumar, Advocate

For the Respondent Mr R S Badhran, Advocate

Pronounced on 23 rd September 2013

REKHA GUPTA

Revision petition no. 2044 of 2011 has been filed against the impugned order dated 19.01.2011 passed by the Haryana State Consumer DisputesRedressal Commission, Panchkula (‘the State Commission’) in appeal no. 2839 of 2008.

The District Consumer Disputes Redressal Forum, Panipat (‘the District Forum’) vide order dated 10.11.2006, in complaint no. 319 of 2005 has held that “it is clear that the OPs have failed to give the opportunity of being heard to the petitioner before passing the ejectment order and furthermore, the Consumer Protection Act, is made to protect the rights of the consumer. So if for the sake of arguments, it is admitted that the petitioner has defaulted in payments even then keeping in view the fact that the house is a prime necessity in the life and when a poor person has paid almost all in respect of a house in such a situation the OPS cannot eject the petitioner without giving personal hearing and at the most the OPs can charge the due amount with interest from the petitioner. So we hold that the ejectment order dated 14.06.2006 is illegal and void and the OPs are liable to hand over the possession of the house no. 513 GF, Sector – 6, Housing Board Colony, Panipat on receipt of due amount together with interest from the petitioner. For the reasons recorded above, we hold that the ejectment order passed by the OPs in respect of the house no. 513 GF, LIG, Sector 6, Housing Board Colony Panipat is illegal and void and not binding upon the petitioner further, we direct the petitioner to make the entire due amount with interest at the agreed rate of interest in between the parties within a period of 60 days from the date of receipt of copy of this order and thereafter the OPs shall hand over the possession of the said house to the petitioner within a period of 15 days. The complaint accepted accordingly.” Aggrieved by the order of the District Forum, the respondents/ opposite parties filed an appeal before the State Commission. The State Commission accepted the appeal and set aside the order of the District and also dismissed the complaint stating that “undisputedly, the complainant had purchased the house under Hire Purchase Tenancy Agreement and for that reasons the present controversy cannot be termed as a ‘Consumer Dispute’ between the parties. The District Consumer Forum has not considered the present case in a perspective manner and as such the impugned order under challenge is not sustainable in the eyes of law. For the reasons recorded above, this appeal is accepted, the impugned order is set aside and the complaint is dismissed”. Hence, the present revision petition. We have heard the learned counsels for the parties and have also gone through the records of the case carefully. The present revision petition has been filed by the petitioner/ complainant along with an application for condonation of delay of 37 days. In the application, the grounds given are: That when the petitioner came to know about the impugned order approached to the State Commission for obtaining the certified copy and received the same on 29.04.2011. After obtaining the certified copy the petitioner approached the concerned advocate on 02.05.2011 for filing the revision petition. The petitioner procured the relevant documents of the case and handed over to the advocate on 09.05.2011 for preparation of the revision and the same was prepared by counsel on 27.05.2011. As per the certified copy of the State Commission placed on record, the certified copy was prepared on 02.02.2011. Counsel for the petitioner could not explain as to whether and when this copy was received by the petitioner. In fact in the application this copy has not been mentioned at all. The application also not mention as to when and how, the petitioner came to know of the impugned order came to him and when he approached the State Commission for obtaining the certified copy which he has stated that he received on 29.04.2011. Thereafter he has failed to give day to day reasons for the delay of 37 days, as the revision petition was filed only on 08.06.2011. The petitioner is supposed to explain the day-to-day delay, but the needful has not been done. The petitioner has failed to provide ‘sufficient cause’ for the delay of 37 days. This view is further supported by the following authorities. The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that: “ It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”. In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held: “ The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;

Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 37 days in filing the present revision petition. The application forcondonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.5,000/- (Rupees five thousand only).

List on 15th November 2013, for compliance.

..……………………………… [ V B Gupta, J.]

Sd/- ……………………………….. [Rekha Gupta]

Satish NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(Against the order dated 18.05.2007 in Original Complaint No. 15/1997 of the H.P. State Consumer Disputes Redressal Commission, Shimla)

Sher Singh Shobta S/o Shri Roop Singh Shobta R/o V & PO Baghi Tehsil Kothkai District Shimla Himachal Pradesh

… Appellant

Versus

National Insurance Co. Ltd. Through its Manager New Land Estate Circular Road Shimla-1 Himachal Pradesh

… Respondent

(Against the order dated 18.05.2007 in Original Complaint No. 15/1997 of the H.P. State Consumer Disputes Redressal Commission, Shimla)

1. M/s National Insurance Co. Ltd. Regd. Office: 3, Middleton Street Kolkata

2. M/s National Insurance Co. Ltd. Regional Office Jeewan Bharati Tower-II, Level-IV 124, Connaught Place New Delhi-110001

… Appellants

Versus

Sher Singh Shobta S/o Shri Roop Singh Shobta R/o Village & P.O. Baghi Tehsil Kothkai District Shimla Himachal Pradesh

… Respondent

BEFORE:

HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

Appearance in both matters

For Sher Singh Shobta : Mr. H.S. Upadhyay, Advocate

For Insurance Company : Mr. R.C.S. Bhadoria, Advocate for

Ms. Sonia Sharma, Advocate

Pronounced on : 23 rd September, 2013

ORDER PER VINEETA RAI

1. These are two cross-appeals. While First Appeal No.454 of 2007 has been filed by Sher Singh Shobta, Complainant before the Himachal Pradesh State Consumer

Disputes Redressal Commission, Shimla (hereinafter referred to as the State

Commission), being aggrieved by the lesser amount awarded to him by the State

Commission, First Appeal No. 550 of 2007 has been filed by National Insurance

Company Ltd., Respondent before the State Commission, being aggrieved by the order of the State Commission which had partly allowed the complaint of Sher Singh Shobta and directed the National Insurance Company Ltd. to pay him

Rs.2,28,000/- in settlement of his insurance claim subject to return of salvage on “as is where is” basis alongwith compensation of Rs.1,00,000/- and Rs.10,000/- as litigation costs. The State Commission had also directed the National Insurance Company Ltd. to fix responsibility on the officer who had delayed in settling the insurance claim and directed that the interest amount of Rs.1,48,578/- be recovered from the defaulting officer.

Since both the appeals arise from a common order of the State Commission, we also propose to dispose of these appeals by a single order by taking the facts from First

Appeal No. 454 of 2007. The parties will be referred to in the manner in which they were referred to in the complaint i.e. Sher Singh Shobta as Complainant and National

Insurance Company Ltd. as Opposite Party.

2. Briefly stated, the facts of the case are that the Complainant who was owner of a

Tata truck bearing registration no. HP-07 1429 had got the said truck insured from

01.11.1996 to 31.10.1997 with the Opposite Party/Insurance Company for a sum of

Rs.3,80,000/-. The aforesaid truck met with an accident on 30.04.1997 near Darlaghat in Solan District, when it fell 1700 feet into a deep gorge resulting in its total loss. Complainant immediately informed the Opposite Party/Insurance Company about the accident and an FIR was also lodged on the same day at Police

Station Darlaghat. Opposite Party/Insurance Company appointed a Surveyor, who inspected the site as also the vehicle and submitted a report to the Opposite

Party/Insurance Company. Thereafter, the Complainant recovered the salvage from the spot of the accident which took over a month at a cost of Rs.50,000/- for carrying it to

Shimla, where it is still lying in a store since it cannot be used. The storage charge is being borne by the Complainant till date. Although the Complainant informed the

Opposite Party/Insurance Company about the accident and the total loss of the vehicle stating that it was not repairable, Opposite Party/Insurance Company did not settle the claim. Complainant, therefore, issued a legal notice requesting for settlement of the claim within 15 days but still received no response. Since Complainant was deprived of his livelihood and had also to pay back the loan which he had taken from H.P. Financial

Corporation at high rate of interest for the vehicle, he filed a complaint before the State

Commission on grounds of deficiency in service and requested that the Opposite

Party/Insurance Company be directed to pay him a sum of Rs.6,55,000/- as per the following details : (1) Insured amount of vehicle (being cost of total Rs.3,80,000 loss)

(2) Liability of payment to Financer Rs.1,00,000

(3) Recovery of salvage and carriage thereof to Rs.50,000 Shimla

(4) Rent of store where salvage is kept and other Rs.25,000 misc. expenses from the date of accident

(5) Damages for loss of business and mental Rs.1,00,000 harassment due to deficiency in service Total Rs.6,55,000/-

3. Opposite Party/Insurance Company on being served denied that there was any deficiency in service. It was contended that the Complainant himself was responsible for the delay in the settlement of insurance claim as he did not supply the required documents, including the original driving license of the driver. Further, the vehicle was got inspected through a Technical Surveyor – M/s Esquire Technocrats, who vide their report dated 05.08.1997 assessed the damage to the vehicle at Rs.1,48,578.28 ps. but the Complainant was adamant that it should be assessed on total loss basis and demanded the full sum insured. Opposite Party/Insurance Company had informed the

Complainant that subject to supply of required documents, the claim would be settled as per the amount assessed by the Surveyor, which he failed to do and instead filed a complaint before the State Commission.

4. When the case was first heard by the State Commission, it allowed the complaint and directed the Opposite Party/Insurance Company to pay the Complainant

Rs.3,80,000/- together with interest. The said order was challenged by the Opposite

Party/Insurance Company before the National Commission, which remanded the case to the State Commission to decide it afresh as the impugned order was not signed by the then President of the State Commission. Thereafter the State Commission after hearing the case, partly allowed the complaint and directed the Opposite

Party/Insurance Company to settle the claim and pay the Complainant Rs.2,28,000/- by permitting depreciation at 40% keeping in view the age of the vehicle together with interest @ 9% per annum from the date of institution of the complaint i.e. 05.11.1997, subject to return of salvage on “as is where is” basis alongwith the R.C. of the vehicle. In case the Opposite Party/Insurance Company wanted the R.C. to be transferred in its name, Complainant would do the needful at the cost and expense of the former whenever required in writing. Since there was inordinate delay in settling the claim, the State Commission directed the Opposite Party/Insurance Company to pay

Rs.1,00,000/- as compensation for non-settlement of the claim within reasonable time alongwith litigation costs of Rs.10,000/-. The relevant part of the order of the State

Commission is reproduced: “ 8. We have thoroughly examined Annexure R.2. It is not at all satisfactory. Substantive items in it have been mostly disallowed or have been found to be not covered. Above all, the cost of labour/repairs have been put to less than half by the Surveyor. On what basis and for what reasons, nothing is mentioned by him in the report. Why majority of the claim has been disallowed, there is no reason given and none could be explained by the learned Counsel for the Insurance Company. It hardly needs to be mentioned in this behalf that Surveyor is an expert appointed by the Government of India who possesses the expertise in the line of loss assessment. It is well known that in order to enable the authority/court/semi judicial authority to read evidence of an expert, he has to support everything by some reason/logic, howsoever brief it may be. We are sorry to observe that though claims have been disallowed, but no reasons are given. Even the costs of parts have been reduced. Even price of parts which were required to be replaced, have been reduced in most of the cases. In the end of R-2, there is a mention that prices recommended for new parts were according to manufacturer’s list price but no such price list is attached. Whether such enquiry was made from authorized dealer of the Company or elsewhere, not a word has been said by the Surveyor. And on this aspect we are of the view that the Surveyor acted more as an employee of the opposite party, rather than acting as an independent expert. …”

Hence, the present cross-appeals.

6. Counsel for the Complainant brought to our attention the report of the Surveyor -

M/s Esquire Technocrats deputed by the Opposite Party/Insurance Company and which in its report listed out the extensive damage caused to the vehicle clearly indicating that almost every part of the vehicle was damaged, including the chassis, the engine and other key components. Since the vehicle had admittedly fallen into a 1700 feet deep ravine, the vehicle was totally damaged and could not be repaired. The Surveyor while listing out the specific damage in respect of almost every part of the vehicle erred in concluding that the vehicle could be fully repaired on the basis of some estimates of repairs and after deducting almost 50% towards depreciation and thus recommending that the net loss was, therefore, only of Rs.1,48,578.28 ps. The vehicle had been insured for Rs.3,80,000/- just 9 months prior to the accident and, therefore, deducting such a high depreciation was also not justified. The State Commission had concluded that the cost of repairs had been grossly under-valued but erred in not concluding that the vehicle was in fact a total loss and thus not repairable.

7. Counsel for the Opposite Party/Insurance Company stated that the loss of the vehicle was assessed after an on the spot survey by a Technical Surveyor and this clearly indicated that it was not a case of total loss and the vehicle could have been repaired. Therefore, the order of the State Commission directing that the claim should be settled for an amount higher than that assessed by the Surveyor i.e. Rs.2,28,000/- and also directing the Opposite Party/Insurance Company to pay compensation of

Rs.1,00,000/- and litigation costs of Rs.10,000/- was both harsh and punitive particularly since the delay in settling the claim was attributable to the Complainant who did not make available the necessary documents required to settle the claim. Further, the State

Commission had not taken into account the depreciation to the vehicle which had been used for several months prior to the accident. In fact at the time of the accident the value of the vehicle had rightly been assessed at Rs.1,48,578/- after deducting 50% depreciation on the rubber and plastic parts and 40% on metal parts.

8. We have heard learned Counsels for both parties and have also gone through the evidence on record. The facts pertaining to the insurance of the vehicle, its meeting with an accident and the extensive damage caused to it are not in dispute as clearly indicated in the report of the Surveyor appointed by the Opposite Party/Insurance

Company. After having perused the survey report, we are, however, not in agreement with the conclusion of the Surveyor that despite this extensive damage the vehicle was repairable and that after deducting depreciation of 50% and 40% on rubber/plastic parts and metal parts respectively, the total net loss comes to Rs.1,48,578/-. From a perusal of the damages listed out by the Surveyor, we note that almost every part of the vehicle was severely damaged, including the chassis, the engine and over 66 other important components of the vehicle. Under the circumstances, it is difficult to appreciate how the vehicle which has suffered such extensive damage could be repaired and made roadworthy. We are also unable to appreciate how the Surveyor has deducted 50% and 40% on account of depreciation of rubber and metal parts respectively since the vehicle had been insured just 9 months prior to the accident and at that time the Insured

Declared Value of the vehicle was Rs.3,80,000/-. Once having insured the vehicle for this amount, such a high percentage of depreciation is totally unjustified. This issue has been squarely settled by a judgment of the Hon’ble Supreme Court in Dharmendra Goel Vs. Oriental Insurance Company Limited [(2008) 8 SCC

279], wherein it has been held that the Insurance Company after having accepted the value of a particular vehicle could not disown that very figure on one pretext or other when they are called upon to pay compensation. This ‘take it or leave it’ attitude was clearly unwarranted not only as being bad in law but ethically indefensible. The

Insurance Company was bound by the value put on the vehicle while taking the insurance policy. 9. The above ruling is fully applicable in the present case. The Insurance Company having once accepted the market value of the vehicle at Rs.3,80,000/- at the time of insuring the vehicle and since the vehicle had been used for only 9 months, at the most the depreciation of 10% would have been reasonable and not the depreciation of 40% as ruled by the State Commission based on the age of the vehicle. Respectfully following the judgment of the Hon’ble Supreme Court in Dharmendra Goel (supra) and keeping in view the facts of the case as discussed in the foregoing paragraphs, we are of the view that the insurance claim should be settled for an amount of Rs.3,42,000/- i.e. after deducting 10% towards depreciation from the insured sum of Rs.3,80,000/-. This amount should be paid with 9% per annum from the date of complaint i.e. 05.11.1997. We are, however, of the view that compensation of Rs.1,00,000/- awarded by the State Commission is on the higher side and reduce the same to Rs.50,000/-. We also set aside the order of the State Commission directing that the interest on the insured amount be recovered from an officer of the Opposite Party/Insurance Company who delayed in settling the claim.

10. To sum up, First Appeal No. 454 of 2007 filed by the Complainant is partly allowed and the Opposite Party/Insurance Company is directed to pay him sum of Rs.3,42,000/- alongwith interest @ 9% per annum from the date of the complaint i.e. 05.11.1997 as also compensation of Rs.50,000/- and litigation costs of Rs.10,000/- within a period of three months from the date of receipt of copy of this order. First Appeal No.550 of 2007 filed by the Opposite Party/Insurance Company is dismissed. No costs.

(ASHOK BHAN, J)

PRESIDENT

(VINEETA RAI)

MEMBER

(VINAY KUMAR)

MEMBER Mukesh

REVISION PETITION NO. 1320 OF 2008 (From the order dated 02.11.2007 in Appeal No. 863/2001 of the State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad)

Mrs. Laxmi Ramesh Sarda Partner in M/s. Zumberlal Sitaram Sarda, Sarda Lane, Ahmednagar …Petitioner/Complainant Versus The Manager United India Insurance Co. Ltd. Divisional Office, Kisan Kranti Bldg., Market Yard, Ahmednagar

BEFORE

For the Petitioner : Mr. Jitendra Kumar, Advocate

For the Respondent : Mr. S.K. Ray, Advocate

O R D E R

This revision petition has been filed by the petitioner/Complainant against the order dated 02.11.2007 passed by the State Consumer

Disputes RedressalCommission, Mumbai, Circuit Bench at Aurangabad (in short, ‘the

State Commission’) in Appeal No. 863/2001 – Mrs. Laxmi Ramesh Sarda Vs. The

Manager, United India Ins. Co. Ltd. by which, while dismissing appeal, order of District

Forum dismissing complaint was upheld.

2. Brief facts of the case are that complainant/petitioner purchased CIELO passenger car for Rs.5,47,000/- on 15.6.1996. Car was insured with the OP/respondent for a sum of Rs.5,00,000/- for a period of one year commencing from 21.7.98 to

20.7.99. On 15.7.1999, car met with an accident and car was totally smashed and damaged and was a case of total loss. Claim was submitted to the OP and OP finally paid Rs.2,36,500/- by cheque dated 15.11.1999 which was accepted by complainant under protest as Rs.2,36,500/- has been paid less. Alleging deficiency on the part of

OP, complainant filed complaint before District Forum. OP contested complaint and submitted that amount of Rs.2,36,500/- was accepted by the complainant as full and final satisfaction; hence, complaint is not maintainable. It was further submitted that vehicle was purchased in the year 1996 and its value could not have been

Rs.5,00,000/- at the time of issuance of policy. It was further submitted that market price of the vehicle as per surveyor’s report was Rs.2,35,000/- and Rs.2,36,500/- has already been paid; hence, no deficiency on the part of OP and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint against which, appeal filed by the petitioner was dismissed by learned State

4. Learned Counsel for the petitioner submitted that as it was a case of total loss, petitioner was entitled to receive full value of the vehicle for which it was insured and learned State Commission has committed error in dismissing appeal and leaned District

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

5. It is admitted case of the parties that vehicle was purchased on 15.6.1996 for

Rs.5,47,000/- and was insured for Rs.5,00,000/- on 21.7.1998. It is also admitted case that on account of accident on 15.7.1999, car was totally smashed and damaged and it was the case of total loss. Now, the question is whether; petitioner was entitled to receive Rs.5,00,000/- the amount for which vehicle was insured, or to get market price.

