· Web viewKerala State Co-operative Bank Ltd. A Schedule Bank Head Office at Co-Bank Towers, Palayam, Thiruvananthapuram, Kerala State Rep. By Its Senior Manager Petitioner Versus

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2517 OF 2013 (Against order dated 10.01.2013 in First Appeal No. 854/2009 of the

Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

Oriental Bank of Commerce Hinduan Branch, Station Road, Hinduan City, Distt. Karauli, Rajasthan

…Petitioner

Versus Chandan Bala Jain W/O Late Sh. Sugan Chand Near Jain Mandir, Vardhman Nagar, Hinduan City, Distt. Karauli, Rajasthan

…Respondent BEFORE: HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER HON’BLE DR.S.M.KANTIKAR, MEMBER For the Petitioner : Mr. Vipin Jain, Advocate

PRONOUNCED ON 1 st AUGUST, 2013 ORDER

PER DR. S.M. KANTIKAR1. This Revision Petition is directed against the Order in First Appeal No. 854 of 2009

passed on 10.01.2013 by the State Consumer Disputes Redressal Commission, (in short, ‘State Commission’), Circuit Bench 2, Jaipur, Rajasthan whereby the State Commission has allowed the First Appeal, setting aside the order of the District Consumer Disputes Redressal Forum (in short, ‘District Forum’), Karauli, Rajasthan in Complaint No. 49/2008.

2. Facts of the Case in brief:The Complainant’s husband, Late Sri Sugan Chand took a housing loan of Rs.3 lacs from the OP Bank in 2006 and OP charged Rs.265/- as a processing fee and insurance premium of Rs.1929/-. He had paid 16 instalments of Rs.3,000/- per month totalling Rs.48,000/-. Sugan Chand died in a road accident on 16.05.2007. After the death the OP recovered Rs.2,84,000/- towards the balance loan and interest.

3. The main issue of the Complainant was that the OP bank had recovered the outstanding loan from her husband instead of which the OP should have recovered the loan amount from insurance company. Hence, for deficiency in service filed a complaint before the District forum. The OP Bank admitted the sanction of loan but has denied charging 0.8% process fee and so insurance amount cannot be paid. The District forum dismissed the complaint.

4. Against the order the District Forum the Complainant preferred an appeal before the State Commission. The State Commission through evidence on record and the terms/conditions of loan agreement made the observation as:

“In the light of the above terms, the OP was to provide free Personal Accident Insurance up to Rs.5 lacs and Process Fee was to be recovered from the borrower by debiting his account. There was no

term in the Loan Agreement that the Borrower had to pay insurance premium, thus by not insuring the borrower, the OP was deficient in service due to which the Complainant had to pay the outstanding dues with interest to the OP after the death of Mr. Sugan Chand on 16.05.2007, which she is entitled to recover should from the OP.”

5. The State Commission allowed the appeal and directed the OP to refund of Rs.2,52,000/- collected as principal amount and interest after 16/5/2007 within one month otherwise they will be liable to pay 9% p.a. interest. The OP can retain Rs.265/- towards Process Fee. The OP shall also pay to the Complainant an amount of Rs.10, 000/- towards mental agony and Rs.2, 000/- towards litigation costs. 16.05.2007.

6. Aggrieved by the order of the State Commission this Revision Petition was filed in this commission.

7. We have heard the counsel for petition who argued vehemently. There is a delay of 81 days in filing this Revision Petition. The application filed by the petitioner for the condonation of delay did not specify or explain day to day reasons of delay. Hence, the delay cannot be condoned. Regarding the merits of this petition it is clear from the OP’s own circular which is reproduced as:

“Bank shall provide free personal accident insurance up to Rs.5.00 lacs or the loan amount whichever is lower to the applicants and also insurance of house/flat up to the loan amount free of cost. In such cases, process fee @ 0.8% is to be recovered from the borrower.”

8. Accordingly, the OP should have provided free personal accident insurance up to Rs.5 lacs and they should have recovered the process fee from the borrower by debiting his account. Therefore, the OP failed to do so. It is the deficiency of service for which OP is liable.

9. Therefore, this Revision Petition is barred by time and even devoid of merits. It is dismissed. No order as to costs.

…..…………………………

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

.…..…………………………(Dr. S. M. KANTIKAR)

MEMBER

MSS/14


REVISION PETITION NO. 2049 OF 2013

(Against order dated 15.02.2013 in First Appeal No. 805/2012 of the Kerala State Consumer Disputes Redressal Commission,

Thiruvananthapuram)

Kerala State Co-operative Bank Ltd. A Schedule Bank Head Office at Co-Bank Towers, Palayam, Thiruvananthapuram, Kerala State Rep. ByIts Senior Manager

…Petitioner

Versus 1. L.R. Lekha, W/O G.R. Jayakumar, Pandaravilakom, Sri Gowri Sankaram,

Marayamuttom P.O., Neyyattinkara, Thiruvananthapuram, Kerala State

2. G.R. Jayakumar S/O Gopalakrishnan Nair, Pandaravilakom, Sri Gowri Sankaram, Marayamuttom P.O., Neyyattinkara, Thiruvananthapuram, Kerala State

…Respondents BEFORE: HON’BLE DR.S.M.KANTIKAR, MEMBER For the Petitioner : Mr. M.T. George, Advocate

PRONOUNCED ON 1 st August , 2013

ORDER

PER DR. S.M. KANTIKAR1. This Revision Petition is filed by Kerala State Co-operative Bank Limited against

the Order dated 15.02.2013 Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, ‘State Commission, Kerala’) in Appeal No. 805/2012.The said decision of the State Commission was passed in the appeal filed against the Order dated 30.04.2012 passed by the District Consumer Disputes Redressal Forum, Thiruvananthapuram (in short, ‘District Forum’) in CC No. 225/2010.

2. Facts in brief:

The Complainants availed a loan of Rs.7,00,000/- from ‘The Kerala State Co-operative Bank Ltd’.( the OP), Karamana Branch for repair and renovation to their building in Perumkadavila Village. The loan was sanctioned on 10.06.2006 that the loan was disbursed in three instalments as 1st of Rs.2,10,000/-, 2nd of Rs.2,801,000/- and 3rd of Rs.2,10,000/- that the loan with interest is to be repaid in 180 monthly instalments, that the interest rate was fixed as 7.25% and the penal interest is attracted only if there is default in payment of principle or interest . The 1st instalment was disbursed on 29.06.2006. The repayment EMIs without any default started by the 1st Complainant. On perusal of 1st Complainant’s bank

account it was found that the OP have charged interest more than agreed rate of 7.25%. It was without notice to the Complainant and against the terms and conditions. On enquiry with the OP, who stated that the higher rate of interest was due to non-receipt re financing from the NABARD. The OP had collected an amount of Rs. 20,216/- in excess than the agreed rate of interest at 7.25% from the Complainant from 29.02.2008 to 30.05.2010. Hence the Complainant asked the OP not to charge interest in excess than that of the agreed rate of 7.25% and to refund the excess amount of Rs.20,216/- and also to pay compensation and cost.

But OP denied complainants demand .The OP contended that as the NABARD has stopped the refinancing of loan for rural housing which resulted huge loss to the bank and therefore, the Directors of the bank reviewed the scheme and increased the rate of interest. This decision was conveyed to the Complainant by registered post. The OP has discretion to modify the terms and conditions impose or to add additional terms and conditions that kept considered necessary to protect its interest.

Thereafter, the complainant filed a complaint No 225/2010 before District Forum on the ground that OP has committed grave irregularity in collecting excess rate of interest unilaterally and violated the terms and conditions of the agreement which is deficiency in service and unfair trade practice.

3. The District Forum allowed the complaint ordered as :

“Opposite Party shall not charge interest in excess than that of the agreed rate of 7.25%. Opposite Party shall tabulate the account on the basis of interest at 7.25% and shall refund the excess amount collected so far in excess of the contractual rate of interest of 7.25% per annum to the Complainants. Opposite Party shall pay Rs.5,000/- as compensation and Rs.2,000/- as cost to the Complainants.”

4. Against the order of District Forum the respondent preferred an appeal No. 805/2012 before the State Commission. The State Commission relied upon its own decision dated 07.10.2009 F.A. 142/09; the “Managing Director, Kerala State Co-operative Bank, Thiruvananthapuram Vs. P. Arumugharn”. In that appeal the State Commission has taken a view that the Respondent/Complainant who availed the loan is only bound to pay the fixed interest @ 7.25% p.a. so the action of the part of the appellant/opposite parties in demanding and collecting enhanced interest at interest at 9% p.a. is an unauthorised high handed action. On hearing both the parties and perusal of Loan Agreement and records on file the State Commission dismissed the appeal with further cost of Rs.10,00/-.

5. Aggrieved by the order of State Commission the respondent bank filed this revision petition.

6. Heard the learned counsel for Petitioner who contended that;

The loan was sanctioned at a concessional rate of interest of 7.25% per annum under the NABARD sponsored Scheme “Rural Housing Loan”. NABARD stopped

refinance to the Bank which resulted huge loss to the bank and hence the Board of Directors of the Bank decided

to effect an upward revision of interest from 7.25% to 9% for the loans under Rural Housing Loan. It was stated that OP shall have the discretion to modify the terms and conditions to impose or to add additional terms and conditions that kept considered necessary to protect its interest, though the Complainant is not a party in the agreement executed between the NABARD and the petitioner in respect of sanctioning of the funds.

7. It is noted from the evidence on record that the petitioner bank has decided to extend the loan facility by enhancing the rate of interest at 9% treating the loan as of an own fund loan so as to give protection to its customers. Accordingly registered notice to RHL Scheme customers providing an opportunity to them either to continue a loan facility with enhanced rate of interest or to close the loan within the time limit specified in the registered notice was given/published.

8. Discussing the merits of this case , it is clear the Complainants were only bound to follow the agreement executed between the bank and themselves. The agreement did not mention any directions or rules of NABARD. The loan disbursement document is very clear that last loan instalment (3rd) was disbursed on 4/1/2007; but the letter of enhancement of interest of 9% was sent by registered post on 30/1/2008. OP has collected excess interest of Rs. 20216/- from 29/2/2008 to 31/5/2010. It appears that the OP has acted upon its own whims and fancy without any proper directions or rules that has increased the interest abruptly. It amounts to unfair trade practice and OP bank has no right to collect any excessive amount of interest which is a deficiency in service. The OPs have not produced any documents, rules or directions to prove their contentions.

9. Therefore, there is no illegality in the orders passed by the Fora below. Hence, this Revision Petition is dismissed with costs of Rs.10,000/- to be paid to the Complainant. The order should be complied within 60 days otherwise it will carry interest @ 9% per annum till the payment.

.…..…………………………

(Dr.S. M. KANTIKAR) MEMBER

MSS/14



(Against order dated 03.08.2012 in First Appeal No. 1010/2012 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

Jaswinder Singh, S/o. Kulwanth Singh, R/o. Plot No.9, P&T Colony,

Balamrai, Secunderabad…Petitioner

Versus

Corporation Bank, S.P. Road Branch, 9-1-86/1, Sardar Patel Road, Secunderabad, Rep By its Chief Manager.

…Respondent AND


(Against order dated 03.08.2012 in First Appeal No. 1011/2012 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

Sri Pradeep Kumar Gupta, S/o. Late Babulal Gupta, R/o H.No.8-5-317/1, Plot No.91/C, Brindavan Colony, Old Bowenpally, Secunderabad

…Petitioner Versus

Corporation Bank, S.P. Road Branch, 9-1-86/1, Sardar Patel Road, Secunderabad, Rep By its Chief Manager.

…Respondent BEFORE: HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER HON’BLE DR.S.M.KANTIKAR, MEMBER For the Petitioner in both cases : Mr. Himanshu Gupta, Advocate For the Respondent in both cases : Mr. Alok Kumar, Advocate with Mr. Amit Kumar Dadhich, Advocate

PRONOUNCED ON 1 st August , 2013

ORDER

PER DR. S.M. KANTIKAR1. This common order passed is passed in the two Revision Petitions No.

RP/4662/2012 and RP/4663/2012 filed against the order of the State Consumer Disputes Redressal Commission, Hyderabad, A.P. (in short, ‘State Commission’) in First Appeal No. 1010 of 2012 and First Appeal No. 1011 of 2012, whereby the Hon’ble State Commission was pleased to allow the appeal preferred by the Respondent/Corporation Bank and dismissed the Complaint filed by the Petitioner.

2. Brief facts in the case are :

The facts are similar in both revision petitions. The Respondent/Bank published a notification for the sale of mortgage properties in the public auction on 27.05.2009 at 11.30 a.m. Accordingly as per the auction conditions the petitioners in both Revision Petitions participated the auction proceedings by depositing earnest money of Rs.1,10000/- each. The Petitioner in RP 4662/2012 succeeded the auction for the Flat No. 8-7-114/8/28, 2nd floor at Hussaini Bagh, Golbowli, Old Bowenpally, under Kukatpally Municipality for a sum of Rs.15,05,500/-. The petitioner in RP No 4663/2012 succeeded the auction for the Flat No. 8-7-114/8/28. on first floor flat at Hussaini Bagh, Golbowli, Old Bowenpally, under Kukatpally Municipality for a sum of Rs.16,40,000/- . Thereafter, the OP asked to remit the balance auction money. On 28.05.2009 the OP issued Xerox documents of the auction property for the scrutiny from the Complainant. The Complainant approached few other Banks for getting loan, who on verification on the title deed stated that the title deeds are defective. The Complainant verified the title deeds from legal consultants who also confirmed about the defects in the title deeds Hence, thereafter the Petitioner approached the Corporation Bank (OP) for getting Housing Loan with respect to said property. But the OP Bank also refused to grant loan without setting any reasons. Therefore, the Petitioner wrote a letter to the Regional Office on 30.05.2009 about the defects in the title of a said property and requested the OP to refund the said deposited earnest money of Rs.1,10,000/-. The OP did not respond but stated that they have already sent a letter by forfeiting investment money paid by the Complainant. But no such letter received by the Complainant. Therefore, the Complainant finally sent a registered letter on 11.06.2009 for which the OP replied evasively with false and frivolous allegations. Further, the Complainant approached a senior legal Counsel who also being advocate in the panel of banking institutions and took a legal opinion on the said title deed. As per their opinion dated 28.6.2009 the property covered by Registered sale deed is in favour of defaulter of the OP and the powers vested in favour of vendor of the said defaulter from each other. On this ground the Complainant wrote another letter to OP on 09.07.2009 enclosing the said legal opinion and requested to refund the earnest money deposited. But the OP did not complied with the Complainants request. Hence, alleging deficiency of service the Complainant filed a complaint before the District Consumer Disputes Redressal Forum, Hyderabad, A.P. (in short, ‘District Forum’) for the relief in the CC No. 810/2009.

3. The OP filed their version as follows:They have acted as per the terms and conditions furnished to the bidders in respect of auction property. The Complainant was declared as highest bidder but he did not comply with the terms and conditions of auction .He has not deposited 25% of the bid amount on same day and also failed to pay the remaining 75 % within fifteen days. Therefore, the OP have forfeited the earnest money of 1,10,000/- as per terms of auction.The OP also contended that they have sustained loss by the way of conducting another auction in respect same property and expenses of publication. Therefore, no deficiency in service.

4. The District Forum allowed the Complaint after hearing the Counsel for both the parties and perused all material on record and directed the OP to refund the earnest deposit amount of Rs.1,10,000/- to the Complainant along with interest at 9% p.a. from the date of the deposit till the date of realization and to pay Rs.2,000/- towards costs of the complaint.

5. Aggrieved by the order of the District Consumer Forum the Bank (OP) preferred two appeals FA No. 1010 of 2012 and FA No 1011/2012 before State Commission. OP contended that there is no illegality or irregularity or deficiency in service in forfeiting earnest money.

6. The State Commission perused the entire material on record and the evidence and heard the both the parties and set aside the order of the District Forum and dismissed the complaint.

7. Aggrieved by the order of State Commission the Petitioners have filed the instant Revision Petitions before this Commission.

8. We have heard the Counsel for the parties. The Counsel for the Petitioner argued that the OP Bank as played fraud as they have knowledge about the defective title deed and OP betrayed the trust of the general public by auctioning such property.

9. We have considered the following submissions of the OP Bank. It is pertinent to observe that, when the bank has advertised that purchase of flat would be on ‘as-is-where-is’ basis, it clearly means that the Seller is not responsible for the Title Deeds. It is the bounden duty of the Purchaser to find out, whether the above said flat is free from all encumbrances. The Bank is not responsible for that. That is why Bank has given the advertisement in such a manner, cautioning the Purchaser to verify the Title Deeds. In that context, the Bank will have to spend lot of money on advertisements and on auction itself. The time of the bank managers is also wasted.

10. On perusal of evidence on record it appears that the O.P have misused the term for “as is where is”. It was a deliberate concealment of legal position of the title deed. It is clear that at the inception only the intentions of OP were to conceal the defective title. Therefore, the advertisement “as is where is” created confusion in this case. Affidavit of Complainant shows that the Complainant was interested in participating in the public auction and requested the OP to provide the copies of the title deeds for verification prior to the date of auction but the OP refused

to provide it prior to the date of auction. Therefore, the Complainant was unable to verify the title.

11. From the inception the OP was well aware about the defective title of said auctioned property and with malafied intentions OP has not issued those documents to the complainant for verification of legal aspects of title. It is quite surprising to note that OP issued the copies of title deed after completion of auction process. Therefore, such defective title is of no use for the complainant.

12. Even after successful bidding the complainant tried his level; best to get loan to remit balance of bid amount; but no banks were ready to grant loan on basis of such defective title deed. The OP bank also denied giving loan to the complainant.

13. Hence, we hold the OP bank responsible for such debacle by which the Complainant did not get house and sustained loss despite he was a successful bidder. The OP publishing or advertising such defective titled property for auction sale amounts to unfair trade practice and deficiency in service. Hence, the action of OP in forfeiting the earnest money is an illegal act.

14. Hence, we partly allow both Revision Petitions. Accordingly we set aside the order of State Commission and restore the order of District forum with modifications as ;

The OP bank is directed to refund to each petitioner amount of Rs.1,10000/- without any interest after deduction of Rs.25,000/- towards the cost of auction proceedings, advertising etc. This order should be compiled within 45 days otherwise it will carry interest @ 9% per annum till realisation.

…..…………………………(J. M. MALIK, J.)

PRESIDING MEMBER

.…..…………………………(Dr. S. M. KANTIKAR)

MEMBER

Mss/7-8



From the order dated 26.02.2008 in Appeal No. 276/2006 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

Abhay Deo Saxena R/o 11/103, Kaveri Pathh, Man Sarovar, Jaipur (Raj) – 302020… Petitioners/Complainant

Versus

1. Rajasthan Housing Board Jyoti Nagar, Jaipur, Through: Chairman2. Rajasthan Housing Board Jyoti Nagar, Jaipur, Through: Secretary3. The Chief Estate Manager, Rajasthan Housing Board Jyoti Nagar, Jaipur,4. The Estate Manager, Rajasthan Housing Board Pratap Nagar, Jaipur

…Respondents/Opp. Parties (OP) BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr. Abhay Deo Saxena, In personFor the Respondents : Mr. Milind Kumar, Advocate PRONOUNCED ON 1 st August, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

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

order dated 26.02.2008 passed by the Rajasthan State Consumer

DisputesRedressal Commission, Jaipur (in short, ‘the State Commission’) in Appeal No.

276/2006 – Rajasthan Housing Board Vs. Mr. Abhay Deo Saxena by which, application

for review of order was dismissed.

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

and learned District Forum vide order dated 13.2.2003 allowed complaint and directed

OP to allot House No. 63/37 which is still vacant. Both the parties filed appeal before

State Commission and learned State Commission dismissed both the appeals. Later

on, complainant/petitioner filed application and submitted that by typing mistake, House

No. 63/37 has been typed in the orders instead of House No. 62/37 which may be

corrected. Learned State Commission vide impugned order dismissed application

against which, this revision petition has been filed.

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

perused record.

4. Perusal of record clearly reveals that learned District Forum directed

OP/Rajasthan Housing Board to allot House No. 63/37 to the complainant and appeals

filed by both the parties were dismissed by learned State Commission. In both the

appeals, House No. 63/37 has been mentioned. Learned State Commission in the

impugned order observed that there is no typing mistake in the order and order of

District Forum for allotment of House No. 63/37 has been affirmed by learned State

Commission. It was further observed that learned State Commission has no power to

review its order.

5. As held by the Apex Court in (2011) 9 SCC 541 – Rajeev Hitendra Pathak and

Others Vs. Achyut Kashinath Kakekar and Another, the State Commission has no

power to recall its order. Learned State Commission has not committed any error in

dismissing review petition by the impugned order.

6. We do not find any illegality, irregularity or jurisdictional error in the impugned

order and revision petition is liable to be dismissed.

7. 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 )

MEMBERk



(From the order dated 24.11.2011 in Appeal No.202 of 2010 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)

Sahara India First Floor, Chhikniwala Bldg., Beside Bank of India, Opp. Naroda, Police Station, Naroda, Ahmedabad.

… Petitioner/Opp. Party (OP)

Versus

1. Ashok Kumar Ranchand Gunani2. Minaben Ashok Kumar Gunani3. Haresh Ashok Kumar Gunani4. Kamlesh Ashok Kumar Gunani All R/o A-1, Sindhunagar Society Kubernagar, Ahmedabad

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

For the Petitioner : Mr. Gautam Awasthi, Advocate For the Respondent : Mr. Akhil Dave, Advocate

PRONOUNCED ON 1 st August, 2013

O R D E R


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

24.11.2011 passed by the Gujarat State Consumer Disputes RedressalCommission,

Ahmedabad (in short, ‘the State Commission’) in Appeal No. 202 of 2010 – Sahara

India Vs. Ashok kumar Ranchand Gunani & Ors. by which, while allowing appeal partly,

order of District Forum allowing complaint was confirmed, but words ‘Insurance Policy

and ‘Bond’ mentioned in the order of District Forum were substituted by the

word ‘Insurance Order’ and ‘Bank Order’, respectively.

2. Brief facts of the case are that Sangitaben obtained insurance policy from OP-

Petitioner on 31.7.1998 for Rs.10,000/- for a period of 10 years and

deceased Sangitaben nominated each of the complainants/ as a nominee in the ratio of

25% each. On 12.10.2007, Sangitaben died. Complainant No. 1 was paid Rs.10,000/-

as death maturity, but Death Health Facility Benefit was not granted. Alleging

deficiency on the part of OP/petitioner, complainant filed complaint before District

forum. OP was proceeded ex-parte and learned District Forum vide order dated

6.1.2010 allowed complaint and directed OP to make payment of

Rs.12,00,000/-. Appeal filed by the petitioner was dismissed by State Commission vide

impugned order against which, this revision petition has been filed.

3. Heard learned Counsel for the parties and perused original record of District

Forum.

4. Learned Counsel for the petitioner submitted that notice for appearance on

2.12.2009 before District Forum was issued on 9.12.2009 and on account of non-

appearance of petitioner, petitioner was proceeded ex-parte on 22.12.2009 and ex-

parte order was passed on 6.1.2013 without taking any evidence and learned State

Commission committed error in dismissing appeal; hence, revision petition be allowed

and impugned order of District Forum be set aside. Learned Counsel for the respondent

admitted that as per record, by notice dated 9.12.2009, petitioner was asked to appear

on 2.12.2009 before District Forum and apparently, District Forum committed error in

allowing complaint ex-parte; hence, revision petition be allowed and matter may be

remanded back to the District Forum for disposal in accordance with law.

5. Perusal of record of District Forum clearly reveals that notice for appearance of

petitioner on 2.12.2009 has been issued by District Forum on 9.12.2009. Learned

Counsel for the respondent submitted that by inadvertence 9.12.2009 has been

mentioned whereas apparently notice was issued on 9.11.2009. This contention cannot

be accepted because the date 9.12.2009 has been mentioned on the notice at two

places, on the top as well as at bottom. Thus, it becomes clear that notice for

appearance on 2.12.2009 has been issued on 9.12.2009 and ex-parte order has been

passed against the petitioner on 22.12.2009, which could not have been passed by

learned District Forum without service of proper notice for 2.12.2009. Further, it also

reveals that District Forum allowed complaint even without recording any evidence of

the complainant. Thus, it becomes clear that District Forum committed error in allowing

complaint ex-parte. Learned State Commission further committed error in dismissing

appeal by impugned order without considering aforesaid contention of the petitioner

made in the memo of appeal before State Commission and in such circumstances,

impugned order is liable to set aside. Learned Counsel for the respondent also

admitted this mistake on the part of District Forum and State Commission and prayed

that after setting aside impugned order, matter may be remanded back to learned

District Forum for deciding the matter after giving opportunity of being heard to both the

parties.

6. Consequently, revision petition filed by the petitioner is allowed and impugned

order dated 24.11.2011 passed by learned State Commission in Appeal No. 202 of

2010 - Sahara India Vs. Ashok Kumar Ranchand Gunani & Ors. is set aside and order

of District Forum dated 6.1.2010 is set aside. District Forum is directed to decide the

matter afresh after giving opportunity of being heard to petitioner/OP.

7. Parties are directed to appear before District Forum, Ahmedabad City, Gujarat on

9.9.2013.

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

..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 3759 of 2011

(From the order dated 18.8.2011 in Appeal No.615 of 2008 of the State Consumer Disputes Redressal Commission, Chennai Bench II)

G. Ramachandran 18/6, Peyalwar Koil Street, Triplicane, Chennai – 600005

… Petitioner/Complainant

VersusICICI Bank Limited Nungambakkam Branch No. 110, Prakash Presidum Nungambakkam Chennai – 600034

… Respondent/Opp. Party

BEFORE

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

For the Petitioner : Mr. Manish Kumar, Advocate For the Respondent : Mr. Pankaj Yadav, Advocate

PRONOUNCED ON 1 st August, 2013 O R D E R


This revision petition has been filed by the Petitioner against the impugned order

dated 18.8.2011 passed by the State Consumer Disputes RedressalCommission,

Chennai, Bench II (in short, ‘the State Commission’) in Appeal No.615 of 2008 – ICICI

Bank Limited Vs G. Ramachandran. by which, while allowing appeal partly, order of

District Forum allowing complaint was partly set aside.

2. Brief facts of the case are that complainant applied for loan from Employees’

Provident Fund organization to complete his construction and loan of Rs.75,000/- was

sanctioned by Employees’ Provident Fund organization and cheque dated 11.9.2003

worth Rs.75,000/- was sent by Employees’ Provident Fund organization to OP for

crediting in Complainant/Petitioner’s account which was not credited. Alleging

deficiency on the part of OP/respondent, complainant filed complaint with a prayer to

credit the cheque amount of Rs.75,000/- with interest @ 24% p.a. interest and further

pay compensation and cost. OP contested complaint and submitted that as cheque did

not bear correct account number; hence, amount could not be credited in complainant’s

account and awaiting instructions from their Head Office. Learned District Forum after

hearing both the parties, allowed complaint and directed OP to credit Rs.75,000/- along

with 24% p.a. interest in complainant’s account and further pay Rs.15000/- as

compensation and Rs.1,000/- as litigation cost. Appeal filed by the respondent was

partly allowed by learned State Commission vide impugned order and order directing to

credit Rs.75,000/- was set aside and rest of the order was upheld against which, this

revision petition has been filed.

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

4. Learned Counsel for the petitioner submitted that learned District Forum rightly

directed OP to credit Rs.75,000/- in petitioner’s account, but learned State Commission

has committed error in setting aside this order; hence, revision petition be allowed and

impugned order be set aside. On the other hand, learned Counsel for the respondent

submitted that on account of illegible/wrong account number, amount of cheque could

not be credited in the petitioner’s account and order of State Commission is in

accordance with law; hence, revision petition be dismissed.

5. Perusal of record reveals that cheque was sent by Employees’ Provident Fund

organization along with letter to OP for crediting Rs.75,000/- in petitioner’s SB A/c, but

his SB Account number shown in the letter is not legible. Later on, on 27.10.2003

petitioner wrote letter to OP regarding non-crediting of Rs.75,000/- in his SB Account,

but in that letter too he has mentioned petitioner’s different SB Account number at two

places. In such circumstances, this amount could not have been credited in petitioner’s

SB Account. Learned Counsel for the petitioner has not proved this fact that

Rs.75,000/- has been credited in any one’s account and debited in the Employees’

Provident Fund organization A/c. In such circumstances, petitioner was not entitled to

get credit of Rs.75,000/- from OP and learned State Commission has not committed any

error in modifying the order of learned District Forum to this extent.


order and revision petition is liable to be dismissed.

7. Consequently, the revision petition is dismissed at admission stage with no order

as to costs. ..………………Sd/-……………


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3146 OF 2012

(From the order dated 16.07.2012 in Appeal No.201 of 2012 of the State Consumer Disputes Redressal Commission, UT, Chandigarh)

Sanjay Kumar Mishra H.No. 1224, G/F, New HBC Sector-19 Panchkula – 134113 (Haryana)


Versus1.Public Information Officer (PIO) State Information Commission (SIC) Punjab S.C.O. 84-85, Sector 17C, Chandigarh – 160017 2.Chief Information Commissioner (CIC) State Information Commission (SIC) Punjab S.C.O. 84-85, Sector 17C, Chandigarh – 160017

… Respondents/Opp. Parties (OP) BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : In personFor the Respondent Nos. 1 & 2 : Mr. Vishal Mahajan, AdvocateFor Union of India (Impleader) : Mr. Ali Naqvi, Advocate PRONOUNCED ON 1 st August, 2013

APPLICATION FOR IMPLEADMENT OF PARTY

O R D E R


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

order dated 16.07.2012 passed by the State Consumer

Disputes RedressalCommission, UT, Chandigarh (in short, ‘the State Commission’) in

Appeal No. 191 & 201/2012 – Sanjay Kumar Mishra Vs. Public Information Officer

(PIO) & Anr. bywhich, while dismissing both the appeals, order of District Forum

dismissing complaint was upheld.

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

District Forum for a direction to OP/respondent to provide him parawise information and

grant of compensation which complaint was dismissed by District Forum and upheld by

learned State Commission.

3. During pendency of revision petition, Union of India filed application

for impleadment of Union of India as a party and submitted that outcome of these

proceedings will have a bearing on all public authorities and authorities under

Consumer Protection Act have no jurisdiction to deal with the matters covered under

Right to Information Act; hence, Union of India may be impleaded as a party. Petitioner

filed reply and submitted that Union of India is neither necessary nor proper party in this

matter and Union of India was not a party before District Forum or State Commission;

hence, application be dismissed.

4. Heard the petitioner in person and Counsel for the respondent and Union of India.

5. Learned Counsel for the Union of India submitted that a party can be impleaded

at any stage of the proceedings and outcome of these proceedings will have bearing on

all public authorities; hence, Union of India may be impleaded as a party. On the other

hand, petitioner submitted that Union of India is neither necessary nor proper party;

hence, application for impleadment may be dismissed.

5. It is admitted case that Union of India was not a party before District Forum and

State Commission. District Forum has already dismissed complaint and State

Commission has upheld order. During the pendency of the revision petition, the Union

of India had filed application for impleadment as a party. Learned Counsel for the Union

of India has placed reliance on (2010) 7 SCC 417 – Mumbai International Airport

Private Limited Vs. Regency Convention Centre and Hotels Private Limited and

others in which it was held that at any stage of the proceedings Court can add or

delete any party under Order 1 Rule 10 CPC. We agree to the proposition of law laid

down by Hon’ble Apex Court, but we do not find any ground for impleading Union of

India as a party in these proceedings merely because outcome of these proceedings

may have a bearing on all public authorities under Right to Information Act. Petitioner

has alleged deficiency only against Public Information Officer and Chief Information

Commissioner, Punjab and has not claimed any relief against Union of India. In such

circumstances, Union of India cannot be impleaded as a party in this revision petition,

but at the same time, as outcome of this litigation may have impact on other public

authorities, it would be appropriate to allow Counsel of Union of India to address this

Commission at the time of final arguments.

6. Consequently, I.A. No. 206 of 2013 filed by the Union of India is dismissed with

permission to address Bench at the time of final arguments.

7. List the matter for admission hearing on 04.10.2013.

..………………Sd/-……………


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk


FIRST APPEAL NO. 411 OF 2007

(Against the order dated 24.04.2007 in CC No. 56/1998 of theDelhi State Consumer Disputes Redressal Commission)

St. Stephens Hospital Through its Medical Superintendent Tis Hazari Delhi

… Appellants

Versus

Smt. Roshani Devi, Wife of Late Ram Niwas, Resident of Village Asanda, P.O. Sampla, Distt. Rohtak, Haryana

… Respondents


(Against the order dated 24.04.2007 in CC No. 56/1998 of theDelhi State Consumer Disputes Redressal Commission)

1. Smt. Roshani Devi, Wife of Late Ram Niwas, Resident of Asanda, P.O. Sampla, Distt. Rohtak, Haryana

2. Km. Mamta Rani, Daughter of Late Ram Niwas, Resident of Village Asanda, P.O. Sampla, Distt. Rohtak, Haryana

3. Master Amit Kumar, Son of Late Ram Niwas, Resident of Village Asanda, P.O. Sampla, Distt. Rohtak, Haryana

4. Master Anuj, Son of Late Ram Niwas, Resident of Village Asanda, P.O. Sampla, Distt. Rohtak, Haryana

… Appellants

Versus

St. Stephens Hospital, Through its Medical Superintendent, Tis Hazari, Delhi

… Respondents

BEFORE:

HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER

HON'BLE MR. VINAY KUMAR, MEMBER

IN FA/411/2007

For the Appellants Mr. Rajeev Sharma, Advocate

Mr. Sahil Bhalik, Advocate

For the Respondents Ms. Aruna Mehta. Advocate

IN FA/488/2007

For the Appellants Ms. Aruna Mehta. Advocate

For the Respondents Mr. Rajeev Sharma, Advocate

Mr. Sahil Bhalik, Advocate

Pronounced : 1 st AUGUST, 2013

ORDER

PER VINEETA RAI, MEMBER

1. First Appeal No. 411 of 2007 has been filed by St. Stephens Hospital being

aggrieved by the order of the State Commission, which had allowed the complaint of

medical negligence alleged by Smt. Roshani Devi, complainant before the State

Commission and respondent herein. A cross appeal (First Appeal No. 488 of 2007) in

the same matter has been filed by respondent/complainant, seeking enhancement of

the compensation awarded by the State Commission. Since the cause of action and

the parties involved are common in both the cases, we propose to dispose of both

appeals through a single order by taking the facts from First Appeal No. 411 of 2007.

2. In her complaint before the State Commission, Complainant/respondent

Smt. Roshani Devi contended that her late husband (hereinafter referred to as ‘patient’),

who had been suffering from intermittent fever from 12.02.1996 and which could not be

cured in Rohtak, was admitted to appellant hospital on 22.02.1996. He was discharged

on 26.02.1996 with the remark that the patient had “improved” and required treatment

as an outdoor patient, whereas the patient was in a very critical condition when he was

discharged with platelet counts which had dropped to even more critical levels from

19,000 to 16000 cumm; whereas the normal count is between 1,50000 to

4,50000 cumm. It was stated that although the concerned Doctors of Appellant Hospital

had clearly recorded that liver abscess was suspected but no tests were conducted to

confirm the same or to diagnose the cause of the very low platelets counts

(Thrombocytopania). In fact throughout the period of the stay of the patient in Appellant

Hospital, only empirical treatment to deal with the overt symptomatic conditions like

fever, pain and nausea were given such as Combiflame,Lariago and Perinorm. Some

of these medicines are contraindicated as being toxic in respect of liver complaints.

3. The same night, following the discharge, patient’s s condition further deteriorated

and bleeding started from his nails, gums and nose. He was rushed to AIIMS but could

not be admitted there due to non-availability of a bed. He was thereafter admitted to

Holy Family Hospital on 27.02.1996. Although, a correct diagnosis was made there and

treatment started but, because of the medical negligence on the part of appellant No.1

in not correctly diagnosing and treating the patient, his life could not be saved and he

passed away on 11.03.1996.

4. Being aggrieved by the deficiency in service and medical negligence on the part

of the appellant hospital because of which a young man of 32 years who was working

as a school teacher on a monthly salary of Rs. 5,000/- (and which would have

substantially increased over the years), expenditure of over Rs. 1,20,000/- spent on his

treatment and also the acute mental agony and invaluable loss caused to Respondent

and her young children, Respondent filed a complaint before the State Commission

requesting that the Appellant-Hospital be directed to pay the Respondent following:i) For loss of income present and future : Rs. 13,00,000/- ii) For Expenses incurred towards medical

treatment in the concerned hospitals : Rs. 1,28,000/-

iii) For loss of love, affection etc. : Rs. 72,000/-/- Total : Rs. 15,00,000/-

5. The contentions of the respondent were denied by the Appellant-Hospital in its

written rejoinder who inter-alia took the following plea:“(i) A Doctor can be said to be guilty of negligence only if he commits

such an error which no doctor of reasonable competence will commit. A doctor cannot make a final diagnosis straightway and any diagnosis that is made by a doctor is always to an extent prima facie;

(ii) All the test reports of patient turned out to be normal except his

platelets count which was low. Low platelets count is commonly found in blood examination of patients of malaria. After treatment for Malaria the patient’s fever settled and he felt better;

(iii) There were no symptoms indicating jaundice. Normally diagnosis of

jaundice is made on the basis of yellowing of the skin, itching and

mental indentation (confusion). Though, the OPD doctor had suspected liver abscess, however, after admission and examination by the Consultant, it was found that the patient was suffering from malaria fever and treatment for the same was started;

(iv) Patient was properly taken care for and treated as per medical

practice and procedure. At the time he was discharged from the hospital he was not in a serious or a life threatening condition. The doctors at the hospital never suspected liver abscess;

(v) The complainant was wrong in assuming that platelet count of 19000

is indicative of critical condition. This view is not supported by medical literature”.

6. The State Commission after hearing the parties and on the basis of evidence

adduced before it, allowed the complaint by observing as follows: “As is apparent from the aforesaid medical literature the normal

human body has 1.5 lakh to 4.5 lakhs platelets per cu. Milliliter of blood and if as many count above 1,00,000 per cub. Mil. Patients are not symptomatic and the bleeding time remains normal. Patients with a platelets count below 20,000 per cub. Millimeters have an appreciable incidence of spontaneous bleeding, usually have petechiae and may have intracranial or other spontaneous internal bleeding. In the instant case patients was having platelets of 16,000 at the time of discharge still his condition was shown as normal whereas at the time of admission he was having 19,000 count. Patient with such low count platelets needs hospitalization and proper management as such a count has potential instance of spontaneous bleeding which usually have petechiae and may have intracranial or other spontaneous internal bleeding.”

7. The State Commission directed the Appellant-Hospital to pay Rs. 5,00,000/- to

the Respondent-Complainant as against Rs.15,00,000/- sought by her by observing as

follows:“Taking over all view of the matter, the age of the patient as well as the profession and his earnings, the legal heirs left by him and the medical negligence on the part of OP No.1, mainly discharging the patient in such a condition which was against the medical ethic, in our view Rs. 5,00,000/- (Rupees Five Lacs) to be payable by OP No.1 Hospital would meet the ends of justice.”

Hence the present cross appeals.

8. Learned Counsels for both parties made oral submissions.9. Counsel for the Appellant-Hospital reiterated the stand it took before the State

Commission and vehemently argued that the State Commission erred in concluding that

it was guilty of medical negligence. While agreeing that Patient had been admitted in

Appellant-Hospital with a history of intermittent fever, at the time of his admission, most

of his vital parameters were within normal range except for the low platelet count. Since

the intermittent fever coupled with low platelet count is usually indicative of either

Typhoid or Malaria, Patient was tested for the same but both blood reports were

negative. However, since Malaria Parasites are often not captured in the first blood

sample and the symptoms were those of Malaria, Patient was given treatment for the

same. There was no symptom of Hepatitis such as yellowing of the skin, dark yellow

urine, acute nausea etc. On a query by us to Counsel for the Appellant-Hospital as to

how the Patient’s diagnosis just a few days later and his subsequent death due to acute

hepatic failure could be explained, he cited medical literature entitled “Fulminant Hepatic

Failure” by William M. Lee and Frank VinholtSchiodt in support, wherein it is

documented that such hepatic failure can have a very rapid onset and, therefore,

Counsel for Appellant-Hospital contended that Patient developed the serious liver

ailment overnight and after he had been discharged from the Appellant-Hospital. To

further explain why Appellant-Hospital discharged Patient with such a low platelet count

and also did not give blood transfusion, Counsel for the Appellant-Hospital again relied

on medical literature contained in “Guidelines for the Transfusion of Platelets” New York

State Council on Human Blood and Transfusion Practices committee, New York State

Department of Health, wherein it is inter alia stated “Patients with platelet counts above

5,000/uL who are not bleeding and who are otherwise stable may not require

transfusion”. Thus, after carefully assessing Patient’s condition, he was discharged as

an Indoor Patient but was advised to come for follow up check-up in OPD. Counsel for

the Appellant-Hospital also cited number of judgments of Hon’ble Supreme Court,

including in Jacob Mathew V. State of Punjab And Anr. [(2005) 6 SCC 1], to assert

that taking into account the principles of what constitutes medical negligence as

enunciated in these cases, this was clearly not a case of medical negligence and

deficiency in service since Patient was treated by highly qualified doctors in a well-

reputed hospital taking all reasonable care and precaution and using their best

professional judgment in carefully assessing his medical condition on the basis of

clinical and pathological diagnosis/tests.

10. Counsel for the Respondent-Complainant on the other hand stated that the State

Commission erred in concluding that there were no symptoms to indicate that Patient

had liver problems. In fact, in the prescription prepared after Patient’s examination and

before admitting him in the Appellant-Hospital, it was clearly stated that the liver

was perpitable and the doctor who examined him had written after due examination that

the symptoms were indicative of abscess of liver and, therefore, in the column ‘Advice’,

Patient was advised “x-ray of the abdomen and ultrasound abdomen urgent” with

instructions to admit him in the Medicine Ward. However, none of these tests, including

ultrasound, were carried out to either confirm or rule out abscess of liver during the 5

days that Patient was admitted in the hospital even though a preliminary diagnosis of a

major liver problem was made. In fact the very low platelet count which further fell,

coupled with the preliminary diagnosis of liver, should have alerted any prudent doctor

to carry out tests to rule out any problem pertaining to the liver. Counsel for the

Respondent-Complainant also relied on medical literature entitled

“Harrisons’s Principles of Internal Medicine’, 12th Edition, Vol.I, which inter alia states

that patients with a platelet count below 20,000 per cubic millimeter suffer from a

serious medical condition and have an appreciable incidence of spontaneous

bleeding. In the instant case, within few hours of his discharge from Appellant-Hospital,

Patient started hemorrhaging from the gum, nose etc. At the time of discharge of the

Patient from the Appellant-Hospital, it had clearly stated that Patient had

Thrombocytopenia and, therefore, it was not understood how any qualified Doctor using

his reasonable judgment could have concluded that Patient’s condition had improved

when in fact it had deteriorated as indicated by the falling platelet counts. Counsel for

the Respondent-Complainant further brought to our notice relevant medical records

maintained in Holy Family Hospital wherein it was stated that the acute hepatitis from

which Patient was suffering was of 10 days duration. In view of the above facts,

medical negligence was fully established as also concluded by the State

Commission. However, State Commission erred in granting very low compensation of

Rs.5,00,000/- whereas in such cases the compensation could have been calculated

using the formula used in motor accident cases i.e. after taking into account the age of

the patient, his present employment and the potential for remuneration in the future etc.

and applying the relevant multiplier.

11. We have heard learned Counsels for both parties and have also gone through the

evidence on record. The fact pertaining to Patient being admitted in Appellant-Hospital

on 22.02.1996 for intermittent fever and related ailments is not in dispute. It is also an

admitted fact that Patient was diagnosed with Thrombocytopenia, which is low platelet

count, and to rule out that Patient was suffering from Typhoid and Malaria necessary

pathological blood and vidal tests were carried out since Thrombocytopenia is a

symptom common to both these diseases. Based on the symptoms present in the

Patient, no test for any other disease was required. We have perused the records

produced in evidence, including the medical history of the Patient in the Appellant-

Hospital, and note that the above contentions of Counsel for the Appellant-Hospital are

not borne out by their own documentary evidence on record before the State

Commission. In fact, as also observed by the State Commission, at the time of

Patient’s admission in Appellant-Hospital it was clearly stated that his liver

was perpitable with tenderness on the left side and on the basis of this observation the

Doctor had suspected abscess of liver. Patient was, therefore, advised to be admitted

in the Medicine Ward and x-ray and ultrasound of the abdomen were also urgently

advised. Thereafter, in the column “Treatment”, the following observations were made

by the concerned Doctor :“Received the patient from OPD at 1.30 P.M., Query – Acute Hepatitis ….”

Thus, despite both these clear observations that acute hepatitis could not be ruled out,

no diagnostic tests, ultrasound, x-ray of liver functions tests were got done. The

contention of the Appellant-Hospital and its Counsel that it was not considered

necessary because overt symptoms of liver abscess/jaundice were not present e.g.

yellowing of the skin and nausea, does not inspire confidence because one of the

symptoms of liver ailment is also low blood platelet counts. This coupled with the

finding that the liver was perpitable and tender, and after Malaria and Typhoid had been

clearly ruled out, any prudent Doctor would have conducted tests pertaining to the liver

especially since Doctors in the same Appellant-Hospital had clearly advised the same.

12. In support of the case that a platelet of 19,000 Cumm may not require any blood

transfusion and it was under these circumstances that despite a fall in the platelet

counts from 19,000 to a critical 16,000, Patient was discharged, Counsel for the

Appellant-Hospital had cited medical literature. However, there is evidence, including

medical literature, to the contrary as cited by Counsel for the Respondent-

Complainant. The fact that Patient at the time of discharge had Thrombocytopenia is an

admitted fact and in the discharge slip no mention has been made of the cause for this

condition. This coupled with the fact that Thrombocytopenia had in fact got more

aggravated, we are unable to comprehend the contention of Counsel for the Appellant-

Hospital that Patient’s condition had actually improved at the time of his discharge.

13. It is an admitted fact that Patient was admitted to Holy Family Hospital following

the worsening of his medical condition and with bleeding from the gum, nose etc. within

hours of his discharge from the Appellant-Hospital and from a perusal of the records of

this hospital, we note that after conducting tests following his admission an immediate

diagnosis of Thrombocytopenia being “Hepatitis Induced” was made and blood

transfusion and necessary treatment to treat this life threatening disease started but

since 5 days had been lost, Patient could not be saved. Under the circumstances, the

contention of Counsel for the Appellant-Hospital that this disease as per medical

literature could have developed overnight and after he had been discharged from the

Hospital is totally unconvincing.

14. What constitutes medical negligence is now well established through a number of

judgments of this Commission as also of the Hon’ble Supreme Court, includingJacob

Mathew (supra) cited by the Counsel for the Appellant. In the same judgment what

constitutes medical negligence based on the touchstone of the Bolam’stest

(Bolam Vs. Friern Hospital Management Committee (1957)1 WLR 582) has been

discussed and accepted. An important principle applied is 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.

From a narration of the facts of this case, as discussed above, it is evident that neither

were the required diagnostic tests nor the consequent medical treatment adopted in this

case as should have been adopted by any Doctor of even ordinary skill as per standard

professional management of such cases. In the instant case what is particularly

unfortunate is that not even preliminary tests were conducted in respect of the Patient’s

liver even though the Doctors who examined him at the time of his admission had

clearly advised the need for the same on the basis of a preliminary diagnosis of liver

abscess. Therefore, we uphold the finding of the State Commission that the complaint

of medical negligence against the Appellant-Hospital has been fully established.

15. Respondent-Complainant has also filed an appeal seeking enhancement of the

awarded amount of Rs.5,00,000/-. We note that State Commission had after taking an

overall view of the matter awarded Rs.5,00,000/- as compensation. Keeping in view the

gross medical negligence on the part of Appellant-Hospital in the treatment of the

Patient which was substantially responsible for his death at the age of 32 years, the

medical expenses incurred by Respondent-Complainant, the invaluable loss both

financial and emotional of a spouse and father caused to Respondent No.1 and her

minor children respectively and the future potential of the Patient who was gainfully

employed as a teacher at the time of his death, there is scope for enhanced

compensation. We are, therefore, of the view that a lump sum compensation of

Rs.8,00,000/- is justified in this case.

16. To sum up, First Appeal No.411 of 2007 filed by the Appellant-Hospital is

dismissed. The order of the State Commission finding Appellant-Hospital guilty of

medical negligence and deficiency in service is upheld. First Appeal No.488 of 2007

filed by the Respondent-Complainant is partly allowed. The order of the State

Commission is modified and the compensation of Rs.5,00,000/- is enhanced to

Rs.8,00,000/-. Appellant-Hospital is directed to pay this amount to the Respondent-

Complainant within a period of 12 weeks, failing which it will carry interest @ 9% per

annum for the period of default.

Sd/-

(VINEETA RAI)

PRESIDING MEMBER

Sd/-

(VINAY KUMAR)

MEMBER SB/Mukesh



(Against the order dated 03.04.2012 in Appeal No. A/12/285 of the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai)

Alok Kumar Roy Bldg No-A/2, Flat No.06 (Ist Floor) Opp Raolicamp Gurdwara, MA Road Sion Koliwada, Sion (E), Mumbai – 400037, Maharastra

...........Petitioner

Versus

1. Head of the Sales & Service (Lap Top Computer) Hewlett Packard India Sales Pvt. Ltd., 1st Floor, Central Plaza, 106, Vidhyanagari Marg, Opp Maha Auto, Kalina Santacruz (East) Mumbai – 400098 Maharashtra

2. The Proprietor Demesne, SP Infosys Retail Venture, 1D Vorkar House, 385 Lamington Road, Grant Road (E), Mumbai – 400007 Maharashtra

...........Respondents

BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : In person PRONOUNCED ON 1 st AUGUST, 2013

ORDER

PER DR. S.M. KANTIKAR

1. The Revision Petition is filed against the impugned order of Maharashtra State

Commission Disputes Redressal Commission, Mumbai (in short, State

Commission, Maharashtra) in First Appeal No. A/12/285 against the Consumer

Complaint No. CC/09/618 of Consumer Disputes Redressal Forum, Mumbai –

Sub-District (in short District Consumer Forum).

2. Facts in Brief:

The complainant purchased a Lap Top from the OP-2 for Rs. 56,500/- which was

manufactured by OP-1 with warrantee of one year from 05.06.2007. It went

frequently out of order and for which repairs were undertaken by the OP-2 even

after warrantee. The complainant had spent Rs. 1400/- for repairing the said Lap

Top and hence it was the negligence of OP-2 which incurred loss to the

complainant. The complainant is an Engineer and he was expecting job in

U.S. Due to break-down of Lap Top, he was unable to contact the U.S. Company

in time and hence lost the opportunity. The complainant also requested the OP-2 to

replace the Lap Top. But OP-2 had not paid any heed to his request, therefore, the

complainant filed a complaint before the District Forum for the compensation,

mental agony and the price of Lap Top totaling an amount of Rs. 9,73,436/-.3. The OP denied the allegations about the faulty Lap Top. Also they have stated that

the defects were promptly repaired and the defect was in DVD writer which they

have replaced hence there is no deficiency of service. The District Forum partly

allowed this complaint and directed the OP-1 to pay Rs. 30,000/- to the complainant

within six weeks, failing which, the amount will carry interest @ 9% per annum.

4. Aggrieved by this order of the District Forum, the complainant filed an Appeal No.

12/285 before the State Commission for enhancement of amount of compensation.

5. The State Commission heard the complainant and perused the documents on

record. The main contention of the complainant before the State Commission was

that the unfair trade practices were adopted by the OP. They sold the defective Lap

Top. The State Commission dismissed the appeal on the ground that the

complainant has not produced any expert evidence to prove that his Lap Top was

defected and the OP has repaired the Lap Top and removed the defects properly

within warranty period. Therefore, the State Commission dismissed the

appeal. Against the order of the State Commission, the complainant/petitioner filed

this revision petition before us.

6. We have heard the petitioner and perused the documents, bills and evidence on

record. We find that the OP has repaired the Lap Top, done the servicing during

the warranty period. He has replaced the defective DVD drive. On perusal of the

email communications we do not find any corroborated evidence from the

complainant about his confirmed job or lost job opportunity at U.S. Even otherwise,

if his Lap Top goes out of order, for a short period he had other alternatives for

internet access through various internet/cyber cafes. Therefore, the Complainant’s

claim for Rs.9,73,436/- appears to be unjust enrichment. The award of Consumer

Court is not a jackpot or a lottery. Hence, the contention of the Complainant is quite

surprising and mischievous.

7. The award of Rs.30,000/- by the District Forum is just and proper. We endorse the

view taken by both the Fora below in disposing the Complainant’s case. Hence, this

Revision Petition is dismissed. No orders as to cost.

..…………………..………J

(J.M. MALIK) PRESIDING MEMBER

……………….……………

(DR.S.M. KANTIKAR) MEMBER

Jr/2


FIRST APPEAL NO. 473 OF 2012(Against the order dated 25.4.2012 in CCSR 1733 of 2012 of the State Commission,

Andhra Pradesh)

1. A.S.Chakravarthy S/o A.S. Srinivasan 2. A. Sandhya Chakravarthy W/o A.S. Chakravarthy Both Residents ofH.No.12-10-586/66/A Opp. Amaravathi Grammar School Medi Bavi, Sitafalmandi Secunderabad- 500061

...... Appellants

Versus

M/s. Asvasidh Homes Builder & Developer Plot No.153, MLA’s ColonyRoad No.12, Banjara Hills, Hyderabad- 500034 (Represented by its Managing Partners, 1. Mr. Varun Reddy Kancharla S/o Late K. Anil Kumar 2. Mr. Siddharth Reddy S/o Late K. Anil Kumar

.....Respondents BEFORE:HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER For the Appellants : Mr. Hitesh Kumar Saini, Advocate PRONOUNCED ON: 1 August 2013

ORDER

PER MR. VINAY KUMAR, MEMBER

The complaint of the present appellants against

respondent/M/s. Asvasidh Homes and its managing partners was dismissed by the AP

State Consumer Disputes Redressal Commission in CCSR/1733/2012. The State

Commission came to a conclusion that the complaint was not maintainable before it and

therefore directed the same to be return to the Complainants. The decision is sought to

be challenged in the present proceedings.

2. Challenging the order of the State Commission, the Complainants filed a revision

petition under Section 21 B of the Consumer Protection Act, 1986, terming it as a review

petition. The same has been admitted as an appeal before this Commission and taken

up for consideration under Section 19 of the Consumer Protect Act, 1986.

3. The appeal has been filed with delay of 59 days for which an application

for condonation has subsequently been filed on 25.2.2013. The application has been

perused. The main explanation as contained in para 3 thereof is:-

“It is humbly submitted that the Petitioners/appellants have been representing themselves in person before this Hon’ble Commission and as also before the State Commission. That since the services of an Advocate were not utilized by the appellants as a result of the same the appellants had wrongly preferred a Revision Petition instead of a First Appeal. Thus, an unintentional delay was caused in filing of the present First Appeal which was initially filed as a Revision Petition presuming the limitation period to be 90 days.”

In the circumstances of the case, the above explanation is accepted and delay of 59

days is condoned.

4. While deciding to return the complaint, the State Commission has taken into

consideration the nature of relief sought by the Complainant and the fact that the

genesis of the complaint lies in purchase of a flat from the OP under a registered sale

deed of 30.10.2010. Six months later, the consumer complaint was filed before the

State Commission on 28.4.2012. The State Commission has therefore observed that :-“Considering the nature of the claim and the fact that the title of the flat

has already been conveyed to the complainant, and he having been in possession of the property, he can seek rectification of defects and even compensation for any deficiency of service. We fail to understand how he can seek refund of sale consideration and compensation. More so when title as well as possession was transferred in his favour, under guise of complaint recoursing to the provisions of the Consumer Protection Act filed the complaint the reliefs of which can be granted by Civil Court, even assuming he can maintain all these claims in a suit, obviously in order to get over payment of court fee etc. Therefore, we are of the opinion that the complaint is not maintainable before this Commission, and the complainant is directed to approach appropriate court for the reliefs.”

5. The appellant/Complainant has challenged the order of the State Commission on

the ground that he is a consumer ‘under the law’. Therefore, it is alleged that without

hearing both sides the State Commission could not have come to a conclusion that the

matter needed to be decided by the civil court. However, neither the appellant nor the

appellant’s counsel have made any attempt to substantiate this claim with reference to

the provision in Section 2 of the Consumer Protection Act, 1986. Learned Counsel for

the appellant relied upon the decision of this Commission in RP No. 4002 of 2011 in M/s. Daddys Developers & Builders Vs. Sri S. Kanan decided on 4.4.2012. and argued that the State Commission should have directed the

OP/respondent to give an alternative flat in replacement of the defective one.

6. From a perusal of the above decision it is seen that the respondent S.Kanan, had

entered into an agreement with the petitioner/Daddy’s Developers for purchasing a plot

and construction of a villa on it. The sale deed of the plot was signed on 31.3.2005 and

the respondent also paid about Rs.25,00,000/- as sale consideration and for

construction of a residential flat thereon. It was the case of the respondent that the

petitioner agreed to hand over the property to him on 26.12.2007 and both the parties

agreed to certain specifications to be followed in the construction. Allegedly, the

petitioner failed to adhere to the specifications which led to the rain water flowing into

the premises during the monsoon. In the month of August 2008, water

stagnated upto the height of about 3 feet over and above the ground level. Having

failed to obtain any solution from the developers, he filed a complaint before District

Forum, with the prayer to direct the OP to provide an alternative Villa in the same layout

and also to pay compensation. His complaint was allowed and the District Forum held

that:-

“OP is directed to provide alternative Villa and execute the registered

Sale Deed of the same in favour of the Complainant in the same layout with

same measurement within 60 days from the date of this Order. After taking

the possession of the alternative Villa, Complainant has to reconvey the

subject Villa in favour of the OP.”

The above view taken by the District Forum was upheld by the State Commission and

confirmed by the National Commission in the decision cited above.

7. Per contra, the case of the appellants in the present proceedings arises from a

very different set of facts. A perusal of the complaint filed before the State Commission

shows that the entire matter arises from the registered sale deed of 30.10.2010 for

purchase of a Flat No.105 in Asvasidh Abode. The complaint has listed 14 deviations

from the approved plan and 11 deficiencies in construction. The relief claimed includes

not only compensation of Rs.30 lakhs towards deviations, deficiencies and mental

agony but also full refund of the purchase price of Rs.31 lakhs, interest on housing loan

and other funds of Rs.4.38 lakhs and refund of the registration charges of Rs.1.6

lakhs. There is no explanation how a prayer for refund of the sale price and all other

costs is made in a completed transaction of sale of property. There is no quantification

of the cost of rectification of the alleged defects. For violations of the approved plan, if

any, the builder developer is answerable to the concerned authorities. There is no

explanation why the complainant should be entitled to be compensated for them.

Significantly, the prayer is not for provision of a comparable alternative flat by the

Developers/OP. Nor, is it limited to rectification of alleged defects. The

appellants/Complainants can therefore derive no support from the decision of this

Commission cited above.

8. The State Commission has very rightly refused to entertain the petition filed by the

appellants/Complainants. There is no justification to interfere with the order of the State

Commission, which has left it open to the appellants/Complainants to seek their remedy

in an appropriate court. The appeal is therefore, dismissed. No order as to

costs. …..…………Sd/-….…….……

(VINAY KUMAR)PRESIDING MEMBER

S/-


REVISION PETITION NO. 1852 OF 2007(From the order dated 07.03.2007 in First Appeal No. 405/2004

of Orissa State Consumer Disputes Redressal Commission)

1. The Regional Provident Fund Commissioner, Employees Provident Fund Organisation, Bhavishya Nidhi Bhawan, Unit – IX, Bhubaneswar – 751022 District – Khurda Orissa

2. The Regional Provident Fund Commissioner, Employees Provident Fund

Organisation, Regional Office, 28, Bhavishya Nidhi Bhawan, 7th Floor, Wazirpur Industrial Area Delhi - 110052

3. Assistant Provident Fund Commissioner-cum- Officer-in-Charge, Sub-Regional

Office, Berhampur District Ganjam.... Petitioner(s)

Versus

1. G. Eswaramma c/o UIP Hospital At/PO – Khatiguda District - Nabaranpur 2. Executive Engineer Podagada Dam Division At/PO – KhatigudaDistrict – Nabarangpur

…. Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. Rajesh Manchanda, AdvocateFor the Respondent-1 Mr. Dhruv Mohan, AdvocateFor the Respondent-2 Mr. Shibashis Misra, Advocate

PRONOUNCED ON : 1 st AUGUST 2013

O R D E R PER DR. B.C. GUPTA, MEMBER

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

Protection Act, 1986 by the petitioner against the impugned order dated 07.03.2007

passed by the Odisha State Consumer Disputes Redressal Commission (for short ‘the

State Commission’) in FA No. 405/2004, “Regional Provident Fund Commissioner,

Bhubaneswar vs. G. Eswaramma & Ors.” by which while dismissing the appeal, the

order dated 29.03.2004 passed by District Consumer Disputes Redressal Forum,

Nabrangpur allowing the complaint no. 81/03 was upheld.

2. Brief facts of the case are that the complainant/respondent no. 1 is the widow of a

deceased workman G.S.M. Reddy who joined duty on 18.07.81 in Podagada Dam

Division, which was allotted PF Code No. OR/3156. He was working as carpenter (WC)

in the office of respondent no. 2, Executive Engineer, Podagada Dam Division, District

Nabarangpur. The Podagada Dam Division establishment was covered under the

Employees Provident Fund Act (EPF) 1952, with effect from 31.07.1983. A deduction

from the salary of the deceased was made with effect from August 1983. However,

subsequently, the deceased along with some other employees was transferred to

another establishment in November 1983, namely, Kapur Dam Division. The said

establishment was not covered by the Provident Fund Scheme. The deceased was

transferred from Podagada Dam Division on 9.11.1983 and joined the new

establishment on 11.11.83. Later on, Kapur Dam Division was also covered under the

EPF Act with effect from 30.11.86 vide code number OR/3244. Unfortunately, G.S.N.

