freelegalconsultancy.comfreelegalconsultancy.com/wp-content/themes/skirmish/acts... · Web viewSagar Kumar S/o Shri Gopal Dass, R/o B-175, Jawahar Park, Office No.2, Near Sainik Farms,

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2341 OF 2012

With I.A. No.01 of 2012 (For Stay)(Against the order dated 01.03.2012 in Appeal No.FA-11/649 of the State Commission, Delhi)

Sagar Kumar S/o Shri Gopal Dass, R/o B-175, Jawahar Park, Office No.2, Near Sainik Farms, New Delhi – 110062.

… Petitioner Versus United India Insurance Company Ltd. Kanchanjunga Building 8th Floor, 18th Barakhamba Road, New Delhi – 110001

…Respondent

BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBERHON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. R.K. Narang, Advocate For the Respondent : Mr. Harsh Kumar, Advocate Pronounced on: 3rd March, 2014 ORDER

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

Petitioner/Complainant has filed the present revision petition under Section 21(b)

of Consumer Protection Act, 1986 (for short ‘Act’) for setting aside the impugned order

dated 1.3.2012 passed by State Consumer Disputes Redressal Commission, Delhi (for

short, ‘State Commission’), vide which (Appeal No.FA-11/649) filed by the

Respondent/Opposite party against order dated 1.8.2011, passed by District Consumer

DisputesRedressal Forum, New Delhi (for short, ‘District Forum’) was allowed and the

complaint filed by the petitioner was dismissed.

2. Brief facts are that petitioner is engaged in the business of tours and travels. Being

owner of a Tata Sumo car he had obtained the insurance on 30.6.1991 of the car for an

amount of Rs.5.140 lac for a period of one year from respondent company. On 25.12.2006

around 10 p.m., the vehicle was stolen and petitioner lodged an FIR at Police

Station Sector-58, Noida, Gautam Budh Nagar on 27.12.2006, and informed the respondent

about the incident of theft. Thereafter, petitioner lodged a claim with the respondent and

filed alongwith it the FIR claiming Rs.5.1 lac. Respondent repudiated the claim of the

petitioner on the ground that petitioner had informed it after six months about the incident,

by sending a letter on 27.6.2007. Thereafter, petitioner filed a complaint before the District

Consumer Disputes Redressal Forum, New Delhi (for short,‘District Forum’) alleging

deficiency on the part of the respondent with a prayer that respondent be directed to pay

him Rs.4,68,111/-towards the costs of vehicle, Rs. 98,000/- towards compensation and

Rs.10,000/- towards costs oflitigation.

3. Respondent opposed the claim and filed the written version stating that it was informed

for the first time on 27.6.2007 by the petitioner about the theft of the vehicle i.e. after six

months of alleged theft, which being in breach of Condition No.1 of the Policy. Thus,

petitioner was not entitled for indemnification.

4. The District Forum on consideration of evidence of both parties held the respondent

deficient and directed it to pay the insured sum alongwith interest @ 9% from the date of

claim, and also awarded a sum of Rs.25,000/- for harassment and mental agony.

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

Commission which allowed the same.

6. Hence, the present revision.

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

8. It has been contended by learned counsel for the petitioner that the vehicle was stolen

on 25.12.2006 and information to the Police was given immediately thereafter, i.e. on

27.12.2006 on the very next day after the theft of the vehicle and petitioner also informed

the respondent about the theft of the vehicle. The dealing officer of respondent gave

instruction to the petitioner to submit some relevant papers for submitting the claim. Under

these circumstances, State Commission has wrongly held that information was given to the

respondent only on 27.6.2007.

9. In support, learned counsel for the petitioner has relied upon a decision

of Hon'ble Supreme Court, reported as ‘National Insurance

Company Vs. Nitin Khandelwal (Civil Appeal No.3409 of 2008) decided on 8.5.2008’ in

which it was held that;

“In case of theft, the claimant is entitled to claim 75% of the claim amount

on non-standard basis.”

10. On the other hand, it has been contended by learned counsel for the respondent that

information about alleged theft was given to the respondent only on 27.6.2007, i.e. after

about six months after the theft has taken place. Since, there was a long delay of

six months and as such there is violation of the mandatory condition of the

insurance policy. Thus, the claim of petitioner was rightly rejected.

11. In support, learned counsel for the respondent has relied upon the following decisions

of this Commission, namely;

i) Shri Suresh Kumar Vs. National Insurance Company and another (Revision

Petition No.2894 of 2011 decided on 14.3.2013);

ii) Virender Kumar Vs. The New India Assurance Company and another

(Revision Petition No.2534 of 2012 decided on 7.11.2012) and

iii) M/s. Bajaj Allianz General Insurance Company Ltd. Vs. Mr.

K. Eswara Prasad (Revision Petition No.2555 of 2012 decided on 22.7.2013)

12. The State Commission had reproduced the relevant condition of the policy in its

impugned order and has held;

“7. Condition No.1 of the Policy is as below;

Condition No.1

“Notice shall be given in writing to the Company immediately upon

the occurrence of any accidental loss or damage and in the event of any

claim and thereafter the insured shall give all such information and

assistance as the Company shall require. Every letter claim writ summons

and/or process or copy thereof shall be forwarded to the Company

immediately on receipt by the insured. Notice shall also be given in writing to

the Company immediately the insured shall have knowledge of any

impending prosecution inquest or fatal inquiry in respect of any occurrence

which may give rise to a claim under this policy. In case of theft or criminal

act which may be the subject of a claim under this policy the insured will

give immediate notice to the police and cooperate with the company in

securing the conviction of the offender.”

8. The main contention of the counsel for appellant is that the respondent-

complainant is not liable to any compensation because there has been

violation of terms of Agreement on his part, in as much as the factum of theft

was conveyed to OP Insurance Co. almost six months after the theft. The

theft took place on 25.12.06, while the communication about the theft sent

by the complainant-respondent is dated 27.6.07.

9. It was argued by the counsel for complainant-respondent that he had

orally informed the Insurance Co. about the theft, and it has also been

mentioned in the aforesaid communication, and in his affidavit also. The

plea of oral information is unacceptable. The Insurance Co. should have

been informed in writing about the theft. The term and condition stipulate

that any such information must be conveyed immediately to the Insurance

Co. The word used is immediately and the delay of six months cannot be

considered as immediate. There has as such been violation of terms and

conditions of the Insurance Agreement and the complainant-respondent is

not entitled to any claim.

10. Counsel for the respondent has referred to a case of Supreme

Court(2008) CPJ Nitin Khandelwal vs National Insurance Co. Ltd., but in that

case, the Insurance Co. was immediately informed of the robbery of the

vehicle, and as such, that case will not be of any help to the complainant-

respondent.

11. It must, however, be observed that the District Consumer Forum has

dealt with the case in a very slip shod manner and has not even mentioned

in it’s judgment as to what were the violation of terms of agreement. It is

necessary to present relevant facts in an order even though in a brief

manner.

12. The result is that the appeal allowed. The claim of the complainant-

respondent shall stand dismissed.”

13. We are in full agreement with the reasoning given by the State Commission. In “New

India Assurance Company Ltd. Vs. Trilochan Jane”, (First Appeal No.321 of 2005,

decided on 09.12.2009), this Commission has observed;

“In the case of theft where no bodily injury has been caused to

the insured, it is incumbent upon the respondent to inform the

Police about the theft immediately, say within 24 hours,

otherwise, valuable time would be lost in tracing the vehicle.

Similarly, the insurer should also be informed within a day or two

so that the insurer can verify as to whether any theft had taken

place and also to take immediate steps to get the vehicle traced.

The insurer can coordinate and cooperate with the Police to trace

the car. Delay in reporting to the insurer about the theft of the car

for 9 days, would be a violation of condition of the Policy as it

deprives the insures of a valuable right to investigate as to the

commission of the theft and to trace/help in tracing the vehicle.Hon’ble Supreme Court of India in United India Insurance

Company Limited v. M/s. Harchand Rai Chandan Lal reported in JT 2004 (8) SC 8 has held that the terms of Policy have to be construed as it is and nothing can be added or subtracted from the same. The Policy provides that in the case of theft, the matter should be reported ‘immediately’. In the context of a theft of the car, word ‘immediately’ has to be construed strictly to make the insurance company liable to pay the compensation”.

14. Again in Oriental Insurance Company Ltd. Vs. Parvesh Chander Chadha –Civil

Appeal No.6739/2010 decided on 17.8.2010, the Apex Court has held;

“Admittedly, the respondent had not informed the appellant

about the alleged theft of the insured vehicle till he sent letter dated

22.5.1995 to the Branch Manager. In the complaint filed by him, the

respondent did not give any explanation for this unusual delay in

informing the appellant about the incident which gave rise to cause

for claiming compensation. Before the District Forum, the respondent

did state that he had given copy of the first information report

to Rajender Singh Pawar through whom he had insured the car and

untraced report prepared by police on 19.9.1995 was given to the

said Shri Rajender Singh Pawar, but his explanation was worthless

because in terms of the policy, the respondent was required to inform

the appellant about the theft of the insured vehicle. It is difficult, if not

impossible, to fathom any reason why the respondent, who is said to

have lodged First Information Report on 20.1.1995 about the theft of

car did not inform the insurance company about the incident. In terms

of the policy issued by the appellant, the respondent was duty bound

to inform it about the theft of the vehicle immediately after the

incident. On account of delayed intimation, the appellant was

deprived of its legitimate right to get an inquiry conducted into the

alleged theft of vehicle and make an endeavor to recover the

same. Unfortunately, all the consumer foras omitted to consider this

grave lapse on the part of the respondent and directed the appellant

to settle his claim on non-standard basis. In our view, the appellant

cannot be saddled with the liability to pay compensation to the

respondent despite the fact that he had not complied with the terms

of the policy.”

15. In the present case, since there was delay of about six months in informing the

respondent about the theft of vehicle, it is a clear cut violation of the mandatory terms and

conditions of the insurance policy.

16. It is well settled that under section 21(b) of the Act, this Commission can interfere with

the order of the State Commission where such State Commission has exercised jurisdiction

not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the

exercise of its jurisdiction illegally or with material irregularity.

17. 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, nor the impugned order suffer from any

infirmity or revisional exercise of jurisdiction.

18. Accordingly, present revision petition having no merits is hereby dismissed.

19. Parties shall bear their own cost.

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

…………………………………………

(REKHA GUPTA) MEMBER Sg.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3407 OF 2013(From order dated 05.04.2013 in First Appeal No. 58 of 2012 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

1.KAL THREE WHEELER OWNERS ASSOCIATION REPRESENTED BY ITS SECRETARY C.NELSON SECRETARY AMBALATHINKARA VEEDU, S.P.II/338-2 NEAR PAMGAPPARA OLD BRIDGE KARIYAVATTOM P.O., THIRUVANANTHAPURAM-695581 KERALA, SOUTH INDIA

2. C. JOSE, AIKARAVILA VEEDU,

KAVALAKULAM, NEYYATTINKARA,

THIRUVANANTHAPURAM-695121

KERALA

3. R.AMBIKESAN,

KULANTHINKARA VEEDU,

T.C.328/1308, FORT, P.O ,

THIRUVANANTHAPURAM - 23

KERALA

4. E.M.WILFRED RAJ, BLACK SALUTE,

T.C.11/2108, TILAK NAGAR,

NALANCHIRA, P.O


KERALA

5. R.REGHUNATHAN NAIR,

SARASWATHY VILASAM,

PERINGAMMALA.,

P.O(VIA) PACHA

NEDUMANGAD,

THIRUVANANTHAPURAM DISTRICT

KERALA

6. SAHADEVAN, ,

VIMALALAYAM, PERUMTHOTTAM,

MULLUVILA, P.O. (VIA) NEYYATTINKARA

THIRUVANANTHAPURAM -695 504

KERALA

7. K.VIJAYAN,

MACHAMKODE VEEDU, KARAKONAM.,

P.O. (VIA)

NEYYATTINKARA

THIRUVANANTHAPURAM -695 504

KERALA

8. N.NAINAKUMAR,

T.C.36/1440, SARASWATHY MANDIRAM,

J.P NAGAR, PERUMTHANNI P.O.


KERALA

9. S.SASIDHARAN NAIR,

PAMMAMTHALA VEEDU, VADAKODU,

PERUMPAZHUTHOR P.O.,

(VIA) NEYYATTINKARA-695126

KERALA

10. N.GYANASEELAN,

UOOTTUKUZHI VEEDU, KUTTALIKONAM,

CHAIKATTUKONAM P.O (VIA) NEYYATTINKARA-695122

KERALA

11. N.JAYAKUMAR,

T.C.21/1842, NEDUMKADU, KEEZHARANOOR,

KARAMANA, P.O


KERALA

12. Y.NESAYAM,

UTHININNAVILA VEEDU, VATTAVILA,

KOTTUKAL P.O (VIA) BALARAMAPURAM -695501

KERALA

13. P.S HARINDRAPRAKAS,

T.C.342/1402/3, SANGAMAM NAGAR,

PUTHANPALAM, VALLAKADAVU P.O.

THIRUVANANTHAPURAM-695 008

KERALA

14. R.CHANDRAN,

VALIYAVILA VEDDU,

VATTAVILA KOTTUKAL P.O

(VIA) BALARAMAPURAM -695581

KERALA

15. A.JAYACHANDRAN NAIR,

KALA BHAVAN, VIZHAVOOR,

MALAYAM P.O.


KERALA

16. V.SURENDRAN,

IDAMALA PUTHEN VEEDU,

CHOVALLOOR, VILAPPILSALA P.O.


KERALA

17. C.NELSON

AMBALATHINKARA VEEDU,

S.P.II/338-2

NEAR PAMGAPPARA OLD BRIDGE

KARIAVATTOM, P.O.

THIRUVANANTHAPURAM- 695581

KERALA

18. RAMESHKUMAR,

NEYYALAVUKANDAM,

THALAKKAL PUTHEN VEEDU,

ANTHIYOORKONAM, KOLLODU P.O.

THIRUVANANTHAPURAM

KERALA ………PETITIONERS

Versus

M/S. KERALA AUTOMOBILES LTD.

ARALUMOODM,

THIRUVANANTHAPURAM

KERALA ………..RESPONDENT

BEFORE:

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

For the Petitioner s : Ms. Vasundhara Bharadwaj, Amicus Curiae

Pronounced on : 3rd MARCH 2014

ORDER

JUSTICE J. M. MALIK, PRESIDING MEMBER

1. Amicus Curiae for the petitioner is present. These are the orders rendered in

the Execution Petitions. Vide order rendered by the District Forum on 11.11.1996, It was

directed that Judgment Debtor/OP/M/s Kerala Automobiles Limited were to rectify the

defects of the vehicles, belonging to the complainants/petitioners Kal, Three Wheeler

Owners Association and others. The said order dated 11.11.96 was upheld by the State

Commission and then by the National Commission vide order dated 26.09.2001.

2. The decree holders filed the Execution Petitions before the District Forum. The

Decree Holders did not produce the vehicles for inspection before the District Forum,

instead they filed applications to modify the order of the District Forum dated 11.11.1996

and claimed the value of the vehicle which applications were dismissed vide order dated

13.04.2010 . The Review Petitions filed by the petitioners were also dismissed vide order

dated 03.01.2012.

3. Thereafter, they filed the Revision Petitions before the State Commission. The State

Commission also dismissed the Revision Petitions. Aggrieved by that order, the present

Revision Petition has been filed before this Commission.

4. I have heard Ms. Vasundhra Bhardwaj, Amicus Curiae. She vehemently argued that

the said vehicles cannot be rectified and on the contrary, the judgment debtor has

contended that the rectification expenses would be more than the actual costs of the new

vehicles.

5. Instead of touching the heart of the problem, the Amicus Curiae for the petitioners had

laid emphasis on peripheral points. It must be borne in mind that the decree passed by

theconsumer fora dated 11.11.1996 has attained finality. It cannot be disturbed by

applications moved by the Decree Holders subsequently. It is well settled that executing

court cannot go behind the decree. The duty casts on the executing court is to get the

decree executed by all means. The Execution Petitions cannot be said to be time

barred. They can execute the decree within 12 years from the date of decree and that

period is further extended by 12 years on moving any applications or rejection of their

appeal. If advised, the petitioners can file fresh Execution Petitions and get the decree

executed.

5. With these observations, the Revision Petition is hereby dismissed.

..…………………………

(J. M. MALIK,J.)

PRES IDING MEMBERJr/3


REVISION PETITION NO. 3833 OF 2012

(From the order dated 20.06.2012 in Appeal No. 1348/2010 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

Syndicate BankBahadurpura BranchBahadurpura,Hyderabad …Petitioners/Opposite Parties (OP)

Versus1. Kamal Kishore Sharma

S/o Late Shri Govind Ram Sharma 2. Smt. Usha Sharma, W/o Kamal Kishore Sharma Both Residing at 1, Marshall St., Apt. 3G IRVINGTON NJ 07111, USA Permanent Resident of 19-1-873/6/B,

Bahadurpura, Hyderabad Rep. by their G.P.A. Holder Shri Rahul

Kishore Awasthy S/o Late Nand Kishore Awasthy

R/o 5-3-71, Hindi Nagar, Goshamahal,

Hyderabad. …Respondents/Complainants

BEFORE

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

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr. Ajant Kumar, Advocate

For the Respondents : Ms. Bhavna Sharma, Advocate

PRONOUNCED ON 3rd March, 2014

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

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

20.06.2012 passed by the A.P. State Consumer Disputes Redressal Commission,

Hyderabad (in short, ‘the State Commission’) in Appeal No. 1348/2010 – Kamal Kishore

Sharma & Anr. Vs. Syndicate Bank by which, while allowing appeal, order of

District forum dismissing complaint was set aside and complaint was allowed.

2. Brief facts of the case are that complainant No. 2/Respondent No. 2 had saving bank

account with OP which was converted into joint account with Complainant No.

1/Respondent No. 1 and was operated jointly by both the complainants. That account

bearing ID NO. 2471 and new no. 30412013450 (30412010003450) was also being

operated by Smt. SarojaGoenka as authority holder of the complainant. It was further

alleged that Complainant No. 1 had also another saving bank account with the OP which

was later on converted into joint account with complainant no. 2. Complainant No. 1 during

visit to India in the months of January and February 2009 issued 11 cheques out of which,

one cheque was cancelled by the complainant himself and 8 cheques were cleared by OP,

but two cheques dated 5.2.2009 bearing No. 345677 and 345678 worth Rs.2,500/- and

Rs.3,000/-, respectively weredishonoured by OP for the

reason signatures incomplete. Alleging deficiency on the part of OP, complainants filed

complaint before District forum. OP resisted complaint and submitted that A/c. No. 2471

was an individual account of Complainant No. 1 and was never converted into joint account

of Complainant No. 2. It was further submitted that Complainant No. 1 was only a nominee

in the A/c having no authority to operate the said account, but OP in order to avoid

inconvenience cheques issued by Complainant No. 1 pertaining to Complainant No. 2’s

account which were presented at the counter or received through

local clearing were honoured but two cheques of outstation branches were returned as

signatures did not tally and there was no deficiency in service and prayed for dismissal of

complaint. Learned District Forum after hearing both the parties dismissed

complaint. Appeal filed by the complainants was allowed by learned State

Commission vide impugned order and OP was directed to pay a sum of Rs.1,00,000/-

towards compensation to the complainants along with interest and further awarded

Rs.5,000/- as cost against which, this revision petition has been filed.

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

4. Learned Counsel for the petitioner submitted that Complainant No. 2’s account was

individual account and outstation cheques issued by Complainant No. 1 were

rightlydishonoured by OP and learned District Forum rightly dismissed complaint; even

then, learned State Commission committed error in allowing complaint; hence, revision

petition be allowed and impugned order be set aside. On the other hand, learned Counsel

for the respondents submitted that OP was estopped from dishonouring two cheques as

they had already cleared 8 cheques issued by Complainant No. 1 and further submitted that

Complainant No. 2’s Account was joint account with Complainant No. 1 and learned State

Commission rightly awarded compensation; so, revision petition be dismissed.

5. Perusal of record clearly reveals that old saving bank account No.2471 (New A/c. No.

30412013450) was in the name of Complainant No. 2 and Complainant No. 1 was shown

as nominee and Smt. Sajoja Goenka was also authorized signatory of this account. No

documentary evidence has been placed on record by the complainant to the effect that

Complainant No. 2’s Account No. 2471 was ever made joint account with complainant no. 1.