6. As far as payment of Rs.2,36,500/- as full and final settlement, perusal of record clearly reveals that amount was accepted by the petitioner under protest without prejudice. In such circumstances, it cannot be said that petitioner received this amount as full and final satisfaction and in such circumstances, complaint was maintainable.

7. As far as amount payable is concerned, as per insurance policy, vehicle was insured for Rs.5,00,000/-, but as per Surveyor, G.S. Advani & Co. total repair cost was

Rs.3,05,000/- and market value of the vehicle was Rs.2,35,000/- including salvage of Rs.65,000/-. As per The Institute of Insurance Surveyors & Adjusters (Mumbai),

Pune Unit, the market value of the insured vehicle was around Rs.2,35,000/-. This opinion was given by 3-Member Committee after inspecting the vehicle and enquiring market value of the vehicle from various sources and in such circumstances, we assume that market value of the vehicle on the date of accident was around

Rs.2,35,000/-.

8. The short question to be decided is whether petitioner is entitled to receive insured value or market value.

9. Learned Counsel for the petitioner placed reliance on judgement dated 3.9.2013 in

R.P. No. 4279 of 2012 – Dr. Vir Singh Malik Vs. The Oriental Insurance Co. Ltd. in which it was held that insured is entitled to receive compensation on the basis of value shown in insurance policy after deducting some depreciation. On the other hand, learned Counsel for the respondent placed reliance on II (1992) CPJ 484 (NC)

– Oriental Insurance Co. Ltd. Vs. Suresh Arjun Karande in which it was held that as per Condition No. 4 of the insurance policy, insured is entitled to receive value specified in the policy or value of the vehicle at the time of damage, whichever is less. Condition

No. 4 of the insurance policy runs as under: “ 4. The company may at its own option repair, reinstate or

replace the motor vehicle or part thereof and / or its accessories or

may pay in cash the amount of the loss or damage and the liability

of the company shall not exceed the actual value of the parts

damaged or loss less depreciation for the reasonable cost of fitting

and shall in no case exceed the insured estimate of the value of the

motor vehicle (including accessories thereon) specified in the

schedule or value of the motor vehicle (including accessories

thereon) at the time of the loss or damage whichever is less.

This condition makes it clear that in case of total damage to the insured vehicle, insured is entitled to receive insured value of the vehicle or value of the motor vehicle at the time of loss whichever is less.

10. This Commission in II (1992) CPJ 484 (NC) – Oriental Insurance Co. Ltd.

Vs. Suresh Arjun Karande has held that the State Commission was not right in awarding to the complainant the full amount mentioned in the policy and further held that surveyors should submit their separate and independent reports to the General

Insurance Corporation and ascertain market value of the vehicle. In the present case, as per surveyor G.S. Advani & Co. report, total cost of the repairs of the vehicle was

Rs.3,05,000/- and market value of the vehicle was Rs.2,35,000/-. As per report of The

Institute of Insurance Surveyors & Adjusters (Mumbai), Pune Unit, market value of damaged vehicle was Rs.2,35,000/- and salvage value of the vehicle was

Rs.65,000/-. This report was given by the Committee of 3-independent surveyors after inspecting the vehicle and inquiry from market. In such circumstances, it can be presumed that value of the vehicle was around Rs.2,35,000/- and as per Condition No.4 of the insurance policy, petitioner was entitled only to receive Rs.2,35,000/-. In our judgment in Dr. Vir Singh Malik Vs. The Oriental Insurance Co. Ltd. (Supra) case insured amount was allowed after depreciation because neither such condition was brought to our notice, nor report of independent surveyor regarding value of vehicle was placed.

11. In such circumstances, petitioner is not entitled to receive remaining

Rs.2,63,500/-. Learned State Commission has not committed any error in dismissing appeal and upholding order of District forum dismissing complaint, though on other grounds.

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

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER k National Consumer Disputes Redressal Commission New Delhi

(Circuit Bench, Rajasthan, Jaipur)

Revision no. 3209 of 2008 (From the order dated 07.05.2008 in FA no. 115 of 2008 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

1.M/s Sahara India Commercial Corporation Ltd Sahara Indian Bhavan, Kapoorthala Complex Lucknow, Uttar Pradeesh Through its Sector Manager

2.The Manager, Sahara India Opposite Kisan Talkies Deoli, District Tonk Rajasthan Petitioners

1.Smt Rasal Devi Meghwanshi Wife of Late Ram Pal Meghwanshi Resident of Datob, Teshil Todarraisingh District Tonk, Rajasthan

2.Dhanraj Son of Shri Rodu Resident of Village Datob Teshil Todarsingh District Tonk, Rajasthan (being a minor through his mother And guarding Smt asal Devi Meghwanshi (Grandmother) Respondents

BEFORE:

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

For the Petitioner Ms. Amrita Narayan, Advocate

For the Respondents Mr. Vimal Kumar Jain, Advocate

Pronounced on 23 rd August 2013

O R D E R

REKHA GUPTA

The revision petition no. 3209 of 2008 has been filed against the final judgment and order dated 07.05.2008 of the Rajasthan State Consumer DisputesRedressal Commission, Jaipur ('the State Commission') in First Appeal no. 115 of 2008. The brief facts of the case as given by the respondents/ complainants are as follows: Shri Ram Pal Meghwanshi husband of respondent no. 1 had purchased a bond of Rs.1,000/- on 29.09.1998 under the scheme S - 10 issued by the petitioner whose maturity date was of 10 years. The receipt of bond serial no. 38450038220. At the time of purchase of the bond Shri R P Meghwanshi has nominated the respondents as nominees. Respondent no. 1 is a widow who is making rounds to the petitioner company to receive the amount but no attention was paid to her. From time to time the employees of the office of petitioner no. 2 had been giving her assurance. According to the instructions of the company the respondents opened a joint account in the Arawali Kshetriya Gramin Bank branch Uniyara Khurd Teshil Toda Rai Singh whose account number is 2825. The petitioners/ opposite parties have only deposited an amount of Rs.1,000/- in the said account, whereas the company should have made the payment of whole amount. In spite of many rounds and requests of respondent no. 1 the petitioner company has not made the payment to the respondent whereof the respondents are facing several types of hardships. According to S - 10, petitioner had to pay a sum of Rs.1,000/- per month up to 120 months according to the rules of the company after the death of bond holder or one-time cash payment. The petitioner company has however paid only one installment to the respondents. When the respondent visited the office of the petitioner no. 2 she was told that the amount would come in her account altogether.

Petitioner no. 2/ opposite party no. 2 on behalf of the petitioners in their reply has stated that the condition to pay the amount is correct but respondent was never given an assurance to receive the amount in future because under the said scheme the prescribed age limit has been prescribed below 60 years. The respondents cannot get the benefit of the said scheme because the deceased was above 60 years old. The information has been given to the respondents in this regard. As per condition no. 5 A of the bond which was purchased by the husband of the respondent no. 1 the successors of the deceased can get the benefit only if the age of the deceased is within 16 to 60 years at the time of death. On receipt of the said application, the investigator according to the rules of the company, having investigated presented an enquiry report on the basis of the same the age of the deceased is different in the ration card and in the voter list. In voter list 2005 the age of the deceased is 66 years. On the basis of photo identity card 1995 the age of the deceased is 64 years. On the other hand for getting the benefit of the said scheme, after the death of Ram Pal, on 01.11.2005 the applicants got furnished a certificate from the Sarpanch of village Panchayat head on which the application has been presented. This cannot be a ground, because after the death of the deceased the certificate has been caused to be prepared from Panchayat to get the benefit of this scheme. It has not been mentioned as to which document was available in the panchayat for them to verify and certify his age. On the basis of the same the complainants cannot get any help and as such the complainants are not entitled to receive the benefit of this scheme. As per the Sahara 10 Scheme, on the death of bond holder for the rehabilitation of the family of bond holder the aid/ grant is given to the nominees/ successors nominated by the bond holder. It is necessary to comply the following conditions of the scheme in regard to get the said aid/ grant: (a) The death of bond holder should occur after 12 months (365 days) from the date of purchase of the bond and before the completion of this period. (b) At the time of the death the age of the bond holder should be between 16 to 60 years. (c) The bond holder must not be suffering from any fatal/ incurable disease continuously within three years before the purchase of the bond. To receive the aid/ grant after the death certified and reliable documents shall be presented by the nominated nominees in this regard. The birth certificate and certificate relating to the death of the bond holder shall be presented for the satisfaction of the company. (d) The death of the bond holder not be caused by suicide or by the capital punishment awarded by the court. (e) The death of the bond holder not be cause due to communal riots or war.

The nature of the facility given after the death shall be interest free loan according to the rules and conditions of the said scheme whose payment is to be made by the nominee in 20 years and the nominee can get the said aid/ grant by giving his personal bond and according to the conditions of section VI. The District Consumer Disputes Redressal Forum, Tonk, Rajasthan ('the District Forum') vide order dated 28.11.2007 after hearing the counsel and going through the records have observed as under:

"In these circumstances it was most important fact whether the death of the deceased occurred before 60 years or not and on this issue the documents which opposite party filed on the basis of the same and the certificate presented by the complainant it cannot be decided whether the death of the deceased occurred before the completion of 60 years. Hence, it is not justifiable to cause to give any relief to the complainant. If the complainant desires, he can initiate proceedings in the civil Court. Hence, the District Forum directed that the complaint filed on behalf of the complainant is rejected against the opposite party. Considering the circumstances, the parties shall bear the cost of the complaint".

Aggrieved by the order of the District Forum, the respondents filed an appeal before the State Commission. The State Commission has observed as under: "In this connection, we perused the investigation report submitted by the opposite party/ respondents and found that while giving report on the above mentioned fact in the investigation report, the investigator has admitted: The respected account holder was illiterate and would do agriculture. According to the birth certificate issued by the office of Gram Panchayat, Datob, his date of birth is 10.07.1947 and the same was found correct on confirming from Gram Panchayat and on the basis of the same his age is 57 years 5 months and 13 days. Similarly in the same investigation report, it has been stated: According to family ration card of 2001 his age is 53 years according to which on the dated 23.12.2004 of death, the age of account holder is about 56 years. In the same investigation report, it has been admitted that: On interrogation to neighbourhood and villagers it has been told by them that at the time of death his age was about 60 years. In our opinion in such circumstances even on the basis of this investigation report, the date of birth mentioned by the complainants is confirmed. Definitely the investigator on behalf of respondents has given details of over age as given in voter ID card in regard to the age of bond holder. But considering this fact that bond holder was illiterate, then this controversy loses its importance particularly when investigator would tell the age of insured below 60 years by other investigations. In this regard when on behalf of Shri Ram Pal Meghwanshi a sum of Rs.1,000/- was made deposited with Sahara India Pariwar for the purchase of bond at that time no dispute regarding the age of the bond holder was not raised by the respondents and in such circumstances, in my opinion it is not reasonable to raise dispute regarding age after his death. The District Forum has not considered the above mentioned facts due to which the order passed by them cannot be regarded in accordance with law. In my opinion the appeal of the appellants is liable to be allowed. Hence, the appeal of the appellants is allowed. The order in question dated 28.11.2007 is set aside and the complaint of the complainants is allowed thus, that the opposite party/ respondents shall pay Rs.1,000/- monthly to the appellants/ complainants from the death date 23.04.2004 till next 10 years on the basis of the face value of the bond purchased by the deceased. In addition to that the opposite party shall pay a sum of Rs.1,000/- to the complainants as complaint expenses within two months from the date of this judgment". Hence, the present revision petition. The main grounds for the revision petition are that :  it is settled proposition of law that the consumer courts do not have the jurisdiction to adjudicate complicated questions of fact. In the present case there is bonafide dispute regarding the age of the deceased at the time of his death. There being a bonafide dispute regarding the age of the deceased at the time of his death, the appropriate remedy for the respondents was to approach the Civil Court to redress their grievances. The Consumer Forum,Tonk rightly addressed their grievances by given them the right to approach the civil courts. However, the State Commission erred in reversing the judgment of the Consumer Forum, Tonk vide the judgment which is impugned herein.  The the learned courts below have interpreted the scheme to mean that the nominees of the deceased would be entitled to the amount as a grant which need not be repaid. This however, was neither the intent of the scheme nor the mandate of the agreement between the parties. In fact, in another matter, where the State Commission, Orissa passed a similar order directing the death help to be paid in the forum of a grant, this National Commission was pleased to stay the operation of the impugned orders of the State Commission vide orders dated 27.09.2007 in revision petition no. 3181 of 2007.  in view of the above said orders passed by this Hon'ble Commission, since the present matter also involves the same question of law, it would be expedient and in the interest of justice to pass similar orders in the present petition as well.  The treatment of death help as a grant or an insurance policy is neither sustainable on facts of the case nor was it the intent of the scheme floated by the petitioner. In fact, the said scheme was only to provide an interest free loan to the respondents against furnishing personal guarantee and the presumption of the Hon'ble State Commission that the same was a grant in aid to the nominees of the deceased bond holder is thus liable to be set aside. We have heard the learned counsel for the petitioner and the respondent and have gone through the records of the case. It is an undisputed fact that the petitioner Shir Ram Pal Meghwanshi in his application form no. 208 dated 29.09.1998 had declared his age as 51 years. He had also not given his date of birth certificate to support the same. The petitioner had not raised any objection at that point of time and allowed him to purchase the bond. In fact they never raised the issue regarding date of birth till after the death of the Shri Ram Pal Meghwanshi, and the respondents who are nominated by him, claimed the due amount of death help as per clause 10 of the bond. We agree with the State Commission that it is not reasonable and fair to raise the dispute regarding the age after the death of the bond holder. In view of the above circumstances, we find that there is no jurisdictional error or illegality in the order of the State Commission warranting our interference. However, a partial modification is made to the extent that as agreed to by the counsel for the respondents/complainants the amount of loan that is paid by the petitioner will be repaid within a period of 20 years as per the terms and conditions of the bond. Sd/- ……………………………….J [ V B Gupta ]

Sd/- ………………………………… [ Rekha Gupta ] satish

REVISION PETITION NO. 1311 OF 2013 (From order dated 15.11.2012 in First Appeal No. 164 of 2012 of the State Consumer Disputes Redressal Commission, Kerala, Thiruvananthapuram)

Rajiv Navath, S/o. Achuthan, Puthan Vayayl House, P.O. Melur, Thalassery -670661, Kerala … Petitioner

Versus

1. Dr. Shajahan Yoosaf Sahib, Chairman and M.D., Al-Shifa Super Speciality Hospital For Piles, Near K.S.R.T.C., Rajaji Road, Kochi-35, Kerala

2. Dr. P.C. Joseph, Medical Superintendent, Al-Shifa Super Speciality Hospital For Piles, Near K.S.R.T.C., Rajaji Road, Kochi-35, Kerala

3. Al-Shifa Super Speciality Hospital For Piles, Near K.S.R.T.C., Rajaji Road, Kochi-35, Kerala … Respondents

BEFORE:

For the Petitioner s : Nemo

Pronounced On September , 2013

1. Brief Facts of this case:

On19/7/2006 the Complainant consulted Dr. Shajahan Yoosaf Sahib (OP-1) of Al- Shifa Super Specialty Hospital (OP-3) for treatment of piles (Hemorrhoids). On very same day at about 10.30 a.m., OP -1 and OP-2 removed the piles by laser treatment and the Complainant was discharged on the same day, with an advice to take medicines as prescribed and take rest for 2 weeks. Complainant paid total sum of Rs.13,100 /-. The Complainant took rest for one day at Ernakulam and then went to his native place at Thalassery. On the third day, the Complainant felt acute pain in his anus. The Complainant contacted OP-2, over telephone. He advised him to take ‘voveran 50 tablets’. Since there was no relief, the Complainant again contacted the OP-2 and as prescribed by OP-2, voveran injection was taken, but the pain still persisted. On 06.08.2006, the Complainant was admitted at the Indira Gandhi Co- operative Hospital, Thalassery due to severe pain in his anus. Dr. Sunil Kumar (PW2) examined the Complainant and found that the anus had shrunk because of the laser treatment. The doctor prescribed some medicines to heal the wound. He was hospitalized for same complaints from 17/08/2006 to 21/8/2006. Due to rashness and negligence of OP-1 & 2 it resulted in the injury to the anus of the Complainant and suffered loss. Also, the allegation was that the OP-1 did not possess any degree in medicine. The Complainant filed a complaint No. 231/2008 before District Consumer Disputes Redressal Forum (in short, ‘District Forum’) seeking a compensation of Rs.10,00,000/- from the OPs, with interest and costs.

2. After hearing and adducing the evidence on record, the District Forum, came to the conclusion that as per evidence of OPs, prior to treatment, informed consent was taken and the patient was explained about advantages of laser treatment over other line of treatment and complications involving cryosurgery. Complainant was treated by laser and radiofrequency under spinal anesthesia by the OP-2 with proper skill. The district forum did not find any negligence and deficiency on the part of OPs; hence accordingly the complaint was dismissed.

3. Against the order of the District Forum, the Complainant preferred an appeal FA164/2012 before the State Consumer Disputes Redressal Commission Thiruvananthapuram (in short, ‘State Commission’).

4. The State Commission heard the Counsel for both the parties and after perusal of records, dismissed the Appeal,

5. Aggrieved by the order of the State Commission, the Complainant filed this Revision Petition.

6. The Complainant sent a letter and expressed his inability to travel from Thalassery (Kerala) to Delhi, due to his ill health and since he is a poor man, prayed to decide the Petition in his absence. We have perused the evidence on record and observations made by State Commission.

7. The complainant’s main allegation was that there was medical negligence by OPs in treatment and also they are not qualified. The evidence on record clearly shows that the OP-2 acquired his qualifications as MBBS in 1970 and MS General Surgery 1987 from Kerala; both the degrees are recognized by Medical Council of India (MCI). 8. It is seen from complainant’s evidence that he was suffering from hemorrhoids for the past 12 years and about 10 years back, he had undergone cryosurgery at the Santosh Hospital, Thalassery, Kerala. According to him, he was trouble free for 8 years. From 2005, he was suffering again and taking medicines as and when necessary.