Reddy died on 07.03.87, meaning thereby that he remained covered under the EPF Act

for a period of little over three months. The plea taken by the complainant says that her

husband was entitled for payment of EPF dues and pension under the relevant rules.

The District Forum vide their order dated 29.03.2004 directed the petitioner/OP No. 1 to

take immediate necessary steps to regularise the matter by collecting the

information/document from OP No. 2 for payment of EPF claims and also sanction

pension in favour of the complainant according to relevant rules. An appeal was filed

against this order by the petitioner before the State Commission, but the same was

dismissed with costs by the State Commission. It is against this order that the present

petition has been made.

3. It was argued by the learned counsel for the petitioner that G.S.N. Reddy was first

working in Podagada Dam Division since 1981, but since the said establishment was

covered under the EPF Act from 31.07.83 and the deceased employee was transferred

to another establishment on 9.11.83, he remained covered under the EPF Act for a

period of three months and 9 days only. He was transferred to Kapur Dam Division

when he joined on 11.11.83 but the said establishment was not covered under the EPF

Act. Kapur Dam Division was covered under the EPF Act from 30.11.86 and hence the

deceased who died on 07.03.87 was covered at the new establishment for three months

and 6 days only. In this way, the deceased remained covered under the EPF Act for 6

months 15 days only, which works out to be less than one year and hence he was not

entitled for the grant of pension in accordance with provisions of Employees Family

Pension Scheme 1971. Learned counsel argued that the said provision had been

amended with effect from 1.04.88 and now this period has been reduced from one year

to 3 months, but at the time of death of G.S.N. Reddy, the period was one year only.

He further stated that the order passed by the District Forum, in which they observed

that late G.S.N. Reddy had completed more than two years of reasonable service and is

entitled for benefits under the relevant rules, does not reflect a correct appreciation of

facts.

4. Learned counsel for the respondent has drawn our attention to clause 6 of the

scheme entitled as “Retention of Membership”. He argued that the transfer of the

employee from one establishment to another cannot be taken as a break in service.

5. Learned counsel for respondent no.2, Executive Engineer, Podagada Dam

Division has also drawn our attention to clause 6 of 1971 Scheme (hereinafter referred

to as ‘Scheme’) saying that once a person becomes a member of the family pension

fund, he does not lose his membership on being transferred to another establishment.

In the present case, the entire Provident Fund for the whole period, i.e., from August

1983 to December 1986 have already been deposited by respondent no. 2 and this fact

had been admitted by the petitioner in their revision petition as well. He further stated

that clause 3 of the Scheme read with clause 6 makes it clear that the employee did not

lose the membership of the scheme on his transfer.

6. In the reply, learned counsel for the petitioner stated that the word ‘transfer’ had

not been included in proviso to clause 6 of the Scheme and hence break in membership

of the family pension fund after being transferred to another establishment shall not

allow him to continue as a member of family pension fund.

7. We have examined the entire material on record and given a thoughtful

consideration to the arguments advanced before us.

8. It is an admitted case of parties that husband of complainant late G.S.N. Reddy

was appointed as work-charged carpenter and joined Podagada Dam Division on

18.07.81 and then, he joined the Kapur Dam Division with effect from 11.11.83. It is

also admitted that he died on 7.3.87. The case of the petitioner is this that there was

deduction of provident fund dues for only 3 months 9 days in the first establishment, and

3 months 6 days in the second establishment and hence the total period comes out to 6

months 15 days, which being less than one year, the complainant is not entitled to

pension under the 1971 Scheme. However, this version is quite contrary to facts as per

detailed reply filed on behalf of respondent no. 2, Executive Engineer, Podagada Dam

Division. It has been clarified that late G.S.N. Reddy worked in Podagada Dam Division

from 18.07.81 till 10.11.83 and then he was transferred to Kapur Dam Division. The

said establishment was not covered under the provisions of EPF and Miscellaneous

Provisions Act 1952 at that time. Subsequently, vide order no. 8548 dated 27.05.86 of

Regional Provident Fund Commissioner, Bhubaneswar, the Podagada Dam Division

came under the purview of the Act with effect from August 1983 and allotted code No.

OR/3156 with effect from August 1986. Both the employees’ share and employer’s

share used to be recovered and deposited regularly before the RPFC, Orissa.

However, regarding deposit of arrears for the pre-discovery period, i.e., August 1983 to

July 1986, the RPFC Orissa waived of the deposit of employees’ share of the staff of

Podagada Dam Division vide order dated 11/08/47 dated 21.10.87. Accordingly, the

employer’s share only for the period August 1983 to July 1986 was deposited with the

RPFC. At that time, the share for late G.S.N. Reddy was not deposited with RPFC as

he had already been transferred to Kapur Dam Division. Kapur Dam Division came

under the purview of the EPF Scheme from Nov. 1986 as per letter number 3351 dated

18.07.87 from RPFC Orissa and was given code number OR/3244. EPF contribution

for the period December 1986 upto 7.3.87 for late G.S.N. Reddy was deducted by

Kapur Dam Division and was deposited with RPFC Orissa. Subsequently, Kapur Dam

Division was merged with Podagada Dam Division and all record of late G.S.N. Reddy

were transferred to it. As per the decision taken by Dy. General Manager (Finance), the

dues pertaining to the period from August 1983 to Nov. 1986 of late G.S.N. Reddy were

deposited with the EPF Authority to finalise the issue. A plea was also made before the

District Forum accordingly and finally vide order dated 29.03.2004, the District Forum

decided the case with a direction to regularise the matter, by collecting the

information/documents from OP No. 2, Podagada Dam Division, for payment of

provident fund and also sanction of pension in favour of the complainant. According to

relevant Act and Rules. It is very clear, therefore, that the deceased employee became

a member of the Family Pension Fund with effect from 31.07.83 and was given EPF

Account OR 3156/327 in the Podagada Dam Division. Once an employee is transferred

to another division within the organisation, his coverage under the Act is not suspended.

9. It is very clear from the factual position narrated by respondent no. 2 that late

G.S.N. Reddy became a Member of the Fund with effect from 31.07.83 and the

contribution to Provident Fund was regularly made till his death in March 1987. The

contention of the petitioner that by transfer from one establishment to another

establishment his membership got suspended does not have any force. In this case, it

is a transfer from one division to another division within the same organisation, and by

no stretch of imagination, it can be counted as break as stated in clause 6 of the

Scheme. It is held, therefore, that the State Commission or the District Forum have not

committed any illegality or irregularity in passing the impugned orders in favour of the

complainant. It was the duty of the petitioner to collect the necessary information and

documents from the office of OP No. 2 Podagada Dam Division and then pass orders

for the release of Provident Fund dues and sanction of pension in accordance with

relevant Act and Rules. The revision petition is, therefore, ordered to be dismissed and

the impugned order is upheld with no order as costs.

Sd/-

(K.S. CHAUDHARI J.)PRESIDING MEMBER

Sd/-(DR. B.C. GUPTA)

MEMBERRS/


REVISION PETITION NO. 1317 OF 2008 (From the order dated 05.10.2007 in Appeal No. A-260/2004 of the State Consumer

Disputes Redressal Commission, Delhi)

Delhi Development Authority Through its Director (R.L) Vikas Sadan, I.N.A.,New Delhi

…Petitioner/Opp. Party

Versus Shri Barkat Lal S/o Sh. Jodha Ram H. No. 121, Gali No. 8, Krishan NagarNew Delhi

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

For the Petitioner : Mr. Praduman Kumar Aggarwal, AdvocateFor the Respondent : NEMO PRONOUNCED ON 2 nd August, 2013

O R D E R


This revision petition has been filed by the petitioner/opposite party against the

order dated 05.10.2007 passed by the Delhi State Consumer

Disputes RedressalCommission, (in short, ‘the State Commission’) in Appeal No. A-

260/04 – Delhi Development Authority Vs. Mr. Barkat Lal by which, while allowing

appeal partly, order of District Forum allowing complaint was upheld, but grant of

interest from the date 1.11.2001 was changed to date of filing complaint.

2. Brief facts of the case are that complainant/respondent is a member

of Mianwali District House Building Society Ltd. In the draw conducted by the Delhi

Development Authority (DDA) on 15.4.1986, Complainant was allotted Plot No. A-1/13

measuring 149.83 sq. yd. Complainant’s name was approved by the Registrar of

Coop. Societies on 9.10.1986 for execution of sub-lease. Complainant did not hear

anything from DDA for a long period and in such circumstances, complainant wrote to

the DDA/OP on 16.3.1989. OP vide letter dated 8.2.1996 asked complainant to deposit

43,516/- as late execution charges. Complainant deposited aforesaid amount and lease

deed was executed on 9.2.1996. Complainant could not raise construction during first 3

years period. Complainant applied to OP for extension of time vide letter dated

22.3.1999 and got extension upto 30.6.2001 vide letter dated 7.2.2001 issued by OP,

subject to payment of composition charges amounting to Rs.68,040/-. Complainant

deposited charges and completed construction within the extended time. Complainant

made a representation dated 13.7.2001 to the OP for refund of late execution charges

of Rs.43,516/- and composition charges of Rs.68,040/-. Vide letter dated 19.10.2001,

complainant was informed that composition fee from 22.3.1999 to 30.6.2001 along with

late execution charges had been waived. Complainant received refund of Rs.67,890/-

vide cheque dated 1.11.2001. Complainant further submitted that OP has unjustifiably

withheld the balance amount of Rs.43,666/-. Alleging deficiency on the part of OP,

complainant filed complaint before District Forum. OP-Petitioner contested complaint

and submitted that Rs. 43,566/- deposited by the complainant consisted of Rs.6,267/-

as penalty for late execution charges of the sub-lease and Rs.37,249/- for delay in the

construction from 17.11.1987 to 16.11.1996. It was further submitted that complainant

was to be refunded only Rs.30,641/-, whereas he has been refunded Rs.37,249/- in

excess which are to be recovered by OP and prayed for dismissal of

complaint. Learned District Forum after hearing both the parties allowed complaint and

directed OP to refund Rs.43,666/- minus composition charges for the period 9.2.1999

to 21.3.1999 with interest @ 10% p.a. from 1.11.2001 till payment. Appeal filed by the

petitioner was partly allowed by learned State Commission vide impugned order and

interest was made payable from the date of filing complaint instead of from 1.11.2001

against which, this revision petition has been filed.

3. None appeared for the respondent even after service.

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

5. Learned Counsel for the petitioner submitted that excess amount has been

refunded to the petitioner and petitioner is entitled to recover excess amount and

petitioner is not liable to refund any money even then learned District Forum has

committed error in allowing refund and learned State Commission further committed

error in upholding order; hence, revision petition be allowed.

6. Learned District Forum observed as under:“Both the parties have filed their evidence by way of affidavits and we have heard them and have also gone through the record. We have also seen the relevant noting file of the DDA produced by the DDA at the time of arguments. As per the very first noting on the file the sum of Rs.43,516/- consists of late execution charges of Rs.6267/- for the period 17.11.1987 to 16.11.1996 and Rs.37,249/- as penalty for non-construction for the period 17.11.89 to 16.11.91, the period from 17.11.86 to 16.11.89 being the free period. However, the complainant was never conveyed this break-up and vide letter dated 08.02.96 (Annexure A-6) the charges of Rs.43,516/- were termed only as “late execution charges”. The complainant applied for the waiver of the same and got it. Secondly, it has been admitted by the OP in its reply that no penalty is chargeable for the period of 3 years after the execution of the sub-lease deed. Hence, the OP cannot charge any penalty for non-construction prior to the period of 3 years after the execution of the sub-lease on 09.02.96. Hence, looking from both the angles the complainant is entitled to refund of Rs.43,516/-. As to the composition charges paid by the complainant the same relate to the period 17.11.1996 to 30.6.2001 as conveyed to the complainant by the OP vide letter dated 8.3.2002 (Annexure A-15). As per the own admission of the OP in its reply the free period for construction was 3 years after the execution of the sub-lease on 9.2.1996 which ended on 8.2.1999. The complainant has already been granted the waiver of composition charges from 22.3.1999 to 30.6.2001. Therefore, the OP can claim the composition charges at the most for the period 09.02.99 to 21.3.99. Therefore, the withholding of the substantial amount by the OP is not justified and the OP cannot claim any refund from the complainant”.

7. As per admission by the petitioner in paragraph 5 of the written statement that no

penalty is chargeable during the period of 3 years from the execution of sub-lease (as

stated in District Forum order) and as complainant got waiver of the penalty on him and

no break up of Rs.43,516/- was conveyed to the complainant in the letter issued by

petitioner, learned District Forum has not committed any error in allowing refund of

aforesaid amount and learned State Commission has not committed any error in

upholding order of refund.


order, which calls for any interference and revision petition is liable to be dismissed.

9. Consequently, revision petition filed by the petitioner is dismissed with no order

as to costs. ..………………Sd/-……………


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 2680 of 2012 (From the order dated 1.05.2012 in Appeal No.357 of 2011 of the State Consumer

Disputes Redressal Commission, U.T. Chandigarh) 1. Sh. Avtar Singh, S/o Late Dharam Singh2. Sh. Gurlal Singh, S/o Late Dharam Singh3. Smt. Malkit Kaur, W/o Late Dharam Singh All R/o of: No. 80, Village Makhewala Tehsil Sardulgarh, District Mansa, Punjab … Petitioners/Complainants

VersusSBI Life Insurance Co. Ltd. SCO No. 127-128, 1st Floor, Sector 17C Chandigarh,Through its Branch Manager

… Respondent/Opp. Party (OP)

BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioners : Mr. Shakti K. Pattanaik, AdvocateFor the Respondent : Mr. Rakesh Malhotra, Advocate

PRONOUNCED ON 2 nd August, 2013 O R D E R


This revision petition has been filed by the Petitioners/Complainants against the

impugned order dated 1.05.2012 passed by the State Consumer

DisputesRedressal Commission, U.T. Chandigarh (in short, ‘the State Commission’) in

Appeal No. 357 of 2011 – The SBI Life Ins. Co. Ltd. Vs Sh. Avtar Singh

& Ors. by which, while allowing appeal, order of District Forum allowing complaint was

set aside.

2. Brief facts of the case are that deceased Dharam Singh, father of

complainants/petitioners purchased insurance policy from OP/respondents and paid first

premium of Rs.15,000/- on 9.9.2008. Deceased filled proposal form while subscribing

for aforesaid insurance policy. Dharam Singh died on 9.10.2008. When complainants

came to know about the policy, they approached OP for payment of amount, but as

claim was repudiated, complainants filed complaint alleging deficiency on the part of

OPs. OP-1 contested complaint and submitted that, as there was no concluded

contract between Dharma Singh and OP, merely by deposit of premium amount along

with proposal form, did not automatically result into the issuance of an insurance policy.

It was further alleged that on 15.9.2008, Dharam Singh was asked to comply with some

requirements, but he failed to comply with the requirements. Denying deficiency on the

part of OPs, prayed for dismissal of complaint. OP 2 submitted that complaint may be

dismissed for misjoinder of parties, as OP 2 was only operating SB Salary Account

of Dharam Singh. District Forum after hearing both the parties, allowed complaint and

directed OP to pay Rs.2,02,500/-. Appeal filed by the OP was allowed by learned State

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


4. Learned Counsel for the petitioner submitted that as soon as premium

was encashed by OP, insurance policy came into force and OP 1 committed deficiency

in repudiating claim and learned State Commission 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 submitted that order passed by learned State

Commission is in accordance with law, which does not call for any interference; hence,

revision petition be dismissed.

5. Perusal of record clearly reveals that Dharam Singh submitted proposal form for

obtaining life insurance policy on 9.9.2008 along with premium of Rs.15,000/-. On

15.9.2008, OP asked petitioner to comply with certain requirements, which were not

complied with and on 9.10.2008 Dharam Singh died. Thus, it becomes clear that

contact of insurance was not concluded between Dharam Singh and OP. Merely

by encashing cheque of premium, insurance contract does not come into force, as held

by this Commission in [I (2011) CPJ 60 (NC)] – LIC of

India Vs. Bhoomikaben M. Modi & Ors ., [2009 STPL (CL) 479 (NC)] – Elsa Tony

Phillip Vs. Manager, LIC of India and Ors . and [I (2010 CPJ 137 (NC)]

– Kolla Vijaya Laxmi Vs. Life Insurance Corporation of India & Anr . This

Commission in Elsa Tony Phillip case (Supra) in para 3 & 4 observed as under:

“3. Thrust of argument advanced by Shri T. Harish Kumar for the appellant is that along with the proposal first premium was paid by Tony Phillip by issuing a cheque of Rs.1,662 which was got encashed by the Insurance Co. and, thus a concluded contract came into existence between the parties and the order under appeal was thus, legally erroneous. As may be seen from the order under challenge, the State Commission in reaching the conclusion that concluded contract had come into existence, has heavily relied the decision in Life Insurance Corporation of India V. RajaVasireddy Komalavalli Kamba and Ors. ((1984) 2 SCC 719.) Omitting immaterial portion, para Nos. 14 & 15 of this decision at pages 726 & 727 of the report read thus:

“14…The mere receipt and retention of premium until after the death of the applicant or the mere preparation of the policy documents is not acceptance. Acceptance must be signified by some act or acts agreed on by the parties or from which the law raises a presumption of acceptance. See in this connection the statement of law in Corpus Juris Secundum, Vol. XLIV, wherein it has been stated as:

The mere receipt and retention of premiums until after the death of applicant does not give rise to a contract, although the circumstances may be such that approval could be inferred from retention of the premium. The mere execution of the policy is not an acceptance; an acceptance, to be complete, must be communicated to the offer or, either directly, or by some definite act, such as placing the contract in the mail. The test is not intention alone. When the application so requires, the acceptance must be evidenced by the signature of one of the company’s executive officers.

15. Though in certain human relationships silence to a proposal might convey acceptance but in the case of insurance proposal, silence does not denote consent and no binding contract arises until the person to whom an offer is made says or does something to signify his acceptance. Mere delay in giving an answer cannot be construed as an acceptance, as, prima facie, acceptance must be communicated to the offeror. The general rule is that the contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer. Whether the final acceptance is that of the assured or insurers, however, depends simply on the way in which negotiations for an insurance have progressed. See in this connection statement of law in MacGillivray & Parkington on Insurance Law, Seventh Edition, page 94, paragraph 215”.

4. Admittedly, neither acceptance of the proposal was

communicated nor policy was issued to Tony Phillip by the respondent-Insurance Co. Considering the ratio of the said decision of Supreme Court, mere encashment of cheque, given towards first premium, is not enough to conclude that a contract had come into existence between the parties. Decision in LIC & Ors. v. Smt. Raksha Devi (R.P. No. 702 of 2003, decided on 20.10.2005) is of no help to the appellant. Impugned order, thus, does not suffer from any legal infirmity and the appeal deserves to be dismissed being without merit”.

6. In the light of aforesaid discussion, we do not find any illegality, irregularity or

jurisdictional error in the impugned order and revision petition is liable to be dismissed.

7. Consequently, revision petition filed by the petitioner is dismissed at admission

stage with no order as to costs. ..………………Sd/-……………


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 3438 of 2012 (From the order dated 06.06.2012 in Appeal No.2660 of 2008 of the Karnataka State

Consumer Disputes Redressal Commission, Bangalore) 1. The Life Insurance Corporation of India Shahpur Branch Office Yadgir Road, Shahpur Through its Branch Manager 2. The Life Insurance Corporation of India Divisional Office PB No. 43 Satkacheri Road, Raichur Through its Divisional Manager 3. The Life Insurance Corporation of India DO 1, Jeevan Prakash, JC Road Bangalore – 560002 Through Shri Balihar Singh Asstt. Secretary (Legal) LIC of India (CO Legal Cell) Delhi H-39 (First Floor) New Asiatic Bldg. Connaught Circus New Delhi

… Petitioners/Opp. Parties (OP)

VersusSmt. Neelamma W/O Sri Sidana Shivputra Tumbigi R/o UKP Camp at Post Geeratagi Taluk Jewargi, District Gulbarga

… Respondent/Complainant

BEFORE

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

For the Petitioner : Mr. Pankul Nagpal, Advocate For the Respondent : Mr. C.B. Gururaj, Advocate

PRONOUNCED 2 nd August, 2013 O R D E R


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

order dated 06.06.2012 passed by the Karnataka State Consumer

DisputesRedressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal

No.2660 of 2008 – LIC & Ors Vs Neelamma by which, while dismissing appeal, order of

District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent purchased endowment

policy on 27.2.2006. The premium was payable quarterly. Insured paid

premiumupto November, 2006, but did not pay premium payable in the month of

February, 2007. OP issued letter to the insured to pay the premium payable in the

month of May, 2007 stating that grace period is upto 27.6.2007 in respect of premium

payable in the month of May, 2007. Insured died on 12.5.2007. Complainant submitted

claim which was repudiated by OP/petitioner on the ground that policy lapsed on

account of non-payment of premium of February, 2007 and prayed for dismissal of

complaint. Learned District Forum after hearing both the parties, allowed complaint by

order dated 18.10.2008. Learned State Commission vide order dated 24.2.2009 in

Appeal No. 2660 of 2008, while allowing appeal, set aside order of District Forum.

Complainant filed Writ Petition No. 81794 of 2009 before High Court of Karnataka

and Hon’ble Court by order dated 4.8.2010 allowed writ petition and set aside order of

State Commission and directed State Commission to dispose of the appeal afresh in

accordance with law. Learned State Commission vide impugned order dismissed

appeal and confirmed order of District Forum 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 quarterly premium which was to

be paid by 27.2.2006, was not paid and policy lapsed on 27.3.2007 and as insured died

on 12.5.2007, petitioner has not committed any deficiency in repudiating the claim, but

learned State Commission has committed error in dismissing appeal and earned District

Forum committed error in allowing complaint; hence, revision petition be allowed and

impugned order be set aside. On the other hand, learned Counsel for the respondent

submitted that for quarterly premium due in May, 2007, notice depicted grace

period upto 27.6.2007 and insured died on 12.5.2007. Complainant was entitled to claim

and order passed by learned State Commission is in accordance with law which does

not call for any interference; hence, revision petition be dismissed.

5. It is admitted case of the parties that policy was obtained on 27.2.2006 and

premium was to be paid quarterly. It is also admitted case that payment due on

27.2.2007 was not paid and insured died on 12.5.2007.

6. On account of non-payment of premium due on 27.2.2007, policy lapsed on

27.3.2007. Learned State Commission has upheld order of District Forum on the basis

of intimation letter dated 3.5.2007 giving grace period for payment of due

premium upto 27.6.2007. Perusal of letter clearly reveals that this grace period was

applicable for premium to be paid by 27.5.2007. In this letter itself date for last due

premium has been shown as 27.2.2007. Receipt No.2071912 clearly depicts that

petitioner deposited earlier premium also with late fee and in that receipt also next

premium due has been shown in February, 2007. Perusal of Receipt No.2583588 also

reveals that insured made payment of premium with late fee. Thus, it becomes clear

that insured always made payment along with late fee and he was aware that next

payment of premium was to be paid in February, 2007, but he did pay and in such

circumstances, policy lapsed on 27.3.2007, It is admitted case that insured died on

12.5.2007 meaning thereby after lapse of policy and in such circumstances,

OP/petitioner has not committed any deficiency in repudiating the claim and learned

State Commission has committed error in dismissing appeal and learned District forum

committed error in allowing complaint.

7. Consequently, the revision petition is allowed and impugned order dated

06.06.2012 passed by the Karnataka State Consumer Disputes Redressal Commission,

Bangalore in Appeal No.2660 of 2008 – LIC & Ors Vs Neelamma is set aside and

complaint filed by the complainant/respondent is dismissed with no order as to costs.

..………………Sd/-……………


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION No. 2191 of 2013

(From the order dated 19.01.2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in First Appeal no. 1987 of 2004)

Paltu Ram Son of Shri Munshi Ram Resident of Village Dundahera Tehsil and District Gurgaon

Petitioner

Versus

United India Insurance Co. Ltd., Kanchanjunga Building Barakhamba Road Cannaught Place New Delhi

Respondent

BEFORE:

HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER

HON’BLE MRS REKHA GUPTA MEMBER

For the Petitioner Mr Mandeep Singh Kapoor, Advocate

Pronounced on 5 th August 2013

ORDER

REKHA GUPTA

Revision petition no. 2191 of 2013 has been filed challenging the judgment

dated 19.01.2011 coupled with the order dated 07.10.2011 passed by the Haryana

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

in appeal no. 1987 of 2004.

The brief facts of the case as per the petitioner/ complainant are that the petitioner

had purchased a new brand Swaraj Mazda from M/s Swaraj Mazda Ltd., Pune for a

sum of Rs.5,13,216/- on 28.03.2001, the body and chasis of the Swaraj Mazda was

prepared by Khan Brothers and Body Repairing KapasheraDelhi for a sum of

Rs.70,000/-. The above said vehicle was got financed from M/s Interstate Finance

Ltd.,/ City Corporation Finance India, Delhi. The above said vehicle bearing Engine

no. S/CBN 044677, Chasiss no NBW EL 4GN 0052027 was fully insured by the

respondent against a value of Rs.5,50,000/- vide cover note no. 216354 dated

30.03.2001. It was a comprehensive insurance policy. On purchasing the above said

vehicle, the petitioner entered into an agreement with M/s Speedage Express Cargo a

division of ARC India Ltd. On 01.04.2011 and attached the vehicle in question bearing

registration no. HR 55 – 8007 with effect from 01.04.2001 to 31.03.2003.

The above said vehicle met with an accident on 07/08.03.2002 in the area of

PS Niwari District Ghaziabad and FIR no. 57/ 2002 dated 08.03.2002 was lodged in

PS Niwari District, Ghaziabad (UP). The above said vehicle no. HR 55 – 8007 was

damaged and the loss of damage was assessed as total loss. Just after the accident,

information was sent to the respondent who appointed its Surveyor

- Shri Darshan Singh Arora who inspected the vehicle on 11/12/03/2002 at Modi Nagar,

District Ghaziabad and again Shri K R Arora, Surveyor has also assessed the loss of

damage of vehicle at the instance of the respondent. Both the surveyors have assessed

total loss of the vehicle.

However, the respondent has delayed the payment of the total loss to the tune of

Rs.5,50,000/-. The application in respect of the payment of loss was also given on

04.04.2002 and again verbally so many times, but the respondent has not paid any

heed towards the request of the petitioner rather delayed the matter on one pretext or

the other and has not settled the claim of petitioner till today.

The petitioner also informed the respondent about the contract/ agreement with

M/ Speedage Express Cargo and the respondent had full knowledge about the finance

of the vehicle in question, but the respondent intentionally, illegally and with ulterior

motive without any reasons had not settled the claim/ losses to the vehicle and has not

paid any penny to the petitioner or the financier till today.

The respondent/ opposite party stated in their reply before the District Forum that

the petitioner, as per his admission in his complaint, has already filed a claim petition

before the Motor Accident Claim Tribunal, Gurgaon for recovery in respect of damages

to his Swaraj Mazda bearing no. HR 55 – 8007 in the very accident for which the

present complaint is filed. Therefore, the present complaint is not legally maintainable.

The petitioner cannot file two petitions simultaneously for the recovery of damages

arising out of one accident. Therefore, the present complaint is liable to be dismissed

with costs.

The complaint is pre-mature. The claim of the petitioner had already been got

surveyed and assessed. Vide letter dated 21.08.2002 was informed that the surveyor

had assessed the loss on total loss basis to the tune of Rs.3,85,000/- subject to the

terms and conditions of the policy. However, the final settlement is still pending because

the petitioner has not supplied the spot survey report of Mr Darshan Singh Arora, from

who he had got the vehicle inspected allegedly at the spot (which is an essential

document to the exact reasons of the damages) in spite of various reminders and lastly,

especially was called upon vide registered letter dated 09.04.2003 to supply the same.

But till to date, the petitioner has not supplied the required spot survey report and rather

has filed the present complaint, unnecessarily, without having any cause of action for

the same.

Soon after the receipt of information about the damages to the

insured Swaraj Mazda bearing registration no. HR 55 – 8007 registered on 05.04.2001

in an accident which allegedly took place on 08.03.2002, K R Arora & Co, Government

approved Surveyors and Loss Assessors and Valuers was appointed to assess the

loss. The surveyor had contacted and discussed the loss and manner of assessment

with the petitioner in the process of assessment of the loss. The market was also

surveyor in order to know the market value of Swaraj Mazda, bearing registration no.

HR 55 – 8007, registered on 05.04.2001 on the date of loss i.e., 08.03.202 from the

dealers who deals in sales/ purchase of these types of vehicles in the open markets.

The market value of the said Swaraj Mazda was found to be Rs.3,85,000/- in the open

market on the date of loss i.e., 08.03.2002. It is submitted that as per the insurance

policy’s terms and conditions, the market value or the insured’s estimated value of the

vehicle whichever is less is payable. In these circumstances, subject to the terms and

conditions of the insurance policy, the loss was assessed to the tune of Rs.3,85,000/-

less excess clause of Rs.1,500/- and return of the damage vehicle to the Co. and

transfer of registration in the name of the Co. by the surveyor. This was informed to the

petitioner. However, report of spot survey got conducted by the petitioner

through Darshan Singh Arora was not supplied in spite of various reminders in spite of

registered letter dated 09.04.2003 as stated above. Therefore, the final settlement is still

pending due to delay on the part of the petitioner. But the petitioner instead of

complying with the requirement, has unnecessarily, filed the present complaint. The

respondent is still ready to settle the claim subject to the terms and condition of the

insurance policy on the receipt of the spot survey report, referred above, and the other

usual requirements. Thus, the respondent is in the process of processing the claim and

the same is pending for completion of the legal and mandatory formalities on the part of

the petitioner. For this reason also, the complaint is not maintainable and is liable to be

dismissed at this every stage.

The District Consumer Disputes Redressal Forum, Gurgaon (‘the District Forum’)

after considering all the facts and circumstances of the case ordered that“after

deducting 10% of the insured amount, the respondent is directed to pay Rs.4,95,000/-

to the petitioner along with interest at the rate of 9% per annum which is to be

calculated after three months of the accident till the date of payment subject to the

terms and conditions of the company. The compliance of this order be made within one

month after the receipt of the copy of this order. No costs”.

Aggrieved by the order of the District Forum, the respondent filed an appeal before

the State Commission. The State Commission came to the conclusion that ‘the

undisputed facts are that the new vehicle was purchased for Rs.5,13,216/- on

28.03.2001 got insured the vehicle for Rs.5,50,000/- and charged the premium. The IDV

could not be more than the cost of the new vehicle. Vehicle having met with an accident

on 07/08.03.2002 was also not disputed. How and on what basis the surveyor assessed

the loss of Rs.3,85,000/- is not coming forth. The vehicle being less than one year old,

the depreciation could only be to the extent of 10% of the cost of the vehicle.

Therefore, we feel it appropriate to modify the award by deducting 10% of the

value being depreciated value of vehicle which comes to Rs.5,13,216/- – Rs.51,321/- =

Rs.4,61,895/- along with 6% interest.

With this modification this appeal stands disposed of”.

The respondent filed a miscellaneous application seeking modification in the

operative part of the order that was passed on 19.01.2011. The State Commission vide

its order dated 07.10.2011 modified the order stating that ‘the appellant has sought

modification that in the operative part of the order though the amount to be paid to the

complainant has been quantified, however, by inadvertence, it has not been mentioned

that this shall be on transfer of the vehicle and return of salvage. Though in the order, it

has been mentioned that this shall be subject to terms and conditions of the company,

however the modification is sought is only in the shape of clarification. Application for

modification is allowed. In the operative part after the end of the paragraph the following

shall be added “that the payment of amount shall be upon return of salvage and transfer

of vehicle in favour of insurance company”.

Hence, this present revision petition.

The main grounds for the revision petition as given by the petitioner are as under:

The State Commission has not examined the contract of insurance between

the parties. The State Commission although notices the purchase price of the

vehicle as Rs.5,13,216/- however failed to consider the amount spent by the

petitioner on making the vehicle as road worthy. It was Rs.70,000/- which was

spent by the petitioner to make the vehicle road worthy. The coverage

accordingly was obtained by the petitioner for Rs.5,50,000/-. The total value

although on the date of insurance was Rs.5,70,000/-. The State Commission has

wrongly taken the value of insured vehicle as Rs.5,13,261/- instead of

Rs.5,50,000/-. The depreciation or deduction of 10% was required to be made

from Rs.5,50,000/- and not from Rs.5,13,216/- as ordered by the State

Commission.

The State Commission committed grave error by reducing the interest from

9% to 6%. There is no infirmity in the interest of 9% as awarded by the District

Forum.

The State Commission again committed grave error by modifying the order

on 07.10.2011 without giving petitioner any notice of the same. The State

Commission failed to take into consideration that the vehicle was registered in

2001 and the estimated life of the vehicle was 10 years. The State Commission

failed to take into consideration the fact that on the date i.e., 07.10.2011 when

the directions was passed to get the vehicle transferred it was not possible for

the petitioner to get the vehicle transferred as the life of the vehicle has already

expired. There is no provision in the motor vehicle Rules which could have

allowed the transfer of the vehicle in favour of the respondent on the said ate.

Moreover, the vehicle which was total loss on the date of accident in 2002 has

totally become wreck and without any recognition. It was not possible for the

petitioner to assemble the said salvage as such the State Commission has

committed further error by directing return of the salvage which was not in

existence on the date of passing of its order. It was totally over looked that the

vehicle was total loss.

Along with revision petition the petitioner has filed an application

for condonation of delay of 859 days. However, as per the office report there is a delay

of 476 days. The reasons given for the delay are as follows:

* The petitioner although deputed a counsel for defending his case before the State

Commission however no information about the status of the case was ever given to the

petitioner. The petitioner was way back informed that the appeal has been admitted and

it shall come up in due course. The petitioner never received any notice of appearance

thereafter. The petitioner in March 2013 when made enquiries about the case

was apprised of the fact that the appeal has been decided way back. The petitioner

thereafter obtained the copies of the orders. Since the petitioner only in March 2013

came to know about the disposal of the appeal as such the delay has occurred. The

petitioner also faced difficulty in getting all the documents which were required for

preferring the revision. Sometime was also lost in getting the documents collected.

We have heard the learned counsel for the petitioner and have also carefully

gone through the records.

It is seen from the application that no specific dates have been given regarding the

exact date and the manner in which the knowledge had come to the petitioner. No date

has also been given regarding when in March 2013 the petitioner came to know about

the disposal of the appeal. Though the petitioner has blamed his advocate for the delay

in defending his case before the State Commission, at the time of filing of the

application, he had made no complaint regarding deficiency of service with regard to the

counsel either with the Bar Council or any Consumer Court. It was only during the

hearing of the case in the National Forum, that a complaint was filed with the Bar

Council of Chandigarh on 31st July 2013.

In Banshi vs Lakshmi Narain – 1993 (1) RLR 68, it was held that reason for

delay was sought to be explained on the ground that the Counsel did not inform the

appellant in time, was not accepted since it was primarily the duty of the party himself to

have gone to lawyer’s office and enquired about the case, especially when the case

was regarding deposit of arrears of rent. The statue also prescribes a time bound

programme regarding the deposit to be made.

In Jaswant Singh vs Assistant Registrar, Co-operative Societies – 200

(3) Punj, L R 83, it was observed that cause of delay was that the counsel of the

appellant in the lower Court had told them that there was no need of their coming to

Court and they would be informed of the result, as and when the decision comes, was

held to be a story which cannot be believed.

In Bhandari Dass vs Sushila, 1997 (2) Raj LW 845, it was held that accusing the

lawyer that he did not inform the client about the progress of the case nor did he send

any letter, was disbelieved while rejecting an application to condone delay.

With regard to limitation it is well settled that ‘sufficient cause’ for condoning the delay in each case is a question of fact.

The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial

Development Authority, IV (2011) CPJ 63 (SC), has 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 bona fide, 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 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.”

The petitioner has failed to adequately explain the day to day delay or give

‘sufficient cause’ for condoning the delay of 476 days.

In view of the above, the revision petition is dismissed being time barred by

limitation with cost of Rs.10,000/- (Rupees ten 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 6th September 2013 for compliance.

Sd/-

..………………………………

[ V B Gupta, J.]

Sd/-

………………………………..

[Rekha Gupta]

Satish



(From order dated 25.07.2011 in First Appeal No.1001 of 2011 of State Consumer Disputes Redressal Commission, Haryana)

1. The Manager, Mapsko Builders Pvt. Ltd., 52, North Avenu Road, Punjabi Bagh West, New Delhi-26.2. The Site Manager/Sale Executive, Mapsko Builders Pvt. Ltd. Mapsko City Homes, Sector-27, Sonepat through Sh. Gagan Chawla.

...…Petitioners

Versus

Mrs. Sunil Dahiya W/o Anup Singh Dahiya, R/o H. No. 3239, Sector-15, Sonepat, Haryana

.... Respondent

BEFORE:

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

HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioners : Mr. Himanshu Gupta, Advocate

For the Respondent : Mr. Ashim Shridhar, Advocate

Pronounced on: 5 th August, 2013

ORDER

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

Aggrieved by impugned order dated 25.07.2011 passed by State Consumer

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

Commission’),petitioners have filed the present revision petition.

2. Brief facts of this case are that respondent/ complainant had booked a residential

independent ground floor in Mapsko City Home project of the petitioners located at

Sector-27,Sonepat and had paid a sum of Rs.1,50,000/-on 2.2.2010 vide receipt

no.4689 and further a sum of Rs.1,50,000/- on 3.4.2010 vide receipt no.5162. Despite

the above said part payment of her residential, neither the petitioners have allotted the

residential independent ground floor nor they have started construction of the unit in

question. Being harassed at the hands of the petitioners, respondent has filed a

complaint before the District Forum.

3. The plea of the petitioners was that respondent has failed to make the payments of

the house as per the provisional allotment letter dated 30.1.2010. Hence, taking into

account the act and conduct of the respondent in not paying the scheduled amount of

the house, provisional allotment letter was cancelled and earnest money of the

respondent was forfeited.

4. District Consumer Disputes Redressal Forum, Sonepat (for short, ‘District Forum’),

vide order dated 28.6.2011 allowed the complaint of respondent.

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

State Commission which was dismissed in limini alongwith cost of Rs.10,000/-.

6. Now, petitioners have filed the present petition.

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

8. It has been contended by learned counsel for the petitioners that as per agreed

terms and conditions contained in the application for registration of provisional allotment

dated 30.1.2010, the respondent was liable to pay Rs.30% of the basic sale price +

50% of EDC and IDC within 90 days of booking/at the time of allotment. This amount

comes to Rs.5,26,512/-. However, the respondent has paid only Rs.3 lacs till date and

has not paid the remaining amount at the relevant stage of payment when the same

became due. Thus, it is in these circumstances, when the respondent herself has

defaulted in making the due and agreed payments in time, that she has not been

allotted the residential unit in question. The mere taking of the booking amount as well

as additional instalment of the house does not entitle the respondent to the allotment of

the residential unit, when there is failure on her part to make the 3 rd payment of 10% of

BSP + 50% of the EDC & IDC, whereafter only she would have been allotted the

residential unit. Since, respondent herself has not deposited 30% of the initial amount,

petitioners cancelled the allotment of the respondent vide letter dated 17.12.2010. Both

the Fora below have failed to notice these aspects and as such impugned order passed

by the State Commission is liable to be set aside.

9. On the other hand, it has been contended by learned counsel for the respondent

that as per concurrent findings of the Fora below, no construction of the project has

been started by the petitioners within the specified period, as such there is no infirmity

in the impugned order passed by the State Commission.

10. District Forum while allowing the complaint in its order has held;

“In the written statement and affidavit, the respondent no.2 has

admitted that the complainant remitted payment of Rs.1,50,000/-

each in favour of the respondents. It was further agreed that the

basic sale price of the house is Rs.15,35,040/-.Further in para

no.4, page 3, the respondent no.2 has submitted that at present

Rs.2,80,789/- is outstanding. Meaning thereby, the complainant

has been making the payment of installments regularly, but

despite that as per the respondent no.2, finding no other way, the

respondents on 17.12.2010 has sent a letter for cancellation of

provisional letter of allotment and forfeiture of earnest money. In

our view, the action taken by the respondents against the

complainant is totally wrong, illegal, arbitrary, unjustified and

against the principles of law.

The respondent no. 2 in the entire written statement and affidavit has

not uttered even a single word about the construction activities

and about the development at the site. In our view, when there is

no construction activities at the site or there is no development at

the site, the respondents have no right to foist their wrong upon

the complainant. In our view, definitely the complainant is entitled

to get interest from the respondents on her deposited amount

which the respondents are utilizing without providing her any

facilities or services. Accordingly, it is directed to the respondents

to pay interest at the rate of 09% per annum on the amount

deposited by the complainant with the respondents from the date

of its deposit till the possession of the floor is handed over to the

complainant.

Further, in our view, the respondents wrongly and illegally

issued the letter dated 17.12.2010 to the complainant and the

respondents are directed to withdraw the same. In our view, the

complainant has been able to prove the deficiency in the service of

the respondents and the respondents are directed to allot the

residential independent ground floor in Mapsko City Home in Block

ME 73 to 81 and 62 to 70 in East to the complainant. It is also

directed to the respondents to accept the instalments without any

interest, penalty or surcharge form the complainant i.e after start of

the construction activities. It is also directed to the respondents to

inform the complainant about the delivery of the possession of

residential independent ground floor so that she could arrange the

money for its deposit with the respondents. Since, the complainant

has been able to prove the deficiency in service on the part of the

respondents, the respondents are directed to compensate the

complainant to the tune of Rs.10,000/-(Rupees Ten Thousand) for

rendering deficient services, for unnecessary harassment and

Rs.5,000/-(Rupees Five Thousand) under the head of litigation

expenses. The present complaint stands allowed and the

respondents are directed to make the compliance of this order

within one month from the date of pronouncement of this order”.

11. The State Commission while affirming the decision of the District Forum, in its impugned order observed;

“On our asking, it is not disputed by the learned counsel for the appellant that despite of taking the booking amount as well as additional insatllment of the house, complainant has not been allotted the residential unit in question. It is further not disputed that no construction of the alleged project has been started by the appellant till date. The plea of the appellant that 30% payment has not been made by the complainant, therefore, construction work of the flat in question could not be started, is not a ground to forfeit the earnest money of the complainant. It is not disputed that builders always project their case favouring them instead of ever bothered for the interest of allottees. The builder used the hard earned money of the investors and thereafter acted in an arbitrary manner, so as to build up pressure upon the complainant to part with their hard earned money without performing their part of contract by raising construction of the flats. We are, therefore, of the view that there is great deficiency on the part of the appellants/ opposite parties in not raising the construction, rather impressing upon the complainant to pay the instalments in time without carrying the construction work of the flat in question. We, therefore, dismiss this appeal with the costs of Rs.10,000/- in limini.

However, complainant would be entitled to adjust this amount of cost, while making the balance payment of his house to the appellants”.

12. Petitioners have placed on record ‘Instalment Payment Plan’ showing as to what stage what instalment amount has to be paid by the respondent. However, Instalment Payment Plan is absolutely silent as to by which date the possession of the flat will be handed over to the respondent.

13. Petitioners have not placed on record the agreement executed between the

parties. However, it has placed on record copy of “Floor Buyer’s Agreement”(page 56

to 65 of the paper book) of some other purchaser. As per clause 14-a of the “Floor

Buyer’s Agreement”;

“Promoter shall endeavour to complete the construction of the said Floor within a period of 18 months from the date of signing of this Agreement with the Buyer or within an extended period of six months, subject to force majeure conditions as mentioned in Clause (b) hereunder or subject to any other reasons beyond the control of the Promoter”.

14. There is nothing on record to show as to what was the status of the construction

when respondent has filed the complaint before the District Forum.

15. Both the Fora below have given a categorical finding that “No construction has

started yet”.

16. State Commission, vide impugned order dated 25.7.2011 in this regard has

observed

“It is further not disputed that no construction of the alleged project has been started by the appellant till date”.

17. Petitioners in this case having accepted substantial amount of money from the

respondent in February/ April,2010 but had not started any construction till

25.7.2011(date of decision of the State Commission). This conduct of the petitioners

on the face of it amounts to unfair trade practice.

18. In Lalit Kumar Gupta & Ors. Vs. DLF Universal Ltd.(First Appeal No.88 of 1999

and 345 of 2001) decided on 6.5.2002,this Commission has laid down;

“That there has been a delay in delivery in handing over the possession of the Town House which is a deficiency in service within the definition of this word as per CPA, 1986”.

19. Present revision petition has been filed under Section 21(b) of the Consumer

Protection Act, 1986. It is well settled that the powers of this Commission as a

Revisional Court are very limited and have to be exercised only, if there is some prima

facie jurisdictional error in the impugned order.

20. Hon’ble Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli

Bikshalu and others,(AIR 1999 (SC) 3095) has observed;

“It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below”.

21. Hon’ble Supreme Court, in Rubi (Chandra) Dutta vs. United India Insurance Co.

2011 (3) Scale 654 observed that;

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there

was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different(and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora”.

22. Petitioners/builder in the present case “wants to have the cake and eat it too”, as

admittedly it has received substantial amount of money of the flat. Thus, petitioners

being the builders are enjoying the substantial amount of money of the flat paid by the

respondent. On the other hand, respondent after having paid substantial amount of

money of the flat to the petitioners is still without any roof and also does not know as to

when she will get the same.

23. Thus, no jurisdiction or legal error has been shown to us to call for interference

in the exercise of power under section 21 (b) of the Act, since, State Commission

has given cogent reasons in its order, which does not call for any interference nor it

suffer from any infirmity or revisional exercise of jurisdiction.

24. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;

“Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system”.

25. It is well settled that no leniency should be shown to such type of litigants who in

order to cover up their own fault and negligence, goes on filing meritless petitions in

different foras. Equity demands that such unscrupulous litigants whose only aim and

object is to deprive the opposite party of the fruits of the decree must be dealt with

heavy hands. Unscrupulous builders like petitioners should not be spared who after

taking substantial cost of the flat do not perform their part of obligations. A strong

message is required to be sent to such type of builders that this Commission is not

helpless in these type of matters.

26. Now question arises for consideration is as to what should be the quantum of costs

which should be imposed upon the petitioner for dragging the respondent upto this fora.

It is not that every order passed by the judicial fora is to be challenged by the litigants

even if the same are based on sound reasonings.

27. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors, Civil

Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ; “45. We are clearly of the view that unless we ensure that wrong –doers

are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases”.

Apex Court Further observed;

“It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.

49. It is a typical example how a litigation proceeds and continues and

in the end there is a profit for the wrongdoers.

50. Learned Amicus articulated common man’s general impression about litigation in following words:

“Make any false averment, conceal any fact, raise any plea,

produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road”.

28. In our opinion, the present petition is nothing but a gross abuse of process of law and the revision petition is totally meritless and frivolous, which is required to be dismissed with punitive cost. Accordingly, we dismiss the present petition with punitive cost of Rs.75,000/-(Rupees Seventy Five Thousand only).

29. Out of the cost imposed upon the petitioners, Rs. 50,000/-(Rupees Fifty

Thousand only) be paid to the respondent by way of demand draft in her

name. Remaining cost of Rs.25,000/-(Rupees Twenty Five Thousand only) be

deposited by way of demand draft in the name of “Consumer Legal Aid Account” of

this Commission, within one month from today.

30. In case, petitioners fail to deposit the aforesaid costs within the prescribed period,

then it shall also be liable to pay interest @ 9% p.a., till realization.

31. Cost awarded to the respondent shall be paid only after expiry of the period of

appeal or revision preferred, if any.32. List on 13th September,2013 for compliance.

.....…………………………J

(V.B. GUPTA)

(PRESIDING MEMBER)

…………………………

(REKHA GUPTA)

MEMBER

SSB


REVISION PETITION NO.187, 188 and 2857 OF 2011 (Against the order dated 2.9.2010 in Appeal No. 3467 and 3468 and 1474/2010 of the State Commission, Karnataka)

1. The Commissioner Karnataka Housing Board Cauvery Bhavan, Bangalore

2. The Executive Engineer, Karnataka Housing Board, KHB Complex, Mulgund Road Gadag.

…. Petitioner (s)

Versus

1. Basaiah S/o Shankatkaiah Hiremath Aged about 43 years R/at. Bannikuppa Yalaburga Tq. Koppal District.

2. Mr. Mahanthesh, S/o Shankataiah Hiremath Aged about 42 years R/at. Jilahala, Devadurga Tq. Raichur District.

3. Smt. Manjula W/o. Manjunath Kinnala Aged about 32 years R/at. Lakampura, Kamalapura Post Yalaburga Tq. Kopal District.

4. Smt. Annapoorna W/o. Nagappa Rachoti Aged about 50 years R/At. Vikasnagar Koppal Tq. & District.

5. Mr. Mariyappa Ganti Aged about 60 years R/At. Vikasnagar Koppal Tq. & District.

6. Mr. Ramesh S/o Shivaputhrappa Hugar Aged about 40 years R/at Siddalinganagar, H. No. LIG-58 Gadag.

7. Smt. Rajeshwari W/o Ramesh Hugar Aged about 35 years R/At. Siddalinganagar, H. No. LIG-58, Gadag.

8. Smt. Thayamma W/o Siddalingesh Hugar Aged about 66 years R/At. Siddalinganagar, H. No. LIG-58, Gadag.

And others

….Respondents

BEFORE:

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

HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioners : Mr. Shaileh Madiyal, Advocate

For the Respondents

In RP/187/2011 : Mr. Purushottam Sharma Tripathi, Advocate

For the Respondents In RP/188/2011 : Nemo

For the Respondents In RP/2857/2011 : Nemo


ORDER


Since common question of facts and law are involved in the above noted petitions,

as such these petitions are being disposed of by this common order.

2. Petitioners/opposite parties published an advertisement for allotment of

site/residential house. Respondents/complainants applied for allotment of the

site/residential house and paid the processing fee, earnest money as well as initial

deposit. At the time of filing of the applications for allotment, respondents were informed

that the rate was Rs.60/- per sq. ft. After allotment of the site, respondents paid various

amounts by way of instalments. Later on, petitioners informed the respondents that rate

of the site has been changed to Rs.80/- per sq. ft. This act on the part of the petitioners

in increasing the rate of site is illegal. Accordingly, respondents prayed for refund of the

excess amount and compensation as well as cost.

3. Petitioners in their written statement have taken the plea that respondents were

allotted the site pursuant to their application for allotment. In the intimation pertaining

the said allotment, respondents were also intimated that the price for the site was

Rs.80/- per sq.ft. and respondents paid the said price for the site in accordance with

communications dated 30.10.2008 and 4.12.2008 and the site in question were thus

allotted to the respondents. One year after having paid the price of the site @ Rs.80/-

per sq. ft., respondents filed consumer complaints before the District Consumer

Disputes Redressal Forum, Gadag (for short, ‘District Forum’).

4. District Forum, vide its order dated 2.9.2010 in complaint cases No.450 and

457/2009 and order dated 28.1.2010, in complaint case No.396/2009, allowed the

complaints and directed the petitioners that the price of the site allotted to the

respondents was @ Rs.60/- per sq. ft. Therefore, Petitioners shall refund the excess

amount with interest @ 10% p.a.

5. Being aggrieved by the order of the District Forum, petitioners filed appeals before

the Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short,

‘State Commission‘). The State Commission, vide its impugned order dated 2.9.2010,

passed (in Appeal No.3467 and 3468 of 2010) and order dated 12.4.2011 passed (in

Appeal No.1474 of 2010) dismissed all the appeals.

6. Hence, these revision petitions.

7. Notice of above note revision petitions was issued to all the respondents. However,

counsel for respondents (in R.P.No.187 of 2011) has appeared, whereas none

appeared on behalf of respondents (in R.Ps. No.188 and 2857 of 2011) in spite of

service by Regd. AD post. Accordingly, respondents in these petitions were proceeded

ex parte, vide order dated 20.2.2013 passed by this Commission.

8. We have heard the learned counsel for the petitioners as well as counsel for

respondents (in R.P. No.187 of 2011).

9. It has been contended by learned counsel for the petitioners that price revision from

Rs.60/- per sq. ft. to Rs.80/- per sq. ft. was done in accordance with Karnataka Housing

Board Regulation and the same is binding on the respondents. In any event,

respondents were never promised that they would be given sites at the rate of Rs.60/-

per sq. ft. As such, both the fora below have grossly erred in coming to the conclusion

that respondents had paid all their instalments prior to the price revision by the

Petitioner-Board.

10. On the other hand, it has been argued by learned counsel for the respondents that

at the time of filing of the application for allotment, the respondents were informed that

the rate was Rs.60/- per sq. ft. Accordingly respondents have paid various amounts by

way of instalments. Later on, petitioners informed them that the rate of the site has been

changed to Rs.80/- per sq. ft. This act on the part of petitioners in increasing the price,

after allotment of the site is illegal.

11. In Complaint Case No.450 and 457 of 2009, the District Forum held;

“But here the question is whether the respondents have distributed/allotted sites to all consumers who have sought sites under the same notification and have filed applications at the same time at one price? Or we have to consider as to whether they have right to charge higher rate as per law under the Board Rules. Here firstly in the letter written by the 1st respondent to the 2nd respondent on 23.10.2008 it is started that the price of sites intended to be purchased by consumers like complainants is Rs.80/- per Sq. Ft. and the same is in force from 1.10.2008. But here the complainants have filed application to purchase sites at Rs.60/- per Sq. Ft. before that date and the sites have to be allotted to these complainants at that rate only. But here, the respondents have received amount from the complainants at the rate of Rs.80/- per Sq. Ft. Even Shivaleela Sullad who had filed application alongwith the complainant had been asked to pay at Rs.80/- per Sq. Ft. and when she filed complaint No.49/2009 before the Gadag District Consumer Forum, respondents have agreed to allot the site to her at Rs.60/-. From this it is clear that the conduct of the respondents is not in accordance with the rules of the Board and it also clear that in

fixing the price as they deem fit and without discretion they are guiltiest of improper business conduct and of deficiency in service. For this reason, while accepting the decisions of National Commission cited by the advocate for respondents, and without questioning the power of respondents in fixing the price, we are of the opinion that collecting different rates from consumers who have filed applications at similar period, amounts to improper business conduct. Hence, while answering the 1st Issue in the affirmative, we hold that the excess amount at Rs.20/- per Sq. Ft. collected from the complainants should be calculated and interest at the rate 10% on the same should be given from the date of collecting excess money and the same should be refunded to the complainants. Further by way of warning that such improper business conduct should not be repeated to other consumers and for not repeating deficiency of service to others, the respondents should pay to each of the complainants a sum of Rs.5,000/- as Special Compensation also pay a total of Rs.2,000/- towards court costs and accordingly while answering Issue No.2 partly in the affirmative it is ordered as under;

ORDER

Complaints No.450/2009 and 457/2009 these two complaints have been allowed in part against Respondents 1 and 2.

The respondents 1 and 2 shall within one month from today, after considering that the price of sites allotted to the complainants in these two complaints as Rs.60/- per Sq. Ft., refund to the complainants the excess amount collected by them alongwith 10% interest from the date of receipt of the amount. Further to each of the complainants a sum of Rs.5,000/- shall be paid as special compensation and for mental agony, a sum of Rs.2,000/- shall also be paid totally towards court costs.”

12. The State Commission vide impugned order (passed in Appeals No.3467 and 3468

of 2010) has observed as under;

“After considering the averments of the complaints and the affidavit, DF allowed the complaints of the complainants in part. Record indicates that in case the society or the housing board intended to raise/hike the sital value, prior intimation is to be given to the members. Once the value of the site is fixed at Rs.60/- sq. feet without notice, the appellants/OPs are not entitled to claim the value of the site at Rs.80/- sq. feet. The impugned order under challenge also discloses that sites were allotted to some of the members at Rs.60/- sq. feet whereas in these 2 cases the appellant/OPs have collected excess amount of Rs.20/- per sq. feet which is unfair. Since the appellants/OPs is a board do not expected to collect more amount from their members. Sites allotted at lesser price for the other members amounts to discrimination. Therefore the DF is right in allowing the complaints of the complainants in part.”

13. Respondents in para no.2 of their complaint have made the following averments’

“2. The KHB has made the publication of an advertisement for the allotment of the sites/residential houses by their notification No.KHB/Allotment/201c/CS/2001-2002 DATED 29.8.01. Accordingly the complainants have applied in the month of August, 2008 for the allotment of the sites under the said scheme and paid the processing fee, EMBD. Initial deposit as per the notification and regulations of the KHB. The complainants have also claimed reservation of the sites under various categories which are classified and fixed quota for the allotment by the KHB. The price of the said sites was fixed at Rs.60/- per sq. feet at the time of the accepting the application of the complainants and other aspirants.”

14. In response to the above averments, petitioners in their written statement states as

under;

“2. The contents of the para 1 & 3 of the complaint is partly true and in respect of date of application and application number is not disputed by this Respondent. It is false to state that the price of the said sites were fixed at Rs.60/- per sq. ft. at the time of the accepting the application of the complainants and other aspirants.”

15. Thus, as per averments made in para -2 of the complaint, rate of the site was fixed

at Rs.60/- per sq. feet at the time of acceptance of the application. In its written

statement petitioners have nowhere stated that the rate of the site was increased to

Rs.80/- per sq. ft.

16. However, counsel for petitioners has contended during the course of arguments

that respondents have paid the agreed rate of Rs.80/- per sq. ft. and when they

themselves had paid the amount @ Rs.80/- per sq. ft., then question of arbitrariness

and discrimination does not arise.

17. There is nothing on record to show that respondents have ever agreed to the rate

of Rs.80/- per sq. ft. This rate was increased after allotment of the site to the

respondents and both the fora below have given clear findings of fact on this point.

18. Present revision petitions have been filed under Section 21(b) of the Consumer

Protection Act, 1986 (for short, ‘Act’). It is well settled that the powers of this

Commission as a Revisional Court are very limited and have to be exercised only, if

there is some prima facie jurisdictional error in the impugned order.

19. 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.”


in the exercise of power under section 21 (b) of the Act, since, two fora below have

given cogent reasons in their orders, which does not call for any interference nor

they suffer from any infirmity or revisional exercise of jurisdiction.

21. In our opinion, the present petitions are nothing but a gross abuse of the process of law and the same are meritless and have no legal basis, which are required to be dismissed with costs.

22. Accordingly, we dismiss the present petitions with cost of Rs.10.000/- (Rupees Ten Thousand only) in each case. Cost be deposited by the petitioners by way of demand draft in the name of respondents in each case within four weeks.

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

24. List for compliance on 13.9.2013.

…………………………………….J

(V.B. GUPTA)

PRESIDING MEMBER

………………………………

(REKHA GUPTA)

MEMBER

Sg.


REVISION PETITION NO. 292 OF 2013(From the order dated 01.11.2012 in Appeal No.251 of 2012 of the State Consumer

Disputes Redressal Commission, U.T., Chandigarh)

Bajaj Allianz General Insurance Co. Ltd. 1, DLF Industrial Plot, IInd Floor Moti Nagar, New Delhi – 110015

… Petitioner/ Opp. Party (OP) Versus

1. Nitin Verma S/o Sh. Ashwani Verma R/o H. No. 5486, Sector 38 (West) Chandigarh (Son, Assignee, legal heir of deceased insured) 2.Ashwani Verma S/o Dr. Ram Gopal Verma R/o H. No. 5486, Sector 38 (West) Chandigarh (Husband, legal heir of deceased insured)


For the Petitioner : Ms. Suman, AdvocateFor the Respondent-2 : Mr. Ashwani Verma, In person

PRONOUNCED ON 5 th August, 2013

O R D E R



01.11.2012 passed by the State Consumer Disputes Redressal Commission, U.T.,

Chandigarh (in short, ‘the State Commission’) in Appeal No. 251 of 2012 – Bajaj Allianz

General Ins. Co. Ltd. Vs. Nitin Verma & Anr. by which, while dismissing appeal, order of

District Forum allowing complaint was upheld.

2. Brief facts of the case are that Smt. Suman Verma, mother of Complainant

No.1/Respondent no.1 and wife of Complainant No. 2/Respondent No.2 took a Travel

Care Insurance Policy from OP/petitioner on 15.4.2011 for the period from 22.4.2011 to

20.6.2011. Smt. Suman Verma died on 28.4.2011 in USA. Claim was filed before OP,

which was repudiated on the ground of pre-existing disease. Alleging deficiency on the

part of Petitioner/OP, Respondents/complainants filed complaint before District Forum.

OP contested complaint and submitted that claim was repudiated on the ground of

suppression of pre-existing disease; hence, complaint may be dismissed. Learned

District Forum after hearing both the parties, allowed complaint and directed to pay

$10659 (US) in the Indian Currency Value to be calculated on the basis of May, 2011

rates along with Rs.30,000/- as compensation and Rs.15,000/- as litigation cost. It was

further directed that order may be complied within a period of 30 days failing which, OP

will be liable to pay aforesaid amount along with 12% p.a. interest from 2.6.2011, i.e. the

date of repudiation of the claim till payment. Appeal filed by the petitioner was

dismissed by learned State Commission vide impugned order against which, this


3. Heard learned Counsel for the petitioner and Respondent no. 2 in person.

4. Learned Counsel for the petitioner submits that she presses revision petition only

to the extent of awarding penal interest and does not press other prayers, as payment

has already been made to the respondent. Learned Counsel for the petitioner

submitted that after awarding compensation, learned District Forum has committed

error in further allowing 12% p.a. interest; hence, revision petition be accepted to this

extent. On the other hand, Respondent No. 2 submitted that order passed by learned

State Commission and District Forum are in accordance with law; hence, revision

petition be dismissed.