Learned State Commission observed in paragraph 22 of the impugned order as under:

“22. It is true that except oral assertion, the complainants have not adduced any documentary evidence before the District Forum to show that the individual account issued in the name of the Complainant No. 2 in the year 1988 was subsequently converted into a joint account of both the complainants.

but, contrary to this observed in paragraph 20 that this account was subsequently converted

into the joint account of both the complainants which is contrary to record.

6. As Account of Complainant No. 2 was an individual account and

Smt. Saroja Goenka was also the authorized signatory of Complainant No. 2, Complainant

No. 1 had no authority to issue cheques. No doubt, Bank cleared 8 cheques pertaining to

account of Complainant No. 2 issued by Complainant No. 1 which were local

station cheques, OP was not estopped from dishonouring outstation cheques issued by

Complainant No. 1 who had no authority to sign cheques of bank account of complainant

No. 2. Merely because some local chequeswere cleared to facilitate the complainants, no

deficiency can be attributed on the part of OP for dishonouring outstation cheques which

were not issued by the authorized person of Complainant No. 2’s saving bank account.

7. In the light of above observation it becomes clear that as Complainant No. 1 had no

authority to issue cheques pertaining to Complainant No. 2’s saving bank account, OP has

not committed any deficiency in dishonouring some cheques issued by Complainant No. 2

and learned District Forum rightly dismissed complaint, but learned State Commission

committed error in allowing appeal and impugned order is liable to set aside.

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

dated 20.6.2012 passed by learned State Commission in Appeal No. 1348/2010 – Kamal

Kishore Sharma & Anr. Vs. Syndicate Bank is set aside and order of District forum dated

29.10.2010 passed in Complaint No.505/2010 dismissing complaint is affirmed with no

order as to costs.

………………Sd/-……………( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk



With IA/392/2013 (For stay)

IA/393/2013 (For condonation of Delay)

(From the order dated 21.08.2012 in First Appeal No. A/08/1250 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

HDFC Bank Ltd. A Banking Company Incorporated and Registered under the Companies Act 1956 Having its Registered office at: HDFC Bank House Senapati Bapat Road Lower Parel, Mumbai – 400013 And Branch Office at: Prince Khusha Towers, 96, Anna Salai, Chennai – 600002 Also at: 7th Floor, Ansal Classique Tower, Plot No. 1, J-Block, Community Centre, Rajouri Garden, New Delhi Through its Authorized Representative Anil Kumar Sharma

…Petitioner/Opp. Party (OP)

VersusVir Bhan Sharma A-5,/14-3, Millenium Towers, Sector-9, Sanpada, Navi Mumbai – 400705

…Respondent/Complainant

BEFORE



For the Petitioner : Mr. Punit K. Bhalla, Advocate

For the Respondent : In person


O R D E R



21.08.2012 passed by the Maharashtra State Consumer Disputes Redressal Commission,

Mumbai (in short, ‘the State Commission’) in Appeal No. A/08/1250 – HDFC Vs. Vir Bhan

Sharma by which, while dismissing appeal, order of District Forum allowing complaint was

upheld.

2. Brief facts of the case are that Complainant/Respondent is an Advocate and

purchased a primary and add on mediclaim policy for his family including his wife and minor

daughter for Rs.2,00,000/- from OP/petitioner and paid Rs.950/- vide cheque dated

12.7.2004. OP issued two credit cards bearing No. 5176358010146727. On 26.8.2004,

complainant’s wife Dr. Savita Sharma undergone Angioplasty and was discharged from

hospital on 7.9.2004. Hospital raised bill for Rs.1,58,786.71 ps. Complainant could not

avail mediclaim facility due to non-receipt of third party administrator Identity Card. OP sent

three identity cards for the period 26.7.2005 to 25.7.2006, after more than a year from the

receipt of the application. Alleging deficiency on the part of OP, complainant filed complaint

before District Forum. OP resisted complaint and submitted that OP is not a service

provider. It was further submitted that due to non-joinder of parties; namely, National

Insurance Company and Family Health Plus Ltd. and the Third Party Administrator,

complaint was not maintainable against the OP. It was further submitted that complainant’s

declaration is to be read along with the Credit card. Complainant did not obtain pre-

authorization before availing the Health Plus facility as per terms and conditions and prayed

for dismissal of complaint. Learned District forum after hearing both the parties allowed

complaint and directed OP to pay Rs.1,58,786.71 ps. along with 9% p.a. interest and

further awarded Rs.2,000/- as litigation cost. 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 respondent in person and perused

record.

4. Learned Counsel for the petitioner submitted that even without coverage on the date

of operation of complainant’s wife and without impleading necessary parties and without

anyliability of the petitioner, learned District Forum committed error in allowing complaint

and State Commission further committed error in dismissing appeal; hence, revision petition

be allowed and impugned order be set aside. On the other hand, respondent in person who

is an Advocate submitted that order passed by learned State Commission is in accordance

with law; hence, revision petition be dismissed.

5. It is admitted fact that complainant’s wife had undergone Angioplasty on 26.8.2004 for

which bill was raised by the hospital which was not paid by OP. Nowhere in the complaint

any document pertaining to coverage of mediclaim on 26.8.2004 has been placed on

record. In paragraph 8 of the complaint three identity cards for the period from 26.7.2005 to

25.7.2006 have been mentioned. As per averments in the complaint cheque of Rs.950/-

for coverage was issued by complainant on 12.7.2004 and OP issued two credit cards, but

nowhere it has been mentioned that any credit card covering medical facility from 26.8.2004

has ever been issued. Merely by making payment by cheque on 12.7.2004, no liability can

be fastened for reimbursing expenditure of hospital on 26.8.2004 as no medical policy was

in force on that date. Learned Counsel for the petitioner submitted that policy was issued

from 27.8.2004 to 26.8.2005 and if so, there was no coverage for 26.8.2004 and in such

circumstances, OP was not under any obligation to make payment of hospital charges.

6. Health Plus declaration was signed by the complainant which contains following

clause: “I also understand that the HDFC Bank Health Plus Credit Card and National Insurance Company (NIC) and other preferred partner services are independent of each other and that HDFC Bank (Cards Division) is not responsible or liable for any service and/or billing deficiencies or inadequacies of NIC and/or other partners or agents as the case may be. I understand that the offers of such partners could change from time to time, without prior notice. Furthermore, I affirm that any grievances with NIC or such partners will not adversely affect my Credit Card payment commitments”.

Perusal of aforesaid clause clearly reveals that HDFC Bank petitioner was not responsible

or liable for any service or deficiency or inadequacy of National Insurance Company or

other partners or agents of it. In such circumstances, no liability can be fastened on OP for

any deficiency of service. Strictly speaking, no service has been provided by the petitioner

and service if any was to be provided was only by the Insurance Company and third party

administrator M/s. Family Health Plus Ltd.

7. Perusal of tailor made group mediclaim insurance policy for HDFC Health Plus

Cardholders issued by the National Insurance Company reveals that claim was to be

submitted by the complainant to the National Insurance Co. Clause 6.3 runs as under

“Notice of Claim:Preliminary notice of claim with particulars relating to Policy Numbers, Name of insured person in respect of whom claim is made, Nature of disease/illness/injury and Name and Address of the attending medical practitioner/hospital/Nursing Home should be given to the TPA/Insurance Company within seven days from the date of Hospitalisation/Outpatient treatment. Final claim along with hospital receipted original Bills/Cash memos, claim form and list of documents as listed in the claim form etc. should

be submitted to the TPA/Company within 15 days of discharge from the Hospital. Also give the company such additional information and assistance as the Company may require in dealing with the claim.

As per this clause, complainant was under an obligation to submit his claim to the Insurance

Company and learned respondent has not placed any document on record to prove that he

has submitted claim to the Insurance Company. Even without submitting claim to the

appropriate authority i.e. Insurance Company, complainant was not entitled to recover any

amount from OP for hospitalisation of his wife and learned District Forum committed error in

allowing complaint and learned State Commission further committed error in dismissing

appeal and impugned order is liable to set aside.

8. Learned Counsel for the petitioner submitted that necessary parties have not been

impleaded in the complaint. Admittedly, complaint was filed only against the petitioner

whereas insurance coverage was given by National Insurance Co. and Third party

administrator Family Health Plus Ltd. issued identity cards. Both these parties were

necessary parties as claim was also to be submitted to National Insurance

Co. Complainant has not impleaded aforesaid two parties as OP in the complaint and on

account of non-joinder of necessary parties, complaint is liable to be dismissed.


dated 21.08.2012 passed by the State Commission in Appeal No. A/08/1250 – HDFC Vs.

Vir Bhan Sharma is set aside with no order as to costs. ………………Sd/-……………( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk



(From the order dated 7.2.2013 in Appeal No. 385/2012 of the State Consumer Disputes Redressal Commission, U.T. Chandigarh)

With IA/3914/2013 (Condonation of Delay) M/s. Aviva Life Insurance Co. India Pvt. Ltd. 2nd Floor, Prakashdeep Building, 7, Tolstoy

Marg,New Delhi – 110001 Head Office: M/s. Aviva Life Insurance Co. India Pvt. Ltd.

Opposite Golf Course DLF, Phase V, Sector-5, Gurgaon, Haryana …Petitioner/Opposite Party (OP)

Versus1. Shelly Sharma D/o Prem Shankar Sharma R/o Sugar Mill Road, Morinda, Distt. Ropar, Haryana 2. Rajinder Mann S/o Bhjan Lal, R/o Sawaraj Nagar Kharar, Haryana

…Respondents/Complainants

BEFORE



For the Petitioners : Ms. Gurmeet Bindra, Advocate

For the Res. No. 1 : Mr. Shubham Bhalla, Advocate

For the Res. No. 2 : Ms. Anushka Bishnoi, Advocate


O R D E R



7.2.2013 passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh

(in short, ‘the State Commission’) in Appeal No. 385/2012 – Shelly Sharma & Anr. Vs. M/s.

Aviva Life Ins. Co. India Pvt. Ltd. by which, while allowing appeal, order of

District forum dismissing complaint was set aside.

2. Brief facts of the case are that the complainants/Respondent No. 1 allured by the false

promises and assurance of an agent of OP Nos. 2 & 3 - petitioners of getting good returns,

purchased one “Freedom Life Plan” in the year 2008 and paid first premium of Rs.25,000/-.

Thereafter, she paid two more premiums, in the year 2009 & 2010 of Rs.25,000/- each. It

was stated that the OP did not send her the terms and conditions of the policy despite

making requests. After expiry of 3 policy years, when the complainant contacted the OP for

getting her invested amount along with profits, they paid a sum of Rs.28,590/- only,

against the total invested amount of Rs.75,000/-. It was further stated that the matter was

agitated before the OP by the complainant and she demanded the refund of

entire deposited amount with assured return, but in vain. Alleging deficiency on the part of

OP, complainant filed complaint before District Forum. OP No. 1/Respondent No. 2 filed

reply and submitted that he advised complainant as per instructions of OP Nos. 2 &

3/petitioners. It was further submitted that many times he requested to issue terms and

conditions of the policy to the complainant, but not issued and prayed for dismissal of

complaint against him. OP No. 2 & 3 resisted complaint and submitted that terms &

conditions of policy were supplied to the complainant by Speed post. Complainant was a

practicing Advocate cannot say that he was not supplied terms and conditions of policy. It

was further submitted that no fixed returns were assured and complainant did not avail

option of free look period within 15 days of receipt of policy. It was further stated that due to

non-payment of premiums, complainant was paid Rs.28,590/- as surrender value as per

terms and conditions of the policy and prayed for dismissal of complaint. Learned District

Forum after hearing both the parties dismissed complaint. Appeal filed by the complainant

was allowed by learned State Commission against the petitioners and they were directed to

pay Rs.44,910/- and further directed to pay Rs.10,000/- as compensation and Rs.5,000/- as

cost of litigation, but dismissed complaint against OP No. 1 against which, revision petition

has been filed along with application for condonation of delay.

3. Learned Counsel for the petitioner filed application for condonation of delay of 30

days. Perusal of application reveals that Counsel for the petitioner received copy of order on

13.2.2013, but matter was entrusted to the Counsel for filing revision on 24.5.2003, almost

after 3 months. As there is delay of only 30 days, we deem it appropriate to condone delay

subject to cost. Consequently, application for condonation of delay is allowed and delay of

30 days stands condoned subject to cost of Rs.5,000/- to be paid by the petitioner to

respondent no. 1.

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

5. Learned Counsel for the petitioner submitted that learned State Commission

committed error in allowing complaint on the basis of Notification dated 1.7.2010 and

learned District Forum rightly dismissed complaint; hence, revision petition be allowed and

impugned order be set aside. On the other hand, learned Counsel for the respondent no. 1

submitted that order passed by learned State Commission is in accordance with law; hence,

revision petition be dismissed. Learned Counsel for the Respondent No. 2 also supported

Respondent No. 1.

6. Perusal of record clearly reveals that complainant purchased Freedom Life Plan in

Unit Linked Plan for a period of 10 years and Rs.25,000/- p.a. was to be paid by

her. Complainant paid premium only for a period of 3 years and as per Article 5 of the

Freedom Life Plan on surrender of policy, the surrendered value was returned by OP to the

complainant. Learned State Commission passed impugned order in the light of Notification

dated 1.7.2010, which was not applicable on the policy obtained by complainant. Under this

Notification, Regulation 1 (2) reads as under:

“(2) They shall come into force on the date of their publication in the Official Gazette and shall apply to all products of linked life insurance cleared by the Authority thereafter”.

which makes it clear that these Regulations were applicable only from the date of

publication to all products of linked life insurance cleared by the Authority thereafter

whereas in the case in hand policy was obtained by complainant on 12.5.2008. Learned

Counsel for the Respondent No. 1 fairly conceded that Regulations dated 1.7.2010 were not

applicable to the policy of complainant.

7. Thus, it becomes clear that order of State Commission is liable to set aside as State

Commission proceeded to decide appeal on the basis of Notification dated 1.7.2010, which

was not applicable to the case of the complainant.

8. Learned Counsel for the Respondent No. 1 submitted that terms and conditions of

policy were never supplied to him and he was assured definite returns. Learned Counsel for

Respondent No. 2 also submitted that he assured definite returns to the complainant as per

instructions of petitioner. On query from our side, learned Counsel for the Respondent No.

2 failed to place on record any such instructions given by the petitioner regarding assured

returns of the policy. Respondent no. 1 has not placed any written assurance and in the

absence of any written assurance, it cannot be held that on the basis of instructions of

petitioner, Respondent No. 2 acting as Agent assured Respondent No. 1 for definite returns.

Respondent No. 2 is an Advocate and he had option to cancel the policy within 15 days and

he has not availed this facility, it cannot be presumed that terms and conditions of policy

were not supplied to him for many years.

9. In the light of above discussion, it becomes clear that learned District Forum rightly

dismissed complaint, but learned State Commission committed error in allowing appeal

against the petitioner and impugned order is liable to set aside. Respondent No. 1 is free to

take appropriate action against Respondent No. 2 for assuring definite returns.


dated 7.2.2013 passed by learned State Commission in Appeal No. 385/2012 – Shelly

Sharma & Anr. Vs. M/s. Aviva Life Ins. Co. India Pvt. Ltd. is set aside and order of District

Forum dated 31.10.2012 is affirmed. There shall be no order as to costs.


PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 4535 OF 2013(From order dated 19.06.2013 in First Appeal No. 251 of 2013 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

WITH IA/7417/2013 IA/7418/2013 (Stay, Condonation of Delay)

Rakesh Kumar Sharma S/o Late Sh. D.N. Sharma R/o H.no. 395, Sec-7 Panchkula, Haryana

… Petitioner Versus1. ICICI Prudential Life Insurance Co. Ltd. Through its Branch Manager Sector-9,

Chandigarh 2. Raj Kumar Sharma Associate Financial Service Manager O/o ICICI Prudential Life

Insurance Co. Ltd. Sector-9, Chandigarh, Through Branch Manager ICICI Prudential Life Insurance Co. Ltd. Sector-9, Chandigarh

… Respondents BEFORE: HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Hari Kumar G., Advocate For the Respondents : Mr. Rakesh Rajwania, Advocate PRONOUNCED ON 4th MARCH, 2014

ORDER

PER DR. S.M. KANTIKAR, MEMBER

1. This order will decide, the question that, “Whether, Consumer Fora have jurisdiction

to adjudicate the case in a summary proceedings, when the questions of fraud and

cheating are involved, in regard to the claim of the Complainant, which require thorough

scrutiny, including the examination of various documents and supporting oral

evidence?”

2. Brief relevant facts in this revision are, that Mr. Rakesh Kumar Sharma,

the Petitioner/Complainant took a policy under the Plan ‘Life Term Super’(herein after

referred to as the “Emerging Policy”) from the ICICI Prudential Life Insurance Co.

Ltd., OP-1, for a minimum 5 year lock-in-period, in order to get maximum returns. As

per the conditions of said Policy,the Complainant paid the premium for

a continuous period of 3 years, from the year 2007 i.e. total Rs.1,50,000/- and

thereafter, decided to wait till the year 2012 (5 year lock-in-period), in order to get

maximum returns. Thereafter, Mr. Raj Kumar Sharma, OP-2, who was the Associate

Financial Services Manager of OP-1 Company, approached the Complainant, for

enlistment in Policy No. 14396634 under the plan ÍCICI Pru Life Stage Wealth’

(hereinafter referred to as the ‘Later Policy) which was especially designed for

existing policy holders. Keeping in view the assurances made by OP-2, the

Complainant agreed for the Later Policy and signed the policy form and handed over a

cheque for a sum of Rs.30,100/- to OP-2, which was made in favour of OP-

1.Thereafter, the complainant noticed about the fraudulent act and conduct of inducing

him by OPs by partially withdrawing the amount of Rs.30,100/- from the Earlier Policy

and thereby transferring it to the Later Policy and thereafter cancelling it, on false and

frivolous grounds. Hence, the complainant was forced to file a complaint before the

District Consumer Disputes Redressal Forum, (in short, ‘District Forum’) Chandigarh.

3. The District Forum dismissed the complaint on the ground that the

complainant’s allegations were regarding cheating and, therefore, the District Forum

had no jurisdiction. The said case was not a fit case for summary adjudication as it

involved complicated questions of law and facts, which could be decided only by way of

detailed evidence and production of witness, before the Civil Court. The District Forum

permitted the complainant to approach the Civil Court of competent jurisdiction for

redressal of his grievance.

4. Aggrieved by the order of the District Forum, the complainant filed an appeal before

the State Consumer Disputes Redressal Commission, Chandigarh (in short, ‘State

Commission’).

5. The State Commission dismissed the appeal.

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

7. We have heard the counsel for both the parties. The Counsel for Petitioner brought our

attention to the application for condonation of delay of 63 days in filing this

revision. The explanation in relevant para 3 and 4 , reproduced as follows: 3. The Impugned order came to be passed on 19.06.2013. However, the certified copy

of the impugned order was received by the Petitioner. There upon the Petitioner sought instructions from their local Counsel who advised him to file Revision Petition against the impugned order.

4. The documents filed before the District Forum and the State Commission were misplaced in transit and hence the entire file had to be reconstructed from the original documents and therefore, the delay in filing the present Petition has occurred.

We are not convinced with these submissions. On considering the point of merit, we

have perused the evidence on record and the concurrent findings of both the Fora

below. The complainant has alleged that the proposal form was never filled-in, by him

and it was filled subsequently, either by OP-2 or by someone else, on OP’s directions. It

is also averred that he had never issued any cheque of Punjab National Bank, as

alleged by the OPs. Besides this, there are allegations of cheating against the OPs.

Considering all these circumstances, we are of the considered opinion that this is not a

fit case for summary adjudication before this Forum.

8. The Counsel for OP argued that the Petitioner is a practicing Advocate and is aware of

the factual and legal position in this case. Counsel for OP relied upon principle of law,

laid down by this Commission, in Acrylics Limited Vs. FE Hardcastle & Co Pvt Ltd,

Ors. IV(2007) CPJ 387 NC and in the case of M/s Singhal Swaroop Ispat Ltd. We

have also put reliance upon the decisions of Hon’ble Apex Court, in Civil Appeal

titled Oriental Insurance Co Ltd Vs. Munimahesh Patel, 2006(2) CPC 668 (SC)

wherein it was held that theproceedings before the National Commission were

essentially summary in nature. It was further held that in view of the complex factual

position, the matter could not be examined by the Consumer Fora, and the appropriate

Forum, was the Civil Court. In Reliance Industries Ltd. Vs. United Insurance

Co. (1998) CPJ 13, it was held by this Commission that when the questions of fraud

and cheating are involved, in regard to the claim of the Complainant, which require

thorough scrutiny, including the examination of various documents and supporting oral

evidence, the Consumer Fora cannot adjudicate upon the matter.