9. The State Commission observed ;

“The Complainant relied upon the evidence of PW2 the doctor who treated him subsequently when he was admitted in the Indira Gandhi Co-operative Hospital, Thalassery. According to him due to the surgery at the hospital of the OP-3, there was severe infection for the Complainant. He deposed that the patient had not told him on the procedure to which the Complainant was subjected to but he gave medicine to heal that portion. The patient was examined by him 17.08.2006 again and he found that the anus had shrunk. According to him, the surgery ad infection at the hospital of the OP- 3 was the reason for the complaints. Then he deposed that the patient told him that laser treatment was given at the OP-3 hospital. He deposed the medical treatment and surgical treatment are usually done in the case of hemorrhoids but it could not be completely cured using medicine. PW2 stated that the diagnosis is septicemia and he admitted that it is a life threatening one. PW2 deposed that after surgery infection may occur to patients. Stricture to anus happens after surgery due to internal splint injury. Due to no other cause stricture would occur. He stated that it is incorrect to say that post -operative infection is due to the negligence of the doctor”.

10. We have referred several medical literature and standard medical books on surgery like Sabiston Textbook of Surgery, Mastery of Surgery by Josef E. Fischer - Volume 1, Maingot's Abdominal Operations, 12th Edition , and Practice of Surgery for the Colon, Rectum, and Anus, by Philip H. Gordon,Santhat Nivatvongs. In our observation, we found ;

The term "hemorrhoids" refers to a common condition occurring worldwide. This condition affects both sexes equally, and although seen more commonly in adults and the elderly, it also affects children.

Because hemorrhoids have a complex and controversial etiology, with different degrees or stages and locations of pathology, no single mode of therapy has proven completely effective in the fields of surgery and bio medics.

Laser hemorrhoidectomy is one of the best non-operative (conservative) options which is preferred than, Rubber band ligation, sclerotherapy, infrared photocoagulation, cry-therapy, manual anal dilatation etc. It is for first- and second- degree hemorrhoids and is usually carried out on outpatient basis .The complications are minor, and the cure rates are high Laser hemorrhoid surgery also usually leads to the wound, healing faster.

11. Therefore, we are of considered view that, the OPs are qualified and adopted the treatment as per standards of medical practice. The method of treatment was also one of preferred choice of non-operative method. The complainant’s sufferings were result of infection caused due to his negligence as he did not follow the instructions of doctor. He has not taken rest for 2 weeks, but travelled in train.

12. What constitutes Medical Negligence is now well established by a plethora of Rulings of the Honorable Supreme Court of India and by several orders of this Commission. In the Bolam’s case (Bolam Vs. Frien Hospital Management Committee (1957)1 WLR 582). The locus classicus of the test for the standard of care in law, required of a doctor, developed from this landmark case. Mr Justice McNair, in his direction to the jury, said: [a doctor] is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art …Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.

13. In view of above discussions, we find no illegality or infirmity in order passed by both the fora below, warranting our interference. The revision petition is accordingly dismissed, with no order as to cost.

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

……………….…………… (Dr. S.M. KANTIKAR) MEMBER Mss-04 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1285 OF 2013 (Against the order dated 06.03.2012 in Appeal No.818 of 2011 of the State Commission, Rajasthan)

M/s. Marksoft Technologies Pvt. Ltd. Through: Director, Registered Office: C-119, 2nd Floor, Behind New Vidhaan Sabha, Lal Kothi, Jaipur (Rajasthan)

2. Baljindra Sharma @ B. Sharma, Son of Shri S.S. Sharma, Director, M/s. Marksoft Technologies Pvt. Ltd. Resident of E-733, Gandhi Nagar, Jaipur (Rajasthan)

3. Ajay Sharma, son of Shri S.S. Sharma, Director, M/s. Marksoft Technologies Pvt. Ltd. Resident of A-10, Sohan Nagar, Manayavas, New Sanganer Road, Mansarowar, Jaipur Rajasthan ...... Petitioner

Versus

Dilip Singh Shekhawat Son of Shri Abhay Shekhawat Resident of 70, Poultry Estate, Agra Road, Jaipur (Rajasthan) .....Respondent

BEFORE: HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER

For the Petitioner : Mr. Devendra Mohan Mathur, Advocate

PRONOUNCED ON: 24-9-2013

PER MR. VINAY KUMAR, PRESIDING MEMBER This Revision Petition is filed by M/s. Marksoft Technologies Pvt. Ltd. (hereinafter referred to as MIT) and others against concurrent findings and orders of Consumer Protection Forum, Jaipur and of the Rajasthan State Consumer Disputes Redressal Commission. The matter arose in a complaint filed by the present

Respondent, Dilip Singh Shekhawat before the District Forum. 2. The facts, as seen from the record, are that the Complainant, who was working in Saudi Arabia and on a visit to India, was attracted by an advertisement issued by the revision petitioners. It was captioned ‘We promise you an overseas job else Rs.2.25 Lacs’. The advertisement introduced the revision petitioners/MIT as MIT, an international training & development company with IT presence in 7 countries worldwide. It was also advertised that on completion of two courses out of three run by them, there shall be a guarantee for appointment or Rs.2.25 lack shall be paid. The Complainant entered into an agreement with RP/OP and paid in all Rs.62500/- as fee. He completed one of the two programmes on 4.4.2001 and the second on 5.7.2001. He also completed a third programme on 14.9.2001. His complaint was that even after completing all the three courses, the Complainant was neither given the appointment nor paid Rs.2.25 lack, as agreed. He alleged it as unfair trade practice on the part of the RP/OPs. 3. An agreement bond was signed by the Complainant on 26.3.2001 with OP No.3 / Ajay Sharma. The order of the District Forum specifically referred to condition nos.6 and 9 in this agreement, which read as follows:- “ 6. That MIT shall provide a job for the eligible trainee as mentioned and will inform the trainee about the said job opportunity for his/her employment. It is assured that the job opportunity shall be either abroad or in a Multi-National company in India or abroad.” “ 9. That in case no job or service is offered to the eligible trainee, with in the duration of 18 months from the date of admission, then the MIT shall pay a minimum Rs.6000/- per month for six months after successfully completion of certifications as mentioned in clause No.2 and then a sum of Rs.150,000 only (Rupees One Lac Fifty thousand Only) in lump sum to the said trainee after the end of 18 months. After paying this amount the bond shall stand nullified.”

4. Considering these two conditions, the District Forum observed that— “Vide appointment letter dated 18.9.2001 the complainant was given appointment in their own Company on payment of Rs.3060/- and other allowances on the post of Technical Executive and the complainant accepting the appointment worked there from 11.1.2001 till 31.12.2001; but whether this appointment was in accordance to the conditions of the agreement dated 26.3.2001. Under condition No.9 of the agreement comes into play only when the successful trainee is not given appointment within 18 months from the date of admission in the course. According to the contention of the respondents the complainant was given appointment to the post of Technical Executive therefore, the condition No.9 has no importance. In the case under consideration condition No.6 of the agreement is important wherein the respondent Company gave assurance to give appointment to the trainee in the Country or abroad or in any multinational company. In consideration of the Forum the complainant was given appointment in the own company of the respondents is not in accordance with the condition No.6 of the agreement because the respondent Company works for running different computer training courses and there is no mention in the agreement to this effect that the respondent Company is included in multinational companies as per condition No.6 of the agreement. Under condition No.3 the respondent Company has mentioned but there is mention of it to be as per the agreement. In the circumstances of the case in opinion of the Forum it has not been proved to give appointment to the complainant by the respondent as per the agreement dated 26.3.2001 and thus, there has been deficiency in services of the respondent Company.”

5. In the impugned order, the State Commission has arrived at a similar conclusion and observed— “ In our view, the advertisement which was published by the company there was promise in it of the kind that they shall be provided opportunities in multi national companies or jobs overseas. In case someone does not get the job for 18 months, in that situation also the company shall pay Rs.6000/- per months for 6 months to the complainant and thereafter he was to be paid one time amount Rs.1.50 Lacs. If we do not agree in our view with the contentions that the complainant was not given services on Rs.6,000/- per month in the appellant company, the conditions of the agreement are not fulfilled and the contention made in the advertised news is proved to be true. The appellants have not been able to satisfy us that they provided any opportunity to the complainant for job in any multi national company or job overseas or they ever offered any such job to him. Providing service on Rs.6000/- per month in their own company is not important because in the event of not having any opportunity of the services this amount was mandatorily to be paid to him as has been mentioned in the agreement. Thus, we are agree that false assurances are given to unemployed candidates through advertisements and keeping them in dark procuring fees from them in the name of giving admission to the courses but later on all such promises are not completed. It was clear mentioned in the advertisement that the applicant shall be provided opportunities for job in any multi national companies or overseas or in India. But the appellants have not been able to prove nothing in this regard as to when they provided such opportunities and where to the complainant.”

6. In the Revision Petition filed before this Commission, the MIT has challenged the above concurrent view of the District Forum and the State Commission. The records filed by the petitioner have been carefully considered and the petitioner’s counsel, Mr Devendra Mohan Mathur has been heard. The main contention is that the complainant had not acquired the requisite qualification and thereby failed to acquire the eligibility. He had to have a graduation degree for it. It is also contended that by accepting the job offer made by the RP/OP the respondent/complainant had abandoned the job placement agreement. 7. It needs to be observed here that both the above contentions are in the arena of findings of fact, which cannot be challenged in a Revision Petition. The power of this Commission under Section 21 (b) of the Consumer Protection Act is limited to intervention to the extent, the State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. However, it is also pointed out that neither the revision petition nor the arguments of their counsels have referred to any evidence tendered on these two points before the fora below. No reference is made to any evidence before the fora below to show that the respondent/Complainant had accepted the offer of RP/OP in lieu of placement promised to him. It is also not the case of the revision petitioners that the evidence adduced in this behalf was misconstrued or ignored by the fora below. On the contrary, the State Commission has categorically observed that the question whether the Complainant was a graduate or not, was not an issue to be decided at that stage of the matter because, at the time of admission, if the Complainant did not have the requisite eligibility/qualification, he should not have been allowed admission to the course. Therefore, the two contentions of the revision petitioner do not merit any further consideration.

8. In the result, revision petition no.1285 of 2013 is held to be devoid of any merit. It is consequently dismissed for the same reasons. No order as to costs. …..…………….…….…… (VINAY KUMAR) PRESIDING MEMBER S./-

REVISION PETITION NO. 2339 OF 2012 (From the order dated 5.3.2012 in Appeal No.216/2011 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

New India Assurance Company Limited Regional Office 1 Jeevan Bharati, 124 Connaught Circus New Delhi – 110001

… Petitioner

Versus

1. M/s L.B. Patil & Bros. Cotton Merchants, APMC Ranebennur-581115 District Haveri, Represented by its Managing Partner Linganagouda Basanagouda Patil Karnataka

2. National Insurance Co. Ltd. Unit 602508, Ist Floor, Pune – Bangalore Road Near Bus Stand, Haveri 581110 Karnataka

.. Respondents

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER For the Petitioner : Mr. Salil Paul, Advocate

For the Respondent-1 : Mr. Rajesh Mahale, Advocate

For the Respondent-2 : Mr. Ravi Bakshi, Advocate

Dated : 24 th September, 2013

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the order of the State Commission dated 05.03.2012 whereby the State Commission dismissed the appeal of the petitioner / OP against the order of the District Forum allowing the complaint of OPNo.1 in following terms:

“The complaint is allowed.

OP No.1 is directed to pay Rs.19,00,000/- ( Nineteen Lakh) to complainant with interest @ 8% per annum from the date of complaint till realization. OP No.1 should also pay compensation at Rs.10,000/- ( Ten Thousand) and cost of this complaint at Rs.5000/- to the complainant. The complaint against OP No.2 is hereby dismissed. No cost”.

2. One of the plea raised on behalf of petitioner / OP No.1 before the fora below was that the complaint itself was not maintainable because the respondent no.1 had settled the claim by receiving a sum of Rs.38,98,903/- in full and final settlement of the claim. Though both the fora below came to the conclusion that respondent / complainant had actually received a sum of Rs.38,98,903/- from OP No.1 and executed the settlement voucher in full and final discharge of claim, they rejected the plea of the petitioner / OP No.1 on the premise that full and final settlement voucher was executed by the complainant / respondent no.1 under duress because of financial constraints.

3. Shri Salil Paul, Advocate, learned counsel for the petitioner has contended that the orders of the fora below are not sustainable as those are based on incorrect appreciation of the law laid down by the Supreme Court in the matter of United India Insurance Vs. Ajmer Singh Cotton & General Mills & Ors. II (1999) CPJ 10 (SC) and the facts of the case. Learned counsel submitted that the fora below have failed to appreciate that there was no coercion or undue pressure on the complainant / respondent no. 1and he voluntarily settled his claim by receiving the above noted sum and full and final discharge of his insurance claim. In support of this contention, learned counsel for the petitioner has taken us through relevant documentary evidence on record.

4. Learned counsel for respondent no.1 on the contrary has argued in support of the impugned order. He has contended that fora below have rightly appreciated the facts and concluded that the discharge voucher was signed by respondent no.1 under duress because of financial crisis. Expanding on the argument, learned counsel for respondent no.1 has stated that claim of respondent no.1 was for Rs.1,10,000/-. Therefore, it is unimaginable that he would have accepted a sum of Rs.38,98,903/- in full and final settlement against the said claim unless there was some pressure on the respondent.

5. We have considered the rival submissions and perused the material on record. Execution of the full and final settlement voucher as also the receipt of sum of Rs.38,98,903/- is not denied by respondent no.1. Thus only question for determination is whether the settlement voucher was signed by the complainant / respondent voluntarily or due to coercion and duress. In order to find answer to this question, it is necessary to have a look on relevant dates and documents.

6. As per the allegations in the complaint, fire accident resulting in loss of goods took place on 05.01.2008 at about 3.30 p.m. Perusal of the copy of the surveyor report of M/s SrivatsanSurveyors Private Limited reveals that surveyor visited the premises of the respondent on 11.01.2008 and subsequent dates and the Surveyor Report was prepared on 12.05.2008, assessing the net loss payable by the petitioner / insurance company to the respondent / complainant at Rs.38,98,903/-. Petitioner has placed on record true copy of letter of respondent no.1 dated 13.03.2008 addressed to the Divisional Manager of petitioner / company alongwith its translated copy, which reads thus:

“Sir,

With reference to the fire damage loss to the stock of cotton, I wish to inform you that today I have explained in detail about the loss. Again your surveyor after calculating has also explained in detail. Further on the date of fire, after taking into account all the stock, your surveyor has assessed the insurance claim as Rs.39,00,000/- to Rs.40,00,000/- approximately ( Rupees Thirty Nine Lakhs to Forty Lakhs ) and has informed me accordingly. As there is financial difficulty, I am agreeing voluntarily for the said compensation. I am agreeable to accept the above amount subject to the condition that this amount is exclusive of Rs.25000/-, which I am getting from other Insurance Company and without deduction of salvage amount”.

7. On reading of the above, it is clear that complainant himself offered to accept the amount of loss assessed by the surveyor on the basis of stock position in settlement of his insurance claim. No doubt respondent / complainant in its letter has written that because of financial difficulty he was voluntarily agreeable to accept the aforesaid amount as compensation but in my view, this cannot be taken as a circumstance to conclude that the respondent / complainant was subjected to coercion or undue pressure for settling his claim. Further, we may note that petitioner has placed on record photocopy of fire claim form submitted by the respondent / complainant under the signatures of its partner which indicate that at some stage, the respondent / complainant had filed his claim for Rs.40,00,000/- against which admittedly the petitioner has received a sum of Rs.38,98,903/- as full and final settlement, which as per the survey report is the actual loss suffered by the respondent / complainant due to fire accident.

8. The cumulative effect of above noted circumstances clearly is that this is a case of voluntarily settlement of insurance claim on the part of the complainant / respondent. This conclusion is further fortified by the fact that fire accident took place on 05.01.2008. The surveyor visited the premises of the petitioner on 11.01.2008 and submitted his final report on 23.10.2008 i.e. within ten months of the date of loss which rules out possibility of any pressure or coercion having been exercised by the petitioner on the respondent to settle the matter. Not only this, the complaint was filed by the complainant sometimes in June 2010 i.e. after a lapse of more than 1 ½ years from the date of signing of settlement voucher. Had this been a case of coercion, the complainant / respondent was expected to take immediate steps for filing a consumer complaint which is not the case. Therefore also, we find it difficult to hold that the settlement voucher was not voluntary.

9. In view of the discussion above, I am of the opinion that both the fora below have failed to appreciate the evidence in correct perspective and they committed a grave error in holding that complainant / respondent has signed the settlement voucher under duress or pressure. Thus, the impugned orders suffers from material irregularity and cannot be sustained. Revision petition is, therefore accepted and orders of the fora below are set aside and complaint is dismissed with no order as to costs.

…………………..………..

PRESIDING MEMBER

Am NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

FIRST APPEAL NO. 35 OF 2009 (Against the order dated 03.10.2008 in Complaint No. SC/427/0/1995 of the State Commission, West Bengal)

Sri Anup Kumar Kar Son of Late Jyotish Chandra Kar Residing at B-1/449 [B] P.O. Kalyani District : Nadia West Bengal- 741235 …..Appellant Versus Dr. Debapi Roy, Son of Sri Biswababndhu Roy, Residing at B-13/125 Kalyani, P.O. & P.S. Kalyani District: Nadia, West Bengal .....Respondent

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

For the Appellant : Mr. Siddhartha Chowdhury, Advocate

For Respondents : Mr. Partha Sil, Advocate (Amicus Curiae)

PRONOUNCED ON: 24-9-2013. ORDER

PER MR. VINAY KUMAR, MEMBER The case of the Appellant/Complainant before the State Commission was that on

24.9.1994 his 15 year old son had fallen from a bicycle and injured his right forearm. The Appellant took him to the Respondent/ Opposite Party, Dr Debapi Roy who, after taking an X-ray, found that both the bones of the forearm were fractured. Thereafter, the respondent put plaster cast on the limb and assured full recovery within 6 weeks. On 6.11.1994, a check X-ray was taken in which angulation in marked degree in the bone structure was revealed requiring conservative manipulation to the deformed union. Respondent did a second plaster on 9.11.1994. Subsequently, on 13.11.1994, after examining the patient, respondent/OP told the appellant that no check X-ray was required.