5. Perusal of order of District Forum reveals that 12% p.a. interest has been

awarded from the date of repudiation of claim till its actual payment, only if order of

District Forum for making payment is not complied with by the petitioner within a period

of 30 days. In such circumstances, award of interest cannot be said to be penal interest,

but it appears that interest has been awarded only for due compliance of the order

within a period of 30 days. In such circumstances, grant of interest cannot be termed as

penal interest. No doubt, interest has been awarded from the date of repudiation of the

claim, whereas interest should have been allowed from the date of order of District

Forum because 30 days period was given for compliance of the order of District Forum

and interest has been awarded only on failure to comply with the directions within 30

days. In such circumstances, revision is liable to be allowed partly.

6. Consequently, revision petition filed by the petitioner is allowed in part and

impugned order dated 01.11.2012 passed by the State Consumer Disputes Redressal

Commission, U.T., Chandigarh in Appeal No. 251 of 2012 – Bajaj Allianz General Ins.

Co. Ltd. Vs. Nitin Verma & Anr. and order of District Forum dated 27.6.2012 passed in

CC No. 652 of 2011 is modified and date 2.6.2011 mentioned in the order of District

Forum is modified by the date 27.6.2012 and revision petition stands dismissed for rest

of the reliefs claimed in revision petition. There shall be no order as to costs.


..…………Sd/-…………………( DR. B.C. GUPTA )

MEMBERk


(From the order dated 10.10.2012 in Appeal No.1154 of 2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Jilay Singh S/o Shri Ganga Ram R/o 3C/34, NIT Faridabad (Haryana)


Versus

1. National Insurance Company Ltd. Regd. Office at 3 Middleton Street Kolkata – 7000712.Divisional Manager National Insurance Co. Ltd. Branch Office 15/C1 & 7, Neelam Chowk, NIT Faridabad – 121001 (Haryana) 3.Citi Corp. Finance India Ltd. FF Division 1st Floor,City Bank Centre, P. No. C-61, G Block, Bandra Kurla Complex, Bandra E, Mumbai-400051


For the Petitioner : Mr. Madhurendra Kumar, AdvocatePRONOUNCED ON 5 th August, 2013

O R D E R



order dated 10.10.2012 passed by the Haryana State Consumer

DisputesRedressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal

No. 1154 of 2012 – Jilay Singh Vs. National Insurance Co. Ltd. & Ors. bywhich, while

dismissing appeal, order of District Forum dismissing complaint was upheld.

2. Brief facts of the case are that complainant/petitioner’s vehicle HR-38-J-4095 was

insured by OP/respondent for a period of one year commencing from 24.1.2005 to

23.1.2006. On 9.5.2005, vehicle parked in front of the house of driver was stolen. FIR

was lodged on 4.6.2005 and respondents were informed immediately regarding theft of

the vehicle. Respondents repudiated claim alleging deficiency on the part of

petitioner/complainant. Petitioner/complainant filed complaint before District forum.

Respondents contested complaint and submitted that FIR was lodged at a very belated

stage and OP was not informed about theft and prayed for dismissal of complaint.

3. District Forum after hearing both the parties dismissed complaint. Appeal field by

the petitioner was dismissed by learned State Commission vide impugned order against

which, this revision petition has been filed.

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

5. Learned Counsel for the petitioner submitted that inspite of intimation to

respondents immediately after theft; learned State Commission has committed error in

dismissing appeal and learned District Forum has committed error in dismissing

complaint and claim should have been allowed on non-standard basis; hence, revision

petition be admitted.

6. Perusal of record clearly reveals that FIR was lodged on 4.6.2005, whereas

vehicle was stolen on 9.5.2005, i.e. after a period of 25 days. Petitioner has not filed

any document regarding intimation to Insurance Company/respondent immediately

after theft of the vehicle. On the other hand, respondent has denied any intimation by

complainant. In such circumstances, learned State Commission has not committed any

error in upholding order of District Forum dismissing complaint. Learned Counsel for the

petitioner has placed reliance on II (2010) CPJ 9 (SC) – Amalendu Sahoo Vs. Oriental

Insurance Co. Ltd. in which claim was directed to be settled on non-standard basis, as

vehicle was used on hire, whereas insured for personal use. This citation does not

help to the petitioner in this case, as petitioner has lodged FIR after 25 days and has not

intimated to the Insurance Company; hence, violated basic conditions of the policy. He

has also placed reliance on IV (2008) CPJ 1 (SC) – National Insurance Co. Ltd.

Vs. Nitin Khandelwal , which also does not help to the petitioner as in that case also

vehicle was insured for personal use and was being used by the respondent as a taxi,

whereas in the case in hand vehicle has been stolen and no intimation was given by the

petitioner in time to the respondent.

7. In I (2013) CPJ 713 (NC) – Suman Vs. Oriental Ins. Co. Ltd. and in I (2013) CPJ

741 (NC) – Surender Vs. National Insurance Co. Ltd., I have decided that as per

terms and conditions of the policy, it is obligatory on the part of the complainant to

intimate about theft to the OP immediately. In aforesaid both the cases, I have upheld

order of State Commission dismissing complaint.

8. In the light of aforesaid judgements, we do not find any illegality, irregularity of



stage with no order as to costs.

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

..…………Sd/-…………………( DR. B.C. GUPTA )

MEMBERk


From the order dated 04.03.2008 in Appeal No. 1346/1995 of the U.P. State Consumer Disputes Redressal Commission, Lucknow

1. Lifie Insurance Corpn. of India Main Branch, through its Chairman Post Box No. 19953, Jivan Bima Marg Bombay – 400021 2. Life Insurance Corpn. of India Zonal Office, Through its Zonal Manager Jivan Vikas, 16/98, Mahatma Gandhi Marg, 3. Branch Manager, Life Insurance Corpn. of India 613, First Floor, Railway Road, Hapur

… Petitioners/Opp. Parties (OP) VersusSmt. Manavinder Kaur W/o Smt. Maharaj Singh R/o Khureti House Jail RoadRae Bareilly.

… Respondent/Complainant BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBERFor the Petitioner : Ms. Manisha Tyagi, AdvocateFor the Respondent : Mr. Himmat S. Sidhu, Auth. Rep. PRONOUNCED ON 5 th August, 2013

O R D E R


This revision petition has been filed by the petitioners/Opposite parties against

the order dated 04.03.2008 passed by the U.P. State Consumer

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

No. 1346/1995 – LIC of India Vs. Manavinder Kaur by which, while dismissing appeal,

order of District Forum allowing complaint was upheld. 2. Brief facts of the case are that complainant/respondent took

‘Bima Sandesh Policy’ with accidental benefits from OP/petitioner in the name of her

minor son Kulbir Singh Sidhu, who was 17 years & 6 months. He died on 11.6.1991 in

an accident. Complainant filed claim with the OP. OP paid only basic assured amount

without accidental benefits and, as accidental benefits were not paid, alleging deficiency

on the part of OP filed complaint before District Forum. OP/petitioner contested

complaint, filed written statement and submitted that accidental benefits were not

payable, as minor was not covered in accidental benefits and prayed for dismissal of the


directed OP to pay Rs.1,00,000/- as accidental benefits along with 18% p.a. interest

from 22.09.1984 till payment. Appeal filed by the petitioner was dismissed by learned

State Commission vide impugned order against which, this revision petition has been

filed.

3. Heard learned Counsel for the petitioner and authorized representative of

respondent and perused record.

4. Learned Counsel for the petitioner submitted that, though, policy for accidental

benefits could not have been issued in the name of minor, but still petitioner has already

paid accidental benefits, but rate of interest awarded by District Forum is on higher side;

hence, revision petition be allowed to this extent and rate of interest be reduced. On the

other hand, authorized representative for the respondent submitted that respondent is

contesting this matter since 18 years and rate of interest awarded by District Forum is

not on higher side; hence, revision petition be dismissed.

5. As petitioner has already paid original sum assured and amount of accidental

benefits, as awarded by District Forum, we need not to go on the merits of the case.

Now, the question remains only regarding rate of interest..

6. Learned District Forum has awarded 18% p.a. interest from 22.9.1994 and

learned State Commission has dismissed appeal of the petitioner. It is doubtful whether;

‘Bima Sandesh Policy’ with accidental policy could have been issued by the petitioner in

the name of minor. Apparently, 18% p.a. interest is on the higher side and 12% p.a.

interest would meet the ends of justice. In such circumstances, it would be appropriate

to reduce rate of interest from 18% p.a. to 12% p.a.

7. Consequently, revision petition filed by the petitioner is partly allowed and

impugned order dated 4.3.2008 passed by learned State Commission and order of

District Forum dated 24.7.1995 passed in Complaint No. 1348/94 is modified and grant

of interest @ 18% p.a. is reduced to 12% p.a. interest. Rest of the order is

upheld. There shall be no order as to costs.


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHICONSUMER COMPLAINT NO. 157 OF 2013

M/s Akash Ganga Airlines Ltd. Registered Office at : Aadharshila Campus V.I.P.Road, Alambagh, Lucknow-226005 Through its Vice President & Authorised Representative – Smt. Kavita Verma

........ Complainant

Vs.

Aryavrat Gramin Bank B-192, Nirala Nagar, Lucknow – 220007 Through its Senior Manager

......... Opposite Party(s)

BEFORE:

HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

For the Complainant : Mr.Shashi Kumar Sinha and Mr.Nikhil Jain, Advocates

PRONOUNCED ON 06 th AUGUST, 2013

ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

M/s Akash Ganga Airlines Limited has filed instant complaint under section 21

(a) of the Consumer Protection Act, 1986 ( in short, ‘the Act’)

against Aryavrat Gramin Bank, Nirala Nagar,Lucknow claiming deficiency in service on

the part of the opposite party bank in connection with the loan sanctioned in favour of

the complainant for setting up a domestic airline.

2. As per the allegations in the complaint , it is clear that services of the opposite

party bank was availed by the complainant in relation to a commercial purpose i.e.

setting up a domestic airlines for earning profit. Therefore, the complainant was given

an opportunity to make submissions on maintainability of the consumer complaint.

3. Learned Shri Shashi Kumar Sinha, Advocate for the complainant has drawn our

attention to the definition of complaint as provided in section 2 ( c) (iii) and submitted

that the complaint means any allegation in writing made by the complainant relating to a

case where the services hired or availed of suffers from deficiency in service. He,

further, contended that as per the section 2 ( O) of the Act, “service” means service of

any description made available to the user and it includes the facilities in connection

with banking / financing etc. Learned counsel for the complainant submits that as per

the allegations in the complaint, the opposite party had agreed to advance loan to the

complainant for setting up a domestic airlines. As such the aforesaid service falls within

the definition of “service” as envisaged under the Act. Learned counsel thus submitted

that allegations in the complaint clearly indicate deficiency in service on the part of the

opposite party in relation to the loan account of the complainant. As such the consumer

complaint is maintainable.

4. In support of this contention, learned counsel for the complainant has relied

upon the judgements of the Supreme Court in the matters of Lucknow Development

Authority Vs.M.K.Gupta JT 1993 (6) SC 307 and Civil Appeal No.1064 of 2013

titled Vijaya Bank Vs. Gurnam Singh, CCI Chambers Co-op Housing Society

Vs. D.C.Bank Ltd. AIR 2004 SC 184.

5. We have considered the submissions made on behalf of the petitioner and

carefully gone through the allegations in the complaint. There is no dispute with the

proposition raised by the complainant that the loan account facility given by a bank to its

customer falls with the definition of “service” as envisaged under section 2 (O) of the

Act. It cannot be disputed that in terms of section 2 ( c ) (iii) a complaint can be filed by

aggrieved party in relation to deficiency of service by the service provider. However, in

our considered view in order to successfully maintain a complaint under the Act, the

complainant must qualify to be a complainant as defined under section 2 (b) of the Act.

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

thus:

“Complainant” means

(i) a consumer; or

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

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

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

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

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

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

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

availing of service is reproduced thus:

“Consumer means a person who-

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

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

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

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

livelihood by means of self-employment”.

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

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

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

case, admittedly the loan facility was availed by the complainant for a commercial

purpose i.e. to set up a domestic airline. No doubt the explanation to section 2 (1) (d)

(ii) provides that commercial purpose does not include the services availed by a person

exclusively for the purpose of earning his livelihood by means of self

employment. Unfortunately, this is not a case before us. Complainant admittedly is a

public limited company and unnatural person. Therefore, it cannot

take advantage of the explanation to Section 2 (1) (d) (ii).

8. We have gone through the judgments referred to by learned counsel for the

complainant. In our view, the aforesaid judgments are based upon their distinct facts

and are not applicable to the facts of the case. Further, the aforesaid judgments relate

to the period prior to amendment of definition of “consumer” when the persons availing

services hired for commercial purpose were not excluded from the definition of

consumer. Thus, in our view the aforesaid judgments are of no avail to the

complainant.

9. Learned counsel for the complainant has also contended that in view of the

judgment of the Supreme Court in the matter of Mahesh Chandra Vs. Regional

Manager, U.P. Financial Corporation AIR 1993 SC 935, it is obligation of the bank to

reschedule the payment of loan by the complainant and also sanction further loan to

make the complainant company viable. In our considered view, aforesaid judgment

has been passed in a different context while interpreting the scope of section 29 of the

State Financial Corporation Act and it has no applicability to the facts of the case.

10. The result of the above discussion is that the complainant does not fall within

the definition of the complainant as envisaged under section 2 (d) (ii). As such, he

cannot maintain a consumer complaint under the provisions of the Act. The complaint

is, therefore, dismissed as not maintainable. No order as to costs.

………………………….

(AJIT BHARIHOKE, J) ( PRESIDING MEMBER)

………………………… (SURESH CHANDRA) MEMBER

Am/


CONSUMER COMPLAINT NO. 207 OF 2013

M/s Shri Geeta Infratech Pvt. Ltd. Through its Director, Manisha S. Ranasaria D-404, Aditya Elite, B.S.Maktha 6-3-1119, Somajiguda Near Keerthilal Jewellers Lane Hyderabad – 500016

… ComplainantVersus

M/s Lodha Healthy Constructions & Developers Private Limited (LHCPL)East Block, Eden Square Kukatpally Village Hyderabad – 500072 Regd. Office : 216 Shah & Nahar Industrial Estate Dr.E. Moses Road, Worli Mumbai – 400018 Through its Chairman & Managing Director

… Opposite Party

BEFORE:

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

For the Complainant : Mr. Venkateswar Rao Anumolu,Advocate

PRONOUNCED ON_07.08.2013

O R D E R

JUSTICE J.M. MALIK

1. The key question is “Whether the complainant is a “consumer” and

falls under Section 2(1)(d)(ii) and Explanation appended to it?”.

2. Even if a Private Limited Co. is treated, as a “person”, will the purchase of

space/residential flats can be for earning its livelihood?. The instant complaint has been

filed by M/s. Geeta Infratech Pvt.Ltd. The complainant is a registered Company under

Companies Act, 1956 and has its registered office at 83, Nootan Cloth Market, Raipur,

Ahmedabad – 380 022. They were looking for a facility of its Director, Manisha

S.Ranasaria’s family’s comfortable living. They entered into an agreement with

M/s.Lodha Bellezza Constructions and Developers Pvt. Ltd., having its office at Kukatpally

Village, Hyderabad. They were to provide various facilities in the Lodha Bellezza Complex

as listed in the Brochure. The complainant paid a substantial amount towards the price

of the flat.

3. Learned counsel for the complainant vehemently argued that the Director is buying

flat for her own personal use. But there is no inkling in the agreement entered into between

the parties. The agreement clearly states that the same is entered into between the OP

and M/s. Geeta Infratech Pvt. Ltd. 83, Nootan Cloth Market, Raipur, Ahmedabad – 380

022. It is, thus, clear that any officer of the Complainant Company will stay on, who will

transact the business for and on behalf of the complainant company. Under these

circumstances, it cannot be said that the complainant is a “consumer”.

4. In Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. – IV (2010) CPJ

299 (NC), there was delay in handing over possession. The complainant was a Private

Limited Company. The complainant was nominated for allotment of

showroom. Possession not given. Sale Deed was not executed. Deficiency of service

was alleged. It was held that even if Private Limited Co. is treated as a

“person”, purchase of space could not be for earning for its livelihood. Purchase of space

was for “commercial purpose”.

5. In Satish Kumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India)

Ltd., & Anr., Concumer Complaint No.296 of 2011, decided by National Commission,

on 03.07.2012, it was held that the business of the complainant extended upto

Mumbai. In order to save on the expenditure incurred on his stay, in hotels, at Mumbai,

during his business trips, he was interested in buying some flats in Mumbai. He took two

flats. It was held,

“Clearly, the transaction is relatable to his business activity and, therefore, it will fall in the category of commercial purpose, which has been taken out of the purview of the Consumer Protection Act, 1986, vide Amendment Act No.62 of 2002, effective from 15th of March, 2003. This Commission in the case of Jag Mohan Chhabra & Anr. Vs. DLF Universal Ltd. IV (2007) CPJ 199 (NC), in a somewhat similar case, had held that the complaint was not maintainable under the Consumer Protection Act, 1986. It had, therefore, disposed of the complaint with liberty to the complainant to approach Civil Court. The said order has since been upheld by the Hon’ble Supreme Court, as Civil Appeal No.6030-5031 of 2008, filed before the Supreme Court,

stands dismissed vide the Apex Court’s order dated 29.09.2008”.

6. Against the said order of this Commission, Special Leave Petition (Civil Appeal No.

6229 of 2012, Satish Kumar Gajanand Gupta Vs. Srushti Sangam Enterprises (I) Ltd

& Anr.) was filed before the Hon’ble Supreme Court. The Hon’ble Apex Court

dismissed the said Special Leave Petition, vide order dated 14.09.2012.

7. In M/s.Purusharath Associates Pvt. Ltd. Vs. M/s. Uppal Housing Ltd. &

Anr., Consumer Complaint No.112 of 2012, decided by National Commission, on

05.07.2012, it was held that :

“Learned counsel for the complainant argued that these flats will be used for the officers of the Company. Learned counsel for the complainant could not deny that those officers would transact the commercial activity. A bare-look on this Resolution clearly goes to show that these flats would be meant for ‘commercial purposes’.

8. Against the said order of this Commission, Special Leave Petition (Civil Appeal

Nos.8990-8991 of 2012, M/s. Purusharath Associates Pvt. Ltd. Vs. M/s. Uppal

Housing Ltd. Plaza & Anr.) was filed before the Hon’ble Supreme

Court. The Hon’ble Apex Court dismissed the said Special Leave Petition, vide order

dated 07.01.2013.

The complaint, accordingly, is dismissed in limine.

.…..…………………………

(J. M. MALIK, J)

PRESIDING MEMBER .…..…………………………

(DR.S. M. KANTIKAR)

MEMBER

dd/19


REVISION PETITION NO. 2284 OF 2013 (From the order dated 01.04.2013 in First Appeal No. 32/2013

of Rajasthan State Consumer Disputes Redressal Commission)WITH

I.A. No. 3802 & 3803 /2013(STAY, EXEMPTION FOR FILINGTRANSLATION OF DOCUMENTS)

1. Rajasthan Housing Board, Jyoti Nagar, Janpath, Bhagwan Das Road, Jaipur Through its Secretary

2. Rajasthan Housing Board, Through Deputy Housing Commissioner Circle-

First, Pratap Nagar, Sanganer, Jaipur... Petitioners

Versus

Gyan Singh s/o Shri Sujan Singh, r/o 15, Chaudhory Colony,Kartarpura Jaipur

… Respondent


of Rajasthan State Consumer Disputes Redressal Commission)WITH

I.A. No. 3804 & 3805 /2013(STAY, EXEMPTION FOR FILINGTRANSLATION OF DOCUMENTS)

1. Rajasthan Housing Board, Jyoti Nagar, Janpath, Bhagwan Das Road, Jaipur Through its Secretary

2. Rajasthan Housing Board, Through Deputy Housing Commissioner Circle-

First, Pratap Nagar, Sanganer, Jaipur... Petitioners

Versus

Karuna Bohra w/o Ashwani Bohra, r/o House No. 51/62,Pratap Nagar, Sanganer, Jaipur

… Respondent BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS (IN BOTH REVISION PETITIONS) For the Petitioner(s) Mr. Vinay K. Sharma, AdvocateFor the Respondent(s) Mr. Rakesh K. Mudgal, Advocate

Mr. Gyan Singh, Advocate

PRONOUNCED ON : 7 th AUGUST 2013


These two revision petitions have been filed under section 21(b) of the Consumer

Protection Act, 1986 against the impugned order dated 01.04.2013 passed by the

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

Commission’) in FA No. 32/2013 “Rajasthan Housing Board versus Gyan Singh” by

which while dismissing the appeal, the order passed by District Consumer Disputes

Redressal Forum, Jaipur in complaint no. 787 and 664 of 2012 filed by the

respondents/complainants was upheld. These two petitions are being disposed off by

this single order and a copy of the same may be placed on each file.

2. Brief facts of the case, as taken from complaint no. 787/2012 filed by Gyan Singh

respondent in RP No. 2284/2013 are that the Petitioner/OP launched a multi-storey

housing scheme at Mewar apartments, Haldighati Marg, Pratap Nagar, Jaipur. The

complainants submitted applications for booking flats in the said Scheme by making

payment of registration amount of Rs.1,80,000/- each. The approximate cost of the flat

was stated to be

Rs.17,90,000/-. The complainants were successful in the draw of lots taken out on

14.04.2008. Allotment letters were issued to them. The complainants deposited the

total amount of the flat in instalments as demanded by the petitioner/OP. As per

commitment made by the Petitioner/OP through the reservation letter dated 22.10.2008,

the petitioners were required to issue a allotment letter/possession letter of the flat

within a period of 30 months from that letter after allotting the house number. However,

the said allotment/possession letter was issued to the complainant on 30.6.2011

meaning thereby that there was a delay of about three months in issuing the said

letter. Further, the petitioners raised further demand of Rs.1,96,215/- in RP No.

2284/2013 and a demand of Rs.1,98,784/- in RP No. 2285/2013 from the complainants

before taking the possession of the flats. The said amounts were also deposited by the

complainants under protest. Further, an additional demand for Rs.97,225/- for parking

in RP No. 2284/2013 and that of Rs.57,495/- in RP No. 2285/2013 was also made by

the petitioner and the said amount was also paid by the complainants. It has been

alleged by the complainants that the petitioners/OP had not completed the construction

work of the flats at the time of offer of possession and hence, there was gross

negligence and deficiency in service on the part of the petitioner. A complaint was,

therefore, made before the District Forum and as per orders passed by the District

Forum on 5.12.2012 in both the cases, it was ordered that in case of complaint no.

787/2012 the petitioner/OP should pay interest @ 15% p.a. on the amount of

Rs.17,90,000/- from 30.03.2011 to 30.06.2011 and also to refund the parking charges of

Rs.97,225/- with interest @ 15% p.a. from the date of receiving such payment till

refund. District Forum also ordered that for failure of the petitioner to provide all

amenities, interest @ 10% p.a. should also be paid on the total amount of

Rs.17,90,000+Rs.1,96,215 = Rs.19,86,215/- and to pay Rs.50,000/- by way of

compensation for mental agony and Rs.3,000/- as litigation expenses.

3. In case of RP No. 2285/2013, it was ordered that the petitioner should pay interest

@ 9% p.a. on the total amount of Rs.21,40,000/- from 30.03.2011 to 30.06.2011 and to

refund the parking charges of Rs.57,495/- along with interest @ 12% from the date of

receiving the amount till refund. It was also ordered that 10% interest should be paid for

not providing all amenities on the amount Rs.21,40,000/-+Rs.1,98,784/-=Rs.23,38,784/-

and to pay Rs.50,000/- as compensation for mental agony and Rs.3,000/- for litigation

expenses. Against these orders dated 5.12.2012 passed by the District Forum, appeals

were filed before the State Commission. The State Commission upheld the orders of

the District Forum vide order dated 1.4.2013. It is against this order that the present

petitions have been filed.

4. Heard the learned counsel for the parties and examined the record.

5. It has been contended by the learned counsel for the petitioner that the District

Forum has not given any reasons for the grant of interest on the deposited amount

under various heads. They have simply stated that interest @ 10% should be given on

the entire amount charged by the petitioner till all the amenities are provided. The order

is, therefore, quite vague and there has to be a proper rational basis for charging the

interest. The order passed by the State Commission was quite vague/sketchy and no

reasons have been given by them for upholding the orders of the District Forum. The

petitioners had already allowed interest @ 6% p.a. on the deposited amount on the

period beyond 30.3.2011 till the offer of possession.

6. Learned counsel for the complainants / respondents stated that the petitioner had

not been able to provide proper amenities on the spot and this factor amounted to

deficiency in service and hence, they were required to compensate the complainants for

the same.


consideration to the arguments advanced before us. An examination of the order

passed by the District Forum in Gyan Singh’s complaint, in Revision Petition No.

2284/2013, reveals that the District Forum ordered to pay interest @15% p.a. on the

total cost of the flat, whereas in Revision Petition No. 2285/2013

(Karuna Bohra’scomplaint), District Forum ordered to pay interest @ 9% on the cost of

the flat, i.e., Rs.21,40,000/- and interest @ 12% p.a. on the parking amount of

Rs.57,495/. Further, they have ordered in both the cases that interest @ 10% p.a.

should be paid by the petitioner on the deposited amount, till all the amenities are

provided. It is very clear that the complainants shall be entitled for the said interest,

even if a very minor facility is not provided and this will result in unnecessary litigation

between the parties. The District Forum should have adopted a more rational approach

and given cogent reasons for awarding the interest and should have laid down some

specific time-table for completion of the amenities, if they felt that certain facilities had

not been provided. Further, it is observed that in Gyan Singh case, the District Forum

stated in para 18 of their order that the complainant is entitled to get back the amount of

Rs.97,225/- charged for parking space along with an interest @12% p.a. However,

while passing the order, they directed that an interest @ 15% p.a. should be paid on this

amount, which is an apparent contradiction.

8. Further, it was the duty of the State Commission to examine all aspects of the case

minutely and then give specific reasons for agreeing or disagreeing with the findings of

the District Forum. The order passed by the State Commission is vague and does not

give, at all, any reasons for agreeing with the orders of the District Forum. The

contention of the State Commission that there is no need to re-analyse all the facts and

evidence, is contrary to the provisions of law. The Hon’ble Apex court have also taken

a similar view in many cases that it is the duty of the appellate court to give reasons for

agreeing or disagreeing with this order. Reference may be made in this regard to the

case “HVPNL versus Mahavir [(2001) 10 SCC 659]”

8. Based on this discussion, we are inclined to accept these two revision

petitions. The order passed by the State Commission is set aside and the cases are

remanded back to the State Commission with the direction to analyse all aspects of the

cases and then pass a detailed speaking order giving reasons for their conclusion. No

order as to costs.

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


MEMBERRS/



of Madhya Pradesh State Consumer Disputes Redressal Commission) Vijay Singh Tomar s/o Shishupal Singh Tomar r/o Gandhi ColonyMuraina, Madhya Pradesh

... PetitionerVersus

National Insurance Co. Ltd. Opposite Hariraj Talkies M.S. Road, Morena Madhya Pradesh Through its Branch Manager

… Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Ms. Swikriti Singhania, AdvocateFor the Respondent(s) Mr. Ravi Bakshi, Advocate





passed by the Madhya Pradesh State Consumer Disputes Redressal Commission (for

short ‘the State Commission’) in FA No. 354/2012, “Vijay Singh Tomar versus National

Insurance Co.” vide which appeal filed against the order dated 10.01.2012 in complaint

case no. 35/2010 passed by District Consumer Disputes Redressal Forum, Muraina,

was partly allowed. The District Forum ordered that the OP shall make payment of

claim on the basis of 100% damages according to IDV within a period of 30 days and

also pay interest @ 7% p.a. with effect from 2.2.2009 in addition to Rs.8,000/- towards

deficiency in service and Rs.2,000/- as litigation costs. The State Commission vide

impugned order partly allowed the appeal of the present respondent/OP Insurance

Company and directed them to pay Rs.2,00,000/- with interest @ 8% p.a. with effect

from 2.2.2009 and also Rs.2,000/- as costs.

2. Brief facts of the case are that the petitioner/complainant is the registered owner of

bus bearing no. MP-33/P0126 which was insured with the respondent/OP from

17.03.2007 to 16.3.2008 as per policy no. 321401/31/06/6300002091. The said vehicle

got burnt on 12.2.2008 due to some accident and was completely damaged. The

petitioner sent intimation to the insurance company which appointed a surveyor Ashok

Gupta to make a spot-survey. The company thereafter appointed another

surveyor Manohar Singh to make an appraisal of loss. The complainant presented a

complaint no. 300/2008 before the District Forum on 15.10.2008 and the District Forum

vide their order dated 2.2.2009 observed as under:-“Except that after prepared the report the surveyor kept it with him for two months. After two months later he has presented the above report before the Respondent Insurance Company. After filing the report before the Respondent Insurance Company dated 3/12/08 Respondent Insurance Company has not disposed of his claim petition till today. There is no justified reason for such late. So in this situation it is found that for disposal of claim the Respondent Insurance Company unnecessarily delayed and defaulter in service to petitioner, but this claim petition shall be disposed of by the Respondent Insurance Company on merits and demerits. In this situation it is not found fit to pass any order regarding compensation and regarding that petition of petitioner is pre mature.”

3. The surveyor Manohar Singh in his final report has stated that the loss assessed

on repairing basis would be Rs.3,47,865/-; on cash loss basis it would be Rs.2,36,219/-

and on total loss basis Rs.7,49,000/-. The company decided to make payment on the

basis of cash loss basis and offered a sum of Rs.2,37,147/- to the petitioner but he

refused to accept the amount and pleaded that he would accept that amount under

protest only. There was correspondence between the petitioner and the company and

ultimately, the amount of Rs.2,37,147/- was received by the petitioner under

protest. The petitioner filed a consumer complaint in front of the District Forum again

against the decision of the Insurance Company vide complaint no. 35/2010 saying that

the insured amount of Rs.7,00,300/- should be paid along with Rs.1 lakh for mental /

physical harassment and Rs.15,000/- for litigation expenses along with interest @12%

p.a. on the amount of claim from the date of filing the same. The District Forum vide

their order dated 10.01.2012 ordered that the payment of claim should be made on the

basis of 100% damages, according to the IDV of the policy along with interest @ 7%

p.a. from 2.2.2009, the date of earlier order passed by the District Forum and also

payment of Rs.8,000/- towards deficiency in service and Rs.2,000/- as litigation cost

should be made to the petitioner. The OP insurance company filed an appeal against

this order before the State Commission and vide impugned order dated 9.08.2012, the

State Commission observed that the petitioner had already received Rs.2,37,847/-

under protest from the insurance company and he is entitled to get Rs.2 lakh more

along with interest @ 8% p.a. with effect from date of the first order, i.e., 2.02.2009. It is

against this order that the present petition has been made and as per the prayer, the

petitioner has asked for award of Rs.7.5 lakh towards claim, Rs.1 lakh as compensation

for mental and physical agony, Rs.15,000/- as cost of litigation along with interest @

12% p.a. from the date of filing the complaint.


5. It was argued by the learned counsel for the petitioner that the vehicle had been

totally burnt during the accident and hence they are entitled for payment of damages on

total loss basis.

6. The District Forum vide their order dated 2.2.2009 had commented on the working

of the company saying that the report of the surveyor had been received quite late and

the company was causing undue delay in the disposal of the claim. The District Forum

observed that at this stage, it was not found fit to pass any order regarding

compensation and they, therefore, directed the insurance company to dispose of the

claim on merits, within 30 days of passing the order on 2.2.2009. The learned counsel

further argued that the insurance company had earlier appointed a surveyor, Ashok

Gupta for spot survey and hence, there was no justification for appointing another

surveyor Manohar Singh. Moreover as observed in the order of the State Commission,

there were serious discrepancies in the report submitted by Manohar Singh

Surveyor. The petitioner had appointed their own surveyor Naren Sharma, who had

given the report that the loss was about Rs.10.32 lakh. In the estimate made by the

authorised dealer S.G. Motors, it had been stated that the expenses incurred to restore

the previous conditions of the vehicle would be Rs.11,82,508/-. The surveyor appointed

by the petitioner has produced photographs which show that the vehicle was completely

damaged by fire. The Branch Manager of the Insurance Company had also filed an

affidavit that if the damage to a vehicle was less than 75%, the claim was given on the

basis of actual damage. In the present case, it was clear that the damage to the vehicle

was more than 75%. The revision petition should, therefore, be accepted and the relief

prayed for should be allowed. Learned counsel invited our attention to the order passed

by Hon’ble Apex Court in “Sri Venkateswara Syndicate versus Oriental Insurance Co.

Ltd. & Anr.” [(2009) 8 SCC 507], in which it has been held by the Apex Court that

appointing surveyors one after another so as to get a tailor-made report to the

satisfaction of the insurer, is impermissible.

7. Learned counsel for the respondent Insurance Company, however, stated that the

first surveyor Ashok Gupta was appointed just to have spot survey. The main surveyor

in this case is Manohar Singh and it is not correct to say that Manohar Singh is second

surveyor in the case. He stated that the report given by the surveyor appointed by the

petitioner should not be relied upon as Naren Sharma was not an independent

surveyor. The surveyor appointed by them had not taken into consideration the

depreciation of the vehicle whereas the same should be taken into account while

deciding the claim. Moreover, the surveyor of the petitioner has included many items in

the report which are non-admissible. Learned counsel argued that they agreed with the

order passed by the State Commission and the present petition should be dismissed.

8. In reply, learned counsel for the petitioner again stated that it was a case of total

loss and payment should be made in accordance with the IDV, i.e., Rs.7.5 lakh.



10. A perusal of the report submitted by Manohar Singh surveyor appointed by the

Insurance Company indicates that he assessed the loss at Rs.2,37,147/- on cash loss

basis and Rs.3,47,865/- on repair basis. In his opinion, as part of the report, the

surveyor says that “Obviously, opting the settlement of loss in question on cash loss

basis imposing the liability of insurance for Rs.2,37,147/- only would be more

economical as compared to settlement on repairing basis, hence advised in the interest

of the company.” In his earlier report, the surveyor Manohar Singh clearly stated that

the assessment of loss on repair basis is Rs.3,42,865/- to Rs.3,47,865/-, on cash loss

basis, Rs.2,36,219/- and on total loss basis, Rs.7,49,000/-. He recommended that

payment on cash loss basis would be economical and in the interest of company.

11. It is clear from the report of the surveyor appointed by the company that the prime

focus of the surveyor is to look after the economic interest of the company, rather than

to make his report on the reality of the situation. The State Commission vide impugned

order also observed that the valuation done by Manohar Singh surveyor was very low

and a large number of parts had been deleted from the said report. From the

assessments made by dealers like S.G. Motors and the entire material on record, it is

made out that the vehicle suffered an extensive damage and it is quite apparent that the

loss in vehicle would be more than 75%. The estimate of S.G. Motor says that in order

to restore the vehicle to its original condition, a sum of Rs.11.82 lakh will be

required. The District Forum, therefore, after examining the entire evidence on record

came to the conclusion that the Opposite Party should make the payment of claim on

the basis of 100% damage according to the IDV of the policy along with interest @ 7%

p.a. with effect from 2.2.2009 in addition to Rs.8,000/- for deficiency in service and

Rs.2,000/- as costs. In the complaint filed by the petitioner, it has been stated that

when proposals were demanded for disposal of the burnt bus, a proposal was received

for buying the whole burnt bus as junk for an amount of Rs.49,700/-. The petitioner has

requested in his complaint that he is entitled to get a sum of Rs.7,00,300/- (IDV

Rs.7,50,000 – Rs. 49,700) as loss and Rs.1,00,000/- as compensation for mental

harassment and Rs.15,000/- as litigation cost along with an interest @ 12% p.a. from

the date of filing the complaint till realisation.

12. The overall facts and circumstances on record make it amply clear that it is a case

of total loss, where the damage to the bus because of fire incident is much more than

75%. It shall, therefore, be in the interest of justice that payment should be made by the

Insurance Company as per the order passed by the District Forum but after deducting

the salvage value of Rs.49,700/-. This revision petition is, therefore, accepted and the

order passed by the State Commission is modified and the petitioner is directed to make

payment of Rs.7,00,300/- to the complainant along with an interest @7% w.e.f. 2.2.2009

till complete payment within a period of 30 days from the date of pronouncement of this

order. The petitioner should also make payment of compensation of a sum of

Rs.8,000/- for deficiency in service and Rs.2,000/- as litigation costs. There shall be no

order as to costs.

Sd/-



MEMBERRS/



of Punjab State Consumer Disputes Redressal Commission) United India Insurance Co. Ltd. Regd. & Head Office 24, Whites Road Chennai – 600014 Through its Regional office No. 1 Kanchenjunga Building 8th Floor, Barakhamba Road, New Delhi – 110001.

... Petitioner Versus M/s. Naveen Sales (India) r/o 17/9-10, Jawahar Nagar Midda Chowk, Ludhiana – 141003

… Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS

For the Petitioner(s) Mr. V.S. Chopra, AdvocateFor the Respondent(s) Mr. Vivek Gupta, Advocate PRONOUNCED ON : 7 th AUGUST 2013



Protection Act, 1986 by the petitioner against the impugned order dated 30.03.2012,

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

State Commission’) in FA No. 970/2008, United India Insurance Co. Ltd. versus M/s.

Naveen Sales (India), by which, while dismissing appeal, the order passed by District

Consumer Disputes Redressal Forum, Ludhiana in complaint no. 334/4.5.2005 allowing

the complaint and ordering the petitioner to pay Rs.13,31,181/- along with interest @

9% p.a. from the date of filing the complaint till payment along with a compensation of

Rs.10,000/- and litigation cost of Rs.2,000/- was upheld.

2. Brief facts of the case are that the petitioner issued an insurance policy number

201002/11/03/00372 called ‘Standard Fire and Special Perils Policy’ in favour of the

complainant / respondent for a sum of Rs.20.50 lacs for the period 17.3.2004 to

16.03.2005. Out of this amount of Rs.20.50 lacs, Rs.20 lacs was meant for stocks of all

kinds of sofa material, curtains cloth, mattresses, pillows, cushions, towels, bed sheets,

etc., and Rs.50,000/- was the coverage for furniture, fixtures, fittings and electrical

items. During the currency of the policy, fire occurred on 19.09.2004 at about 3:30 a.m.

and the respondent estimated the loss to be Rs.20,68,090/-. An intimation was given by

the respondent to the local police on the date of the fire and the insurance company

was also intimated. The petitioner insurance company appointed a surveyor to assess

the loss. Vide his report dated 29.01.2005, the surveyor assessed the loss at

Rs.10,80,770/-. The surveyor also pointed out that at the time of loss, there was

construction going on in the shop on the first and second floors of the building. In order

to supply electric current to first and second floor, electric wires had been put on the

main electric meter for the shop, which resulted in probable short-circuiting, leading to

fire. The petitioner repudiated the claim, saying that there was violation of conditions of

the policy, because construction was going on in the premises. The complainant filed a

consumer complaint before the District Forum which was allowed by the said Forum

and compensation as stated in the foregoing paragraph was allowed. The District

Forum reached the conclusion that as per physical verification, there was stock worth

Rs.18,04,468/-, out of which stock worth Rs.4,73,287/- was lying safe in the

godown. After deducting this amount of Rs.4,73,287/-, the District Forum ordered to

pay Rs.13,31,181/- along with interest @ 9% p.a. and compensation as stated

above. An appeal against this order was also dismissed by the State Commission. It is

against this order that the present revision petition has been filed.


4. The learned counsel for the petitioner argued that the complainant had violated the

terms and conditions of the policy by carrying out construction activity on the

premises. He has drawn our attention to portion B of the warranties, forming part of the

policy, in which it is stated under condition 3(a) that if a change or alteration is made in

the building containing the insured property, so as to increase the risk or loss or

damage by insured perils, it shall constitute violation of the terms and conditions of the

Policy. The learned counsel further argued that in the present case, only the stocks and

furniture etc. had been insured and not the building containing such stocks. As made

out from the report of the surveyor, the cause of fire was short-circuiting due to

construction activity going on at the premises.

5. Learned counsel for respondent stated, however, that there was separate electric

connection for ground and first, floors. The construction activity had nothing to do with

the fire, in question. He further maintained that the complainant was not required to

obtain the permission of the petitioner/OP before starting the construction, and there

was no such clause in the terms and conditions of the Policy.

6. The facts of this case bring out that construction activity was being carried out at

the premises in question and as per the surveyor’s report, the probable cause of fire

could be due to short-circuiting, but we agree with the findings of the District Forum and

State Commission that in this case also, the insurance company cannot escape

responsibility to pay the claim under the Policy. We do not agree with the contention of

the petitioner that the construction activity had resulted in increased risk for the insured

stocks in question. It has also been made clear that there are separate electric

connections for the ground floor and first floor and there are separate electricity meters

for the same. It is not clear anywhere that the insured was required to obtain

permission of the insurance company before starting the construction. The District

Forum in their order have rightly assessed the value of the total stocks, in question and

the value of the stocks lying safe in the godown, and allowed the claim after taking into

consideration both these values. We, therefore, find no illegality or irregularity in the

orders passed by the District Forum and State Commission which reflect true

appreciation of the facts and circumstances on record. These orders are, therefore,

upheld and the present revision petition stands dismissed with no order as to costs.



MEMBERRS/


REVISION PETITION NO. 2667 OF 2013(From the order dated 12.10.2012 in Appeal No. 836/2011 of Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

WITHI.A. No. 4527/2013 (DELAY)

1. M/s. Hi-Tech Dry Wash & Hygienic Services, P.O. Box 57, Pathanamthitta P.O. Pin

– 689 645, Kerala Represented by its Power of Attorney Sri. Sharafudeen 2. Sri. Sharafudeen S/o Aboobacker, Shannovre House, Mele Vettipuram,

Pathanamthitta. Pin – 689645 Kerala... Petitioners

Versus

1. The Manager Kerala Financial Corporation Pathanamthitta Branch, College Road,

Pathanamthitta Pin – 689645 2. The Managing Director Kerala Financial Corporation Vellayambalam

Thiruvananthapuram… Respondent(s)

BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. N.M. Varghese, Advocate





passed by the Kerala State Consumer Disputes Redressal Commission

Thiruvananthapuram (hereinafter referred as ‘the State Commission’) in Appeal No.

836/2011, M/s. Hi-Tech Dry Wash & Hygienic Services & Ors. Vs. The Manager, Kerala

Financial Corporation, vide which while dismissing the appeal, order passed by the

District Consumer Disputes Redressal Commission Pathanamthitta in Complaint No.

109/2003 filed by the petitioners/complainants was upheld.

2. The brief facts of the case are that the complainants made an application to the

respondents for a loan of Rs. 15 lakhs for starting a dry wash unit for self-employment

purpose to earn their livelihood. The relevant documents and project report etc. were

also submitted to the respondents. It is claimed that there was verbal assurance from

the officers of the Opposite Parties/Respondents that the said loan will be

sanctioned. Based on that assurance, the complainants took further steps and invested

huge money for placing orders for machinery etc. However, the Opposite

Parties/Respondents rejected their loan application, stating that the proposal was

neither technically feasible nor financially viable. The complainants filed Consumer

Complaint against the Opposite Parties/Respondents against deficiency in service, but

the District Forum vide order passed on 28.05.2010, dismissed the complaint, saying

that the Opposite Parties had conducted studies and made inquiries about the

complainants’ Project, but they found that the said Project was not feasible. The District

Forum held that mere submission of a loan application does not qualify an applicant to

be a Consumer under the Consumer Protection Act, 1986 and they dismissed the

complaint. The appeal filed against this order before the State Commission was also

dismissed. It is against this order that the present petition has been filed.

3. Heard learned counsel for the petitioner and examined the record.

4. The learned counsel for the petitioner was asked to explain the delay of 140 days

in filing the said petition before the National Commission. The impugned order dated

12.10.2012 was received by the petitioner on 30.11.2012 but the petition was filed on

18.07.2013. The time taken for obtaining the certified copy has been stated to be 49

days, but even after deducting this time and allowing the prescribed period of 90 days

for filing the Revision Petition, there is a delay of 140 days. The learned counsel for the

petitioner has drawn our attention to the grounds mentioned in the application for

condonation of delay and stated that the main reason was that the petitioners were

unable to mobilize funds towards legal charges for taking steps to prefer the petition. It

took them about six months to arrange the funds and to instruct the counsel to file the

petition. The delay in filing the petition was not intentional. Moreover, petitioner no. 2

Sharafudeen was undergoing treatment for heart problem.

5. A careful consideration of the facts presented before us reveals that the petitioners

have not been able to give solid and convincing reasons for explaining the delay in filing

the present revision petition. It has been held by the Hon’ble Apex Court in a number of

cases, recently decided that unless, there is a cogent and convincing explanation for the

delay, the same should not be condoned. In this regard, it shall be worthwhile to

mention the following rulings given by the Hon’ble Apex Court on the issue:-

6. In the case R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has been observed:


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. Hon’ble Supreme Court after exhaustively considering the case law on the

aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd.

Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as

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

9. Hon’ble Apex Court in (2012) 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.10. 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”.

11. In view of the above discussion, we do not find that there is enough justification for

condoning the delay in filing this Revision Petition. This Revision Petition is, therefore,

ordered to be dismissed on the ground of delay in filing the same, with no order as to

costs.

..……………………………(K.S. CHAUDHARI J.)PRESIDING MEMBER

..……………………………(DR. B.C. GUPTA)

MEMBERPSM

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 2745 OF 2013

(Against the order dated 22.05.2013 in C.C. No. 22/2013of the State Commission Rajasthan, Jaipur)

HDFC Bank Ltd. Branch Office at Ashok Marg C-Scheme, Jaipur........ Petitioner

Vs.

Nilesh Bhala s/o Shri Gajanand Bhalla r/o plot no. D-51/A, Hathi Babu MargBanipark Jaipur At present Post Box Office. 264, Gallo Manor, Johanseburg-2052Gauteng 01263, South Africa

........ Respondent

BEFORE:



For the Petitioner : Mr.Satish Mishra, Advocate

PRONOUNCED ON : 08 th AUGUST, 2013

ORDER

PER HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the order of the State Consumer

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

case no. 22 / 03 whereby the State Commission condoned the delay in filing of the

complaint. The impugned order is reproduced thus:

“Heard on application for condonation of delay. Reason given in the application of condonation for delay seems sufficient. Therefore Delay is condone.

Matter admitted for hearing. Counsel for opposite party is present; there is no need to issue notice. File is put up for reply on 15.07.2013”.

2. Shri Satish Mishra, learned counsel for the petitioner has contended that the

impugned order of the State Commission is not sustainable for the reason it is a non

speaking order, bereft of any details and also because the order was passed in undue

haste without giving any opportunity of being heard to the petitioner. It is contended that

State Commission has committed a serious illegality by condoning the delay without any

sufficient cause.

3. We have considered the submissions on behalf of the petitioner and perused the

record. On perusal of the impugned order, we find that this order was passed by the

State Commission in presence of counsel for the complainant / respondent as also the

petitioner. The order records that arguments on application for condonation of delay

were heard. Therefore, it cannot be said that impugned order was passed without

hearing the parties. It is true that the order passed by the State Commission is cryptic

and bereft of details but the fact remains that the reason for delay in filing of complaint

was explained in the application for condonation of delay. Copy of the application

for condonation of delay is annexed to the revision petition, wherein the respondent /

complainant has explained that petitioner bank allowed illegal withdrawl of 11,70,520/-

from his NRI Account on 04.10.2010. It is alleged in the application that on coming to

know about the illegal withdrawl, the complainant pursued the matter with the officers of

the bank during the period w.e.f. 01.12.2010 to 04.12.2011.When the opposite party /

bank failed to give any relief to the complainant, the complainant filed a complaint with

the Bank’s Ombudsman, Reserve Bank of India, Jaipur on 23.03.2011. The Bank’s

Ombudsman passed an award in favour of the complainant on 07.09.2011. The

petitioner not being satisfied with the award, preferred an Appeal before the appellate

authority and the appeal was accepted on 19.03.2012 whereby the award was set aside

but the complainant was given right to agitate his grievance before the

competent redressal agency. Thereafter, the complainant / respondent filed this

complaint. From the aforesaid, it is obvious that complainant was all through vigilantly

pursing his remedy. Therefore, he cannot be faulted with any negligence or laxity. In

view of the above, we do not find any reason to interfere with the order of the State

Commission condoning the delay in exercise of revisional jurisdiction. Revision petition

is, therefore, dismissed with cost of Rs.20,000/- to be paid by the petitioner to the

respondent for the unnecessary delay caused.

………………………………. (AJIT BHARIHOKE, J)

( PRESIDING MEMBER)

……………………………… (SURESH CHANDRA) MEMBER

Am/


REVISION PETITION NO. 2915 OF 2008 (From the order dated 03.03.2008 in Appeal No.371 of 2007 of the State Consumer

Disputes Redressal Commission, Delhi)

Delhi Jal Board Through its Zonal Revenue Officer South West III Sector-7, New Delhi – 110022

… Petitioner/Opp. Party (OP)

VersusSh. O.P. Mehra, ACM (Retd.), R/o A-934, Vasant Vihar, New Delhi – 110057

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

For the Petitioner : NEMOFor the Respondent : Ms. Vinita Sasidharan, Advocate


O R D E R



03.03.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in

short, ‘the State Commission’) in Appeal No. 07/371 – Delhi Jal Board

Vs. Shri O.P. Mehra, ACM (Retd.) by which, while dismissing appeal, order of District

Forum allowing complaint was upheld.

2. Brief facts of the case are that OP/petitioner provided two water connections to

the complainant/respondent. Meters of both the connections were defective right from

the year 1999. It was further alleged that there was no water supply from one of the

connections; however, OP continued raising bills against both these connections on ad

hoc basis and complainant made payment under threat of disconnection. Inspite of

repeated complaints, OP did not redress grievances of the complainant. Meters were

replaced in April, 2004. 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 refund Rs.26,750/- paid

by the complainant on account of illegal bills and further directed to issue revised bills

on the basis of average consumption and further awarded Rs.25,000/- for mental agony

and physical harassment and Rs.5,000/- as cost of litigation. Petitioner filed appeal

before State Commission and during course of arguments, learned Counsel for the

petitioner restricted submissions to the extent of compensation granted by District

Forum and in such circumstances, findings of District Forum were affirmed on merits by

learned State Commission. Learned State Commission vide impugned order upheld

grant of compensation and cost against which, this revision petition has been filed.

3. None appeared for the petitioner even after service. Heard learned Counsel for

the respondent and perused record.

4. District Forum allowed refund of Rs.26,750/- to the complainant paid by him on

account of illegal bills raised by the OP and to this extent, appeal has not been pressed

and learned State Commission upheld this order on merits which aspect does not

require reconsideration in this revision petition and revision petition is to be decided only

to the extent of compensation awarded to the respondent.

5. District Forum awarded compensation and cost of litigation to the complainant;

though, no reasons have been given by District Forum while granting compensation

except to the extent that complainant is a senior citizen, but learned State Commission

while affirming order observed as under: “Compensation of Rs.25,000/- has not been granted for any monetary loss. It has been granted for mental and physical harassment suffered by the respondent due to deficiency in service committed by the appellant. The respondent is a senior citizen. His grievances started in the year 1999. He made complaints/representations and attended the meetings with the officials of the appellant, but grievances were not redressed and rather he was made to pay illegal bills under threat of disconnection. The defective water meters were ultimately replaced only in April, 2004. Thus, respondent suffered at the hands of the appellant for the long period of more than 4 years. The conduct of the appellant in dealing with the matter in hand cannot be termed less than callous. Such conduct on the part of a public authority can cause such mental tension and agony to a law-avoiding citizen, which cannot be measured in terms of money though same has to be quantified. In the

facts and circumstances of a given case, compensation is granted to a consumer not only to compensate him for mental agony etc. suffered by him due to deficiency in service committed by traders or service providers, but also to spur them to improve the service in future. The respondent is a retired Air Chief Marshal and a former Governor of two States. If he could not move the authorities in the Delhi Jal Board to get his grievances redressed for a long period, plight of an ordinary citizen can well be imagined”.

6. None has appeared for the petitioner to pursue this revision petition and revision

petition is liable to be dismissed.

7. We do not find any illegality, irregularity or jurisdiction error in granting

compensation to the respondent, who was retired Air Chief Marshal and former

Governor of two States.


as to costs. ..………………Sd/-……………


..…………Sd/-…………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 110 OF 2013 (From the order dated 23.11.2012 in Appeal No.1843 of 2009 of the Punjab State

Consumer Disputes Redressal Commission, Chandigarh)

Jaspreet Singh S/o Late Assa Singh R/o Shop-cum-office Navkaran Complex,SCF Urban Estate, Phase 1, Jalandhar New Address H. No. 31-D, New Colony, Near Aggarwal Daba, Cool Road, Jalandhar, Punjab

… Petitioner/ComplainantVersus

1. ICICI Home Finance Co. Ltd. 403, 3rd Floor, Delta Chamber, Opp. Bus Stand, Plot No. 35, Jalandhar Through its M.D./Manager/Auth. Signatory 2. ICICI Home Finance Co. Ltd. 31, Infotech Ltd. Maratha Mandhir Annesce, Mumbai Central, Mumbai – 400008


For the Petitioner : Mr. Atulesh Kumar, Advocate


O R D E R



order dated 23.11.2012 passed by the Punjab State Consumer

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

Appeal No. 1843 of 2009 – Jaspreet Singh Vs. ICICI Home Finance Co. Ltd. by which,

while dismissing appeal, order of District Forum dismissing complaint was upheld.

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

Forum and submitted that complainant was joint holder of 28 FDRs along with his wife

Smt. Lata Singh. These FDRs were matured on 29.9.2008. Complainant deposited

original FDRs on 1.9.2008 for release of maturity amount, but he came to know that

Rs.7.52 lakhs FDR amount has already been withdrawn before the date of maturity on

9.11.2006 without any consent or signatures of the petitioner on the basis of forged and

fabricated documents with the connivance of Smt. Lata Singh and officials of

OP/respondent. Alleging deficiency on the part of OP, complaint was filed. OP resisted

complaint and submitted that complainant has not come with clean hands and has

suppressed material facts. It was further submitted that Smt. Lata Singh has already

taken payment and for the purpose of taking double payment in connivance with

Smt.Lata Singh, the complainant has filed this complaint. Lata Singh has not been

impleaded as a party; hence, complaint be dismissed. Learned District Forum after

hearing both the parties, dismissed complaint against which, appeal filed by the

petitioner was dismissed by the learned State Commission vide impugned order against



4. Learned Counsel for the petitioner submitted that respondent has released

payment on the basis of duplicate FDRs obtained by forged signatures of the

complainant; hence, revision petition be admitted.

5. Perusal of record and copies of FDRs clearly reveals that 7 FDRs of the value of

3.50 lakhs were in the name of Smt. Lata Singh and complainant was nominee and 9

FDRs worth Rs.4.02 lakhs were in the name of Smt. Lata Singh jointly with

complainant. Smt. Lata Singh vide letter dated 29.8.2006 requested for change of her

residential address and for issuance of duplicate FDRs. Pre-mature payment was

withdrawn on submission of indemnity bond which were signed by Smt. Lata Singh and

complainant. Amount of FDRs was transferred in the account of

Smt. Lata Singh. Learned Counsel for the petitioner submitted that Smt Lata Singh

forged signatures of complainant and has taken pre-mature payment of the

FDRs. Apparently, this argument is devoid of force, as 7 FDRs were in the name of

Smt. Lata Singh and she was entitled to get pre-mature payment and as far as another

9 FDRs are concerned, they were also in the name of Lata Singh jointly with the

complainant and duplicate FDRs were issued only on submission of indemnity bond

signed by Smt. Lata Singh and complainant. Complainant has not proved by any cogent

evidence that signatures were forged by Smt. Lata Singh on the letter of request and

indemnity bond and in such circumstances; apparently, no deficiency can be imputed on

the part of respondents.

6. Perusal of record clearly reveals that complainant himself has not come with clean

hands. In the complaint, he has shown himself to be owner of 28 FDRs, whereas 7

FDRs were exclusively in the name of Smt. Lata Singh and 9 FDRs were in the name of

Smt. Lata Singh jointly with complainant. Another 7 FDRs were in the name of

complainant and Smt. Lata Singh was nominee and other 5 FDRs worth Rs.2.50 lakhs

were in the name of complainant jointly with Smt. Lata Singh. Complainant should have

clearly stated in the complaint about holders of the FDRs, but he has given wrong facts

in the complaint. Hon’bleApex Court in Faquir Chand Gulati Vs. M/s. Uppal Agencies P.

Ltd. & Anr. Special Leave Petition (C ) No. 18225-18226 of 2011 dated 14.08.2011

observed:“From what we have stated above, it is clear that the petitioner has not approached the Court with clean hands. Therefore, he is not entitled to be head on the merits of his grievance. Reference in this connection can usefully be made to the judgment of this Court inDalip Singh Vs. State of U.P. (2010) 2 SCC 114, the first two paragraphs of which are extracted below; “For many centuries Indian Society cherished two basic values of life i.e. “satya” (truth) and “Ahinsa” (non-violence) Mahavir,Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people use 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 overshadowed 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 suppressions of facts in the court proceedings. 2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed to 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 any relief, interim or final”.

7. No only this, Smt. Lata Singh was necessary party in the complaint and

complainant has purposely not impleaded Smt. Lata Singh as a party to the complaint

and without impleading Smt. Lata Singh as a party, who was necessary party, complaint

was not maintainable.

8. If signatures of the complainant were forged by Smt. Lata Singh on the letter of

request for issuance of duplicate FDR or on bonds submitted before respondent,

complainant should have approached to the civil court because in summary

proceedings, question of forging documents cannot be decided.

9. In the light of above discussion, we do not find any illegality, irregularity or





..…………Sd/-…………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 2561 OF 2012(From the order dated 11.04.2012 in Appeal No.A/10/885 of the Maharashtra State

Consumer Disputes Redressal Commission, Mumbai)

Jyoti Rajesh Shah W/o Rajesh Shah R/o 2, Ashirwad Apartment, 140 Railway Lines,Solapur – 413001 And Rajesh Nanji Shah S/o Nanji Shah R/o 2, Ashirwad, 140 Railway Lines, Solapur – 413001

… Petitioners/ComplainantsVersus

Integrated Enterprises (India) Ltd. A registered Indian Company Having its officeB-710, Sagar Park, Amrut Nagar, Ghatkopar (West), Mumbai – 400086

… Respondent/Opp. Party (OP) BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioners : Mr. Vijay Kr. Shah, Auth. Rep.For the Respondent : Mr. S. Sundaram, Advocate


O R D E R


This revision petition has been filed by the petitioners/complainants against the

order dated 11.04.2012 passed by the Maharashtra State Consumer Disputes

Redressal Commission, Mumbai (in short, ‘the State Commission’) in Appeal No.

A/10/885 – Jyoti Rajesh Shah & Anr. Vs. Integrated Enterprises (India) Lt d. by which,

while dismissing appeal, order of District Forum dismissing complaint was upheld.

2. Brief facts of the case are that complainants/petitioners opened a Demat account

with OP/Respondent. Complainants alleged that after introduction of computerized slips

in the year 2001, complainants were not provided new computerized slips for operating

a Demat account and alleging deficiency on the part of respondent, filed complaint

before District Forum. OP resisted complaint and submitted that computerized slips

were not handed over, as the signatures on his requisition letter did not match. Later on,

6 slips were sent by courier, but complainants’ door was found locked and slips could

not be delivered, hence, prayed for dismissal of complaint. After hearing both the

parties, District Forum dismissed complaint against which, appeal filed by the petitioner

was dismissed by leaned State Commission vide impugned order against which, this


3. Heard petitioners’ authorized representative and learned Counsel for the

Respondent and perused record.

4. On 11.7.2013, after hearing the parties to some extent, petitioners were directed

to supply self-attested copy of PAN Card to the respondent within a week and

respondent was directed to allow the petitioners to operate account within a week from

receipt of self-attested copy of PAN Card. On 1.8.2013, authorized representative of

the petitioners and learned Counsel for the respondents submitted that direction dated

11.7.2013 have been complied with by the parties. Authorized Representative of

petitioners further submitted that he has been allowed to operate his Demat account.

5. As grievances of the petitioners have been redressed by the respondent and

petitioners have been allowed to operate Demat account, nothing remains in the

revision petition and revision petition is to be dismissed as having become infructuous.

6. Consequently, revision petition filed by the petitioners is dismissed being

infructuous with no order as to costs.


..…………Sd/-…………………( DR. B.C. GUPTA )

MEMBERk


(From the order dated 13.03.2008 in Appeal No.668/2007 of the State Consumer Disputes Redressal Commission, U.T., Chandigarh)

Punjab Technical University Ladowali Road, Adjoining B.Ed. College Jalandhar,Punjab

… Petitioner/Opposite PartyVersus

1. Abhinav Aggarwal S/o Sh. Parveen Kumar Aggarwal House No. 207, Sector 7A, Chandigarh 2. Chitkara Institute of Engineering & Technology Village Jansala, Tehsil Rajpura Ditt. Patiala Through its Principal 3. Chitkara Institute of Engineering & Technology Saraswati Kendra SCO 160-161 Sector-9C, Chandigarh


For the Petitioner : NEMOFor the Respondent : NEMO


O R D E R


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

13.03.2008 passed by the Punjab State Consumer Disputes Redressal Commission,

UT, Chandigarh (in short, ‘the State Commission’) in Appeal No. 668/07

– Abhinav Aggarwal & Ors. Vs. Punjab Technical University by which, while allowing

appeal, additional refund of Rs.7,500/- was ordered while confirming order of District

Forum allowing complaint.