9. We don’t see any merit in this revision, as well in the application for condonation of

delay of 65 days, which is not explained satisfactorily. Hence, on both the counts, we

dismiss this revision petition. The petitioner can seek reference from the case

of “Laxmi Engineering Works vs. P.S.G. Industrial Institute (1995) 3 SCC 583” on

the point of limitation. No orders as to costs.

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

…...…………………………(S. M. KANTIKAR)MEMBER

Mss/16


REVISION PETITION NO. 796 OF 2014(Against order dated 09.09.2013 in First Appeal No. 831/2009 of the State Consumer Disputes Redressal Commission, Punjab, Chandigarh)

Greater Mohali Area Development Authority (GMADA for short) and formerly Punjab Urban Development Authority (PUDA) Sect. 62, SAS Nagar (Mohali) through its Estate Officer …Petitioner

Versus

1. Archana Verma R/o X-20, West Patel Nagar, New Delhi-110008

2. The Manager, HDFC Bank Ltd. SCO No.78-79, Sec-8-C, Chandigarh, Punjab

3. The Manager, Housing Development, Finance Corporation Ltd. (HDFC Ltd.) Sec-8-

C, Near Sindhi Sweets, Chandigarh Punjab…Respondents

BEFORE: HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Ranjit Sharma, Advocate PRONOUNCED ON 4th MARCH, 2014

ORDER

PER DR. S. M. KANTIKAR, MEMBER

1. The Petitioner/ Opposite party(OP-1) Greater Mohali Area Development Authority (in

short GMADA), previously known as , Punjab Urban Planning Development Authority

(PUDA), invited applications for allotment of free-hold residential plots of various sizes,

in Urban Estate, SAS Nagar, Mohali. The complainant /Respondent No.1, Smt. Archana

Verma, applied for a 200 sq. yd. Plot and the applications were to be processed through

the HDFC Bank Ltd., the respondent No 2 (R-2). In the draw of lots, held on 28-03-2001,

accordingly, letters of Intent were sent to all the successful applicants, on same day,

under the signature of the Estate Officer. The earnest money of all the unsuccessful

applicants was returned, collectively, by the Petitioner to R-2 Bank for refunding the

same to them. The Complainant/R-1, being a successful applicant, received a letter

bearing No. RS/PUDA/23, dated 10-05-2001, from the Manager, Housing

Development, Finance Corporation Ltd. (HDFC Ltd. the R-3), congratulating the

complainant, on allotment of plot and offered a scheme forpayment of allotment amount,

as per their lending norms. The complainant wrote various letters to PUDA during

24/7/2001 to 20/7/2007 for allotment of plot, because the earnest money was not

refunded to her. The HDFC bank also did not satisfy the complainant about the details of

the refund of earnest money, till 21/11/2008. Also, they made them run, from pillar to

post. After the draw, no refund of earnest money was made to the complainant, till

21/11/2008. Hence, the complainant filed a complaint CC/15/2009, before District

Consumer Disputes Redressal Forum (in short, ‘District Forum’) and prayed for

directions to GMADA, for allotment of plot to her.

2. The District Forum allowed the complaint and directed OP-1 to allot plot of 200 sq.

yard to the Complainant, as per terms and conditions of the original scheme within two

months, from the date of the order and also to pay a sum of Rs.10,000/-

towards compensation for harassment and litigation expenses in the sum of Rs.5,000/-.

3. Aggrieved by the order passed by the Ld. District Forum, the OP No.-1/Petitioner

herein, filed the First Appeal in FA/831/2009, before the State Consumer Disputes

Redressal Commission (in short, ‘State commission’).

4. The State Commission dismissed the appeal, with costs of Rs.3,000/-.

5. The petitioner challenged the order of State Commission through this Revision Petition.

6. We have heard the counsel for the petitioner, at the admission stage. His main

argument is that the complaint itself, is time barred, which was filed after a period of 7 ½

years’, from the date of cause of action. The Complainant is not a ‘consumer’, till the

allotment takes place. The Ex. C-4, a letter giving congratulations to the Complainant,

was written by HDFC, which is not the parent body of HDFC bank. It was sent as an

information to the applicants, about their scheme, for financial assistance.

7. As the Complainant was an un-successful candidate and her earnest money has not

been refunded by OP- 2 & 3. We have perused a number of correspondence letters,

dated 24.05.2007, 17.09.2007, 14.11.2007, 09.07.2008, 11.02.2009, 04.03.2009,

13.02.2009 addressed by PUDA to the HDFC, Zonal Head. However, there is no

evidence to show that neither the refund of the earnest money by OP 2 and 3 was

made, nor plot has been allotted by OP-1, to the Complainant, till 2007, hence, it is a

continuous cause of action. Similar view was taken in the case “Transport Corporation

of India Ltd. Vs. Veljan Hydrair Ltd.”, (2007) by the Hon’ble Supreme Court. The

Complaint was filed in the year 2008, therefore, we are of the opinion that the complaint

is not barred by statutory limitation.

8. We have perused the evidence on record. The District Forum recorded the evidence of

Jagjit Singh ( OP / RW-1), who, in his cross-examination deposed as under: “I cannot admit or deny if the Complainant Archana Verma was one of the applicants for the allotment of the plots, draw of which was held on 28.03.2001. It is however, a fact that HDFC Bank had been authorised by PUDA to accept applications with earnest money from the applicants for the said draw. This is also a fact that my bank was to refund the earnest money to those applicants, who were unsuccessful, on intimation in this regard received from PUDA. PUDA must have sent the intimation of successful candidates to my bank and also a request/direction to refund the money belonging to the unsuccessful applicants with detail of the amount to be refunded to each unsuccessful applicants. The list of

successful/unsuccessful applicants sent to my bank by PUDA, in this case, is not available in the records of the bank. The bank is unable to tell whether it has or has not returned the amount in question (Rs.67,000/-) to the Complainant Archana Verma”.xxxx………xxxxxxxx.……..xxxxThe bank is not having any record to show whether the amount of Rs.67,000/- belonging to the Complainant, Archana Verma was refunded to her by the bank or whether, it was refunded to her by the bank or whether it was refunded to PUDA, in the year 2001, which showed the break-up of the amount belonging to different applicants. The complete account statement of the refund made by my bank to PUDA, in the year 2001 is Ex R-11, summary of which is Ex R-8. Ex R-11, does not show or indicate, whether the amount was refunded to the Complainant and, if so, by what mode? Letter copy of which is Ex C-4, was never sent by my bank to the Complainant. It appears to have been sent by the Housing DevelopmentFinance Corporation Ltd., which is a different entity, then, the HDFC Bank. We never sent any congratulatory letter to the Complainant about he being a successful applicant”.

9. Similarly, on perusal of evidence, Ex. R-1, of S.C. Rana, Estate Officer of PUDA , it

appears that he has categorically not admitted or denied whether, Archana Verma was

a successful candidate, for the allotment in the draw of lots, held on 28.03.2011. We

have perused the vital letter dated 20/7/2007, written by the complainant (Annexure

P11) to the OP-1, about the Fraud perpetrated by staff of PUDA, in the said allotment.

The OP did not reply and turned a deaf ear, towards it. the relevant paras of said letter

are reproduced, as below :Para 3 It was noticed that Draw-slips at page -424 of the aforesaid register was a copy of Draw slip. Since the Draw slip was a part of application submitted by applicant, it should be in “Original”. As per PUDA brochure, “application found incomplete or defective in any respect is liable to be rejected.” Para 4 The Form nos. on the Draw slips at page nos. 21 & 322 of the above registers were over-written/manipulated, which indicate towards mal-practices in PUDA/GMADA. Para 5 The original certified list of successful applicants in 200sq. yard, General Category was not made available, despite repeated requests.

10. Consequently, we have perused several correspondence letters addressed by PUDA to

the HDFC Zonal Head, even then, there is no iota of evidence showing that earnest

money was refunded to the complainant, by the HDFC bank. Thus, it appears that the

PUDA and HDFC are working in cahoots and unnecessarily playing ‘hide-and-seek’

game, with the complainant. Considering the entirety that some over-writings/cutting in

the PUDA registers, containing Draw-slips of successful allottees, also, a photocopy

has been placed instead of the original, withholding the list of successful/un-successful

candidates by OP-1 as well as OP-2 & 3, and furthermore, the statement of RW-1, S.

K. Rana, we are of considered view that the OP-1, was at fault and it was a malafied

act on the part of the OPs, who did not issue the allotment letter in favour of the

Complainant.

11. It is also surprising to note that, all three OPs which are Public Bodies are unable to

maintain their records properly, in the ordinary course of their business. Concealment

of such records, lead us to draw adverse inference, in this case, where the

Complainant should have been be one of the successful applicants in the draw of lots.

Both the fora below, have given concurrent findings and we affirm the same.

Accordingly, the revision petition is dismissed. No order as to costs.

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

Mss/



(From order dated 29.05.2013 in First Appeal No. 185 of 2013 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

National Insurance Company Ltd. Through its Authorized Signatory Regional Office at Jeevan Nidhi, Bhawani Singh Road, Ambedkar Circle, Jaipur

… Petitioner

Versus 1. Radhey Shyam Balwada R/o Opp. Of Bhadada Bagh, Pratap Takiz Road, Bhilwara.

2. M/s Vipul Med Corp TPA Pvt. Ltd. 515, Udyog Vihar, Phase-5, Gurgaon, Haryana …

Respondents BEFORE: HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBERHON’BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Ms. Neerja Sachdeva, Advocate For the Respondent No.1 : Mr. H.D. Thanvi, Advocate For the Respondent No. 2 : Nemo PRONOUNCED ON 4th MARCH, 2014

ORDER


1. The present Revision Petition has been filed by the Petitioner against the judgment of

the State Consumer Disputes Redressal Commission, (hereinafter referred to as, ‘State

Commission’) in FA/185/2013, whereby the Appeal of the Appellant was allowed. The

Appeal was filed in the State Commission aggrieved by the order of the District

Consumer Disputes Redressal Forum (in short, ‘District Forum’) in Complaint No.

CC/120/2012.

2. The brief facts are that since the year 2003, the Complainant, Radhysham Baldawa

took a Hospitalisation Benefit (a mediclaim) policy covering himself and his family

members, for the period from 25.06.2011 to 24.06.2012. His mediclaim cover was for

the sum of Rs.1,50,000/- and Rs.60,000/- as bonus, thus the total amount of the

insurance policy was Rs.2,10,000/-. The policy was renewed, from time to time, since

the year 2003. During the existence of the policy, the Complainant suffered abdominal

pain during 25.07.2011 to 03.09.2011, and it was diagnosed that he had a stone in the

gall bladder. After consultation at Hari Bhakti Surgical Hospital, Ahmedabad, the

Complainant was operated upon at Sterling Hospital, Ahmedabad, on 01.09.2012, and

he was discharged from the hospital, on 03.09.2011. The Complainant spent a sum of

Rs.1,31,257/- on his treatment during the period. The Complainant submitted the claim

form for the aforesaid amount, before the OP, but the OP made a payment of

Rs.52,505/- only, as full and final payment, against the claim. Hence, a complaint

before the District Forum was filed, for payment of balance amount to the Complainant.

The District Forum allowed the complaint and directed the OP to pay a sum of

Rs.78,752/- to the Complainant, within a period of one month.

3. Thereafter, being aggrieved by the said order of District Forum, the Petitioner herein,

filed First Appeal No. 185 of 2013, before the Rajasthan State Commission at Jaipur.

4. The State Commission confirmed the findings of District Forum, holding that it is a

fraud, on part of the insurance companies, when they repudiate or illegally deduct the

claim amount, on technical and frivolous grounds, under the garb of exclusion clauses.

The State Commission relied upon the judgment of the Hon’ble Supreme Court in the

case ofUnited India Insurance Company Ltd. Vs. M.K.J. Corporation held that an

insured is not bound by the exclusion clause of the policy, if the same is not explained

to him. The State Commission dismissed the appeal on 29.05.2013.

5. Therefore, this revision petition has arisen against the order of State Commission.

6. We have heard the rival contentions advanced by counsel of the parties and perused

the relevant documents, medical records, on file. It is an admitted fact that the

Complainant’s Mediclaim policy was in existence since 26.6.2003, and was in force,

during the period from 25.06.2011 to 25.06.2012, for a total cover of Rs.1,50,000/- plus

Rs.60,000/-, as a bonus. It is also an admitted fact that the Complainant suffered a pain

in his abdomen, on 25.07.2011, and he remained sick, till 03.09.2011.He was

diagnosed to have gall stone and he was operated for removal of gall stones, on

01.09.2011, and was discharged from the hospital on 03.09.2011. It is also evident that

the Complainant spent a total sum of Rs.1,37,257/-, on his treatment, but the Insurance

Co. made a payment of Rs.52,505/- and repudiated the claim for the balance amount of

Rs.78,752/-. The OP deducted a sum of Rs.78,752/- from the claim amount, under the

garb of exclusion clause of the policy, which was never explained to the Complainant;

and it appears to be just, a technical ground.

7. We have perused the policy conditions and exclusion clause. The condition at 3.1: i.e.,

Pre Hospitalization: Relevant Medical expenses incurred during the period, upto 30

days’, prior to hospitalization/domiciliary on disease/illness/injury sustained, will be

considered as part of claim mentioned, under item 1.0, above. It was an admitted fact

that the complainant suffered gall stone illness from 25.07.2011 to 03.09.2011 and

incurred total expenses of Rs.131257/- We are of considered view that OP was not

justified in making payment of Rs.52,505/- only. Such act of OP appears to be an

intentional and technical one, to harass the bonafide customer. Also, there is no

evidence on record to show that condition No. 3.1 and the exclusion clause was

explained to the Complainant-insured, at the time of submission of the proposal form by

him. The customer avails the Mediclaim insurance policy, with the hope that medical

treatment expenses will be reimbursed by the Insurer. Therefore, insurer (OP) also has

duty to act in good faith, which obliges him to enter into the contract, without concealing

the material fact like exclusion clause. We feel that the act of OP is unjust and unfair

towards the complainant, who took the said policy, since 2003, and was renewing it from

time to time, since then.

8. Accordingly, we do not find any flaw or disparity in the orders passed by both the fora

below; hence this revision petition is dismissed. The OP is directed to comply with the

impugned order, within 90 days, from the receipt of this order, otherwise, it will carry

further interest @ 9% p.a. on entire amount, till it’s realisation. Parties are directed to

bear their own costs. .…..…………………………(J. M. MALIK, J.)PRESIDING MEMBER

.…..…………………………(S. M. KANTIKAR)MEMBERMss/11

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 3944 OF 2010

(Against the order dated 26.08.2010 in Appeal No.3448/2009 of the Karnataka State Consumer Disputes Redressal Commission) 1. Asst. General Manager (Regional Office) State Bank of Hyderabad, Ramalingeswara Temple Area, I.B. Road, Raichur 584101 2. Branch Manager, State Bank of Hyderabad Station Road Branch, Raichur 584101

.....Petitioners

Versus

1. Parikshitraj Kulkarni S/o Gururao R/o 1-1-101, Station Road, Raichur 584101 2. Smt. Lakshmidevi w/o D.R. Kulkarni R/o 1-1-101, Station Road, Raichur 584101

........Respondents

REVISION PETITION NO. 4307 OF 2010(Against the order dated 26.08.2010 in Appeal No.3448/2009 of the Karnataka State Consumer Disputes Redressal Commission) 1. Parikshitraj Kulkarni S/o Gururao R/o 1-1-101, Station Road, Raichur 584101 Karnataka State 2. Smt. Lakshmidevi w/o D.R. Kulkarni R/o 1-1-101, Udayanagar, Station Road, Raichur 584101 Karnataka State

.....PetitionersVersus

1. Asst. General Manager (Regional Office) State Bank of Hyderabad, Ramalingeswara Temple Area, I.B. Road, Raichur 584101 Karnataka State 2. Branch Manager, State Bank of Hyderabad Station Road Branch, Raichur 584101 Karnataka State

........Respondents

BEFORE HON’BLE MRS. VINEETA RAI, PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER For State Bank of Hyderabad : Ms. S.V. Gowramma, Advocate For Parikshitraj Kulkarni & Anr. : Mr. Gururaj Joshi, Advocate PRONOUNCED ON: 04/03/2014 ORDER

PER MR. VINAY KUMAR, MEMBER

The revision petitioners were complainants before District Consumer Disputes

Redressal Forum, Raichur in Complaint No.CC/64/2008. In its decision of 30.9.2009, the

District Forum dismissed the complaint on the ground that the matter should be decided by

a civil court. Appeal against this order was allowed by the Karnataka State Consumer

Disputes Redressal Commission in its order of 26.8.2010. The State Commission has

directed the OP /State Bank of Hyderabad to refund 25% of Rs.547865/- as rebate under

the Agricultural Debt WaiverScheme 2008.

2. The consumer dispute arose from a loan of Rs.8 lakh sanctioned by the OP/State

Bank of Hyderabad to the complainants. As per the complaint petition, this loan was taken

for the purposes of building, levelling and providing water flow to 48 acres of irrigated land

of the complainant. The loan was sanctioned in 2004 and was to be repaid within a period

of seven years. During the currency of this loan, the Agricultural Debt Waiver and Debt

Relief Scheme of 2008 (hereinafter referred to as the Scheme) came into effect from

1.4.2008. On 8.7.2008 a memorandum was submitted to the OP/Bank for 25% relief on

the outstanding loan amount under the Scheme. It was rejected on 9.9.2008 on

the ground that the scheme was not applicable to this loan.

3. The case of the complainants was that they were entitled to get 25% relief for the

balance outstanding in the loan account, which came to Rs.1,97,299/-. Therefore, refusal of

the opposite parties to give this benefit as debt relief amounted to deficiency of service. The

District Forum held that the case involved determination of complex questions of fact and

law which cannot be satisfactorily determined by the Forum, in the time frame provided

under the Consumer Protection Act, 1986. Therefore, the complainants should seek

redressal of their grievance in a Civil Court, if so advised.

4. The Karnataka State Consumer Disputes Redresssal Commission has allowed the

appeal of the complainants against the above order of the District Forum. On detailed

consideration of the pleadings of the parties and evidence led on their behalf, the State

Commission has reached the following findings of fact:-

a) Merely because complainant No.1 is an Advocate, he cannot be called a non-

agriculturist. Under the Scheme he would be considered in the third category, which was

that of ‘other farmers’.

b) The complainants have prima facie established that they are agriculturists and that the

loan was availed for development of agricultural land standing in the name of the

complainants.

c) The Scheme came into effect from 1.4.2008. Therefore, the amounts repaid towards

loan until 31.3.2008 would not be entitled to benefit under the Scheme. But, subsequent

repayment made on 3.4.2008 amounting to Rs.5,47,685/- would be eligible for 25% benefit

under the Scheme. Accordingly, the complainants would be entitled to refund of

Rs.1,97,299.

5. In two separate revision petitions, both sides have challenged the impugned order

passed by the State Commission on 26.08.2010. The complainants have sought additional

relief on the ground that the balance outstanding in the loan was Rs.7,89,197.10 and not

Rs.5,47,865/-, as determined by the State Commission. On the other hand, the OPs have

sought setting aside of the impugned order on the ground that the loan granted to the

complainants was against mortgage of immovable, non- agricultural property and was not

an agricultural loan. For this reason it is contended that no relief was admissible under the

Government Scheme of 2008.

6. The two sides were heard on 3rd and 4th of February, 2014 by the Circuit Bench at

Bangalore. Ms. S.V. Gowrama, Advocate for the OPs/State Bank of Hyderabad and Mr.

Gururaj Joshi, Advocate for the complainants were heard at length. We would like to note

that both counsels made a very effective presentation of their respective cases.

7. The main contention raised in the revision petition and pursued by the counsel for the

petitioner/State Bank of Hyderabad is that it was a loan against mortgage of residential

property and not an agricultural loan. Learned counsel argued that one of the borrowers is

a practising Advocate and the loan was sanctioned as a general purpose loan against

mortgage of residential property. A reference was made in this behalf to the agreement of

loan executed between the parties. From the perusal of the same, we find that all the

recitals therein relate to the quantum of security and repayment of the loan. There is

nothing therein to show that the loan was sanctioned for any non-agricultural purpose. It is

also not the case of the Bank that the Complainant, being an Advocate, suffered from any

legal bar to owning and managing agricultural land.