2. The appellant/complainant, dissatisfied with the attitude of the respondent, got a fresh check X-ray done on 20.11.1994 wherein further angulation of the bone was noticed. The appellant took his son to Dr. B. K. Chakraborty at Kolkata who advised him to consult Dr. A. Mallick on 27.11.1994. Dr. Mallick, after examination, found that the the plaster cast put twice, had tended to make it bow-shaped and could have lead to gradual withering of the arm because of stiffening of the joints. Therefore, immediate corrective surgery was advised. This surgery was performed on 5.12.1994, fixing steel plates and screws on the broken bones.

3. Alleging negligence on the part of the respondent, appellant filed the complaint before the State Commission claiming Rs.50,000/- as reimbursement of the entire medical expenses Rs.10 lakh towards compensation and damages, further compensation of Rs.2,50,000/- for physical and mental torture; together with Rs.10,000/- towards costs. The State Commission allowed the complaint and awarded compensation of Rs.50,000/- and costs of Rs.5,000/- in favour of the appellant/complainant. The complainant has now filed the present appeal, seeking enhancement of compensation, as per his claim in the complaint.

4. During the course of consideration of the appeal counsel for the respondent/OP, on his specific request, was given several opportunities to file reply to the appeal on behalf of the respondent/OP. He failed to file any reply and eventually on 1.5.2013 informed the Commission that he has not received any instructions from his client. On that account, he sought to withdraw from the case. His request was declined and he was appointed as Amicus Curiae to conduct the case on behalf of the respondent. Mr. Partha Sil, Advocate (Amicus Curiae) for the respondent and Mr. Siddhartha Chowdhury, Advocate for the appellant/Complainant have been heard. We have also carefully perused the records submitted before this Commission.

5. It is contended on behalf of the appellant/Complainant that the State Commission after fully considering the case of the Complainant reached the conclusion that there was negligence on various counts in the treatment of his son. Yet, very meager amount of compensation has been awarded, which is highly disproportionate to the

Complainant’s long fight for justice since 1995 and the suffering of his son.

6. From a careful consideration of the impugned order, it is seen that the State Commission has, after detailed consideration of pleadings, evidence, expert opinions and relevant medical literature, arrived at the following findings of negligence/deficiency on the part of the respondent/OP—. a) On detection of marked angulation in the X-ray of 6.11.1994, six weeks after the first close manipulation, corrective surgery would have been the proper mode of treatment. By not doing the same, the OP had acted with negligence resulting in physical and mental pain to the victim and his father. b) The four medical experts examined on behalf of the respondent/OP admitted in their cross examination that before giving general anesthesia OP himself should have examined the boy clinically, which he failed to do. c) On two occasions manipulation of angulation in the fractured arm was done by the OP. On both occasions, he failed to advise any follow up exercises by the patient, despite claims in his oral evidence to have given such advice.

7. The case of the appellant is that due to negligent and deficient service rendered by respondent/OP, family life of the appellant as well as future of their young son have both been destroyed. In addition, the family has had to raise considerable debts for his prolonged treatment.

8. Considering the matter in its entirety, this Commission is of the view that the quantum of relief awarded by the State Commission is grossly inadequate, compared to the nature of inadequacy of medical treatment by the OP and its consequences for the appellant and his son. The State Commission has infact allowed only reimbursement of cost of treatment with cost of litigation and no compensation. Therefore, in the interest of justice and equity, we deem it necessary to raise it to Rupees five lakhs. Consequently, a lump sum compensation of Rs.5 lakhs is awarded, in substitution of the award made by the State Commission. The same shall be paid within two months from the date of this order. Failing this, interest at 9% per annum shall be paid for the period of delay. The appeal is allowed in the aforesaid terms.

…..……………Sd/-.…….…… (ASHOK BHAN, J) PRESIDENT

…..…………Sd/-….…….…… (VINEETA RAI) MEMBER

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

REVISION PETITION No. 286 of 2013 (From the order dated 11.09.2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in First Appeal no. 1597 of 2008) With IA Nos. 507 and 508 of 2013 (Stay, Condonation of Delay)

Col Randhir Singh Panwar Petitioner (s)

Estate Officer, HUDA Respondent (s)

For the Petitioner Mr Vikas Kumar Sangwan, Advocate

Pronounced on 24 th September 2013 ORDER REKHA GUPTA

Along with the revision petition an application for condonation of delay of 25 days has been filed. The main reasons for the delay is that, “the counsel for the petitioner duly drafted the present revision petition on 19.12.2012, within the period of limitation, but at the time of filing the petition the counsel misplaced the certified copy of the impugned order due to which the counsel was not in a position to file the certified copy as well as true copy of the impugned order along with the present petition. The counsel made his best efforts to find out the misplaced copy of the impugned order and has been able to locate it now on 18.01.2013 in some brief/ case file”. Counsel for the petitioner has also drawn our attention to the fact that the State Commission in this case had condoned the delay of 158 days in filing the appeal by Estate Officer, HUDA, Bhiwani – respondent herein. In the interest of justice and to maintain parity, for the reasons mentioned in the application for condonation of delay, the delay is condoned, subject to payment of cost of Rs.5,000/-. Cost be deposited in the “Consumer Legal Aid Account of this Commission” within four weeks.

Issue notice to the respondent, returnable on 13th December 2013. Sd/-

..……………………………… [ V B Gupta, J.]

1. Tata Motors Ltd. 11/3, Mathura Road, Badarpur, New Delhi – 110044 Through its General Manager/Person Overall Incharge 2. Tata Motors Ltd. No.1, Gazipur Patparganj, New Delhi – 110096 Through its General Manager/Person Overall Incharge …Petitioner/Opp. Party (OP)

Versus 1. Hazoor Maharaj Baba Des Rajji Chela Baba Dewa Singhji (Radha Swami) 4-Priya Enclave, Delhi and Presently at 37-A, Green Avenue Amritsar

2. Cargo Motors Pvt. Ltd. 65 City Centre, G.T. Road, Amritsar (Punjab) Through its General Manager/Person Overall incharge

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. Aditya Narain, Mr. Davesh Bhatia &

Mr. Shashank Bhushan, Advocates

For the Res. No.1: Mr. Soumya Chakraborty, Mr. Hargun Singh

Bhatia, Advocates. For the Res. No. 2: Mr. Anish Varma & Ms. Mamta Pal, Advocates

O R D E R

This revision petition has been filed by the petitioners/OPs against the order dated 2.3.2012 passed by the Punjab State Consumer Disputes Redressal

Commission, Chandigarh (in short, ‘the State Commission’) in Appeal No. 917/2009 – Tata Motors Ltd. & Anr. Vs. Hazoor Maharaj Baba Des Raj & Anr. by which, while allowing appeal partly, order of District Forum allowing complaint partly was modified.

2. Brief facts of the case are that complainant/Respondent No. 1 purchased Tata LP

410 Ex Model Euro III from OP Nos. 1 & 2-Petitioners on 26.12.2006 for a sum of

Rs.5,41,855/-. After purchase of the vehicle while returning back, engine of the vehicle became very hot and vehicle stopped in the way. Vehicle was handed over to the nearest dealer of OPs and dealing person at the workshop told that there was a fault in the fuel pump and fuel pump has to be changed. Later on, from time to time, vehicle started giving trouble and was again and again taken to the workshop of OPs. Lastly, it was taken to the workshop of OP-4/Respondent no. 2 who changed fuel filter, air cleaner and delivered back the vehicle to the complainant, but again it stopped in the way. Ultimately, it was sent to Shahdara Engineering, New Delhi for checking and looking the defects under warranty where it was checked and it was revealed that there was no fault in the nozzles and FIP, but there were some manufacturing defects which led to low pick up and engine heat up. Alleging deficiency on the part of OPs, complainant filed complaint before District Forum and claimed refund of price of the vehicle along with fabrication charges of Rs.2,50,000/- and compensation. OPs resisted complaint and submitted that complainant got the body of the vehicle fabricated and was being used as Bus for transportation. As vehicle had been purchased for commercial purposes and not for earning livelihood, complainant does not fall within the purview of consumer. It was further alleged that no documentary proof regarding manufacturing defects has been filed. It was further submitted that problem of throwing of coolant arose due to engine radiator fan which was fitted by body builder in opposite direction and also due to coolant pipe leakage from additional tapping of engine coolant line taken for air blower in A.C. system and prayed for dismissal of complaint. OP No.

4/Respondent No. 2 submitted that there was no manufacturing defect, but trouble, if any, was due to bad driving habit, mishandling and poor maintenance and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OPs to replace complete engine of the vehicle and further directed to pay Rs.20,000/- as compensation and Rs.1,000/- as litigation expenses. Appeal was filed by the petitioners before State Commission and learned

State Commission vide impugned order modified order of District Forum and directed petitioners to pay consolidated compensation of Rs.2,50,000/- to complainants, as vehicle was sold during pendency of appeal against which, this revision petition has been filed.

4. Learned Counsel for the petitioners submitted that as vehicle had already been sold during pendency of the complaint before District Forum, as such, complainant does not remain consumer for the purpose of Consumer Protection Act and further submitted that complainant has suppressed fact of sale of vehicle during pendency of complaint before District forum and has not come with clean hands, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the

Respondent No. 1 submitted that order passed by learned State Commission is in accordance with law, which does not call for any interference; hence, revision petition be dismissed. Learned Counsel for the Respondent No. 2 supported cause of the petitioners and prayed for dismissal of complaint.

5. Learned District Forum and learned State Commission both have held that there was inherent manufacturing defect in the engine of the vehicle which could not be rectified and replacement of engine was absolutely necessary. Learned State

Commission further observed that during course of arguments it was brought to the notice of the Commission that complainant has during pendency of appeal sold vehicle to the third party and in such circumstances, instead of replacing the engine, order for consolidated compensation of Rs.2,50,000/- was passed.

6. Learned Counsel for the petitioner submitted that as vehicle had already been sold during pendency of the complaint before District Forum, complainant does not remain consumer for the purpose of Consumer Protection Act and impugned order is liable to be set aside. He has placed reliance on I (2008) CPJ 249 (NC) –Hoshiarpur

Improvement Trust Vs. Major Amrit Lal Saini in which it was held : “12. Another issue which has been agitated before us is that the

plot in question has since been sold for a consideration of Rs. 10

lakh out of which way back in 2001, the complainant has received

Rs. 6 lakh and the balance Rs. 4 lakh later on having transferred

his right during the pendency of the complaint. In these

circumstances whether the complainant would still remain a

consumer or not? We have our serious reservation on this point.

Having disposed of the property during the pendency of the

complaint, in our view, the complainant would cease to be a

consumer.

7. He has also placed reliance on judgment dated 23.4.2013 passed by this

Commission in Appeal No. 466 of 2008 – Mr. Rajiv Gulati Vs. Authorised Signatory

M/s. Tata Engineering & Locomotive Co. Ltd. & Ors. in which it was observed as under: “ We find substance in the submissions made by the Ld. Counsel

for the Appellant. Admittedly, during the pendency of the complaint,

the vehicle was sold by the Respondent on 26th August, 2002 for

Rs.5,05,000/- without taking permission of the State Commission.

Since the vehicle was sold, it was never produced as an evidence

before the State Commission. Had the vehicle been produced

before the State Commission it could have been sent to an expert

to submit a report to examine whether there was any manufacturing

defect in the vehicle. The vehicle was not examined by any expert.

In the absence of any expert report and the laboratory test, the

State Commission erred in recording the finding that there was any

defect in the vehicle. Onus was on the complainant to prove that there was any manufacturing defect in the vehicle which he failed to

discharge.”

8. As complainant had already sold the vehicle during pendency of complaint without permission from District Forum, he ceases to be a consumer under the Consumer

Protection Act.

9. In the present case, admittedly, vehicle was sold by complainant on 30.9.2008 to

Amit Ahuja meaning thereby, this vehicle was sold during pendency of complaint before

District Forum, as District Forum decided complaint on 15.5.2009. Complainant ought to have disclosed fact of sale of the vehicle to the District Forum or should have sold the vehicle after seeking permission from District Forum. Admittedly, complainant has sold the vehicle without seeking permission from District Forum. Not only this, as per impugned order of the State Commission, complainant disclosed before State

Commission that during pendency of appeal vehicle has been sold to a third party which is also a wrong statement because vehicle had already been sold before decision of complaint by District Forum. Not only this, Respondent No.1/complainant filed counter affidavit on 9.9.2013 before this Commission and in paragraph 4 of the affidavit, he has stated as under: “ 4. xxxxx It is still further denied that the vehicle in question was

sold by the Respondent No. 1 either clandestinely or discreetly or

without the leave of the Hon’ble State Commission as alleged or at

all”.xxxxx.

10. As per statement in the counter affidavit, complainant sold the vehicle with leave of the State Commission which is apparently wrong statement. Complainant has not placed on record any permission by State Commission for selling the vehicle and it could not have been, as vehicle had already been sold during pendency of complaint.

Thus, it becomes clear that complainant has suppressed fact of selling vehicle to third party during pendency of complaint without permission from the District Forum and has given wrong statement before the State Commission as well as before this Commission and in such circumstances, complaint is liable to be dismissed, as complainant is not pursing the complaint with clean hands. Learned Counsel for the petitioner has placed reliance on (2011) 7 SCC 69 – Amar Singh Vs. Union of India (UOI) and Ors. and paragraph 53 runs as under: “53. Courts have, over the centuries, frowned upon litigants who,

with intent to deceive and mislead the courts, initiated proceedings

without full disclosure of facts. Courts held that such litigants have

come with “unclear hands” and are not entitled to be heard on the

merits of their case”.

11. He has placed reliance on (2010) 2 SCC 114 – Dalip Singh Vs. State of Uttar

Pradesh and Ors. and paragraphs 1, 2 & 6 run as under: “ 1. For many centuries, Indian society cherished two basic values of life i.e., `Satya (truth) and `Ahimsa (non- violence).Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre- independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post- independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

2. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to relief, interim or final.

6. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others JT 1993 (6) SC 331, the Court held that where a preliminary decree was obtained by withholding an important document from the court, the party concerned deserves to be thrown out at any stage of the litigation.”

12. He has also placed reliance on (1994) 1 SCC 1 – S.P. Chengalvaraya Naidu (Dead) Vs. Jagannath (Dead) & Ors. and paragraph 5 runs as under: 5. xxxx One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

13. Perusal of aforesaid judgment clearly reveals that one who does not come to the Court with clean hands and withholds vital documents in order to getadvantage on the other side, he would be guilty of playing fraud on the Court and has no right to approach the Court and he should be summarily thrown out at any stage of the litigation. As complainant has suppressed fact of sale of vehicle during pendency of complaint and has misled District forum, State Commission as well as this Commission regarding sale of vehicle, his complaint is liable to be dismissed on this count alone.

14. As far as defect in the vehicle is concerned, learned District forum and State Commission have observed that there was inherent manufacturing defect in the engine of the vehicle and has placed reliance on Approved Valuer report dated 30.4.2008. Strictly speaking, this is not a report made by an expert, but this report has been given by Surveyor/Loss Assessor. In this report the surveyor has not mentioned that he has driven the vehicle and after driving he is giving report. He has given report only on the basis of inspection and on the basis of mere inspection, no manufacturing defect can be found in the engine of the vehicle. Vehicle is also not available before us for getting expert report regarding manufacturing defect in engine. On the contrary, delivery receipt given by the complainant to the purchaser Amit Ahuja reveals that purchaser checked the vehicle thoroughly and he was fully satisfied meaning thereby, engine was not having any inherent manufacturing defect, otherwise, he would not have purchased the vehicle for Rs.4,00,000/- which was purchased by complainant for Rs.5,41,855/-.

15. In the light of above observations, we find that as complainant did not remain consumer after sale of vehicle and he has sold the vehicle without permission of the District Forum and has suppressed this fact and has not approached the courts with clean hands, complaint is liable to be dismissed and revision petition is to be allowed.

16. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 2.3.2012 passed by learned State Commission in Appeal No. 917 of 2009 - Tata Motors Ltd. & Anr. Vs. Hazoor Maharaj Baba Des Raj & Anr. is set aside and complaint stands dismissed. There shall be no order as to costs.

..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 4168 OF 2012 (From the order dated 28.07.2011in Appeal No. A/11/574 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

With IA/2681/2013 (Placing Addl. Documents)

Gopinath Nagar “A” Co-op. Hsg. Society Ltd. Survey No. 36/A/4, Gopinath Nagar Kothrud Pune – 411 038, and Secretary Shri Sandeep Keshav Gawde, R/at: Flat No. 5 Bldg. No. 3 Gopinath Nagar Co-op. Hsg. Soc. Ltd. S. No. 36/A/4, Kothrud, Pune – 411038, Maharashtra …Petitioner/Complainant Versus

1. M/s. Nandan Builders A partnership firm registered under The Indian Partnership Act, its office at 2/29, Mukund Nagar, Pune – 411037, Maharashtra

2. Mr. Niranjan Padmakar Ray 2/29, Mukund Nagar Pune – 411037, Maharashtra

3. Balasahityalaya Trust A Public Trust registered under BPT Act, 1950, Registration No. F-838, Pune “Vedant:, 1015, Sadashiv Peth Pune – 411030, Maharashtra

BEFORE

For the Petitioner : Mr. Arvind Avhad, Advocate

O R D E R

This revision petition has been filed by the petitioner/Complainant against the order dated 28.07.2011 passed by the Maharashtra State Consumer Disputes

Redressal Commission, Mumbai, (in short, ‘the State Commission’) in Appeal No.

A/11/574 – Gopinath Nagar Vs. M/s. Nandan Builders & Ors. by which, appeal filed by the complainant was dismissed at admission stage.

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

Forum and prayed for direction to the OP/respondent to execute Deed of Convenience in favour of the Complainant no.1/Society and further direction to OPs to complete the incomplete work and further prayed for compensation along with interest. Learned

District Forum partly allowed the complaint and directed OP to execute Conveyance

Deed, but did not grant other reliefs against which, appeal filed by the complainant/petitioner was not admitted against which, this revision petition has been filed along with application for condonation of delay.

4. Learned Counsel for the petitioner submitted that on account of financial crunch, revision petition could not be filed in time; hence, delay in filing revision petition be condoned.

5. In the application for condonation of delay, period of delay to be condoned has not been mentioned, but as per office report, there is delay of 372 days in filing revision petition. Paragraph 2 of the application for condonation of delay runs as under: “ 2. The petitioner states that the petitioner is a co-operative

society and due to monetary difficulty petitioner could not file the

present revision petition in this Hon’ble Commission well within

time. As such, there is a delay caused in filing the present revision

petition, which may kindly be condoned in the interest of justice”.