2. Brief facts of the case are that complainant/respondent No.1 took admission in the

name Institute of OP Nos. 2&3/Respondent Nos.2&3 and deposited fees. Later on,

complainant got admission in other University and requested for refund of fees. OPs

refused to refund fees. Alleging deficiency on the part of OP, complainant filed appeal

before District Forum. OPs resisted complaint. Later on, District Forum after hearing

both the parties allowed complaint against OP Nos. 2 & 3 and directed them to refund

Rs.39,534/- and further pay compensation of Rs.25,000/- and cost of Rs.2500/-, but

dismissed complaint against OP No.1. Complainant filed appeal before State

Commission and learned State Commission vide impugned order directed

OP-1/Petitioner to refund Rs.7,500/- to the complainant against which, this revision

petition has been filed.

3. None appeared for the parties even after service. Perused record.

4. Learned State Commission while allowing appeal of the complainant observed as

under: “Adverting to the merit of appeal: after perusal of pleadings of the parties, record of the case, impugned order and the grounds of appeal, we are of the considered opinion that contention of appellant has considerable merit that the District Forum failed to appreciate the clause given on annexure A-1 detailing the break-up of Rs.10,000/- charged towards counselling fee. Since it has been mentioned in A-1 reproduced in the grounds of appeal, that out of Rs.10,000/- deposited at the time of his counselling Rs.7,500/-, shall be credited towards the semester fee. The contention of appellant is further supported from annexure A-2 in which it is also stated that Rs.2500/- were towards the counselling fee. On the basis of the clause in the both A-a and A-2, it is proved that Rs.7,500/- are to be paid to the college or institute where the student seeks admission and the same amount would be given by the OP No. 1 to the institute where the admission is granted/sought by the student. Thus both these documents amply prove the case of appellant that he is entitled to refund of Rs.7500/- and the respondent No.1/OP No.1 P.T. Uwas entitled to retain Rs.2500/- on account of counselling fee etc.”

5. Learned State Commission rightly came to the conclusion that complainant is

entitled to get refund of Rs.7500/- from petitioner.

6. We do not find an illegality, irregularity or jurisdictional error in the impugned



to cost. ..………………Sd/-……………


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk



of Andhra Pradesh State Consumer Disputes Redressal Commission)

B. Shankar s/o B. Bhadru c/o B. Parasuram IInd Floor, H. No. 1-9-285/3A, Lalitha Nagar Ramnagar Gundu Hyderabad – 500044.

... Petitioner Versus 1. Union Bank of India Chikkadapally Branch, 1-8-563/2 Opp. Sandhya Theare,

Charminar X Roads, Chikkadapally Hyderabad – 20 Rep. by its Manager 2. M/s Tata AIG General Insurance Co. Ltd., Life Style Building, Begumpet

Secunderabad, Rep. by its Branch Manager, Srikakulam Town and District… Respondent(s)


(From the order dated 29.10.2009 in First Appeal No. 106/2007of Andhra Pradesh State Consumer Disputes Redressal Commission)

Union Bank of India Regional Office at New Delhi Shaheed Bhagat Singh Place New Delhi

... Petitioner

Versus 1. B. Shankar s/o B. Bhadru H. No. 1-2-375/1, Street No. 6,Nagaiah, Old Building Near Gagan Mahal Hospital Domalguda, Hyderabad 2. M/s Tata AIG General Insurance Co. Ltd., Life Style Building, Begumpet

Secunderabad… Respondent(s)

BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS RP No. 4621 of 2009For the Petitioner(s) NEMOFor the Respondent-1 Mr. Gautam Gupta, AdvocateFor the Respondent-2 Ms. Anjalli Bansall, Advocate

RP No. 2048 of 2010For the Petitioner(s) Mr. Gautam Gupta, AdvocateFor the Respondent-1 NEMOFor the Respondent-2 Ms. Anjalli Bansall, Advocate



These two revision petitions have been filed under section 21(b) of the Consumer

Protection Act, 1986, against the impugned order dated 29.10.2009 passed by the

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

Commission’) in FA No. 106/2007, “B. Shankar versus Union Bank of India & Anr.”, vide

which while allowing the appeal, order passed by the District Forum, Hyderabad in

consumer complaint no. 42/2006 dated 20.12.2006, dismissing the complaint, was set

aside.

2. Brief facts of the case are that the complainant, B. Shankar purchased a vehicle

Tata Indica for Rs.3,45,959.42/- by raising finance from OP No. 1, Union Bank of India

for the purpose of earning his livelihood. He spent a sum of Rs.23,062/- towards extra

fittings to the vehicle. The said vehicle was insured with OP No. 2, M/s. Tata AIG

General Insurance Co. It has been stated in the complaint that the complainant is

holder of savings bank account bearing no. 6148 with the OP No. 1, Union Bank of India

and he is regularly using this bank account and maintaining sufficient balance in the

same. The complainant issued cheque bearing number 282302 dated 16.6.2004 for

Rs.9,623/- drawn on OP No.1, Union Bank of India in favour of OP No. 2, Tata AIG

General Insurance Co., towards payment of insurance premium for the vehicle and he

also paid a cash amount of Rs.449/- to OP No. 2 in order to get the insurance policy of

the vehicle renewed for a period of one year from 16.6.2004. The complainant was

always under this impression that the insurance policy had been renewed with effect

from 16.6.2004. In the meanwhile, the vehicle, in question, was stolen on the mid-night

of 09.07.2004. The complainant lodged an FIR with the Police and also informed OP

No. 2 Insurance Company regarding the theft and requested for payment of insurance

claim. However, the said claim was rejected by OP No. 2 and they informed the

complainant that his cheque bearing number 282302 dated 16.06.2004 for Rs.9,623/-

had been dishonoured by OP No.1 and hence the insurance policy could not be

renewed. The complainant then contacted OP No. 1 bank, where it was found that

there was sufficient balance in the account of the complainant. The bank authorities

vide their letter dated 13.07.2004 sent to the OP No. 2 insurance company stated that

their counter clerk / officer had inadvertently returned the cheque issued by the

complainant by oversight on 18.06.2004 and there was sufficient balance in savings

account no. 6148 of the complainant. They also issued a banker’s cheque dated

13.07.2004 for Rs.9623/- in favour of OP No. 2 but the OP No. 2 rejected the said

request and also rejected the claim filed by the complainant as the vehicle had already

been stolen by that time. The complainant thereafter filed the consumer complaint in

question, seeking relief that the OP should be directed to pay Rs.4 lakh towards the

cost of the vehicle, Rs.1 lakh as compensation for mental agony and loss and a cost of

Rs.3,000/-. The District Forum dismissed the complaint and observed that the

complainant was at liberty to approach the civil court for appropriate relief. An appeal

filed against this order by the complainant was allowed as per the impugned order and

the OPs were directed to pay a sum of Rs.1,50,000/- towards compensation and a cost

of Rs.5,000/- to the complainant within four weeks, failing which the said amount shall

attract interest @ 9% p.a. It was observed by the State Commission that although the

value of the vehicle was

Rs.4 lakh, they were allowing only Rs.1.5 lakh as vehicle had already run for a period of

6 years. Against this impugned order, the complainant has filed Revision Petition No.

4621/2009 for enhancement of the compensation and Union Bank of India has filed

Revision Petition No. 2048/2010 challenging the said order.

7. The petitioner, B. Shankar, last appeared before this Commission on 21.02.2013,

during hearing before circuit bench at Hyderabad and submitted that he is a poor

person and he could not come to Delhi to argue his case. He filed his written

arguments which were taken on record as requested by him and his presence was

exempted for subsequent hearings. In his written arguments the complainant, B.

Shankar, has stated that he had purchased the said vehicle on 13.02.2003, but

inadvertently, the date of purchase was mentioned as 1.08.1998 instead of 13.2.2003;

hence the vehicle was only 16 months old, when it was stolen on 09.07.2004. The

petitioner has attached copies of the invoice and the registration certificate of the

vehicle in support of his contention that the vehicle was purchased on

13.2.2003. These documents are also attached with the RP No. 2048/2010 filed by the

Union Bank of India. Further, the petitioner has stated that after the payment of cheque

of Rs.9,623/- drawn on OP No. 1 Bank, in favour of OP No.2 insurance company and

after paying Rs.449/- in cash to the insurance company, he was under the impression

that the insurance policy had been renewed for a period of one year with effect from

16.6.2004. He further states that when he went to the office of OP No. 2 for informing

them about the theft of the vehicle and requesting for the insurance claim, he was

astonished to hear from OP No.2 that cheque, in question had not been honoured by

the Bank and the insurance policy had not been renewed. Thereafter, he went to the

bank to enquire into the matter. The bank issued letter dated 13.07.2004 saying that

the cheque was returned inadvertently on 18.06.2004, although there was sufficient

balance in the savings account of the petitioner. The Bank itself issued a banker’s

cheque of Rs.9,623/- and requested the insurance company to renew the policy, but

they refused to do so. The Petitioner, B. Shankar, requested in his written arguments

that the OP should be asked to pay him a sum of Rs.4 lakh along with interest @12%

from the date of purchase of vehicle and compensation of Rs.1 lakh and cost of

Rs.3,000/-.

8. At the time of arguments before us, the learned counsel for the petitioner Union

Bank of India, stated categorically that the cheque, in question, was never produced

before the Bank. He also stated that the letter dated 13.07.2004 purported to have

been issued by the Bank is a false and forged document and such a document was

never issued by the Bank.

9. Learned counsel for the insurance company stated that they never received the

premium, in question, and hence the policy was not renewed by them. The cheque

presented by them to the Bank was dishonoured. The amount of Rs.449/- paid in cash

by the complainant B. Shankar was returned to him after the cheque was

dishonoured. A registered letter was sent by the insurance company on 30.06.2004

about the cancellation of the policy with effect from 16.6.2004. The complainant was

advised to make fresh remittance of premium in cash, so that the policy could be

renewed. Learned counsel, however, stated that at this juncture, they could not

produce the said dishonoured cheque before this Commission.



11. The main point involved in the present case is that the insurance policy for the

vehicle in question was valid up to 16.6.2004 and it was not renewed thereafter,

because the insurance company was not able to get the premium for renewal of the

same. It is the case of the complainant as well as the insurance company that cheque

number 282302 dated 16.6.2004 for Rs.9,623/- was issued by him and was presented

before OP No. 1 by the OP No.2 but the same was not honoured and returned to the

insurance company. The Bank admitted vide letter dated 13.07.2004 that said cheque

was dishonoured inadvertently, due to the mistake of their counter clerk. They also

enclosed a banker’s cheque dated 13.07.2004 for Rs.9,623/- in favour of the OP No.2 to

renew the insurance policy. During the course of the arguments, learned counsel for

the Bank stated that the said cheque was never presented before the Bank and the

letter dated 13.07.2004 was a forged document. However, a perusal of revision petition

no. 2048/2010 filed by the bank itself reveals that such a plea has not been taken by the

Union Bank of India in the grounds of revision petition. Ground ‘C’ in the revision

petition is reproduced as under:-“For that the Ld. State Commission has grossly erred in placing undue weight to the Ex.9 and observe that because of the dishonour of the cheque the insurance policy was cancelled and thereby the complainant could not obtain the insurance claim. That it is material to mention here that even if the subject cheque could have cleared and policy had been in existence, the complainant could not have obtained the insurance claim for his vehicle run for commercial purpose under the policy issued for private vehicle. Because on account of having put the subject vehicle to commercial use there has been apparent breach of the policy terms as appearing on the subject policy to the effect that – “no claim would be admissible if the insured vehicle is used for hire or reward.”

12. It is quite clear from the above that the Bank, in their own revision

petition, have not stated anywhere that the letter dated 13.07.2004 was a forged

document. They have also not denied that they issued a banker’s cheque for the

amount of Rs.9,623/- to the insurance company and requested them to renew the

insurance policy.

13. It may be observed here that the complainant filed a complaint before the Banking

Ombudsman also on 12.08.2004. In proceedings before the Banking Ombudsman, the

Union Bank of India filed reply to the complaint vide their letter dated 20.09.2004, in

which they clearly admitted that, “due to inadvertent error on the part of the official, the

said cheque was returned unpaid on 18.06.2004 despite availability of balance in the

account” The Bank also admitted that they issued a pay order of equal amount on

13.07.2004 to rectify the error. It is clear, therefore, that the Bank should not have

stated the facts wrongly in proceedings before this Commission and their act amounts

to a sheer misconduct on their part. The letter dated 13.07.2004 has been issued on

the letter-head of the Bank, there is a seal of the Bank on the said letter and also it is

signed by Deputy Manager, Chikkadapally, Hyderabad Branch of the Bank.

14. It is clear from the above facts that due to fault of the Bank in dishonouring the

cheque for premium amount, the insurance policy could not be renewed. The consumer

cannot be allowed to suffer because of the wrong-doing of the Bank. Had the Bank not

dishonoured the cheque, the policy would have been renewed and there would have

been no controversy regarding the payment of the claim.

15. It may also be mentioned here that as per the version of the complainant that after

sending cheque for insurance premium and depositing a sum of Rs.449/- in cash with

the Insurance Company, he was under this impression that the policy had been

renewed. However, when the vehicle was stolen, the complainant went to the police

station to lodge an FIR and then went to the office of the Insurancecompany requesting

for payment of insurance claim. However, he learnt from Insurance Company that the

cheque, in question, had not been honoured by the Bank and as such the policy had not

been renewed. It cannot be stated, therefore, that the complainant had the opportunity

to pay the premium amount again and get a new insurance policy. However, in the

reply filed by the Insurance Company before the District Forum, it has been stated that

after knowing the report of unpaid cheque by the Bank they informed the complainant

by registered letter dated 30.06.2004 about the dishonour of the cheque and the

cancellation of insurance policy. The Insurance Company have also taken the plea that

the complainant was well-aware about the dishonour of the cheque not only by his

banker but also from the insurance company much prior to the alleged theft of the

vehicle but he contended, suppressing all these facts, that he was astonished to know

from the Insurance Company about dishonour of cheque when he made insurance

claim for payment of sum assured. From the facts on record, it is made out that

although there is no documentary evidence to show as to when the complainant

received the letter dated 30.06.2004 from the Insurance Company yet it can be stated

that after depositing the cheque dated 16.6.2004 with the Insurance Company the

complainant did not bother to know about the issuing of insurance policy after getting

money from the Bank. The complainant is, therefore, guilty of showing negligence in

the matter if he slept over the issue till the theft of the vehicle took place.

16. It is further borne out from record that after receiving the cheque of Rs.9,623/-, the

Insurance Company did issue policy in favour of the complainant which was valid for a

period of one year till 15.06.2005 but the said policy was cancelled by the Company

after the cheque was dishonoured by the Bank. In the said insurance policy the total

Insured Declared Value (IDV) of the vehicle has been shown to be Rs.2,62,000/-. The

complainant in his complaint and further in written submissions has stated that since the

vehicle was purchased for a sum of Rs.3,45,959.40 and it was only 16 months old,

when it was stolen. The complainant has demanded a sum of Rs.4 lakh as

compensation for the value of the vehicle. However, from the IDV mentioned in the

Policy issued by the insurance company, it can be safely presumed that the

complainant is not entitled to get more than Rs.2,62,000/- for loss of the vehicle.

However, looking at the negligence shown by the complainant in not pursuing this case

after submitting cheque for the premium amount he needs to be penalised also to some

extent. It is felt, therefore, that a sum of Rs.1,50,000/- as already allowed by the State

Commission seems to be a reasonable amount for awarding compensation to the

complainant for loss of the vehicle.

17. In the facts and circumstances of the case, Revision Petition No. 2048/2010, filed

by the Union Bank of India, is ordered to be dismissed. Revision Petition No.

4621/2009 filed by the complainant, i.e., B. Shankar, is also dismissed. There shall be

no order as to costs.Sd/-



MEMBERRS/


REVISION PETITION NO. 3479 OF 2011 (From order dated 25.07.2011 in First Appeal No.1001 of 2011 of State Consumer

Disputes Redressal Commission, Haryana)

1. The Manager, Mapsko Builders Pvt. Ltd., 52, North Avenu Road, Punjabi Bagh West, New Delhi-26.

2. The Site Manager/Sale Executive, Mapsko Builders Pvt. Ltd. Mapsko City Homes, Sector-27, Sonepat through Sh. Gagan Chawla.

...…Petitioners

Versus

Mrs. Sunil Dahiya W/o Anup Singh Dahiya, R/o H. No. 3239, Sector-15, Sonepat, Haryana

.... Respondent

BEFORE:



For the Petitioners : Mr. Himanshu Gupta, Advocate

For the Respondent : Mr. Ashim Shridhar, Advocate


ORDER


Aggrieved by impugned order dated 25.07.2011 passed by State Consumer

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

Commission’),petitioners have filed the present revision petition.

2. Brief facts of this case are that respondent/ complainant had booked a residential

independent ground floor in Mapsko City Home project of the petitioners located at

Sector-27,Sonepat and had paid a sum of Rs.1,50,000/-on 2.2.2010 vide receipt

no.4689 and further a sum of Rs.1,50,000/- on 3.4.2010 vide receipt no.5162. Despite

the above said part payment of her residential, neither the petitioners have allotted the

residential independent ground floor nor they have started construction of the unit in

question. Being harassed at the hands of the petitioners, respondent has filed a

complaint before the District Forum.

3. The plea of the petitioners was that respondent has failed to make the payments of

the house as per the provisional allotment letter dated 30.1.2010. Hence, taking into

account the act and conduct of the respondent in not paying the scheduled amount of

the house, provisional allotment letter was cancelled and earnest money of the

respondent was forfeited.

4. District Consumer Disputes Redressal Forum, Sonepat (for short, ‘District Forum’),

vide order dated 28.6.2011 allowed the complaint of respondent.

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

State Commission which was dismissed in limini alongwith cost of Rs.10,000/-.

6. Now, petitioners have filed the present petition.

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

8. It has been contended by learned counsel for the petitioners that as per agreed

terms and conditions contained in the application for registration of provisional allotment

dated 30.1.2010, the respondent was liable to pay Rs.30% of the basic sale price +

50% of EDC and IDC within 90 days of booking/at the time of allotment. This amount

comes to Rs.5,26,512/-. However, the respondent has paid only Rs.3 lacs till date and

has not paid the remaining amount at the relevant stage of payment when the same

became due. Thus, it is in these circumstances, when the respondent herself has

defaulted in making the due and agreed payments in time, that she has not been

allotted the residential unit in question. The mere taking of the booking amount as well

as additional instalment of the house does not entitle the respondent to the allotment of

the residential unit, when there is failure on her part to make the 3 rd payment of 10% of

BSP + 50% of the EDC & IDC, whereafter only she would have been allotted the

residential unit. Since, respondent herself has not deposited 30% of the initial amount,

petitioners cancelled the allotment of the respondent vide letter dated 17.12.2010. Both

the Fora below have failed to notice these aspects and as such impugned order passed

by the State Commission is liable to be set aside.

9. On the other hand, it has been contended by learned counsel for the respondent

that as per concurrent findings of the Fora below, no construction of the project has

been started by the petitioners within the specified period, as such there is no infirmity

in the impugned order passed by the State Commission.

10. District Forum while allowing the complaint in its order has held;

“In the written statement and affidavit, the respondent no.2 has admitted that the complainant remitted payment of Rs.1,50,000/- each in favour of the respondents. It was further agreed that the basic sale price of the house is Rs.15,35,040/-.Further in para no.4, page 3, the respondent no.2 has submitted that at present

Rs.2,80,789/- is outstanding. Meaning thereby, the complainant has been making the payment of installments regularly, but despite that as per the respondent no.2, finding no other way, the respondents on 17.12.2010 has sent a letter for cancellation of provisional letter of allotment and forfeiture of earnest money. In our view, the action taken by the respondents against the complainant is totally wrong, illegal, arbitrary, unjustified and against the principles of law.

The respondent no. 2 in the entire written statement and affidavit has not uttered even a single word about the construction activities and about the development at the site. In our view, when there is no construction activities at the site or there is no development at the site, the respondents have no right to foist their wrong upon the complainant. In our view, definitely the complainant is entitled to get interest from the respondents on her deposited amount which the respondents are utilizing without providing her any facilities or services. Accordingly, it is directed to the respondents to pay interest at the rate of 09% per annum on the amount deposited by the complainant with the respondents from the date of its deposit till the possession of the floor is handed over to the complainant.

Further, in our view, the respondents wrongly and illegally issued the letter dated 17.12.2010 to the complainant and the respondents are directed to withdraw the same. In our view, the complainant has been able to prove the deficiency in the service of the respondents and the respondents are directed to allot the residential independent ground floor in Mapsko City Home in Block ME 73 to 81 and 62 to 70 in East to the complainant. It is also directed to the respondents to accept the instalments without any interest, penalty or surcharge form the complainant i.e after start of the construction activities. It is also directed to the respondents to inform the complainant about the delivery of the possession of residential independent ground floor so that she could arrange the money for its deposit with the respondents. Since, the complainant has been able to prove the deficiency in service on the part of the respondents, the respondents are directed to compensate the complainant to the tune of Rs.10,000/-(Rupees Ten Thousand) for rendering deficient services, for unnecessary harassment and Rs.5,000/-(Rupees Five Thousand) under the head of litigation expenses. The present complaint stands allowed and the respondents are directed to make the compliance of this order within one month from the date of pronouncement of this order”.

11. The State Commission while affirming the decision of the District Forum, in its

impugned order observed;

“On our asking, it is not disputed by the learned counsel for the appellant that despite of taking the booking amount as well as additional

insatllment of the house, complainant has not been allotted the residential unit in question. It is further not disputed that no construction of the alleged project has been started by the appellant till date. The plea of the appellant that 30% payment has not been made by the complainant, therefore, construction work of the flat in question could not be started, is not a ground to forfeit the earnest money of the complainant. It is not disputed that builders always project their case favouring them instead of ever bothered for the interest of allottees. The builder used the hard earned money of the investors and thereafter acted in an arbitrary manner, so as to build up pressure upon the complainant to part with their hard earned money without performing their part of contract by raising construction of the flats. We are, therefore, of the view that there is great deficiency on the part of the appellants/ opposite parties in not raising the construction, rather impressing upon the complainant to pay the instalments in time without carrying the construction work of the flat in question. We, therefore, dismiss this appeal with the costs of Rs.10,000/- in limini.

However, complainant would be entitled to adjust this amount of cost, while making the balance payment of his house to the appellants”.

12. Petitioners have placed on record ‘Instalment Payment Plan’ showing as to what stage what instalment amount has to be paid by the respondent. However, Instalment Payment Plan is absolutely silent as to by which date the possession of the flat will be handed over to the respondent.

13. Petitioners have not placed on record the agreement executed between the

parties. However, it has placed on record copy of “Floor Buyer’s Agreement”(page 56

to 65 of the paper book) of some other purchaser. As per clause 14-a of the “Floor

Buyer’s Agreement”;

“Promoter shall endeavour to complete the construction of the said Floor within a period of 18 months from the date of signing of this Agreement with the Buyer or within an extended period of six months, subject to force majeure conditions as mentioned in Clause (b) hereunder or subject to any other reasons beyond the control of the Promoter”.

14. There is nothing on record to show as to what was the status of the construction

when respondent has filed the complaint before the District Forum.

15. Both the Fora below have given a categorical finding that “No construction has

started yet”.

16. State Commission, vide impugned order dated 25.7.2011 in this regard has

observed

“It is further not disputed that no construction of the alleged project has been started by the appellant till date”.

17. Petitioners in this case having accepted substantial amount of money from the

respondent in February/ April,2010 but had not started any construction till

25.7.2011(date of decision of the State Commission). This conduct of the petitioners

on the face of it amounts to unfair trade practice.

18. In Lalit Kumar Gupta & Ors. Vs. DLF Universal Ltd.(First Appeal No.88 of 1999

and 345 of 2001) decided on 6.5.2002,this Commission has laid down;

“That there has been a delay in delivery in handing over the possession of the Town House which is a deficiency in service within the definition of this word as per CPA, 1986”.

19. Present revision petition has been filed under Section 21(b) of the Consumer

Protection Act, 1986. It is well settled that the powers of this Commission as a

Revisional Court are very limited and have to be exercised only, if there is some prima

facie jurisdictional error in the impugned order.

20. Hon’ble Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli

Bikshalu and others,(AIR 1999 (SC) 3095) has observed;

“It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below”.

21. Hon’ble Supreme Court, in Rubi (Chandra) Dutta vs. United India Insurance Co.

2011 (3) Scale 654 observed that;

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different(and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case

where such a view could have been taken, by setting aside the concurrent finding of two fora”.

22. Petitioners/builder in the present case “wants to have the cake and eat it too”, as

admittedly it has received substantial amount of money of the flat. Thus, petitioners

being the builders are enjoying the substantial amount of money of the flat paid by the

respondent. On the other hand, respondent after having paid substantial amount of

money of the flat to the petitioners is still without any roof and also does not know as to

when she will get the same.


in the exercise of power under section 21 (b) of the Act, since, State Commission

has given cogent reasons in its order, which does not call for any interference nor it

suffer from any infirmity or revisional exercise of jurisdiction.

24. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;

“Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system”.

25. It is well settled that no leniency should be shown to such type of litigants who in

order to cover up their own fault and negligence, goes on filing meritless petitions in

different foras. Equity demands that such unscrupulous litigants whose only aim and

object is to deprive the opposite party of the fruits of the decree must be dealt with

heavy hands. Unscrupulous builders like petitioners should not be spared who after

taking substantial cost of the flat do not perform their part of obligations. A strong

message is required to be sent to such type of builders that this Commission is not

helpless in these type of matters.

26. Now question arises for consideration is as to what should be the quantum of costs

which should be imposed upon the petitioner for dragging the respondent upto this fora.

It is not that every order passed by the judicial fora is to be challenged by the litigants

even if the same are based on sound reasonings.

27. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors, Civil

Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ; “45. We are clearly of the view that unless we ensure that wrong –doers

are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases”.

Apex Court Further observed;

“It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.

49. It is a typical example how a litigation proceeds and continues and

in the end there is a profit for the wrongdoers.

50. Learned Amicus articulated common man’s general impression about litigation in following words:

“Make any false averment, conceal any fact, raise any plea,

produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road”.

28. In our opinion, the present petition is nothing but a gross abuse of process of law and the revision petition is totally meritless and frivolous, which is required to be dismissed with punitive cost. Accordingly, we dismiss the present petition with punitive cost of Rs.75,000/-(Rupees Seventy Five Thousand only).

29. Out of the cost imposed upon the petitioners, Rs. 50,000/-(Rupees Fifty

Thousand only) be paid to the respondent by way of demand draft in her

name. Remaining cost of Rs.25,000/-(Rupees Twenty Five Thousand only) be

deposited by way of demand draft in the name of “Consumer Legal Aid Account” of

this Commission, within one month from today.

30. In case, petitioners fail to deposit the aforesaid costs within the prescribed period,

then it shall also be liable to pay interest @ 9% p.a., till realization.

31. Cost awarded to the respondent shall be paid only after expiry of the period of

appeal or revision preferred, if any.32. List on 13th September,2013 for compliance.

.....…………………………J

(V.B. GUPTA)

(PRESIDING MEMBER)

…………………………

(REKHA GUPTA)

MEMBER

SSB


REVISION PETITION NO. 2294 OF 2013 Alongwith ( I.A.for C/Delay and Stay )

(From order dated 01.04.2013 in First Appeal No.117 of 2011of State Consumer Disputes Redressal Commission, Delhi)

Ansal Housing and Construction Ltd. IS, UGF, Indraprakash Building, 21, Barakhamba Road, New Delhi-110001.

.... Petitioner

Versus

Rajendra Prasad Gupta, R/o 46, Amrit Nagar, South Extension Part-I, New Delhi.

...…Respondent

BEFORE:



For the Petitioner : Mr.Aaditya Vijay Kumar, Advocate


ORDER


Petitioner/O.P. aggrieved by order dated 1.4.2013 of the State Commission, Delhi

(for short, ‘State Commission’) has filed the present revision petition under Section 21 of

the Consumer Protection Act, 1986(for short, ‘Act’).

2. At the outset, it may be pointed out that petitioner for the reasons best known to it,

has not placed on record copy of the complaint filed by the respondent/complainant

before District Forum. On this short ground, present revision is liable to be

dismissed. In Special Leave to Appeal (Civil) No. 22967of 2012,Ganpathi

Parmeshwar Kashi and Anr. Vs. Bank of India & Anr, decided by Hon’ble Supreme

Court on 14.1.2013, the court observed;

“i) the petitioners have deliberately omitted to place before the Court, copies of the complaint filed by them and the written statement filed by respondent No. 1. This has been done with a view to avoid scrutiny by the Court of the averments contained in the complaint”.

3. Be that as it may, as apparent from the record, respondent had filed Complaint

No.1106 of 2011, before District Forum-VI, I.P. Estate, New Delhi (for short, ‘District

Forum’).Since, petitioner did not appear before the District Forum despite service of the

notice on 23.5.2012, District Forum passed the following order;

“23.05.12:Mr.Ankit Sinha, Counsel for complainant. Notice already served on OP. OP Called several times. OP proceeded ex-parte. Fix up for ex-parte evidence on 28.8.2012”.

4. Against order dated 23.5.2012, petitioner filed (First Appeal No.117of 2013) before

the State Commission. Alongwith it, an application seeking condonation of delay of 221

days was also filed.

5. State Commission, vide impugned order rejected the application for condonation of

delay and dismissed the appeal being time barred.

6. Thus, aggrieved by the impugned order, petitioner has filed this revision.

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 no valid and

effective notice has been served upon the petitioner. Notice for hearing for 19.3.2012

was received by the petitioner on 22.3.2012 which cannot be said to be valid and

effective service. Since, no notice has been received from the District Forum, thus there

were sufficient grounds for setting aside the ex-parte order passed by the District Forum.

The application for condonation of delay was filed before the State Commission as a

matter of abundant caution, as the ex-parte order came to be known only on 22.1.2013.

9. Main grounds on which condonation of delay was sought before the State

Commission read as under;

“3. That the appellant had no notice of the pendency of the present matter and that an order to proceed ex-parte against it had been made on 23.05.2012 and the knowledge of the pendency of the said matter was obtained by the appellant company only on 22.01.2013.

4. That on 22.01.2013, when a clerk of the appellant company who was newly assigned in 2013 to look after the matters of the appellant company in Learned District Consumer Disputes Redressal(New Delhi) ITO, New Delhi-01 was noting the dates of various matters of the appellant company before the Hon’ble District Forum, from the court diary, he noticed that against the date of 30.01.2013 the present matter against the appellant is listed for final arguments. The same was accordingly communicated to the concerned officer of the legal department of the appellant company and inquiries made as to how the

matter could have skipped the notice of the officers assigned for handling consumer cases in the said District Forum. It was then that the clerk who was handing the matters in District Forum till November, 2012 which he saw in the notice board when he went to the court premises and orally stated to the Hon’ble District Forum that the appellant did not know of the pendency of the said matter and will file an application which oral prayer was not allowed. The said clerk left for his native place on the very same day due to some family problems and returned after a week and since he was assigned in another department of the appellant company in December, 2012 he forgot to bring the said event to the notice of the concerned officers of the appellant company earlier and the present appeal therefore could not be filed earlier.

5. That this being the situation an application for inspection of the file of the present matter was urgently made on 24.1.2013 and which inspection was allowed to be carried on 28.01.2013 since 25.01.2013 to 27.01.2013 were holidays. It was found that the present matter was indeed listed for final arguments on 30.1.2013 after an ex parte order against the appellant was passed on 23.05.2012 and pleadings and evidence complete in the matter. It was further found that the matter was listed on 19.03.2012 although the same was not shown in the cause list in the website of the Hon’ble District Forum on the said date.

6. That in this view of the matter is it humbly submitted that the appellant became aware of the pendency of the present proceedings only on 22.1.2013 and filed the present appeal immediately after inspection of the court file which was done on 28.01.2013. In this view of the matter the delay in filing the present appeal may kindly be condoned in the interest of justice”.

10. In the application for condonation of delay, petitioner itself admits that knowledge of

the pendency of the matter before the District Forum was obtained by the petitioner on

22.1.2013. In the same breath, petitioner in the application for condonation of delay has

taken an altogether different stand stating that;

“Clerk who was handling the matters in the District Forum till November, 2012 has stated that he saw the matter listed in the cause list on 30.11.2012”.

11. It is further the case of petitioner that said Clerk left for his native place on the same

very day and returned back after a week and since that clerk was assigned in other

department of the petitioner-company, he forgot to bring the said event to the notice of

the concerned officers of the petitioner-company earlier and the appeal, therefore, could

not be filed earlier.

12. Another version with regard to the service of notice from the District Forum has

been mentioned by the petitioner in the “List of Dates and Events”(page no.1 of the

paper-book) and the same state as under;

“The petitioner receives the notice returnable on 19.03.2012, three days later i.e. on 22.3.2012”.

13. Thus, as per petitioner’s own case, petitioner’s clerk was aware about the

pendency of the matter before the District Forum for 19.3.2012 and later on for

30.11.2012.

14. However, in the entire application for condonation of delay, name of that clerk has

not been mentioned nor affidavit of that so called clerk has been filed.

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

“9 In the case in hand the ground is that the work was assigned to the officers of the company, who skipped. Obviously,there is a sheer negligence and carelessness on the part of the company in dealing the cases. Suffice to say, that the appellant is a company registered under the Indian Companies Act, 1956 and has large number of employees in the Law Department to deal with the legal cases. Further, it is having full-fledged legal department under its command comprising large number of legal personal. Inspite of having all the resources in its command, if a company registered under the Indian Companies act takes more than seven months in filing the appeal, then it can only be said that how inefficient, careless and negligent are the employees of the appellant. Despite having all the facilities and infrastructure under it,the appellant officials have acted in a very careless and negligent manner for the purpose of filing this appeal. We may further mention that the order sheet dated 23.5.2012 of the aforesaid case of the District Forum that a specific and categorical finding has been made by the District Forum that notice has already been served on the appellant, and despite several times none appeared. This very apparently shows the callous and lethargic act of the appellant. Under these circumstances,the application for condonation of delay is hereby rejected. In consequence, the appeal filed by the appellant dismissed as being barred by time thereof”.

16. Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development

Authority, IV (2011)CPJ 63 (SC) has observed ;

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

17. This Commission in Mahindra Holidays & Resorts India Ltd. vs. Vasantkumar H.

Khandelwal and Anr, Revision Petition No.1848 of 2012 decided on 21.5.2012 has

held;

“that under the Consumer Protection Act, 1986 the District Forum is supposed to decide the complaint within a period of 90 days from the date of filing and in case of some expert evidence is required to be led then within 150 days. The said Bench dismissed the revision petition on the ground that it was delayed by 104 days”.

18. It is well settled that Qui facit per alium facit per se, Negligence of a litigant’s agent

is negligence of the litigant himself and is not sufficient cause for condoning the delay.

See M/s. Chawala & Co. vs. Felicity Rodrigues, 1971 ACK 92.

19. There is nothing on record to show that petitioner’s Company is being represented

by illiterate persons. Therefore, it was expected from petitioner to have been vigilant and

careful in pursuing the litigation which was pending before the fora below. Thus, gross

negligence, deliberate inaction and lack of bonafide is imputable to the petitioner. In

order to cover up its own negligence, the petitioner has shifted the entire burden upon a

clerk, which cannot be justifiable under any circumstances.

20. Thus, in our view, the discretion exercised by the State Commission in declining the

petitioner’s prayer for condonation of long delay of 221 days, does not suffer from any

legal infirmity and the possibility of this Commission forming a different opinion in the

matter of condonation of delay cannot justify interference with the impugned order under

Section 21(b) of the Act.

21. The present revision petition having no merit and being without any legal basis, has

been filed just to delay the disposal of the complaint filed by the respondent. Under

these circumstances, the present revision is required to be dismissed with punitive cost.

Accordingly, we dismiss the present revision petition in limine with cost of Rs.30,000/-

(Rupees Thirty Thousand Only).

22. Out of this cost, Rs.20,000/-(Rupees Twenty Thousand Only) shall be paid to the

respondent. Petitioner is directed to deposit the cost of Rs.20,000/- by way of demand

draft in the name of respondent and balance amount of Rs.10,000/-(Rupees Ten

Thousand Only) by way of demand draft in the name of ‘Consumer Legal Aid Account’

of this Commission. Aforesaid costs be deposited within four weeks. In case, petitioner

fails to deposit the aforesaid costs within the specified period, then it shall also be liable

to pay interest @ 9% p.a. till realization.

23. Cost awarded in favour of the respondent shall be paid to him only after expiry of

period of appeal or revision preferred, if any.

24. Pending application, if any, stand disposed of.

25. List on 13.09.2013 for compliance.

…..…………………………J

(V.B. GUPTA)

PRESIDING MEMBER

…..…………………………

(REKHA GUPTA)

MEMBER

SSB



of U.P. State Consumer Disputes Redressal Commission) Devender Kumar Verma s/o Bhaiya Lal Verma r/o 22, Mohalla Gandhi Nagar Kasba Orai District Jalaon

... Petitioner

Versus The Oriental Insurance Co. Ltd. Through Branch Manager The Oriental Insurance Co. Ltd. Branch Raj Marg Oral, Pargna OraiDistt. Jalaon

… Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. Abhishek Sharma, Advocate





passed by the Uttar Pradesh State Consumer Disputes Redressal Commission (for

short ‘the State Commission’) in FA

No. 386/2010, “Devender Kumar Verma versus Oriental Insurance Co. Ltd.,” by which,

while dismissing appeal, order dated 15.12.2009 passed by the District Consumer

Disputes Redressal Forum, Jalaon, dismissing the complaint no. 146/2007 , was

upheld.

2. Brief facts of the case are that the complainant Devender Kumar Verma bought a

Mahindra Jeep 2 WD for Rs.3,60,000/- on 07.01.1998 and got it insured with the OP

Oriental Insurance Co. by paying annual premium of Rs.11,264/-, bearing insurance

policy no. 1998-1008 dated 08.01.98 and cover note number 484981. On 16.11.1998,

at about 8 p.m., four unknown persons are stated to have looted the said jeep,

intimation of which was given to the Police and case crime No. nil / 98 u/s 328/394 IPC

was got registered at P.S. Kotwali Orai and after investigation, final report was filed in

the court of Sub-Judge Urai, bearing criminal case no. 41/2001 and the court accepted

the said report on 07.02.2001. It has been stated in the complaint that after the

acceptance of final report by the Court, the complainant submitted application to the

respondent on 09.02.2001 and the insurance claim was duly filed along with relevant

documents. However, the said claim was repudiated by the Insurance Company on

28.03.2000 saying that the complainant did not complete the necessary formalities

required. It was also stated that the complainant had sold out the said jeep or had

misappropriated the same, so that the insurance company may not get any investigation

done. The complainant filed consumer complaint before the District Forum which was

dismissed as being time barred and also due to violation of the terms and conditions of

insurance. An appeal against this order was also dismissed by the State Commission

vide impugned order. It is against this order that the present revision petition has been

filed.

3. The learned counsel for the petitioner stated at the time of admission hearing that

the petitioner/complainant tried his best to lodge an FIR with the Police, but the FIR was

lodged only after an order was passed by the Court on an application

u/s 156(3) Cr.P.C. The petitioner promptly reported the lodging of the FIR to the

respondents and they appointed a surveyor to assess the loss. However, the

respondent again and again requested for the final report of the Police from the

petitioner, but without waiting for the report, repudiated the claim on 28.03.2000. The

learned counsel stated that the orders passed by the State Commission and District

Forum are perverse in the eyes of law, because they ignored the fact that he had

approached the Police for lodging the FIR and they had refused to register the

same. The final report of the Police was submitted to the Court on 7.02.2001 and

hence, repudiation of the claim by the insurance company before the submission and

acceptance of final report was bad in the eyes of law. The learned counsel further

stated that in case there had been any violation of terms and conditions of the policy,

the claim should have been allowed on ‘non-standard’ basis, as held by

the Hon’ble Apex Court in “National Insurance Co. versus Nitin Khandelwal” [2008 CTJ

680 (SC) (CP)]. He also invited our attention to the letters dated 08.03.99, 30.06.99 and

10.12.99 sent by the surveyor asking for certain documents and final report of Police.

4. We have examined the material on record and given a thoughtful consideration of

the arguments advanced before us.

5. The consumer complaint no. 146/2007 has been filed in July 2007 by the petitioner

/ complainant, whereas the alleged incident took place on 16.11.98 and the claim of the

petitioner was repudiated by the insurance company on 28.03.2000 and an intimation to

this effect was sent by registered post on 30.03.2000. It is very clear, therefore, that the

complaint has not been filed within prescribed limitation period of two years from the

cause of action, as laid down under section 24(A) of the Consumer Protection Act,

1986. The petitioner has not been able to give any reasons for late filing of the

complaint. It is made out from record that application for condonation of delay in filing

the complaint was also not filed. Moreover, it is also clear from record that the

intimation of dacoity was given to the insurance company after 22 – 23 days of incident,

which is a violation of the terms and conditions of the policy. It is clear, therefore, that

the State Commission and the District Forum have not committed any illegality or

irregularity in arriving at the conclusion for dismissing the said complaint. There is also

no reason to agree with the contention of the petitioner that the claim should have been

allowed at least on ‘non-standard’ basis. It is quite apparent from the letters sent by the

surveyor to the petitioner that the insurance company and the surveyor tried their level

best to obtain the requisite documents from the petitioner, but he did not take adequate

interest in supplying the requisite information. We, therefore, find no justification to

amend the orders passed by the State Commission and the District Forum in any

manner. The revision petition is, therefore, ordered to be dismissed with no order as to

costs.



MEMBERRS/



of Madhya Pradesh State Consumer Disputes Redressal Commission) Krinshbhan Yadav s/o late Shri Chandrbhan Yadav Village –Barodia, Post – Ratikheda District – Ashoknagar, Madhya Pradesh

... Petitioner

Versus 1. Gandhi Vocational College Through Director Shri Harishankar Vijayvergia

Kushmouda Road, Guna, M.P. 2. Vice Chancellor, Jeevaji University Gwalior Madhya Pradesh

… Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. Ritesh Khare, Advocate





passed by the Madhya Pradesh State Consumer Disputes Redressal Commission (for

short ‘the State Commission’) in FA No. 458/2009, “Gandhi Vocational College

& Anr. versus Krinshbhan Yadav,” vide which while allowing appeal, the order passed

by the District Consumer Disputes Redressal Forum, Guna, M.P. was set aside and the

complaint was dismissed.

2. Brief facts of the case are that complainant, Krinshbhan Yadav took admission in

“Bachelor of Computer Applications” course in respondent no.1 college, which was

affiliated to respondent no.2, Jeevaji University, Gwalior. It has been alleged that there

were six semesters for the said course, but the respondents had not given him the

marks-sheet for the third semester, although he has been declared pass. In the

absence of the degree, he is unable to apply for a job also. The respondents have thus

committed deficiency in service by not giving him the marks-sheet for the third

semester. The petitioner/complainant filed a consumer complaint no. 196/2008 which

was allowed by the District Forum on 20.01.2009 and the respondents were directed to

pay Rs.25,000/- to the complainant jointly and severally. They were also asked to pay a

sum of Rs.25,000/- to the consumer welfare fund. An appeal against this order was

allowed by the State Commission which held that the respondent was not a consumer,

because the University while discharging the statutory functions of conducting

the examinations, does not render service and, hence, the complainant could not

seek redressal under the Consumer Protection Act, 1986. It is against this order that

the present revision petition has been filed.

3. At the time of hearing before us, it was found that the petition has been filed in the

National Commission with a delay of 108 days. An application seeking condonation of

delay has been filed along with the petition. When asked to explain the reasons for

delay at the time of hearing, the learned counsel for the petitioner submitted that the

father of the petitioner died on 26.07.2011 and hence he was held up to perform his

family duties and responsibilities. The impugned order was passed on 23.12.2011 and

its certified copy was received by his counsel on 2.1.2012 and thereafter, it was

despatched to the petitioner through post but it was not delivered to him. The petitioner

contacted his Advocate in May 2012 and he came to know about the order passed

against him and then, he asked his Advocate to apply for duplicate certified copy of the

order which was received on 09.05.2012. The petition was within time, if the date of

receipt of the order is considered as 09.05.2012.

4. We have examined the material on record and given a thoughtful consideration to

the arguments advanced before us. It has been admitted by the petitioner that copy of

the order was received by his counsel on 2.1.2012, i.e., after about 10 days of passing

of impugned order dated 23.12.2011. The petitioner has not been able to give any

convincing explanation as to why he waited for such a long time to contact his Advocate

and file the present revision petition. In the application for condonation of delay, the

column, ‘number of days’ has been left blank. Moreover, the petition was submitted on

18.07.2012, whereas as per the version of the petitioner, the duplicate certified copy

also was received by him on 09.05.12. No reasons have been given to explain the

further delay of more than two months after receiving the duplicate copy of the order. It

is clear, therefore, that a reasonable explanation for the delay in filing the revision

petition is not forthcoming.

5. In a number of recent judgements/rulings Hon’ble Apex Court has held that unless

very convincing reasons are shown by a party for condonation of delay, the same should

not be condoned. In the case R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has been observed:


6. In Ram Lal and Ors . Vs. Rewa Coalfields Ltd ., AIR 1962 Supreme Court






8. 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


departments.

9. 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”.

10. It is obvious from the facts of the case that there is no valid explanation for the

delay in filing the petition and hence, as held by theHon’ble Apex Court in the cases

quoted above, there is no ground for condonation of delay of 108 days. This revision

petition is, therefore, ordered to be dismissed on the point of limitation and the order

passed by the State Commission upheld with no order as to costs.



MEMBERRS/

National Consumer Disputes Redressal Commission New Delhi Revision Petition no. 4669 of 2009(Against the order dated 30.09.2009 in Appeal no. 682 of 2003 of the Tamil Nadu State

Consumer Disputes Redressal Commission, Chennai)

R Venkata Krishnan Koil Street Singirkili (Post) Cuddalore District – 605007

Petitioner Vs Taanya Tours Travels Represented by G Stephen 16/3 Jaggannath Road Nungambakkam Chennai – 600034 Todd International Australia Pvt. Ltd. Represented by Ms Rose Todd Suite 399 A, Albany Highway Victoria Park, Perth Western Australia

Respondents

Before:

HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER HON’BLE MRS REKHA GUPTA MEMBER For the Petitioner Mr T V S R Shreyas, Advocate with Mr M Mushtaq, Advocate Pronounced on 13 th August 2013 REKHA GUPTA

The present revision petition has been filed against the order dated 30th September 2009 passed by the Tamil Nadu State Consumer Disputes RedressalCommission, Chennai (‘the State Commission’) in First Appeal no. 682 of 2003.

The facts of the case as per the petitioner/complainant are that the respondents/ opposite parties are engaged in the business of extending professional services to people in countries including India, Singapore etc., to migrate to other countries by securing for them visas and other employment opportunities. The petitioner states that he wished to migrate to Australia. Pursuant to this desire, in response to a newspaper advertisement, the petitioner applied for a family visa through respondent no. 2 first opposite party (Todd International Australia Pvt., Ltd.) through a letter dated 21.02.1994, the first opposite party rejected the application of the petitioner as he did not have enough points. However, the communication also stated that if the points were reduced, the petitioner would be informed through the agents of the first opposite party.

The petitioner states that he later received a communication dated 15.07.1994 from the first opposite party stating that he met the points for migration to Australia. Pursuant to this letter on 01.08.1994, the consultants of the first opposite party advised the petitioner to contact respondent no. 1/ the second opposite party (Taanya Tours Travels) their local agent in Chennai and pay US $ 3000 in three instalments to get the visa to migrate to Australia.

Subsequently, on 07.09.1994, the petitioner paid the first instalment of Rs.30,000/- by demand draft in favour of the second opposite party. The petitioner received a communication dated 23.09.1994 about the services that would be provided by the first opposite party.

On 24.09.1994, an agreement was entered into between the petitioner on the one hand and the first and second opposite parties on the other hand for migration to Australia. As per clause 11 of the agreement, the first opposite party, agreed to refund 80% of the professional charges in case VISA is not issued.

On 25.10.1994, the petitioner paid the second instalment of Rs.30,000/- by a demand draft in favour of the second opposite party. The respondents acknowledged the receipt of the two instalments vide their receipt bearing no. 0974 and 0919 dated 01.11.1994 and 15.11.1994 respectively.

On 11.01.1995 the petitioner made a third payment of US $ 600 being the third and final instalment by demand draft in favour of the first opposite party. The opposite parties acknowledged the receipt of the same vide their receipt bearing no. 0986 dated 24.01.1995.

On 25.11.1995 visa fees amounting to Rs.9,577/- was paid to the Australian High Commission, New Delhi by sending it along with all the original certificates relating to educational qualifications and experience of the petitioner. Pursuant to the same, the petitioner received a reply from the High Commission five months later, i.e., 21.04.1996 stating that his documents had been referred to the Australian Agencies for processing.

Meanwhile, the petitioner received lucrative offers of employment in Singapore and New Zealand. However, as he was assured by the respondents that his migration to Australia was imminent the petitioner did not actively pursue the offers from Singapore and New Zealand.

The petitioner waited for almost three years during which period the visa to Australia did not materialise. Ultimately the first opposite party sent a communication dated 20.08.1998 stating that it was difficult to get the petitioner a job in Australia. Thereafter, there was no further communication from the respondent to the petitioner.

In their written statement before the District Forum respondent no. 1 who were the opposite party no. 2 submitted that the complaint was not maintainable against this respondent since respondent no. 1 are only an agents of disclosed principal. The respondent no. 2 was engaged in the service of providing assistance to Indians who wish to immigrate to Australia / New Zealand. The respondent no. 2 had entered into an agreement with the petitioner on 24.09.1994 to which this respondent no. 1 was only a formal party with no rights, duties or obligations to perform. It is submitted that as per this agreement the function of this respondent no. 1 was to transmit documents and materials submitted by the petitioner to the respondent no. 2. According to this agreement there were no duties beyond the aforementioned to be performed by respondent no. 1 in so far as the petitioner was concerned. Therefore, it was for the respondent no. 2 to aid and assist the petitioner in obtaining a visa for immigrating to Australia and not respondent no. 1. Therefore the complaint is not maintainable against respondent no. 1 for the acts or omissions of the respondent no. 2.

It is also submitted that there was no privity of contract between the respondent no. 1 and the petitioner and as such the contract does not bind respondent no. 1 and hence not maintainable.

It is also submitted that the petitioner has not paid any consideration nor has respondent no. 1 rendered any services towards the petitioner. In the circumstances, the petitioner cannot allege deficiency of service against respondent no. 1.

It is submitted that the respondent no. 1 being an agent of disclosed principal there was no obligation on the part of the respondent no. 1 to make refund of the amounts in case visa being not granted to the petitioner. It is submitted that the function of respondent no. 1 was that of a courier service, i.e., to forward the material received from the petitioner to the respondent no. 2. As a matter of fact in the various correspondence exchanged between the parties it has always been the case of the petitioner that refund is due and payable only by the respondent no. 2. In view of the above also, the complaint will not lie against this respondent no. 1.

Respondent no. 1 has learnt from respondent no. 2 that respondent no. 2 has done its level best and without any delay to obtain a visa for the petitioner but for reasons beyond the control of the respondent no. 2, the Australia High Commission in New Delhi turned down the application of the petitioner for immigration and visa. It is respectfully submitted that respondent no. 1 cannot be in any way held responsible for the act of the Australia High Commission in New Delhi. Therefore, this complaint will not lie against respondent no. 1.

Respondent no. 1 learnt that the complainant’s application was also forwarded to High Commission by respondent no. 2. It was communicated to respondent no. 1 by respondent no. 2 that they were using its good offices with the High Commission Australia to see if the processing time could be reduced. It is also learnt from respondent no. 2 that the Australia High Commission had rejected the application of the petitioner. On learning about the rejection of his application the petitioner did not want to proceed any further on immigration and hence opted to withdraw. Therefore, the whole transaction involved the respondent no.2 being the one who called for the application, the petitioner and the Australia High Commission. Respondent no. 1 submits that being an agent of disclosed principal of respondent no. 2 it is not liable for any of the acts or omissions committed by respondent no. 2. This was also communicated to the petitioner.

The District Consumer Disputes Redressal Commission, Mylapore Chennai (‘the District Forum’) while disposing of the complaint no. 354 of 2000 on 9 thSeptember 2003 directed that the “opposite parties are directed to refund Rs.80,400/- and also to pay a sum of Rs.1,00,000/- for the loss of employment and Rs.2,00,000/- towards compensation for mental agony and inconvenience with cost of Rs.1,000/-. Time for payment one month, failing which the complainant is at liberty to take proceedings for arrest of the opposite parties under section 27 of the Act”.

Aggrieved by the order of the District Forum, the respondent no. 1 filed an appeal before the State Commission. The State Commission observed that “theevaluation of the above materials prompt us to say that the lower forum is not justified, in granting an order against, the appellant, who was only an agent, facilitating the transactions in between the complainant and the 1st opposite party. As seen from the records, major portion of the amounts were directly paid by the respondent, to the 1st opposite party, except one payment or two, that too paid for want of clearance by the Reserve Bank of India, which was in turn paid to the 1st opposite party. Therefore, for the amount received by the 1st opposite party, for the assurance given by the 1st opposite party and accepted by the complainant, to secure a job or a visa, we are unable to see how the agent can be held responsible as if he has also committed deficiency in service.

Ex.A6 is the agreement dt.24.9.94, wherein there is a clause for refund which reads “Refunds are not applicable for Medical or Police Clearance problems. The Company hereby agrees to refund 80% of charges, excluding immigration fees paid to

the Australia High Commission, should your Visa not be issued. Excluded in this refund is failure due to Medicals, Police Clearances, or failure to pass professional examinations relating to your qualification.” The very fact refund of the amount is contemplated under the agreement would suggest that there is possibility of refusing visa. Therefore, for not securing the job, as if there was loss of opportunity of employment, claim made appears to be untenable, and unwarranted. However, the 1st opposite party has not contested and therefore, we are not going to consider the amount awarded against the 1st opposite party. Nowhere, it is stated that the agent is also responsible for the refund of money or in case unable to get visa for migration, the agent is responsible. It cannot be called as tripartite agreement also, as submitted, though the appellant also signed in the agreement, being an agent. In Ex.A6, it is specifically stated, that the appellant is only an agent; otherwise he has nothing to do. Therefore, on the basis of Ex.A6, the appellant cannot be held responsible, for the non-performance of the agreement, branding the same as deficiency in service, as incorrectly done by the lower forum. Under Ex.B8, the complainant informed the 1st opposite party, that the complainant is having problem with the bank in getting the draft in favour of 1stopposite party, and that he has sent a Demand Draft for Rs.30000/- drawn in favour of the agent viz. M/s.Tanya Tours Travels and Freight Forwarders, Madras, the 2nd opposite party herein. Thereafter, all the amounts were drawn in favour of the 1st opposite party and the 2nd opposite party/ appellant has nothing to do with the transaction. At no point of time, the 2nd opposite party/ appellant has assured or promised to get any job for the 1st respondent/complainant. As seen from the letter dt.12.8.98, when the 1st opposite party approached the college, they have informed that they are unable to consider the complainant, stating that they are in need for someone with considerable experience. Thus, from the correspondence also, it is seen that there is no deficiency in service on the part of the opposite parties, and despite the fact the 1st opposite party is unable to get the employment opportunity, resulting non-obtaining of visa, for which, at any stretch of imagination, the agent of the 1st opposite party, who acted more or less as post box, not assuring anything, to the complainant, cannot be held responsible. The District Forum, without analyzing the role of the appellant, under the agreement or otherwise, has erroneously, without any basis, committed an error in ordering the payment, more or less jointly and severally, which should be set aside”. The State Commission directed as under:

“In the result, the appeal is allowed, setting aside the order of the District Forum in C.C.No.354/2000 dt.9.9.2003, so far as the appellant is concerned. In this appeal, the 1st respondent/ complainant is directed to pay cost of Rs.5000/- to the appellant”.

Hence, this present revision petition.

The main grounds for the revision petition are:

The State Commission erred in holding that the District Forum committed an error in ordering payments, jointly and severally without analysing the role of the respondent no. 1 under the agreement or otherwise.

The State Commission erred in ignoring that the respondent no. 1 and respondent o. 2 had jointly entered into an agreement with the petitioner on

24.09.1994. The respondent no. 1 was acting along with the respondent no. 2 and had even received payments towards instalments given by the petitioner.

The State Commission failed to appreciate that both respondent no. 1 and respondent no. 2 were guilty of deficiency in service and were jointly liable to refund the money and pay compensation to the petitioner.

The State Commission erred in holding that the agreement dated 24.09.1994 is not a tripartite agreement when the same has admittedly been signed by both the respondents and the petitioner.

Because without prejudice to the above submissions, section 230 of the Indian Contract Act, 1872 clearly states that in case a principal is abroad, the agent is personally liable. It is submitted that the order passed by the State Commission is contrary to the law laid down by the Hon’ble Supreme Court of India in Cochin Frozen Food Exports (P) Ltd., vs Vanchinad Agencies reported in (2004) 13 SCC 434.

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

Learned counsel for the petitioner drew our attention to the agreement which was entered into between the petitioner and the respondents. However, we find that as per the agreement dated 24.09.1994 the entire burden of performance is on the ‘company’ which is Todd International Australia Pvt., Ltd./ respondent no. 2 having its registered office at Suite 399 A Albany Highway, Victoria Park, Perth, in the State of Western Australia 6100. This is supported by a letter dated 23.09.1994 from the Todd International Australia Pvt., Ltd. wherein they have enclosed a document of settlement package which they would be extending to the petitioner, which reads as under:

Accommodation for 1 week – paid Suggested transport Name, address and phone number of IRN Average payment of Social Security and where to go. How to claim and who

to see. Name and address of support groups for new migrants Tax file information Medicate information Resumes sent to employment groups What to bring Shipping arrangements Education Rental

It is also seen from the petitioner’s letter dated 26.10.1994 to respondent no. 2 that a demand draft for Rs.30,000/- was being drawn in favour of M/s Tanya Tours Travels and Freight Forwarders, Madras because ‘the bankers are refusing to issue demand draft in favour of you without the clearance of Reserve Bank of India, I took DD in favour of your agents at Madras”. The receipts enclosed also shows that even for the payments made through respondent no. 1, the final receipts were given by respondent no. 2 - M/s Todd International Australia, Pvt. Ltd. Hence, it is apparent that all the payments made were either to respondent no. 2 or to the Australian High Commission at New Delhi. No payments were made to respondent no. 1 - M/s Tanya Tours travels and Freight Forwarders, Madras, for any service the petitioner obtained from them. On the contrary in a letter dated 11.01.1995 addressed to respondent no. 1 forwarding an envelope containing the demand draft for US $ 680 drawn by UCO

Bank, Puducherry Main, India drawn on Bank of California International, USA in favour of National Australia Bank, account M/s Todd International Australia Pvt, Ltd., Western Australia, the petitioner has wrote that “I request you to take notice of the same and .. sic.. this piece of the letter in your courier bag to Todd, Australia feel very bad to disturbing you frequently. But due to safety of the documents I need your help”.

Learned counsel for the petitioner had drawn our attention to section 230 of the India Contract Act, 1872 which reads as under:

Agent cannot personally enforce, nor be bound by contracts on behalf of principal – In the absence of any contact to that effect an agent cannot personally enforce contracts entered into by him on behalf of this principal, nor is he personally bound by them.

Presumption of contract to contrary – such a contract shall be presumed to exist in the following cases :-

(i) Where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;

(ii) Where the agent does not disclose the name of his principal;(iii) Where the principal, though disclosed, cannot be sued.

This section is not applicable to the case on hand because the contract was not for sale or purchase of goods. The principal in the contract was disclosed as M/s Todd International Pvt. Ltd. Thus, learned counsel for the petitioner has been able to establish any deficiency in service against respondent no. 1.

In the above circumstances, we find that the State Commission has given a well-reasoned order and gave cogent reasons why the District Forum’s order was erroneous and was without any basis and had committed an error in ordering the payment, more or less jointly or severally.

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

Petitioner is directed to deposit an 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 said amount within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 27th September 2013 for compliance.

Sd/-

..………………………………[ V B Gupta, J.]

Sd/-

………………………………..[Rekha Gupta]

Satish



(From order dated 27.12.2012 in First Appeal No. 181/2010 of the Jharkhand State Consumer Disputes Redressal Commission, Ranchi)WITH I.A. No. 2861 OF 2013 & I.A. No. 2862 OF 2013 (Condonation of Delay, Stay) Pradeep Kumar Agarwal, S/o Kishanlal Agarwal R/o Kishoraganj Road, PS : Sukhdev Nagar, Ranchi At present : Biru Complex, Main Road PS : Simdega, District Simdega

… Petitioner Versus

1. Sanjay Agarwal, S/o Ramnarayan Agarwal R/o Main Road, Simdega, PS : Simdega 2. Branch Manager State Bank of India, Simdega Branch, SBI Road PS : Simdega, District – Simdega

… Respondents

BEFORE:

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

For the Petitioner : Mr. Gopal Singh, Advocate

PRONOUNCED ON 13.08.2013

O R D E R

JUSTICE J.M. MALIK1. Shri Pradeep Kumar Agarwal, petitioner/OP1, Builder of M/s.Shanti

Construction, entered into an agreement with the Complainant, Sh. Sanjay Aggarwal,

for sale of flat No. B8, 3rd Floor, Biru Complex, Simdega. It was agreed that it will have

built-up area of about 1,500 sq.ft. @ Rs.750/- per sq.ft, along with parking space. At

the time of agreement, Pradeep Kumar Agarwal, OP1, took a sum of

Rs.3,00,000/- from the complainant. OP1, of his own accord and after

consultation/negotiations with State Bank of India, OP2, got a Home Loan for an

amount of Rs.10,00,000/- sanctioned in the name of the complainant. It is alleged

that OP2, while working in cahoots with OP1 issued two cheques in the name

of M/s. Shanti Construction for an amount of Rs.9,10,000/- on 25.04.2008

and Rs.90,000/- on 14.07.2008. OP1 did not execute any Sale Deed in favour of the

complainant. It is averred that OP1, in connivance with the Bank, deposited a copy of

agreement of sale, signed only by him and got disbursed a sum of Rs.10,00,000/-

from the Bank, without the knowledge of the complainant. Again, the Bank,

without disclosing these facts to the complainant, got his signatures, on the

disbursement form and also got signatures of complainant and his wife on two blank

papers.