8. On the other hand, learned counsel for the complainant referred to a specific

averment in the complaint filed before the District Forum that the loan was taken exclusively

for the purpose of development of 48 acres of agricultural land irrigated under the

Tungabhadra Project and was meant for building, levelling and to provide water flow to

these lands. The same is confirmed by the recommending authority on 14.7.2004 before

sanction. Even the deed of re convenience executed by the OP on 5.5.2008 mentions that

the loan was for agricultural development and crop cultivation. Learned counsel for the

complainants drew our attention to the application form for loan produced as Ext.-P1

before the fora below. This contains an estimate of Rs 25.23 lakhs in which all the

items mentioned are fencing of the land excavation of pound and installation of

electrical motor with 7.5 horse power pump construction of the farm house and of

sluice valves and pipes for irrigation. In the face of this material produced before us

on behalf of the OP/Bank itself, learned counsel for the Bank accepted that the

purpose was development of agricultural land.

9. It was also argued on behalf of the OPs that under the Scheme of 2008, Clause 7.3

required a farmer under the ‘other farmer’ category to execute and undertaking to pay his

share i.e. eligible amount minus the amount of OTS relief not more than three instalments

payable by June 2009. This undertaking was not executed by the complainants. It was

however pointed out by learned counsel for the complainants that this ground cannot be

raised at the stage of proceedings under Section 21 (b) of the Consumer Protection Act,

1986, as the same was not a part of pleadings before the fora below. We are in full

agreement with learned counsel and accept the objection raised by him.

10. On detailed consideration of revision petition No.3944 of 2010 filed by the OPs/State

Bank of Hyderabad, we do not find any grounds therein which could justify our intervention

in exercise of powers under Section 21 (b) of the Consumer Protection Act, 1986.

11. Coming to Revision Petition No.4037 of 2010 filed by the complainants, we find that

the prayer for enhancement of relief is based only on the ground that as on 29.2.2008, the

eligible amount was Rs.789197.10 and not Rs.547865, as determined by the State

Commission. As per the complaint before District Forum the loan in question was

sanctioned on 24.1.2005 and Rs.797780.10 had remained overdue until 29.2.2008. He

has therefore, claimed 25% of this amount as relief under the Scheme. This claim is

evidently, based on the provisions in Clause 4.1 of the Scheme. De hors, the stand of the

OP/Bank in para 7 of the Written Submission before the fora below was that—

“That the contents of para No.4 (f) is false hence denied by the opponent. As per repayment schedule loan amount was to be paid in monthly equated instalments of Rs.13,488.56. Complainants did not repaid loan accordingly. At the end of December 2007 balance outstanding should be 5,35,628-21. Because of irregular repayment of loan amount out standing was Rs.7,89,350.10. In case of irregular repayment bank has right to recall entire loan amount. There is no deficiency of service on the part of opponent.”

Thus admittedly, the balance outstanding, as on 31.12.2007, was Rs 789350.10.

12. It is contended in the Written Submission, that the complainant has twisted the

guidelines to suit his case. But there is no attempt to explain how. On this point, the State

Commission has given a very clear finding of fact to the effect that:--

“Admittedly, the said scheme came with effect from 01.04.2008. Complainant repaid certain amount on 31.3.2008. For that amount he is not entitled to have the benefit under the scheme. But subsequently after the enforcement of the said scheme that is on 3.4.2008 he paid Rs.547,685/- this can be made out form Ex R-6. Hence, for these reasons we find the complainant is entitled 25% of the rebate on Rs.5,47,685/- and not the full claim of Rs.1,97,299/- in our view the justice will be met by direction the OP to refund 25% of Rs.5,487,868/-.”

13. In the Scheme of 2008, the method of determination of ‘eligible amount’ is detailed in

clause 4. Sub clause 1(a) thereof deals with ‘short-term production loans’ and Sub clause

1(b) with ‘investment loans’. We find that in terms of Sub clause 1(b), the eligible amount, in

this case, would be the amount, overdue as of 31.12.2007 and outstanding till 29.2.2008,

would be the eligible amount. As per the complainant, the amount remaining outstanding as

at the end of February 2008, Rs.797780.10 is the eligible amount. The State Commission

has excluded the amount repaid on 31.3.2008, treating the relevant date as 1.4.2008 i.e.

the date of commencement of the Scheme. While under the Scheme, the ‘eligible amount’

is to be as on 29.2.2008. We therefore find the claim of the complainant to 25% of

Rs.797780.10 as acceptable.

14. For the reasons detailed above, the revision petition filed by the complainants

No.RP/4307/2010 is allowed and the revision petition No. RP/3944/2010 filed by the

OP/State Bank of Hyderabad, is dismissed. Parties shall bear their own costs.

…..…………….…….……(VINEETA RAI)PRESIDING MEMBER

…..…………….…….……(VINAY KUMAR)MEMBERS./-

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.776 OF 2011 (From order dated 27.01.2011 in Appeal No.528 of 2010 of Chhattisgarh State Consumer Disputes Redresdsal Commission, Raipur)

Smt. A. Sujata, W/o Late Shri A.Venkatravi, R/o 41, B. Runwabandha Sector, Bhilai, Teh. & District Durg (C.G.) ......Petitioner/Complainant Versus 1. Life Insurance Corporation of India, Through : Branch Manager, Divisional Office, Jeevan Bima Marg, Pandri, Raipur(C.G.) 2. Life Insurance Corporation of India, Through: Branch Manager, Branch Office, Padnabhpur, Durg, Teh. & District Durg(C.G.)

…… Respondents BEFORE:

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

For the Petitioner : Mohd. Anis-Ur-Rehman, Advocte

For the Respondents : Ms. Ritika Nagpal, Advocate

Pronounced on:4th March, 2014 ORDER

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

Petitioner/complainant has filed the present revision petition under Section 21(b) of the

Consumer Protection Act, 1986(for short,’Act’).

2. Brief facts are that Sh. A. Venkatravi,(since deceased)husband of

Petitioner/Complainant who was working as a Crane Operator in the Bhilai Steel Plant had

purchased life insurance policy of Rs.5,00,000/- on 24.4.2006 from Respondents/Opposite

Parties. He died on 07.10.2008 on account of renal failure with other ailments. It is alleged

by the petitioner that, on 07.09.2007 deceased was admitted in the Hospital of BSP and

after conducting certain tests, it was found that he was having excessive blood urea. His

kidney failed on 07.10.08 and he died. Death was intimated to the agent of the respondents

and claim was preferred, However, respondents repudiated the claim on 24.10.09, on the

ground that deceased was suffering from hypertension with chronic renal disease and

cirrhosis of liver from 19.10.04 and deliberately suppressed the information regarding his

pre-existing ailments at the time of making proposal for insurance.

3. In its reply, respondents have averred that deceased was guilty of suppression of

material facts regarding his pre-existing serious ailments and thus violated the terms of the

policy and the mutual confidence between insured and insurer. So, petitioner is not entitled

of getting any amount under the insurance policy.

4. District Consumer Redressal Forum Durg (Chhattisgarh) (for short, ‘District Forum’)

allowed the complaint vide order dated 30.07.2010,with the following directions;“1. The opposite parties will pay the amount of Rs.5,00,000/- to the

complainant within one month from the date of order. 2. On the said amount the opposite parties will pay the interest @ 6 % to

the complainant from the date of repudiation of claim 20.4.2010 till the payment.

3. The complainant will also be entitled for the amount of Rs.1,000/- as the

cost of suit which will be payable by the opposite parties. 4. From the said amount the amount of Rs.2,50,000/- will be fixed

deposited in the name of the complainant in any nationalized bank for three years in the saving account. In which the direction may be issued that without the permission of the forum no payment will be made before the time without the permission of the Forum”.

5. Being aggrieved, respondents filed appeal before Chhattisgarh, State Consumer

Disputes Redressal Commission, Raipur (for short,‘State Commission’) which allowed the

same, vide impugned order dated 27.01.2011 and set aside the order of the District Forum.

Consequently,complaint of the petitioner was dismissed.

6. Hence, the present revision.

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

8. It has been contended by the learned counsel for the petitioner that deceased was

having almost normal blood pressure all the time and there was no treatment with regard to

the problem of liver or kidney, prior to the date of making proposal form for insurance policy.

As such, there was no reason so as to suppress the material facts from the respondents

9. Further, it is contended that no affidavit of the concerned doctor was filed. Thus,

petitioner was deprived the right to cross examine the doctor. Hence, impugned order is

liable to be set aside.

10. On the other hand, it has been argued by the learned counsel for the respondent that

contract of insurance is based on principle of utmost good faith. Any deviation from this

principle entitles the insurer to cancel the insurance policy. In the present case, this

principle has been violated at the time of filing the proposal form. The deceased deliberately

concealed the fact that he was suffering from hypertension since 2000. Further, deceased

was having Cirrhosis of liver since 2005 and was also on Hemodialysis since one year but

this fact was deliberately concealed at the time of filing of proposal form in 2006. Under

these circumstances, State Commission rightly dismissed the complaint filed by the

petitioner. In support, learned counsel for the respondents has relied upon the following

decisions of this Commissions;(i) Satish Kumar Vs. Branch Manager, Life Insurance Corporation of India

(R.P.No. 4678 of 2009)decided on 20.5.2013 and (ii) The Branch Manager, LIC of India Vs. Lingala Radha @ Radamma(R.P.

No. 1486 of 2012) decided on 15.05.2013.

11. As per copy of the Proposal Form dated 28.3.2006, deceased has stated that he was

not suffering from any ailment at all. Whereas, the discharge summary dated 5.10.2005

issued by Medical Department of Bhilai Steel Plant shows that deceased was having

Cirrhosis of liver and was on Hemodialysis since one year. It is an admitted fact that

deceased was admitted in Bhilai Steel Plant Hospital on 07.09.2007 and during

investigation it has come on record that his urea had increased and deceased died on

07.10.2008, due to kidney failure. In this regard, State Commission in its impugned order

observed;“8.We have taken into consideration aforesaid arguments. We find that the Insurance Corporation has produced sufficient material to show that the deceased was suffering from many serious ailments prior to making proposal for insurance. From the treatment papers, which have been brought on record of the District Forum, it is clear that being an employee of Bhilai Steel Plant, the deceased was having facility of getting treatment in the Hospital of BSP and the Hospital used to keep history of such treatments given to the employees of the BSP. From the Discharge Summary, Annexure D–9, it is apparent that, when the deceased came to the Hospital on 05.10.05, then he was having complaints of chest pain, his blood pressure was 160/90 and he was also having complaints of hypertension, cirrhosis of liver and kidney failure. He was on hemodialysis since one year. With this history, some treatments were prescribed to the deceased. As the treatment was with the aforesaid history, so it can well be inferred that the treatments were in respect of foresaid ailments and it was also in the knowledge of the deceased. He was also referred to nephrologist with request to examine him and to put him on hemodialysis. These all show that the deceased was having kidney problem, liver problem and some problem with heart, prior to the date of making proposal for insurance. But when the proposal form was signed by him then he conveniently suppressed all such information and in reply to the question as to whether he was suffering from or has ever suffered from diabetes, tuberculosis, high blood pressure, low blood pressure, cancer, epilepsy, hernia, hydrocele, leprosy or any other disease, he conveniently stated that he was not suffering or had ever suffered from any of all the aforesaid diseases or any other disease. He had also stated that his usual state of health was good. It is clear that these answers were untrue and correct facts have not been stated by him. He has also forgotten to state that he was brought to the Hospital, he was examined in the Hospital or treatments were given there to him prior to the date of making proposal. In reply of questions regarding aforesaid facts also he simply stated that he never got any treatment nor was brought to Hospital for examination or treatment. Thus, when we read the proposal form as well as the treatment papers together, then it is clear that the information given in the proposal form are not true on material aspects.

9.Apart from the treatment papers, the treating Doctor, who attended the deceased in the Hospital, Dr. S.K. Sethi, in his Medical Attendant’s Certificate, has also stated that the deceased himself gave history regarding his previous ailments, when he was admitted for treatment in the year 2008 and stated that he was having problem of hypertension since 2000 and was having problem of renal failure, detected in the year 2005 and problem of liver cirrhosis. Thus, to the Doctor also it was explained by the deceased himself that he was having all those problems and so it was in his knowledge on the date of making proposal for insurance. 10.So far as filing of affidavit of the Doctor is concerned, we do not find it necessary when photocopies of original treatment papers and certificate of Medical Attendant has also been brought on record. If the complainant is doubting the Medical Attendant’s Certificate, then the person could have been called for cross-examination by the complainant, but no such exercise was done by her. We find that the District Forum has committed an error in not considering the treatment papers, and in brushing aside the medical history as well as the certificate of Doctor and in taking them lightly. 11. Therefore, this appeal succeeds and is allowed. The order recorded by the District Forum is set aside. The complaint of the respondent is dismissed on the ground that the deceased had fraudulently suppressed material facts at the time of making proposal for insurance and so committed breach of confidence between the insured and insurer under the insurance contract in the terms of Section 45 of the Insurance Act, and also the declaration made by him at the time of proposal. No order as to cost”.

12. Apex Court in Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd, IV (2009)

CPJ 8(SC),in Paras 12,13,17 and 18 has held;“12.. ……… Nonetheless, it is a contract of insurance falling in the category of contract ‘uberrimae fidei’, meaning, ‘a contract of utmost good faith, on the part of the assured’. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge.It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not.Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment (See: Joel Vs. Law Union & Crown Ins.Co.[1908] 2 K.B. 863).

13. In United India Insurance Co. Ltd. Vs. M.K.J. Corporation, III (1996) CPJ 8 (SC) =(1996)6 SCC 428, this Court has observed that it is a fundamental principle of insurance law that utmost faith must be observed by the contracting parties. Good faith forbids either party from non-disclosure of the facts which the party privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary.(Also see: Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd., II (2000)SLT 323 = I(2000) CPJ 1 (SC)=(2000)2 SCC 734).

17. The term “material fact” is not defined in the Act and, therefore, it has been understood and explained by the courts in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to

accept the risk. Any fact which goes to the root of the Contract of Insurance and has a bearing on the risk involved would be “material”.

18. As stated in Pollock and Mulla’s Indian Contract and Specific Relief Acts, any fact the knowledge or ignorance of which would materially influence an insurer in making the contract or in estimating the degree and character of risks in fixing the rate of premium is a material fact”.

13. Since, deceased was suffering from Cirrhosis of liver, CKD and was on Hemodialysis

since 2005, we have no hesitation in holding that the deceased had suppressed the

material facts from the respondents, while obtaining the insurance policy in question.

14. Under section 21(b) of the Act, this Commission can interfere with the order of the

State Commission where such State Commission has exercised jurisdiction not vested in it

by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its

jurisdiction illegally or with material irregularity.

15. We do not find that there is any error, irregularity or infirmity in the impugned order

passed by the State Commission in dismissing the complaint of the petitioner and allowing

the appeal of the respondents. Consequently, we affirm the decision of the State

Commission. With the result, the complaint filed by the petitioner before the District Forum,

stand dismissed.

16. No order as to cost.……..……………………J

(V.B. GUPTA) PRESIDING MEMBER

…………………………

(REKHA GUPTA) MEMBER

SSB,



(From the order dated 08.04.2008 in First Appeal No. 29/2007 of Uttarakhand State Consumer Disputes Redressal Commission)

HDFC Limited Head Office, Raman House, H.T. Parikh Marg, 169, Backbay Reclamation, Church Gate, Mumbai – 400020.

... Petitioner

Versus

1. Mrs. Neetu Singh, 28, Vishwa Bank Colony, Ganeshpur, Roorkee, District : Haridwar.

2. Ram Avtar Singh 28, Vishwa Bank Colony, Ganeshpur, Roorkee, District : Haridwar.

… Respondents

BEFORE



APPEARED AT THE TIME OF ARGUMENTS

For the Petitioner Mr. Ajit Warrier, Advocate Mr. Aditya Nayyar, Advocate

Mr. Aditya Mukherjee, Advocate

For the Respondent – 1 Mrs. Neetu Singh, In person

For the Respondent – 2 Mr. Ram Avtar Singh, in person

PRONOUNCED ON : 4th MARCH 2014

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

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

Consumer Protection Act, 1986 against the impugned order dated 08.04.2008, passed by

the Uttarakhand State Consumer Disputes Redressal Commission (hereinafter referred as

‘the State Commission’) in FA No. 29/2007, HDFC Ltd. & Ors. vs. Mrs. Neetu Singh &

Ors., vide which, while partly allowing the appeal, the order passed by the District

Consumer Disputes Redressal Forum, Haridwar dated 02.01.2007, allowing the consumer

complaint

no. 04/2006, was modified.

2. Brief facts of the case are that the complainants Mrs. Neetu Singh and Ram Avtar

Singh obtained a housing loan of ` 7 lakhs in January, 2000 from the HDFC Limited,

Munirka, Outer Ring Road, New Delhi (herein after referred as HDFC) at a fixed interest

rate of 13.5%, for the purpose of purchasing a residential house. It has been stated that

after some time, the interest rates of such loans got substantially reduced due to

introduction of scheme of adjustable interest rates. The complainants got their housing

loan converted into a loan with adjustable rate from fixed rate, after paying a conversion fee

of `2860 on 23.04.2002 and `1,000/- on 22.04.2002. The interest rates got reduced further,

but as alleged by the complainants, the opposite party did not give them the benefit of

further reduction in the interest rates. The complainants filed the consumer complaint in

question, which was allowed by the District Forum vide their order dated 03.01.2007,

according to which, the opposite party/petitioner was directed to return the amount of

additional interest i.e. `99,720/- alongwith interest at the rate of 9% per annum i.e. `22,437/-

and a further amount of `12,689/- taken by them under various heads,

besides litigation expenses of ` 2,000/-. In this way, the opposite parties were directed to

refund an amount of `1,34,846/- to the complainant within one month from the date of the

order. An appeal was filed against this order before the State Commission, which was partly

allowed by order dated 08.04.2008, according to which, the order of the District Forum was

modified, and the opposite parties were directed to pay a sum of `99,720/- alongwith

interest at the rate of 7.5% per annum from 09.11.2004, i.e. the date of filing the complaint

till realisation and a litigation cost of `2,000/-. It is against this order that the present petition

has been made.

3. At the time of hearing before us, learned counsel for the petitioner HDFC stated

that loan agreement had been entered into between the complainants and the opposite

party on 08.01.2000, according to which, the rate of interestwas fixed at 13.5% per

annum. The due date of payment of first EMI was 29.02.2000. AS per this agreement, a

loan of ` 6 lakhs was advanced to the complainants; however, an application was filed by

the complainants on 22.04.2002, requesting for payment of further one lakh as loan and

also to convert the loan agreement to variable mode of interest and to reschedule the

EMIs. On 23.04.2002, an amount of `2,860 was paid in cash towards administrative fees

for processing the above request. A supplemental loan agreement for Adjustable Rates

Home Loans was then entered between the parties, in which it was stated as follows:-

“2.1 The parties hereto agree that effective from the date referred to in

Article 4 below until varied by HDFC in terms of this Agreement, the Borrower

shall amortise the said outstanding amount of the loan as stipulated in the

Schedule in EMIs calculated on the basis of annual rests at the currently

prevailing AIR stated in the Schedule until the entire loan has been amortised by

the Borrower with interest. The said AIR comprises of the currently prevailing

RPLR as stated in the Schedule plus the spread as stated in the Schedule.”

4. The learned counsel stated that in accordance with the supplementary loan

agreement for Adjustable Rate Home Loans as stated above, the rate of interest on the loan

was linked to HDFC’s retail prime land rate (RPLR) and the same was to be reviewed/reset

on half-yearly basis. The learned counsel has further drawn our attention to letter no.

HDFC/606130 dated 09.06.2004 sent by the petitioner to the complainants, in which the

details of charging interest from 01.05.2002 onwards have been stated. As per the RPLR,

an interest rate of 11.5% was charged from 01.05.2002 to 31.10.2002, a rate of 10.50%

was charged from 01.11.2002 to 30.04.2003, a rate of 10% was charged from 01.05.2003

to 31.10.2003 and rate of 9.75% was charged from 01.11.2003 to 31.10.2004. It has been

stated in the said letter that the next review will be falling due on 01.11.2004. It is also

stated that the complainants were not required to pay EMIs @ ` 7,264/- per month till

30.09.2017, instead of 31.05.2021, which was the original term on the commencement of

repayment of enhanced loan of ` 7,62,013/- on 01.05.2002. It is stated that the

complainants have saved 67 EMIs of ` 7,264/- each, with the total EMI amount of `

3,19,616/-.