6. The only ground for condonation of delay is that due to monetary difficulty revision petition could not be filed in time. Apparently, this is no ground for condonation of delay. Even petitioner has not shown how much fund was required to file revision petition. Not only this, complaint was filed by petitioner along with 3 individuals, but this revision petition has been filed only by the petitioner. Nowhere it has been mentioned that rest of the complainants were also not having sufficient funds for filing revision petition.

7. As there is inordinate delay of 372 days, this delay cannot be condoned in the light of the judgments passed by the Hon’ble Apex Court and the National Commission in (1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Anr.; (2) (2012) 3 SCC 563 – Office of The Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State Commission) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority.

8. As application for condonation of delay is liable to rejection, revision being barred by limitation is liable to be dismissed.

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

……………Sd/-………………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 4446 OF 2012 (From the order dated 13.07.2012 in Appeal No. 859/2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

1. Devender Kumar S/o Sh. Khicchu 2. Radha Charan S/o Sh. Puran Lal 3. Mahendar S/o Sh. Heti 4. Devraj S/o Sh. Puran Lal 5. Parkash S/o Sh. Khema 6. Chander S/o Sh. Khajan Singh 7. Nand Kishore S/o Sh. Shiv Charan 8. Shyam S/o Sh. Uttam Singh 9. Rajender S/o Sh. Bhagmal All R/o of Village Mohna, Tehsil Ballabgarh, District Faridabad …Petitioners/Complainants

Versus 1. M/s. Amsons Lab Pvt. Ltd. Works situated at Garhi Chhaju, Samalkha Through its Director

2. Ashwani Kumar Shop No. 15, Indira Market, Old Sabzi Mandi, Delhi

3. M/s. Crop Care Biotech Through Ashwani Kumar Shop No. 15, Indira Market, Old Sabzi Mandi, Delhi

4. M/s. Yashika Agro Chem. Pvt. Ltd. 208, Ambey Tower, Azadpur Commercial Complex, Delhi – 110033 Through its Director

BEFORE

For the Petitioners : Mr. Sunny Choudhary, Advocate

For the Respondent : Mr. Arun Chandra, Advocate

O R D E R

This revision petition has been filed by the petitioners/Complainants against the order dated 13.07.2012 passed by the Haryana State Consumer

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

Appeal No. 859/2011 – M/s. Amsons Lab Pvt. Ltd. & Ors. Vs. DevenderKumar

& Ors. by which, while allowing appeal, order of District Forum allowing complaint was set aside and complaint was dismissed.

2. Brief facts of the case are that complainants/petitioners purchased 50 units of wheat weedicide sulfosulfuron 75% WG for a sum of Rs.9,000/- @ Rs.180/- per unit vide bill no. 515 dated 12.12.2006 from OP/Respondent nos. 2 & 3. This product was manufactured by OP No. 1/Respondent No. 1 and OP No. 4- Respondent No. 4 was marketing agent. Complainants sprayed pesticides on their wheat crop, but entire crop was damaged. Complainants approached Agriculture Development Officer, who visited fields of the complainants on 7.2.2007 and found that there was 100% damage to the wheat crop of the complainants. Alleging deficiency on the part of OPs, complainants filed complaint before District Forum. OPs-Respondents resisted complaint and submitted that complainants have not filed any expert opinion along with complaint. It was further submitted that samples taken by the Agricultural Authorities were found to be O.K. and test report issued by Government laboratory found pesticides upto the mark; hence, prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP/respondents to pay Rs.4,79,380/- to the complainants along with 9% p.a. interest and further directed to pay Rs.9,000/- as litigation expenses. Appeal filed by the OP was allowed by learned State Commission vide impugned order against which, this revision petition has been filed.

4. Learned Counsel for the petitioners submitted that inspite of use of pesticides by all the complainants purchased from OP, learned State Commission has committed error in holding that complainants are not consumers. It was further submitted that learned State Commission has committed error in not placing reliance on report given by Agriculture Development Officer; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondents submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. Perusal of record clearly reveals that 50 units of pesticides were purchased by

Complainant No. 2 – Radha Charan vide bill no. 515 dated 12.12.2006. This bill does not contain name of other complainants as purchasers. FIR was also lodged only by Radha Charan. Had the pesticide been purchased by all the complainants, all of them must have lodged FIR. In such circumstances, learned State Commission has not committed any error in holding that remaining 8 complainants do not fall within purview of consumer. Learned Counsel for the petitioners has placed reliance on (1997) 1 SCC

131 – Cheema Engineering Services Vs. Rajan Singh, (2010) 10 SCC 194

– Chandigarh Housing Board Vs. Avtar Singh and Ors. and (2012) 2 SCC 506

– National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy & Anr. in which it was held that not only the purchaser of goods, but also beneficiaries who use the goods with approval of the person who purchased goods fall within purview of consumer. We agree with the proposition of law laid down by Hon’ble Apex Court, but in the case in hand, complainants have submitted in paragraph 1 of the complaint that they have purchased pesticides for a sum of Rs.9,000/- whereas bill dated 12.12.2006 is in the name of only Complainant no. 2. Further, perusal of complaint reveals that nowhere complainants have alleged that Complainant No. 1 and Complainant nos. 3 to 9 used aforesaid pesticides with approval of complainant no.2. In such circumstances, it cannot be inferred that Complainant No. 1 and Complainant Nos. 3 to 9 sprayed purchased pesticides on their crop with the approval of Complainant No. 2 who purchased pesticides from OP No. 2 and 3, and in such circumstances, Complainant No. 1 and Complainant 3 to 9 do not fall within purview of consumer and learned State

Commission has not committed any error in holding that except Complainant No. 2, rest of the complainants do not fall within purview of consumer.

6. Learned Counsel for the petitioner submitted that inspection report given by 3 officers clearly reveals that there was 100% damage to the wheat crop of the complainants due to application of purchased pesticides; even then, learned State

Commission has committed error in placing reliance on report of Central Insecticides

Laboratory NH-IV, Faridabad (Haryana). Perusal of record clearly reveals that FIR was lodged by the Complainant No. 2, Radha Charan against the OPs and Hon’ble High

Court of Punjab & Haryana quashed FIR vide order dated 28.2.2011 and observed that reports from the Regional Pesticides Laboratory and Central Insecticides Laboratory revealed that samples were as per ISI specifications. If samples were found as per ISI specifications, the learned State Commission has not committed any error in placing reliance on Central Insecticides Laboratory NH-IV, Faridabad (Haryana) and dismissing complaint.

7. Complainants have not placed on record any laboratory report to substantiate that crops were damaged 100% due to application of pesticide. Report of Agriculture

Development Officer only reveals that there was 100% damage to the wheat crop. These officers have not carried out any test to ascertain whether 100% damage to the wheat crop was due to application of purchased pesticides or not. They have mentioned damage as told by the complainants meaning thereby without carrying out any test regarding application of pesticides on the wheat crop. They have given report regarding damage to the crop due to application of purchased pesticides.

8. In the light of above discussion, we do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed.

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

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 75-76 OF 2013 (From the order dated 08.11.2012 in Appeal No. FA/12/95 & FA/12/98 of the Chhattisgarh State Consumer Disputes Redressal Commission, Pandri, Raipur)

Alok Waghe S/o Shri S.D. Waghe R/o LIG, Tatibandh, Raipur, Ditrict Raipur (C.G.) …Petitioner/Complainant Versus

Bajaj Allianz General Insurance Co. Ltd. Through: Branch Manager, Shimangal Bhawan, Pandri Raipur, District Raipur (C.G.)

BEFORE

For the Petitioner : Mr. R.K. Bhawnani, Advocate

O R D E R

Both these revisions arise out of judgement dated 8.11.2012 in appeals filed against judgement of the District Forum. Accordingly, the revisions were heard together and are being disposed of by common order.

These revision petitions have been filed by the petitioners/Complainants against the order dated 08.11.2012 passed by the Chhattisgarh State Consumer

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

No. FA/12/95 – Alok Waghe Vs. Bajaj Allianz Gen. Ins. Co. Ltd. and in Appeal No.

FA/12/98 – Bajaj Allianz General Ins. Co. Ltd. Vs. Alok Waghe by which, while dismissing appeal of the complainant, appeal of OP was allowed and order of District

Forum allowing complaint was set aside and complaint dismissed.

2. Brief facts of the case are that complainant/petitioner owner of vehicle C.G.04/G-

4139 got his vehicle insured from OP/respondent for a period of one year commencing from 5.9.2008 to 4.9.2009. Vehicle met with an accident on 16.12.2008 and report was lodged with the Police and intimation was given to OP-Insurance Co. Claim was lodged with the OP, but claim was repudiated. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that driver of the vehicle was not holding valid driving licence at the time of accident which amounted to violation of terms of insurance policy; hence, claim was repudiated rightly and prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint and directed OP to pay 75% of the IDV value i.e.

Rs.2,85,000/- on non-standard basis. Both the parties filed appeal before State

Commission and appeal filed by the complainant was dismissed but appeal filed by OP was allowed and complaint was dismissed by impugned order against which, these revision petitions have been filed.

4. Learned Counsel for the petitioner submitted that driver of the vehicle was not disqualified from driving the vehicle at the time of accident and merely because licence was not renewed on the date of accident, petitioner was not disentitled to get claim on non-standard basis and learned District Forum rightly allowed the claim but learned

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

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

5. It is admitted case of the parties that on the date of accident, vehicle was insured with the respondent. It is also not disputed that driver of the vehicle at the time of accident was not possessing valid driving licence, as his licence had validity upto 16.8.2007 and later on it was renewed on 8.5.2009. Licence of the driver was not got renewed for the period from 17.8.2007 to 7.5.2009, whereas accident occurred on 16.12.2008. Thus, it becomes clear that on the date of accident, driver was not possessing valid driving licence.

6. Learned Counsel for the petitioner submitted that though licence was not renewed on the date of accident but as driver of the vehicle was not disqualified from driving petitioner was entitled to get compensation on non-standard basis. He placed his reliance on (2010) 4 SCC 536 – Amalendu Sahoo Vs. Oriental Insurance Co. Ltd.

Perusal of aforesaid citation clearly reveals that in that case one of the employees of the tenant of the complainant approached the complainant to handover the aforesaid vehicle for few hours for urgent use and no rent was charged by the complainant from the tenant for the use of vehicle. The vehicle met with an accident and in such circumstances, 75% claim was allowed on non-standard basis. This citation does not help to the cause of the petitioner because driver was not holding valid driving licence at the time of accident. In III (2008) CPJ 191 (NC) United India Ins. Co. Ltd.

Vs. Arvind Kumar and III (2010) CPJ 256 (NC), National Insurance Co. Ltd.

Vs. Sansar Chand, this Commission held that if driver of the vehicle was not possessing valid driving licence to drive that particular type of vehicle at the time of accident,

Insurance Company is not liable to reimburse damages to the vehicle.

7. In the light of aforesaid judgements it becomes clear that when the drivers licence was not valid and was not renewed at the time of accident, petitioner is not entitled to

75% of the claim on non-standard basis and respondent has not committed any error in repudiating claim.

8. We do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petitions are liable to be dismissed.

9. Consequently, revision petitions filed by the petitioners are dismissed with no order as to costs. ………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION No. 158 of 2011 (From the order dated 07.08.2010 of the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in Appeal no. 991 of 2009)

1. The Dak Adhishak Head Post Office Sirmour Chowk Rewa (M P)

2. Head Post Master Venkat Bhavan Post Office Rewa (M P) Petitioner (s)

Versus 1. Shubhangi Chaurasia D/o Shri Ravi Shankar Chaurasia Through father Shri Ravi Shankar Chaurasia Resident of Durga Bhavan, Fort Road Near Sindhi Chauraha Rews (M P) 2. Smt Meena Achara Wife of Shri Mahesh Achra Resident of No. 1, Suneta Complex Near Prema Press Kala Mandir Road Rewa (M P)

3. Shri Mahesh Achara Resident of No. 1, Suneta Complex Near Prema Press Kala Mandir Road Rewa (M P) Respondent (s)

For the Petitioner Mr Jaswinder Singh, Advocate

For the Respondent Mr Abhik Kumar, Advocate with Mr S S Ray, Advocate

ORDER REKHA GUPTA

Revision petition no. 158 of 2011 has been filed by the petitioners/ Opposite parties under section 21 (b) of the Consumer Protection Act, 1986 against the order dated 07.08.2010 passed by the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal (‘the State Commission’) in appeal no. 991 of 2009. The respondent/ complainant had filed complaint of misappropriation of the amount deposited by him in the name of his daughter Shubhangi Chaurasiyaunder the savings scheme of the recurring deposit account with the office of petitioner no. 1/ opposite party no. 1 by which the petitioner no.1 and 2/ opposite party no. 1 and 2 were responsible for the deposited amount and even then due to the sheer negligence of the petitioner no. 1 and 2, their authorised agents, i.e., respondent no.2 and 3/ opposite party no. 3 and 4 had misappropriated the deposited amount. Thereby it has been deficiency of service by the petitioner.

The petitioner in the written statement, accepted that respondent no. 1 had opened a recurring account no. 2233159 with their post office on 28.04.2000 for Rs.3,000/- per month and from the above account, their authorised agents – respondent no. 2 and 3 had made fraudulent withdrawals by forging signature of respondent no. 1 and had withdrawn Rs.33,000/- on 01.02.2002 and again Rs.74,427.50 was withdrawn on 07.07.2003.

The District Consumer Disputes Redressal Forum, Rewa (Madhya Pradesh) (‘the District Forum’) vide order dated 13.04.2009 had accepted the complaint and ordered as follows:

“ Non-applicant no. 1 and 2 are being ordered that they should pay the complainant Rs.1,02,000/- the amount deposited in the concerned account, along with the interest of 6% per annum from the date of the deposit till the date of the final payment within 30 days of this order. The non-applicant no. 1 and 2 would also pay Rs.5,000/- to the complainant for the mental pain that he had bore”.

Aggrieved by the order of the District Forum the petitioner filed an appeal before the State Commission. The State Commission while observing that “the facts are not in dispute. To recapitulate the account was opened in minor’s name through the agent, respondent no. 2 – Meena Achara and later Rs.33,000/- were withdrawn on 01.03.2002 and Rs.74,427.50 on 07.07.2003 to put fina lid on the account. We have referred to the rules, which require many safeguards but none of the safeguards was observed. The post office was grossly remiss in its duty to ensure that where the savings are of the minor, there are specific provisions in the rule for withdrawal, which were grossly breached. Under these circumstances, the post office cannot escape its liability under the specious plea that only the agent is liable. At this stage it is no clear whether both the husband and wife were involved or only one of them was involved in withdrawing the amount fraudulently”. Under these circumstances, the State Commission came to the conclusion that “the District Forum has rightly held the postal authorities liable in the matter. However, having awarded the amount with interest @ 6% we find that it was unnecessary to saddle the appellants with compensation of Rs.5,000/-. The compensation is thus, set aside.

With the above modification only as regards compensation of Rs.5,000/- this appeal is disposed of”.

Hence, the present revision petition.

Along with the revision petition, the petitioners have filed an application for condonation of delay of 59 days, but as per the office report, there is a delay of 61 days. As per the application the reasons given to explain the delay are that:

 the impugned order was passed on 07.08.2010. The copy of the impugned order was received in the office of the petitioner on 25.08.2010 through the Government counsel. On 26.08.2010, the appellant forwarded the impugned order to the office of the Chief Post Master General, Bhopal, M P for their advice. Further, on 28.09.2010, the office of the CPMG Bhopal forwarded their case papers to the office of the Director General, Department of Posts for observing the necessary formalities and was seeking further necessary action to file the revision petition.  On 19.10.2010, the Director General (Posts), New Delhi referred the matter back to the CPMG Bhopal for seeking legal opinion from Branch Secretariat Mumbai. On 02.11.2010, the case had been referred to the Branch Secretariat, Mumbai for their opinion. On 12.11.2010, the Branch Secretariat sent its legal opinion and advised filing of revision petition before the National Commission.  On 22.11.2010, the legal opinion received from the Branch Secretariat, Mumbai is forwarded to the DG (Posts) New Delhi. Subsequently on 25.11.2010, the DG (Posts) New Delhi referred the matter to the Deputy Legal Advisor, Ministry of Law and Justice for appointment of Government Counsel.  On 09.12.2010, the Ministry of Law, Litigation Section, Delhi High Court appointed a counsel to file the petition. The letter of nomination dated 09.12.2010 was received in the office of the petitioner on 21.12.2010. Thereafter, the counsel was contacted and briefed on 29.12.2010. The counsel desired certain other papers which were subsequently supplied to him. Thereafter, the counsel prepared the revision petition along with application and the same was signed by the competent officer. We have heard the learned counsel for the parties and have gone through the records of the case carefully.

It is seen that while the impugned order was forwarded to the office of the Chief Post Master General, Bhopal, Madhya Pradesh, for their advice, on 26.08.2010, the office of the CPMG Bhopal forwarded the case papers to the office of Director General, Department of Posts after one month on 28.09.2010. The Director General (Posts) New Delhi sent the matter back to the CPMG Bhopal on 19.10.2010 for seeking legal opinion from the Branch Secretariat, Mumbai. There is no mention as to which office Branch Secretariat was being consulted. Besides the case was then referred to the Branch Secretariat on 02.11.2010 again after a considerable gap.

Hence, though the impugned order dated 07.08.2010 was received by the counsel for the petitioner on 16.08.2010 and the revision petition was filed only on 14.01.2011. The application fails to give day to day cause for the delay of 61 days.

The petitioners are supposed to explain the day-to-day delay, but the needful has not been done. The petitioners have failed to provide ‘sufficient cause’ for the delay 61 days. This view is further supported by the following authorities:

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

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

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

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

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

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

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

The Court further observed;

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

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

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

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

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

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

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

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

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

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

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

The present case is fully covered under the case laws cited above Supra.

Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 61 days in filing the present revision petition. The application forcondonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.5,000/- (Rupees five thousand only).

List on 22nd November, 2013 for compliance.

..……………………………… [ V B Gupta, J.]