2. The complainant came to know regarding the loan transaction when the

Bank, without any notice or information, deducted an amount of Rs.11,800/- on

02.07.2009 from the account of Rourkela

Branch and an amount of Rs.95,000/- from the account of State Bank of India,

situated at Simdega, on 21.08.2009, the total being, Rs.1,06,800/- as ‘interest’, of the

above said loan.

3. It was agreed that if the incomplete flat took more than 2 months, to complete, in

that event, the interest on the amount of the loan will be paid by OP1. Even though

there was delay of 17-18 months, OP1 did not pay the interest on the loan

amount. OP1 had promised that he will hand-over possession of the flat within 18

months, but the needful was not done. There was also no improvement in the status

of the flat. A legal notice was issued, but it did not produce the desired

result. Ultimately, this complaint was filed before the District Forum with the

prayer that OP1 be asked to return the sum of Rs.3,00,000/-, with interest @ 18% p.a.

OP2, be asked to return sum of Rs.10,00,000/- and interest in the sum of Rs.1,75,000/-

and interest thereon, till date. The amount of Rs.1,00,000/- was demanded for

compensation.

4. Both the OPs contested this case. The District Forum allowed the complaint and

directed the OP1, Pradeep Kumar Agarwal, to handover possession of completed Flat

NO.B-8, as per the Agreement for Sale in the Biru Complex, Simdega, as booked by

him, within a period of two months from the date of the order, failing which, OP1,

Builder, was directed to refund the housing loan amount of Rs.10,00,000/- either to the

complainant or directly to the SBI, Simdega Branch, which amount is outstanding in

the name of the complainant in the SBI, Simdega Branch,OP2, along

with admissible interest on the said amount from the date of filing of this complaint,

i.e., 31.10.2009, till its final payment.

Secondly, Pradeep Kumar Agarwal was further directed to pay

Rs.3,00,000/- to the complainant, as paid by him at the time of booking of the said

flat to OP1, as admitted by OP1, in the agreement for Sale (Exb.1), along with interest

@ 10% p.a. from March, 2008, till its final payment.

Thirdly, OP1 was further directed to pay Rs.1,75,000/- to the

complainant on account of interest realized or realizable by the OP Bank from the

complainant, from the date of grant of housing loan to

the complainant till the filing of this case, which the complainant was forced

to bear due to non-delivery of flat by the OP1-Builder, to him.

Fourthly, Pradeep Kumar Agarwal, OP1, was further

directed to pay compensation in the sum of Rs.17,000/- and cost of litigation in the

sum of Rs.4,000/- to the complainant, and OP2-

SBI was directed to pay compensation amount of Rs.3,000/- and cost

of litigation in the sum of Rs.1,000/- to the complainant, within a period of two

months, from the date of this order, on account of deficiency in

service and adopting unfair trade practice on their part, in the present

case causing mental and physical harassment and agony to him.

Lastly, it was ordered that OP2, SBI, will not be entitled to realize

any interest from the complainant on the aforesaid housing loan amount

from November, 2009, i.e., after filing of this case, till the possession of the Flat in

question is handed over by OP1, to the complainant or the amount of housing loan

disbursed to the OP1/Builder is not refunded by him, either to the complainant or to the

OP2 Bank, as the liability to pay the present and future interest on the

housing loan was fixed upon Pradeep Kumar Agarwal, OP1.

5. The State Commission dismissed the appeal filed by Shri Pradeep Kumar

Agarwal, OP1.

6. This revision petition has been filed by Sh.Pradeep Kumar Agarwal, OP1.

7. We have heard the learned counsel for the petitioner. He argued that the

view taken by both the fora below are not based on documents. The

complainant has failed to prove that both the OPs were working, cheek by jowl, in

order to cheat the complainant. It was submitted that the complaint contains

criminal allegations against the parties, and as such, the consumer fora does not

have the jurisdiction.

8. Instead of touching the heart of the problem, learned counsel for the

petitioner just skirted it. Both the fora have decided the case against the OP1. The

counsel for the petitioner could not invite our

attention that some legal questions arise in this revision petition. It

stands proved that OP1 and 2 worked hand in hand to cheat an

innocent person. It was the bounden duty of the Bank

to inform the complainant that a loan was being sanctioned in his favour. They

should have charged interest after giving notice to the complainant. They were not

to charge interest of their own, without taking the consent of the complainant, that too,

at two different Branches, situated at different places. The documentary

evidence proves the case of the complainant. Exb.’1’, is Xerox copy of the

agreement to Sell, dated 16.04.2008, which bears the signature of Pradeep Kumar

Agarwal, OP1, Proprietor of M/s. Shanti Construction, only. Exb. ‘1’, is a document,

of utmost importance. It shows that the complainant had booked one flat bearing

No. B-8, on the third floor of Biru Complex, in March,

2008, on payment of earnest money of Rs.3,00,000/- to the Builder,OP1, and the

rest of the amount of the flat, was to be paid through Housing Loan, to be

granted by SBI, Simdega Branch, of the complainant to the OP1. Most importantly,

the signatures of the complainant are conspicuously missing. Exb. ‘G’ goes to reveal

that the disbursement of the loan amount was paid to OP1. It is strange to

note that OP2 disbursed the loan, on the basis of the Sale Deed, which did not

bear the signatures of the complainant. OP1 did not file the original copy

of the agreement in dispute. The main document was kept under the hat,

for the reasons best known to OP1. We cannot discuss about Exb. ‘Y’, which is not

proved, in accordance with law.

9. The District Forum, correctly held, to this extent:

“Question of deficiency in service on the part of OP No.2, SBI, Simdega Branch(28). ……. He also alleged that the OP Bank never intimated him regarding sanction of his housing loan nor any chit of paper has been filed by the Bank in this regard, we are not inclined to accept the above plea of the complainant, in view of the fact that Arrangement letter of housing finance dated 23.04.2008 (Exhibit-B), Deed of Undertaking dated 23.04.2008 (Exhibit-C) and Memo of term loan agreement dated 23.04.2008 (Exhibit –D), all are signed by both the borrowers and Exhibit-B is also signed by the Guarantor Vijay Kumar Agarwal, after sanction of the aforesaid housing loan. We are also not inclined to accept the plea of the complainant that only their signatures were obtained by the Bank on the blank forms, as prior to filing of this

case, no such allegations have been made against the OP Bank by the complainant or co-borrower or guarantor”.

10. However, the following points are also note-worthy. The said disputed letter,

Exb. ‘G’, which is a disbursement letter, was not sent, in writing, to the complainant

or his wife. No date has been mentioned by the borrowers on the said letter, except

their signatures. The endorsement and the signature of the Bank Officer, in the margin

of the said letter, reveals the date, 23.04.2008. The date of execution of

arrangement letter, Exb. B, Deed of Undertaking, Exb. C and Memo of term loan

agreement, Exb.D, are also dated 23.04.2008. Under these circumstances, there was

no question for the complainant/borrower to execute the disbursement letter Exb.-G,

on the same day, without any intimation from the Builder,OP1 that the building was

complete in all respects,

and he was ready to handover the possession of the same to the purchaser. The

bulk amount of the complainant was paid by the Bank to OP1 only, after 25.04.2008

and rest on 14.07.2008. Till July, 2008, all the disbursements, made in favour of

OP1, were made, but possession of the flat was not made to him. The necessary

documents were not yet executed. It is also interesting to note that no mortgage

deed or no other collateral security/demand was obtained by the Bank from the

Borrower, nor Deed of Conveyance of the property was purchased or executed in

favour of the complainant by the original owner. In absence of those

documents, the Bank did not feel any hesitation to

disburse the remaining loan in favour of the OP1. OP2, Bank also did not try to

know as to who was in possession of the premises in dispute. The OP-Bank did

not inform the complainant after disbursement of such heavy loan amount, in

favour of the Builder. Exb.’G’ was an important document by which a heavy amount of

Rs.10,00,000/- was intended to be disbursed. The OP-Bank did not insist to inscribe

the same by the borrower and also put the date under his signatures. The Bank also

did not insist the borrower to issue withdrawal slip or cheque to disburse such a huge

housing loan amount, in favour of the complainant, than to do so by mere chit of paper,

Exb.’G’. The Bank did not insist for a Tripartite Agreement among all the three parties.

11. The record reveals that after getting the entire money in July, 2008, the

petitioner/OP1 was to handover the possession of the flat to the

complainant, within two months. More than five years have elapsed, the

complainant has not yet got the possession. The filing of this revision petition is a

delaying tactic. OPs are gaining time to avoid their liabilities. We, therefore, dismiss

the revision petition, with costs of Rs.1,00,000/-, which be paid to the

complainant, for wasting five years, i.e., Rs.20,000/- per year, which be paid within 30

days, from the receipt of this order, otherwise, it will carry interest @ 9% p.a. till

realization. Petitioner is directed to satisfy the Decree, within two

months, after receipt of the order, otherwise, he will be liable to pay extra penalty @

Rs.25,000/- per month, to the complainant, till the

Decree stands satisfied, which will be in addition to the previous order and the order

passed by the District Forum.

.…..…………………………

(J. M. MALIK, J)

PRESIDING MEMBER

.…..…………………………(DR.S. M. KANTIKAR)

MEMBER

dd/14


ORIGINAL PETITION NO. 136 OF 2002

Smt. Raushani Devi, W/O Late Radha Kishan Garg, House No. 190/2, Village Shalimar New Delhi

…Complainant Versus

1. Maharaja Agrasen Hospital Punjabi Bagh, New Delhi-26, Through its Manager.

2. Dr. Amar Singhal, C/o Maharaja Agrasen Hospital, Punjabi Bagh, New Delhi-26.

3. Dr. Pramod Jain, C/O Maharaja Agrasen Hospital, Punjabi bagh-26.

4. Sri Krishan Lal Bansal, President Maharaja Agrasen Hospital Trust,Rohtak Road, West Punjabi Bagh, New Delhi-26.

5. Sri Tekchand Gupta, General Secretary, Maharaja Agrasen Hospital Charitable

Trust, Rohtak Road, West Punjabi Bagh, New Delhi-26. …Opposite Parties

BEFORE: HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER HON’BLE DR.S.M.KANTIKAR, MEMBER For the Complainant : Mr. Vivek Tripathi, Advocate For the Opposite Parties : Mr. Aseem Chanda, Advocate with Mr. Anurag Singh, Advocate.

Pronounced On 13 th August , 2013 ORDER

PER DR. S.M. KANTIKAR1. The complainant has filed this complaint under Section 21 & 22

of the Consumer Protection Act, 1986 alleging medical negligence and deficiency in service on the part of opposite parties in treatment of complainant’s deceased husband Mr. Radhakihsan Garg and has claimed compensation of Rs.52,50,000/- from them under various heads.

2. The facts of this caseThe Complainant’s husband Late Shri Radha Kishan Garg, a businessman about 50 years of age with earnings about Rs. 20,000/- per month. He was the head of the family and in sound health without any major disease. On 09.01.2002 Shri Radha Kishan (herein as Patient) went to OP-Hospital with a complaint of chest pain. He was diagnosed as a chronic case of acid peptic disease and the treatment was advised. As the patient had continued chest pain for further two days consulted the

OP- 2 and 3 on 11.01.2002 after laboratory and ECG investigation he was diagnosed as Acute Inferior Wall Myocardial Infarction ( in short AIWMI). Accordingly, the OP-2, Dr. Amar Singhal advised Coronary Angiography (CAG) and continued with the same treatment of acid peptic disease and also insisted the complainant to deposit Rs.2 lacs for by-pass surgery. On next day i.e. 12/01/2002 at 11:00am Dr. Amar Signal and Dr. Prakash Jain conducted CAG and as per OP showed Triple Vessel Disease (TVD), thereafter Percutaneous Trans luminal Coronary Angioplasty (PTCA) conducted only on Rt Coronary Artery ( RCA) despite respondent demanded Rs.2 lacs from complainant for this RCA. After post operation OP recorded its progress report stating the jerking in eye, vomiting, giddiness, etc. which clearly signifies some problem in brain of the patient. The patient was referred to a Neurologist who diagnosed the case as “ Posterior Circulation Stroke” and advised for C.T. Scan and MRI of head region. The neurologist advised injection Clexane, if there was no bleeding in C.T and withheld Tab. Monotrate but the OP-2 Dr. Amar Singhal after seeing the C.T. Report, restarted the injection of Clexane . Hence, it was against the Neurologist’s advice which was administered earlier to the C.T. Scan which revealed massive bleeding in the brain. As Clexane is blood thinner which results in further bleeding or hemorrhage. Also stopping of tablet Monotrate despite patient suffering from CAD and high blood pressure. The complainant also complained that as the OP -1 is Heart Institute not taken proper care to control the high blood pressure of patient and it was illogical to withhold Tablet Monotrate.

3. It was also alleged that OPs did not take opinion of two expert prior to angioplasty decision which is mandatory in medical practice, and did unnecessary angioplasty as the condition could have been managed even by oral medication. At the end, the patient died of brain hemorrhage at CCU on 13/1/2002.

4. The complainant who was not well qualified and unaware of complexities of the case deposited Rs two lacs on account of By-pass surgery. But, actual cost for angioplasty was between Rs.20,000 to 40,000/- therefore OP not performed By-Pass surgery but charged Rs.1,50,200/- for angioplasty. Thereafter on 15/1/2002, the family members of complainant held a meeting with one Mr. Laxmi Narain, one of the trustees of hospital along with the OP doctors in which it was admitted that the case was not handled properly.

5. It is alleged that because of negligent attitude of OP doctors

the complainant lost her husband who suffered an irreparable loss as doctors were deficient in providing the service. The complainant therefore , claimed a compensation of Rs. 52,50,000/- as under:

i. Medical expenses incurred

and paid to the Respondents. Rs.1,50,200/- ii. Loss of life during the course of treatment Rs.15,00,000/- iii. Loss of future earning (taking net income- as Rs.20,000/-p.m.) Rs.21,00,000/- iv. Loss of love and affection of the husband Rs.10,00,000/- v. Compensation towards mental agony and torture. Rs.5,00,000/- ================ Total Rs.52,50,000/-

================

6. The opposite parties contested the complaint by filing reply and denied the allegations of the Complainant and contended that there is no deficiency in service in treatment of the deceased husband of Complainant.

7. To acquire the details and other clarifications about 25 interrogatories were served on OP-2 and OP-3. A set of about 40 interrogatories each was served by OP 1 & 2 to the Complainant and the four persons namely S.K. Sarkar, Laxmi Narain, Rajendra Gupta and Ramdhari Goyal who attended the meeting on 15/1/2002. Both parties replied the interrogatories. Some of the interrogatories and their replies are germane to decide whether there was deficiency in service and medical negligence by OP doctors in treating the patient.

8. The complainant filed her affidavit evidence. Also filed the affidavit evidence on behalf of Complainant by four witnesses named as S.K. Sarkar, Laxmi Narain, Rajendra Gupta and Ramdhari Goyal.

9. The complainant in her affidavit reiterated the allegations which

were made in the complaint about the negligent attitude of OPs. The death of her husband was an irreparable loss which was due to the doctors who were deficient in providing proper services in following manner:

a) Wrongly diagnosed the disease and continued treatment considering it a case of peptic ulcer;

b) Without obtaining the opinion of the Senior Doctors and without even taking the second opinion conducted the angioplasty;

c) Directed the Complainant to deposit a sum of Rs.2 lacs for conducting a bypass surgery though it was not to be conducted and conduced angioplasty which is too cheaper;

d) In spite of being a Heart Research Centre, no timely and proper steps were taken, even after noticing that there was jerking in the eye, vomiting, giddiness, etc. means something was wrong with the brain;

e) Without consulting the expert and against their advice, injection Clexane was given;

f) Without even taking the proper advice Tab. Monotrate was withheld;g) No proper care was taken to control the blood pressure.

10. The affidavit evidences of other four persons on behalf of complainant were in the

same line of complainant’s evidence and supported the complainant’s allegations against Opposite Parties.

11. The Complaint filed annexure which are marked as Annexure P/1 to P/3. Copy of Doctor’s Prescription as P/1, the Copies of Nurses Report P/2 and Copy of Bill as P/3.

12. Defence:

The OP-2 and OP-3 filed their affidavit evidences. In addition to those affidavits three separate affidavits were filed by i) S.B. Gupta (OP-3), the Administrative Officer of (OP-1) Maharaja Agrasen Hospital ii) Krishnalal Bansal (OP 4), the Convenor of OP-1 Hospital and iii) Tek Chand Gupta (OP-5) the President of OP 1 Hospital Charitable Trust. The OP submitted that the Complainant has not come before this Commission with clean hands. The amendments made in the original complaint were to build the case with malafied intentions and for illegal gain by way of misuse and abuse of the benevolent Consumer Protection Act.

13. The doctors OP 2 & 3 placed Photocopies of Medical Record of patient which are marked as Exhibits RW 1- RW 70. OP doctors made submissions about the line of treatment adopted by them for the said patient as follows:

I. Patient attended OPD on 10/01/2002 at Gastro OPD with history of pain 3 days (non-specific pain) all over abdomen with past history of Duodenal Ulcer (DU) 1999. On examination, advised certain tests with prescription of medicines and referred to Cardiology OPD for suspected Coronary Heart Failure (CHF).

II. On 11/01/2002 patient attended Cardiology OPD at about 11 am. After ECG, he was diagnosed as a case –Acute Inferior Wall Myocardial Infarction (AIWMI). Accordingly admitted in Heart Command Centre and treatment for acute MI was started.

III. OP denied that the patient was treated only for Acid Peptic Disease as complainant mis-quoted the facts in progress sheet. The progress sheet of patient shows” a known case of Acid Peptic Disease who admitted with history of chest pain radiating to both arms and neck and back two days ago which subsided …..”. It is the history given by patient himself.

IV. On 12/01/2002 at 8 am OP-2 examined patient who had again complaints of Chest pain and giddiness, headache and anorexia. Therefore, considering such condition of patient OP-2 advised to perform coronary angiography at first instance. After taking informed consent OP-2 performed CAG and diagnosed the case as Triple vessel disease (TVD). It was observed that 90% blockage in Right coronary artery (RCA) 60% in

Left coronary artery (LCA). Hence , OP-2 advised PTCA-RCA as a proper treatment . Same was discussed with family members and risks explained; thereafter OP-2&3 performed PTCA+ICS-RCA on the same day by and details of procedure were mentioned in Progress Report Sheet and thereafter general condition of the patient was stable.

14. It is further submitted by OP that after PTCA the chest pain of patient subsided but giddiness persisted for which opinion of Neurologist was sought. Neurologist examined the patient on the same day ie on 12/01/2002- 6:00 p.m. and diagnosed patient as “Posterior Circulation Stroke” and advised CT scan of brain. CT showed large cerebral infarct in the post circulation. The patient was also examined on 13/1/2002 by Neurologist at 9 pm. Therefore, the treatment given by OP-2 was as per recognized and accepted standard medical practice throughout the world.

15. As per the OP the Complainant has misrepresented the facts by quoting prescription of Neurologists as “injection Clexane if no bleed in CT head”. It is submitted that the Complainant has intentionally misquoted the prescription of the Neurologist which reads as under:

“Advised: - Urgent CT Scan (Plain) Injection Clexane 0.6 ml. SC/bd-if no Bleed in CT Head (if no cardiac C.I.) MRI brain when feasible Rest CST (continue same treatment)

16. But the OP categorically stated that there was no haemorrhage as alleged by the Complainant but there was cerebral infarct and the injection Clexane and temporary withholding of Tab. Monotrate were as per standard of practice. Hence, there is no medical negligence. Therefore, Op is not liable for medical negligence and for the compensation.

17. The OPs further submission that the OP has allowed a discount of Rs.15,000/- on the recommendations of one of the trustee. Even though Rs.21,000/- remained unpaid as the balance due from the Complainant towards the total bill of Rs.1,65,200/-. Therefore, the complaint is not maintainable as full consideration was not made. Also, the Complainant has made false and concocted allegations in her complaint. None if the allegations made in the complaint with regard to the course of treatment given to the patient and it is not supported by any expert opinion.

18. We have heard the Counsel and perused the evidence and medical records of

Maharaja Agrasen Hospital (OP-1), like the progress sheets in patient’s record, progress report sheets, etc. Learned Counsels for both parties submitted written arguments and made oral submissions.

19. Learned Counsel for Complainant Shri Vivek Tripathi vehemently argued that there was sheer medical negligence and non-performance of duties with due care, fairly, reasonably, exercising ordinary and

competent degree if skill and unfair trade practices by OP. The doctors that they have not acted in accordance with standard of medical practice. The treatment was deficient, with careless attitude and OP did not follow the advice of Neurologist, but OP administered the Inj. Clexane which resulted brain haemorrhages and death of patient., therefore, the Complainant is entitled to the relief claimed.

20. Learned Counsel Mr Aseem Chanda and Anurag Singh for OP centralized their arguments on the main allegations of the Complainant on points as stated supra in para 8 under headings (a) – (g).Discussion:Now the points in this case are

i) Whether the Complainant proved there was deficiency in service on the part of opposite parties?

ii) Whether the Complainant has proved the elements of negligence?

iii) Whether the Complainant deserves for the compensation as prayed? And to what relief the complainant is entitled?

The findings to above points are:i) In the Negativeii) In the Negativeiii) As per final order below for following;

Reasons:

21. On perusal of medical records on file it is clearly admitted case of the parties

that husband of complainant Late Radha Kishan Garg was a known case of Acid Peptic Disease, the doctor suspected the chest pain could be due to heart problem also. As per advise of OP to rule out heart problem the patient investigated on 11/01/2002 by ECG, USG and certain blood test in Cardiac OPD. The patient was diagnosed as Acute Inferior Wall Myo-Cardial Infarction and for treatment admitted immediately in the Heart Institute (OP-1). Patient was subjected for Angiography on 12.01.2002 and further diagnosed as that Triple Vessel Disease with findings as RCA was blocked up to 90% and other two vessels were blocked to the extent of 70% and 60% respectively. Thereafter, only the PTCA-RCA was performed as it was not advisable to intervene with non-critically blockages of the other two vessels during such acute condition of patient. After PTCA, the chest pain of the patient subsided but the giddiness continued for which a Neurologist was sought and CT Scan was performed to CT that the patient was suffering from Cerebral infarct also.

22. We agree with the line of treatment adopted by the OPs in this case. OP has performed their duties as the Standard of Medical Practice in proper diagnosis of the disease by specific investigations, thereafter the referral to the Neurologist for the complaints of giddiness and vomiting.

23. The complainant’s main grouse was that the OP did not follow the advice of neurologist and continued injection Clexane despite the CT head showed haemorrhages. The CT scan showed Cerebral Infarct which is NOT a haemorrhage. The complainant is wrong in considering and interpreting the INFARCT same as HEMORRHAGE. Therefore, we need to read very carefully the Exhibit RW 33 the Neurologist’s diagnosis (impression) as Posterior Circulation Stroke and advice

“Advised: - Urgent CT Scan (Plain) Injection Clexane 0.6 ml. SC/bd- if no Bleed in CT Head (if no cardiac C.I.) MRI brain when feasible Rest CST (continue same treatment)The sentence “injection Clexane.. if no bleed in CT head” is misquoted by complainant . It is necessary to read above lines collectively i.e not in vacua. As such the CT head did not show bleed (hemorrhage) hence Inj Clexane was continued by OP. Hence, we do not find any deficiency by the doctors attending the patient including the Cardiologist, Neurologist, etc. Also, giving injection Clexane to the patients having cerebral infarct is a standard treatment. Exhibit RW 37 mention that the OP followed the treatment of Posterior Circulation Stroke advised by Neurologist with Inj.Mannitol, Inj Lasix as standard of practice.

24. It is pertinent to note in this case that the OPs have given

entire file of medical record containing 41 sheets to the relatives of patient who had requested after death of patient. But, complainant has not placed the entire file, but placed only few documents before this commission. Complaint has concealed the report of two CT Scans with an intention to mislead this Commission. But, the notes and observations made by the treating doctors in the Progress Sheets throw light. The clinical notes on 13/1/2002 from 7 pm onwards in the progress sheet Exhibit RW 38 revealed that patient was in Poor Condition , Generalised flexion –Increased Intracranial Tension for which CT head was done and revealed “Multiple Infarcts”. The Exhibit RW 39 , 39 are progress report sheet dated 13/1/2002 mentioned as at 7.30 pm the patient suffered Respiratory Arrest followed by cardiac arrest ; the OP doctors treated by all measures , done CPR ( Cardio Pulmonary Resuscitation) , patient was put on ventilator , DC shock. Despite of proper medical treatment and care the condition of patient deteriorated and subsequently died on 14.01.2002 at 6:30a.m.

25. To ascertain the truth we have referred the nurses notes from 11/1/2002 to 14/1/2002 which are Exhibits RW 41 to 46 Those notes also confirmed that the OPs acted in accordance with standards of medical practice and treated the patient with all possible efforts.

26. For legal position 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 it was also held that a doctor is

not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view.Essentially three principles are applied to decide negligence of doctor;

(i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; in this present case it is ‘YES’ both the OP doctors are qualified as DM Cardiology and Senior Consultants having 15 years expereince ;(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 view on the points No (ii) & (iii) are “ Yes” as the both respondents adopted standard of practice in proper diagnosis, referral and further management.

27. 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.”

Therefore in the instant case OP-2 and 3 are qualified and skilled in their specialty , hence it is not negligence.

28. Applying all the above principles in the instant case, we are convinced that there is no medical negligence – admittedly, the respondents are qualified doctors and they have used their best professional judgment and due care in treatment of patient right from beginning.

29. In the case of Kusum Sharma Vs. Batra Hospital(2010 CPJ) culled out the following principles:

“Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

ii. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

iii. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

iv. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

v. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

vi. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

vii. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

viii. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

ix. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

x. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

xi. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals”.

30. Further, we have referred standard medical texts and literature which revealed that there is lot of difference between Cerebral Infarct and Cerebral Haemorrhage. Both entities are totally different. There is no contraindications for use of Inj. Clexane in post PTCA – Cerebral Infarction. The Complainant did not produce the CT reports stating as Hemorrhgaes. Therefore, complainant’s allegation is absolutely wrong about CT showed cerebral haemorrhage and against the advice of neurologists the OP continued the treatment by injection Clexane and subsequently the patient died of cerebral haemorrhage.

31. Reference from Medical Text and Literature:We have referred The text book Harrison's Principles of Internal Medicine (18th edition) to understand the medical management of Cerebral Infarction, theAcute Myocardial Infarction and Triple Vessel Diseases. We felt it is necessary to distinguish the terms “HEMORRHAGE” and “INFARCTION” to decide this case of medical negligence. Hence, it is important to know the causes of Myocardial infarction and Cerebral Infarct. It is very clear from the angiography of patient that there was a Triple Vessel Block almost 90% in the RCA and 60-70% in other two vessels. Such

blocks are most common due to atherosclerosis of small arteries which lead to ischemia (loss of blood supply). Cerebral Infarction is focal brain necrosis due to prolonged ischemia by small vessel disease and cardio embolism. It is the most common cause of ischemic stroke in elderly patients.Small vessel disease includes atherosclerosis of small arteries but refers more specifically to lipohyalinosis and hyaline arteriolosclerosis, vascular lesions that are seen primarily in hypertension and diabetes but occurs also in old age without these predisposing conditions.

According to some authors, embolism is the most frequent cause of ischemic infarction. Most emboli are fragments of blood clots that originate in the heart or major vessels. Conditions causing cardiac emboli include myocardial infarcts, atrial fibrillation and other arrhythmias, rheumatic heart disease, bacterial and non-bacterial endocarditis, prosthetic valves, mitral valve prolapse, atrial myxoma, calcified mitral annulus, and cardiomyopathy. An embolus cannot be distinguished grossly or microscopically from a locally formed thrombus. An infarct is assumed to be embolic if it is hemorrhagic, there is a source of emboli, there are multiple infarcts of the brain and other organs (kidney, spleen), and there is no atherosclerosis or other vascular disease. Some emboli consist of atheromatous material that is detached from ulcerated atheromas of the aorta or carotid arteries. Vascular manipulation (angiography, carotid endarterectomy) may cause atheromatous embolism. Rarer causes of embolism are fat, air, and tumor emboli. Unlike athero-thrombotic infarcts, which may evolve within hours or days, embolic infarcts have an abrupt onset.

32. Therefore, for the reasons stated above in our opinion the OP doctors have treated the patient with care and caution as per standards of medical practice. We do not find any deficiency in their services in diagnosis and treatment. They have taken life saving measures and care during the Cardio-Respiratory arrest and tried to save the patient. The patient suffered Cerebral Infarct and the death of patient was not due to Cerebral Hemorrhage as alleged by complainant but death was due to Cardiac Arrest. Also, the complainant is failed to prove that the patient suffered cerebral hemorrhage and death was due to negligence of OPs in treatment.

33. We have perused the complainant’s Annexure P/3 placed on record as a Bill for Rs.165,200/- in which discount of Rs.15,000/- was allowed and a sum of Rs.21,000/- remained unpaid . Also, the Exhibits RW/47 and RW/49 placed on record by OPs clearly mention about the Schedule of Charges, hence the contention of complainant about Rs.2 lacs paid for bypass surgery will not sustain. We ignore this issue of short of payment.

34. To conclude on a consideration of the entirety of the facts and circumstances of the present case, the evidence and material brought on record,

and the different standard medical text books, the irresistible conclusion is that the Complainant failed to establish her case about the medical negligence and / or deficiency in service against the opposite parties in the treatment of her husband(deceased). The complaint being devoid of any merits is accordingly dismissed, leaving the parties to bear their own costs.

…..…………………………

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

.…..…………………………

(Dr. S. M. KANTIKAR) MEMBER

MSS/22


REVISION PETITION NO. 2021-2022 OF 2013

(From the order dated 14.09.2012 in Appeal Nos. 43/2011 & 44/2011 of the Uttarakhand Consumer Disputes Redressal Commission, Dehradun)

Smt. Jeevanti Devi W/o Sh. Lal Singh Nayal R/o Adarsh Colony, Kathgodam District – Nainital Uttarakhand


Versus1. Commercial Motors Bareilly Road,Haldwani, Distt. Nainital, Uttarakhand Through its Partner Sh. Manik Chandra 2. Tata Motors Ltd. 26th Floor, Centre A-1, World Trade Center, Cafi Parade, Mumbai – 400005


For the Petitioner : Mr. Sandeep Malik, Advocate Mr. Sanpreet Singh, AdvocateFor the Respondent No.1: Mr. Nikhil Jain, Advocate/Caveator


O R D E R


These revision petitions have been filed by the Petitioner/Complainant against

the order dated 14.09.2012 passed by the Uttarakhand State Consumer

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

Nos. 43 & 44 of 2011 – Commercial Motors Vs. Smt. Jeevanti Devi &Anr. and Tata

Motors Ltd. Vs. Smt. Jeevanti Devi & Anr. by which, while allowing appeal, order of

District Forum allowing complaint was set aside.

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

forum and learned District Forum vide order dated 22.1.2011 allowed complaint and

directed OPs to pay Rs.5,69,085/- (cost of Tata Winger UK04-PA-0020) along with

interest and cost. Appeal filed by the OP was allowed by learned State Commission

vide impugned order and complaint was dismissed against which, this revision petition

has been filed with application forcondonation of delay of 135 days.


4. In application for condonation of delay, petitioner submitted that petitioner is a

senior citizen and an old lady residing in a distant place in District Nainitaland she has a

history of prolonged illness. It was further alleged that petitioner was not aware about

the order, but respondents informed to the petitioner that State Commission has

dismissed complaint; so, petitioner may take back her vehicle from respondent’s

premises. Petitioner asked her son to enquire who confirmed that order has been

passed by State Commission. Thereafter, petitioner consulted his family friends and

well-wishers, who advised him to file appeal against the order. Thereafter, son of the

applicant contacted Counsel at New Delhi. Counsel got the documents translated in

English from Hindi and then revision petition has been filed and further submitted that

delay was neither intentional nor deliberate which may be condoned.

5. Learned State Commission passed impugned order on 14.9.2012 and revision

petition has been filed on 17.5.2013, i.e. after 135 days. Petitioner has not disclosed in

his application when respondent informed to the petitioner about dismissal of complaint

by State Commission, when petitioner asked his Counsel to file revision petition and

when revision petition was prepared. As no details have been given by the petitioner in

application for condonation of delay about getting knowledge of the order and

consultation with the Advocate for filing revision petition, we do not find any satisfactory

explanation for inordinate delay of 135 days in filing revision petition.

6. As there is inordinate delay of 135 days, this delay cannot be condoned in the light

of the following judgment passed by the Hon’ble Apex Court.

7. In Ram Lal and Ors . Vs. Rewa Coalfields Ltd ., AIR 1962 Supreme

Court 361, it has been observed;“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces

the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

8. In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has been

observed: “We hold that in each and every case the Court has to examine

whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”


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.”


– Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed as






departments.

Thus, it becomes clear that there is no reasonable explanation at all for condonation of

inordinate delay of 135 days. Revision petition is liable to be dismissed on the ground of

delay alone.

12. 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 petitioners is dismissed at admission

stage being barred by limitation with no order as to costs.


..…………Sd/-…………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 616 OF 2012 (From the order dated 13.01.2012 in First Appeal No. FA/162/2011of West Bengal State Consumer Disputes Redressal Commission)

Renu Sharma r/o 11/21, R.B.C. Road, P.O. Rishra, P.S. RishraDistrict Hooghly West Bengal

... Petitioner

VersusState Bank of Patiala MID CORPORATE BRANCH, Shantiniketan Building, 8, Camac Street, P.S. Shakespeare Sarani,Kolkata – 700017

… Respondent BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. Renu Sharma, In person





passed by the West Bengal State Consumer Disputes Redressal Commission (for short

‘the State Commission’) in FA No. 162/2011, “State Bank of Patiala

versus Renu Sharma” vide which while allowing appeal, the order passed by District

Consumer Disputes Redressal Forum, Kolkata allowing complaint no. 404/2009 filed by

the petitioner/complainant was set aside.

2. Brief facts of the case are that petitioner Renu Sharma used to live in flat no. 3/c,

3rd Floor, at Shivam Plaza apartment, premises number 92/B, N.K. Banerjee

Street, Rishra, District Hooghly which was owned by late Akhil Chandra Banik, who had

purchased the same in 1999 through a registered sale-deed. The

owner Akhil Chandra Banik entered into an agreement dated 12.06.2001 with a

developer M/s. Glacier Constructions for the development of the said property. The

petitioner purchased the flat in question by paying a sum of Rs.20,000/- on 23.11.2002

and then Rs.90,000/- on 06.12.2002 and entered into an agreement with the owner and

the developer. On 27.12.2002, the petitioner applied for home loan from Punjab & Sind

Bank, Lindsay Street Branch. The Bank made direct payment of Rs.1,50,000/- to the

developer on 05.02.2002. The possession of the flat was delivered to the petitioner on

17.11.2003 and the Punjab & Sind Bank made direct final payment of Rs.1.83 lakh to

the developer vide pay order dated 05.12.2003. The petitioner then decided to transfer

the said loan from the Punjab & Sind Bank to the State Bank of Patiala/OP. Loan was

sanctioned by the State Bank of Patiala and they made payment of Rs.3.28 lakh to the

Punjab & Sind Bank vide pay order dated 27.01.2004. It has been alleged by the

petitioner that he continued to live in that flat, when on 19.06.2007, at about 2:30PM,

when he was in the office and his family was in the flat, some musclemen from the

Indian Bank forcibly evicted his family from the flat. He came to know that the owner of

the flat had sold the same flat to one Sital Singh, who had taken loan from Indian Bank

upon mortgage of the flat, but had not repaid the said loan. The petitioner filed criminal

case against the landowner and the developer, but subsequently, both of them

died. The petitioner has alleged that the respondent/OP State Bank of Patiala showed

negligence in not scrutinising the relevant documents of the flat at the time of giving

loan to him and hence, the respondent/OP was liable to pay compensation for

deficiency in service. The petitioner filed a consumer complaint before the District

Forum which allowed the same and directed the State Bank of Patiala to stop deduction

of EMI from the monthly salary of the complainant and also to pay him compensation of

Rs.25,000/- and litigation cost of Rs.5,000/-. An appeal against this order was allowed

by the State Commission and the complaint was ordered to be dismissed. It is against

this order that the present revision petition has been filed.

3. Heard the petitioner in person. He stated that the flat in question had already been

sold to Sital Singh, who had raised loan form the Indian Bank but did not repay the

same. The Indian Bank had, therefore, dispossessed the petitioner and his family from

the flat and they were forced to live in a rented accommodation. He also stated that

another loan had been raised from the HSBC Bank also. He alleged that the State Bank

of Patiala had committed deficiency in service by not checking the documents at the

time of giving the loan for which the petitioner had to suffer.

4. On examination of the material on record, it is clear that the petitioner purchased

the said flat from the owner/developer after raising loan from the Punjab & Sind

Bank. Thereafter, he decided to take another loan from State Bank of Patiala and

discharged the liability of the Punjab & Sind Bank. He is, therefore, under obligation to

repay the loan taken from State Bank of Patiala. The fact that loan had been raised

by Sital Singh for the same property from the Indian Bank does not lead to the

conclusion that the respondent/OP State Bank of Patiala has committed any deficiency

in service in any manner. We are in full agreement with the conclusion arrived at by the

State Commission that once the complainant has raised loan from the State Bank of

Patiala, they are duty bound to repay the same. It is also clear that the respondents/OP

State Bank of Patiala had no role in dispossessing the petitioner from the said flat and

hence they have not committed any deficiency in service. We, therefore, hold that the

order passed by the State Commission does not suffer from any illegality, irregularity or

jurisdictional error and the same is upheld. The revision petition is ordered to be

dismissed with no order as to costs.Sd/-



MEMBERRS/

National Consumer Disputes Redressal Commission New Delhi

Revision Petition no. 628 of 2013(Against the order dated 15.10.2012 in Appeal nos. 2166 of 2010 and 72 of 2011 of the

Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal)

Union of India Through the General Manager East Central Railway, Patna Station Manager Muzaffarpur Railway Station Bihar

North Central Railway Through Station Manager Railway Station Gwalior

Petitioner(s)

Vs Smt Kavita Madan Wife of Shri Ranjan Madan, H –9, Govind Puri Post Office R K Puram Gwalior

Respondent Before:

HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER HON’BLE MRS REKHA GUPTA MEMBER For the Petitioner (s) Ms Rekha Aggarwal, Advocate Pronounced on 16 th August 2013

ORDER

REKHA GUPTA

Revision petition has been filed against the order dated 15 th October 2012 passed by the Madhya Pradesh State Consumer Disputes RedressalCommission, Bhopal in appeal nos. 72 of 2011 and 2166 of 2010 filed by the respondent whereby both the appeals were dismissed.

The brief facts of the case as given by the respondent/complainant are that the respondent has gone to Muzaffarnagar along with her two daughtersPrachi and Bhagi and father-in-law Kishan Lal Madan to attend a wedding ceremony. The respondent purchased tickets on 06.02.2008 from petitioner no. 3 for the return journey from Muzaffarpur on 18.02.2008 in train no. 1123. She got reserved tickets nos. 49, 50, 51 and 52 for herself and her family.

On 18.02.2008 respondent went to Muzaffarpur Railway Station along with her two daughters and father-in-law for the return journey by train no. 1123 in coach no. S 3 on reserved seats no. 49 to 52 and the journey was to start at 05.00 p m.

When the train started from Muzaffarpur and reached Sonepur Railway Station at about 02.00 a m most of the passengers were asleep. At this time 5-6 boys boarded the train and after sometime they broke the chains which were attached to the suit cases and they collected the suit cases at the gate of the train. At this time, the respondent

woke up and raised a cry and other passengers also woke up. At this the boys threw the suit cases from the running train and when the train slowed down they jumped out of the train. Her father-in-law gave a complaint of this incident to the guard at Chapra Railway Station. The guard told him to inform the TT. But there was no TT available in the train. Her father-in-law tried to lodge the complaint at Chapra Junction, Lucknow junction and Bara Banki station but as the stoppage time was less and they had children with them, they could not lodge the complaint.

Out of the eight suit cases stolen by the boys, the respondent had three suit cases of VIP make in blue colour. One was of 36”, the second was medium and the third of small size. In the big suit cases there were five suits, six sarees and woolens as well as gold jewellary which included 1 gold necklace, 2 rings, 2 tops, 2 ear rings and four bangles weighing about 10 tolas. The second suit case contained 5 sets each of cloths of the 2 children, 4 sweaters. The third suit case contained 4 trousers, 4 shirts, 1 coat other clothes and the passbook of saving account no. 10504757769 of State Bank of India, Murrar. The total value of the goods was about Rs. 1.00 lakh.

When the train reached Gwalior on 20.02.2008, the respondent’s father-in-law gave a written complaint to the police station GRP at Gwalior. When no action was taken on this complaint, then her father-in-law wrote letters dated 02.04.2008, 10/11.02.2009 by registered post to Mazaffarpur, Chapra, SonepurStation and on 11.11.2009 but the petitioners did not give any suitable reply. On 30.04.2008, the Commissioner of Police, Railways Muzaffarpur informed that due to lack of any evidence the police had filed a final closure report on the complaint.

The petitioner/ opposite party in their written statement have denied the entire complaint stating that the alleged incident has been concocted to make a legal issue and gain unlawful advantage. It is denied that any thief had entered the Barauni Gwalior mail no. 1123 on 08.02.2008. No information of any such incident has been received from any other passenger. It is also denied that there was no TT or guard in the train. The TT was present throughout the journey and checking the tickets of the passengers from time to time. It is also denied that due to less stoppage time of the train, the respondent could not make report of the alleged incident as the complaint book available in the coach itself in which any passenger can note down his complaint.

The District Consumer Disputes Redressal Forum, Gwalior (MP) vide order dated 17.08.2010, while allowing the complaint ordered that “the opposite party is directed to pay Rs.50,000/- within 30 days to the complainant failing which they will have to pay interest @ 9% per annum. The opposite party will also pay Rs.1,000/- towards cost of the expenses incurred. The complaint is closed”.

Aggrieved by the order of the District Forum, two appeals were filed before the State Commission. Appeal no. 2166 of 2010 was filed by respondent/complainant for enhancement and the second appeal no. 72 of 2011 was filed by the petitioner for setting aside the order of the District Forum. The State Commission “dismissed both the appeals with no order as to costs”.

Hence, the present revision petition.

Along with the revision petition, the petitioner has filed an application for condonation of delay of 29 days. As per the application, the certified copy of the impugned order was delivered by the State Commission on 22.10.2012. Thereafter it took some time for the petitioners to engage a lawyer in Delhi to file the revision petition. Moreover all the documents are in vernacular and it took considerable time to translate

the same in English. All this exercise has taken some time and there was some unavoidable delay beyond their control.

We have heard the learned counsel for the petitioner and have gone through the records of the case. No cogent reasons have been given either by the counsel for the petitioner or in the application for condonation of delay to explain and justify the day to day delay of 29 days.

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

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;

“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 R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed:


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 Apex Court, in the case State Bank of India vs B S Agricultural Industries II (2009) SLT – 793 = (2009) 5 SCC 121 have held as under:

“As a matter of law, the Consumer Forum must deal with the complainant 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 decided 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.”

The present case is fully covered under the case laws cited above Supra.

The petitioners have failed to produce any detailed reasons to explain the delay of 29 days.

Accordingly, no sufficient grounds are made out for condonation of delay of 29 days in filing the present revision petition. The application for condonationof delay under these circumstances is not maintainable and the present revision petition being barred by limitation is hereby dismissed with cost of Rs.10,000/- (Rupees ten thousand only).

Petitioner is directed to pay a sum of Rs.5,000/- by way of demand draft directly in the name of respondent and the balance amount of Rs.5,000/- be deposit 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 cost within the prescribed period, then it shall also be liable to pay interest @ 9% per annum till its realisation.

List for compliance on 20th September 2013.

Sd/-

..………………………………[ V B Gupta, J.]

Sd/-

………………………………..[Rekha Gupta]

Satish


REVISION PETITION NO. 4288 OF 2012 (From order dated 16.08.2012 in First Appeal No. 265 of 2012 of the

UT Chandigarh State Consumer Disputes Redressal Commission, Chandigarh) Rajbeer Singh S/O Shri Satya Pal Singh, House No. 36-A, Sector-51-A,Chandigarh-160047

… Petitioner

Versus 1. The Manager, The Emaar MGF Land Ltd., SCO No. 120-122, 1st Floor, Sector 17-C, Chandigarh-160 017 2. M/S Emaar MGF Land Ltd. Corporate Office ECE House, 28, Kasturba Gandhi

Marg New Delhi-110001… Respondents

BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBER HON’BLE DR. S. M. KANTIKAR, MEMBER For the Petitioner : Mr. Rajeev Ranjan , Advocate For the Respondent : Ms. Kartika Sohag, Advocate with Mr. Arjun Jain, Authorized Representative Pronounced On 16 th August , 2013

ORDER


1. That the Petitioner prefers the instant Revision Petition against the impugned order dated 16/08/2012 passed by the Hon’ble State Consumer Disputes Redressal Commission, Union Territory, Chandigarh (herein after referred to as, ‘State Commission’) in First Appeal No. 265 of 2012 titled as “Rajbeer Singh vs. The Manager, The Emaar MGF Land Ltd. & Anr.”. By the final impugned order dated 16/08/2012 the Hon’ble State Commission dismissed the Appeal and upheld the order dated 27/06/2012 passed by the Hon’ble District Consumer Disputes Redressal Forum-1, UT, Chandigarh ( herein after referred to as, ‘District Forum’) in Consumer Complaint No. 130 of 2012. It is submitted that the Hon’ble State Commission as well as Hon’ble District Forum dismissed the case without considering the factual as well as legal aspect of the dispute.

2. The Facts in Brief:

That the Complainant, booked a residential floor in “The Terraces” at Mohali Hills, in Sector 108, S.A.S. Nagar, Mohali, Punjab, and paid a sum of Rs.3 lacs, vide cheque dated 04.09.2008. The OPs, vide communication dated 13.04.2009, Annexure C-1, informed about the provisional allotment of unit No.574/GF, in Mohali Hills, aforesaid. The Complainant was given assurance,

by the OPs, that the Scheme would be launched, within one month and construction would start, but they failed to abide by their commitments. The Complainant, sent letters dated 05.10.2009, Annexure C-2 and 30.10.2009 Annexure C-4, to OP No.1, with a request to refund the earnest money of Rs.3 lacs, within 15 days, but all in vain. Ultimately, a legal notice dated 23.12.2009, Annexure C-5, was issued to the OPs, for refund of the amount, but no positive response was received. It was stated by OP that the Complainant was asked to sign the Buyer’s Agreement, failing which, the deposited amount shall stand forfeited, but the Complainant never signed the same and, as such, the terms and conditions were not applicable to him. It was further stated that, by not refunding the earnest money, deposited by the Complainant, the OPs, were not only deficient, in rendering service, but also indulged into unfair trade practice. When the grievance of the Complainant, was not redressed, left with no alternative, a complaint, under Section 12 of the Consumer Protection Act, 1986 (herein after to be called as the Act only), was filed.

3. OPs No. 1 and 2, in their joint written version, pleaded that the District Forum, at Chandigarh, had no territorial Jurisdiction, to entertain and decide the complaint. It was admitted that the Complainant, booked the apartment, in question, and paid the earnest money, to the tune of Rs.3 lacs, against the total sale consideration of Rs.46 lacs, but he failed to sign the Buyer’s Agreement, till the date of filing the complaint. It was stated that as per the terms and conditions of Advance Registration Application Form for Allotment, duly signed by the Complainant and Meenakshi, co-applicant, in the event of non-signing of the Buyer’s Agreement, by the Complainant, and returning the same, within 30 days, from the date of receipt of the same from the OPs, the earnest money deposited by the Complainant, stood forfeited, without any notice/reminder.

4. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint.

5. Aggrieved by the order of the District Forum, the Complainant filed an Appeal before the State Commission. The State Commission heard the counsel for both the parties and through the evidence and records in this case and dismissed the Appeal as it was deferred on merits.

6. Aggrieved by this order the Complainant filed this Revision Petition in National Consumer Disputes Redressal Commission.

7. We have heard the Counsel for both the parties and perused the evidence on record. The Counsel for the Petitioner submitted that the Complainant booked the

apartment by paying Rs.3 lacs and the provisional allotment letter Annexure-C. But the Complainant never received the buyers agreement. Hence, the question of signing and returning the agreement within 30 days from the date of receipt did not arise at all. Further, submitted that the OP unilaterally changed to the construction linked installment plan. The Complainant wrote numerous letters and requested for refund of advance money deposited but the OP did not respond. We have perused the “Details and Broad Terms and Conditions” mentioned alongwith advance registration application form for allotment issued by OP. In those conditions, Under Para 8 reproduced as follows:

8. Surrender/Cancellation

8.1) In case the refund of the initial deposit is sought after acceptance of application/registration within_____ months of issue of Allotment Letters, shall be refunded after forfeiting 20% of the registration amount.

8.2) The Applicant hereby authorizes the Company to forfeit the earnest money along with the interest paid, due or payable, along with any other amounts of non-refundable nature, in case of failure by the Applicant to sign and return to the company the Buyer’s Agreement within thirty (30) days of its dispatch by the company.

Therefore, as per condition number 8.1 Complainant’s stand is a valid one. Counsel for OP Ms. Kartika Sohag relied upon only the clause 8.2 and stated that forfeiting of earnest money was correct. The Counsel for the OP contended that the Complainant cannot take advantage of his own wrong with intention of causing wrongful laws to the Respondent. The Complainant as under the terms of advance application registration form was obliged to return the executive buyers agreement within 30 days of dispatch from the Respondent’s company i.e. 24.04.2009. Therefore, the OP was agreeing the forfeiting the earnest money.

8. Counsel for OP relied upon an authority of Hon’ble Apex Court in V. Lakshmanan v. B.R. Mangalgiri and Ors. (1995) Suppli. (2) SCC 33. It was held as follows:

“The question then is whether the Respondents are entitled to forfeit the entire amount. It is seen that a specific covenant under the contract was that Respondents are entitled to forfeit the money paid under the contract. So when the contract fell through by the default committed by the Appellant, as part of the contract, they are entitled to forfeit the entire amount”.

She also relied upon another case Videocon Properties Ltd. v. Dr. Bhalchandra laboratories and others (2004) 3 SCC 711, dealt with a case of sale of immovable property. It was held by Hon’ble Supreme Court as follows:

“It was a case where the plaintiff-Appellants had entered into an agreement with the Respondents-Defecndents on 13.05.1994 to sell the

landed property owned by the Respondents and a sum of Rs.38,00,000/- was paid by the Appellants as deposit or earnest money on the execution of the agreement. In that case, this Court examined the nature and character of the earnest money deposit and took thed view that the words used in the agreement alone would not be determinative of the character of the “earnest money ” but really the intention of the parties and surrounding circumstances. The Court held that the earnest money serves two purposes of being part-payment of the purchase money and security for the performance of the contract by the party concerned. In that case, on facts, after interpreting various clauses of the agreement.

9. The Petitioner’s Counsel argued that it was not the earnest

money but it was the advance towards the initial payment of the payment.

10. The arguments of OP was that the Petitioner deposited the initial deposit. It is equal in nature of earnest money and referred few authorities of Hon’ble Supreme Court but in our opinion those authorities are not applicable to this case on hand.

11. Therefore, it is very clear that the OP failed to pay the amount

of Rs.3 lacs but forfeited on the ground as stated above. The Complainant never signed the buyers agreement therefore, the condition no. 8.2 will not apply. Hence the company has no right to forfeit the amount deposited by the Complainant on account of booking residential floor in “The Terrace” at Mohali Hills. It is the deficiency in service and unfair trade practice.

12. Both the Fora below have not appreciated the Para 8.1 and only

relied upon Para 8.2. Therefore, the Petitioner / Complainant is entitled for the refund as per Para 8.1 i.e., after deducting 20% of the Registration amount.

13. In view of the above discussion we set aside the order passed by

both the Foras below and pass the order that the OPs are directed to refund Rs. 240000/- only to the complainant from the date of filing of the Complaint within 60 days otherwise, it will carry interest at 9% per annum till recovery. No order as to costs.

..…………………..……… (J.M. MALIK J.)

PRESIDING MEMBER

……………….……………

(Dr. S.M. KANTIKAR) MEMBER

Mss


REVISION PETITION NO.4684 OF 2012(From the order dated 12.09.2012 in First Appeal No.238/2005 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

WITH IA/1/2012 IA/2/2012 (C/COPY & STAY)

1. Sun Flag Hospital Research Centre Sector – 16A Faridabad Through its Authorise Representative

2. Dr. Prem Kumar Consultant/Medical Officer Sun Flag Hospital Research Centre Sector 16A, Faridabad

..…. Petitioners

Versus

Shri Raghubir Singh Poswal S/o Sh. Pehlad Singh R/o village Fulwarian Tehsil Palwal District Faridabad

..... Respondent

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER


For the Petitioners : Shri Rajesh Chhabra, Advocate

Pronounced on : 16 th August, 2013

ORDER

PER SURESH CHANDRA, MEMBER

This revision petition is directed against the order dated 12.09.2012 passed by

the Haryana State Consumer Disputes Redressal Commission, Panchkula (‘State

Commission’ for short) in First Appeal No.238 of 2005 by which the State Commission

dismissed the first appeal of the petitioners filed against the order dated 05.07.2004

passed by the District Consumer Forum, Faridabad in CC No.399. Vide its order, the

District Forum allowed the complaint of the respondent and granted the following relief:-

“…..In the circumstances, the complaint of the complainant succeeds and to satisfy the grouse of the complainant, following order is passed

1. The respondents are ordered to pay Rs.Two Lakhs along with interest @ 12% p.a. w.e.f. the filing of the present complaint till its realization.

2. The respondents are also ordered to pay Rs.5000/- on account of mental agony and Rs.500/- as litigation expenses.

The respondents are ordered to comply with the order of the Forum within 30 days after receiving the copy of the present order……….”

2. The brief facts of this case which are relevant for its decision are that Vikas aged

about 10 years, son of the respondent / complainant, was suffering from fever and was

brought to Dr.Rahul Verma at the Verma Children Hospital, Palwal. Dr. Verma noticed

symptoms of Dengue fever and hence he referred the patient to the

OPs/petitioners. Vikas was admitted in the hospital of the petitioners on 14.10.1998

where he was kept in the ICU and tests were carried out on him. However, Vikas was

declared dead at 9.40 a.m. on 15.10.1998 due to cardiac arrest. Alleging negligence

during course of treatment and carrying of tests as well as blood transfusion, the

complainant/respondent filed the consumer complaint before the District Forum in which

allegations of wrong diagnosis leading to incorrect line of treatment were also made. On

the other hand, according to the petitioners/OPs, the patient was brought to their

hospital on 14.10.1998 at 5.40 p.m. and after his admission, he was examined by doctor

on duty who indicated possibility of Dengue but when the patient was checked

by Dr. Prem Kumar, OP No.2, it was noticed that the patientwas having acute

breathlessness and air hunger and hence tests were carried out in the hospital lab. The blood test

reports indicated the following results:-

Found in the patient as per tests

Normal requirement of this age group

Normal values

Blood (HB) 2.5. grams 12 to 14 grams

White blood 3600 4,000 – 11,000

Platelets 40,000 1,50,000 to 4,00,000 lac

Nutro Pahils 26% 45-75

3. According to the petitioners, the tests results ruled out the possibility of Dengue

fever. The reports pointed towards “aplastic anaemia” which is called blood cancer in

common language and not Dengue as claimed by the complainant/respondent. It was

submitted by the OPs in their written statement that the patient could not be improved in

spite of their best efforts and unfortunately died on 15.10.1998.

4. Both the parties adduced their evidence before the District Forum by way of

affidavits. After hearing the parties and considering the evidence before it, the District

Forum allowed the complaint in terms of its order reproduced above. The State

Commission also upheld the same and dismissed the appeal filed by the petitioners

both on grounds of delay as well as on meritsvide its impugned order.

5. We have heard learned Shri Rajesh Chhabra, Advocate for the petitioners.

Learned counsel has submitted that the impugned orders of the Fora below are

perverse and against the well established principles of law and hence not

sustainable. He said that the State Commission has not applied its judicious mind while

passing the impugned order and contended that as the first appellate court it has failed

to appreciate the fact that the treatment given to the patient was on the basis of the

investigation reports. He pointed out that neither the complainant/respondent had led

any documentary evidence which could be suggestive of the fact that the patient was

suffering from dengue nor any test/investigation of dengue was conducted on the

patient or any such report was produced before the attending doctor i.e. petitioner no.

2. Since the first investigation report of the deceased patient was suggesting acute

blood anaemia/blood cancer, the attending doctor had no other alternative but to start

the treatment on the basis of this report. Learned counsel argued that both

the Fora below did not appreciate the fact that no specific negligence was proved by the

respondent in the trial court by leading evidence of a medical expert. On the other

hand, he submitted that the reply filed by the petitioners before the District Forum

clearly indicates that the deceased patient was rightly treated by the petitioners by

giving immediate blood transfusion to improve the H.B. level and other

symptoms. Learned counsel, therefore, pleaded that in these circumstances, no liability

could be fastened on the petitioners for the alleged negligence for which there was no

proof before the Fora below and hence the revision petition should be allowed and the

impugned order be set aside.

7. We have considered the submissions made by learned counsel for the

petitioners and perused the record. We may note that this revision petition has been

filed against the concurrent orders passed of the Fora below holding the petitioners

guilty of negligence. The main contention of learned counsel for the petitioners is that

treatment of the deceased patient given by the petitioners was in accordance with the

requirement of the patient based on the initial investigation reports and there is no

expert evidence to establish any negligence on the part of the petitioners in this

regard. No doubt that there is no expert opinion produced by the

respondent/complainant before the Fora below to establish the negligence on the part of

the petitioners. However, it is not in dispute that the patient was admitted in

the petitioners hospital on 14.10.1998 and died on the next day i.e. on

15.10.1998. Such a sudden death of the patient within 24 hours of his admission into

the hospital of the petitioners by itself raises suspicion about the line of treatment

adopted by the petitioners while treating the deceased patient and would necessarily

call for submission of further details in respect of the treatment and reasons for the

sudden death of the patient in spite of the treatment. This also raises a question, if the

condition of the patient was really so serious as was likely to result into his death so

soon, was the hospital of the petitioners well-equipped to deal with such an

emergency? If not, the question would arise as to whether the petitioners briefed the

respondent/complainant about the condition of the patient and to refer him to a better

equipped hospital? It is here that we find that the fora below came to the conclusion

about negligence on the part of the petitioners. In this context, the State Commission

while upholding the order of the District Forum has observed as under:-

“It is admitted case of the opposite parties that as per the above tests,

the disease suffered by the patient is known as ‘Aplastic Anemia’ which is

called Blood Cancer in common language and not Dengue. It is not the

case of the opposite parties that the patient was given the treatment of

cancer or that the complainant was advised to shift his minor son (patient) to

some other hospital for better treatment of cancer where the treatment of

cancer was available. The patient was brought to the hospital of the

opposite parties on 14.10.1998 and died on 15.10.1998. Thus, the opposite

parties have rightly been held negligent and deficient in service while

treating the minor son of the complainant. Though the opposite parties have

taken the plea that they had given proper treatment to the patient, but before

the District Forum the opposite parties failed to produce the treatment chart

of the patient which proves the act and conduct of the opposite parties with

respect to the treatment given to the patient. It is the case where the

complainant has lost his hope due to death of his son aged about 10

years.”

8. In view of the facts and circumstances of this case, the State Commission

referring to the ratio laid down by the Apex Court in the case of V. Kishan Rao Vs. Nikhil

Super Speciality Hospital And Another (2010) CTJ 868/2010 5 Supreme Court Cases

513 has rightly concluded that expert opinion is not necessary in all cases where the

negligence and deficiency in service of the treating doctor is established from the facts

and circumstances of the case. Treating doctor can be involved in a criminal offence of

medical negligence when there is some evidence of higher degree but the civil liability

of the treating doctor for the wrong treatment given to a patient can be fastened on the

basis of the facts and circumstances of the case.

9. Following observations of the Apex Court in the case of V. Kishan Rao (Supra)

may be reproduced to clarify this aspect further:-

“50. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.”

10. In view of the above enumerated position in law, the least that can be expected

of the petitioner / opposite parties was to produce the treatment record of the deceased

child so as to enable the foras below to conclude if the petitioners had taken a

reasonable care of the deceased patient or they were negligent in their duty to treat the

child. From the observations of the State Commission reproduced above, it is evident

that the petitioners failed to produce the treatment chart of the deceased patient in their

evidence. In the absence of the treatment record, which could have thrown light on the

issue of medical negligence, we are of the view that the foras below have rightly

concluded that the petitioners were negligent in the treatment of the deceased

child. Thus, we do not find any illegality or infirmity in the impugned order which may

call for interference by this Commission in exercise of the revisional jurisdiction. The

revision petition is accordingly dismissed in liminie with no order as to costs.

……………Sd/-……..………..

(AJIT BHARIHOKE, J.)