5. In the letter dated 09.06.2004, as mentioned above, it is further mentioned as

follows:-

“HDFC periodically launches marketing schemes in order to stay

competitive in the market. We would like to assure you that it is not our

intention to be unfair to our existing customers and we do offer existing

customers the option to move to newer schemes which will result in an

immediate reduction in the interest rate applicable to your loan on payment of

a conversion fee. Accordingly, we are agreeable for reducing the rate of

interest on the outstanding loan as of 1st July 2004 by converting the same

into the newly introduced. Adjustable Rate Home Loan (ARHL) scheme of

HDFC with the following benefits.

EMIs calculated on Monthly Rest Basis.

Interest reset on quarterly basis.

Rate of interest linked to HDFC’s RPLR minus 200 basis points, i.e.

current applicable rate will be 7.75% p.a.”

6. It has further been stated that the revised EMI calculated on monthly rest basis would

be ` 6,375/- per month and a conversion fees of ` 1,581/- was to be paid. It is also

mentioned in the said letter that the complainant should send their acceptance with the

cheque for conversion fees, if the above said revised term was acceptable to them. The

learned counsel stated that since the conversion fees of ` 1,581/- was not paid by the

complainants, the revised rate of 7.75% could not be made available to them and hence,

they can not get the benefit of such reduction of interest. The learned counsel further

argued that there was also jurisdictional error in the orders passed by the District Consumer

Forum, because the complaint in question could not be taken up at Haridwar. The property

in question is located at Ghaziabad, U.P., whereas the loan was sanctioned from the Delhi

office of HDFC.

7. In reply, the learned counsel for the respondent stated that conversion fees of `

2,860/- had been paid by the complainants already and hence, they were entitled to

reduction in the rates of interest, as floating rates were applicable to them. There was no

justification for the demand of further conversion money of

` 1,581/-. The learned counsel stated that the complainant continued to repay EMI of `

7,000/- to the petitioner, but still there was no reduction in the amount of principal. He

further argued that the District Forum at Haridwar had the jurisdiction to hear the consumer

complaint in question, because the petitioner had a branch office there.

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

to the arguments advanced before us.

9. The facts of the case, as admitted by both the parties are that the complainants took

loan from the opposite party on fixed rate of interest, but later on, got it converted under the

flexible rate of interest or adjustable interest rate scheme by paying a sum of

` 2,860/- as conversion charges. An agreement was entered between the parties relating to

fixed rate of interest, and subsequently another agreement was entered, known as

“Supplemental Loan Agreement for Adjustable Rate Home Loans”. According to the

supplemental loan agreement, the interest rate was to be charged on RPLR (Retail Prime

Lending Rate Basis) and the opposite party made adjustment in the amount of EMIs and

the number of instalments accordingly. The letter sent by the opposite party dated

09.06.2004 makes the position absolutely clear about the entire factual matrix of the

case. It has been stated that as a result of charging interest on RPLR basis, the

complainant had made a saving of total amount of Rs. 3,19,616/-. It has, further, been

stated in the said letter that the HDFC periodically launches marketing schemes in order to

stay competitive in the market and that they offer existing customers the option to move to

newer schemes, which will result in an immediate reduction in the interest rate of payment

of conversion fees. It has been offered through this letter dated 09.06.2004 that the HDFC

was agreeable for reducing the rates of interest on the outstanding loan as on 01.07.2004

by converting the same into the newly introduced Adjustable Rate Home Loan (ARHL)

scheme, according to which the rate of interest shall be linked to RPLR minus 200 basis

points and the new rate applicable would be 7.75% per annum. It has also been stated that

EMIs would be calculated on monthly rest basis and interest reset on quarterly basis. The

conversion fee for taking advantage of the new ARHL scheme has been stated to be `

1,581/- as 0.25% of the outstanding amount of loan on 01.07.2004, i.e. ` 6,32,360.00/-. The

opposite party have stated that the complainants failed to pay the conversion charges of `

1,581/- and hence, could not avail themselves of the fresh offer of reduction in rate of

interest to 7.75% per annum. From the material available on record, it is quite clear that the

complainants have not been able to give any plausible explanation, as to why they failed to

deposit the conversion charges of ` 1,581/-. This leads us to the irresistible

conclusion that the complainants were not entitled to take the benefit of the scheme under

which the interest rate was reduced to 7.75% per annum.

10. Based on the discussion above, it becomes very clear that the orders, passed by the

consumer fora below are perverse in the eyes of law, as these fora have failed to carry out

a correct analysis of the position on record and based the judgment on wrong assumptions

that the opposite party were required to charge the interest rate at 7.75% per annum. The

orders passed by the District Forum as well as the State Commission are, therefore,

ordered to be set aside. This revision petition is allowed and the consumer complaint is

ordered to be dismissed with no order as to costs.

..……………………………(K.S. CHAUDHARI J.) PRESIDING MEMBER

..……………………………

(DR. B.C. GUPTA) MEMBER

PSM



(Against the order dated 27.08.2012 in F.A. No. 403/2012 of the Odisha State Commission, Cuttack)

National Insurance Co. Ltd. Kolkata Division III Kolkata – 700001 Through Manager Regional Office – I Jeevan Bharti Building 124, Connaught Circus, New Delhi – 110001

........ Petitioner

Vs. 1. Sanjay Kumar Behera s/o Late Krushna Murthy Behera r/o Village Suradei P.O./P.S.Khajuripada, Phulbani Distt. Kandhamal (Odisha) 2. Susanta Kumar Pradhan s/o Dambarudhar Pradhan At .P.O./ P.S.Khajuriapda Distt. Kandhamal 3. Manager Golden Trust Financial Services 16, R.N.Mukherjeet Road, Kolkata – 700001

......... Respondents BEFORE:

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

For the Petitioner : Mr. Kishore Rawat, AdvocateFor the Respondent : R1 & R2 Ex parte Mr. Kunal Chatterji, Advocate for R-3

PRONOUNCED ON : 04th March, 2014

ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the order of the State Consumer Disputes Redressal

Commission dated 27.08.2012 in First Appeal No.403/2012 whereby the State Commission

dismissed the application of the petitioner insurance company for condonation of delay of

168 days in filing of appeal and consequently dismissed the appeal as barred by limitation. Relevant portion of the impugned order of the State Commission is reproduced thus:

“Perused the office note, which points out inordinate delay of 5 months and 19 days in preferring the appeal, for which misc. case bearing no. 768 of 2012 has been filed with a prayer for condonation of the said inordinate delay. After hearing Mrs. Jesthi, learned counsel appearing for the appellant / misc. petitioner, it is found that the delay has been caused at the official level of the Insurance Company in taking decision for filing appeal or not. When by this inordinate delay of 5 months and 19 days in filing appeal a valuable right has already accrued in favour of the complainant / respondent, we are not inclined to take away the said right by allowing the misc. case and condoning such inordinate delay. We would like to further note that the appellant, who was opposite party no.3 to the complaint, was contesting the claim of the complainant / respondent before the District Forum, Phulbani. As such, we reject the misc. case and dismiss the appeal memo on the ground of limitation.”

2. Learned Shri Kishore Rawat, Advocate for the petitioner has contended that State

Commission has committed a grave error in dismissing the application of condonation of

delay on the assumption that the appeal was filed with inordinate delay of 5 months and 19

days. It is contended that free copy of the order of the District Forum was received by the

petitioner on 05.06.2012 and if the period of limitation is computed from the aforesaid date,

the appeal should have been filed by 05.07.2012. Therefore, there was a delay of 15 days

only because the appeal was filed on 20.07.2012. It is contended that aforesaid 15 days

delay occurred because of bureaucratic procedure i.e. taking of legal advice and obtaining

sanction for filing the revision petition. He has contended that had the State Commission

taken note of the above facts, it would have accepted the explanation for delay given by the

petitioner. It is also argued that the petitioner has a very good case in appeal and if the

revision is not accepted, a grave injustice would be caused to him.

3. Complainant respondent no.1 and respondent no.2 failed to put in appearance

despite notice of revision petition. Therefore, we are constrained to proceed against them

ex parte. Counsel for respondent no.3 has refrained from contesting the revision petition.

4. On reading of the impugned order, it is evident that State Commission dismissed the

application for condonation of delay and the appeal on the premise that delay in filing of

appeal was 5 months and 19 days. On perusal of the copy of application for condonation of

delay annexed alongwith the appeal, it is evident that the petitioner in the application

categorically alleged that free copy of the impugned order of the District Forum was

received by him on 05.06.2012. Therefore, the appeal could have been filed by

05.07.2012. Thus, there was delay of only 15 days, which in our view have been sufficiently

explained. Therefore, we are of the opinion that the impugned order is based upon wrong

assumption of facts and is not sustainable.

5. In view of the above discussion, revision petition is allowed, impugned order is set

aside and matter is remanded back to the State Commission with the direction to hear the

appeal on merits after service of notice on the parties. Since the matter has been

considerably delayed, the State Commission is requested to dispose of the appeal within six

months.

Parties are directed to appear before the State Commission on 16.04.2014

(AJIT BHARIHOKE, J) ( PRESIDING MEMBER) (SURESH CHANDRA) MEMBER

Am/



(Against the order dated 27.09.2012 in F.A. No. 396/2012 of the Odisha State Commission, Cuttack)

Golden Trust Financial Services 16, R.N.Mukherjeet Road, Kolkata – 700001 Kolkata – 700001Through Partner

Vs. 1. Sanjay Kumar Behera s/o Late Krishna Murthy Behera r/o Village Suradei P.O./P.S.Khajuripada Distt. Kandhamal (Odisha) 2. The Senior Divisional Manager National Insurance Company Limited Division-III, 8 India Exchange Place (Ground Floor) Kolkata – 700001 3. Susanta Kumar Pradhan s/o Dambarudhar Pradhan of Khajuripada P.O./ P.S.KhajuriapdaDistt. Kandhamal

......... Respondents BEFORE:

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

For the Petitioner : Mr.Kunal Chatterji, AdvocateFor the Respondent : Nemo for R1 Mr. Kishore Rawat, Advocate for R-2


ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the order of the State Commission dated

27.09.2012 whereby the State Commission dismissed the application of the petitioner

opposite party for condonation of delay in filing of appeal and as a consequence, dismissed

the appeal on the ground of limitation. The relevant portion of the impugned order is

reproduced thus:

“On perusal of the office note, it is observed that there is inordinate delay of 5 months and 16 days in preferring the appeal and it is submitted by Mr. C.R.Swain, learned counsel appearing for the appellant that he was not served with notice and set ex parte by the learned District Forum and the order has been passed behind his back. On perusal of the impugned judgment and order, it is found that the District Forum has categorically observed that opposite party nos. 1,2 & 4 inspite of receipt of notices / summons did not appear to file their written version and it is only opposite party no.3 i.e. National Insurance Company Limited entered appearance and filed written version. When after the receipt of notice, opposite party

no.2/ appellant did not appear and file written version, the submission of the learned counsel for the appellant that he was set ex parte and he did not receive the notice is nothing but false and the delay of 5 months and 16 days, which has occurred has been attempted to be explained away making false submission and when we find that there is absolutely no material to substantiate it, the explanation cannot be accepted to take away a right that has accrued in favour of the complainant / respondent. In the result we reject the misc. case for condonation of the inordinate delay and resultantly, we reject the appeal memo on the ground of limitation.”

2. Briefly stated facts relevant for the disposal of this revision petition are that father of

the complainant /respondent, namely, Late Krushna Murty Behera, on the motivation from

respondent opposite partySusanta Kumar Pradhan, deposited some amount with the

petitioner company and started an insurance policy alleged to have been issued by

the National Insurance Company Limited ( OP No.3 in the complaint). The policy covered

the risk of accidental death/loss of limbs/permanent-Total Disablement. The

insured K.M.Behera met with an accident on 23.04.2004 and sustained injuries resulting in

total disablement. The insured submitted claim with the opposite parties which was

not settled. Claiming this to be deficiency in service, the petitioner has filed a consumer

complaint being the nominee under the policy scheme that the insured policy holder has

died on 24.07.2005.

3. The petitioner as also OP No.2 & 4 did not respond to the notice of the

complaint. Thus, they were proceeded ex parte. OP No.3 insurance company contested

the complaint.

4. Learned Shri Kunal Chatterji, Advocate for the petitioner has contended that State

Commission has committed a grave error in dismissing the application of condonation of

delay on the assumption that the appeal was filed with inordinate delay of 5 months and 16

days. It is contended that free copy of the order of the District Forum was received by the

petitioner on 05.06.2012 and if the period of limitation is computed from the aforesaid date,

the appeal should have been filed by 05.07.2012. Therefore, there was a delay of 15 days

only because the appeal was filed on 20.07.2012. It is contended that aforesaid 15 days

delay occurred because of bureaucratic procedure i.e. taking of legal advice and obtaining

sanction for filing the revision petition. He has contended that had the State Commission

taken note of the above facts, it would have accepted the explanation for delay given by the

petitioner. It is also argued that the petitioner has a very good case in appeal and if the

revision is not accepted, a grave injustice would be caused to him.

4. On reading of the impugned order, it is evident that State Commission dismissed the

application for condonation of delay and the appeal on the premise that delay in filing of

appeal was 5 months and 16 days. On perusal of the copy of application for condonation of

delay annexed alongwith the appeal, it is evident that the petitioner in the application

categorically alleged that free copy of the impugned order of the District Forum was

received by him on 05.06.2012. Therefore, the appeal could have been filed by

05.07.2012. Thus, there was delay of only 15 days, which in our view have been sufficiently

explained. Therefore, we are of the opinion that the impugned order is based upon wrong

assumption of facts and is not sustainable.

5. In view of the above discussion, revision petition is allowed, impugned order is set

aside and matter is remanded back to the State Commission with the direction to hear the

appeal on merits after service of notice on the parties. Since the matter has been

considerably delayed, the State Commission is requested to dispose of the appeal within six

months.

Parties are directed to appear before the State Commission on 16.04.2014

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

Am/



(From the order dated 01.04.2013 in First Appeal No. 177 of 2013 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

With IA/4105/2013 IA/5274/2013 (Stay, Directions)

General Manager Sawai Madhopur Co-operative Upbhokta Whole Sale Bhandar Ltd.

District Sawai Madhopur …Petitioner/Opp. Party (OP)

VersusRavindra Singh Jadoun S/o Shri Mool Singh Jadon R/o Mahukala, Tehsil Gangapur City District Sawai Madhopur.


BEFORE



For the Petitioner :Mr. Satyajit Sarna, Advocate

For the Respondent :Mr.N.K. Chauhan, Advocate, Advocate with respondent in person

PRONOUNCED ON 4th March, 2014

O R D E R



01.04.2013 passed by the Rajasthan State Consumer Disputes Redressal Commission,

Jaipur (in short, ‘the State Commission’) in Appeal No. 177 of 2013 – General Manager,

Sawai Madhopur Co-op. Consumer Whole Sale Bhandar Ltd. Vs. Ravindra Singh Jadaun

by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

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

an allegation that complainant/respondent deposited Rs.88,000/- with OP/petitioner for

taking delivery of wheat for disbursement to BPL, but wheat was not delivered. OP was

proceeded ex-parte and learned District forum allowed complaint and directed OP

to refundRs.88,000/- along with 9% p.a. interest and further awarded Rs.2,000/-

as compensation and Rs.1,000/- as cost of litigation. Later on, OP filed application on

9.2.2012 for recall of the order dated 1.4.2011 allowing complaint, but that application was

dismissed by order dated 31.12.2012. Petitioner filed appeal before State Commission

challenging both the orders along with application for condonation of 658 days

delay. Learned State Commission dismissed appeal as barred by limitation as well as on

merits against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that learned State Commission

committed error in dismissing appeal as barred by limitation as well as on merits; hence,

revision petition be allowed and impugned order be set aside. On the other hand, learned

Counsel for the respondent submitted that order passed by learned State Commission is in

accordance with law; hence, revision petition be dismissed.

5. Learned Counsel for the petitioner submitted that, in fact, there was no delay in filing

appeal, but learned State Commission wrongly dismissed appeal as barred by limitation.

6. Perusal of record reveals that District Forum proceeded ex-parte against OP and

passed ex-parte order on 1.4.2011. OP moved application dated 9.2.2012 for recalling

order dated 1.4.2011 and submitted that as complainant filed one petition

before Permanent Lok Adalat and another complaint before District Forum and OP on

account of excessive work treated both the matters one and the same so could not get

information about ex-parte proceedings. Learned District Forum rightly dismissed

application for recalling the order as District forum had no jurisdiction to recall its ex-parte

order.

7. In the application for condonation of delay filed before State Commission, petitioner

submitted that petitioner came to know about ex-parte order first time on 11.1.2012 when

notice u/s 27 of C.P. Act was received by him. On the other hand, in review application, he

submitted that on account of excessive work and on the understanding that both the

matters were pending before District forum and Permanent Lok Adalat were one and the

same, he did not appear before District forum. Thus, it becomes clear that he has taken

contradictory stand before the District Forum and the State Commission and in such

circumstances, learned State Commission rightly dismissed application for condonation of

delay of 658 days.

8. We do not find any illegality, irregularity or jurisdiction error in the impugned order and

revision petition is liable to be dismissed at admission stage.

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

with no order as to costs.

10. Amount deposited by the petitioner with the District Forum in pursuance to order

dated 26.8.2013 may be refunded to him. ………………Sd/-……………( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBERk



(From the order dated 28.09.2012 in First Appeal No. 154 of 2008 of the Bihar State Consumer Disputes Redressal Commission, Patna)

1. Union of India, Through Chairman, Railway Board, Rail Bhawan, New Delhi 2. The Divisional Railway Manager, E.C. Railway, Samastipur

…Petitioners/Opp. Parties (OP)

VersusSmt. Niva Agrawal, Advocate W/o Shri Chandramauli Agrawal C/o G.M. Bihar State Sugar Corporation Ltd. Unit Samastipur, P.O. + P.S. & District Samasatipur


BEFORE



For the Petitioners :Mr. Pradeep Kumar Singh, Proxy Counsel For Mr. R.V. Sinha, Advocate

For the Respondent :Mr. Shankar Kumar Jha, Advocate


O R D E R


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

28.09.2012 passed by the Bihar State Consumer Disputes Redressal Commission, Patna

(in short, ‘the State Commission’) in Appeal No. 154 of 2008 – Union of India through

Chairman, Railway Board Vs. Niva Agrawal by which, while dismissing appeal, order of

District Forumallowing complaint was upheld.

2. As there is delay of only one day in filing revision petition, delay stands condoned.

3. Brief facts of the case are that complainant/respondent was travelling with his family

members from Samastipur to Mumbai by train No.

1066 Darbhanga – Lokmanya TilakExpress in 3rd AC Coach and their berths were 20, 21 &

22 and their ticket No. was 12964756, PNR No. 812-2501245. On 22.9.06, at about 6 A.M.

in the morning near Satna Railway Station suddenly berth No. 18 fell on

her which caused injury and she became unconscious. On regaining consciousness, she

felt severe headache and faintness. The clamp of berth No. 18 which was broken was

repaired at Jabalpur and Atarsi Railway Station. At Jabalpur railway station, Railway doctor

came and gave her medicine after charging Rs.50/- as fees. Due to swelling in the

head, continuous pain and giddiness, she got treatment in G.T. Hospital, Mumbai and after

return from Mumbai, she went to Government hospital, Tajpur, Distt.Samastipur from where

she was referred to S.K.M.C.H. Muzaffarpur and still she is having treatment. She is an

Advocate by profession, but not finding able to perform her duties. Alleging deficiency on

the part of OP/petitioner, complainant filed complaint before District Forum. OP resisted

complaint and submitted that complaint as framed was not maintainable and barred by

limitation. It was further submitted that occurrence took place before arrival

at Satna Railway Station which is not within the jurisdiction of the East Central Railway, but

the authorities of East Central Railway has been impleaded as a party and in such

circumstance, case was not maintainable due to defect of party. Allegation regarding injury

to the complaint was also denied and prayed for dismissal of complaint. At the time of

arguments, OP did not appear before District Forum and learned District Forum after

hearing complaint allowed complaint and directed OP to pay Rs.5,00,000/- as

compensation and Rs.25,000/- towards treatment and cost. Appeal filed by the OP was

dismissed by learned State Commission vide impugned order against which, this revision

petition has been filed.


5. Perusal of record reveals that OP took specific plea in the written statement that

District Forum had no jurisdiction as occurrence took place before arrival at Satna Railway

Station which was not within the jurisdiction of East Central Railway and place of injury was

falling under different zone of railway. Learned District Forum should have decided

question of jurisdiction and only after that complaint should have been allowed. Learned

District Forum has not dealt the aspect of jurisdiction in its order which was mandatory on

its part. Learned State Commission while dealing with the aspect of jurisdiction held

that Samastipur Consumer Forum had jurisdiction because complainant was permanent

resident ofSamastipur and was practicing Advocate there and she was not supposed to

knock the door in far flung place in the given situation.