Sd/- ……………………………….. [Rekha Gupta]

Satish NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(Against the Order dated 25/10/2012 in R.P. No. 64/2011 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

1. Taneja Developers and Infrastructure Ltd. & Ors. Regd. Office :9, Kasturba Gandhi Marg, New Delhi-110001

...... Petitioner(s)

Versus

1.Devinder Singh, S/o Rai Singh, R/o House No.192 Sector-65 Phase XI Mohali

2. Prabhjot Singh S/o Inder Pal Singh, R/o H. No.316, Sector-46A Chandigarh

...... Respondent(s)

BEFORE:

HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON'BLE MR. SURESH CHANDRA, MEMBER

For the Petitioners : Mr. Joydip Bhattacharya, Advocate

For the Respondents : Mr. Ajay Kumar, Advocate

PRONOUNCED ON : 26 th SEPTEMBER, 2013

PER SURESH CHANDRA, MEMBER

This revision petition is directed against the impugned order dated 25.10.2012 passed by the State Consumer Disputes Redressal Commission, Punj ab, Chandigarh in R.P. No.64 of 2011 whereby the State Commission dismissed the revision petition filed by the petitioners against the order dated 7.10.2011 vide which the District Consumer Disputes Redressal Forum, Mohali rejected the petitioners’ request for impleading one Prabhjot Singh S/o Inder Singh as opposite party in the pending consumer complaint filed by the respondent/complainant, Devinder Singh, before the District Forum. Thus vide its impugned order, the State Commission also rejected the request for impleading the said Prabhjot Singh as additional opposite party in the consumer complaint filed by the respondent against the petitioners before the District Forum.

2. Briefly stated, the facts of this case which are relevant for its disposal are that plot No.1185 measuring 250 sq.yds. in sectors 117-119, Mohali was purchased by one Chandrika Parsad on 17.6.2005 from the petitioners/opposite parties by paying Rs.3 lakhs. This plot was thereafter re-sold firstly to one Jatinder Singh and thereafter to aforesaid Prabhjot Singh from whom it was repurchased by the respondent/complainant. Before purchasing the plot from Prabhjot Singh, the complainant/respondent approached the petitioners who gave him statement of accounts dated 14.7.2010 in which it was shown that a balance amount of Rs.1,68,750/- was due in respect of the plot in question. This amount was deposited by the complainant with the OP Builders on 15.7.2010 for which he was issued a receipt. Thereafter on receipt of transfer fee of Rs.25,000/- vide receipt dated 15.7.2010, the petitioners/OP Builders transferred the plot in question in favour of the complainant vide transfer document dated 15.10.2010. Another due amount of Rs.1,62,500/- was demanded by the petitioners from the complainant vide their letter dated 3.3.2011 which the complainant could not pay due to financial difficulty and hence sought time for depositing it with interest. For non-payment of this amount, it is alleged that the OPs/petitioners vide their letter dated 20.6.2011 cancelled the allotment in favour of the complainant. The complainant, therefore, knocked the door of the District Forum by filing the consumer complaint in question seeking directions to the OPs/petitioners inter alia to withdraw the cancellation letter dated 20.6.2011.

3. During the pendency of the complaint against them in the District Forum, the petitioners filed an application dated29.9.2011 in which it was stated that in the statement of accounts given to the complainant by the petitioners, there is an entry showing credit of amount of Rs.6,87,500/- to the account of the Prabhjot Singh, predecessor in interest of the complainant which actually credited to the statement of accounts as a result of a clerical error in their office. It was stated by the petitioners in their application before the District Forum that Cheque No.189560 for Rs.6,87,500/- was received by the petitioners from one Ashish Bhalla qua plot No.1309 and was duly credited to the account of said Ashish Bhalla on 25.8.2008. In view of this, it was alleged by the petitioners that this amount was wrongly reflected to the credit of Prabhjot Singh in the statement of accounts supplied to the respondent although this amount was never paid by Prabhjot Singh and no receipt was ever issued by the petitioners to Prabhjot Singh qua this amount. It was, therefore, requested by the petitioners/opposite parties in their application that for proper and effective adjudication of the complaint, said Prabhjot Singh, be made a party. The complainant opposed this application by filing a reply thereto stating that for their right, if any, against the said PrabhjotSingh, the OP Builders should file a separate case against him (Prabhjot Singh). The District Forum after hearing the parties dismissed the application vide its order dated 7.10.2011. Aggrieved of this order, the petitioners challenged the same by filing revision petition before the State Commission which was dismissed by the State Commission by its impugned order which is now under challenge before us.

4. We have heard Shri Joydip Bhattacharya, Advocate for the petitioners and Shri Ajay Kumar, Advocate for the respondents. Learned counsel for the petitioners has contended that the State Commission failed to appreciate the fact that the plot in question came to be transferred in the name of the complainant/respondent based on a wrong entry in the statement of accounts in favour of the said Prabhjot Singh. He submitted that since the complainant, while filing the complaint before the District Forum, has neither impleaded the said Prabhjot Singh as party/respondent nor produced any receipt against the instalment amount of Rs.6,87,500/-, it became necessary for the petitioners to make a request before the District Forum for making Prabhjot Singh as party/respondent for proper and effective adjudication of the case. Citing the judgement of Hon’ble Supreme Court in the case of Mumbai International Airport Pvt. Ltd. Vs . Regency Convention Centre and Hotels Pvt. Ltd. and Ors . (Civil Appeal No.4900 of 2010 decided on 6.7.2010), learned counsel submitted that the State Commission has failed to appreciate the well settled principle of law that the court may implead a party in a lis on its impleadment application moved by either of the parties. He further submitted that the State Commission also failed to consider the provision of Order 1 Rule 10 (2) of the Code of Civil Procedure, 1908 which is a substantive law wherein either party in the proceedings has the right to move an application forimpleadment of a necessary party and while dismissing the revision petition the State Commission heavily relied on the principle of dominus litis while returning its finding which is in flagrant disregard to the specific provisions of Code of Civil Procedures. Keeping these aspects in view, learned counsel submitted that the impugned order cannot be sustained in the eye of law and hence liable to be set aside. He summed up by saying that no prejudice would be caused to the complainant/respondent if Prabhjot Singh is also impleaded as an opposite party in the complaint. Per contra, learned counsel for the respondent has submitted that the impugned order passed by the State Commission upholding the order of the District Forum is perfectly in order and has been passed after duly considering the provisions of law relied by learned counsel for the petitioners.

5. We have considered rival contentions and perused the record. The District Forum vide its detailed order has recorded the following reasons while rejecting the request of the petitioners to implead Prabhjot Singh as an opposite party:-

“ One cannot loose sight of the fact that the complainant is dominus litis. There is no dispute about the proposition of law that sound principles of the CPC are applicable to the proceedings before the Consumer Fora. However, the question is whether the complainant can be forced to implead an OP with which he has no dispute and who is not his service provider. The jurisdiction of the Consumer Fora is primarily and mainly to decide the disputes between the ‘consumer’ and the ‘seller’ or ‘service provider’ and that too on a complaint which can be filed only by the consumer. The seller or service provider in respect of his rights against the consumer cannot approach the Consumer Fora by filing a complaint but has to seek his remedy elsewhere. In the present case, admittedly on the representation given by the OP in the statement of accounts Annexure C-3 to the effect that it had received an amount of Rs.6,87,500/- from Prabhjot Singh on 25.8.2008 and that at that time only a sum of Rs.1,62,500/- was due to it from Prabhjot Singh, it allowed the complainant to purchase the plot from Prabhjot Singh. Not only this, it also transferred the plot in favour of the complainant vide transfer certificate dated 15.7.2010 Annexure C-2 after receiving from him the then due amount of Rs.1,68,750/- vide receipt dated 15.7.2010 Annexure C-4. If Prabhjot Singh got the benefit of a wrong entry of credit to the tune of Rs.6,87,500/- from the OP, that should not be a ground to force the complainant to implead Prabhjot Singh in these proceedings because the complainant acted upon the representation of the OP. He was not privy to the circumstances leading to the credit of Rs.6,87,500/- in favour Prabhjot Singh. Remedy of the OP against Prabhjot Singh is by way of filing a suit for recovery against him or any other remedy under the law. By filing the present application the OP cannot be allowed to contrive to implead PrabhjotSingh and then to seek adjudication of its rights against Prabhjot Singh. Therefore, for the purpose of decision of this complaint, we do not find presence of PrabhjotSingh as necessary before this Forum. As such without prejudice to the rights of the parties on merits, the present application of the OP is dismissed. Nothing said in this order shall have any bearing on the decision of the complaint on merits.”

6. Upholding the order of the District Forum rejecting the application of the petitioners, the State Commission has observed thus:-

“ 8. In proceedings under the Consumer Protection Act, the complaint would lie against the service provider. In the present case, the service provider is the petitioner and not Prabhjot Singh. In fact Devinder Singh is the successor in interest of Prabhjot Singh and not the service provider. Moreover Prabhjot Singh can be joined as a party only if there is any deficiency in service on his part. According to the complainant if there is no deficiency in service on his part and the complainant is not claiming any relief against him, Prabhjot Singh cannot be joined as a party. The Act rather punishes under section 26 joining such persons as a party if the complaint is frivolous against any of the O.Ps.

9. As regards the fact whether Prabhjot Singh deposited Rs. 6,87,500/- with the O.Ps or not, it can be decided even in the absence of Prabhjot Singh. At the mostPrabhjot Singh can be a witness to the said transaction and it would be open to the O.Ps to produce him in the witness box if they so desire. In any case he cannot be considered to be a service provider for impleading him as O.P in this case.

10. Needless to mention that the complaint can be decided in the absence of Prabhjot Singh. Whether the District Forum comes to the conclusion that the PrabhjotSingh deposited such amount or not, the same no doubt would be binding on the complainant he being his successor in interest.”

7. We agree with the view taken by the Fora below. The contentions raised by the learned counsel for the petitioners are fully covered by para 8 of the judgement of the Apex Court (supra) on which learned counsel has placed heavy reliance. However, in our considered view, it does not provide any comfort to the petitioners with reference to their request. In this context, it would be fair and just to reproduce the observations of the Apex Court made in para 8 as under:-

“8. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:

"Court may strike out or add parties.

(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.” 8. We may note that the discretion given to the Court under the provision of Order 1 Rule 10 (2) of the Code of Civil Procedure, 1908 has to be exercised keeping in view the facts and circumstances of each case. Fora below have considered the request in the light of the facts and circumstances of the present case and have recorded reasons for rejecting the request of the petitioners. Bare perusal of the orders of the District Forum and the State Commission vide which they have returned their concurrent finding rejecting the request of the petitioners, leaves us in no doubt that the view taken by them is in line with the observations of the Apex Court. We, therefore, do not find any illegality, infirmity or jurisdictional error which would call for our interference with the impugned order while exercising our revisional jurisdiction under section 21 (b) of the consumer Protection Act, 1986. The revision petition, therefore, is dismissed and the impugned order of the State Commission is upheld. There shall be no separate order as to costs at this stage of the litigation.

……………Sd/-……..………..

PRESIDING MEMBER

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

REVISION PETITION NO.2573 OF 2012 (From the order dated 25.05.2012 in F.A. No.500/2011 of the W.B. State Consumer Disputes Redressal Commission, Kolkata)

1. Puspak Infrastructure Pvt. Ltd. Through its Director Mr. Manish Sharma 101, Park Street, 5th Floor, Kolkata – 16 2. Sri Monish Sharma s/o Krishna Gopal Sharma r/o 85, Prime Anwar Shah Road Kolkata – 33 Director of Pushpak Infrastructure Pvt. Ltd. .….. PETITIONER(S) Versus Santanu Mukherjee s/o Kalyan Mukherjee r/o 83/27A, Dum Dum Road Mallik Colony, Kolkata – 74 ...... RESPONDENT

BEFORE: HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER For the Petitioner : Mr.Rahul Jain, Advocate For the Respondent : Mr.Sanjoy Kumar Ghosh, Advocate

PRONOUNCED ON : 27 th September, 2013 JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER ORDER

Petitioners being aggrieved of concurrent finding of the foras below against them have preferred this revision. 2. Briefly put, the facts relevant for the disposal of this revision petition are that petitioner no. 1 is a Company incorporated under the provisions of Companies Act, 1956, engaged in the business of real estate development. Petitioner no. 2 is the director of petitioner no.1 Company. Respondent filed a complaint under section 12 of the Consumer Protection Act, 1986 against the petitioners alleging that he entered into an agreement to purchase flat no. A-408, Type A at the 4th Floor with super built up area of 980 sq. ft. alongwith covered parking in the upcoming project of the opposite parties situated at Ichapore Nilgang Gram Panchayat P.S.Barasat, District North 24 Parganas for a total consideration of Rs.13,75,000/-. Pursuant to the agreement, respondent paid Rs.2,75,000/- to the petitioner as booking amount. As per the terms and conditions of the agreement, the balance payment was to be made in construction linked instalments. According to the complainant, the opposite parties failed to keep him informed about the progress of construction and suddenly vide letter dated 04.03.2010 called upon the complainant to pay a sum of Rs.13,06,250/- against the balance price of the flat. The demand was much more than the agreed price of the flat. Therefore, the complainant approached the opposite parties and protested against the demand. On this, the opposite party told the complainant that there was some calculation error and they would rectify the payment. Thereafter, the opposite parties demanded a sum of Rs.25000/- from the complainant against the charges for electric connection, which was also paid. It is also alleged that the opposite parties no. 1 & 2 instead of informing the complainant about the progress of work and justifying their demand, cancelled the allotment of the flat and also refused to refund the advance money of Rs.3,00,000/- paid by the complainant. This led to the filing of the complaint. 3. The opposite Parties in their written statement admitted that petitioner had booked flat in their project and paid booking amount of Rs.2,75,000/-. It was also admitted that subsequently a sum of Rs.25000/- was also paid against the demand towards the electricity connection. Other allegations of the complainant were denied. According to the opposite parties, the complainant failed to pay the construction linked instalments despite being intimated and because of his failure to pay the balance amount, his allotment was ultimately cancelled. According to the opposite parties, there was no deficiency in service on their part because the complainant / respondent had failed to comply with the terms and conditions of the agreement. 4. District Forum Barasat on consideration of the pleadings of the parties and the evidence allowed the complaint and directed the opposite parties to pay to the petitioner a sum of Rs.2,70,000/- within one month of the date of the order and further directed that in the event of failure to pay the amount within one month, the amount shall carry 9% interest from the date of the order till the realisation of the amount. 5. Feeling aggrieved by the order of the District Forum, the opposite parties preferred an appeal before the State Commission West Bengal and learned State Commission after hearing the parties, dismissed the appeal. 6. Shri Rahul Jain, Advocate, learned counsel for the petitioners has contended that the impugned orders of the fora below are unsustainable for the reason that the orders have been passed ignoring the agreement between the parties, in particular clause 24 of the agreement. 7. We are not convinced with the above submissions made on behalf of the petitioners. It is undisputed that the petitioners have received a sum of Rs.3,00,000/- against the part payment of flat booked by the complainant and that the petitioners have cancelled the allotment of flat in favour of the complainant on the premise that the respondent has failed to make the balance payment against the price of the flat in terms of agreement. Clause 24 of the agreement between the parties deals with the situation where the allotment in favour of the purchaser is cancelled by the opposite party / developer. In order to appreciate the contention of the learned counsel for the petitioners, it would be useful to have a look on clause 24 of the agreement which is reproduced thus: “In the even the Flat Purchaser (1) fails to make payment and any other amount payable to the developer hereunder, (2) or fails to perform the obligations on the part of the Flat Purchaser to be performed in terms of this Agreement shall at the option of the Developer stand cancelled and / or rescinded, upon which the Developer shall refund to the Flat Purchaser all payment received till that date, without any interest, after deducting 10% of payment received and due if any by termination date or Booking Amount ( whichever is higher)…..” 8. On careful reading of the above noted clause, we find that the aforesaid clause is drafted in a manner having potential to mislead the prospective flat purchaser. On the one hand, clause 24 states that in the event of cancellation or rescinding of the agreement by the developer, the developer shall refund to the flat purchaser all payments received till date without any interest after deducting 10% which gives an impression that in such an event, the purchaser would get the refund of 90% of the payments made till the date of cancellation of the contract. The aforesaid words, however, are followed by the words “payment received and due if any by the termination date or booking amount ( whichever is higher)”, which would mean that in all circumstances booking amount of Rs.2,75,000/- shall stand forfeited because the amount of Rs.2,75,000/- is higher than the 10% of agreed cost of the flat i.e. Rs.1,37,500/-. The opposite parties developer instead of making a clear stipulation that booking amount of Rs.2,75,000/- deposited by the petitioner shall be forfeited in case of cancellation of contract has used the above deceptive language which cannot be comprehended by the layman who is not conversant with the niceties and technicalities of rules of interpretation and a prospective purchaser is likely to be deceived by such a language and can reasonably get an impression that in the event of cancellation of allotment by the opposite party, he would receive back the amount paid by him after deduction of 10%. Thus in our view, clause 24 of the agreement being deceptive is unfair and the fora below have rightly directed the petitioners to refund 90% of the deposit i.e. Rs.2,70,000/- to the respondent / complainant.

9. In view of the discussion above, we do not find any jurisdictional error, illegality or material irregularity in the impugned orders which may call for interference by this Commission in exercise of the revisional jurisdiction. Revision petition is, therefore, dismissed. Parties to bear their own costs. …………………..………..Sd/- (AJIT BHARIHOKE, J.) PRESIDING MEMBER

……………….……………Sd/- (SURESH CHANDRA) MEMBER National Consumer Disputes Redressal Commission New Delhi

Revision Petition no. 3521 of 2008 (Against the order dated 10.06.2008 in Appeal/complaint no. 2178 of 2007 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Indian Overseas Bank J P Nagar Branch Mysore Represented by its Senior Manager Sri S R Prashanth Petitioner Vs

1. Ms Sheba Wife of Robby Soans M/s Shawn Distributors 1656/F, K Block 6th Main Ramakrishna Nagar Mysore – 570023

2. National Insurance Co. Ltd. Bangalore Branch Office – II 33, Sagar Complex, 2nd Floor Kempe Gowda Road Bangalore – 560009 Represented by its Branch Manager Respondents

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

For the Petitioner Mr Anup Kumar, Advocate for Ms V Mohana, Advocate

For Respondent no. 1 Mr Rajendra Singh, Advocate with Mr Shiv K Bharti, Advocate

For Respondent no. 2 Ms Pankaj Bala Verma, Advocate

REKHA GUPTA

Revision petition no. 3521 of 2008 has been filed under section 21 (b) of the Consumer Protection Act, 1986 challenging the order dated 10.06.2008 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (‘the State Commission’) in appeal no. 2178 of 2007.