PRESIDING MEMBER

…………Sd/-…….……………

(SURESH CHANDRA)

MEMBER

SS/


REVISION PETITION NO.3013 OF 2012(From the order dated 31.10.2011 in F.A. No.543/2008 of the

State Consumer Disputes Redressal Commission, Delhi)

1. G.B. PANT HOSPITAL THROUGH ITS MEDICAL SUPERITENDENT ASAF ALI ROAD, NEW DELHI. 2. THE CHIEF SECRETARY GOVT. OF NCT OF DELHI, NEW DELHI.

.….. PETITIONERS Versus

1. AVTAR KISHAN 359, SUBHASH NAGAR, JAMMU TAWI. 2. RAVI KUMAR PEER, B-14/78, HIMGIRI APARTMENTS, SECTOR-34, NOIDA.

....... RESPONDENTS

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER


For the Petitioners : Ms. Bindya Savara, Advocate

For the Respondents : Mr.Madhurendra Kumar, Advocate

PRONOUNCED ON: 19 th August, 2013

ORDER


I.A. No.3 of 2012

This revision petition challenges the order dated 31.10.2011 passed by the

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

Commission’) in F.A. no.08/543 by which the State Commission dismissed the

appeal filed by the petitioners against the order dated 05.02.2008 passed by the

District Forum (Central), Kashmere Gate, Delhi by which the complaint filed by the

respondents was allowed directing the petitioners no.1 and 2 jointly or severally to

pay a sum of Rs.3 Lakhs (including the charges taken by the petitioners) as

compensation to the respondents and also to pay them a sum of Rs.5,000/- as cost

of litigation. The State Commission vide its impugned order also imposed cost of

Rs.10,000/- on the petitioners while dismissing their appeal. The petitioners, thus,

have approached this Commission challenging the concurrent finding of the District

Forum and the State Commission holding the petitioners no.1 and 2 guilty of

deficiency in service and directing them to pay compensation/cost as per the

impugned order. There is a delay of 153 days in filing the revision petition for which

the petitioners have filed an application for condonation of delay. Notices were,

therefore, issued to the respondents on the application for condonation of delay as

well as on the revision petition.

2. We have heard learned Ms.Bindya Savara, Advocate for the petitioners and

learned Mr.Madhurendra Kumar, Advocate for the respondents on the request of the

petitioners for condonation of delay in filing this revision petition.

3. The report submitted by the Registry shows that the impugned order was

passed by the State Commission on 31.10.2011 and it was received by the

petitioners on 15.12.2011. The revision petition came to be filed on 14.08.2012.

Thus there is a delay of 153 days after deducting the period taken for obtaining the

certified copy and the prescribed period of 90 days for filing the revision

petition. The application filed by the petitioners for condonation of delay, however,

does not indicate the period of delay in filing the revision petition. In support of the

request for condonation of delay, it is submitted by the petitioners that the impugned

order was received on 15.12.2011 and the decision to challenge this order was

taken and a brief note was prepared in December itself for seeking the approval of

the Health and the Law Department of the State Government to file the present

revision petition. However, since initially the request was turned down by the Law

Department, it was resubmitted with more details and grounds of challenge including

relevant literature on the subject. Finally, the approval for filing the revision petition

was granted and the same was received on 25.05.2012 and the permission to

engage lawyer was received on 08.06.2012. However, because of the courts being

closed for the summer vacation, the case file was assigned to the counsel for

preparing the revision petition on 09.07.2012. Thereafter, the counsel was quite

busy in arranging her cases as the courts were opened after the vacation and it took

quite some time for preparing the revision petition and hence, there was delay in

filing the same. After preparing the draft of the revision petition, it is submitted that

the same was sent to the Hospital for finalization thereof and the final revision

petition was then handed over to the counsel on 27.07.2012 who filed it on

14.08.2012. Learned counsel for the petitioners has submitted that the delay is

neither intentional nor deliberate but due to the reasons submitted in the

application. She has further submitted that since the delay in question occurred

because of the procedure which is required to be followed by the government

institution/department and the delay in question was neither intentional nor

deliberate, the same may be condoned. Learned counsel for the respondents, on

the other hand, has opposed the application for condonation of delay and has

submitted that the delay of 153 days in filing the revision petition beyond the period

of limitation prescribed for the purpose is inordinate and cannot be condoned in the

given facts and circumstances. He submitted that the petitioners have failed to give

any satisfactory explanation to justify the period of delay and hence, the application

deserves to be rejected.

4. We have considered the submissions of learned counsel for the parties and

perused the record.

5. As indicated above, the petitioners have failed to even mention the period of

delay in filing the revision petition. That itself is an indication of casual approach

adopted by the petitioners while drafting and submitting the application for

condoning the inordinate delay of 153 days. Coming to the explanation given in

support of the delay, we may note that after the preparation in December, 2011 of

the proposal for seeking approval of the government, it is not indicated as to when

the proposal was actually sent to the government for its approval and where and

why the delay took place from the beginning of January, 2012 till 25 th May, 2012

when approval is stated to have been granted by the government for filing the

revision petition. Day to day explanation is required in support of the period of

delay. Between the preparation of the proposal for seeking approval and the grant

of approval, there is a gap of about 145 days for which no explanation, much less

satisfactory, has been offered. Even after the grant of approval of the government

which was received on 25.05.2012, further time of 13 days was taken to engage the

counsel by which time, it is submitted that the courts were closed for summer

vacation. This explanation is nothing but a sham since it is common knowledge that

in spite of courts being on vacation, the Registry remains open during the summer

vacation and the revision petition could have been filed without further loss of

time. Be that as it may, again more than a month’s time was taken to assign the

case to the counsel on 09.07.2012 and here again without explanation in support of

delay on day to day basis, it has simply been indicated that the final approval to the

draft of the revision petition was given to the counsel on 27.07.2012. As if this was

not enough, in spite of final approval of draft revision petition and its being handed

over to the counsel on 27.07.2012, further delay was caused and the revision

petition was actually filed only on 14.08.2012. Considering the contents of the

application for condonation of delay, we have no manner of doubt that the petitioners

have given vague and general explanation and have miserably failed to demonstrate

any sense of urgency on their part at any stage after the receipt of the impugned

order and till the revision petition was actually filed on 14.08.2012 challenging the

same. We are, therefore, convinced that the explanation given by the petitioners

cannot be regarded as satisfactory or sufficient which would persuade us to condone

the inordinate delay of 153 days in filing this revision petition.

6. While dealing with the question of condonation of delay, it would be pertinent to

refer to the following observations of the Apex Court in the matter of Anshul Aggarwal

vs. New Okhla Industrial Development Authority IV (2011) CPJ 65 (SC)

“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.”

7. Decision of Anshul Aggarwal (supra) has been reiterated in the case of Cicily

Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon’ble Supreme

Court observed thus:-

“4 This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).

5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave

petition. Therefore, we do not see any cogent reason to condone the delay.

6. Hence, in the facts and circumstance of the case as

explained hereinabove, we are not inclined to entertain

these petitions. The same are dismissed on the ground of

delay”.

8. The Apex Court has also highlighted that while dealing with an application for

condonation of delay, the Court must bear in mind the object of expeditious disposal

of consumer disputes which would get defeated if the Court was to entertain highly

belated petitions.

9. Keeping in view the aforesaid settled position in law and the fact that the

petitioners have miserably failed to offer any reasonable and cogent explanation in

support of the delay which could constitute sufficient cause as envisaged under law

to condone the inordinate period of 153 days of delay in filing this revision

petition, we are not inclined to allow the application and hence, the same stands

dismissed. In view of the dismissal of the application for condonation of delay, the

revision petition also stands dismissed as barred by limitation with no order as to

costs.

………………….sd/-.………..

(AJIT BHARIHOKE, J.)

PRESIDING MEMBER

……………….…sd/-………

MEMBERbs


REVISION PETITION NO. 3142 and 3143 OF 2012

(Against order dated 18.05.2012 in First Appeal No. 828/2007 of the Punjab State Consumer Disputes Redressal Commission,

Chandigarh)

The New India Assurance Co. Ltd. Gurdaspur Road, Pathankot Through Manager, Regional Office-I, Jeevan Bharti Building, 124, Connaught Circus, New Delhi-110001.

…Petitioner Versus

M/S Satpal & Co., Lamini Pathankot, District Gurdaspur Through its Partner…Respondent

BEFORE: HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER HON’BLE DR.S.M.KANTIKAR, MEMBER For the Petitioner in both cases : Mr. Kishore Rawat, Advocate For the Respondent in both cases : Mr. K.P.S. Dalal, Advocate with Mr. Ranjit Singh, Advocate

PRONOUNCED ON August , 2013

ORDER


1. This common order will decide the

two Revision Petitions filed against the order passed by the State Consumer

Disputes Redressal Commission, Chandigarh, Punjab (in short, ‘State Commission’)

in First Appeal No. 828 of 2007 (New India Assurance Co. Ltd. Vs. Satpal & Co) and

First Appeal No. 1049 of 2007( M/S Satpal & Co. Vs. New India Assurance Co. Ltd.),

whereby the Hon’ble State Commission dismissed the FA No. 828/2007 and allowed

the FA No. 1049/2007. Those two

appeals were filed in the State Commission against the orders of the District

Consumer Disputes Redressal Forum, Gurudaspur (in short, ‘District Forum’).

2. Brief facts:

The facts are similar in both revision petitions. M/s Satpal & Company,

the complainant got insured its L & T machine from the OP vide policy No.

361601/31/05/00334,w.e.f. 30.06.2005 to 29.06.2006.

On 23.10.2005, the machine was working on hill and cleaning the surface on the hill

top.

It caused landslide due to which, the machine overturned and was totally dam

aged. The OP was duly intimated regarding the accident and loss to the mac

hine. The OP appointed a surveyor.

The complainant submitted all the claim papers to the surveyor and replied all the

queries, but the claim was not settled by the OP. OP submitted

that 1st surveyor Mr. Vikas Gupta conducted spot survey and gave the report on

9/11/2005 with details regarding damage to the machine. Thereafter, the OP-1

deputed another Surveyor and Loss Assessor M/S R.P. Bhasin & Co. to conduct

survey and to assess the loss. The surveyor produced report on 12.03.2006 as

assessed the loss to the tune of Rs.2,20,610/- and the value of salvage @

Rs.7,000/-. In reply the OP refused to pay, mentioning that ‘loader was not

working at the time of loss’, and filed the claim

of the complainant as ‘no claim’. Aggrieved by the decision

of the insurance company on 28.03.2006 a legal notice was also served upon OP.

The complainant filed a complaint for deficiency in service by OP

and prayed for payment of amount

of claim at Rs.13.50 lacs for which the said machine was insured along with

interest @ 12% p.a. from the date of loss till payment and to pay Rs.1lac as

compensation on account of harassment, loss of business and litigation expenses.

3. The District Forum held that the said machine runs into tons and it is not possible

that the machine can overturn as the base of the machine is very heavy. Referring to

the site survey report of Gram

Panchayat and claim form it was further held that the said documents show

that the machine was clearing the land at the Hill Top

when the earth below gave way and the said machine rolled down in the

Khud. The District Forum thus concluded that the repudiation of the claim was not

justified and the claim of the Complainant falls within the scope of the policy. As

against the amount of Rs.2,20,610/- assessed by the surveyor, the District forum

awarded a sum of Rs.5,02,081/- along with interest @ 9% from the date of

repudiation and cost of Rs.2000/-

4. The order of the District Forum was challenged by both parties before the State

Commission. The Complainant filed an appeal FA No.1049/2007 for enhancement of

the amount awarded by the District Forum. The Petitioner /OP Insurance Company

also filed appeal FA 828/2007 for dismissal of complaint. The OP contended about

the correct repudiation of claim under IMT - 47 and also the District Forum could

not have awarded any amount over and above the amount assessed by the surveyor.

The State Commission held that it was not a case of overturning but it was the land

slide by which the said machine was damaged due to fell down from the Hill Top.

Hence the IMT- 47 cause is not applicable. The State Commission dismissed the

appeal FA 828/2007 and allowed the Appeal FA 1049/2007 filed by the Complainant.

The State Commission held that the surveyor had whimsically and without reasons

reduced the estimated loss and estimate of loss can be taken as actual loss

therefore, amount of estimated loss of Rs.7, 38,500.76 was allowed with interest @

9% from the date of repudiation.by the holding that. The estimate of loss can be taken

as the actual loss.

5. Aggrieved by the order of state commission the Petitioner preferred these two

Revision Petitions.

6. We have heard the counsels for both the parties, perused the documents on file and

the IMT- 47 clause.

7. The L & T machine(Excavator Loader) was insured by complainant with the

Petitioner and at the time of accident the policy was in force. The State Commission

made following observations11..... as per the evidence led by the Respondent through Affidavit Ex.C-11, supported by the certificate of Sarpanch of the Gram Panchayat Ex.C-6, the L & T machine while excavating the land, fell down due to the landslide in the ditch. The Appellant filed the claim as ‘ no claim’ for the reasons :- “Loader was not working at the time of loss.”The Appellant deputed Mr. Vikas Gupta, surveyor who gave his report Ex.R-3 and under the head ‘Cause & Circumstances of Loss’, he reported as follows:-“While clearing the surface near the hill top, all of a sudden a portion of land slide & the machine rolled down into the Khud, causing multiple damages”.

8. We have perused the evidence on record and noted that the surveyor Vikas

Gupta submitted the details of the damage caused, but did not assess the

value of loss. The Petitioner appointed 2nd Surveyor/Accessor M/S R.P. Bhasin

& Co. who assessed the loss to the tune of Rs.2,20,609.99/-. The surveyor

made reduction in the loss assessed and labour charges for which he did not

give any reasons.

9. The petitioner repudiated the claim as per IMT – 47 i.e., the

loss or damage resulted by overturning arising out of the operation as a

tool, is not payable. Also extra premium was not charged in the present case.

We don’t find any force in argument of Counsel for Petitioner. We are in

considered view that it was the landslide which caused the said L &

T machine to fall down from the hill top and the damage was caused .It

is evident from the certificate of Sarpanch of the Gram Panchayat Ex.C-6.

The damage was not caused due to overturning and, therefore IMT-47 is not

applicable.

10. The Report as mentioned in 2nd surveyor’s report is “The parts mentioned as

to be checked after dismantling and hence not considered”;. Even though the

district forum made additions of value of those parts in the 1st surveyor’s

assessment and arrived a sum of Rs.502081/- .

11. We need to consider another point that the complainant sold the machine as

scrap without any repairs or dismantling for Rs.250000/-As per policy the

machine was insured for Rs.945000/-. As, no repairs were undertaken;

calculating the claim on repair basis inclusive of labour charges will be wrong

one. Therefore, it will be just and proper to calculate the complainant’s claim by

deducting the applicable depreciation and the salvage value from the insured

value. As follows:

Insured Value (IDV) Rs.945000/- Less Depreciation(15%) Rs.141750/- Rs.803250/- Less Salvage Value Rs.250000/- Net loss payable: Rs.553250/-

12. Therefore, we are of considered view that, there is deficiency in service on part

of Petitioner/OP who repudiated the claim. Accordingly, we modify the order of

State Commission of that OP the insurance company directed to pay

Rs.553250/- instead of 738500.76/- with interest @ 9% per annum from the

4/4/2006 i.e. the date of repudiation till payment. OP is further directed to pay

Rs.10,000/- as litigation charges. This order should be complied within 45 days

otherwise it will carry interest of 9% p.a. till the payment.

…..…………………………(J. M. MALIK, J.)

PRESIDING MEMBER

.…..…………………………(Dr. S. M. KANTIKAR)

MEMBER

Mss/7-8


REVISION PETITION NO. 2024 OF 2013 (From the Order dated 31.1.2013 in Appeal No. 1315/2010 of

Punjab State Consumer Disputes Redressal Commission, Chandigarh)

M/s Shiv Confectionary House Though its Sole Proprietor Shri Jagdish Kumar Amloh Road Mandi, Gobindgarh Punjab.

Petitioner

Versus

1. Bajaj Allianz General Insurance Co. Through its Incharge Feroz Gandhi MarketLudhiana Punjab.

2. HDFC Bank Through its Manager Incharge Mandi, Gobindgarh Punjab

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

HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner : Shri Ram Ekbal Roy, Advocate Pronounced on : 22 nd August, 2013

O R D E R PER SURESH CHANDRA, MEMBER

The petitioner who is the original complainant in this case has filed this revision

petition challenging the order dated 31.1.2013 passed by the Punjab State Consumer

Disputes RedressalCommission, Chandigarh in FA No.1315 of 2010 whereby learned

State Commission allowed the first appeal filed by respondent No.1/opposite party No.1

and set aside the order dated 23.4.2010 passed by learned District

Consumer Redressal Forum, Fatehgarh Sahib in complaint No.88-A. The District Forum

vide its order had allowed the complaint of the petitioner. By itsimpugned order in

appeal, the State Commission reversed it by holding that it is proved that the premises

where the fire took place were not covered under the policy and hence the claim of the

petitioner was rightly repudiated by respondent No.1. Respondent No.2 is HDFC Bank

which was OP No.2 before the District Forum.

2. Briefly put, the facts of this case which are relevant for disposal of this revision

petition are that the petitioner had obtained a cash credit limit from respondent No.2

Bank against the stock and the entire stock of the petitioner was hypothecated with

respondent No.2 Bank. It was pleaded that respondent No.2 Bank had arranged one

insurance policy from respondent No.1 insurance co. w.e.f. 26.4.2008 to 25.4.2009

covering the stock of the petitioner hypothecated with respondent No.2. A fire broke out

at the premises of the petitioner on 31.10.2008 and the stock of the premises got

damaged. The petitioner lodged claim with respondent No.1 for Rs.11 lakhs which came

to be repudiated by the respondent insurance co. on the ground that the location where

the stock was kept and where the fire took place was not covered under the insurance

policy. According to the complainant/petitioner, the respondent No.2 Bank

had given the cash credit limit against the stock stored in the premises where the fire

broke up and thus the stock was clearly insured. It was also pleaded that the shop

which the respondent insurance co. is supposed to have insured is not capable of

holding the stock of the value of Rs.16 lakhs. It could hold stocks worth only Rs.2 lakhs.

Since the claim was repudiated, the petitioner filed a consumer complaint before the

District Forum alleging deficiency in service on the part of respondent

No.1 seeking directions to pay a sum of Rs.11 lakhs along with interest @ 18% p.a.

from 31.10.2008 besides cost and compensation.

3. Upon notice, the respondents filed their written statement and contested the

complaint. Respondent No.1 pleaded that the liability of the insurance co. shall be as

per the terms and conditions of the policy as agreed to by the parties only if the property

insured described in the schedule, or any part of such property, is destroyed by any of

the specified perils during the period of insurance mentioned in the schedule. Admitting

the incident of fire having taken place and also receiving intimation about it, the

contention of the respondent insurance co. was that the location where the stock

damaged by the fire was kept was not covered by the insurance policy and as such the

insurance co. would not be liable to accept the claim and hence dismissal of the

complaint was prayed. Respondent No.2 Bank prayed that the complaint be dismissed

qua the respondent Bank because it had given only cash credit limit against the stock

but there is no liability of the bank and hence it cannot be burdened with any

compensation. The parties adduced evidence in support of their contentions and after

going through the pleadings and the material placed before it, the District Forum

allowed the complaint of the petitioner by directing respondent No.1/opposite party

No.1 to pay an amount of Rs.7,42,000/- with interest @ 7% from the date of filing of the

complaint till its realization. On appeal filed by the respondent insurance co., the State

Commission reversed the order of the District Forum and dismissed the complaint.

4. The short issue which has arisen before us for our consideration is as to

whether the claim of the petitioner in respect of damage to the stock in fire stored at the

location not covered by the insurance policy can be allowed.

5. We have heard learned counsel Shri Ram Ekbal Roy, Advocate for the

petitioner and perused the record.

6. Learned counsel has submitted that the State Commission failed to appreciate

that the contention of the respondent/opposite party regarding non-covering of the

premised is not tenable. He pointed out that the State Commission should have

appreciated that the shop which the respondent No.1 purports to have insured is not

capable of holding the stock to the tune of Rs.16 lakhs. He further submitted that the

State Commission also ignored the fact that the respondent bank had given the limit

against the stock stored in the premises where the fire broke out and thus the stock was

clearly insured and hence the allegation of the insurance co. against the petitioner in

this regard was false. To support his contention, he submitted that monthly statement of

the stock was also given to the respondent bank with regard to the stock in question.

He, therefore, contended the premises insured was actually “M/s Shiv Confectionary

House Amloh Road, Mandi,Gobindgarh” and the fire which broke out in the premises

damage the goods therein and hence the claim should have been admitted by the State

Commission.

7. We have given our anxious thought to the submissions of learned counsel. We

may note that the incident of fire and the assessment of loss on account of this fire as

reported by the surveyor are not under dispute. The main ground on which the State

Commission has reversed the finding of the District Forum is that under the policy in

question, a copy of which is placed at page 46 of the paper-book, only the shop of the

petitioner at Amloh Road, Mandi Gobindgarh, District Fetehgarh Sahib was covered by

the insurance policy. In view of this, the State Commission allowed the appeal because

it found that the location of the stock which got damaged in the fire was different from

the one covered by the policy. Perusal of the policy indicates that the location

description of the covered place is mentioned in the following terms:-

“Shop

AMLOH ROAD, MANDI GOBINDGARH, DIST. FETEHGARH SAHIB (PUNJAB)”

8. The plea of the respondents Insurance Co. to the effect that only the shop

at Amloh Road, Mandi Gobindgarh, Dist. Fetehgarh Sahib is covered by the insurance

policy is further corroborated by the statement made by the respondent Bank to which

the petitioner was furnishing the stock statements because in these stock statements

there was no mention of location of the stock made by the petitioner. No evidence is

put up by the petitioner to dispute or contradict this aspect. In view of these aspects, the

State Commission, relying on the ratio of judgements of the Apex Court in the cases

of Vikram Greentech (I) Ltd. & Anr. Vs. New India Assurance Co. Ltd. [II (2009) CPJ

34 (SC) and General Assurance Society Ltd. Vs. Chandumull Jain &Anr. [AIR 1966

State Commission 1644], accepted the appeal and dismissed the complaint by its

impugned order.

9. We agree with the view taken by the State Commission. As stated above, the

location description of the place covered does indicate that it is the shop

at Amloh Road, Mandi Gobindgarhwhich is covered and not any other place. The plea

of the petitioner regarding the damaged stocks being part of the stock statements

regularly submitted to the respondent Bank cannot provide any relief to the

petitioner because the respondent Bank itself has clarified that the stock statements did

not indicate the location of the stocks covered by the statements. We may note that

even if it is accepted for the sake of arguments that location was mentioned in the

statements submitted by the petitioner to the OP bank, this by itself cannot entitle the

petitioner to get the amount of his claim unless it is established that the stock damaged

was stored at the place covered by the policy. In the circumstances, the view taken by

the State Commission is in line with the law laid down by the Apex Court. The Apex

Court in the case of Vikram Greentech (I) Ltd. & Anr.(supra) has held thus:-

“16. An insurance contract, is a species of commercial transactions

and must be construed like any other contract to its own terms and

by itself. In a contract of insurance, there is requirement

of uberimma fides i.e. good faith on the part of the insured. Except

that, in other respects, there is no difference between a contract of

insurance and any other contract.

17. The four essentials of a contract of insurance are, (i) the

definition of the risk, (ii) the duration of the risk, (iii) the premium

and (iv) the amount of insurance. Since upon issuance of the

insurance policy, the insurer undertakes to indemnify the loss

suffered by the insured on account of the risks covered by the

insurance policy, its terms have to be strictly construed to

determine the extent of liability of the insurer.18. The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in re-writing the contract or substituting the terms which were not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy.”

(Emphasis provided by us)

10. In the other case of General Assurance Society Ltd. (supra) also the Apex

Court has made similar observations which may be reproduced below:-

“……..In interpreting documents relating to a contract

of insurance, the duty of the court is to interpret the words in

which the contract is expressed by the parties because it is

not for the court to make a new contract, however

reasonable, if the parties

have not made it themselves……………”

11. In view of the aforesaid discussion and the settled position in law, we do not find

any infirmity in the impugned order which would call for our interference with it under

section 21(b) of the C.P. Act, 1986 which confers very limited powers on this

Commission while exercising its revisional jurisdiction under this section. We, therefore,

dismiss the revision petition in limine with no order as to costs.

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

……………Sd/-….……………(SURESH CHANDRA)

MEMBER

SS/



(From the order dated 25.01.2008 in Appeal No.485 of 2004 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

State Bank of India Nabha Branch Distt. Patiala

… Petitioner/Opp. Parties (OP)

VersusSmt. Sita Devi W/o Sh. Sham Lal House No. 43, Bank Street, Nabha, Distt. Patiala


For the Petitioner : Mr. Sushil Kr. Singh, Proxy Advocate For Mr. S.L. Gupta, AdvocateFor the Respondent : Mrs. Radha, Amicus Curiae

PRONOUNCED ON 22 nd August, 2013

O R D E R



25.01.2008 passed by the Punjab State Consumer Disputes RedressalCommission,

Chandigarh (in short, ‘the State Commission’) in Appeal No. 485 of 2004 – State Bank

of India Vs. Smt. Sita Devi by which, while deciding appeal, order of District Forum

allowing complaint was upheld, but some liberty was given to the petitioner.

2. Brief facts of the case are that complainant/respondent received cheque No.41648

dated 16.3.2002 for an amount of Rs.30,952/-. Complainant deposited cheque with

OP/petitioner for encashment, but amount was not credited in complainant’s account for

long time. On 5.7.2002, complainant made written request to OP/petitioner to look into

the matter and credit the amount in her bank account and OP/petitioner assured that

cheque amount shall be credited in her Bank Account. On 19.9.2002, OP/petitioner

informed the complainant that cheque was lost in transit. Alleging deficiency on the part

of OP/petitioner, complainant filed complaint before District Forum. OP/petitioner

resisted complaint, but admitted presentation of cheque by complainant and submitted

that cheque was sent through courier for collection and after sometime, OP/petitioner

received communication from Hardoi Branch where cheque was sent for collection, that

cheque in question was lost in transit and intimation was given to the complainant vide

letter dated 19.9.2002. It was further submitted that there was no deficiency on the part

of OP; hence, complaint be dismissed. Learned District Forum after hearing both

the parties, allowed complaint and directed OP to credit the cheque amount in

complainant’s SB A/c. along with Rs.500/- as cost. It was further observed by District

Forum that OP will be at liberty to initiate proceedings against postal authorities or may

approach drawer of the cheque for issuance of duplicate cheque in the name of

complainant. Appeal filed by OP was dismissed by leaned State Commission vide

impugned order and petitioner was given liberty to recover cheque amount from Food

and Supplies Department of U.P., Lucknow who had issued cheque against which, this



4. Learned Counsel for the petitioner submitted that, as there was no deficiency on

the part of petitioner, learned State Commission has committed error in dismissing

appeal and learned District forum committed error in allowing complaint; hence, revision

petition be allowed and impugned order be set aside. On the other hand, learned

Counsel for the respondent submitted that impugned order is consent order passed on

the request of petitioner, which cannot be assailed 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 complainant deposited cheque for collection

with the OP and OP sent cheque for collection, which was lost in transit. Cheque dated

16.3.2002 was presented for encashment on 28.3.2002, but OP intimated to the

petitioner about loss of cheque in transit by letter dated 19.9.2002 by which time validity

of period of cheque had already expired.

6. Learned Counsel for the petitioner submitted that inspite of deficiency in not

crediting amount of cheque in respondent’s account, petitioner can be held liable for

some compensation, but cannot be directed to credit the amount of cheque. In support

of his arguments, he has placed reliance on R.P. No. 5 of 2005

– Shri A.P. Bopanna Vs. Kodagu District Co.OP. Central Bank decided on

17.12.2008 by this Commission in which it was held that if a cheque is lost in transit,

bank cannot be held liable for the cheque amount. We agree with this view and in

normal course, bank cannot be directed to credit cheque amount, but looking to the

facts and circumstances of the case, this revision petition is liable to be dismissed on

the following grounds:

i) Firstly, validity of cheque expired before 19.9.2002 when petitioner

informed to the respondent about loss of cheque in transit.

ii) Secondly, impugned order has been passed by learned State Commission

as per request of their Counsel, which runs as under: “The learned counsel for the appellants further submits that

the cheque no. 41648 dated 16.3.2002 for an amount of Rs.30,952/- was issued by the Secretary, Food & Supplies, Government of U.P., Lucknow, and therefore, the appellants be permitted to get the said amount from the department. It was further submitted that the appellants have already deposited a sum of Rs.17,016.50 with this Commission at the time of filing the appeal and the judgment of the District Forum be modified accordingly by which the appellants have been directed to credit the cheque amount in the bank account of the respondent.

After hearing the submission of the learned counsel for the

parties, we modify the judgment of the learned District Forum dated 17.3.2004 to the extent that the amount of Rs.17,016.50 would be taken out of the cheque amount of Rs.30,952/- and remaining amount would be credited in the account of the respondent within 45 days after the receipt of copy of this order. The amount of Rs.17,016.50deposited by the appellants with this Commission be remitted to the complainant with interest, if any, by way of crossed cheque/bank draft. The appellants would be at liberty to recover the said amount from the Food & Supplies Department, Government of U.P., Lucknowwho had issued cheque no. 41648 dated 16.3.2002 for an amount of Rs.30,952/- in favour of Sita Devi as the appellants have made the payment of this cheque to Sita Devi and they have stepped into the shoes of Sita Devi. A copy of this order be also sent to the Secretary, Food & Supplies Department, Government of U.P., Lucknow for necessary compliance”.

Apparently, this is consent order passed by learned State Commission on

the request of petitioner’s counsel, which cannot be assailed in revision

petition.

Thirdly, cheque has been issued by Food and Supplies Department,

Government of U.P., Lucknow and petitioner has already been permitted

to recover the cheque amount from the aforesaid Government Department

and in such circumstances, merely by making payment of cheque amount

to complainant who is an old lady, petitioner will not suffer any loss

because petitioner has stepped into the shoes of respondent and can

easily get duplicate cheque from aforesaid Food and Supplies Department

and recover money.

7. In the light of aforesaid discussion, we do not find any illegality, irregularity or

jurisdictional error in the impugned order and revision petition is liable to be dismissed

and payment may be credited as directed by District Forum subject to submitting

affidavit by complainant that he has so far not received money against the disputed

cheque.


to costs.


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 1300 OF 2012 (From the order dated 17.08.2011 in First Appeal No. 964/2007of Haryana State Consumer Disputes Redressal Commission)

WITHI.A. No. 1/ 2012

(FOR CONDONATION OF DELAY) Sh. Jai Singh s/o Sh. Munshi Singh r/o V. & P.O. Luhari Jatu District Bhiwani Haryana

... Petitioner

Versus Dr. Satish Khurana c/o M/s Khurana Hospital Loharu Road, Bhiwani District Bhiwani Haryana

… Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. R.K. Yashwant Singh, Advocate PRONOUNCED ON : 22 nd AUGUST 2013




passed by the Haryana State Consumer Disputes Redressal Commission (for short ‘the

State Commission’) in FA No. 964/2007, “Dr. Satish Khurana versus Jai Singh” vide

which, while allowing appeal, the order passed by the District Consumer Disputes

Redressal Forum, Bhiwani, allowing the complaint was set aside and consumer

complaint no. 603/2003 filed by the present petitioner/complainant was ordered to be

dismissed.

2. Brief facts of the case are that respondent/OP Dr. Satish Khurana held an eye

camp in village Luhari Jatu, District Bhiwani, Haryana, where the complainant was

advised by the OP Doctor to visit his hospital at Bhiwani for operation of his eye and

implanting lens in the eye. The very next day, the complainant visited the hospital of OP

No. 1 Bhiwani and got himself operated and paid a sum of Rs.1,550/- to the Doctor. It

has been alleged by the complainant that the lens was implanted during the operation of

the eye, but after this procedure, his eye was totally damaged. The complainant filed

consumer complaint no. 603/2003 before the District Forum, claiming a compensation

of Rs.5 lakh from the respondent/OP. The OP took the stand that the complainant had

never been operated by him nor did he implant lens in his eye. The District Forum vide

their order dated 06.03.2007 allowed the complaint and directed the OP Doctor to pay a

sum of Rs.1.5 lakh, along with litigation fee of Rs.1,000/-. An appeal filed against this

order was, however, allowed by the State Commission vide their order dated

17.08.2011 and the complaint was ordered to be dismissed. It is against this order that

the present revision petition has been filed.

3. At the time of hearing before us, the learned counsel for the petitioner was asked

to explain the delay of 97 days in filing the revision petition. The learned counsel has

drawn our attention to the application for condonation of delay filed under section 5 of

the Limitation Act along with the revision petition, in which it has been stated that the

petitioner is an old-age person and that he lost his right eye due to the negligence of the

Doctor and now he is living in hardship due to lack of vision and lack of physical

strength. The petitioner could not contact his counsel at Chandigarh due to old-age

ailments. When he came to know about the fate of the case decided by the State

Commission, he tried to obtain certified copy of the order passed by the State

Commission. It has further been stated that the petitioner took time to arrange money

for filing the revision petition and under these circumstances, the said delay occurred.

4. We have given a thoughtful consideration to the arguments advanced before us

and perused the record. The reasons cited by the petitioner in his application for

condonation of delay, or at the time of arguments, do not appear to be convincing by

any yardstick. The impugned order was passed in the presence of the counsel for the

petitioner/complainant and hence he is supposed to be in knowledge of the said

order. It has been stated in the copy of the order of the State Commission, filed with the

revision petition that the certified copy of the order was given free of cost to the counsel

of the party on 21.09.2011. Another duplicate copy was given on 16.1.2012. It is clear,

therefore, that after receiving the copy of the order on 21.09.2011, the petitioner did not

file his revision petition within the prescribed time.

5. It has been observed by the Hon’ble Apex Court in a number of recent judgements

that unless cogent and convincing reasons are given for condonation of delay in filing a

revision petition, the same should not be condoned. Reference may be given to the

orders passed by the Apex Court in R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, where it has been observed:


6. In Ram Lal and Ors . Vs. Rewa Coalfields Ltd ., AIR 1962 Supreme Court










departments.


– Ansul Aggarwal Vs. New Okhla Industrial Development Authority observed as


10. As discussed above, in the present case, no convincing explanation has been

given for the inordinate delay in filing the revision petition. The reason given that the

petitioner could not arrange funds in time for filing the revision petition does not appear

to be a valid reason at all. Under the circumstances, the application for condonation of

delay is ordered to be rejected and consequently, the revision petition is also ordered to

be dismissed with no order as to costs.Sd/-



MEMBERRS/


REVISION PETITION NO. 2668 OF 2011 (From the order dated 03.06.2011 in First Appeal No. 224/2010of Rajasthan State Consumer Disputes Redressal Commission)

TATA AIG General Insurance Co. Ltd. 104, Brij Anukampa, Ashok Marg, C-Scheme, Jaipur Rajasthan

... Petitioner(s)

VersusNarender Kumar s/o Shri Ganesh Verma r/o Near Railway Line, Naya Bans Takarda, Tehsil Chowmud District Jaipur Rajasthan

… Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. K.L. Nandwani, Advocate

For the Respondent NEMO PRONOUNCED ON : 22 nd AUGUST 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


passed by the Rajasthan State Consumer Disputes Redressal Commission (for short

‘the State Commission’) in FA No. 224/2010, ‘TATA AIG General Insurance Co. Ltd.

versus Narender Kumar’ vide which, while dismissing appeal, the order dated

27.11.2009, passed by the District Consumer Disputes Redressal Forum, Jaipur in

consumer complaint no. 888/2009, allowing the complaint was upheld.

2. Brief facts of the case are that the complainant Narender Kumar insured his cow

for a sum of Rs.25,000/- under the scheme launched by the petitioner/OP, Tata AIG

General Insurance Co. in the month of February 2008. The cow was tagged vide no. B-

34779/-. The said cow got sick on 4.09.2008, but could not recover and expired on

06.09.2008. The complainant informed Mr. Lalit Sharma, an employee of the OP and

handed over tag no. B-34779 to him. He also filed his claim along with the documents,

but despite many telephone calls and personal visits, the claim was not

sanctioned. The complainant filed a complaint before the District Forum. The District

Forum vide their order dated 27.11.2008, allowed the complaint and ordered the OP to

pay a sum of Rs.25,000/- along with Rs.2,000/- as damages for mental agony and

Rs.1,000/- as cost of litigation. An appeal against this order was dismissed by the State

Commission vide their order dated 03.06.2011. The present revision petition has been

filed against this order.

3. At the time of hearing before us, learned counsel for the petitioner contended that

the impugned order dated 03.06.2011 was not a speaking order and seems to have

been passed without due application of mind. It was the duty of the State Commission

to have analysed the facts of the case and then give reasons for coming to their

conclusion. The matter, therefore, required a re-look by the State Commission and their

plea should be properly heard and decided.

4. An examination of the order passed by the State Commission reveals that the said

Commission has not given any reasons for coming to the conclusion for dismissing the

appeal. The order passed by the State Commission reads as follows:-“Heard arguments. Records perused. Keeping in view the facts and circumstances of the case, we do not find any necessity to interfere with the order dated 27.11.2009 passed by the District Forum in complaint No. 888/2009 and thus the appeal of the appellant is liable to be dismissed. Resultantly, the order dated 27.11.2009 passed by the District Forum in complaint No. 888/2009 is hereby up-held and appeal of the appellant is hereby dismissed.”

5. Under the Consumer Protection Act, 1986, the right of appeal has been given

under section 15 of the Act. It is the duty of the appellate authority to provide proper

hearing to the parties in question and then give cogent reasons after analysing the facts

and circumstances of the case for coming to a conclusion. In the present case, no such

reasons have been advanced by the State Commission and the appeal has been

dismissed without discussing the merits of the case.

6. In the light of these facts, there is no alternative but to set aside the order passed

by the State Commission and we order accordingly. The revision petition is allowed and

the case is remanded to the State Commission with the directions that the parties

should be heard again and a detailed speaking order passed after giving detailed

reasons for coming to the conclusion. There shall be no order as to costs.



MEMBERRS/


REVISION PETITION NO. 2770 OF 2006 (From the order dated 23.06.2006 in Appeal No.226 of 2005 of the Chhattisgarh State

Consumer Disputes Redressal Commission, Raipur)

1. Smt. Laxmania Prajapati W/o Late Shri Kailash Prajapati2. Shri Shesh Kumar 3. Master Gore Lal Both Sons of Late Shri Kailash Prajapati All R/o Karanji, PO: Karanji Tehsil-Surajpur, Sarguja, Chattisgarh.

… Petitioners/Complainants

Versus1. The Oriental Insurance Co. Ltd. Div. Office, Behind Normal School, Bilkaspur (Chhatisgarh) And also at: The Oriental Insurance Co. Ltd. Div. Office No.1, Madina Manzil, Jail Road, Raipur, Chattisgarh 2. Sub Area Manager S.E.C.L. Bhatgaon, P.O. Bhatgaon, Tehsil Surajpur, Sarguja, Chhattisgarh.


For the Petitioners : Mr. Mohd. Anis Ur. Rehman,

Advocate For the Respondents : NEMO

PRONOUNCED ON 23 rd August, 2013

O R D E R


This revision petition has been filed by the petitioners/Complainants against the

order dated 23.6.2006 passed by the State Consumer DisputesRedressal Commission,

Chhattisgarh (in short, ‘the State Commission’) in Appeal No. 226/05 – Oriental Ins. Co.

Ltd. Vs. Kailash Prajapati by which, while allowing appeal, order of District Forum

allowing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner Kailash Prajapati was an

employee OP No. 2/Respondent No.2 and joined group Janata accident personal policy

issued by OP-1/Respondent No.1 for Rs.2,50,000/-. Premium was deducted from

complainant’s salary on 31.10.2001. Complainant sustained head injury in an accident

and lost one eye. Complainant lodged claim with OPs which was repudiated by OP

No.1. Alleging deficiency on the part of OPs, complainant filed complaint before District

Forum. OPs contested complaint and OP No. 1 submitted that intimation of accident

was given to it belatedly on 8.3.2002. OP No. 2 submitted that no intimation of accident

was given to it and prayed for dismissal of complaint. Learned District forum after

hearing both the parties, allowed complaint and directed OP No. 1 to pay Rs.2,50,000/-

along with interest and cost of Rs.1,000/-. OP No. 1 filed appeal before the State

Commission and learned State Commission vide impugned order allowed appeal and

dismissed complaint against which, this revision petition has been filed. During

pendency of revision petition, petitioner- Kailash Prajapati died and his wife and children

being legal representative of Kailash Prajapati were taken on record.

3. None appeared for the respondent even after service. Heard learned Counsel for

the petitioner who submitted that as deceased Kailash Prajapati was covered by the

insurance policy and lost one eye in the accident, District Forum rightly allowed

complaint and learned State Commission has committed error in allowing appeal;

hence, revision petition be allowed and impugned order be set aside.

4. Perusal of record clearly reveals that complainant Kailash Prajapati was covered

by group Janata personal insurance policy finalised between OP No. 1 & 2 for

Rs.5,00,000/- and complainant’s risk was covered to the extent of Rs.2,50,000/- on loss

of one limb or one eye.

5. Perusal of disability certificate issued by District Medical Board clearly reveals

that Kailash Prajapati sustained 30% disability in his eye and complainant could not

prove the fact that he lost complete vision in one eye due to accident. As per terms and

conditions of the policy, Kailash Prajapati was entitled to benefits of the insurance

coverage only on loss of one eye, whereas Kailash Prajapati’s loss of vision was only

30% and as such, he was not entitled to get any insurance benefits under the

policy. Learned Counsel for the petitioner could not draw our attention to any other

medical report on account of which, it can be held that Kailash Prajapati suffered

complete loss of vision in one eye and in such circumstances; order passed by learned

State Commission is in accordance with law, which does not call for any interference.


to costs.


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 67 OF 2011(From the order dated 25.08.2010 in Appeal No.136 of 2010 of the State Consumer

Disputes Redressal Commission, U.T. Chandigarh) National Insurance Company Ltd. Delhi Regional Office – 1, Jiwan Bharti Building Tower II Level-IV,124, Connaught Circus New Delhi – 110001 Also at National Insurance Co. Ltd. Divisional Office No. 1, 2nd Floor, SCO No.133-134-135 Sector 17-C, Chandigarh

… Petitioner/Opposite Parties (OP)

VersusSanjeev Kumar S/o Sh. Tek Chand R/at House No. 1122 Sector 49-B Pushpac Complex Chandigarh


For the Petitioner : Mr. Hetu Arora Sethi, Advocate

For the Respondent : In person PRONOUNCED ON 23 rd August, 2013

O R D E R



25.08.2010 passed by the State Consumer Disputes Redressal Commission, U.T.

Chandigarh (in short, ‘the State Commission’) in Appeal No. 136/10 – Sanjeev Kumar

Vs. National Ins. Co. Ltd. by which, while allowing appeal, order of District Forum

dismissing complaint was set aside.

2. Brief facts of the case are that complainant/respondent’s car No. CH04-B-4076

was insured by OP/respondent for one year commencing from 21.6.2008 to

20.6.2009. Car met with an accident on the intervening night of 20/21.8.2009 and

vehicle was damaged in the accident. As compromise was entered into between the

complainant and other offending vehicle, no FIR was lodged, but intimation was given to

the OP. OP appointed surveyor, but claim of the complainant was repudiated on the

ground that licence of the complainant was not valid for car/jeep who was driving

vehicle at the time of accident. Alleging deficiency on the part of OP, complainant filed

complaint before District Forum. OP contested complaint and submitted that on

verification, the licence was not found valid for driving car; hence, claim was rightly

repudiated and prayed for dismissal of the complaint. Learned District Forum after

hearing both the parties dismissed complaint and gave opportunity to the complainant to

agitate the matter before civil court. On appeal filed by the complainant, learned State

Commission vide impugned order allowed complaint and directed OP to make payment

of Rs.55,875/- being 75% of the total claim on sub-standard basis against which this


3. Heard learned Counsel for the petitioner and respondent in person finally at

admission stage and perused record.

4. Learned Counsel for the petitioner submitted that as complainant was not

possessing driving licence for driving car at the time of accident, learned District Forum

rightly dismissed complaint, but learned State Commission has committed error in

allowing complaint; hence, revision petition be accepted and impugned order be set

aside. On the other hand, respondent submitted that his driving licence is valid for

driving Scooter/motor cycle/car/jeep and order passed by learned State Commission is

in accordance with law; hence, revision petition be dismissed.

5. The short question to be decided in this revision petition is whether complainant

was possessing valid driving licence for driving car at the time of accident or

not. Petitioner has filed copy of duplicate licence issued by Licensing Authority,

Chandigarh in favour of complainant on 11.8.1997 and his Licence No. is

290501. Complainant himself made certain queries from Licensing Authority,

Chandigarh vide application dated 3.2.2010 regarding verification of his aforesaid

licence issued on 11.8.1997 and Licensing Authority informed to the complainant on

11.2.2010 that his licence was only for scooter/motor cycle. It appears that OP also

obtained verification certificate of complainant’s driving licence from Licensing Authority

and Licensing Authority vide letter dated 17.9.2009 apprised that licence no. 290501

dated 11.8.1997 issued in the name of Sanjeev Kumar has been issued only for

scooter/Motor cycle. In such circumstances, it cannot be held that disputed driving

licence was granted for driving car/jeep also. Respondent during the course of

arguments submitted that he has not forged driving licence, but verification certificate

issued by the Licensing Authority and reply to queries of complainant made by

Licensing Authority based on their record can also not be disputed and in such

circumstances, it can be held that complainant was not having licence for driving

car/jeep on the date of accident.

6. When complainant was not possessing valid driving licence at the time of

accident, OP/petitioner has not committed any deficiency in repudiating claim in the light

of judgment of this Commission in III (2008) CPJ 191 (NC) – United India Insurance

Company Vs. Arjun Kumar, III (2010) CPJ 256 (NC) –National Insurance

Company Vs. Sansar Chand and as held by Hon’ble Apex Court in II (2006) CPJ 8

(SC) – National Insurance Co. Ltd. Vs. Kusum Rai & Ors.

7. Learned State Commission has allowed claim on non-standard basis which is not

in accordance with law in the light of aforesaid judgements. If complainant was not

possessing valid driving licence at the time of accident, the complainant is not entitled to

get any compensation in respect of damages to the vehicle even on sub-standard basis.


order dated 25.8.2010 passed by leaned State Commission in Appeal No. 136 of 2010

– Sanjeev Kumar Vs. Natinal Ins. Co. Ltd. is set aside and order of District Forum dated

23.2.2010 is affirmed. ..………………Sd/-……………


..……………Sd/………………

( DR. B.C. GUPTA ) MEMBER

k


REVISION PETITION NO. 4030 OF 2012 (From the order dated 07.08.2012 in Appeal No.12/2012 of the State Consumer

Disputes Redressal Commission, Haryana)

1. Lucky Mittal 2. Rajnish Mittal Both S/o Sh. Nathi Ram R/o House No. 67, Ward No.3 Civil

Hospital, Ladwa Tehsil Thanesar, Distt. Kurukshetra (Haryana)… Petitioners/Complainants

Versus

Oriental Insurance Company Ltd. Regional Office LIC Building, 2nd Floor, Jagadhri Road, Ambala Cantt., (Haryana) (Through its Regional Manager)


For the Petitioners : Mr. Anil Mittal, AdvocateFor the Respondent : Mr. Rajesh K. Gupta, Advocate

PRONOUNCED ON 23 rd August, 2013

O R D E R


This revision petition has been filed by the petitioners/complainants against the

order dated 07.08.2012 passed by the State Consumer

DisputesRedressal Commission, Haryana (in short, ‘the State Commission’) in Appeal

No. 12 of 2012 – The Oriental Ins. Co. Ltd. Vs. Lucky Mittal & Anr. by which, while

allowing appeal, order of District Forum allowing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner got his

vehicle Toyata Qualis HR-51-J-0537 insured from OP/respondent for a period of one

year commencing from 15.7.2006 to 14.7.2007. On the intervening night of

15/16.4.2007, vehicle was stolen and FIR was lodged. Intimation was given to

OP. Required documents were submitted to OP, but OP repudiated claim. Alleging

deficiency on the part of OP, complainant filed complaint before District forum. OP

resisted complaint and submitted that as vehicle has been recovered by police, the

claim was not payable and prayed for dismissal of complaint. Learned District Forum

after hearing both the parties, allowed complaint and directed OP to pay Rs.2,00,000/-

as value of the vehicle and Rs.5,000/- for mental harassment along with 6% p.a.

interest. Appeal filed by the OP was allowed by learned District Forum vide impugned

order against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that first complaint was filed within

limitation; even then, learned State Commission has committed error in allowing appeal

and dismissing complaint on the ground that complaint was time barred; hence, revision

petition be allowed and impugned order be set aside. On the other hand, learned

Counsel for the respondent submitted that order passed by learned State Commission

is in accordance with law, which does not call for any interference; hence, revision

petition be dismissed.

5. Perusal of record reveals that insured vehicle was stolen on 15/16.4.2007 and

claim was repudiated by OP on 3.5.2008. Complainant filed first complaint on

23.5.2008. Complainant moved application before District forum on 27.9.2010 and

prayed that on technical grounds he wants to withdraw the complaint and he may be

permitted to file fresh complaint. On the same day, learned District forum dismissed

complaint as withdrawn in view of the submission of Counsel for the complainant. Later

on, complainant filed present complaint on 23.11.2010, which was held to be barred by

limitation by learned State Commission.

6. Learned Counsel for the petitioner submitted that as first complaint was filed within

period of limitation and that complaint was withdrawn with permission to file fresh

complaint; hence, subsequent complaint filed on 23.11.2010 is well within limitation. On

the other hand, learned counsel for the respondent submitted that as per order dated

27.9.2010 permission was not granted to the complainant to file fresh complaint; hence,

subsequent complaint filed on 23.11.2010 cannot be constituted a complaint filed with

permission.

7. Learned Counsel for the petitioner placed reliance on AIR 2009 SC 806

– Vimlesh Kumari Kulshrestha Vs. Sambhajirao & Anr . in which it was observed as

under:“An application for withdrawal of suit was made, seeking liberty to file a fresh suit. The order passed by the court was that 'The application is, therefore, allowed while permitting the plaintiff to withdraw the suit'. It was held that this should be construed as an order also granting liberty, as prayed. The court cannot split the prayer made by the applicant."

8. In the light of aforesaid citation, it becomes clear that District Forum allowed

complainant to withdraw the complaint and impliedly permitted complainant to file fresh

complaint and subsequent complaint dated 23.11.2010, in compliance to order dated

27.9.2010 cannot be treated a fresh complaint as first complaint was filed on 23.5.2008

well within limitation from the date of repudiation and learned State Commission has

committed error in allowing appeal and dismissing complaint being barred by limitation.

9. In the light of aforesaid discussion, revision petition is to be allowed and matter

has to be remanded back to learned State Commission for deciding appeal on other

grounds submitted in Memo of Appeal.


order dated 7.8.2012 passed by the learned State Commission in Appeal No. 12 of

2012 – Lucky Mittal & Anr. Vs. Oriental Ins. Co. Ltd. is set aside and matter is remanded

back to learned State Commission to decide the matter fresh after giving an opportunity

of being heard to both the parties treating complaint within limitation.

11. Parties are directed to appear before Haryana State Consumer

Disputes Redressal Commission at Panchkula on 23.9.2013


..…………Sd/-…………………( DR. B.C. GUPTA )

MEMBERk


WithIA/4417/2013 (For stay)

(From the order dated 03.05.2013 in Appeal No. A/10/1304 Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

1. M/s. S.S. Construction A Partnership firm having its place of business At Sushanti, 54/55, 50A, D’souza Colony College Road, Nasik -52. M/s. Shibu Gopalkrishnan Nair Partner of M/s. S.S. Construction Age:39, Occupation : Business Sona, Plot No. 57, D’souza Colony Gangapur Road, Nasik

… Petitioners/Opposite Parties(OP)

Versus

1. Mr. Mathew Varghese Aged: 43 years, Occupation: Service Residing at 12, Ebenzer Bldg., 13th Road, Chembur, Mumbai – 71 Through its Power of attorney holder Shri Eapen Mathew aged 38 years of Mumbai Indian Inhabitant Residing at 1/11, Nityanan Nagar No. 4, S.N. Marg, Andheri East Mumbai - 69.

2. Mr.Shailender Arvind Sukhatankar Age: 50, Occupation: Business R/o Sushanti, 54,55, 56A, D’souza Colony College Road, Nasik


For the Petitioners : Mr. Rajesh Kumar Verma, Advocate PRONOUNCED ON 23 rd August, 2013

O R D E R


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

03.05.2013 passed by the Maharashtra State Consumer Disputes Redressal

Commission, Mumbai (in short, ‘the State Commission’) in Appeal No. A/10/1304 –

Mathew Varghese & Anr. Vs. M/s. S.S. Construction & 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 complainants/respondent No.1 purchased two flats

bearing Nos. 6 & 8 in a building constructed and developed by OPs. Complainant paid a

sum of Rs.9,43,000/- from time to time and balance of Rs.26,676/- was to be paid at the

time of possession along with Rs.30,000/- for the terrace. It was further alleged that

OPs failed to execute written agreement and also failed to deliver possession. Alleging

deficiency on the part of OPs, complainant filed complaint. OP contested that

agreement had been terminated vide letter dated 10.2.2004 and complainant was asked

to collect the money and prayed for dismissal of complaint. Ld. District Forum after

hearing both parties dismissed complaint. Appeal filed by the complainant was allowed

by State Commission vide impugned order and Ld. State Commission directed OP to

handover possession of Flat Nos. 6 & 8 after taking Rs.26,676/- towards balance

amount and Rs.30,000/- for terrace or in the alternate, to refund Rs.9,69,676/- to the

complainant along with interest @ 24% p.a. from 20.10.2008 i.e. date of filing of the

complaint till its realization.


4. Ld. Counsel for the petitioner submitted that he presses revision petition only to

the extent of award of interest @ 24% p.a. from 20.10.08 and petitioner is ready to

refund original amount as ordered by learned State Commission.

5. Perusal of record clearly reveals that complainant made last payment in June,

2000 and later on as per statement of OPs agreement was terminated in 2001 and

asked complainant to collect the money paid by him. Learned Counsel for the petitioner

during the course of arguments submitted that petitioner has sold these flats to other

persons in 2006. In such circumstances, it becomes clear that petitioner was enjoying

fund of the respondent/complainant from 2000 to 2008 and at the same time, also

enjoyed fund received from sale of flats in 2006. Learned State Commission has

directed petitioner to refund money along with 24% p.a. interest only from 20.10.2008

and has not granted interest from the date of making payment. As no interest has been

awarded from June, 2000 to 19.10.2008, grant of 24% p.a. interest from 20.10.2008 till

realization cannot be said to be unreasonable.

6. We do not find any infirmity, irregularity, illegality or jurisdictional error in the

impugned order and revision petition is liable to be dismissed at admission stage.


stage with no order as to costs. ..……………Sd/-………………


..………Sd/-……………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 1025 OF 2012 (From the Order dated 11.05.2011 in F.A. No. 2544/2004 of

the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Shri Ram Kumar S/o Sh. Mange Ram R/o House No.1247, Sector-09 Urban EstateKarnal

Petitioner

Versus

1. Uttari Haryana Bijili Vitran Nigam Through its Sub Divisional Officer S/U Division, Near Satian Wala Mandir Model Town Karnal 2. U.H.B.V.N.L Through its Shakti Bhawan Sector-06, Panchkula

Respondents BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER


For the Petitioner : In Person Pronounced on : 23 rd August, 2013


Challenge in this revision petition is to the order dated 11.5.2011 passed by the

State Consumer Disputes Redressal Commission, Haryana, Panchkula (‘State

Commission’ for short) in F.A. No.2544 of 2004 by which the State Commission

reversed the order of the District Forum, Karnal, allowed the appeal of the respondents

and dismissed the complaint. The impugned order of the State Commission may be

reproduced thus:-

“From the documents produced on record, it is a well proved case of theft of energy in a novel way adopted by the complainant and as such the penalty imposed upon the complainant by the opposite parties for committing theft of energy causing loss to the State Exchequer, cannot be termed as “deficiency of service”. The District Forum at the time of passing the order dated 30.6.2004 has not considered all these aspects and as such the impugned order is not sustainable in the eyes of law.”

2. We have heard the petitioner who appeared in person and perused the record.

We may note that in this case, on the basis of a checking report, a notice of

assessment vide memo No.4167/CA dated 1.9.2013 after assessing an amount of

Rs.32,170/- for theft of electricity energy was sent to the petitioner / complainant. The

petitioner after allegedly accepting his liability in the matter, deposited 70% of the

penalty amount as per Sales Circular No.U-16/2003 (theft case) after which the

respondents treated the offence of theft against the petitioner as compounded and the

matter stood settled as per the rules and regulations of the respondents. However, later

on he chose to file a consumer complaint in the matter against the respondents before

the District Forum which was allowed by the District Forum vide its order dated

30.6.2004. This order of the District Forum, as stated above, came to be set aside in

appeal by the State Commission vide its impugned order by which the consumer

complaint was dismissed.

3. In view of the order passed by the Hon’ble Supreme Court in U.P. Power

Corporation Ltd.and Ors. Vs. Anis Ahmad (Civil Appeal No.5466 of 2012 decided

on 1.7.2013), the complaint filed in the present case before the District Forum under the

Consumer Protection Act, 1986 is not maintainable. Accordingly, without going into the

merits of the revision petition, we dismiss the consumer complaint with liberty to the

petitioner to seek appropriate remedy available to him before the appropriate Forum.


……………Sd/-……..……….. (SURESH CHANDRA)

MEMBER

SS/


REVISION PETITION NO.1672 OF 2012(From the order dated 31.10.2011 in R.P. No.43/2010 of the

Haryana State Consumer Disputes Redressal Commission, Panchkula)

HARMINDER KAUR D/O S. NIHAL SINGH R/O H. NO.255, SECTOR-35A,CHANDIGARH. .….. PETITIONER

Versus

1. HARYANA URBAN DEVELOPMENT AUTHORITY THROUGH ITS CHIEF-ADMINISTRATOR, SECTOR-6, PANCHKULA. 2. ESTATE OFFICER, HARYANA URBAN DEVELOPMENT AUTHORITY,SECTOR-6, PANCHKULA. ....... RESPONDENTS

REVISION PETITION NO.1673 OF 2012(From the order dated 31.10.2011 in R.P. No.44/2010 of the


MANDEEP KAUR D/O S. GURMUKH SINGH R/O H. NO.255, SECTOR-35A, CHANDIGARH. .….. PETITIONER

Versus

1. HARYANA URBAN DEVELOPMENT AUTHORITY THROUGH ITS CHIEF-ADMINISTRATOR, SECTOR-6, PANCHKULA. 2. ESTATE OFFICER, HARYANA URBAN DEVELOPMENT AUTHORITY,SECTOR-6, PANCHKULA. ....... RESPONDENTS

REVISION PETITION NO.1697 OF 2012(From the order dated 31.10.2011 in F.A. No743/2009 of the


HARMINDER KAUR S/O S. NIHAL SINGH R/O H. NO.255, SECTOR-35A,CHANDIGARH. .….. PETITIONER

Versus

1. HARYANA URBAN DEVELOPMENT AUTHORITY THROUGH ITS CHIEF-ADMINISTRATOR, SECTOR-6, PANCHKULA. 2. ESTATE OFFICER, HARYANA URBAN DEVELOPMENT AUTHORITY,SECTOR-6, PANCHKULA. ....... RESPONDENTS AND

REVISION PETITION NO.1698 OF 2012

(From the order dated 31.10.2011 in F.A. No.744/2009 of the


MANDEEP KAUR D/O S. GURMUKH SINGHR/O H. NO.255, SECTOR-35A, CHANDIGARH. .….. PETITIONER

Versus

1. HARYANA URBAN DEVELOPMENT AUTHORITY THROUGH ITS CHIEF-ADMINISTRATOR, SECTOR-6, PANCHKULA. 2. ESTATE OFFICER, HARYANA URBAN DEVELOPMENT AUTHORITY,SECTOR-6, PANCHKULA. ....... RESPONDENTS BEFORE:

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

For the Petitioner : Mr.Gurmukh Singh, A.R. of the petitioner

For the Respondents : Mr.Sudhir Bisla, Advocate

PRONOUNCED ON: 26 th AUGUST, 2013

ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

By this order we propose to dispose of above noted four revision petitions

involving similar question of law and facts.

2. Briefly put facts relevant for the disposal of these revision petitions are that the

petitioners Harminder Kuar and Mandeep Kaur moved two applications each for

allotment of plot in Sector 28, Panchkula, Haryana under the scheme floated by the

OPs in the year 2006. Along with the application forms, the requisite earnest money

was deposited. As per the scheme, the allotment was to be done by draw of lot. The

draw of lot took place on 19.06.2006. Both the petitioners were not successful in the

draw of lot. It is alleged that the OPs failed to refund the earnest money despite of

several letters written to them. Ultimately, the earnest money was refunded without

interest on 26.06.2008. The petitioners thus filed separate consumer complaints

claiming that the failure of the OPs to pay interest on the earnest money retained for

almost two years to be deficiency in service.

3. The OPs/respondents admitted that the petitioners applied for the allotment of

plots and deposited the earnest money. However, according to the OPs, they have

not committed any deficiency in service because the cheques for refund after the

draw of lot were sent to the petitioners at their address H.No. 255, Sector 35-A,

Chandigarh by Registered A.D. Post but the cheques received back unclaimed. The

OPs also raised a preliminary objection that the complainants have no locus standi

to file the consumer complaints.

4. The District Forum, Panchkula rejected the pleas of the OPs and allowed the

complaints. The OPs were directed to pay the respective complainants interest @

9% w.e.f. 20.09.2006 to 20.06.2008 when the refund was actually made.