6. Learned District forum ought to have dealt the question of jurisdiction and apparently

learned State Commission has not dealt the question of jurisdiction properly and in such

circumstances, it would be appropriate to set aside the impugned order and remand the

matter back to District Forum for deciding the complaint afresh on the question of

jurisdiction also after giving an opportunity of being heard to both the parties. Learned

District forum has also not given any cogent reason for allowing claim of Rs.5,00,000/-

towardscompensation.

7. Consequently revision petition filed by the petitioner is allowed and impugned order

dated 28.9.2012 passed in Appeal No. 154 of 2008 – Union of India through Chairman

Railway Board Vs. Niva Agrawal and order dated 15.2.2008 passed by District Forum in

Case No.02/2007 – Nibha Agrawal Vs. Union of India Through Chairman, Railway Board

are set aside and matter is remanded back to learned District Forum, Samastipur to decide

it afresh on the question of jurisdiction as well as compensation after giving an opportunity

of being heard to both the parties.

8. Parties are directed to appear before the District Forum, Samastipur on 11.4.2014.


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk



(Against the order dated 24.09.2012 in F.A. No. 496/2011 of the State Commission A.P., Hyderabad)

Duggirala Prasad Babu s/o Late D. Ramarao Chowdary r/o D.No.8-5-105, Opp. Church Road NTR Nagar, Old Gajuwaka Visakhapatnam Vishakhapatnam District, Andhra Pradesh

........ Petitioner

Vs.

1. M/s Skoda Auto India Pvt. Ltd. Represented by Managing Director Plot No.8-1/1, Shendra, Five Star Industrial Area MIDC, Aurangabad-431201 Maharashtra

2. M/s Mahaveer Auto Diagnostic Pvt. Ltd. Represented by its Proprietor D.No.3-907, Raj Bhavan Road Somajuguda, Hyderabad-500082 Andhra Pradesh

3. M/s Mahaveer Auto Show Room Represented by its Proprietor Mourya Chambers, D.No.39-6-71/3 National High Way, Opp. Industrial Estate Vengal Rao Nagar, Visakhapatnam-8 Andhra Pradesh

......... Respondents

BEFORE:

HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

For the Petitioner : Mr. Suyodhan Byrapaneni, Advocate

For the Respondent No.1 : Mr. Vipin Singhania, Advocate

For Respondent no. 2 : Mr. K.S.Rama Rao, Advocate

For Respondent no.3 : Nemo


ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision petition is directed against the order of the State Commission dated

24.09.2012 whereby the State Commission concurred with the order passed by the

District Forum and dismissed the appeal.

2. Briefly put facts relevant for the disposal of this revision petition are that the

petitioner filed a consumer complaint before the District Forum-II at Visakhapatnam

alleging that he purchased Skoda OctaviaAmbience car from the OP no.3. It is the case

of the complainant that after delivery of the vehicle, the petitioner noticed that a steering

wheel of the car dragged towards the left side. He also noticed that reverse gear of

the car was not functioning. The petitioner, therefore, visited the dealer, the OP no.3 on

the very next day and asked him to rectify the defects. The vehicle was returned to the

petitioner on 28.02.2010 stating that the defects were rectified. The complainant further

noticed that the defects were still there and he again returned the vehicle to the OP no.3

for rectification of those defects but in vain. It is stated that on various occasions the car

was sent to the service station of the OP no.3 for rectification of defects but the defects

could not be rectified. The complainant issued legal notice to the OPs. Alleging the

deficiency on the parties of the OPs, the complainant filed a consumer complaint before

the District Forum. It may also be noted that during the process, the gear box of the car

was replaced.

3. OPs resisted the claim by filing WS denying the allegation that the defects were

not removed. It is claimed that there was no deficiency in service. The gear box was

replaced and even the other defect was rectified. According to the opposite party, there

is no manufacturing defect in the vehicle as such complaint is liable to be dismissed.

4. District Forum on consideration of pleadings as well as evidence produced on

the record, came to the conclusion that neither there was any manufacturing defect nor

any deficiency in service on the part of the opposite party and dismissed the complaint

with the following observations:“After careful perusal of the case record, this Forum finds that the main

contention of the Opposite Parties that the vehicle in question is free of

defect, and is in continuous use of the Complainant, stands

unchallenged. Ex.A22 is the vehicle gate pass which shows that the

Complainant received the vehicle in question from the Opposite

Parties on 25-03-2010 after proper repair. The note written by the

Complainant thereon on the said Ex.A22 stating that he received the

vehicle under protest though the vehicle was not good, left pulling was

the same, and reverse gear also not satisfactory cannot be taken at its

face value as no prudent person will take a vehicle out from a service

center without its being repaired. Moreover, in the present case, it

was very dangerous to take the said vehicle on to the road with the

alleged defects. So, we cannot but hold that the vehicle was fairly

road-worthy as on 25-03-2010. Moreover, Ex.B3 sheet shows that

when on 25-03-2010 the vehicle in question passed out, its reading

has shown only 568 kilometers. As such, the allegation of the

Complainant, that the reading in the meter was 3200 kilometers,

cannot be true. Moreover, the Complainant failed to present before

this Forum any material to the effect that the said vehicle is lying ideal

and is not in use at all. So, the contention of the Opposite Parties,

that the vehicle in question, is in use since 25-03-2010, i.e., for more

than one year, stands unchallenged. Hence, the question of

replacing the car in question or paying any, the in the alternative

doesn’t arise. Therefore, we hold that the claim put forward by the

Complainant is untenable and the complaint itself is liable to be

dismissed.”

5. Being aggrieved by the order of the District Forum, the petitioner

preferred an appeal. The appeal was dismissed by the State Commission

Hyderabad vide the impugned order. Relevant observations of the State

Commission are reproduced thus:-“In order to prove that there are mechanical defects in the vehicle, the complainant filed Ex.A26 dt.29.3.2010, the observations and findings of his examination of the subject vehicle by Chandra Sekhar Rao, Engineer/Insurance Surveyor and loss assessor. Ex.A27 dt.9.4.2010, the observations and findings of R.V.S.Sharma, Surveyor and loss assessor said to have beenattended on the subject vehicle, on 7.4.2010. The complainant filed affidavits of both A.Chandrasekhar Rao and R.V.S.Sharma surveyors and loss assessors, at the time of enquiry of the complaint.

As per Ex.A26 , surveyor opined that in the event of failure to rectify the defects, the car cannot be used on the high ways and in the traffic with continuous left drag and advised to send back the car to the manufacturer and get replaced it. Mr.R.V.S.Sharma also opined the same thing under Ex.A27. Admittedly the above said two surveyors have not examined the vehicle in the presence of opposite parties,who are disputing both the opinions vide Ex.A26 and A27. The complainant ought to have got the vehicle examined by the above said two surveyors in the presence of staff of opposite parties 1 to 3. Except the reports, no supporting evidence has been filed along with the reports.

Ex.A19 is the copy of the registered lawyers notice dt.11.3.2010 got issued by the complainant to the opposite parties and Ex.A21 is the reply notice dt. 22.3.2010 got issued by the opposite parties,wherein the opposite parties have categorically expressed their willingness for examination of the

vehicle by an independent third party expert. Not withstanding the offer of the opposite parties, the complainant engaged surveyors of his own choice and filed their above reports dt.29.3.2010 and 9.4.2010. That apart, the surveyors in their reports have categorically stated that unless the vehicle is opened and examined, the alleged manufacturing defects cannot be confirmed. It is therefore obvious, both the surveyors have not opened the vehicle and examined it, also no tests were conducted. Any report,without a thorough technical examination,cannot be termed as expert opinion. The car of this nature requires examination by a qualified automobile engineer/expert only who can diagnose the vehicles through ‘vehicle analytical systems’ (VAS), and other latest diagnosing/technical requirements etc. Insurance surveyor cannot give a report on the manufacturing defects; he is only loss assessor. Both the reports are almost of identical. The opposite parties have reiterated their willingness to have examination of the vehicle by a qualified third party expert, in the written version filed by them. In view of the above facts and circumstances , we are not inclined to accept Ex.A26 and A27 reports in proof of the facts that there are mechaniical defects in the subject vehicle.

The specific case of the opp.parties is that they have replaced the gear box. Both the surveyors have nowhere in their above said reports, expressed any difficulty in respect of the gear box . But still the complainant complains about the gear box in the complaint filed on 25.8.2010. The opposite parties have filed Ex.B1, copy of technical analysis report dt.14.3.2010 issued by qualified technician Mr.Ramakrishna Surabhi from opposite party no.1, who examined the vehicle on 14.3.2010 at the work shop of opposite party no.3. As seen from Ex.B1, the technician had taken various tests of the vehicle and categorically stated that apart from other defects, the main defect like marginal deviation at left hand side as compared to right hand side have been rectified. As rightly observed by the District Forum basing on Ex.A22, the vehicle gate pass , no prudent man will take the vehicle from the work shop without the main defects being rectified and that by the date of Ex.B3, copy of the Gate Register issued by opposite party no.3 , the vehicle was road worthy as on 25.3.2010 and the meter reading has shown only 568kms. The complainant has also failed to show that the vehicle was lying idle all through and it was not used at all. Under these circumstances, in our considered view, the complainant is not entitled to the replacement of the subject vehicle with new one.

Further, in the complaint the complainant has categorically stated” the complainant herein is a reputed business man in Visakhapatnam and Engineering Contractor having diversified business activities in and around Visakhapatnam. As a reputed business person he wanted to purchase perfect and comfortable motor car for his daily use”. Admittedly the complainant is also a partner/owner of M/s. Swagath Road Lines. These admissions made by the complainant in the complaint establish that the subject vehicle is purchased for use associated with the business/commercial activities undertaken by him, as contended by

the opposite party. Therefore, we are of view that the vehicle was purchased by the complainant for commercial purpose and any purchase for commercial use does not constitute ‘consumer dispute’ and the buyer of the vehicle is not a ‘consumer’ under Section 2(i)(d) of the Consumer Protection Act. The complaint is therefore not maintainable under law.”

6. Shri Suyodhan Byrapaneni, Advocate for the petitioner has contended that the

impugned order of the State Commission is based on incorrect appreciation of facts. It is

argued that the State Commission has failed to appreciate that the subject vehicle had

been giving problem from the date of purchase and it remained with the OP for about 25

days for rectification of defects, which could not be rectified. It is further argued that State

Commission has failed to appreciate that on 25.03.2010, the petitioner took the delivery of

the subject vehicle from the service station under protest and that as per the certificates

issued by the independent technical experts, there was a defect in the vehicle in as much

as its steering had dragged towards the left and because of that defect, driving of vehicle on

highway or in the traffic was unsafe. It is further contended that State Commission has

committed a grave error in holding that the subject vehicle was purchased by the petitioner

for business / commercial activity without there being any evidence to substantiate that

finding. Learned counsel for the petitioner has thus urged us to allow the revision petition,

set aside the impugned order and award proper relief to the petitioner.

7. Learned counsel for OP No.1 & 2 have argued on similar lines in support of the

impugned order. They have contended that revision petition is liable to be dismissed solely

on the ground that vehicle in question was purchased in relation to the commercial activity

of the petitioner. As such, the petitioner is not covered under the definition of consumer as

defined under section 2 (1) (d) of the Consumer Protection Act , 1986 (in short, ‘the Act’). It

is further contended that both the foras below have returned a concurrent finding after due

appreciation of the evidence and the National Commission in exercise

of revisionaljurisdiction as conferred under section 21 (b) of the Act has no powers to

appreciate the facts. It is further contended that there is nothing on the record which may

suggest any jurisdictional error on the part of the foras below or that the impugned orders

suffer from material irregularity or illegality which may call for interference by this

Commission. It is also argued that the reports of the technical experts relied upon by the

petitioner are of no avail to the petitioner firstly because those reports have been prepared

at the back of the respondents and also for the reason that aforesaid reports do not

establish that there was any manufacturing defect in the car. Learned counsel for the

opposite parties have drawn our attention to the technical inspection report of

Ramakrishna Surabhi according to which, the vehicle in question was roadworthy and no

defect was found thereunder. Opposite parties have thus pressed for dismissal of revision

petition.

8. We have considered the rival contentions and perused the record. The case of the

petitioner as projected in the complaint is that after taking delivery of the car, the

complainant noticed that the gear box of the car was defective as it was not engaging the

reverse gear and also that there was a drag towards the left on the steering of the

car. Admittedly, the gear box have been replaced by the opposite parties and now there is

no deficiency in the functioning of the gear box. This fact is also substantiated by the

certificates given by the technical experts A.Chandrasekhra Rao and R.V.S.Sharma, who in

their opinion has pointed out only one defect i.e. the drag on the steering of car towards the

left.

9. Thus, only dispute which requires consideration of this Commission is whether or

not the above noted defect regarding drag towards the left was set right by the opposite

party service station. In this regard, we have got three expert reports. The complainant has

relied upon the reports of A.Chandrasekhra Rao and R.V.S.Sharma whereas the opposite

parties are relying upon the technical report of the manufacturer, namely,

Ramakrishna Surabhi. According to the reports relied upon by the complainant, a drag

towards the left was found on the steering of the car whereas according to the technical

report of Ramakrishna Surabhi, there was no defect in the functioning of the car. Learned

State Commission vide a reasoned order reproduced above has declined to accept the

inspection reports relied upon by the complainant and returned a concurrent finding of

dismissal of complaint. We have no reason to interfere with the aforesaid finding. It may be

noted that National Commission while sitting in revisional jurisdiction under section 21 (b) of

the Act have limited jurisdiction and it has no power to reappreciate the facts unless it is

pointed out that findings of the foras below is perverse or suffers from material

irregularity. Counsel for the complainant has failed to point out any perversity or material

irregularity or jurisdictional error in the orders of the foras below. Therefore, we find no

reason to interfere with the impugned order, which is based upon rational analysis of the

evidence.

10. Coming to the other aspect of the matter. In order to maintain a consumer

complaint under the Act, the petitioner has to establish that he is a consumer. The term

‘consumer’ is defined under section 2 (1) (d) (i) of the Act as under:

"consumer" means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.”

11. On reading of the above it is clear that if the subject goods are purchased for resale

or for any commercial purpose, the purchaser of such goods is excluded from the definition

of consumer. In order to find answer to this question, we directed the petitioner to file an

affidavit indicating whether or not he took benefit of the depreciated value of the car in his

Income Tax Returns. The complainant petitioner in para 5 of his affidavit dated 06.03.2013

has confirmed that he did take benefit of the depreciation of the value of the car for the

purpose of his income tax liability for the assessment years 2010-2011, 2011-2012 and

2012-2013. From this it is evident that petitioner purchased the car for commercial purpose

and that is why he took benefit of depreciation in value for the purpose of Income

Tax. Since the car was purchased in relation to business of the petitioner i.e. commercial

purpose, in our considered view, the petitioner do not fall within the definition of term

‘consumer’ noted above. Therefore also, he cannot maintain the consumer complaint under

the Consumer Protection Act, 1986. Therefore, in our view, the finding of the State

Commission in this regard cannot be faulted.

12. In view of the discussion above, we do not find any jurisdictional error, material

irregularity or illegality in the impugned order which may call for interference by this

Commission. Revision petition is therefore dismissed. No order as to costs.

………………………….Sd/-

(AJIT BHARIHOKE, J)

( PRESIDING MEMBER)

…………………………Sd/-

(SURESH CHANDRA)

MEMBER

Am/


REVISION PETITION No. 3057 of 2013

(From the order dated 25.02.2013 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in Appeal no. 558 of 2012)

With IA No. 5311 of 2013 (Stay)

Branch Manager State Bank of Travancore Valakom Branch Ernakulam District Kerala

Petitioner

Versus

Shaila Jain Wife of Late N P Jain (Nellikuzhy) Palackamattathil House Kunnackal P OMuvattupuzha

Respondent

BEFORE:

HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER

HON’BLE MRS REKHA GUPTA MEMBER

For the Petitioner Mr I S Bakshi, Advocate

Pronounced on 4th March 2014

ORDERREKHA GUPTA

Revision Petition no. 3057 of 2013 has been filed under section 21 (B) of

the Consumer Protection Act, 1986 against the order dated 25.02.2013 passed by the

Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (‘the State

Commission’) in appeal no. 558 of 2012.

2. The facts of the case as per the petitioner/ opposite parties are that the

respondent/complainant and her husband had jointly availed a housing loan from the

petitioner. The loan number was 67015249089. The second opposite party (OP) before the

District Forum had asked the respondent and her husband to take a SBI Life

Insurance Policy so as to indemnify the repayment of loan amount in the event of the death

of the respondent or her husband. Accordingly, Rs.33,300/- was retained towards insurance

premium and only disbursed Rs.4,50,000/- out of the sanctioned loan amount of

Rs.4,83,300/- (Rupees four lakh eighty three thousand three hundred only). On enquiry, it

was learnt that it was a usual practice to give insurance coverage to all housing loans.

3. The respondent and her husband had paid the EMI Rs.5,010/- promptly till April 2008.

The husband of the respondent met with an accident on 23.04.2008 and was in the ICU for

two months and he died on 30.06.2008. Hence there occurred a break in repayment of

three months. The EMI for three months was paid in September 2008.

4. Though, as per the insurance policy conditions, the respondent need not pay the

future EMI’s of the loan, the second OP before the District Forum coerced the respondent

for the remittance of EMI’s and accordingly the respondent paid Rs.79,000/- till March 2010.

5. The respondent approached the second OP for getting the insurance policy benefits.

But OP rejected the request stating that they had omitted to transfer the insurance premium

amount to the insurance company. Thereafter, the matter was brought to the notice of the

petitioner – Bank. But no reply was given to the respondent till date.

6. Petitioners were duty bound to transfer the insurance premium amount of Rs.33,300/-

to the insurance company before the disbursal of the first instalment of the loan. The

omission on their part to transfer the amount retained towards insurance premium to the

insurance company amounts to deficiency of service.

7. Petitioners were duty bound to waive the future EMI’s from 6/2008 onwards, i.e., after

the death of respondent’s husband. Respondent was entitled for the refund of Rs.79,000/-

collected from here after the death of her husband.

8. The respondent was entitled for a direction to the petitioner to waive of future EMI’s

from 6/2008 onwards and also for the refund of Rs.79,000/- along with interest at the rate of

13% per annum from today.

9. The written reply was filed by opposite party no. 2 before the District Forum. It was

admitted that the second opposite party before the District Forum had sanctioned a housing

loan to the respondent and her husband on 22.07.2006. They, however, denied the further

averments that at the time of availing the loan facility, the 2nd OP before the District Forum

asked the respondent and her husband to take an insurance policy so as to indemnify

the repayment of loan amount, in the event of death of the respondent’s husband and that

the amount of Rs.33,300/- was retained by the 2nd OP before District Forum towards the

insurance premium and that only an amount of Rs.4,50,000/- out of the sanctioned loan

amount of Rs.4,83,000/- alone was disbursed.

10. They further stated that OP no. 2 before District Forum, as part of the procedure

adopted by the Bank had informed the respondent and her husband about the facility of

taking a life insurance policy also at the time of availing the loan facility. It was also

informed by the OP no. 2 before the District Forum that taking insurance policy was only

optional. The respondent or her husband did not exercise any option in this regard. They

also did not authorise OP no. 2 before District Forum to take any insurance premium.

None of the records available discloses the fact that the parties applied

for the insurance policy and that policy was issued by an

insurance company to the respondent and her husband. The party did not opt

for the policy and hence, there was no occasion for the 2nd OP before the

District Forum to retain the amount of Rs.33,300/- as insurance premium.

While availing the housing loan of Rs.4,83,300/- by the respondent and

her husband, necessary documents including Medium Term Loan agreement

were executed by them. All the documents executed by the respondent and

her husband show that the Medium Term Loan (housing loan) was availed on

condition that the loan amount will be repaid in 180 installments with EMI of

Rs.5010/-. They were paying the amount promptly till April 2008 but there

was break of repayment due to the demise of respondent’s husband. The

payment of EMI for three months in September 2008 was also not disputed.

Since no insurance policy was found to be taken by the respondent and

her husband from any insurance, the OP before the District Forum did not

transfer the insurance premium amount of Rs.33,300/- to any insurance

company and hence, it cannot amount to deficiency in service on the part of

the OP before the District Forum.

The respondent is one of the co-borrowers in the housing loan and she is

duty bound to remit the EMI in terms of the agreement and the OP before the

District Forum is entitled to receive the instalments as paid by the respondent

in repayment of the loan.