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

The respondent no. 1/ complainant is the proprietrix of the firm M/s Shawn Distributors and for her livelihood was engaged in the business of distribution of ice- creams as stockists and distributors for M/s Pastonji who are manufacturers of ice- creams. The business involved stocking and storing of ice-creams in cold storage, in cold rooms. For this purpose, the respondent no. 1/ complainant borrowed a sum of Rs.3,95,000/- as term loan from the 1st opposite party – the Bank in October 2004 and put up a cold storage unit. The respondent no. 1 also availed a sum of Rs.1,00,000/- against stock of ice-creams in cold storage. During the course of transactions with the Bank, the respondent no. 1 noticed a debit of Rs.12,300/- in her account no. 310400023 on 25.01.2004. When the respondent no. 1 made enquiries with the Bank she was informed that in order to cover the risk of lending, the Bank had insured against any loss to the extent of the loan amounts and debited the account of the respondent no. 1 for a sum of Rs.10,882/- and a sum of Rs.1418/- as premiums paid to the 2 nd opposite party – insurance company. Since the actual act of insuring against any loss was handled by her Bank, the respondent no. 1 went about her business of attending to the day to day administration, being fully confident that she had reposed her trust and faith in the competent hands of the 1st opposite party – the Bank. As demanded by the 1st Opposite Party – Bank, the respondent no.1 even credited the said sum of Rs.12,300/- to the said account on 05.11.2004. The 2nd opposite party – insurance company or its representative, did not ever meet this respondent no. 1 either before or after the payment of the premium by the 1st opposite party – Bank. Even after considerable time had elapsed after the debit of the premium amount, the respondent no. 1 did not receive any receipt or policy from either of the opposite parties. So the respondent no.1 made enquiries with the 2nd opposite party – insurance company regarding this. The 2ndopposite party – insurance company then informed her that as there was a loan from the 1st opposite party – Bank and there was a lien on the policies held by the 1st opposite party – Bank, the policies had been sent to the 1st opposite party – Bank. The 1st opposite party – Bank confirmed the same and also assured her that all her interests and the 1st opposite party – Bank’s own interests were fully protected. In view of the abundant trust and confidence that the respondent no. 1 had on the 1 st opposite party – Bank, she blissfully went about her business fully convinced.

Whilst things stood so, there was a breakdown of the freezer compressor due to interruption of electrical supply on 4th March 2005. This resulted in the burning out of the freezer compressor and loss of ice-cream stock totalling to about Rs.2,86,000/- as is evidenced by the stock statement for the day. The same is produced herewith for the perusal of this Forum. Immediately, the matter was reported to the 1st opposite party – Bank by the respondent no. 1 who advised her to inform the 2 nd opposite party – insurance company and present her claim, assuring her that she need not worry as everything was insured. Accordingly, the respondent no. 1 informed the 2 nd opposite party – insurance company under intimation to the 1st opposite party – Bank. The 2nd opposite party – insurance company carried out an inspection only on 13.04.2005.

The respondent no.1 submits that what resulted thereafter was an extensive correspondence between the respondent no. 1 and the 2nd opposite party – insurance company and their insurance surveyor, with the 1st opposite party – Bank being kept abreast throughout. This respondent no. 1 was asked by the 2 ndopposite party – insurance company. Insurance surveyor on 29.12.2005, vide his letter no. NIC/ RSP – 4 to submit the following to enable him to proceed further in the matter.

(i) Claim form in original duly filled and with seal and signature (ii) Claim bill (iii) Latest quotation for carrier make CR – SF 002 Model Cold Storage equipment of same capacity. (iv) Confirmation towards value for damaged parts.

The respondent no. 1 furnished the first two items on 07.02.2006 and intimated that the salvage value be taken as NIL as there was no buyers for the same. The respondent no. 1 also informed that she would be obtaining item no. 3, i.e., the quotation, shortly. The respondent no. 1 also submitted a claim separately for the loss suffered on account of the damage to the stocks of ice-creams which were stored in the cold storage.

The respondent no. 1 was shocked to receive a letter no. NIC/ RSP – 5 dated 14.02.2006 from the insurance surveyor intimating her that he had not conducted any survey towards the loss of ice creams as it was not covered under the policy details given to him. Completely upset by this, the respondent no. 1 approached both the OPs and sought clarification in this regard. The 2nd opposite party – insurance company informed the complainant vide letter dated 02.03.2006 the damages to the stocks in cold storage due to change in temperature were not covered under the General Exclusion Clause no. 6 of the policy, and hence, settlement of the claim towards damaged stock of the ice-creams does not rise. The said policies were in the custody of the 1st opposite party – Bank.

On March 2006, the 2nd opposite party – insurance company sent a cheque for Rs.16,833/- in full and final settlement of the claim towards the freezer equipment damage. As the sum was substantially below the claim of Rs.1,00,000/- towards stock of ice-creams and Rs.53,583/- towards cost of repair and replacement of the compressor unit and other electrical items for the cold room freezer, made by the respondent no.1, the 2nd opposite party – insurance company was contacted. On behalf of 2nd opposite party – insurance company one Sri Ramesh, on the instructions of one Sri Govindaraj heard the representation of the respondent no. 1 with regard to the inadequacy of the amount and the disallowance of the claims, and informed her that the insurance surveyor Sri Prakash would be getting in touch with her soon. As the said Sri Prakash did not contact the respondent no.1 even till 17.06.2006, the respondent no. 1 returned the said cheque no. 733073 to the 2nd opposite party – insurance company vide her letter dated 17.06.2006 requesting that her claim be settled in full. In reply to this, the 2nd opposite party – insurance company vide their letter dated 27.06.2006 contended among others, that the 1st opposite party – Bank had not taken cover for deterioration of stocks kept in cold storage and hence settlement of claim towards the damaged ice cream does not arise. The 2ndopposite party – insurance company also contended that there was inadequacy of the sum assured, because the quotation furnished by the respondent no. 1 showed that the cost of new equipment of similar capacity and model is Rs. 6,46,875/- as against the insured sum of Rs.3,95,000/-. The 2nd opposite party – insurance company also enclosed the same said cheque no. 733073 for Rs.16,833/-.

Not being satisfied with the reply, the respondent no. 1 vide her letter dated 28.07.2006 returned the said cheque and sought copies of the policies under which the insurance was covered, as she did not have them, as also proposals together with the enclosures to it, if any. Vide their letter dated 10.08.2006, the 2nd opposite party – insurance company forwarded the duplicate policies and once again reiterated the same contentions and highlighted the fact that the 1stopposite party – Bank who had taken the insurance had not taken cover for the stock kept in cold storage.

As the duplicate policies were not attested, the respondent no. 1 once again wrote to the 2nd opposite party – insurance company on 29.10.2006 requesting attested copies of the policy along with the enclosed enclosure, if any. Vide their letter dated 28.11.2006, the 2nd opposite party – insurance company sent the attested copies of the policies as also the proposal form. A close examination revealed that the said alleged proposal form was not at all signed by the respondent no. 1 or anybody else. The respondent no. 1 then sought the 1st opposite party – Bank’s view in this regard vide her letter dated 26.12.20056 which was received by the 1st opposite party – Bank on 27.12.2006. But the 1st opposite party – Bank has not sent any reply till date.

The respondent no. 1 is even today repaying the said debt to the 1 st opposite party – Bank with interest as demanded by the 1st opposite party who has thus nullified the very purpose of the insurance, the premium for which this respondent no. 1 was made to pay.

The respondent no. 1 submits that, if the say of the 2nd opposite party – insurance company that the 1st opposite party – Bank never insured the deterioration of stocks of ice-creams kept in cold storage were to be accepted, then the 1st opposite party – Bank is guilty of deficiency of service in that, the 1st opposite party – Bank purporting to act in the best interests of their client viz., this respondent no. 1 and so having collected the premium amount from the account of this respondent no. 1, the 1st opposite party – Bank has failed to protect the interests of this respondent no. 1 by not insuring against the very eventuality that the 1st opposite party – Bank said had insured. Therefore, the 1st opposite party – Bank has failed to provide the service for which it collected a hefty sum from the respondent no. 1.

This respondent no. 1 further submits that if the say of the 2 nd opposite party - insurance company that the 1st opposite party – Bank has under insured the value of the machinery is accepted, then again, then the 1st opposite party – Bank is gain guilty of deficiency of service in that; the 1st opposite party ought to have insured for a higher value keeping in view the escalation of costs. Since the 1st opposite party – Bank did not do so, the 1st opposite party – Bank has failed to provide the service for which it collected a hefty sum from the respondent no.1.

This respondent no.1 further submits that the 2nd opposite party – insurance company is guilty of unfair trade practice, in as much as, it never contacted this respondent no. 1 before finalising the proposal. The 2nd opposite party – insurance company ought to have met the respondent no. 1 in person, explained the pros and cons of each condition in each of the policies and then only ought to have accepted the payment from the 1st opposite party – Bank.

The 2nd opposite party – insurance company contended in his letters dated 27.06.2006, 10.08.2006 and 28.11.2006 that the 1st opposite party – Bank has under insured the machinery value. The 2nd opposite party – insurance company has based this contention on the quotation which was submitted by this respondent no.1. The said quotation is a comprehensive one, which includes the value of the building and also for two compressors and accessories. The second compressor unit is a stand by one which is not part of the original plant design. The said quotation also includes the value of an ante-room. These were not part of the items insured. In any case, the building was never insured at all as may be seen from duplicate schedule produced herein. The sum assured, as stated in the attested schedule furnished by the 2nd opposite party – insurance company discloses that the total value of insurance is Rs.4,95,000/- and that too only for the refrigerator for the pre-fabricated building model – CR and for the cold storage equipment freezer 2 HP Model SF 002. The suppliers of the equipment have since furnished the break up of the two items; viz., PUF panels (for the cold room building) is Rs.2,75,000/- and for the two units of refrigeration is Rs.2,40,000/-. What has been furnished as a quotation is for total replacement of the equipment, whereas what has been sought is only replacement of a part of the equipment. In fact, there is no need to base the settlement of the claim on a quotation, as the cost of replacement has been worked out on the actual bills. Hence, there had been no under insurance as contended by the 2nd opposite party – insurance company. Also, after imposing a pre- condition that the sum assured shall be equal to the cost of replacement of the same capacity and same kind, the 2nd opposite party – insurance company cannot deduct any amount towards depreciation. This respondent no. 1 submits that, in order to avoid settling the genuine claim of the respondent no. 1, both the OPs have colluded together and are coming up with such excuses. This is more than evidenced by the fact that the alleged proposal form does not carry anybody’s signature, much less that of the respondent no.1. Even the scoring off in the said proposal form has not been attested by any one.

The respondent no. 1 prays this Commission to direct the 1st opposite party – Bank to pay damage to the respondent no. 1 for an amount of Rs.5,00,000/- together with interest at 36% per annum from the date of filing the complaint to date of paying the amount as damages for the harassment meted out to this respondent no.1 and causing mental agony torture and hardship.

Direct the 2nd opposite party – insurance company to settle the claim in full for a sum of Rs.1,53,583/- (which includes the value of stock to the extent of Rs.1,00,000/- only) as made out by the respondent no. 1 together with interest at 36% per annum from date on which the cause for claim arose, that is to say from 09.04.2005 to date of payment of the amount.

Direct the 2nd opposite party – insurance company to pay a sum of Rs.5,00,000/- together with interest at 36% per annum from the date of filing the complaint to date of paying the amount as damages for the harassment meted out to this respondent no. 1 and causing mental agony torture and hardship.

Cost of this complaint and such other relief as this Forum may deem fit to grant under the circumstances.

In their written statement before the District Forum the petitioner/ opposite party 1 – Bank have stated that the respondent no. 1 has borrowed a sum of Rs.2,55,000/- on 05.08.2004 for purchase of cold storage freezer unit from 1st opposite party. It is not true that the respondent no. 1 has availed a sum of Rs.1,00,000/- against stock of the ice- creams but for the purpose of business and for that respondent no. 1 has pledged LIC policies in favour of 1st opposite party. It is true that 1st opposite party had paid premium of Rs.10,882/- and a sum of Rs.1,418/- in all Rs.12,230/- to 2 nd opposite party – insurance company in order to cover the risk of the lending amount of Rs.2,55,000/- only and hence debited the same into respondent no.1 account. It is also true that the policies had been sent to the 1st opposite party – Bank by the 2nd opposite party – insurance company as there was a lien. The same has been made in view of the terms and conditions of the section advice and also as per clause 7 of the agreement of terms loan and hypothecation executed by respondent no. 1 in favour of 1st opposite party – Bank.

The 1st opposite party – Bank refutes the allegations made in paragraph 7 of the complaint and further this party was not aware of the entire correspondence but only knows part of the correspondence made by 2nd opposite party – insurance company. The 1st opposite party – Bank submits that the purchase value of the cold storage freezer unit was Rs.3,95,000/- at the time of advancing the loan, hence, insurance was made for the said amount of Rs.3,95,000/- wherefore question of inadequacy of the sum assured does not arise.

It is true that the stocks kept in cold storage has been covered under the fire policy, along with plant/ machinery and accessories with 2nd opposite party – insurance company to the tune of stock for Rs.1,00,000/- and Rs.3,95,000/- respectively. For which a sum of Rs.1,418/- has been paid by the 1st opposite party – bank to the 2nd opposite party.

The dispute is between respondent no. 1 and 2nd opposite party – insurance company, since the dispute is due to the rejection of insurance claim by the insurance company. Therefore, this opposite party is not necessary party in the above case. The complaint is bad for misjoinder of this opposite party.

Copy of the written statement/ reply of respondent no. 2/ opposite party no. 2 – insurance company has not been filed but is seen from the order of the District Forum, that respondent no. 2 has filed their version stating that “after it was informed about the break-down of machineries of the respondent no. 1 they had appointed a surveyor to assess the loss who after assessing the loss submitted a surveyor to assess the loss who after assessing the loss submitted his report. It is further contended that the first opposite party – Bank had taken fire insurance policies in the name of the respondent no. 1, one of the machineries and other on the stock of ice-cream as against fire. The opposite party further referring to the report of the surveyor has contended that the cost of new equipment similar to one which break down was Rs.6,46,875/- including all other charges, but the first opposite party – Bank has taken a policy for Rs.3,95,000/- therefore the machinery was under insured. That the policy taken for the stock in trade is not covered under the conditions of the policies as the 1 st opposite party – Bank had taken the policy on the ice-cream stock for fire explosion, riot etc., but the melting of the ice-cream due to power failure since was not conversed it is not liable to compensate the respondent no. 1. That on the basis of the surveyor reports taking into consideration, the under insurance depreciation etc., found itself liable to pay a sum of Rs.16,833/- to the respondent no.1, but when a cheque was sent to that amount to the respondent no. 1, she refused to receive the cheque. Therefore, stated that it is not liable to pay a sum of Rs.1,53,583/- and Rs.5,00,000/- as claimed by the respondent no. 1 and has prayed for dismissal of the complaint.

The District Consumer Disputes Redressal Forum at Mysore (‘the District Forum’) vide order dated 17.09.2007 has held that “it is to be seen that the entire machinery was insured and not the parts. The surveyor having accepted the value of the replaced parts as furnished by the respondent no. 1 should have also seen whether the broke down parts were the major parts of the machinery costing more value than the amount for which the machinery was insured. Therefore, the surveyor having agreed with the cost of replacement of the broken out parts should have recommended the payment of the actual cost of parts replaced. The 2nd opposite party – insurance company has not disputed the report of the surveyor. Therefore, on considering all these aspects of the matter, we hold that the respondent no.1 is entitled to a sum of Rs.42,714.38 towards the cost of replacement of broken parts and the 2nd opposite party – insurance company is liable to compensate it. With this we answer point no. 1 in the affirmative.

Points no.2 and 3 : - The 2nd opposite party – insurance company though has also issued an insurance policy for Rs.1,00,000/- towards the ice-cream stock, stocked in the godown, but has contended that the 1st opposite party – Bank has only taken a fire policy for the ice-cream stock on behalf of the respondent no. 1 and the intervention of electricity and deterioration of the ice-cream is not covered under the conditions of the policy, therefore, it is not liable to compensate the respondent no. 1. The respondent no. 1 and the 1st opposite party – Bank have not disputed that the 1st opposite party – Bank had only insured the stock in trade for storm, cyclone, typhoon, tempest, hurricane, tornado, flood and or inundation but had not taken the policy for protection of the ice-cream stock from electrical interruption. Therefore, we hold that the 2 nd opposite party – insurance company is not liable for compensating the respondent no. 1 towards the loss of ice-cream.

The 1st opposite party – Bank as we have already stated above has not disputed that it had not taken insurance for the stock of ice-cream kept in the godown for covering the risk from electric intervention, but only taken insurance under the fire policy. The 1st opposite party – Bank who itself took the policy from 2nd opposite party – Insurance company on behalf of the respondent no. 1 and deducted the premium amount from the account of the respondent no. 1 by way of debiting, ought to have taken care to take policy which could have covered the risk due to intervention of electricity. The 1st opposite party – Bank in this regard has not come forward with any explanation for its failure to take an appropriate insurance for the ice-cream stock. As such, we find deficiency on the part of the 1st opposite party – Bank in not covering the ice-cream stock with an appropriate insurance policy.

This statement of the respondent no. 1 do indicate that she sustained loss of Rs.1,00,000/- towards the loss of ice-cream stocked in the godown. Even otherwise, the complainant had only got the ice-cream insured to an extent of Rs.1,00,000/- only, this has not been controverter or rebutted by the 1stopposite party – Bank. Therefore, we find no reasons to disbelieve the claim of the respondent no. 1 for awarding compensation of Rs.1,00,000/- towards loss of ice-cream against the 1 st opposite party – Bank. With the results, we answer the points no. 1 and 2 accordingly and pass the following:

The complaint is allowed. The 1st opposite party – Bank is held liable to pay a sum of Rs.1,00,000/- to the respondent no.1 being the cost of the ice-cream stocked in the cold storage. The 2nd opposite party – Insurance company is held as liable to pay a sum of Rs.42,714.38 being the cost of replacement of the broken parts of the machinery. 1st and 2nd opposite parties (Bank and Insurance Company) are directed to pay the compensation award to the respondent no. 1 within two months from the date of this order, failing which they are directed to pay interest @ 12% per annum from the date of this order till the date of payment. The 1st and the 2nd opposite parties (Bank and Insurance Company) are also directed to pay Rs.1,000/- each towards the cost of this complaint”.

Aggrieved by the order of the District Forum the petitioner filed an appeal before the State Commission. The State Commission vide their order dated 10.06.2008 dismissed the appeal and ordered as under:

“ The petitioner/appellant has deposited a sum of Rs.85,000/- before this Commission. Office is directed to transfer the same to the District Forum with a direction to the District Forum to pay the same to the respondent no. 1/ complainant after due notice to the respondent no. 1”.