5. Shri Gurumukh Singh, A.R. of the petitioners has contended that the State

Commission has fallen a grave error by holding that the petitioners are not the

consumers as envisaged in the definition under Section 2 (1) (d) of the Consumer

Protection Act, 1986. Expanding on the arguments of A.R. for the petitioners that

the State Commission failed to appreciate that pursuant to the advertisement of the

OPs, the petitioners had applied for allotment of plot and deposited earnest money

along with their respective applications and therefore, it is clear case of hiring the

service of the OPs and the petitioners squarely fall within the definition of

‘consumer’. Regarding the finding of the State Commission that there is no

deficiency in service because the refund could not be made in time due to wrong

address. It is argued that the aforesaid evidence is without any basis.

6. Learned Shri Sudhir Bisla, Advocate for the OPs on the contrary has argued in

support of the impugned order. Learned counsel argued that the State Commission

has rightly relied upon the judgment of the National Commission in the matter

of Punjab Urban Development Authority & Anr. Vs. Krishan Pal Chander, 2010

(CTJ) 415 (CP) and the judgment of the State Commission in the matter

of Rourkela Development Authority Vs. Rourkela Consumers’ Front, 2009 CTJ

1166 (CP) (SCDRC to conclude that the complainants are not covered by the

definition of consumer as provided in Section 2(1) (d) of the Consumer Protection

Act.

7. The first issue for determination in these revision petitions is whether or not the

petitioners fall within the definition of ‘consumer’ as defined under Section 2(1)(d) of

the Consumer Protection Act?

8. From the pleadings of the parties, it is evident that the complaints in question

have been filed claiming deficiency in service on the part of the OPs. The definition

of consumer availing or hiring service is given in Section 2 (1) (d) (ii) of the

Consumer Protection Act, which is reproduced thus:-“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. On reading of the above, it is clear that consumer is a person who hires or

avails any service for consideration. In the instant case, admittedly pursuant to the

scheme floated by the OPs, the petitioners applied for allotment of flats in Sector 28,

Panchkula. They admittedly deposited earnest money along with the

applications. The purpose of depositing earnest money was to ensure that the OPs

would include the names of the petitioners in the draw of lot and if they were found

successful, they would be allotted the plots otherwise their earnest money would be

refunded to them within a reasonable period. Admittedly, the OPs accepted the

earnest money, meaning thereby that they had agreed to provide aforesaid service

to the petitioners for consideration, i.e. the earnest money deposited with

them. Thus, in our considered view, the petitioners are squarely covered under the

definition of the ‘consumer’ as defined under Section 2 (1) (d) (ii) of the Consumer

Protection Act, 1986 and the State Commission has committed a grave error holding

that they are not the consumers. The above noted judgments relied upon by learned

Shri Bisla are of no avail to the respondents as aforesaid judgments are based upon

the distinct facts of those matters. In our view the State Commission has fallen in

grave error by failing to appreciate that acceptance of the earnest money along with

the applications for including the name of the complainant in the draw of lot amounts

to agreeing to provide the service to the complainants.

10. The State Commission has also held that there is no deficiency in service on

the part of the OPs because the refund cheques were sent at the address of the

complainants/petitioners but could not be delivered to them because of the wrong

address. In our considered view, the aforesaid finding of the State Commission is

without any basis. There is no evidence on record to show that the cheques of

refund were actually dispatched to the respondents by registered A.D. post and were

received back unclaimed. No doubt the OPs/respondents have placed on record

photocopies of the refund orders dated 20.09.2006 but this alone is of no avail to the

OPs unless it is shown those refund orders were actually delivered to the

comlainants/petitioners in person or dispatched to them at the correct address

mentioned in their respective applications. The OPs has failed to file a cogent

evidence of dispatch of the refund orders. It is not bothered to place on record the

so called unclaimed registered envelope, vide which the refund orders were

sent. Vide proceedings dated 25.04.2013 we directed the Chief Administrator of the

respondent authority to file specific affidavit after verification of facts. Pursuant to

the said order, the OPs filed an affidavit of Sh. A.K. Singh, Chief Administrator,

HUDA wherein it is claimed that the refund orders were prepared on 20.09.2006 and

dispatched at the correct address of the complainants through registered A.D.

post. Though, it is mentioned in the affidavit that postal receipts are attached but we

do not find any postal receipts annexed with the affidavit. The OPs however has

annexed to the affidavit the copy of the dispatch register entry dated 30.09.2006

whereby the refund orders are claimed to have been sent to the complainants. This

entry only mention of the dispatch of the refund orders without mentioning the

names and address of the person to whom refund orders were sent. In absence of

aforesaid details, it is difficult to conclude that the refund orders were actually sent to

the addresses of the complainants by registered A.D. post. Onus of proving the

dispatch of refund order within reasonable time was on the OPs, which onus OPs

have miserable failed to discharge. Therefore, we are of the opinion that the State

Commission has committed a grave error in holding that the deposit amount could

not be refunded due to wrong address.

11. In view of the discussion above, we are of the opinion that the orders of the

State Commission suffer from material infirmity. Accordingly the revision petitions

are allowed and the impugned orders of the State Commission are set aside and the

orders of the District Forum are restored. The revision petitions disposed of

accordingly.

………sd/-…………..… (AJIT BHARIHOKE, J.)

PRESIDING MEMBER

…………sd/-…….………

MEMBERbs


(Against the order dated 27.04.2012 in F.A. No. 1214/2010of the State Commission Punjab, Chandigarh)

SBI Life Insurance Co. Ltd. Regd. Office situated at State Bank BhawanCorporate Centre, Madame Cama Road Nariman Point, Mumbai – 400021

........ Petitioner

Vs.

Ashwani Kumar Juneja s/o Shri Narinder Singh r/o Gali Chaudhrian WaliFazilka, District Ferozepur Punjab

......... Respondent BEFORE:



For the Petitioner : Mr.Rakesh Malhotra, Advocate

For the Respondent : Mr. Prabhoo Dayal Tiwari, Advocate

PRONOUNCED ON : 26 th AUGUST, 2013

ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

1. This revision is directed against the order of the State Commission, Punjab,

Chandigarh dated 27.12.2004 by which the State Commission dismissed the appeal

preferred by the petitioner / opposite party with cost of Rs.5000/- against the order of

the District Forum to the following effect:

“So in view of the above noted facts, the present complaint is allowed and the opposite party is directed to pay to the complainant the sum assured i.e. Rs.1,00,000/- (Rupees one lac only) alongwith interest at the rate of 6% per annum from the date of complaint i.e. 24.06.2009 till realization. The opposite party is further directed to pay to the complainant a sum of Rs.1000/- (Rupees One Thousand only) as litigation expenses. Orders be complied within a period of thirty days from the date of receipt of a copy of this order. File be consigned to record room”.

2. The relevant facts for the disposal of this revision petition are that complainant /

respondent Ashwani Kumar filed a consumer complaint under 12 of the Consumer

Protection Act, 1986 against the petitioner alleging that he obtained SBI Life Insurance

Policy from the petitioner commencing from 08.11.2004. The date of the maturity was

08.11.2019. As per the terms and conditions of the policy, the respondent / complainant

was provided basic life cover for Rs.1.00 lac besides the critical illness rider and

accidental death and accident total disability rider for Rs.1.00 each. The critical illness

rider also included the risk benefit from heart attack. It is alleged that the respondent

suffered a heart attack in January 2009 and angiography was done on 05.01.2009

which confirmed 95 % & 50% blockage in Left Axis Deviation (LAD) and Left Circumflex

Artery (LCX). Thus, on the advice of the doctors, the respondent underwent coronary

angioplasty on 09.01.2009. He spent a sum of Rs.3.00 lac on the treatment. The

respondent filed the claim for Rs.1.00 lac under critical illness clause of the insurance

policy. The claim was repudiated by the petitioner on the ground that angioplasty and /

or any other intra-arterial procedures were excluded from the insurance cover. Claiming

the repudiation to be deficient in service, the petitioner approached the District Forum.

3. The petitioner in its written reply claimed that there was no deficiency in service

and insurance claim of the respondent / complainant was rightly repudiated.

4. The District Forum on consideration of evidence took the view that angioplasty

treatment taken by the respondent / complainant was covered under the critical illness

clause of the insurance policy. As such, holding the petitioner to be deficient

in service, allowed the complaint and passed the above noted order.

5. Being aggrieved of the order of the District Forum, the petitioner preferred an

appeal before the State Commission Chandigarh. The State Commission concurred

with the order of the District Forum and dismissed the appeal with the following

observations:

“We have considered this submission also, but we are not in agreement with the argument of the learned counsel for the appellant, because critical illness rider was obtained by the respondent vide proposal Ex.C-5 and at the time of accepting the proposal, no such condition was mentioned in the proposal and the District Forum has rightly observed that the critical illness of heart attack and other diseases are covered and not the procedure. The procedure to be adopted to cure a particular disease is the judgment of the doctor and not of the patient or the assured. The Coronary Artery Bypass Surgery is also one of the methods to remove the blockage and Angioplasty is also one of the methods to remove the blockage by introducing the stent. A prudent man will not understand the medical procedures to be followed by the doctor at the time of taking the policy, but the policy is taken to cover critical illness which as per the policy, included kidney problems, cancer etc., including the heart attack. The respondent in the present case suffered heart attack and took treatment from the hospital, having specialization to cure this illness and the procedure is not covered under the policy, but it is the disease. In case, the appellant insurance company wanted to take the benefit of the clause of procedures, then it was incumbent upon the appellant to minutely explain the details of the policy and the procedures which are excluded, but there is no such evidence that the procedures were also explained. A prudent man takes the policy and pays the premium, believing that in the event of any critical illness, he will be covered and the medical expenses will be

borne by the insurance company, but the insurance company, on technical and inhuman grounds, tried to repudiate the claim by taking shelter of one clause or the other, which amounts to cheating the innocent public under the garb of insurance cover”.

6. Shri Rakesh Malhotra, Advocate, learned counsel for the petitioner has

contended that the orders of the fora below are not sustainable in law because the

orders are based on wrong reading of the insurance contract between the

parties. Expanding on the argument, learned counsel for the petitioner has taken us

through the critical illness benefit clause dealing with the heart disease and submitted

that the aforesaid clause specifically exclude the angioplasty and / or any other intrA

arterial procedure from the insurance cover. It is argued that since the angioplasty

procedure is specifically excluded from the insurance cover, both the foras below have

exceeded their jurisdiction in allowing the complaint of the respondent.

7. Shri R.K.Tripathi, learned counsel for the respondent on the contrary has argued

in support of the impugned order and contended that the approach adopted by the State

Commission in the above noted observations cannot be faulted. He has thus urged us

to dismiss the revision petition.

8. The controversy which needs determination in this revision petition is whether or

not the claim of the complainant / respondent is covered under the critical illness rider of

the insurance policy?. In order to find answer to the above question, it would be useful

to have a look on relevant critical illness rider clause in the insurance policy which is

reproduced thus”

“Critical Illness Benefits:

The following benefit is available provided Critical Illness Rider is opted for and this rider is in force:

If at any time after six months from the Date of Commencement of Risk and before the expiry of the rider term and the Life Assured is diagnosed by any of the Critical Illness /Diseases as defined below, and the same is proved to the satisfaction of the Company, the Company agrees to pay the Sum Assured under this rider. Upon payment of the rider Sum Assured, the liability of the Company to the policy holder shall extinguish all other rights, benefits and interests to the policy holder or whomsoever it may belong under the Policy in respect of Critical Illness.

There is no benefit payable in case of any event other than the one mentioned above.

Once a claim under this rider is accepted the Life Assured exists from all other riders (viz. term assurance rider, accidental death and TPD rider and premium waiver benefit rider) which she / he has availed.

Critical Illness / disease:

a. xxxxxxxxxxxxxxxxxx.

b. Coronary Artery (Bypass) Surgery:

The actual undergoing of open chest surgery for the correction of two or more coronary arteries, which are narrowed or blocked, by coronary artery bypass graft. The surgery must have been proven to be necessary by means of coronary angiography. Angioplasty and / or any other intro-arterial procedure are excluded from the cover.

c. xxxxxxxxxxxxxxxxx.

d. xxxxxxxxxxxxxxxxx.

e. xxxxxxxxxxxxxxxxx.

f. xxxxxxxxxxxxxxxxx”.

9. On reading of the above, we find that as per the insurance contract between the

parties, Coronary Artery Bypass surgery forms part of the critical illness / diseases

covered under the insurance policy. However, on careful reading of the clause

under the heading ‘critical illness / diseases (b)’, we find that angioplasty and / or any

other intra-arterial procedure are specifically excluded from the cover. Admittedly, in the

instant case, the respondent / complainant had undergone angioplasty which is

excluded from the insurance cover. Therefore, in our view, the impugned order of

the fora below in favour of the complainant / respondent are based upon the incorrect

reading of the relevant condition of the insurance contract. Thus, we are of the view

thatfora below have exceeded their jurisdiction in allowing the complaint by misreading

the contract. Accordingly, the impugned order of the State Commission as also the

order of the District Forum cannot be sustained. Revision petition, is, therefore

accepted and orders of the fora below are set aside and the complaint filed by the

respondent is dismissed. No order as to costs.

Sd/- ………………………….

(AJIT BHARIHOKE, J) ( PRESIDING MEMBER)

Sd/-

………………………… (SURESH CHANDRA) MEMBER

Am/


(From the order dated 07.05.2013 in Appeal No.180 of 2013 of the State Consumer Disputes Redressal Commission, UT, Chandigarh)

Surinder Jathaul # 5201-1, Modern Housing Complex Manimajra Chandigarh – 160101

… Petitioner/Complainant Versus

Emirates India/Nicolete 03 Mittal Chambers, Ground Floor 228, Nariman PointMumbai – 400021

… Respondent/Opposite Party (OP)

BEFORE

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

Petitioner : In person


O R D E R



order dated 07.05.2013 passed by the State Consumer Disputes Redressal

Commission, UT, Chandigarh (in short, ‘the State Commission’) in Appeal No. 180/13 –

Surinder Jathaul Vs. Emirates India by which, while dismissing appeal, order of District


2. Brief facts of the case are that complainant/petitioner took OP/Emirates Flight from

Dubai on 29.9.2009. While complainant was sitting on seat 31K, a heavy suitcase

placed in a hatch above, fell on his head and caused injury. Air Hostess advised

complainant to get admitted in the hospital immediately, but complainant refused and

after landing at Indira Gandhi International Airport, complainant managed to reach

Chandigarh. Later on, complainant asked OP to pay 5000 Canadian dollars to enable

complainant to get expert medical advice and care, which was refused. Alleging

deficiency on the part of OP, complainant filed complaint before District Forum. OP

contested complaint and raised objection of jurisdiction and other objections that

complainant had not suffered any significant injury and prayed for dismissal of

complaint. Learned District Forum after hearing both the parties, allowed complaint

and directed OP to pay Rs.50,000/- as compensation to the complainant along with

Rs.11,000/- as litigation cost. Complainant filed appeal before learned State

Commission for enhancement of compensation which was dismissed against which; this


3. Heard petitioner in person and perused record.

4. Petitioner submitted that petitioner is entitled to get additional amount as per

Montreal Convention of 1999, implemented by the Carriage by Air (Amendment) Act,

2009 and learned State Commission has committed error in dismissing appeal and

learned District Forum has committed error in not allowing compensation, as per

aforesaid Act; hence, revision petition be admitted.

5. Perusal of record clearly reveals that learned District Forum granted

adequate compensation of Rs.50,000/-. Learned State Commission while dismissing

appeal observed in paragraph 10 as under:“Admittedly, soon after boarding the flight, but prior to take off from Dubai, the complainant reported to the cabin crew namely Ms.Jessica Ann De Costa that he was hit on the head, due to fall of a suitcase, from the hat rack/overhead storage for cabin baggage. It is evident, from the record that the complainant declined to avail of any medical assistance, stating that he was fine and that the small bump on his said doctor (Annexure 3 to 5) at pages 158 to 160 of the District Forum file reveals that due to fall of heavy object overhead-8 days ago, some symptoms of restlessness, headache and giddiness were reported and head could be effectively treated with an icepack. Accordingly, an ice pack was applied on his head and the staff, on duty, regularly visited the complainant to ensure about his well-being, but he never complained and ultimately, he landed at his destination safely. However, the complainant visited Dr.Gauri Joshi after 9 days of the said incident. The prescription slip issued by the under the heading of examination, it was mentioned as vitals-stable. Thus, no inference could be drawn, from the prescription slip that the complainant received fatal/serious head injury, due to fall of the suitcase. The onus was, thus, upon the complainant to prove the same but he neither filed the affidavit of the concerned doctor nor placed, on record, any documentary evidence, in the form of MRI/CT Scan report etc. to establish the fact that he suffered any fatal/serious head injury. No doubt, the complainant did not suffer any fatal/serious injury, but this fact could not be denied that a suitcase had fallen from the hat rack/overhead storage for cabin baggage over his head which caused a lot of mental agony and physical harassment to him. The District Forum, while appreciating this fact rightly awarded the compensation and litigation costs. Taking into consideration the nature of injury, the District Forum was also right in holding that the compensation of CAD 5000 claimed by the complainant was on the higher side. Thus, the order of the District Forum is just, adequate and reasonable and no interference of this Commission is called for. The

appeal filed by the complainant is devoid of any merit, as no ground, whatsoever, is made out, for the enhancement of the compensation, in accordance with the Rule 21 (1) of the Act ibid.

6. We do not find any infirmity, irregularity or jurisdiction error in the impugned order

and revision petition is liable to be dismissed at admission stage.

7. Petitioner is free to initiate other proceedings under Carriage by Air Act, 2009

against the respondent if law so permits.




k


(From the order dated 03.08.2012 in Appeal No. 1100 of 2011 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

State Bank of Bikaner & Jaipur Rampur, Tehsil Bansur Distt. Alwar, Rajasthan… Petitioner/Opp. Party (OP)

Versus

1. Shri Bhanwar Singh S/o Sh. Bagsingh Village Balwa, Tehsil Bansur Distt. Alwar (Rajasthan) 2. Shri Narayan Singh S/o Shri Bhanwar Singh Village Balwa, Tehsil Bansur, Distt. Alwar (Rajasthan)

… Respondents/ComplainantsBEFORE

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

For the Petitioner : Ms. Kittu Bajaj, Advocate

For the Respondents : Mr. Chander Prakash, AdvocatePRONOUNCED ON 26 th August, 2013

O R D E R



03.08.2012 passed by the Rajasthan State Consumer DisputesRedressal Commission,

Jaipur (in short, ‘the State Commission’) in Appeal No. 1100/2011 – State Bank of

Bikaner & Jaipur & Ors. Vs. Bhanwar Singh & Ors.by which, while dismissing appeal,

order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent availed loan of Rs.

2,30,000/- from the OP/petitioner and purchased a tractor. Complainant could not re-

pay loan in time. In 2008, Central Government introduced Prime Minister Debt Waiver

Scheme and under that scheme, OP asked complainant to deposit amount under

waiver scheme to get substantial relief. Complainant deposited amount with the OP

and complainant asked OP to issue waiver certificate, but that was not issued and

illegal demand of Rs.20,000/- was made from him. Alleging deficiency on the part of

OP, complainant filed complaint before District Forum. OP resisted complaint and

submitted that complainant did not fall under the scheme and OP has not committed

any deficiency and prayed for dismissal of complaint. Learned District Forum after

hearing both the parties allowed complaint and directed OP-1 to issue ‘no due

certificate’ to the complainant within one month in reference to closed loan account

along with litigation expenses. Appeal filed by the petitioner was dismissed by learned

State Commission vide impugned order against which, this revision petition has been

filed along with application for condonation of delay of 57 days.

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

record.

4. Petitioner has filed application for condonation of delay of 57 days on the ground

that Advocate Sadaf Naaz, who was entrusted to file revision, suffered from acute

typhoid and in such circumstances, she could not file revision petition within limitation;

hence, delay may be condoned. Petitioner has filed affidavit of

Advocate Sadaf Naaz along with medical certificate of 61 days from 7.11.2012 to

6.1.2013. This revision petition has been filed on 7.1.2013. We deem it proper to allow

application for condonation of delay of 57 days, subject to cost of Rs.5000/- to be paid

by the petitioner to the respondent.

5. 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. On the other

hand, learned Counsel for the respondent submitted that District Forum has elaborately

discussed submissions of the parties and order passed by learned State Commission is

in accordance with law; hence, petition be dismissed.

6. Perusal of impugned order reveals that it is not a speaking order and learned

State Commission has observed as under:“The District Forum has passed the order after detailed discussion on the facts and evidence of the complaint. Thus we do not find any justification in discussing the facts and evidence again. Looking into the facts and circumstances, we find no illegality in the order passed by the Ld. District Forum, Alwar in Complaint No. 25/2010. Since the District Forum has considerately dealt with the facts on

record, it does not call for interference. Besides, we do not find any justification in appeal on its merits/demerits”.

7. 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”.

8. 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.


order dated 03.08.2012 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.

10. Parties are directed to appear before the learned State Commission on

04.10.2013. A copy of this order be sent to the Rajasthan State Commission, Jaipur.


k



(Against the order dated 15.02.2007 in Complaint No. 105/1997 of theGujarat State Consumer Disputes Redressal Commission)

Dr. Mohanbhai S. Patel Navjeevan Maternity Hospital Opp. Chaturbhuj Baug Patan (N.G.)

… Appellant

Versus

1. Thakkar Baldevbhai Keshavlal

2. Minor Jankkumar Baldevbhai Thakkar

3. Minor Hiralban Baldevbhai Thakkar

4. Minor Jaydeepkumar Baldevbhai Thakkar

Respondents 2 to 4 being minors through their father and natural guardian Respondent No.1 All residents of Harij, Taluka Paten District Mehsana

5. Dr. Shaileshbhai Patel Shivamani Surgical Hospital & Endoscopy Clinic ‘A’ Raliya Chambers, 1st Floor Opp. S.T. Stand, Patan (N.G.)

6. Dr. Hamidbhai Mansuri Sanjeevani Hospital Opp. Wageshwar Mahadev Railway Station Road Patan (N.G.)

7. Dr. Rajesh B. Patel, M.D. (Path.) Keval Pathology Laboratory Subhadranagar, Opp. Technical High School Patan (N.G.) Pin-384265

8. Subashbhai Patel Proprietor, Sarvodaya Medical Stores Nr. Navjeevan Hospital Patan (N.G.)

… Respondents

BEFORE:


HON’BLE VINAY KUMAR, MEMBER

For Appellant : Mr. Ashutosh Kumar, Proxy Counsel for

Mr. Sumeet Bhatia, Advocate

For Respondents : Mr. P.K. Manohar, Advocate

Pronounced : 27 th August, 2013

ORDER

PER VINEETA RAI

1. This First Appeal has been filed by Dr. Mohanbhai S. Patel, Opposite Party No.1

before the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad

(hereinafter referred to as the State Commission) and Appellant herein being aggrieved

by the order of that Commission which had partly allowed the complaint of medical

negligence filed against him and others by Thakkar Baldevbhai Keshavlal, Original

Complainant No.1 before the State Commission and Respondent No.1 herein and

others (his minor children).

2. FACTS :

In his complaint before the State Commission, Thakkar Baldevbhai Keshavlal

(Respondent/Complainant) had stated that he had taken his wife Gitaben (hereinafter

referred to as the Patient) on 06.05.1997 for a medical check-up from his village Harij to

Patan as she was having irregular menstruation and pain in the uterus. She was

examined by Dr. Mohanbhai S. Patel (Appellant) at Navjeevan Maternity Home, who

advised an x-ray and sonography and on the basis of that report informed that Patient

was three months’ pregnant and that D&C procedure was required to be

conducted. Respondent/Complainant told Appellant that whatever was required may be

done in the interest of the Patient’s health and thereafter a D&C procedure was

conducted on 06.05.1997 and Patient was prescribed some medicines. After the

operation was over at about 4.00 p.m., Patient again continued to complain of severe

pain and Respondent/Complainant was informed by Appellant that this was normal

following such an operation and there was no reason for

worry. Respondent/Complainant and Patient remained in the Maternity Home till about

8.30 p.m. after which Appellant advised that she may be taken back to their village in

Harij after paying Rs.450/- as fees. On 07.05.1997 at about 3.00 a.m. Patient again felt

severe pain and took pain killers. However, since the pain continued, a local doctor (Dr.

Bhagwandas Patel) was called, who had in the first place referred the Patient to

Appellant and who after examining the Patient told Respondent/Complainant that the

uterus of the Patient had been punctured and, therefore, it was necessary to take her

back to Patan for treatment. A referral letter was also given by Dr. Bhagwandas Patel

for Appellant. Appellant again prescribed some medicines to Patient but her health

continued to deteriorate and, therefore, Appellant sought the help of two other Doctors

i.e. Dr. Shaileshbhai Patel and Dr. Hamidbhai Mansuri who were also practicing at

Patan. Thereafter, Respondent/Complainant was informed that it was necessary to

conduct another operation which would last for 10 minutes and

Respondent/Complainant was also asked to arrange for blood and medicines. The

operation, however, lasted for 2½ hours and Appellant informed

Respondent/Complainant that the operation was successful. However, Dr. Mansuri

informed the Appellant that in fact Patient’s condition was very serious and she was not

likely to survive. Despite this, Appellant continued to maintain that there was no cause

for worry. Patient expired on 09.05.1997 at about 2.00 p.m. Appellant thereafter told

Respondent/Complainant to take away her dead body as nothing was required to be

done at Patan. 15 days after her death, Respondent/Complainant approached the

Appellant with the request to furnish him necessary case papers in respect of the

treatment of the Patient so as to satisfy himself that there was no medical negligence or

deficiency in the treatment. However, Appellant refused to give him the papers. Being

aggrieved by the death of his wife which he attributed to medical negligence on the part

of Appellant while performing the D&C operation, during which the uterus of the Patient

was punctured, terminating the pregnancy without consent and thereafter in not taking

proper care to check the severe pain and bleeding before discharging her on

06.05.1997 and later after the Laparotomy on 07.05.1997, Respondent/Complainant

filed a complaint before the State Commission against Appellant and other Doctors, who

had attended to the Patient, and also against the Proprietor of Sarvodaya Medical

Stores on grounds of medical negligence and deficiency in service and requested that

Appellant be directed to pay (i) Rs.5.00 Lakhs to Respondent/Complainant for the loss

of company of his wife who was only 30 years of age at the time of her death; (ii) a total

of Rs.12.00 Lakhs to his young children for being deprived of love, care and affection of

their mother at the tender age; (iii) Rs.2.00 Lakhs for mental tension, agony and

inconvenience; and (iv) Rs.10,000/- as litigation costs. It was requested that Opposite

Party No.2 (Dr. Shaileshbhai Patel) be directed to pay Respondent/Complainant

Rs.50,000/- for his deficiency in service and Opposite Parties No. 4 and 5 (Dr. Rajesh

B. Patel and Subhashbhai Patel respectively) Rs.5000/- each for their deficiency in

service.

3. The above allegations were refuted by Opposite Parties No. 1 and 2 (Appellant

and Dr. Shaileshbhai Patel respectively). Appellant contended that when the Patient

was admitted to the Maternity Home with complaints of irregular menstruation and pain

in the uterus, on examination it was found that she was 3 months’ pregnant with

threatened abortion. Appellant denied that he had conducted a D&C

procedure. However, since there was a threat of abortion, Patient was given option to

either undergo conservative treatment or to abort the pregnancy. Patient opted for

termination of the pregnancy and was, therefore, given medical treatment for the same,

namely, Prostadin injection and cervi prime gel to facilitate the abortion. Since the

Patient herself volunteered for termination of pregnancy, no written consent from her

was taken. However, in her medical case history a noting to this effect was

made. Patient was thereafter advised to stay in the Maternity Home as indoor patient

but she left without permission and without even informing the staff of the Maternity

Home. She, however, came back next day on 07.05.1997 at about 11.30 a.m. with a

reference from her family doctor with severe abdominal pain. She was immediately

examined by the Appellant and further treatment commenced. In the interest of her

health, Laparotomy operation was conducted with the help of Opposite Party No.2 (Dr.

Shaileshbhai Patel) after obtaining written consent. The operation was successful and

the Patient’s condition was improving till the third day when her health

deteriorated. Although all the necessary treatment was given as per standard medical

procedure, unfortunately she expired on 09.05.1997 at about 2.00 p.m. It was

specifically denied that the uterus of the Patient was punctured during the alleged D&C

operation on 06.05.1997 because no such surgery was ever performed and further she

left the hospital at her own risk. Appellant further contended that he had advised the

Respondent/Complainant and other relatives to get a postmortem done of the Patient,

so that the real cause of death could be ascertained but they refused to get the

postmortem done. There was no medical negligence on the part of the Appellant who

being a qualified doctor and using his best professional judgment and in consultation

with other expert doctors tried his best to treat and save the Patient. It was contended

that Patient’s death occurred because against medical advice, she left the hospital

without permission, which aggravated her condition.


produced before it partly allowed the complaint and found only Dr. Mohanbhai S. Patel

(the Appellant) guilty of medical negligence and deficiency in service. In its detailed

order, the State Commission had concluded that the termination of the pregnancy was

carried out without the consent for the same and the Patient and her relatives were also

not kept informed about the progress of her condition. After administration of Prostadin

injection and cervi prime gel, Patient was not advised about the possible side effects

and the possible complications. Further, the Patient was left under the care of a woman

called Gangaben who may not have had the necessary skills and competency to

supervise the effects of the medication/injection given. Although there was no evidence

that any D&C was done and her pregnancy was terminated by giving Prostadin injection

and cervi prime gel, this led to complications, including rupture of uterus and bleeding,

to which Patient ultimately succumbed. The State Commission’s specific observation in

respect of the lack of care and negligence is reproduced :“18. Opponent no.1 when used drugs or procedure to terminate the pregnancy ought to have known the inherent danger of using the drugs and taken enough safeguard to either prevent those complications or at least should have remedied them recognizing them as they came (in this case since starting of initial treatment; danger signals had already started appearing). The lack of recognizing and no treating them in time amounts to negligence, more so when opponent no.1 is claimed to be senior, highly qualified and experienced gynaecologist and obstetrician. 19. Complications occurring during the treatment cannot be said to be negligence but not recognizing them in time and not treating them or treating them too late when patient had reached end stage where results were certainly to the detriment to the patient certainly amounts to negligence. The patient who has reposed full trust and faith in the hands of treating doctor for his or her life and if that trust and faith is negative, it is not only negligence but also deficiency in service.”

Keeping in view all facts, including the remarriage of the

Respondent/Complainant, the State Commission directed the Appellant to pay a sum of

Rs.3.00 Lakhs as compensation to be invested in fixed deposit till the three children

attain the age of majority after which this amount would be equally divided among all the

four complainants i.e. 25% to each of the three children and the

Respondent/Complainant. This amount was directed to be paid with 6% interest per

annum from the date of complaint i.e. 17.10.1997 till realization of the amount as also

Rs.5000/- as litigation costs.

5. Being aggrieved by the order of the State Commission, the present First Appeal

has been filed.

6. Counsels for both parties made oral submissions.

7. Counsel for the Appellant contended that the State Commission erred in

concluding that there was medical negligence and deficiency in service on the part of

Appellant by not taking cognizance of the fact that when the Patient was brought for

treatment to Appellant, she was threatened with imminent abortion and wanted

termination of the pregnancy, for which she was given necessary

medicines/injection. No D&C procedure was conducted. It was specifically stated by

Counsel for the Appellant that since the Patient herself wanted the pregnancy to be

terminated and further since her life was at risk because of the immediate threatened

abortion, as per provisions of Section 3(2)(i) of the Medical Termination of Pregnancy

Act, 1971, which provides that a pregnancy may be terminated by a registered medical

practitioner if the continuance of the pregnancy involves a risk to the life of the

pregnancy woman or grave injury physical or mental health, no consent was required. It

was also emphasized that the Patient unauthorizedly left the Maternity Home on the

night of 06.05.1997 and in this connection the medical attendant had also written this

fact in the medical case history of the Patient which was also filed in evidence before

the State Commission. The allegation that the uterus got punctured during the D&C

procedure did not arise since even the State Commission had concluded that no D&C

operation was conducted. Counsel for the Appellant further stated that as a diligent

medical professional even though the Patient had left unauthorizedly, when she came

back next day with complaints of severe abdominal pain he immediately examined her

and conducted a Laparotomy which was necessary. Two other Doctors assisted him in

the procedure. Appellant had also produced expert opinion of a Physician and an

Anesthetist in support of his case but unfortunately their statement was disregarded by

the State Commission on the ground that they were not Specialists in Gynaecology and,

therefore, their statement did not amount to expert opinion. It was also highlighted by

Counsel for the Appellant that the State Commission itself had observed that there was

no medical negligence per se in the actual treatment of the Appellant and he was being

penalized on the ground that Patient and her relatives’ consent was not taken prior to

termination of the pregnancy and proper follow up and treatment was not given to check

the bleeding. However, these facts are not borne out by the case history of the Patient

on record. The finding of the State Commission was, therefore, against the settled

principles of the law with regard to medical negligence.

8. Counsel for the Respondent/Complainant has reiterated in his oral submissions

that there was no evidence to support Appellant’s contention that the Patient, who was

three months pregnant at the time of visiting the Appellant, wanted the termination of

the pregnancy. She had come with complaints of pain in the uterus and although a

provisional diagnosis of threatened abortion was made, after due examination the

medical history does not indicate that there was imminent threat of abortion. Further,

after the clinical tests nowhere was it mentioned that the abortion was inevitable. In fact

as per the clinical notes, it was confirmed that the Patient was 14 weeks pregnant and

the advice given was “Os tightening and complete bed rest”. Thereafter in the same

case sheet, it was recorded “Pt. (Patient) refuses for conservative treatment and wants

to undergo termination”. Patient never wanted to terminate the pregnancy and she was

administered medicines/injection to terminate the same without her knowledge or

consent. Appellant’s contention that as per the provisions of the Medical Termination of

Pregnancy Act, 1971 no consent was required is not correct. Except when the life of

the Patient is at extreme risk, the Doctor is statutorily bound under the provisions of the

above Act to obtain the written consent of the pregnant woman. Further, with respect to

termination of pregnancy, which exceeds 12 weeks, the opinion of two registered

medical practitioners is necessary to opine that continuance of pregnancy involves a

risk to the life of the pregnant woman. In the instant case, as per the medical records of

the Patient, it has nowhere been indicated that the life of the Patient was at

risk. Therefore, merely recording in the medical case history that the Patient wanted

medical termination of the pregnancy does not in any way amount to consent nor does it

give the medical practitioner the right to have terminated the pregnancy.

9. Counsel for the Respondent/Complainant further stated that it is incorrect that the

Patient left the Maternity Home unauthorizedly and without medical permission. In fact,

after taking his fees from the Respondent/Complainant, Appellant himself discharged

the Patient even though she continued to complain of severe abdominal pain at that

time. When the Patient was brought back on 07.05.1997 and the Laparotomy was

conducted on her, Patient’s relatives were never informed about the seriousness of her

condition by the Appellant, who kept assuring that the Patient was recovering

satisfactorily. Had the Respondent/Complainant known that her condition was serious,

he would have taken her to Ahmedabad where better medical facilities were

available. The fact that the Appellant was making false assurances was contradicted by

one of the attendant doctor (Dr. Hamidbhai Mansuri) who had informed the

Respondent/Complainant that the Patient’s condition was serious and had also deposed

accordingly before the State Commission. The same doctor had also deposed that

there was a perforation in the uterus. Counsel for the Respondent/Complainant also

denied that Appellant had ever advised him to get a postmortem conducted after his

wife expired.

10. We have heard learned Counsels for both parties and have also carefully gone

through the evidence on record. Essentially, Appellant and his Counsel made the

following contentions in support of their case:

(i) Since the pregnancy was terminated on the request of the Patient herself

and since the abortion was imminent and posed a risk to the Patient’s life,

under Section 3(2)(i) of the Medical Termination of Pregnancy Act, 1971

the Patient’s consent was not necessary;

(ii) The Patient left the Maternity Home without permission and against the

medical advice, because of which her condition deteriorated; and

(iii) When the Patient came back to the Maternity Home the next day with

complaint of severe abdominal pain, after duly examining her, a

Laparotomy was conducted and her condition became satisfactory till the

third day following the Laparotomy when it suddenly deteriorated and she

passed away. Since the Patient had been treated as per standard

medical procedure with utmost professional care, her death though

unfortunate could not be attributed to any medical negligence on

Appellant’s part.

11. We have considered these submissions and are unable to agree with the same

since these are not supported by any credible evidence on record. It is an admitted fact

that no written consent of the Patient was taken by the Appellant before terminating the

pregnancy. Appellant’s explanation for the same, namely, that the Patient herself had

volunteered for termination of pregnancy and that under the Medical Termination of

Pregnancy Act, 1971 if the Patient’s life is at a risk, the Doctor can terminate the

pregnancy without seeking consent, are not supported by the evidence on

record. There is, for example, no clinical indication that the Patient’s life was at a

risk. In fact, as recorded in the medical case history of the Patient, the Appellant

himself had recorded after the x-ray and the ultrasound that the Patient required bed

rest and conservative treatment. If abortion was indeed imminent or threatened, a

recording to this effect should have been made in the final diagnosis i.e. after x-ray and

ultrasound tests. In any case, even if the Patient herself had volunteered for termination

of the pregnancy, under the Medical Termination of Pregnancy Act, 1971 her written

consent was necessary. Merely recording the same by a Doctor in her medical records

is not adequate in such cases. This is also confirmed by a ruling of the Hon’ble

Supreme Court of India in Samira Kohli Vs. Dr. Prabha Manchanda [(2008) 2 SCC

1], wherein the Hon’ble Apex Court has categorically ruled that unless it is necessary to

save the life or preserve the health of a patient, valid consent is a must. In the instant

case, in the absence of any credible independent evidence that there was immediate

risk to the life of the Patient and also that she herself had volunteered to undergo

termination of the pregnancy, not taking written consent of the Patient clearly amounted

to negligence and deficiency in service.

12. Regarding the contention of the Appellant relating to Patient leaving the Maternity

Home unauthorizedly, we agree with the finding of the State Commission that the

Patient was duly discharged after she had paid the medical fees for her treatment. A

recording on her medical sheet to the contrary on the basis of information given by a

non-medical attendant is not conclusive evidence of the same, particularly since the

Patient was still experiencing severe pain on that day and had no reason to want to

leave. Also as noted by the State Commission, the Patient would not have come back

within a few hours to the same medical facility and readmitted by the Appellant for

further treatment, if she had left unauthorizedly a few hours earlier.

13. We are also unable to agree with the contention of the Appellant that following the

Laparotomy, Patient’s condition was satisfactory and stable, particularly since one of the

other Doctors, who had attended the Patient and assisted in the Laparotomy, in his

evidence before the State Commission clearly stated that the Patient’s condition was

serious/critical and he had informed the Respondent/Complainant about the same. The

same witness has further deposed that he had observed during the Laparotomy that

there was bleeding and a hole in the uterus of the Patient, which further confirms the

seriousness of the Patient’s condition. It is well established as per medical literature

that the drugs Prostadin injection and cervi prime gel can have serious side effects and

complications and a patient need to be cautioned about the same. As observed by the

State Commission, there is no evidence that the Appellant had informed the Patient

about these risks, which as a prudent medical professional he was expected to

do. Therefore, while the Appellant may have used standard case treatment in

terminating the pregnancy as also conducting the Laparotomy, as stated above, he was

clearly guilty of deficiency in service and negligence in not taking written consent of the

Patient before terminating the pregnancy, in not informing her about the possible side

effects of the drugs/injection given to terminate the pregnancy and in not keeping the

Respondent/Complainant informed of the Patient’s critical condition following the

Laparotomy, thus, depriving him of the possibility of taking the Patient to a higher

medical health institution to manage the case.

14. In view of above facts, we agree with the finding of the State Commission that

there was deficiency in service on the above counts and the compensation of Rs.3.00

Lakhs with interest awarded in this case is just and reasonable. We, therefore, uphold

the order of the State Commission and dismiss this First Appeal.

Sd/-

(VINEETA RAI)

PRESIDING MEMBER

Sd/-

(VINAY KUMAR)

MEMBER

Mukesh


(From the order dated 06.02.2008 in Appeal No.854 of 2006 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

1. Life Insurance Corporation of India Branch Manager Jeevan Jyoti, Sector-5, Madra Road, Nohar, Hanumangarh 2. Life Insurance Corporation of India Divisional Manager Jeevan Prakash, P.O. Box 16 Jaipur Road, Bikaner through Asstt. Secretary Northern Zonal Office, LIC Jeevan Bharti, Connaught Circus New Delhi

… Petitioner/Opposite Parties (OP)

VersusSmt. Vinod Devi W/o Late Radhey Shyam Saharan R/o Barvali Village, Tehsil NoharDistt. Hanumangarh Rajasathan


BEFORE

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

For the Petitioners : Mr. Ashok Kashyap, Advocate For the Respondent : Mr. B.S. Sharma, Advocate


O R D E R


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


Jaipur (in short, ‘the State Commission’) in Appeal No. 854/06 – LIC of India & Ors. Vs.

Smt. Vinod Devi 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 Radhey Shyam Saharan now deceased obtained two LIC policies for a sum of

Rs.25,000/- each on 15.12.2000. On account of non-payment of premium policies had

lapsed but both the policies were revived on 6.10.2004

by RadheyShyam Saharan. Radhey Shyam Saharan died on 16.11.2004 and

complainant preferred claim before OP/petitioner, but that was repudiated by OP

through letter dated 21.3.2005 on the ground that on the date of revival of the policies, a

fresh declaration form was submitted by Radhey Shyam Saharan and in that declaration

he had stated that he was not suffering from any kind of disease whereas he was

suffering from the disease of cancer and had taken the treatment. Alleging deficiency on

the part of OP, complainant filed complaint before District Forum. OP/Petitioner

contested complaint and submitted that Radhey ShyamSaharan was admitted in the

hospital on 14.7.2004 and was discharged on 19.7.2004 and Malignant round

cell tumor was found and chemotherapy was recommended

and Radhey Shyam Saharan was suffering from cancer at the time of revival of policy;

hence, denied deficiency and prayed for dismissal of complaint. Learned District Forum

after hearing both the parties, allowed complaint against which, appeal filed by the

petitioner was dismissed by learned State Commission vide impugned order against



4. Learned Counsel for the petitioner submitted that Learned Counsel for the

petitioner submitted that at the time of revival, the assured suppressed fact of

undergoing treatment and also falsely answered the questions in personal statement

regarding his health; even then, learned District Forum committed error in allowing

complaint and learned State Commission further committed error in dismissing appeal;

hence, revision petition be allowed and order of State Commission be set aside and

complaint be dismissed.

5. On the other hand, learned Counsel for the respondent submitted that deceased

was never admitted in the hospital for more than a week; hence, order passed by

learned State Commission is in accordance with law, which does not call for any

interference and revision petition be dismissed.

6. It is admitted case of the parties that Radhey Shyam Saharan, deceased

obtained two insurance policies from the petitioner on 28.3.2000 and both the policies

lapsed which were revived on 6.10.2004 after submitting fresh declaration. It is also

admitted that Radhey Shyam Saharan died on 16.11.2004. It is also not disputed that

as per record of the hospital, Radhey Shyam Saharan remained in the hospital from

14.7.2004 to 19.7.2004 and as per record of SMS hospital, Malignant round

cell tumor was found and chemotherapy was recommended.

7. Learned State Commission has rightly held that if the policy is revived, fresh

declaration form is filled by the insured, it amounts to fresh contract.

8. It is also admitted position that deceased was not hospitalized for a week or

more, but at the time of revival of policy, Radhey Shyam Saharan declared his health to

be good in the personal declaration form which is apparently not correct because before

about 3 months of declaration, Radhey Shyam Saharan was admitted in SMS hospital

and Malignant round cell tumor was found and chemotherapy was

recommended. Thus, it becomes clear that Radhey Shyam Saharan was suffering from

cancer at the time of revival of policy and he has given false declaration about his

health. In P.C. Chacko & Anr . Vs. Chairman, Life Insurance Corporation of India

and Others – (2008) 1 SCC 321, Hon’ble Apex Court observed as under:

Misstatement by itself is not material for repudiation of the policy unless the same is material in nature. But, a deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the policy being vitiated in law. The purpose for taking a policy of insurance is not very material. It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the insured. Proposal can be repudiated if a fraudulent act is discovered”.

9. In the light of above observations, policy can be assailed on the ground of

deliberate wrong answers on material issues as per hospital record before

revival. Radhey Shyam Saharan was suffering from cancer and he was recommended

chemotherapy and no such document has been placed on record to prove the fact that

after taking treatment of cancer, he was perfectly healthy. After deducting

cancer, Radhey Shyam Saharan died within 4 months and in such circumstances, it can

very well be inferred that on account of cancer, Radhey Shyam Saharan died.

10. As Radhey Shyam Saharan at the time of revival of lapsed insurance policies

suppressed material fact regarding Malignant round cell tumor and furnished false

answers regarding his health, petitioner has not committed any deficiency in repudiating

claim and learned District Forum committed error in allowing complaint and learned

State Commission further committed error in dismissing appeal and

in such circumstances, revision petition is to be allowed.


order 06.02.2008 passed by the Rajasthan State Consumer

DisputesRedressal Commission, Jaipur in Appeal No. 854/06 – LIC of India & Ors. Vs.

Smt. Vinod Devi is set aside and complaint is dismissed. There shall be no order as to

costs.


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 1679 OF 2012 (From the order dated 30.03.2011 in Appeal No.4125 of 2010 of the Karnataka State

Consumer Disputes Redressal Commission, Bangalore)

1. The Chief Postmaster General Karnataka Circle, Bangalore – 5600012. Superintendent of Post Offices Udupi Division, Udupi3. The Post Master Kundapur – 576201

… Petitioners/Opp. Parties (OP)

Versus

1. K. Gopalakrishna Nayak S/o Late K. Parameshwara Nayak Car Street, Gnagolli, Kundapura Taluk Udupi District2. Ms. Swati D/o K. Gopalkrishna Nayak Car Street, Gnagolli, Kundapura Taluk Udupi District3. Mr. Akshaya Nayak S/o K. Gopalkrishna Nayak Car Street, Gnagolli, Kundapura Taluk Udupi District


For the Petitioners : Mr. Baldev Malik, Advocate withMr. Arjun Malik, Advocate


O R D E R


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

dated 30.03.2011 passed by the Karnataka State Consumer


No. 4125 of 2010 – The Chief Post Master General, Karnataka Circle & Ors.Vs.

K. Gopalakrishna Nayak & Ors. by which, while dismissing appeal, order of District


2. Brief facts of the case are that complainant no.1/respondent no.1 opened PPF

Accounts (Minor Accounts) in the names of his son and daughter complainant nos.2 &

3/respondent nos. 2 & 3 with OP No.1. Complainant nos. 2 & 3 attained majority on

30.6.2006 and 30.3.2008, respectively. It was further submitted that complainants were

entitled to interest @ 11% p.a. and other tax benefits as per terms & conditions as on

the date of opening of accounts, but OP by letter dated 13.7.2009 asked complainant

no. 1 to regularise PPF account and further apprised that deposits exceed the limits

during 2002-03 & 2004-05 and further asked complainant no. 1 to refund interest of

Rs.1,30,000/- and Rs.99,001/-, respectively. Complainant protested, but OP apprised

that amount has to be recovered from the complainant to regularise the

transactions. Alleging deficiency on the part of OP, complainants filed complaints

before District forum. OP contested complaints. Learned District Forum after hearing

both the parties allowed complaint and directed OP to approach Government under

power of relax recommending for payment of interest to the excess deposits in minor

accounts and refund the excess deposits along with Rs. 5,000/- as compensation

and Rs. 3,000/- as costs. Appeal filed by the petitioner was dismissed by learned State

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

along with application for condonation of delay.

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

4. Learned Counsel for the petitioners submitted that delay in filing revision petition

be condoned. He has not mentioned period of delay to be condoned in the application

as well as in the affidavit, but as per office report, there is delay of 280 days in filing

revision petition.

5. Petitioner along with revision petition filed application under Section 5 of the

Limitation Act for condonation of delay and submitted as under: “That the delay was caused due to the time taken to take the sanction for filing of this revision petition as for the same the office of Chief Postmaster General, Bangalore, Post Master General South Karnataka Region and the Director of Post services was contacted. Also a legal opinion of Branch Secretariat was sort for and the Ministry of Finance sought some clarifications, which resulted in delay”.

6. Later on, petitioner filed detailed affidavit for condonation of delay in which, delay

has been explained as under: “That on 26.4.2011 the case was processed at the office of the Chief Postmaster General, Bangalore and directed PMG SK Region to decide the case and take action vide letter dated 26.4.2011.

That the decision was taken on 18.8.2011 to implement the order partially by the Director of Postal Services. The aspect of regularization of excess deposits was referred to Postal Directorate after implementing the Ld. District Consumer’s order partially. That on 19.10.2011 the Post Directorate (FS Section) vide letter dated 19.10.2011 directed the PMG SK to obtain legal opinion of branch Secretariat and furnish the same to directorate since Ministry of Finance sought some clarifications (DEA). That on 27.10.2011 the SPO’s Udupi was addressed to send reply immediately vide PMG SK letter. That SPO Udupi replied to some of the queries raised by the directorate vide their letter dated 18.11.2011. That the Law Ministry was addressed seeking their opinion in the case on 26.12.2011. That the Law Ministry offered its opinion on 30.12.2011 stating that it is a fit case to file revision petition before this Hon’ble Commission. That the PMG SK Region replied the queries and also sent the opinion of Law Ministry to ADG (FS) on 3.01.12. The FS Section asked PMG SK Region to send Law Ministry opinion by return Fax. That on 16.1.2012 the copy of the opinion of Law Ministry was sent to ADG (FS) along with replies to queries. That the Postal Directorate, New Delhi FS Section vide their letter dated 21.2.2012 intimated that Revisionist Department have taken the proposal of filing the revisionist Department have taken the proposal of filing the revision petition against the order dated 30.3.2011 of KSCDRC Bangalore in the present case and further referred the matter to Ministry of Law and Justice to nominate a counsel from its panel. That the nomination of the counsel was received from the Postal Directorate, New Delhi on 5.3.12. That Shri Rajashekara, Senior Superintendent of Post Offices, Mysore Division, Mysore was appointed on 7.3.12, by the Revisionist Department to assist the Counsel in filing the Present Revision Petition and for signing the documents, etc. That on 24.4.12 the present Revision Petition was filed before this Hon’ble Commission.

7. Learned Counsel for the petitioners submitted that on account of official

correspondence, delay occurred which may be condoned in the interest of justice. He

has placed reliance on LPA 531/2012 – Union of India & Ors . Vs. Kamal Kumar in

which Hon’ble Delhi High Court condoned delay of 136 days in filing appeal by Union of

India.

8. Hon’ble Apex Court in 2012 STPL (Web) 132 SC – Office of the Chief Post

Master General & Ors . Vs. Living Media India Ltd. & Anr . whileelaborately dealing

with delay in filing revision petition by the Chief Post Master General, declined to

condone delay of 475 days in filing Special Leave Petition and observed as under : “11. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.

9. In the present case, impugned order dated 30.3.2011 was received by petitioner

on 20.4.2011 and as per affidavit the case was processed at the office of Chief Post

Master General, Bangalore on 26.4.2011 and directed Post Master General SK Region

to take action and decision was taken on 18.8.2011 to implement the order partially by

the Director of Postal Services meaning thereby after almost 4 months decision was

taken to implement the order of District Forum partially, but later on decided to

challenge the impugned order. Perusal of affidavit further reveals that vide letter dated

21.2.2012, Postal Directorate directed the petitioner to file revision petition

and Shri Rajashekara, Senior Superintendent of Post Offices was appointed to assist

the Counsel in filing the present revision petition, but revision petition was filed on

24.4.2012 meaning thereby again almost 2 months’ time was taken in preparing and

filing revision petition after direction to file revision petition. Petitioner has not given any

cogent explanation for condonation of delay between 26.4.2011 to 18.8.2011 and

21.2.2012 to 24.4.2012 and in such circumstances, in the light of Hon’ble Apex Court’s

judgment in Office of the Chief Post Master General & Ors . (Supra), we do not find it

appropriate to condone the inordinate delay of 280 days.






12. In Ram Lal and Ors . Vs. Rewa Coalfields Ltd ., AIR 1962 Supreme

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




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.”


– 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”.



delay alone.

15. In the light of aforesaid judgements, we do not find it appropriate to condone the

inordinate delay of 280 days. As application for condonation of delay has been

rejected, revision petition being barred by time is liable to be dismissed.


stage being barred by limitation with no order as to costs.


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk


FIRST APPEAL NO. 702 OF 2007(Against the order dated 23.10.2007 in Complaint Case No.31/2003 of the State

Commission, Rajasthan) The Rajasthan Tourism Development Corporation through Senior ManagerHotel Gangaur, Jaipur (Rajasthan)

…..Appellant Versus

1. Aakanshi Satellite Programmers, 83. Gopal Bari, Jaipur (Rajasthan) 2. M/s. Cable Net Service, 83, Gopal Bari, Jaipur (Rajasthan) 3. Shri Anurag Khanna, Properitor Cable Net Service, 83, Gopal Bari,Jaipur (Rajasthan)

.....Respondents BEFORE:HON’BLE MRS. VINEETA RAI, PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER For the Appellant : Mr. Shaliesh Prakash Sharma, AdvocateFor the RespondentNos.1 & 3 : Mr. Alankar Khanna, AdvocateFor the Respondent No.2: Mr. S.K.Sharma, Advocate PRONOUNCED ON: 29th August, 2013

ORDER

PER MR. VINAY KUMAR, MEMBER

Two identical complaints, on the same issue, were filed by the Rajasthan Tourism

Development Corporation (hereinafter referred to as RTDC) before the Rajasthan State

Consumer Disputes Redressal Commission. As the issues and the parties involved

were the same, they were disposed of by a common order of 23.10.2007. The RTDC

has now filed a single appeal in both the matters against dismissal of the complaint by

the Rajasthan State Consumer Disputes Redressal Commission.

2. The facts in brief are that in 1998, OP-1 had submitted a proposal to the

Complainant offering to provide cable T.V. connections to Hotel Gangaur of the

RTDC. The proposal was accepted and the service was provided continuously till

25.7.2002. Thereafter, OP-1 informed through a letter that it would not be able to

continue the cable T.V. service beyond 30.8.2002, for certain technical reasons. It was

also informed that further service could be provided by OP-2. Apparently, the rate

demanded by the OP-2 was higher than the existing rate and therefore not

accepted. The cable TV service was eventually discontinued by OP-1. Considering it

to be a deficiency of service, the RTDC filed the consumer complaints. The

Complainant claimed total compensation of Rs.26.90 lakhs from the OPs.

3. Per contra, the case of OP-1 was that there was no agreement or commitment to

continue the service at the originally agreed rate without any time frame. The terms and

conditions offered at the commencement of the service were agreed and it was not the

case of the Complainant that they were not agreed. Overtime, the business of OP-1 was

taken over by OP-2 and therefore, the service could not have been continued by OP-

1. The original agreement between the parties was for a period of one year from

August 1998 and had thereafter been continued from year to year.

4. The State Commission has held that the contract between the Complainant and

OP-1 was in the nature of an annual contract which was continued. OP-1 had informed

the Complainant on 25.7.2002 itself that it would be concluded on 30.8.2002. Therefore,

there was no deficiency of service on the part of OP-1. The Commission also held that

in so far OP-2 was considered, no contract existed between the Complainant and OP-

2. Therefore, the question of deficiency of service did not arise at all. Consequently,

the complaint was dismissed against both, OP-1 as well as OP-2.

5. We have carefully perused the record and heard the two

counsels. Mr. Shailesh Prakash Sharma , Advocate was heard on behalf of the

Appellant RTDC and Mr. Alankar Khanna and Mr. S.K.Sharma, Advocates for the

Respondents.

6. During the course of the arguments, learned counsel for the Appellant agreed that

there was no privity of contract between the appellant-RTDC and OP-2. Counsel for the

respondent forcefully argued that there is nothing in the records to show that OP-1 was

under any contractual obligation to continue the service indefinitely. As a matter of

fact, the document relied upon by the Complainant clearly shows that the arrangement

began as annual contract in August 1998 and ended in August, 2002. It needs to be

noted here that in the pleadings before the State Commission, the contention in para 3

of the complaint that the arrangement of 1998 was without any time frame was

challenged in the written response of OP-1 in the following terms:-“That annexture -1 is self explanatory and it is totally false that any

offer was ever given by Respondent No.1 vide annexture -1 to provide cable connections to the corporation at the rate of Rs.2,700/- per month without any time frame for all times of come nor any such thing was ever negotiated or accepted by the Respondent No.1.”

7. The appellant, as already noted, has not been able to produce any evidence that

it was meant to be an open ended contract to continue to provide cable T.V service at

Rs.2700/- per month for all times. The State Commission has referred to proposal of

OP-1 in their letter of 1.8.1998 to the Manager HotelGanguar RTDC, Jaipur. A perusal

of this letter shows that it provided for enhancement of charges on the basis of

imposition of new taxes by the government. It also provided for annual enhancement in

monthly rental. It is therefore, clear that it was in the nature of an agreement which was

open to renewal from year to year. Therefore, the terms of renewal of such an

agreement would, by its very nature, need to be agreed by both sides. It cannot be

automatic continuation at unilateral demand or discretion of either party.

8. We therefore, agree with the State Commission that no case of deficiency of

service has been made out against OP-1 and OP-3. We also agree that there was

no privity of contract between the Complainant/RTDC and OP-2. Consequently, no

case is made out against any of the OPs. In our view, the decision of the State

Commission is based on correct appreciation of the evidence on record. We therefore

find no merits in this appeal. It is dismissed for the same reason with no order as to

costs.

…..…………….Sd/-…….…… (VINEETA RAI)

PRESIDING MEMBER

…..…………Sd/-….…….…… (VINAY KUMAR)

MEMBER S./-


(From the order dated 21.03.2013 in Appeal No. 172 of 2013 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

With IA/3474/2013 (Stay)

The Hisar Scholars Co-op. Housing Building Society Ltd., Through its Mrs. KapilaDaughter of Narain Singh having its office at Kaimari Road, Amardeep Colony, Hisar

… Petitioner/Opp. Party (OP) VersusDr. K. Lakshminarayana S/o Sh. Adinarayana R/o 59A/8/1-4, Plot No. 14, Road No. 1, Vasvinagar Vijayawada, Andhra Pradesh


BEFORE


For the Petitioner : Mr. Sanchar Anand, Advocate


O R D E R



21.03.2013 passed by the Haryana State Consumer

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

No.172/2013 – The Hisar Scholars Co-op. House Bldg. Soc. Ltd.

Vs. Dr. K.Lakshminarayana/ by which, appeal was dismissed as barred by 566 days.

2. Learned District Forum vide its order dated 18.7.2011 while allowing complaint

directed OP/Petitioner as under:“As a result of above discussion, we are of the considered view that there is ‘Deficiency in Service’ on the part of the OP society and they have illegally cancelled the allotment of the plot of the complainant. Hence, we set aside the cancellation order and direct the OP society to restore the plot in question i.e. Plot No. B-97 to the complainant and offer the possession of the plot in question to the complainant after completing the development work. At the same time, we direct the complainant to deposit the development charges, if any. The opposite parties are further directed to pay Rs.5000/- (Rupees Five thousand only) to the complainant as litigation expenses. However, the opposite parties-society have admitted in their reply that plot in question were reallotted further, so the reallottees are at liberty to take legal recourse against the opposite parties-society. Order of this forum be complied with within one month from the date of receipt of copy of this order. A copy of this order be supplied to both the parties free of cost as required under Sub Rule 10 Rule 4 of the

Haryana Consumer Protection Rules, 1988. File be consigned after due compliance”.

3. Petitioner filed appeal before State Commission which was dismissed as barred

by 566 days against which, this revision petition has been filed.


5. Learned Counsel for the petitioner submitted that learned District Forum

entertained complaint without jurisdiction and inspite of sufficient cause shown for not

filing appeal within limitation, learned State Commission has committed error in

dismissing appeal as barred by limitation; hence, revision petition be admitted.

6. Petitioner, along with appeal, filed application for condonation of delay filed before

learned State Commission, which runs as under: “That although the copy was prepared by the District Consumer Forum on 18.7.2011 but it was never supplied to the appellant. That only on 20.12.2012 when applicant asked his counsel at Hisar with regard to the status of the case then he informed that case has already been decided long back against them. The appellant asked the counsel about the remedy available to him against the dismissal of this case. He was informed that now the appeal can filed in the Hon’ble State Commission, Haryana. That in between there is a delay of 566 days which is inadvertent and beyond the control of the applicant therefore, the same may kindly be condoned, in the interest of justice, other the applicant will suffer an irreparable loss”.

7. Petitioner has not given any satisfactory explanation for not getting information

regarding order of District Forum from 18.7.2011 to 20.12.2012. Order of District Forum

clearly reveals that order was passed after hearing Counsel for the petitioner. No

reasons have been given by the petitioner why no inquiry was made by the petitioner

from his Counsel or from office of the District Forum regarding disposal of complaint for

a long period of 17 months. Not only this, when petitioner came to know about

judgment of District Forum on 20.12.2012, petitioner should have filed appeal

immediately, whereas appeal was filed before State Commission on 21.3.2013 meaning

thereby, after 3 months and no explanation explaining delay of 3 months was given after

getting knowledge of the order. Learned State Commission has rightly dismissed

appeal as barred by 566 days and we do not find any illegality, irregularity or

jurisdictional error in the impugned order.

8. As there was inordinate delay of 566 days, this delay could not

have bene 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) – AnshulAggarwal Vs. New Okhla Industrial Development Authority.