11. Vide order dated 31.12.2011 District Consumer Disputes Redressal Forum at

Ernakulam (‘the District Forum’) had allowed the complaint and has observed as under:

“Ext. A1 are the copy of savings pass book of the complainant and the specifications of the insurance. On perusal of Ext. A1 specifications it is specifically mentioned that “AVAILABLE SBI LIFE INSURANCE” the benefits of policy and attractions of the same. According to the complainant the 2nd opposite party sanctioned loan amount of Rs. 4,83,300/-. however disbursed only Rs. 4,50,000/-. The remaining amount of Rs. 33,300/- was retained by the 2nd opposite party towards insurance premium. In Ext. A1 pass book goes to show that the loan amount was disbursed by three instalments. The instalment amounts are Rs. 1,35,000/-, Rs. 1,80,000/- and 1,35,000/- and totaling Rs. 4,50,000/- Ext. B1 sanction letter would show that the 2nd opposite party has sanctioned Rs. 4,83,300/- as loan amount. The 2nd opposite party vehemently denied that they haven’t retained Rs. 33,300/- for the purpose of insurance premium. But they did not adduce any evidence in this Forum to substantiate that they had disbursed the entire sanctioned amount to the complainant. The opposite parties at least ought to have produced A/C statement pertaining to the loan account of the complainant. No evidence is before us to show that the opposite parties duly informed the complainant and her husband that taking insurance policy is optional. The learned counsel for the complainant relied in a decision rendered by Hon’ble National Commission in SBI Life Insurance Co. Ltd. Vs. Asha Dixit & ANR. 1 (2011) CPJ 81 (NC) The Hon’ble National Commission

found that is responsible for, not completing documentation with regard to the insurance premium and the bank is liable to indemnify the loss. In the instant case though the 2nd opposite party collected the insurance premium from the complainant they failed to avail insurance policy in spite of receipt of the premium. The above conduct of the 2ndopposite party amounts to deficiency in their service.

In view of the above we are of the opinion that the opposite parties are liable to refund the amount of Rs. 79,000/- received as EMI after the death of the complainant’s husband to the complainant with interest. We are not ordering any costs since we have already ordered refund of the amount with interest.

Accordingly, we partly allow the complaint and direct that the opposite parties shall jointly and severally refund Rs. 79,000/- to the complainant with 12% interest p.a. from the date of complaint till realization.

12. Aggrieved by the order of the District Forum, the petitioner filed an appeal before the

State Commission. The State Commission vide their order dated 25.02.2013 dismissed the

appeal and confirmed the order of the District Forum. The State Commission while

dismissing the appeal observed that:

“This Commission heard in detail both sides and perused the evidence, fact and circumstances of the case. It is seeing that the forum below passed the order on the basis of strict provisions of law and evidence. It is legally sustainable. The appellant/ opposite party bank kept the premium which collected from the complainant and they did not remit the insurance company. This is the consequence, for non-issue of a policy by the insurance company to the complainant. The appellant/ opposite party is totally deficiency on their part in non-transfer the collected premium amount to the insurance company on behalf of the complainant. There is no apparent error in the order passed by the forum below. It is legally sustainable. This Commission uphold the decision of the forum below.

In the result, this appeal is dismissed and confirmed the order passed by the forum below”.

13. Hence, the present revision petition.

14. The main grounds for the revision petition are that:

The State Commission has also failed to appreciate that having earlier opted for

availing the benefits of Life Insurance Cover by joining the Group Insurance Scheme

of the SBI life Insurance Co. Ltd., and further having also got sanctioned from the

petitioner Bank, the additional loan amount of Rs.33,300/- to cover the insurance

premium, the respondent and her husband failed and neglected to complete the

requisite formalities of submitting the consent-cum-authority letter as well as

Declaration of Good Health in the prescribed format to the Petitioner Bank for its

onward submission to the insurance company along with the premium.

The State Commission has also failed to appreciate that due to their own fault

and negligence, the loan account of the respondent was not covered under the

benefits of insurance due to non-submission of the requisite and mandatory consent-

cum-authority letter as well as a Declaration of Good Health in the prescribed format.

The State Commission has grossly erred in concurring with the findings of the

District Forum regarding payment of insurance premium, ignoring the fact that the

respondent had never paid insurance premium to the petitioner and in fact the

amount of Rs.33,300/- was additionally sanctioned in favour of the respondent, in

addition to the actual loan amount of Rs.4,50,000/- to enable them to pay the

insurance premium which amount remained unutilised due to non-completion of the

requisite formalities by the respondent and her husband.

The State Commission as erred in holding that the petitioner had disbursed only

Rs.4,50,000/- to the respondent as was evident from the entries made in the pass

book, whereas, the actual fact was that the total loan amount was Rs.4,50,000/- and

the amount of Rs.33,300/- was additionally sanctioned by the petitioner Bank to

enable the respondent and her husband to pay the insurance premium was left

unutilised on account of the lapses and omission on the part of the respondent and

her husband to complete the requisite formalities of submitting the consent-cum-

authority letter as well as a declaration of good health in the prescribed format to the

petitioner bank for its onward submission to the insurance company along with the

premium of Rs.33,300/-.

The State Commission has failed to appreciate that the statement of account of

the loan account of the respondent clearly defects the amount of Rs.4,50,000/- as

housing loan, while the amount of Rs.33,300/- was additionally sanctioned to pay

insurance premium by the respondent.

15. We have heard the learned counsel for petitioner and have also carefully gone

through the records of the case.

16. It is an undisputed fact that the petitioner- Bank had sanctioned loan of Rs.4,83,300/-

to Shri N P Jain and Smt Shaila Jain vide sanction letter dated 22.07.2006. It is also clear

from the proposal form on record that as per column no. 21, the loan required from the bank

was only Rs.4,50,000/-. In the declaration however they have said they are applying for

housing loan of Rs.4,50,000/- plus Rs.33,300/-. The agreement letter mentions the

document to be executed before availing the loan as follows:

(i) A - 5(ii) Memorandum of term loan agreement for housing loan granted to

purchaser(iii) Sanction letter

17. Herein, document to be filed for availing the insurance which was offered by the bank

has not been mentioned. As per the details of the scheme of Life insurance Cover to

Housing Loan Borrowers of State Bank Group the objective of the scheme is to provide life

insurance cover to housing loan borrowers of the Bank as protection against risk of death

due to any reasons during the tenure of the loan.

18. As per the scheme, in the event of death of the borrower at any time during the tenure

of the loan, the SBI Life will assume the liability towards the repayment of the outstanding

loan amount including interest as per the original EMI schedule. SBI Life would pay the

outstanding loan amount to the branch upon receipt of documents evidencing the death of

the borrower (in case of loans granted on floating rate of interest basis, the amount payable

and the term of insurance would not exceed the outstanding amount and term calculated on

the basis of a fixed interest rate of 11% per annum). The Life insurance cover on the above

lines was an optional facility that would be available at the branches of State Bank Group. It

was on this basis that in addition to the loan amount required by the respondent, the

petitioner had added Rs.33,300/- as additional amount equivalent to the insurance premium

amount for the duration of the housing loan as additional loan to the borrower. Clause 15

also states that there would not be any detailed insurance proposal form required from the

housing loan borrowers. The cover would be available based on a consent letter from the

borrower addressed to the branch where he/ she avails the housing loan expressing his/ her

consent to join the group insurance scheme and acceptable proof of age. We cannot

believe that without obtaining a consent letter from the borrower, the bank on its own

sanctioned Rs.33,300/- the additional loan towards the premium of the insurance policy.

Hence, it was incumbent on the petitioner to inform the respondent of any other required

document or any procedure to be followed for obtaining insurance cover which as per the

scheme should have been effective from the date of giving the loan, as it was to cover

against risk of death due to any reason during the tenure of the loan. Clause 9 of the said

scheme clearly states as follows:

9. Facility of additional loan from the branches for the insurance premium amount: If required by the housing loan borrower, concerned branches may grant an additional amount equivalent to the insurance premium amount for the duration of the housing loan, as an additional loan to the borrower. This amount will be on top of the housing loan amount, and the branch will remit the premium amount direct to SBI Life as a loan disbursement. For loan amount or outstanding loan amount more than Rs.7.5 lakh, please report to the contents of [Annexure A 1(a)].

In the case of existing housing loans, the borrowers are eligible to seek from the branch an additional loan amount corresponding to the life insurance premium amount for the remaining tenure of the housing loan. Such loan amount will be repayable in equal instalment along with the EMI for the housing loan”.

19. Hence, the defence of the counsel for the petitioner stands vitiated by this clause

which clearly states that the branch has to remit the premium amount directly to SBI Life as

loan disbursement.

20. Thus, in view of the facts stated above no jurisdictional or legal error has been shown

to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since,

two Fora below have given a detailed and well-reasoned orders which do not call for any

interference nor they suffer from any infirmity or erroneous exercise of jurisdiction or

material irregularity. Thus, present revision petition is hereby, dismissed with cost of

Rs.20,000/- (Rupees twenty Thousand only).21. Petitioner is directed to pay Rs.10,000/- directly to the respondent by way of demand draft within four weeks and the balance amount of Rs.10,000/- be deposited by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case, the petitioner fails to pay and deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% per annum till realization.

22. List on 4th April 2014 for compliance.

Sd/-

..………………………………

[ V B Gupta, J.]

Sd/-

………………………………..

[Rekha Gupta]

Satish



(From the order dated 02.07.2010 in First Appeal No. 1434/2004 of Uttar Pradesh State Consumer Disputes Redressal Commission)

M/s Mohit Properties and Constructions through Proprietor Krishan Pratap r/o 251, Panki, Kalyanpur Kalan Kanpur, Uttar Pradesh

... Petitioner

Versus

Meera Singh w/o Harbansh Singh r/o H-345, Avas Vikas Yojna No. 1, Kalyanpur Kanpur, U.P.

… Respondent

BEFORE




For the Petitioner Mr. Nikhil Jain, Advocate

For the Respondent Mr. Yogendra Singh, Advocate

PRONOUNCED ON : 4th MARCH 2014O R D E R PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer

Protection Act, 1986 against the impugned order dated 02.07.2012, passed by the U.P.

State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA

No. 1434/2004, “M/s Mohit Properties & Constructions versus Meera Singh” vide which,

while dismissing the appeal, the order dated 20.11.2013, passed by District Consumer

Disputes Redressal Forum, Kanpur City in consumer complaint No. 739/2003, allowing the

said complaint, was upheld.

2. Brief facts of the case are that the complainant/respondent Meera Singh filed the

consumer complaint in question, saying that she had purchased plots bearing no.

34A.H.8.A admeasuring 200 sq. yard and 10 sq. yard and that she had deposited a sum of `

50,000/- and ` 10,000/- on 2.09.2000 and 1.12.99 vide receipts no. 893 and 202

respectively with the opposite party. The OP assured to handover the possession of the

said plots, but they refused to execute the sale-deeds in her favour and also refused to

refund amount of ` 60,000/- received by them. The complainant sent a registered notice to

the OP on 2.09.2001, which was not replied to by the OP. The OP told her that a sum of `

10,000/- had been refunded to her husband. They refused to refund amount of `50,000/-

also. The complainant also stated that there was civil litigation between her and her

husband. She demanded through the complaint that a sum of `60,000/- deposited by her

should be refunded alongwith ` 50,000/- for financial compensation and ` 25,000/- for

mental agony. The District Forum vide their order dated 20.11.2003, allowed the

complaint, directing the OP to pay a sum of ` 60,000/- alongwith interest @8% p.a. from the

date of deposit and ` 250/- as litigation expenses. An appeal filed against this order was

ordered to be dismissed by the State Commission vide impugned order dated 2.07.2010. It

is against this order that the present petition has been made.

3. At the time of hearing before us, the learned counsel for the petitioner stated that the

full amount had been refunded to the complainant’s husband by the petitioner and hence,

there was no substance in the consumer complaint. He further stated that the order passed

by the District Forum was an exparte order and the petitioners were never served with any

notice, regarding the proceedings pending before the District Forum. In the memo of

appeal filed before State Commission, they had taken the plea that the petitioner had no

knowledge about the said proceedings, as no notice of any kind was received by them. The

petitioner came to know about the proceedings in the consumer courts only

after recovery certificate under section 25 of the Act was received by them. The learned

counsel has also drawn our attention to copy of receipt from Harbansh Singh, the husband

of complainant/ respondent, in which it has been stated categorically that Harbansh Singh

received the amount of `60,000/- from the petitioner.

4. In reply, the learned counsel for the respondent stated that proper service of notice

had been affected upon the petitioner/OP and only after that, exparte proceedings were

ordered to be taken against them. He further stated that it was the duty of the petitioner to

refund the money to the respondent and not her husband, as the booking was done in the

name of the respondent.


to the arguments advanced before us. The material point to be considered in the present

case is regarding the service upon the petitioners during the hearing of the consumer

complaint by the District Forum. It has been stated in the order of the District Forum as

follows:-“The opposite party was served with notice through registered post. The postal receipt is available on record file. The registered notice returned from the Postal Department with remarks “Not claimed”. Therefore, considering the notice to have sufficiently been served upon the Opposite Party, the exparte hearing was initiated against the Opposite Party. ”

6. It is clear from the above order of the District Forum that the registered notice to the

petitioner/OP was returned by the Postal Department with remarks “not claimed”. The

District Forum took erroneous view that the notice had been properly served upon the

petitioner/OP. Had the petitioner refused to accept the service of the notice, the District

Forum was well within their powers to order exparte proceedings before them. The order of

the District Forum is, therefore, perverse in the eyes of law as the same has been passed

without affecting due service of notice upon the petitioner. In the grounds of appeal before

the State Commission, the petitioners/OP had taken the plea that they never received any

notice during proceedings before the District Forum. However, the State Commission still

dismissed their appeal.

7. In the light of the foregoing discussion, in the interest of justice, it shall be appropriate

to set aside the orders of the District Forum and the State Commission and to remand the

case back to the District Forum with the direction that they should hear the parties again

and pass a fresh order after taking into account the facts and circumstances of the case,

and we order accordingly. The revision petition is, therefore, accepted, orders passed by

the District Forum and State Commission are set aside and the matter is remanded back to

the District Forum for taking a fresh decision after taking on record written statement of OP

and hearing the parties who have been directed to appear before the District Forum on

28.05.2014. The OP shall file written statement on that day. There shall be no order as to

costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/


FIRST APPEAL NO. 888 OF 2013

(From the order dated 26.11.2013 in CC No. 45/2010 of Odisha State Consumer Disputes Redressal Commission)

Sri Jasobanta Narayan Ram s/o Sri Ram Narayan Ram Vill/PO : Neulpur Via : Chandikhol District : Jajpur

... Appellant

Versus

The Branch Manager, L & T Finance Limited, Plot No. 428/3818, Jaydev Nagar, Bhubaneswar – 751002 Khurda.

… Respondent

BEFORE




For the Appellant(s) Mr. Shakti K. Pattanaik, Advocate

PRONOUNCED ON : 4th MARCH 2014O R D E R PER DR. B.C. GUPTA, MEMBER

This appeal has been filed under section 19 of the Consumer Protection Act, 1986

against the impugned order dated 26.11.2012 passed by the Odisha State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in Consumer Complaint

No. 45/2010, “Sri Jasobanta Narayan Ram versus The Branch Manager, L&T Finance

Limited” vide which the said complaint was ordered to be dismissed. As stated, the

appellant/complainant is the registered owner of Tata LPT – 2515 truck, bearing registration

no. OR-09J-2645 which was purchased after availing a loan of `11.36 lakh from the

respondent/OP L&T Finance Limited. He entered into a loan-cum-hypothecation

agreement on 10.08.2007, according to which, the total amount of loan including the

interest amounting to ` 15,91,499/- was to be repaid in 47 instalments of ` 32,117/- during

the period from 20.08.2007 to 20.07.2011.

3. Interestingly, it has been mentioned in para 13 of this very complaint that the

complainant had availed loan for two trucks in a single agreement. However, the details

about the second truck have not been given.

4. As per the complainant, he engaged truck no. OR-09J 2645 for transportation of iron

ore from Joda-Barbil Mines to Paradeep Port. He used to pay the instalments of loan in

time as per the agreement. However, due to heavy rains during rainy season, the mining

work stopped, due to which the vehicle remained idle and he could not pay some of the

instalments. He was required to pay a sum of ` 9,31,393/- in 29 instalments till 20.01.2010

but he paid

` 8,31,208/- during the said period. The said vehicle was seized by certain persons from

the OP on 17.02.2010, when it was returning from Paradeep after unloading the iron

ore. According to the complainant, he was never served with any notice before

the seizure of the vehicle. The complainant then filed consumer complaint in question,

requesting for a direction to the OP to return the vehicle with compensation for alleged

illegal seizure and for loss with interest. The complainant demanded a sum of ` 25,36,000/-

from the OP.

5. In their version filed as written statement in reply to the complaint, the respondent /

OP stated that the complainant did not fall under the definition of ‘consumer’ and his

relationship with the OP was that of borrower and lender. The loan had been taken

for commercial purpose and not for earning his livelihood and hence, he was not a

‘consumer’ as per section 2(d)(ii) of the Consumer Protection Act, 1986. The OP had not

shown any deficiency in service in the case as the complainant was a habitual

defaulter. Further, as per the loan-cum-hypothecation agreement, the disputes and

differences between the parties are to be referred for arbitration and the OP had already

taken action in this regard.

6. It has also been stated by the OP that at the time of repossession, a sum of `

3,30,794/- was due against the complainant and he did not pay any heed to the request of

the OP to clear the said dues. The OP were, therefore, within their right to repossess the

vehicle on 03.03.2010. The OP had issued a termination-cum-presale notice to the

complainant, but he did not respond to it, and as such, the vehicle was sold on

29.03.2010. The OP stated that the said complaint should be dismissed.

7. The State Commission vide impugned order dated 26.11.2013, after considering the

plea of the parties, concluded that the repossession of the vehicle by the OP was not illegal

as a sum of about ` 1 lakh was pending against him by 20.01.2010. The State Commission

stated in the concluding paragraph of their order as follows:-“But as it appears, the vehicle has not yet been sold to any third party. Had it been sold, the opposite party would not have forgotten to mention the name of the person to whom it was sold and the sale price thereof. The opposite party has also not filed the sale deed in proof of the fact that the vehicle has been sold. So, if it would be sold, pre-sale notice shall be issued to the complainant and it would be sold in his presence unless he refused to receive the notice or to attend the auction sale. If at all it has been sold, the sale price of the vehicle in question would be intimated to the complainant. The sale proceeds shall be adjusted to the pending dues and if it exceeds the dues the balance amount shall be returned to the complainant. The entire exercise shall be completed within one and half months of receipt of a copy of this order. With the aforesaid observation, the consumer complaint stands dismissed.”

8. The present appeal has been filed against the above order of the State Commission,

saying that the recovery should be affected by following the due process of law and not by

use of force. The respondent had failed to produce any documents to prove their case and

no pre-sale notice was issued, before the alleged sale of the vehicle.

9. At the time of hearing before us, learned counsel for the appellant has drawn our

attention to the rejoinder to the written statement filed by the appellant/complainant before

the State Commission in which he has stated that the complainant had availed the loan for

earning his livelihood. He, however, admitted that the complainant had purchased two

trucks after taking loan from the OP, but the other truck was lying idle and not being

used. The learned counsel stated that to meet the ends of justice, a first appeal should be

taken as a continuation of the proceedings and hence should be heard and decided on

merits. 10. We have examined the entire material on record and given a thoughtful consideration

to the arguments advanced before us. Admittedly, the appellant/complainant had

purchased two trucks with the loan raised from the respondent/OP. The version given at

the time of arguments that the other vehicle was just lying idle, cannot be believed to be

true. The appellant has not been able to show as to how the purchase of two trucks does

not fall within the meaning of commercial transaction. The Hon’ble Supreme Court have

observed in their order passed in “Laxmi Engineering Works versus PSG Industrial Institute”

[as reported in 1995 AIR SC 1428] that a person who purchases an autoriksaw, a car or a

lathe machine or other machine to be plied or operated exclusively by any person could not

be a consumer. In the present case, the appellant/complainant has not been able to show,

how he can qualify to come under the definition of consumer under the Act when he has not

given any clarification about the use of operation of the other truck. The complaint,

therefore, deserves to be dismissed on this ground alone that the complainant does not fall

within the definition of ‘consumer’ as per the Consumer Protection Act, 1986.

11. On merits also, it has been clearly admitted by the complainant that he was a

defaulter on the date of repossession of the vehicle by the OP. He also admits that it has

been provided in the loan-cum-hypothecation agreement that OP shall have the right of

repossess the vehicle in the case of defaulter. The deficiency in service on the part of the

OP has not been proved anywhere.