Hence this present revision petition.

The main grounds for the revision petition are that:

 The State Commission erred in holding OP no. 1 – the Bank had taken a wrong policy. There is no special contract to take a particular policy or that there is no question of taking any wrong policy.  It is submitted that there is no mistake by Bank. In fact the dispute itself is not a consumer dispute and the consumer court does not have the jurisdiction to decide the present case.  Though the 1st opposite party/ appellant – Bank took out insurance policies to cover and insure the stocks, stocks-in-process and ice-cream for Rs.1,00,000/-, still the Forum below held that this 1st opposite party/ appellant – Bank is liable to pay the insured amount of Rs.1,00,000/- on the ground that the appellant has not “taken out a proper insurance policy”, though the appellant Bank had specifically insured the stocks, stocks-in-process and ice-creams stored in the cold storage freezer.  Since there was a breakdown of the freezer compressor on 04.03.2005 due to “interruption of electrical supply”, which resulted in burning of freezer compressor and loss of ice-creams stocks, the respondent no. 1/ complainant should have arrayed the electricity company of Mysore, i.e., CESCOM – Chamundeshwari Electricity Supply Company as one of the opposite party for proper adjudication of the case.  The State Commission failed to appreciate that the District Forum was wrong in holding that there was any deficiency on the part of the petitioner herein. The relationship between the petitioner and the first respondent is restricted to the petitioner granting a loan to the first respondent. The services of the petitioner do not include obtaining insurance cover for the goods hypothecated. The agreement in clause 7 specifically states that there is no obligation on the part of the Bank to obtain an insurance cover. On the contrary the agreement also specifically states that it is the borrower (the first respondent herein) who is obliged to insure the machinery and stock. In light of this specific clause in the agreement, the finding that the Bank was guilty of deficiency of service, is ex facie perverse and incorrect.  The petitioner further submits that both the District Forum and the State Commission failed to appreciate that the provision in the Loan and Hypothecation agreement for obtaining an insurance cover of the machinery and the stocks, was with the intent of protecting the interests of the Bank and not the first respondent. The first respondent cannot take recourse to the said clause to contend that the Bank was obliged to insure the machinery and stock.  The State Commission failed to appreciate that the District Forum’s direction to the petitioner herein to pay Rs.1,00,000/- is perverse also for the reason that no evidence was adduced by the first respondent in regard to the exact extent of stock which was damaged. Without the same being proved by evidence, the District Forum could not have held that the value of stock destroyed was Rs.1,00,000/-. It is highly excessive and without basis. We have heard the learned counsel for the parties and have also gone through the records of the case carefully.

It is an undisputed fact that the respondent no.1 has borrowed a sum of Rs.3,95,000/- as term loan from the petitioner – Bank in October 2004 to put up a cold storage unit in the name of M/s Shawn Distributors for her livelihood and was engaged in the business of distribution of ice-creams as stockists and distributors for M/s Pastonji who are the manufacturers of ice-creams. She had taken another loan of Rs.1.00 lakh against stock of ice-creams in cold storage. It is also an undisputed fact that the petitioner had as security for the loan advanced taken insurance of machinery and accessories. There was break down of electricity on 04.03.205 which resulted in the burning out of freezer compressor and loss of ice-cream stock. Respondent no. 1 claimed insurance of Rs.1,53,583/- with interest @ 36% per annum for the value of the stock which was repudiated by OP no. 2/ respondent no. 2, on the grounds that the policy taken for the stock in trade is not covered under the conditions of the policies as the 1st opposite party had taken the policy on the ice-cream stock for fire explosion, riot etc., and melting of the ice-cream due to power failure was not covered by the existing policy. Respondent no. 1 in her complaint had stated as follows:

“When the respondent no. 1 made enquiries with the Bank she was informed that in order to cover the risk of lending, the Bank had insured against any loss to the extent of the loan amounts and debited the account of the respondent no. 1 for a sum of Rs.10,882 and a sum of Rs.1418 as premiums paid to the 2 nd opposite party – insurance company. Since the actual act of insuring against any loss was handled by her Bank, the respondent no. 1 went about her business of attending to the day to day administration, being fully confident that she had reposed her trust and faith in the competent hands of the 1st opposite party – the Bank. As demanded by the 1st Opposite Party – Bank, the respondent no.1 even credited the said sum of Rs. 12,300/- to the said account on 05.11.2004. The 2nd opposite party – insurance company or its representative, did not ever meet this respondent no. 1 either before or after the payment of the premium by the 1st opposite party – Bank. Even after considerable time had elapsed after the debit of the premium amount, the respondent no. 1 did not receive any receipt or policy from either of the opposite parties. So the respondent no.1 made enquiries with the 2nd opposite party – insurance company regarding this. The 2nd opposite party – insurance company then informed her that as there was a loan from the 1st opposite party – Bank and there was a lien on the policies held by the 1st opposite party – Bank, the policies had been sent to the 1st opposite party – Bank. The 1st opposite party – Bank confirmed the same and also assured her that all her interests and the 1st opposite party – Bank’s own interests were fully protected”.

Petitioner also have admitted that “it is true that 1st opposite party had paid premium of Rs.10,882/- and a sum of Rs.1,418/- in all Rs.12,230/- to 2 ndopposite party – insurance company in order to cover the risk of the lending amount of Rs.2,55,000/- only and hence debited the same into respondent no.1 account. It is also true that the policies had been sent to the 1st opposite party – Bank by the 2nd opposite party – insurance company as there was a lien. The same has been made in view of the terms and conditions of the section advice and also as per clause 7 of the agreement of terms loan and hypothecation executed by respondent no. 1 in favour of 1st opposite party – Bank”.

Counsel for the petitioner had also admitted that the initial policy was taken by the Bank and the premium for the policy was debited to the account of respondent no. 1. He further argued that it was for the respondent no. 1 to check on the policies taken. But as has been admitted in their written statement by the petitioner, the policies were taken by them and respondent no. 2 had sent the policies directly to the petitioner, in view of the terms and conditions of the agreement. As per the clause 7 of the agreement of the policy which states that “shall be handed over to the Bank”. Hence, petitioner cannot take the plea that respondent no. 1 should have checked the policy taken is the appropriate one.

Respondent no. 1 has specifically written in her complaint that mentioning that on her enquiring with the second opposite party about the non-receipt of the policy, the respondent no. 2 had informed her that there was loan from petitioner and there was a lien on the policy held by the petitioner and the policy had been sent to the bank. The petitioner – Bank had confirmed the same and has also assured her that all her interests and also the interest of the bank are fully protected.

Respondent no. 1 in her complaint has also stated that “not being satisfied with the reply, the respondent no. 1 vide her letter dated 28.07.2006 returned the said cheque and sought copies of the policies under which the insurance was covered, as she did not have them, as also proposals together with the enclosures to it, if any. Vide their letter dated 10.08.2006, the 2nd opposite party – insurance company forwarded the duplicate policies and once again reiterated the same contentions and highlighted the fact that the 1st opposite party – Bank who had taken the insurance had not taken cover for the stock kept in cold storage.

As the duplicate policies were not attested, the respondent no. 1 once again wrote to the 2nd opposite party – insurance company on 29.10.2006 requesting attested copies of the policy along with the enclosed enclosure, if any. Vide their letter dated 28.11.2006, the 2nd opposite party – insurance company sent the attested copies of the policies as also the proposal form. A close examination revealed that the said alleged proposal form is not at all signed by the respondent no. 1 or anybody else. The respondent no. 1 then sought the 1st opposite party – Bank’s view in this regard vide her letter dated 26.12.20056 which was received by the 1st opposite party – Bank on 27.12.2006. But the 1st opposite party – Bank has not sent any reply till date. The postal receipt is produced herewith as proof of dispatch”. The petitioner has nowhere in the reply specifically denied these averments made by respondent no.1.

Hence, there is no reason not to believe that she has correctly stated that she never signed any proposal form – or taken any policy personally and that she had never received the policies with the terms and conditions, as also her statement that respondent no. 2 never discussed the same with her before issue of policies.

In view of the above, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is accordingly dismissed with cost of Rs.10,000/- (Rupees ten thousand only).

Petitioner is directed to pay an amount of Rs.5,000/- directly to respondent no. 1 by way of demand draft and deposit the balance amount of Rs.5,000/- by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case the petitioner fails to deposit the above said amounts within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 22ndNovember 2013 for compliance.

..………………………………

[ V B Gupta, J.]

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

REVISION PETITION NO.4038 OF 2012 (From the order dated 07.08.2012 in First Appeal No.131/2009 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

1. Rajasthan State Industrial Development & Investment Corporation Ltd. (RIICO) Udyog Bhawan, Tilak Nagar Jaipur, Rajasthan Through its Managing Director

2. RIICO, EPIP Sitapura Industrial Area, Tonk Road, Jaipur, Rajasthan Through its Regional Manager

..…. Petitioners

Versus

M/S. NKM Jewels Pvt. Ltd. Through its partner Navneet Kumar Maalpani J-237 A Kriplani Marg Adarsh Nagar Jaipur, Rajasthan ..... Respondent

..…. Petitioners

Versus M/S. Gem Excel Through its partner Dinesh Maalpani J-237 A Kriplani Marg Adarsh Nagar Jaipur, Rajasthan ..... Respondent

..…. Petitioners Versus M/S. Punam Jewels & Beeds Through its partner Navneet Kumar Maalpani J-237 A Kriplani Marg Adarsh Nagar Jaipur, Rajasthan ..... Respondent

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

For the Petitioners : Mr. Nikhil Jain, Advocate For the Respondent : Mr.Sanjeev Kumar Varma, Advocate PRONOUNCED ON: 27 th September, 2013

PER SURESH CHANDRA, MEMBER

By this common order, we propose to dispose of the above-mentioned three revision petitions which emanate from three separate consumer complaints bearing Nos. 234 of 2008, 235 of 2008 and 236 of 2008 filed respectively by M/s NKM Jewellers Pvt. Ltd., M/s Punam Jewels & Beeds and M/s Gem Excel, before the District Forum, Jaipur. All these revision petitions are directed against a common impugned order passed on 7.8.2012 by the State Consumer Disputes Redressal Commission, Circuit Bench No.2, Rajasthan while disposing of First Appeals bearing Nos. 131 of 2009, 132 of 2009 and 133 of 2009 filed by the respective complainants against the orders passed by the District Forum on 16.12.2008 in those three consumer complaints. These revision petitions involve similar questions of law and facts and hence this common order. For narrating the facts in this order, the lead case is Revision Petition No. 4038 of 2012.

2. Briefly stated, the facts which are relevant for disposal of these petitions are that on 31.3.2004, M/s N.K.M Jewellers Pvt. Ltd., respondent/complainant, applied for a plot in the Special Economic Zone (SEZ) to the petitioner Corporation for setting up a gems and jewellery unit and they were allotted plot No. H-1126 for which they deposited 25% of the development fees. As per the allotment letter dated 31.3.2004, balance 75% money was to be deposited within a period of 60 days and in case of delay in depositing the amount, interest @ 15% was to be levied. The respondent did not deposit the balance amount within 60 days and wrote a letter to the petitioner for waiver of interest on balance development charges according to clause 12 (2) which reads as follows:- “ The Chairman and Managing Director may allow payment of balance 75% development charges of industrial plot in one year in three equal quarterly instalments, without interest in case the allotment is made before the industrial area is declared as developed.”

3. The petitioners wrote a letter on 8.5.2006 to the respondent stating that the respondent had deposited the balance 75% of the development charges without interest on 13.5.2005 and as per his request, the matter was put up before the Waiver Committee of the petitioner Corporation which observed that “allotment was made on regular allotment basis and the allottee was well aware to deposit the balance 75% amount of development charges within 60 days” and the Committee had decided to reject the request of the waiver on the balance 75% amount but the Committee had decided to waive the interest for the period during which the matter remained pending for decision of the Waiver Committee. Accordingly, the petitioner Corporation demanded Rs.81,370/- from the respondent as interest for the delayed payment. Alleging this as deficiency in service and unfair trade practice on the part of the petitioner Corporation, the respondent filed a consumer complaint before the District Forum which was resisted by the petitioners/opposite parties.

4. In their reply, the petitioners took a preliminary objection in regard to maintainability of the complaint on the ground that the complainant is an industrial unit which has got allotted a plot from the petitioners/opposite parties for its industrial/commercial activities and as such there is no relationship of consumer between the respondent/complainant and the petitioners/opposite parties and the complaint cannot be included in the category of a consumer dispute and hence was liable to be rejected prima facie. On merits, it was submitted by the OPs that in their advertisement it had been clarified that 25% of development fee and 1% security deposit will have to be paid along with application and the balance will have to be deposited within 60 days of the issuance of the allotment letter. It had also been mentioned in the application that due to the availability of the amenities in the SEZ, no relaxation shall be granted in respect of rates of development fee. The OPs submitted that since the respondent/complainant did not deposit the balance 75% amount within 60 days as required in terms of the allotment letter, opposite parties referred the matter with regard to waiver of interest to the Waiver Committee which rejected the request and granted waiver of interest only for such period during which the matter was pending before the Waiver Committee. It was, therefore, pleaded by the OPs that by recovering 15% interest for the period of delay on the balance amount of 75% of development fee which was required to be deposited within 60 days, they did not cause any deficiency in service or unfair trade practice and the complaint was liable to be dismissed being devoid of any merit.

5. After hearing the parties and considering the evidence, the District Forum dismissed the complaint vide its order dated 16.12.2008. Aggrieved by order of the District Forum, the respondent /complainant challenged the same before the State Commission by filing an appeal which was allowed by the State Commission vide its impugned order whereby the State Commission directed the petitioners to make payment of Rs.81,370/- to the respondent along with interest @ 9% from the date of deposit till the date of payment in addition to Rs.2,000/- by way cost of litigation. This order is now under challenge before us.

6. We have heard Shri Nikhil Jain, Advocate for the petitioners and Shri Sanjeev Kumar Varma, Advocate for the respondent. At the outset, learned counsel for the petitioners contended that as per his own admission in the complaint, the respondent had applied for allotment of the plot in question for setting up industry by establishing a gems and jewellery unit in the SEZ. In view of this admitted position, the respondent had availed of the services of the petitioner Corporation in the matter of allotment of the plot for commercial purpose and as such the complainant/respondent cannot be covered by the definition of a consumer within the meaning of the term under section 2 (1) (d) (ii) of the C.P. Act. In view of this, the complaint of the respondent is not maintainable before the consumer fora. He pointed out that in their reply, the petitioners had taken a preliminary objection to this effect but both the Fora below gravely erred in rejecting this objection and proceeding to deal with the complaint. On merits, learned counsel submitted that the State Commission failed to appreciate that Rule 12 (2) does not give a right to the allottee for waiver of interest rather it is a discretionary power to the Chairman for waiver of the interest if the area is not developed. He further submitted that the State Commission also failed to appreciate that the respondent had failed to deposit the balance amount within the time allowed to him as per the allotment letter. In view of this, he had no reason to complain about the levy of interest. The respondent had also given an undertaking that he will abide by the decision of the Waiver Committee and the Committee had already given him whatever relief could be granted in the matter by non-charging of the interest. Therefore, he submitted that the impugned order cannot be sustained in the eye of law and is liable to set aside both on the question of maintainability of the complaint as well as on merits.

7. Per contra, learned counsel for the respondent has supported the impugned order and submitted that the State Commission has rightly reversed the order of the District Forum which had been passed on wrong appreciation of the factual position. On the question of maintainability of the complaint, he argued that the complaint was in respect of payment of development charges and interest thereon and deficiency committed by the petitioners in that regard and not in respect of allotment for commercial/industrial purpose. In any case, learned counsel submitted that the plea of maintainability had not been taken by the petitioners before the Fora below. He also denied that it was a commercial transaction. He, therefore, submitted that the impugned order be upheld and the revision petition dismissed with cost.

8. We have carefully considered the rival contentions and perused the record. The main question which has arisen before us is whether the respondent/complainant is covered by the definition of a consumer as envisaged under section 2 (1) (d) (ii) of the Consumer Protection Act, 1986. If the answer to this is yes, then we have to decide as to whether the State Commission was right in reversing the order of the District Forum and accepting the complaint of the respondent in terms of its impugned order. In order to decide the first question, let us consider the provisions of section 2(1) (d) (ii) which is reproduced thus:-

“ (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment;”

9. It can be seen from the above provisions that a person who hires or avails of any such services for any commercial purpose cannot be included in the definition of a consumer as envisaged under the C.P. Act. An exception, however, is provided in the explanation which specifies that “commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.” It is not under dispute that as per his own admission in para 1 of the complaint, the respondent had applied for the plot and was allotted the same by the petitioner for establishing gems and jewellery unit in the SEZ on that plot. This being the admitted position, we have no manner of doubt that the respondent had availed of the services of the petitioner Corporation for commercial purpose. So far as the applicability of the exception provided for in the explanation is concerned, we may note that the petitioner Shri Navneet Kumar Maalpani had submitted three applications on behalf of three different commercial units represented by him. In such a situation, even though it has been stated by the respondent in para 3 of his complaint that the application for the plot was made for establishing a gems and jewellery unit in the SEZ “with an object of earning his livelihood at small-scale,” this contention is unbelievable and is not supported by the facts and circumstances of this case. This submission seems to have been made in the complaint just to take advantage of the exception contained in the explanation reproduced above. A person who applies for allotment of plots for setting up three separate industrial units cannot, by any stretch of imagination, be said to be doing so exclusively for the purposes of earning his livelihood by means of self-employment. In view of this, we are convinced that the respondent cannot be covered by the definition of a consumer and in this view of the matter his complaint before the District Forum was not maintainable since it was hit by the provisions of section 2 (1) (d) (ii) of the Act. It should, therefore, have been dismissed by the District Forum on this ground alone. The State Commission also gravely erred in rejecting this plea of the petitioner Corporation without appreciating the preliminary objection in the right perspective in the light of given facts and circumstances of this case. Since our finding on the question of the respondent being a consumer is in the negative, we do not consider it necessary to consider the merits and dismiss the complaint as being not maintainable within the provisions of the C.P. Act. With this, the impugned order also cannot be sustained in the eye of law and is hereby set aside.

10. In view of the above, all the three revision petitions stand allowed and the complaints are dismissed as not maintainable under the Consumer Protection Act 1986, with the parties bearing their own costs.

……………Sd/-……..………..

PRESIDING MEMBER

……………Sd/-….…………… (SURESH CHANDRA)

MEMBER