..………………Sd/-……………


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 2100 OF 2013 (From the order dated 21.03.2013 in Appeal No. 174 of 2013 of the Haryana State

Consumer Disputes Redressal Commission, Panchkula)With

IA/3460/2013 (Stay)

The Hisar Scholars Co-op. Housing Building Society Ltd., Through its Mrs. KapilaDaughter of Narain Singh having its office at Kaimari Road, Amardeep Colony, Hisar

… Petitioner/Opp. Party (OP) Versus

1. Mohinder Kumar Jain S/o Sh. R.L. Jain, Microbiologist, C.C.S., H.A.U., Hisar 2. Jasbir Singh S/o Sh. Hari Singh R/o 147/7, Jawahar Nagar, Hisar3. Sunil Kumar S/o Sh. Chhotu Ram R/o 597/38, Krishna Nagar, Hisar

… Respondents/Complainants

BEFORE


For the Petitioner : Mr. Sanchar Anand, Advocate


O R D E R



21.03.2013 passed by the Haryana State Consumer

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

No. 174/2013 – The Hisar Scholars Co-op. House Bldg. Soc. Ltd. Vs. Mohinder Kumar

Jain & Ors. by which, appeal was dismissed as barred by 566 days.

2. Learned District Forum vide its order dated 18.7.2011 while allowing complaint

directed OP/Petitioner as under:“As a result of above discussion, we are of the considered view that there is ‘Deficiency in Service’ on the part of the OP society and they have illegally cancelled the allotment of the plot of the complainant. Hence, we set aside the cancellation order and direct the OP society to restore the plot in question i.e. Plot No. 158-B to the complainant and offer the possession of the plot in question to the complainant after completing the development work. At the same time, we direct the complainant to deposit the development charges, if any. The OP No.1-society is further directed to pay

Rs.5000/- (Rupees Five thousand only) to the complainant as litigation expenses. However, the OP No. 1-society has admitted in its reply that plot in question were allotted to Jasbir Singh son of Shri Hari Singh, R/o 147/7, Jawahar Nagar, Hisar and further transferred the plot in question to Sunil Kumar son of Shri Chhotu Ram, R/o 597/38, Krishna Nagar, Hisar. Hence the opposite party No. 4 & 5 is at liberty to take legal recourse against the OP No. 1-society. Order of this forum becomplied with within one month from the date of receipt of copy of this order. A copy of this order be supplied to both the parties free of cost as required under Sub Rule 10 Rule 4 of the Haryana Consumer Protection Rules, 1988. File be consigned after due compliance”.

3. Petitioner filed appeal before State Commission which was dismissed as barred

by 566 days against which, this revision petition has been filed.


5. Learned Counsel for the petitioner submitted that learned District Forum

entertained complaint without jurisdiction and inspite of sufficient cause shown for not

filing appeal within limitation, learned State Commission has committed error in

dismissing appeal as barred by limitation; hence, revision petition be admitted.

6. Petitioner, along with appeal, filed application for condonation of delay filed before

learned State Commission, which runs as under: “That although the copy was prepared by the District Consumer Forum on 18.7.2011 but it was never supplied to the appellant. That only on 20.12.2012 when applicant asked his counsel at Hisar with regard to the status of the case then he informed that case has already been decided long back against them. The appellant asked the counsel about the remedy available to him against the dismissal of this case. He was informed that now the appeal can filed in the Hon’ble State Commission, Haryana. That in between there is a delay of 566 days which is inadvertent and beyond the control of the applicant therefore, the same may kindly be condoned, in the interest of justice, other the applicant will suffer an irreparable loss”.

7. Petitioner has not given any satisfactory explanation for not getting information

regarding order of District Forum from 18.7.2011 to 20.12.2012. Order of District Forum

clearly reveals that order was passed after hearing Counsel for the petitioner. No

reasons have been given by the petitioner why no inquiry was made by the petitioner

from his Counsel or from office of the District Forum regarding disposal of complaint for

a long period of 17 months. Not only this, when petitioner came to know about

judgment of District Forum on 20.12.2012, petitioner should have filed appeal

immediately, whereas appeal was filed before State Commission on 21.3.2013 meaning

thereby, after 3 months and no explanation explaining delay of 3 months was given after

getting knowledge of the order. Learned State Commission has rightly dismissed

appeal as barred by 566 days and we do not find any illegality, irregularity or

jurisdictional error in the impugned order.

8. As there was inordinate delay of 566 days, this delay could not have been

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)

– AnshulAggarwal Vs. New Okhla Industrial Development Authority.




..………………Sd/-……………( DR. B.C. GUPTA )

MEMBERk


(From the order dated 02.04.2013 in Appeal No. 153/08 Haryana State Consumer Disputes Redressal Commission, Panchkula)

With IA/3403/2013(For condonation of Delay)

Satpal S/o Sh. Chhabil Dass R/o VPO Bhuna, Teh & Distt. Fatehabad


Versus

1. United India Insurance Co. Ltd. Through its Deputy Manager, Regional Office, SCO No. 123-24, Sector 17-B, Chandigarh2. United India Insurance Co. Ltd. 75, Anaj Mandi, Fatehabad Through its Branch Manager3. United India Insurance Co. Ltd. Branch Apolo Chowk, Dr. Singla Wali Gali, Railway Road Narwana District Jind Through its Branch Manager4. United India Insurance Co. Ltd. Head Office 24 Winstant Road, Chennai through its General Manager


For the Petitioner : Mr. Deepak Aggarwal, Advocate PRONOUNCED ON 29 th August, 2013

O R D E R


This revision petition has been filed by the Petitioner/Complainant against the

order dated 21.09.2012 passed by the Haryana State Consumer Disputes Redressal

Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 628/2012 –

United India Ins. Co. Ltd. Vs. Satpal by which, while allowing appeal, order of District

Forum allowing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner’s vehicle bolero jeep HR-62-

1761 was insured by OP/respondent for the period 5.9.2008 to 4.9.2009. Vehicle was

stolen on 13.12.2008 and FIR was lodged on the same day with the Police Station and

intimation was also given to OP, but OP failed to settle the claim. Alleging deficiency on

the part of OP, complainant filed complaint with the District Forum. OP contested

complaint and submitted that complainant informed OP on 15.1.2009, i.e. after more

than 30 days from the alleged theft and has violated terms and conditions of the

policy. It was further submitted that inspite of repeated letters, petitioner did not supply

relevant documents; so, claim was repudiated in August, 2009 and prayed for dismissal

of complaint. Learned District Forum after hearing both the parties allowed complaint

against which, appeal filed by the OP was allowed against which, this revision petition

has been filed along with application for condonation of delay of 140 days.


4. In application for condonation of delay, learned Counsel for the petitioner

submitted that as petitioner was involved in FIR No.98/2000 under Sections 420, 467,

468, 471, 120-B IPC and was in acute depression and was not in a fit state of mind,

delay of 140 days occurred in filing revision petition which may be condoned. Learned

Counsel for the petitioner submitted that delay occurred due to involvement in false FIR

which may be condoned and revision petition be admitted.

5. Petitioner simply mentioned in the application for condonation of delay that he was

falsely implicated in FIR No. 98/2000 under Sections 420, 467, 468, 471, 120-B IPC, but

he has not filed copy of FIR or challan and has also not shown result of criminal

case. He has mentioned in the application that FIR and detention of the petitioner in

custody is not a disputed fact, but admitted by both the parties before learned District

Forum. Perusal of order of District Forum which was passed on 16.4.2012 reveals that

Counsel for the complainant during the course of arguments submitted that complainant

could not submit documents in time due to custody in jail, but later on he submitted all

the documents meaning thereby before filing complaint, which was filed on

19.4.2011, petitioner must have come out of jail. Learned State Commission passed

impugned order on 16.4.2012 and petitioner has not pleaded any circumstance showing

that he was in jail after passing of the impugned order and in such circumstances, there

is no explanation for condonation of 133 days delay (as per Registry report). Learned

Counsel for the petitioner has placed reliance on 2008 (4) RCR (Criminal) – State (NCT

of Delhi) Vs. Ahmed Jaan in which it was observed that law of limitation is same for

private citizen as for State, but certain amount of latitude is not impermissible. In the

aforesaid case, delay of 5 years in filing revision was condoned as it was explained by

Counsel that file was misplaced in his office due to paucity of space. In the case in hand

petitioner has not placed any material to show that petitioner was restrained by any

sufficient cause from filing revision petition in time. When he had already come out of

jail before more than 2 years, there was no reason for not filing revision petition in time

and delay in filing revision petition cannot be condoned in routine. He has also placed

reliance on (2005) 3 SCC 752 – State of Nagaland Vs. POK AO and Ors. in which it

was observed that sufficient cause should be considered with pragmatism in a justice-

oriented approach. We agree with the view expressed by Hon’ble Apex Court, but in the

light of aforesaid observation, we do not find any sufficient cause for condonation of

delay.






8. 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.”




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) 3 SCC 563 – Post Master General &

Ors. Vs. Living Media India Ltd. and Anr. has not condoned delay in filing appeal



departments.

11. 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”.



delay alone.

12. As far as merits of the case are concerned, learned State Commission rightly

allowed appeal as there was delay of more than 30 days in intimation to Insurance

Company and thus, petitioner violated terms and conditions of the policy. Learned

State Commission rightly placed reliance on New India Assurance Co. Ltd. Vs.

Trilochan Jane and Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance

Co. Ltd. & Anr. and rightly allowed appeal.


order and revision petition is liable to be dismissed on merits also.

14. Consequently, revision petition filed by the petitioner is dismissed on the ground of

limitation as well as on merits with no order as to costs.


..…………Sd/-…………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 3124 OF 2012 (From the order dated 24.07.2012 in Appeal No. 2087/11 of the Rajasthan State

Consumer Disputes Redressal Commission, Jaipur)

Hindustan Coca Cola Beverages Pvt. Ltd. 3rd Floor, Orchid Centre Golf Course Road Sector 53, Gurgaon Haryana And have one of its factories/ Filling Plants atS.P. 39-40 RIICO Industrial Area Village Kala Dera District Jaipur – 303801

… Petitioner/Opp. Party (OP) Versus

1. Kamlesh Kumar Parikh House No. 131-132 Shriram Nagar Kalwad Road, Jhotwara Jaipur – 303012 2. Lall’s Departmental Store S-7, Yatharth, Kabir Marg, Bani Park Jaipur – 302016 (Rajasthan)


For the Petitioner : Mr. Rajiv Tyagi, Advocate Mr. Ajay Kumar, AdvocateFor the Respondents : NEMO/Ex-parte


O R D E R




Jaipur (in short, ‘the State Commission’) in Appeal No. 2087/11 – M/s. Hindustan Coco

Cola Beverage Pvt. Ltd. Vs. Kamlesh KumarParik & Ors. by which, while dismissing

appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/Respondent No. 1 purchased two soft

drink bottles of 600 ml. for a sum of Rs.40/- from OP No.1/Respondent No. 2

manufactured by OP No. 2/petitioner. Complainant/Respondent No.1 consumed one

bottle and then started vomiting and had complained of stomach-ache. He then found

ants and fungus in second bottle and took treatment for the disease sustained due to

consumption of soft drink. Complainant contacted OP No. 1, who told that he sells

bottles as received from the manufacturer. Complainant alleging deficiency on the part

of the OPs, filed complaint with District Forum. OP No.1 submitted that OP No. 1

apprised complainant that bottles sold by him were received from the manufacturing

company, but admitted that second bottle contained ants and fungus and prayed for

dismissal of complaint. OP No. 2 remained ex-parte. Learned District Forum after

hearing both the parties, allowed complaint and directed OPs jointly and severally liable

to pay Rs.40/- along with compensation of Rs.1,00,000/- out of which, Rs.25,000/- to be

paid to the complainant and Rs.75,000/- to be deposited with State Consumer Welfare

Fund and awarded Rs.3,000/- as litigation expenses. Appeal filed by the petitioner was

dismissed by learned State Commission vide impugned order against which, this


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

ex-parte.

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

5. Learned Counsel for the petitioner submitted that 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. On the other

hand, learned Counsel for the respondent submitted that District Forum has elaborately

discussed submissions of the parties and order passed by learned State Commission is

in accordance with law; hence, petition be dismissed.

6. Perusal of impugned order reveals that it is not a speaking order and learned

State Commission has observed as under:“The District Forum below has passed the order after appreciating all the facts of the case and the evidence. Hence, we do not find to appraise the evidence and re-evaluate the evidence. In view of the facts and circumstances we do not find any error in the order dated 19.9.2011 passed by the District Forum, Jaipur-II, Jaipur. Since, the District Forum, as per record, has rightfully appreciated the facts and hence there is no ground for interference. This apart the appeal seems to be devoid of merits”.

7. 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”.

8. 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.


order dated 24.07.2012 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.

10. Parties are directed to appear before the learned State Commission on

04.10.2012. A copy of this order be sent to the Rajasthan State Commission, Jaipur.


..………………Sd/-……………( DR. B.C. GUPTA )

MEMBERk


(From the order dated 02.04.2013 in Appeal No. 153/08 Haryana State Consumer Disputes Redressal Commission, Panchkula)

Rama Nand Dhaka S/o Shree Chand, R/o Village Seurli P.O. Jakhauli, Distt. Sonepat (Haryana) Through GPA Sat Pal Singh S/o Sh. Albail Singh, R/o VPO Pahnwa Distt. Kaithal (Haryana)

… Petitioner/Complainant Versus

1. Haryana Urban Development Authority Through its Chief Administrator Sector-6, Panchkula (Haryana)

2. The Administrator Haryana Urban Development Authority Rohtak (Haryana)3. The Estate Officer Haryana Urban Development Authority Panipat (Haryana)


For the Petitioner : Mr. Madhurendra Kumar, Advocate PRONOUNCED ON 29 th August, 2013

O R D E R



order dated 02.04.2013 passed by the Haryana State Consumer

DisputesRedressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal

No. 153/08 –HUDA Vs. Rama Nand Dhaka by which, while allowing appeal, order of

District Forum allowing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner was allotted plot no. 2632 in

Sector 18, Panipat vide Memo dated 30.07.1998. As the OP/respondent failed to

develop the area and deliver actual physical possession, complainant filed complaint

No.61/2002 before District Forum, Panchkulaseeking refund of the deposited amount

along with interest and compensation. OP contested complaint, but learned District

Forum vide order dated 25.3.2003 allowed complaint and directed OP to refund

deposited amount with 10% p.a. interest along with Rs.1,000/- as costs. Order of

District Forum was challenged before State Commission in Appeal No.1578/2003 which

was dismissed as withdrawn being infructuous vide order dated 6.1.2006, as parties

compromised the matter and complainant agreed to receive payment with 9% p.a.

interest instead of 10% per annum interest allowed by the District Forum. Complainant

withdrew Execution Petition filed before District Forum on 25.3.2003 and OP sent

cheque of Rs.4,86,125/- to the complainant, but complainant instead of receiving the

amount filed second complaint No. 82/2007 and claimed relief to retain the plot in

question on the ground that financial position of the complainant had improved. OP

contested complaint and submitted that complaint was not maintainable in view of

principle of res judicata and further submitted that in the earlier complaint order for

refund of amount had already been passed; the question of retaining the plot by the

complainant by taking ‘U’ turn does not lie and prayed for dismissal of


directed OP to receive due payment towards plot no. 2632 and pay Rs.2,000/- as

costs. OP filed appeal against the order of District Forum which was allowed vide order

dated 15.7.2011 and complaint was dismissed. Complainant filed Revision Petition No.

3023/2011 before National Commission and this Commission vide order dated

26.2.2013 set aside order of State Commission and matter was remanded back to the

State Commission to decide the appeal on merits in accordance with law. After

remand, learned State Commission vide impugned order allowed appeal and complaint

was dismissed with cost of Rs.50,000/- against which, this revision petition has been

filed.


4. Learned Counsel for the petitioner submitted that as Appeal No. 153/2008 was

filed with delay of 90 days and as earlier order dated 15.7.2011 of State Commission

was set aside by National Commission, it was obligatory on the part of State

Commission to pass fresh order on application for condonation of delay and learned

State Commission has not condoned delay by the impugned order. It was further

submitted that learned State Commission has committed error in allowing appeal and

dismissing complaint on the ground of res adjudicata; hence, revision petition be

admitted.

5. Perusal of order dated 15.7.2011 passed by learned State Commission in Appeal

No.153 of 2008 clearly reveals that after hearing both the parties, delay of 90 days in

filing appeal was condoned and by the same order, appeal was allowed on merits on

the ground of want of territorial jurisdiction of the District Forum. This Commission vide

order dated 26.2.2013 allowed revision petition holding that District Forum had

jurisdiction to deal with the complaint and in such circumstances, order dated 15.7.2011

passed by learned State Commission was set aside and case was remanded back to

the State Commission to decide the appeal on merits in accordance with law.

6. Perusal of order of this Commission clearly reveals that this Commission has not

given any finding contrary to the order of State Commission regardingcondonation of

delay meaning thereby, condonation of delay by State Commission has not been set

aside by this Commission vide order dated 26.2.2013 and matter was remanded back to

State Commission to decide the appeal on merits in accordance with law. In such

circumstances, no fresh order was required to be passed by State Commission

regarding condonation of delay merely because order condoning delay in filing appeal is

also part of order dated 15.7.2011 passed by learned State Commission.

7. Learned State Commission vide impugned order has rightly held that after

acceptance of first Complaint No. 61/2002 and the order being complied with, the

complainant ceases to be a ‘consumer’ and no cause survived for the complainant to

file second complaint. It was rightly observed that once the grievance of the

complainant was redressed in earlier complaint, complainant should not have asked for

allotment of plot on the ground of improved financial position. Learned State

Commission also rightly observed that merely because order of District Forum dated

16.1.2008 has been complied with due to non-grant of stay by the State Commission,

the same does not confer any right to the complainant when validity of the order of

District Forum was under challenge before the State Commission.

8. Learned Counsel for the petitioner submitted that learned State Commission has

committed error in allowing appeal on the ground of res judicata. He has also placed

reliance on (1985) 3 SCC 648 – Jaswant Singh and Anr . Vs. Custodian of Evacuee

Property, New Delhi in which it was held that - “In order to decide the question whether a subsequent proceeding is barred by res judicata it is necessary to examine the question with reference to the (i) forum or the competence of the Court, (ii) parties and their representatives, (iii) matters in issue, (iv) matters which ought to have been made ground for defence or attack in the former suit and (v) the final decision.In order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the former proceedings. The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings”.

This citation rather supports the case of OP/respondent because in both the complaints

District Forum was competent forum and same parties were before the District

Forum. Matter in issue was the same and complainant had an opportunity of claiming

possession of the plot, but instead of that he prayed for refund of the amount which was

refunded to him as per compromise entered between the parties in State Commission

and execution petition filed by the complainant before District Forum was disposed of in

the light of compromise arrived at between the parties. In such circumstances,

subsequent complaint fell within the purview of res judicata and subsequent complaint

was not maintainable.

9. 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 at

admission stage.




..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk



(Against the order dated 03.12.2007 in CD Case No. 197/2003 of theOrissa State Consumer Disputes Redressal Commission)

Branch Manager Oriental Insurance Co. Ltd. Bhadrak Branch Burma By-pass At/P.O. District Bhadrak Orissa Through Manager Oriental Insurance Co. Ltd. Oriental House A-25/27, Asaf Ali Road New Delhi-110002

… Appellant

Versus

Yashowanta Narayan Dixit S/o Late Gadadhar Dixit Prop. Of M/s Dixit Oil Industries At Dahanigadia, Charampa PO Bhadrak – 756101 District Bhadrak Orissa

… Respondent

BEFORE:


HON’BLE MR. VINAY KUMAR, MEMBER

For Appellant : Mr. Kishore Rawat, Advocate

For Respondent : Mr. Shibhashish Misra, Advocate

Pronounced : 29 th August, 2013

ORDER

PER VINEETA RAI

1. This First Appeal has been filed by Oriental Insurance Co. Ltd., Opposite Party

before the Orissa State Consumer Disputes Redressal Commission (hereinafter

referred to as the State Commission) and Appellant herein being aggrieved by the order

of that Commission which had allowed the complaint of deficiency in service filed

against it in not settling the claim as per the insurance policy and unjustifiably offering a

lesser amount which was not acceptable to Yashowanta Narayan Dixit, Complainant

before the State Commission and Respondent herein.

2. Facts of the case as per the Respondent/Complainant are that he was engaged

in the business of oil extraction in the name and style of Dixit Oil Industries for self-

employment and had taken an insurance policy from the Appellant/Insurance Company

to cover loss or damage to his unit for a sum of Rs.33 lakhs by paying a premium of

Rs.5280/- and Rs.2475/- for special peril of Floods for the period 04.09.1999 to

03.09.2000 vide Policy No. 2000/192 dated 06.09.1999. On 29.10.1999 during the

validity of this policy, there was a super cyclone followed by heavy torrential rain in the

entire coastal area of Orissa, including Bhadrak town where the

Respondent/Complainant’s business was located. Because of the cyclone and heavy

rains and due to overflowing of the river Salandi the entire business premises of the

Respondent/Complainant was flooded and remained under 4 to 6 feet of water for about

four days and as a result raw material (mustard seeds), mustard oil in tanks and it’s by-

product i.e. Khal (de-oiled cakes) were washed away or spoiled. The entire stock

became unfit for human consumption. When the situation improved after some days,

Respondent/Complainant vide letter dated 02.11.1999 informed the Appellant/Insurance

Company giving a brief picture of the damage which was roughly estimated to be

Rs.27.21 Lakhs. It was contended that four Surveyors were appointed one after the

other, namely, M/s R.P. More And Associates, who visited the

Respondent/Complainant’s premises and also asked him to send some oil for laboratory

tests. Thereafter another Surveyor - M/s D.S. Consolt & Network Pvt. Ltd.,

Bhubaneswar was appointed who confirmed that the water had entered into the godown

causing damage to the mustard seeds etc. but instead of settling the claim,

Appellant/Insurance Company appointed yet another Surveyor - M/s S. Soni & Co. who

again inspected the premises and sought certain clarifications which were

supplied. However, even after this, instead of settling the claim Appellant/Insurance

Company appointed a fourth Surveyor - M/s Sanjeeb Kumar Mohanty And

Associates. As per the assessment of this Surveyor which was based on the survey

reports of the three earlier Surveyors, Appellant/Insurance Company offered the

Respondent/Complainant a sum of Rs.2,98,145/- in settlement of the insurance claim

which was not accepted since it was well below the actual loss caused due to damaged

goods. Being aggrieved by the deficiency in service on the part of Appellant/Insurance

Company, Respondent/Complainant filed a complaint before the State Commission and

requested that Insurance Company be directed to settle the claim for a total amount of

Rs.69,06,685/- as per the following break up :“1. Loss sustained due to super cyclone &

flood covered under the policy

Rs.27,21,685.00

2. Business loss

Rs.05,00,000.00

3. Loss of business goodwill

Rs.05,00,000.00

4. Payment of interest to the bank + Interest to be paid in future

Rs.07,00,000.00

5. Expenses incurred for writing letter, going to the offices of the OPs etc.

Rs.00.25,000.00

6. Damages / Compensations for sufferings / harassment / humiliation / psychological trauma

Rs.10,00,000.00

7. Interest @ 18% on the amount to be awarded from 29&30/10/1999 till the date of payment pendent lite and future interest

Rs.14,60,000.00

Rs.69,06,685.00”

3. Appellant/Insurance Company on being served filed a written rejoinder refuting

the allegations made by the Respondent/Complainant. It was contended that in order to

settle the claim of the Respondent/Complainant, with his knowledge and consent three

Surveyors were appointed and based on the report of the final Surveyor, whose

assessment was based on the earlier three survey reports as also examination of

relevant documents, the insurable loss was rightly assessed at Rs.3,74,167/-. In fact,

Respondent/Complainant had highly inflated his loss by placing reliance on various

purchase bills stating that there was extensive damage to not only raw material but to

the finished goods, including those stored in the oil tanks. However, this extensive

damage was not backed by credible evidence. The contention of the

Respondent/Complainant regarding the loss and also seeking an insurance claim

amount which was much higher than the amount insured as per the insurance policy

itself indicates that the Respondent/Complainant’s complaint/allegation lacks credibility.


produced before it allowed the complaint by observing as follows:“7. It is relevant to mention here that the complainant in support of his claim placed reliance on the purchase bills which are as follows :-

Sl. No.

Date Party Name Qty. (Kg)

Bill Amount

Freight in word

Net Cost Rate/Kg

Rs.

1. 21.08.99 Rajendra Prasad

Dinesh Ku. Jain

15895 303034/- 23,246/- 326080/- 20.52

2. 18.08.99 Ravi Corporation

9010 160020/- 5767/- 165787/- 18.40

3. 22.08.99 Abhay Kr.

Champalal Jain

9010 179388/- 4866 181254/- 20.44


9010 174201/- 2846/- 177087/- 19.65

5. 03.09.99 Abhay Kr.

Champalal Jain

9010 174201/- 2860/- 177061/- 19.65


15385 289167/- 15800/- 304967/- 19.82

7. 28.09.99 Balaji Enterprises

5970 118265/- 118265/- 19.80

8. 01.10.99 Akodiya Inds. 16000 299042 17830/- 316872/- 19.80

158.08

He has calculated the damage as follows :-

“Average 158.08/8 = 19.76 (1976 per Qtl.)

639.35 Qtl X 1976 = 12,63,355.00”

The last surveyor having relied on the reports of the previous surveyors reduced the quantum of damage without any justification. There is nothing on record to disbelieve the details of purchase bills furnished by the complainant. Taking into consideration totality of the circumstances, we are of the view that the offer of rupees 2,98,145/- by the opposite parties was rightly rejected by the complainant. The occurrence took place in October, 1999. More than eight years have elapsed. As the complainant had taken cash credit loan, he must be paying interest to the financing Bank. The opposite parties have arbitrarily and illegally withheld the legitimate amount. Therefore, his entitlement to interest and compensation cannot be denied. We, accordingly, direct the opposite parties to pay a consolidated amount of rupees 16,00,000/- (sixteen lakhs) to the complainant by 31.01.2008, failing which interest at the rate of 9 percent per annum shall be paid from 01.11.1999.”

5. Being aggrieved by the order of the State Commission, the present First Appeal

has been filed.

6. Counsels for both parties made detailed oral submissions.

7. Counsel for the Appellant/Insurance Company explaining the reason for

appointing four Surveyors stated that the first two Surveyors were essentially

preliminary Surveyors who had been deputed to assess the physical condition and not

assess the actual loss. While admitting that the third Surveyor – M/s S. Soni And

Company assessed the net loss at Rs.11,83,000/-, Counsel for the Appellant/Insurance

Company stated that there were inherent contradictions in this survey report vis-à-vis

the earlier two survey reports. For example the second Surveyor after an on the spot

inspection had categorically stated that inundation did not cause damage to the finished

goods, including 29 bags of deoiled cakes as well as the mustard oil in tanks. Apart

from this, the third Surveyor had not gone into some important questions raised by the

earlier two Surveyors. For example, the second Surveyor – D.S. Consolt Pvt. Ltd. had

stated that Respondent/Complainant to explain the higher amount of stocks stored and

damaged had reported that the mill was closed from 03.10.1999 to 29.10.1999 because

of which stocks had accumulated but this point needed further investigation. No finding

was given on the same by the third Surveyor. Because of this and some other

contradictions in the report, it was necessary to appoint the fourth Surveyor to give a

correct assessment of the actual loss. Counsel for the Appellant/Insurance Company

while admitting that the fourth Surveyor was appointed without the consent or

knowledge of the Respondent/Complainant, stated that the fourth Surveyor, while

agreeing that the amount of raw material damaged was 199.48 quintals has concluded

that there was no loss to the finished goods. The fourth Surveyor further concluded that

the third Surveyor had only relied on the version of the Respondent/Complainant while

assessing the loss and had not considered the actual physical damage or any credible

document. Regarding the closure of the factory to explain the higher amount of stocks

in the godowns just prior to the cyclone vis-à-vis other months/years, the fourth

Surveyor concluded that the factory was not closed as alleged by the

Respondent/Complainant since the electricity bills for the months of September and

October, 1999 were higher than the electricity bills for the same months of the

preceding years. The fourth Surveyor assessed the loss as follows :-“AFFECTED AMOUNT 4,84,797.48SALVAGE 28,130.00ASSESSED LOSS 4,56,667.48UNDER INSURANCE Not applicablePOLICY EXCESS (2.5% of Sum Insured)

82,500/-

NET 3,74,167.48SAY 3,74,167/-”

8. Counsel for the Respondent/Complainant challenged the above contentions of

Counsel for the Appellant/Insurance Company. In the first place, it was pointed out that

since the fourth Surveyor was appointed behind the back of the

Respondent/Complainant and his report was submitted in 2000 i.e. four months after

the occurrence of the incident, no correct assessment of the actual damage was

possible and, therefore, as admitted by the Appellant/Insurance Company, it was the

third Surveyor who essentially went into the details of the actual loss incurred after

physical verification and examination of the stock register and related

documents. Counsel for the Respondent further stated that Appellant’s contention that

the two preliminary Surveyors had found that the finished goods were not affected by

the inundation is not factually correct. He brought to our notice the report of the second

Surveyor – M/s D.S. Consolt Networks Pvt. Ltd. which clearly stated that the oil kept in

the oil tanks had a bad smell and the by-products kept in the separate godown were

also found damaged due to inundation.

Counsel for the Respondent/Complainant also challenged the finding of the fourth

Surveyor that the factory had not been closed in October, 1999 by relying on the

electricity consumption, which, according to the Surveyor, indicated that the average

units consumed as per the electricity bill of October, 1999 was higher than the electricity

bill for the corresponding period of preceding years. This sort of calculation is

erroneous and should not be the basis of settling the insurance claim, inasmuch as a

perusal of the electricity bills for preceding months would indicate that the units

consumed in April, May, June, July, August and September, 1999 were higher than in

October, 1999. If an average is taken from April, 1999 to October, 1999 it would

indicate the average unit consumed per quintal. The exercise should have been to add

all the units consumed from April, 1999 to September, 1999, divided by the total quintals

of materials sent for milling to arrive at the average unit consumed per quintal. Further

the units consumed in October 1999 should be divided by the average unit as obtained

hereinabove. The resultant will be the amount/quintal milled in the month of October,

1999. The assessment of loss based on the report of the fourth Surveyor was made

purely to suit the convenience of Appellant/Insurance Company and without taking into

account the various stock registers maintained by the Respondent/Complainant as also

the fortnightly stock statements sent by the Respondent/Complainant to the Civil

Supplies Department of the Government of Odisha as required under the Essential

Commodities Act. Apart from this, the long and dilatory procedure adopted by the

Appellant/Insurance Company in this case was in contradiction of a joint decision of the

Government of India, Government of Odisha and the Insurance Companies taken in a

meeting on 25.11.1999 that insurance claims of all those affected in the super cyclone

should be settled within a period of 45 days.

9. We have heard learned Counsels for both parties and have also gone through the

evidence on record. In the first place, we find substance in the contention of Counsel

for the Respondent/Complainant that the Appellant/Insurance Company was not

justified in appointing one Surveyor after another and in appointing the final Surveyor

without the consent and behind the back of the Respondent/Complainant. As per

Section 64-UM of the Insurance Act the Insurance Companies can appoint another

Surveyor only after recording reasons for not accepting the earlier survey report and

after informing the Insuree. The Hon’ble Supreme Court in a catena of decisions,

including in Sikka Papers Limited Vs. National Insurance Company Ltd. [(2009) 7

SCC 777], has condemned the practice of some Insurance Companies in appointing

one Surveyor after another without recording reasons for the same and behind the back

of the Insuree. In the instant case, it is an admitted fact that the four Surveyors were

appointed and even if three Surveyors were appointed with the knowledge and consent

of the Respondent/Complainant, the fact remains that the fourth Surveyor was

appointed without the knowledge of the Respondent/Complainant and without the

Appellant/Insurance Company recording reasons for the same. In view of these facts,

we are not inclined to consider the report of the fourth Surveyor particularly since this

Surveyor was appointed several months after the reported incident and, therefore, no

meaningful physical verification of the actual damage caused would have been

assessed by them. Apart from this, a number of facts recorded by the fourth Surveyor

are not supported by the earlier three survey reports particularly in respect of the

damage to the finished goods. On a perusal of reports of the three Surveyors, we note

that the third Surveyor had confirmed that there was extensive damage not only to the

mustard seeds but also to the finished goods, including the oil stored in the tanks. The

first Surveyor had also stated that so far as the finished goods are concerned, even

though they were found intact but a bad smell was coming out of the oil kept in the oil

tanks. It was further stated that the by-product was also found damaged in

inundation. The second Surveyor gave a somewhat ambiguous report stating that

although there was 1 ft. of water in the oil storage room and impurities were found at the

bottom of the tanks, flood water entering the tanks is ruled out. The third Surveyor, who

has given a much more detailed report, has given a clear finding that there was damage

not only to the mustard seeds but also to the finished goods. The third Surveyor also

conducted a very detailed survey after examining the stock registers, sales tax records,

fortnightly statements of the stocks sent to the Civil Supplies Department as per the

provisions of Essential Commodities Act and other books and concluded that the actual

loss suffered was Rs.12,83,955/- and after deducting the less loss clause

(Rs.1,00,000/-) as per policy the net insurable loss was assessed at Rs.11,83,955/-.

10. Taking into account the above facts, we are in agreement with the order of the

State Commission that the third Surveyor had rightly calculated the damage on the

basis of the actual loss suffered at Rs.12,83,955/- and recommended that an amount of

Rs.11,83,955/- be paid. In addition, since more than 8 years have elapsed for which the

Respondent/Complainant is paying interest to the financing bank, he is entitled to

interest and compensation also for the delay caused by the Appellant/Insurance

Company in the settlement of the insurance claim for the various reasons as cited

above.

11. We, therefore, uphold the order of the State Commission and dismiss the present

First Appeal. Appellant/Insurance Company is directed to comply with the order of the

State Commission and pay the awarded amount to the Respondent/Complainant within

a period of 3 months.

Sd/-

(VINEETA RAI)

PRESIDING MEMBER

Sd/-

(VINAY KUMAR)

MEMBER

Mukesh


REVISION PETITION NO. 471 OF 2013 (From the Order dated 09.11.2012 in Appeal No. 456/2012 of

Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)

The New India Assurance Co. Ltd. Regd. & Head Office 87, Mahatma Gandhi RoadFort, Mumbai (M.H.)-400001Through Its Regional Office No.1 Level-5 Tower-II Jeevan Bharati Bldg. Connaught Circus New Delhi-110001

Petitioner

VersusM/s B. Mangatram & Co. Bhuj, Madhapur Highway Post Madhapur, Tehsil-Bhuj Kachchh, Gujarat

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


For the Petitioner : Shri V.S. Chopra, Advocate with Shri Neeraj Sharma, Regional Manager Pronounced on : 30 th August, 2013

O R D E R PER SURESH CHANDA, MEMBER

This revision petition is directed against the impugned order dated 9.11.2012 of

Gujarat State Consumer Disputes Redressal Commission, Ahmedabad passed in

appeal No.456 of 2012 by which the State Commission dismissed the appeal of the

petitioner Co. and upheld the order dated 28.7.2010 of the District Forum, Bhuj in

complaint No.228 of 2008. By its order, the District Forum partly allowed the complaint

filed by the respondent in terms of the following directions:-

“The complaint of the complainant is partly allowed. The

opponent are ordered to pay a sum of Rs.5,62,000/-(Rupees

Five Lac Sixty Two Thousand Only) being 75% of the insured

value on non-standard base, Rs.5,000/- (Rupees Five

Thousand Only) against Mental Harassment and Rs.3000/-

(Rupees Three Thousand Only) against Cost.”

2. Briefly put, the factual matrix of this case are that the respondent who is the

original complainant in this case is the authorized dealer of Mahindra and Mahindra Co.

manufacturers of Scorpio Jeep. Being the dealer, the complainant would purchase the

new manufactured Scorpio Jeeps in bulk. As the dealer of the co., the complainant

became the owner of the jeep in question bearing Engine No.BS64L71432

and Chasis No.62L97789. The vehicle had automatic registration in complainant’s name

with Trade Plate No.GJ-12-TC-28A. This jeep was insured with the petitioner insurance

co. under Motor Trade (Road Risk) Policy B-Package for the period from 1.2.2006 to

31.1.2007 covering the risk of theft and other perils as per the contract. It is alleged that

while the vehicle (Scorpio Jeep No.GH-12 TC-28A) was coming from Vadodara

Manufacturer’s Store-yard to Madhapar-Bhuj Showroom on 5.12.2006, it was stolen

near Karjan on NH No.8-A. The incident of theft of the vehicle in question was

immediately intimated to the petitioner insurance co. besides lodging of FIR

No.213/2006 with the Karjan Police Station on 6.12.2006. The complainant thereafter

filed necessary claim in respect of the loss of new jeep for Rs.7,50,000/- which was the

sum insured in respect of the vehicle. Even after submission of the necessary

documents by the complainant, the petitioner Co. did not reimburse the amount of loss

and repudiated the claim on the grounds that the vehicle did not carry Trade Plate while

in travel, the vehicle was travelling beyond 80 kms limit and so violated condition I.M.T.

Endorsement no. 41 and the vehicle was carrying passengers. Alleging repudiation of

its claim by the petitioner Co. as baseless and illegal, the respondent filed a consumer

complaint in question before the District Forum.

3. On notice, the petitioner insurance co. filed its written statement along with

documents including copy of the policy with terms and conditions, affidavit of the driver,

repudiation letter, surveyor’s report etc. In its written statement, the petitioner/opposite

party denied any deficiency in service on its part and submitted that the repudiation of

the claim was justified for the reasons mentioned in the repudiation letter. While not

denying the insurance cover to the vehicle in question, the OP submitted that since

there was serious violation of conditions of the policy and Motor Vehicles Rules, the

complainant was not entitled to get any claim in respect of the vehicle. After examining

the documentary evidence and hearing the parties, the District Forum held that it was

proved from the investigation report and the statements made by the driver and others

that the vehicle was carrying passengers and there was no reason to believe that the

passengers did not pay for their travel and as such there was violation of the terms of

the policy inasmuch as the vehicle was not meant to be used for commercial purpose.

The District Forum noted that the insurance policy was subject to I.M.T. Endorsement

No.41 regarding the limit of 80 kms within which the vehicle in question could have been

driven and since it was going beyond this limit, there was violation of this condition as

well. However, the District Forum held that keeping in view the nature of violations

committed in this case, they could not be considered as fundamental violation of terms

and conditions of the policy. Relying on the ratio laid down in the judgement of the

National Commission in the case of New India Assurance Co. Vs. Narayan Prasad

(2006 CPJ 144 NC), the District Forum partially accepted the complaint in terms of its

order reproduced above. As stated, this order was upheld by the State Commission

while dismissing the appeal of the petitioner by its impugned order.

4. We have heard learned Shri V.S. Chopra for the petitioner- Company and

perused the record. Learned counsel has argued that the fora below have erred in

ignoring that the claim of the respondent could not have been allowed because of the

violations of the conditions of the policy as also the Motor Vehicles Rules. He submitted

that the State Commission and the District Forum failed to appreciate the fact that in the

present case there was violation of the contract of insurance and the Motor Vehicles

Rules because at the time of the loss, the vehicle, which was yet to be registered with

the Registering Authority under the provisions of Motor Vehicles Act, was being used for

commercial purpose and was also plying beyond the limit of geographical area of

120kms. and was not carrying the trade plate. He, therefore, contended that the present

case does not fall within the ambit of the instructions to treat it on non-standard basis

since it is a clear case of gross violation of the terms and conditions of the policy. Thus,

he pleaded that the revision petition be allowed and the impugned order be set aside.

5. Perusal of the record would show that it is established from the evidence before

the Fora below that at the time of the robbery, the driver of the vehicle was carrying

passengers in the vehicle on hire which amounted to violation of the terms of the policy

inasmuch as the vehicle was not meant to be used for commercial purpose. The District

Forum taking note of the nature of violation of the conditions of the insurance policy

allowed the claim as non-standard for the reason that there is no direct nexus with the

violation of the terms of the policy and the robbery. This decision was upheld by the

State Commission. The view taken by the Fora below is in line with the view taken by

this Commission in Narayan Prasad’s case (Supra) and other similar cases. In the case

of Niharika Maurya Vs. New India Insurance Co. & Ors.(RP No. 3687 of 2010 decided

on 21/04/2011) , this Commission has observed thus:

“Even if it is assumed for the sake of argument that the vehicle was being used for commercial purpose in violation of the terms of the policy, it is of no avail to the respondents as the Supreme Court in Nitin Khandelwal’s case (supra) has held that in the case of theft of vehicle breach of condition is not germane and the insurance company is liable to indemnify the owner of the vehicle in the case of a comprehensive policy for the loss caused to the vehicle. Para 13 of the said judgment reads as under:

“In the case in hand, the vehicle has been snatched or

stolen. In the case of theft of vehicle breach of condition is not

germane. The appellant insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant insurance company ought to have settled the claim on non-standard basis. The insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft.”

6. In view of the above discussion, we do not find any infirmity with the impugned

order which would call for our interference. We, therefore, dismiss the revision petition

in limine with the parties bearing their own costs.


…………Sd/-…….……………(SURESH CHANDRA)

MEMBER

SS/


REVISION PETITION NO. 2127 OF 2008 (From the order dated 07.02.2008 in Appeal No.707/2006 of the M.P. State Consumer

Disputes Redressal Commission, Bhopal)

Rajesh Jain S/o Late Shri Vimal Kumar Jain R/o Indira Complex Vidisha,M.P.

… Petitioner/Complainant VersusNational Insurance Co. Ltd. Branch at Vidhisha (M.P.)

… Respondent/Opp. Party (OP) BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr. H.D. Thanvi, AdvocateFor the Respondent : Mr. Ajay Majithia, Advocate


O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the Petitioner/Complainant against the

order dated 7.02.2008 passed by the M.P. State Consumer

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

No. 707/2006 – National Insurance Co. Ltd. Vs. Rajesh Jain by which, while allowing

appeal, order of District Forum allowing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner’s car MP-40C 0251 was

insured by OP/respondent for a period of one year commencing from 29.6.2003 to

28.6.2004. On 12.7.2003, car met with an accident and report was lodged with the

Police Station. OP also conducted inquiry and loss of Rs.1,17,787/- was

assessed. Complainant was holding licence which was valid upto 24.1.2020, but after

investigation, OP repudiated claim of the complainant on the ground that driving licence

of the complainant was not in force on the date of accident. Alleging deficiency on the

part of OP, complainant filed complainant before District Forum. OP resisted complaint

and submitted that validity of complainant’s licence was only upto 21.1.2000 and claim

was rightly repudiated and prayed for dismissal of complaint. Learned District Forum

after hearing both the parties, allowed complaint and directed OP to pay Rs.44,451/- to

the complainant along with 6% p.a. interest. Appeal filed by the respondent was

allowed by learned State Commission vide impugned order against which, this revision

petition has been filed.


4. Learned Counsel for the petitioner submitted that petitioner was under

the bonafide impression that his licence was valid upto 24.1.2020; though, in fact, it was

valid only upto 21.1.2000 and in such circumstances, learned District Forum rightly

allowed complaint, but learned State Commission has committed error in dismissing

complaint; hence, revision petition be allowed. On the other hand, learned Counsel for

the respondent submitted that order passed by learned State Commission is in

accordance with law; hence, revision petition be dismissed.

5. Perusal of record clearly reveals that licence of the petitioner was valid

only upto 21.1.2000, whereas accident took place on 12.7.2003. Thus, it becomes clear

that at the time of accident, petitioner was not having valid licence. Learned State

Commission has rightly allowed appeal and dismissed complaint as complainant was

not possessing valid driving licence at the time of accident. Merely because petitioner

was under an impression that his licence was valid upto 24.1.2020, petitioner cannot get

any benefit.

6. Learned State Commission has wrongly mentioned that learned District Forum

allowed claim on non-standard basis because perusal of order of District Forum reveals

that complaint was not allowed on the basis of non-standard basis. The order passed by

learned State Commission is in accordance with law, which does not call for any

interference and revision petition is liable to be dismissed.


as to costs.


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 2504 OF 2008 (From the order dated 11.04.2008 in Appeal No.961/2006 of the M.P. State Consumer

Disputes Redressal Commission, Bhopal)

J.P. Dwellings Pvt. Ltd. Through Director Jitendra Singh Parihar S/o Shri R.B. Prihar R/o B-7, Chhatrasal Nagar, Phase I, Raisen Road, Bhopal

… Petitioner/Opp. Party (OP) VersusP.K. Raikwar S/o Dr. L.P. Raikwar R/o J-93, Harshwardhan Nagar, Bhopal


For the Petitioner : NEMOFor the Respondent : Mr. Ravindra Bana, Advocate


O R D E R



11.4.2008 passed by the M.P. State Consumer Disputes Redressal Commission,

Bhopal (in short, ‘the State Commission’) in Appeal No. 961/2006 – P.K. Raikwar Vs.

J.P. Dwellings Pvt. Ltd. by which, while allowing appeal, order of District Forum

dismissing complaint was set aside.

2. Brief facts of the case are that complainant/respondent entered into an

agreement with OP/petitioner for purchase of a duplex Bungalow and paid Rs.25,000/-

on 17.11.2003 and Rs.3,00,000/- on 20.12.2003 and rest of the amount of Rs.3,75,000/-

was to be paid later on. As OP neither completed the construction, nor returned money,

alleging deficiency on the part of OP, complainant filed complaint before District

Forum. OP resisted complaint and submitted that after completion of structure, OP

contacted complainant, but he did not show any interest in taking possession and

denying any deficiency in service, prayed for dismissal of complaint. Learned District

Forum after hearing both the parties dismissed complaint and further opined that if the

complainant wants to get his money back with interest then District Forum has no

jurisdiction for grant of such relief. Respondent filed appeal before State Commission

and learned State Commission vide impugned order allowed appeal and directed

petitioner to refund Rs.3,25,000/- along with 9% p.a. interest from the date of complaint

till payment against which, this revision petition has been filed.

3. Neither petitioner nor his Counsel appeared even after service. Heard learned

Counsel for the respondent and perused record. 4. Order sheet dated 4.7.2008 of this Commission reveals that revision petition was

admitted only to the extent of award of interest. It further revealed that Counsel for the

petitioner apprised that amount of Rs.3,25,000/- will be remitted to respondent by bank

draft within 4 weeks and learned Counsel for the respondent admitted that this amount

has been received by respondent on 23.12.2008. Now, the short question to be

decided in this case is whether; award of 9% p.a. interest from the date of filing

complaint i.e. 7.6.2005 till realization is proper or not.

5. Perusal of record clearly reveals that respondent deposited Rs.25,000/- on

17.11.2003 and Rs.3,00,000/- on 20.12.2003 and learned State Commission has

allowed 9% p.a. interest on this amount from 7.6.2005 i.e. from the date of filing

complaint. Thus, it becomes clear that learned State Commission has not even allowed

interest from the date of making payment and already complainant/respondent has

suffered loss of interest from the date of making payment till date of filing of

complaint. Learned State Commission has allowed interest only @ 9% p.a., which

cannot be said to be excessive and in such circumstances; impugned order does not

call for any interference, as we do not find any illegality, irregularity or jurisdictional error

in the impugned order.


as to costs.


..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 3801 OF 2012 (From the order dated 05.07.2012 in Appeal No. 135/2009 of the Bihar State Consumer

Disputes Redressal Commission, Patna)

Dr. Jai Bharat Sinha S/o Late Puran Singh Village: Senduari District Vaishali, Bihar … Petitioner/Complainant

Versus

1. Chairman Bihar State Electricity Board Vidyut Bhawan, Beli Road, Patna 2. Executive Engineer Electrical Electricity Department Hazipur (Vaishali) Bihar3. Asstt. Electrical Engineer, Supply Sub Division Hazipur (Vaishali) Bihar


For the Petitioner : In person


O R D E R



order dated 05.07.2012 passed by the Bihar State Consumer

DisputesRedressal Commission, Patna (in short, ‘the State Commission’) in Appeal No.

135 of 2009 – Dr. Jai Bharat Sinha Vs. Chairman, Bihar State Electricity

BoardVidyut Bhawan & Ors. by which, while dismissing appeal, order of District Forum

dismissing complaint was upheld.

2. Brief facts of the case are that complainant/petitioner has electrical connection

bearing NO.SD-13 provided by OP/Respondent and was paying bills, but the

transformer of the village concerned was burnt on 25.8.2006, which was replaced on

25.9.2007. Complainant along with other consumers filed application for revision of bill

on 4.10.2007 and again on 3.3.2008, but the bills were not revised. Alleging deficiency

on the part of OP, complainant filed complaint before District Forum. OP contested

complaint and admitted burning of transformer and its replacement and further

submitted that bill of the complainant was revised and prayed for dismissal of complaint.

District Forum after hearing both the parties, dismissed complaint against which appeal

filed by the petitioner was dismissed against which, this revision petition has been filed.

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

4. Petitioner submitted that inspite of replacement of transformer bill was not revised;

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 impugned order reveals that bill of the petitioner was revised vide letter

No. 78 dated 24.1.2008 and Rs.274/- were adjusted towards electricity charges and

Rs.18.44 were adjusted towards electricity duty and no D.P.S. has been charged during

the period transformer remained burnt. Thus, it becomes clear that during the period

transformer remained burnt, respondent revised petitioner’s bill and reduced the

charges and in such circumstances, there was no deficiency on the part of

OP/respondent. Learned State Commission has not committed error in dismissing

appeal and revision petition is liable to be dismissed.




..……………Sd/-………………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 4306 OF 2012 (From the order dated 17.08.2012 in Appeal No. 206/2011 of the Karnataka State

Consumer Disputes Redressal Commission, Bangalore)

Mr. P.J. Joseph S/o Late Mr. P.P. Joseph R/at No.866, 5th Cross, Vijaya Bank Layout, Bilekahalli Bangalore – 560076 Karnataka

… Petitioner/Complainant Versus1. M/s. Aratukulam A Regd. Partnership Firm No.739, Singasandra Hosur Road, Adjacent to Clover Let Show-Room Behind CITI Bank ATM, Bangalore – 560068 Karnataka State2. Smt. Sunitha Tony, Partner A Regd. Partnership Firm No.739, Singasandra Hosur Road, Adjacent to Clover Let Show-Room Behind CITI Bank ATM, Bangalore – 560068 Karnataka State3. M/s. Tony Vincent, Partner M/s M/s. Aratukulam, A partnership Firm No.739, Singasandra Hosur Road, Adjacent to Clover Let Show-Room Behind CITI Bank ATM, Bangalore – 560068 Karnataka State


For the Petitioner : Mr. B.S. Sharma, Advocate PRONOUNCED ON 30 th August, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the Petitioner/Complainant against the

order dated 17.08.2012 passed by the Karnataka State Consumer


No. 206/2011 – P.J. Joseph Vs. M/s. Aratukulam & Ors. by which, while dismissing

appeal, order of District Forum dismissing complaint was upheld.

2. Brief facts of the case are that complainant/petitioner entered into an agreement

with OP/Respondent-builder for purchase of a flat and paid a sum of Rs.

13,00,000/-. As per agreement, OP was to give possession of the flat within 24 months’

time i.e. before 31.7.2007 and as there was delay in delivering the possession,

complainant suffered loss of Rs.15,000/- per month and claimed Rs.5,10,000/- from the

OP. It was further submitted that complainant is ready to pay balance amount of

Rs.1,60,000/-, but OP has not come forward to get the sale deed registered and in such

circumstances, alleging deficiency on the part of OP, complainant filed complaint before

District Forum. OP resisted complaint and admitted that possession was to be delivered

to the complainant within 24 months, but complainant did not pay amount of sale

consideration as per time schedule mentioned in the agreement 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.


4. Learned Counsel for the petitioner submitted that as there was delay in handing

over possession of the flat, petitioner was entitled to receive compensation, but 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 District Forum order reveals that petitioner was to make payment as

per time schedule mentioned in the agreement, but petitioner has not filed proof of

payment of amount as per time schedule when petitioner himself has committed default

in making payment as per time schedule, respondent was not under an obligation to

handover possession within the stipulated period and in such circumstances, petitioner

was rightly held not entitled to get compensation @ 15,000/- per month on account of

late delivery of possession. Learned District Forum has not committed any error in

dismissing complaint and learned State Commission has not committed error in

dismissing appeal.




stage with no order as to costsd


..………………Sd/-……………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 1554 to 1566 OF 2013 (From the order dated 03.10.2012 in Appeal No.A/08/591 of the Maharashtra State

Consumer Disputes Redressal Commission, Nagpur)WITH 1A/2705/2013 IA/2706/2013(Stay & Condonation of Delay)

National Insurance Co. Ltd. Regional Office “Mangalam Arcade”, 2nd Floor, North Bazar Road, Gokulpeth Nagpur – 440010 through: Manager Regional Office – 1,Jeevan Bharti Building 124, Connaught Circus New Delhi

… Petitioner/ Opp. Party (OP)

Versus

M/s. Richardson & Cruddas (1997) Ltd. F-3, MIDC Industrial Estate Hingna Road,Nagpur – 440016


For the Petitioner : Mr. Kishore Rawat, AdvocateFor the Respondent : Mr. Kaushik Mandal, Advocate


O R D E R


All these revision petitions arise out of common order dated 3.10.2012 passed by

learned State Commission in appeals; hence, all these revision petitions are disposed of

by common order.

These revision petitions have been filed by the petitioner/OP against the order

dated 03.10.2012 passed by the Maharashtra State Consumer

DisputesRedressal Commission, Circuit Bench at Nagpur (in short, ‘the State

Commission’) in Appeal Nos. A/08/591, A/08/709 to A/08/720 – National Ins. Co. Ltd.

Vs. M/s. Richardson & Cruddas (1997) Ltd. by which, while dismissing all the appeals,

separate orders of District Forum allowing complaints were upheld.

2. Brief facts of the case are that complainant/respondent obtained contract to erect

400 K.V. of transmission line from Durgapur to Jamshedpur covering distance of 159

Km in the year 1988. Complainant obtained insurance coverage from OP/petitioner for

different articles, electrical appliances and materials for the period commencing from

29.12.1988 to 28.07.1991. During subsistence of the policy, different insured articles;

namely, ACSR “Moose” conductors were stolen away. Complainant informed OP and

also lodged report with the police. Complainant submitted claim before OP. OP

deputed surveyor and, though, surveyor submitted report showing loss of articles due to

theft, the claim was not settled by OP for about 4 years. Alleging deficiency on the part

of OP, complainant filed separate complaints before State Commission which were later

on transferred to District Forum on account of change of pecuniary

jurisdiction. OP/Petitioner resisted complaints and submitted that complainants did not

accept amount offered by OP and, as such, there was no deficiency and prayed for

dismissal of complaints. Learned District forum after hearing both the parties allowed

complaints and awarded amount as shown in Schedule ‘A’ of the impugned order

against which, these revision petitions have been filed.

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

record.

4. Learned Counsel for the petitioner submitted that learned State Commission has

not considered grounds of appeal in the impugned order; hence, revision petitions be

accepted and impugned order be set aside and matter may be remanded back to

learned State Commission. On the other hand, learned Counsel for the respondent

submitted that order passed by learned State Commission is in accordance with law;

hence, revision petitions be dismissed.

5. Learned Counsel for the petitioner submitted that there was similar exclusion

clause in the policies except in Complaint No. 35 of 2008 (R.P. No. 1565 of2013) in

which there was separate exclusion clause, but learned State Commission has

committed error in not considering exclusion clause and further submitted that learned

State Commission has not considered grounds taken in memo of appeal, but has

decided appeals on other grounds which were not raised before learned State

Commission.

6. Perusal of memo of appeal filed before State Commission in R.P. No. 1554 of

2013 reveals that petitioner took following grounds in memo of appeal:“C. The Learned Forum manifestly erred in not appreciating that the second report sought by the appellants was only restricted to ascertain the reasons for collapse of the structure giving rise to the claim. The Learned Forum failed to appreciate the recorded findings that the towers with FOS for 1.5 as in the case of the respondents had inherent defect and were not designed for any impact load, which may result due theft/snapping; D. The Learned Forum manifestly erred not appreciating the documents on record and their contents. The learned Forum failed to apply its mind to the very fact that despite their being inherent defect in the towers the appellants offered to indemnify the respondents by paying an amount of Rs.03,13,796/- as per the calculations made available to the respondents as well as filed on record. The Ld. Forum also failed to appreciate that the respondent was only entitled to the said amount and that; it was the respondent, who refused the said amount. Hence, the findings recorded in the Ld. Forum and directing the appellants to pay an amount of Rs.5,50,711/- along with interest @ 9% p.a. from 05.02.2008 to the respondent is per se bad in law and is therefore required to be quashed and set aside”.

7. Similar ground taken in paragraph ‘D’ of this memo of appeal had been taken in

other appeals before State Commission except change of figure of amount awarded by

District Forum. In memo of appeals, no grounds have been taken regarding

maintainability of the complaint, non-joinder of necessary parties and jurisdiction of the

District Forum, but State Commission has dealt with all these grounds in memo of

appeal which were not called for. These grounds were taken by the petitioner in written

statement filed before District Forum, but learned District Forum rejected all these

objections and allowed complaints and petitioner did not choose to assail order of

District Forum on these grounds. In such circumstances, State Commission should not

have considered all these grounds in the impugned order and should have decided

appeals on the grounds mentioned in memo of appeal which have not been considered

and in such circumstances, matters are to be remanded back to the State Commission

for deciding appeals on the grounds taken in memo of appeal.

8. Consequently, revision petitions are allowed and impugned order dated

03.10.2012 passed by learned State Commission in Appeal Nos. A/08/591, A/08/709 to

A/08/720 – National Ins. Co. Ltd. Vs. M/s. Richardson & Cruddas (1997) Ltd. is set

aside and appeals are remanded back to learned State Commission to confine its order

only to the extent of grounds taken in memo of appeal and to consider all the grounds

raised in memo of appeal.

9. Parties are directed to appear before the learned State Commission on 23.9.2013...…………………Sd/-…………


..………………Sd/-……………( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 2462 OF 2011 (From the order dated 03.05.2011 in First Appeal No. 928/2010of Rajasthan State Consumer Disputes Redressal Commission)

Rajasthan Housing Board Through Housing Commissioner Rajasthan Housing Board Vaishali Nagar Ajmer, Rajasthan

... Petitioner

Versus Smt. Prem Devi w/o Raghunath Bhakar r/o House No. 447, Jat Mohalla Naserabad Ajmer, Rajasthan … Respondent BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. Vinay Kumar, AdvocateFor the Respondent(s) Mr. Dharmender Kr. Jain, Advocate PRONOUNCED ON : 30 th AUGUST 2013



Protection Act, 1986 by Rajasthan Housing Board (hereinafter referred to as ‘Board’)

against the impugned order dated 03.05.2011 passed by the Rajasthan State

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

928/2010, “Rajasthan Housing Board versus Smt. Prem Devi”, vide which, while

dismissing the appeal, order dated 23.04.2010 passed by District Consumer Disputes

Redressal Forum, Ajmer allowing the consumer complaint no. 33/2010 filed by the

complainant/respondent was upheld.

2. Brief facts of the case are that the Board allotted house no. 5/138 to the

complainant/respondent Smt. Prem Devi in Naseerabad in the financially weaker

section category. She deposited a sum of Rs.23,716/- on 29.03.2006 for the house, but

when she went to the spot for taking possession of the said house, she found a number

of shortcomings in the construction of the house including sanitary and electrical

fittings. She pointed out the defects to the notice of the Board and also made a

complaint in writing on 20.02.2007, but no action was taken on the said complaint. On

the other hand, the Board demanded a sum of Rs.26,844/- from her as lease amount

along with interest, but the complainant requested for handing over the possession after

rectifying the defects. She filed consumer complaint in question before the District

Forum which was allowed vide order dated 23.04.2010 and the Board was directed to

remove the defects in the house and deliver possession of the house to her without

charging any extra amount and also to pay Rs.10,000/- to the complainant as

compensation for mental agony and Rs.1,500/- as legal expenses. An appeal made

against this order was dismissed by the State Commission vide impugned order and it

was directed that a sum of Rs.5,750/- deposited with the District Forum by the Board

shall be paid to the complainant along with the acquired profit. It is against this order

that the Board has preferred the present revision petition.

3. At the time of hearing before us, it came to notice that the impugned order passed

by the State Commission has been issued without making proper analysis of the facts

and circumstances on record. On the face of it, it is a vague/sketchy order, because no

reasons have been given for the observation that there was no error in the order passed

by the District Forum and no interference in the same was required.

4. Further, during proceedings before this Commission, it was revealed that the

Board had made the necessary repairs and asked the respondent to take possession of

the house after depositing the outstanding dues of Rs.83,108/-. However, in reply to the

revision petition filed by the respondent, it has been stated that the Board has no right to

impose any penalty on the complainant. The complainant is ready and willing to take

possession of the house, if the penalty imposed by the Board is waived off and the

house is handed over in proper condition. It has also been stated that the house in

question is still incomplete.

5. After examining the entire material on record, it becomes clear that the State

Commission should have decided the appeal after carrying out a detailed analysis of all

facts and circumstances on record and then arrived at the requisite conclusion. In view

of this situation, there is no alternative but to set aside the impugned order and remand

the case to the State Commission with the direction that they should give proper

opportunity to both the parties to state the factual position and then give their verdict,

mentioning detailed reasons for the same. The revision petition is, therefore, allowed

and the impugned order is set aside and the case remanded to the State Commission

for decision afresh. There shall be no order as to costs. The parties are directed to

appear before the State Commission on 10.10.2013.



MEMBERRS/

Documents

· Web viewKerala State Co-operative Bank Ltd. A Schedule Bank Head Office at Co-Bank Towers, Palayam, Thiruvananthapuram, Kerala State Rep. By Its Senior Manager Petitioner Versus