12. In the light of above discussion, we do not find any infirmity, material illegality,

irregularity or jurisdictional error in the impugned order passed by the State

Commission. The State Commission have rightly observed that if the vehicle has not been

sold, a pre-sale notice shall be issued to the complainant and the vehicle would be sold in

his presence, unless he refused to receive the notice or to attend the auction sale. The

State Commission have also observed that if the vehicle has been sold, the sale-price

would be intimated to the complainant and the sale proceeds shall be adjusted to the

pending dues and if it exceeds the said dues, the balance amount shall be returned to the

complainant. We do not find anything wrong in this order. Hence, the present appeal

is ordered to be dismissed at admission stage and the order passed by the State

Commission is upheld with no order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/


CONSUMER COMPLAINT NO. 143 OF 2013

1. Ved Kumari

2. Ashish Kaul

Both R/o 96/C, Pkt-4, Mayur Vihar, Phase-1, Delhi-91

… Complainants

Versus

1. M/s Omaxe Buildhome Pvt. Ltd. Through its –CMD, Shri Rohtas Goel, 10, Local Shopping Center, Kalkaji, New Delhi-19

2. New Okhla Industrial Development Authority Administrative Complex, Sector-6, Noida -201301 District Gautam Budh Nagar Uttar Pradesh

….Opp. Parties BEFORE:

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

For the Complainants : Mr. Sushil Kaushik, Advocate

For the Opp. Parties : Mr. Rohit K. Aggarwal, Advocate with Mr. Rajeev Bhatia, A.R. for OP-1

PRONOUNCED ON : 5th MARCH, 2014

ORDER


1. Both the complainants in this complaint, applied for a flat with M/s Omaxe

Buildhome Pvt. Ltd., OP-1. Possession of the said flat has not been given to the

complainants, in time. Thereafter, this

Complaint was filed before this Commission, on 09.05.2013, with the

following prayers:-

“a) For the Opposite Party No. 1 to give lawful possession of

the Apartment/Flat to the Complainant after completion of

all finishing works of the said flat.

b) For the Opposite Party No. 1 not to carry out any & all

kinds of construction on the said plot during pendency of the

present proceedings and further direct the Opposite Party No. 2 to

carry out detailed inspection of the premises and submit a report

to the Hon’ble Commission as regards status of all constructible

areas. To ascertain the extent of illegal construction carried out by

Opposite Party No. 1 on the said plot.

c) For the Opposite Party No. 1 from offering unlawful possession

without execution of sub-lease rights in favor of the allottees

and/or to create any third party rights on the said project,

further sell/allot any space in any of the towers of Group Housing

project at Plot NO. GH-01,02 & 03 situated in Sec-93B, Noida

during the pendency of the present proceedings.

d) For the Opposite Party No. 1 to fulfill all its contractual

dues towards Opposite Party No. 2.

e) For the Opposite Party No. 2 to stay any additional

increase in FAR or any other scheme

that is against larger public interest or grant of further Occupation

Certificate for remaining part of the project on the said plot till the

pendency of the present proceedings.

f) For the Opposite Party No. 1 to deduct from

maintenance security any amount for maintenance of the said

project till sub-lease rights are not created and Physical

possession is not handed over to Complainant.

g) For the Opposite Party No. 1 to de-commission/ install

the Cell Phone towers due to high health risk from constant

radiation for the residents.

h) For the Opposite Party No. 1 to install water purifier plant

as per state/Govt. norms thereby eliminating the health hazard for

thousands of families.”

2. However, the principal question which falls for consideration is, “Whether, the

complainants are the ‘consumers’?”. We have heard Sh. Ashish Kaul, the Complainant,

who appeared in person. During the course of arguments he admitted that he has also

applied for four more flats, which are detailed here as under:-

“a) Flat No. 204, Greenwich-A, Grand Omaxe, Sector 93 B, Noida

(U.P.) in the name of Mr. Ashish Kaul & Mrs. Ved Kumari; i.e.,

the Flat which is subject matter of the present complaint.

b) Flat No. 303, Equator Tower, Omaxe Heights, Sector 86,

Faridabad (Haryana) in the name of Mr. Ashish Kaul & Mrs.

Ved Kumari

c) Flat No. 306, Tuntex Tower, Omaxe Heights, Sector 86,

Faridabad (Haryana) in the name of Mr. Ashish Kaul;

d) Flat No.105, Highcliff Tower, Omaxe Heights, Sector 86,

Faridabad (Haryana) in the name of Mrs. Ved Kumari”.

3. The complainant argued that he is a ‘consumer’, as per the Consumer Protection Act,

1986. He admitted that he has booked all these flats for investment and for taking care of

his family in the future. He explained that as a matter of fact, the above said property

consists of two rooms only. He was married subsequently. Their family stands

increased. He wants a three-room flat. He explained that the flat in dispute is situated

in “Omaxe Grand Wood” at Sector 93 B, Noida, which is a flat, having three bed-

rooms. He explained that his family will feel comfortable in that flat and other four flats

are yet to be allotted in their favour. It is mentioned here that out of four flats, three

flats are in the joint names of the complainants and the 4th flat is in the name of Sh.

Ashish Kaul.

4. All these arguments have left no impression upon us. It is apparent that the

complainants are ‘investors’ and they are not ‘consumers’. This view stands fortified by

various following authorities.

5. This Commission, in case titled, Chilkuri Adarsh Vs. ESS ESS

VEE Constructions, III (2012) CPJ 315, has held, as under :-

“Arguments of the learned Counsel have been considered. However, we are of the view that the complaint as presented cannot be maintained before a Consumer Fora, like ours, as the agreement was for the construction of two showrooms, which obviously relate to commercial purpose and the complainant, therefore, will not come within the definition of a ‘consumer’, as per Section 2(1)(d) of the Consumer Protection Act, 1986. This has been the consistent view of this Commission. It has held that even when a consumer has booked more than on

e unit of residential premises; it amounts to booking of such premises for investment/commercial purpose.

This Commission, in the case of Jagmohan Chabra and another Vs. DLF Universal

Ltd., IV (2007) CPJ 199, in a somewhat similar case, held that the complaint was not

maintainable, under the Consumer Protection Act, 1986. It had, therefore,

disposed 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. 6030-6031 of 2008, filed before the Supreme Court which

stands dismissed, vide Apex Court’s order dated 29.09.2008.

6. This Commission, by a Bench, consisting of Justice J.M. Malik and Mr. Vinay

Kumar in the case titled as “Mrs. Savi Gupta Vs. Omaxe Azorim Developers Pvt. Ltd. in

Consumer Complaint No.208 of 2012, decided on 01.10.2012, took the same view.

7. This Commission, by a Bench, consisting of Justice J.M. Malik and Dr. S.M.

Kantikar in Consumer Case Nos. 307 to 309 of 2012, titled M/s Moran Plantation Pvt.

Ltd. & Ors. Vs. M/s Ambience Private Ltd., decided on 02.09.2013, took the similar

view, wherein it was held:-“In the facts of the present case, we maintain

the same view, and while dismissing the complaints, as not maintainable, reserve the rights of the complainants to approach the appropriate Civil Court to seek their remedy, if so advised. They may take advantage of the ruling of the Supreme Court in the case of Laxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583 to seek exclusion of the time spent in prosecuting these complaints before this Commission.

8. Consequently, we are of the considered view that the complainants are not the

consumers. Consequently, this complaint is not

maintainable. Further, before dismissing the complaint, as agreed by the counsel for the

parties, we have taken care of this fact, that the complainants would get the possession

of flat in question so that his ‘so-called’ large family should not suffer due to the

paucity of accommodation. On 26.02.2014, we have passed the following orders:-

“Complainant No. 2 is present in person. Counsel for OP-1 is present. None for OP-2. As prayed by the parties, the opposite party is ready to give the possession without prejudice. Get the registration of the flat done without any further costs. No further charges for registration will be charged. The Registration be done on 03.03.2014.

Complainants are directed to appear before the Registrar, on 03.03.2014 at 10 A.M. as per letter written to them on 21.02.2014.Copy is furnished to the complainant. This order is passed as per the compromise reached between the parties.

Arguments on I.A. No. 36/2014 heard.

Reserved for orders”.

9. Consequently, the Consumer Complaint is hereby dismissed. However, there shall

be no order as to costs.

.…..…………………………

(J. M. MALIK, J) PRESIDING MEMBER

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

dd/1


ORIGINAL PETITION NO. 319 OF 2002 M/s. Navneet Textiles Pvt. Ltd. Through its Manager Shiv Nagar, Krishan Pura Panipat

… Complainant

VersusUnited India Insurance Co. Ltd. LIC Building Panipat

… Opposite Party BEFORE:


For the Complainant : Mr. Himanshu Upadhyay & Mr. Shivam Tripathi, Advocates

For the Opp. Party : Mr. Sanjay Kr. Chhetry, Advocate

PRONOUNCED ON : 5TH MARCH, 2014 O R D E R

JUSTICE J.M. MALIK

1. The long and short of the complaint filed by M/s. Navneet Textiles (P) Ltd., the

complainant, through its Manager, is as follows. The complainant has

got its premises insuredfrom United India Insurance Co. Ltd., OP. On 08.10.2001, at about

7.45 PM, due to short circuit, fire broke out in the factory premises of the complainant. The

matter was reported to the Police as well as the Insurance Company,

OP. According to the complainant, it was a major fire and all the stocks and goods worth

Rs.42,74,309.09 were gutted in fire. The Complainant claimed Rs.42,74,309/- from the OP,

which also included damages to building in the sum of Rs.3,86,231.09, stocks

worth Rs.38,79,330/- and other miscellaneous goods amounting to Rs.4,725/-.

2. The OP appointed a Surveyor. All the documents were furnished to him. However,

the matter was not settled. The Surveyor’s report was also not furnished to the

complainant. The Surveyor visited the premises on 10.10.2001 and again, on

11.01.2002, and in between the documents were furnished. On 04.02.2002, the claim of

the complainant was repudiated. Ultimately, the present complaint was filed before this

Commission on 03.09.2002, with the following prayers :-

“a) Claim amount Rs.42,74,309.09

b) Compensation on account of loss of business, damages and mental pain and agony Rs.25,00,000/-

c) Cost of litigation as assessed by this Hon’ble Commission”.

3. The OP has contested this case.

4. I have heard the counsel for the parties. The learned Counsel

for the complainant vehemently argued that the Surveyor’s report was not furnished to him

by the OP and it is in itself, a deficiency on the part of the OP. He explained that the

report of the Surveyor is not reliable. The Surveyor’s report was prepared by Sh.Vinod

Sharma. The relevant extracts, of which are germane to this case, are reproduced, as

follows.

A. The Heading, under the ‘caption’, “XII. INVESTIGATION”, at para No.3, mentions as

under :-

“3. The Insured did not produce any stock register on our first visit and it was reported that the same is lying with the Chartered Accountant for audit and CharteredAccountant was not available on that day. On our insistence, stock register was produced to us, on the next day, which has definitely been prepared afresh, as it was a brand new register. It implies that stocks register and other records has been manipulated to match the claimed Qty.

4. The Insured reported that Plant is closed for maintenance of machinery from last 10 days. However, it appears that Plant has not been working for long time. No worker was available on both the days of our survey visit neither any maintenance job was going on. Even, no workers were available from whom we could make any enquiry about the fire.

5. The Insured has a sister concern, i.e., M/s. Nidhi Woolen Mills Pvt. Ltd., in the same premises. The said firm was having a big godown adjoining the affected godown of the Insured. The said godown of sister concern was full of stocks and huge Qty. of rags (similar to the Insured’s trade) were lying in the said godown. The Insured did not produce stock register/ records of sister concern, as we wanted to verify and confirm that no stocks of the Insured were shifted to the adjoining godown of sister concern”.

B. The main findings of Sh.B.S.Negi, the Investigator, vide his report dated

31.12.2001, are mentioned as follows :-

“1. The origin of fire as Short Circuit is doubtful.

2. The Insured failed to furnish the details of workers engaged in factory.

3. The Qty. of residue of burnt material is negligible.

4. The Sale was negligible as compared to Production.

5. As per Investigator, the stock was not more than Rs.8.74 lakhs, as the Investigator has not considered the Purchase Bills of Sister Concern, M/s. Nidhi Woolen Mills (P) Ltd., & M/s. A.V.Textiles.

6. The Investigator has concluded that an unsuccessful attempt was made to cover up the alleged claim reporting that damages to goods was caused by Short Circuit, which apparently is doubtful”.

C. Under the Caption, “BASIS”, of the said report, it mentions, as

under :

“There was a huge difference in Qty., reportedly burnt, as estimated by us and as claimed by the Insured. The Insured insisted to settle the claim on the basis of stock records. The stock records were not produced to us for verification immediately on our survey visit. Subsequently, when it was produced , it looked like that it has been prepared afresh. Even, no Accounts records were shown to us, immediately. While scrutinizing the stock records, we have observed that Insured has reportedly purchased stocks from their sister concern, i.e., M/s. Nidhi Woolen Mills (P) Ltd., who are operating from the same premises. Apparently, these are accommodating bills just to inflate the stocks, as there was no payments against these purchases. Why the Insured has bought heavy stocks when it has no ready orders for sale. No satisfactory explanation was given to us. Since these purchases were made without payment and even stocks were not sold out of these purchases, hence, these bills are considered as accommodating bills and are not considered in loss assessment.

Similarly, the Insured purchased stocks worth Rs.2.03 lakhs from M/s. A.V. Woolen Mill (P) Ltd., with whom the Insured has no regular dealings. No payments have been made till date. Hence, these are also considered as accommodating bills rather than actual supply bills. The Investigator has also made a similar

observation about these purchases.

At the time of our survey visit, it was observed that factory has not been working for a long time. The main machines were found open and were not in operation. There was no worker or any other staff except for a Manager and a Chowkidar. We asked the Insured to produce wages records, which they did not have. It was explained that all the workers are hired through a Contractor, who maintains the records. Later on, after almost three months’, copies of wage bills were submitted to us. We are not convinced about the genuinenity of the same, as it appeared to have been made afterwards. No details of production versus wages, i.e., co-relation between two is available with the Insured.

We have also kept in mind about the default of Insured Unit towards the Bank against CC Limit of Rs.20.00 lakhs. It is clear that financially, the Insured was not in sound position to clear the Bank dues”.

D. Lastly, under the Caption, “SUMMARY OF LOSS”, of the said report, it was mentioned,

as under :-

ITEMS AVAILABLE SUM INSURED

(In Rs.)

AMOUNT CLAIMED

(In Rs.)

GROSS LOSS ASSESSED

(In Rs.)

VALUE AT RISK

(In Rs.)

BUILDING 12,00,000/- 3,86,231/- 2,95,543/- 10,40,316/-

STOCKS 40,00,000/- 38,79,330/- 2,26,000/- 2,26,000/-

OTHERS - 8,748/- 4,023/- -

TOTAL 52,00,000/- 42,74,309/- 5,25,566/- 12,66,316/-

LESS POLICY EXCESS

- - 10,000/- -

5,15,566/-

5. The learned counsel for the complainant vehemently argued that this

report should not be relied upon for the following reasons. It merely

mentions that allegation of ‘short circuit’ is doubtful. The counsel has invited my attention

towards the FIR. FIR reveals that as per the allegation made by the complainant itself,

the loss was caused due to ‘short circuit’.

6. I, therefore, find force in the arguments raised by the counsel for the complainant, in

a measure. It is for the OP and nobody else, which is to carry the ball, in proving as to

why did the fire occur?. Mere saying that allegation of ‘short circuit’ is doubtful, will not

suffice. It is quite possible that the building got fire due to ‘short circuit’. The OP

has not properly investigated this case. A clear picture does not begin to jell. It did not try

to collect cogent and plausible evidence from an Electrical Expert It, therefore, stands

proved that due to ‘short circuit’, the fire took place.

7. Counsel for the complainant further submitted that he had filed stock register on

the record. He, however, could not explain as to why the stocks were not

produced before the Investigator, on the very first day. The Stock Register should have

been procured there and then, even if it was lying with the office of his Chartered

Accountant. The Chartered Accountant should have been compelled to open his office

and hand over the Stock Register to the Complainant, under such emergent situation.

8. I have seen the photocopies of the Stock Register. It is crystal clear that they were

prepared in one go. This is in the same handwriting written by the same person, at one

go. Consequently, no reliance can be placed on the evidence produced by the

complainant. This appears to be a manipulated document and an integument of

doubt envelops the whole document.

9. Counsel for the complainant vehemently argued that the defence set up by the OP

that the factory was not working, is false. He has invited my attention towards electricity

bills pertaining to the months of July-August. However, no electricity bill saw the light of

the day for the months of September-October. It is, thus, clear that the factory was not

working in the months of September-October.

10. Now, I turn to the most crucial evidence in Bank Statements. In the month of April,

2001, the Stock was shown at Rs.5,79,480/-. In the month of May, 2001, the Stock

was shown at Rs.6,64,530/-. In the month of June, 2001, it was shown in

the sum of Rs.6,64,170/- . In the month of July, 2001, it was shown at Rs. 6,54,800/- . In

the month of August, 2001, it was shown at Rs.5,79,870/- . In the month of September,

2001, it was shown at Rs.5,77,034/-. The reports of the Bank are in consonance with the

report of the Surveyor. It appears that the Surveyor has rightly come to the conclusion that

the complainant had suffered loss at Rs.5,15,566/-.

11. No Income Tax Returns or Sales Tax Returns were filed. However, the Balance

Sheet and Invoices/Cash Bills were filed on the record.

12. To sum up, I find that there is not even a scintilla of

doubt in my mind regarding the fact that some of the goods were gutted in the fire due

to ‘short circuit’. The doubts entertained by the Surveyor have proved to be puerile and

baseless. In this country, the people are fond of drawing a long bow. The claim made

by the Complainant is on the higher side. The report of the Surveyor is reliable. It matches

with the report of the Bank’s Statements. Consequently, I have no hesitation, to allow

the complaint partly and grant compensation in the sum of Rs.5,15,566/- in favour of the

complainant and against the OP. The said amount be paid by the

OP to the complainant, within a period of 90 days from the date of this

order, otherwise, it will carry interest @ 10% p.a., till realization. The complainant is also

entitled to receive interest @ 9% p.a. from the date of complaint, i.e. 03.09.2002, till its

realization, on the amount of Rs.5,15,566/-.

.…..…………………………


dd/53


REVISION PETITION NO.2221 OF 2012With I.A. No.02 of 2012(Application for Condonation of Delay(Against the order dated 05.04.2011 in Appeal No.FA-2403/2005 of the State Commission, Haryana, Panchkula)

Krishan S/o Sh. Kali Ram, R/o 502, Sector-3, Rewari. Presently at: House No.145-D, Sector-2, Rohtak Through GPA Holder Sh. Narender Singh S/o Kali Ram R/o 137-A, Block –G, Sector-10, Faridabad

… Petitioner

Versus

The Estate Officer Haryana Urban Development Authority Sector-12, Faridabad

…Respondent

BEFORE:

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

HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. H.S. Bhati, Advocate

For the Respondent : Ms. Anubha Agrawal, Advocate

Pronounced on: 5th March, 2014

ORDER


Petitioner/Complainant being aggrieved by order dated 5.4.2011 passed by State

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

Commission’) in First Appeal No.2403 of 2005, has filed the present revision petition under

Section 21(b) of Consumer Protection Act, 1986 (for short ‘Act’). Alongwith it, an application

seeking condonation of delay of 310 days has also been filed.

2. Petitioner had filed a consumer complaint against the Respondent/Opposite Party on

the allegation that Plot No.875 Sector-46 Urban Estate Faridabad was originally allotted to

Sh. Anil Kumar Daver, vide allotment letter dated 10.5.1990. Said Anil Kumar sold the plot

in question to Harinder Singh on 24.4.2004. The petitioner has purchased the said plot from

Harinder Singh, vide re-allotment letter No.14882 dated 19.4.2005. As per version of the

petitioner, he had deposited the entire amount as demanded by respondent but the

respondent failed to deliver the physical possession of the plot in question. It is further the

grievance of the petitioner that the basic amenities in the area were not completed. The

petitioner approached the respondent to deliver him physical possession and to develop the

area, but respondent did not pay any heed to his request. Thus, alleging deficiency of

service and unfair trade practice, petitioner filed a consumer complaint.

3. District Consumer Disputes Redressal Forum, Faridabad (for short, ‘District Forum’),

vide order dated 13.9.2005 allowed the complaint of the petitioner and directed

the Respondent to allot an alternative plot in the same sector in lieu of originally allotted

plot on the similar price and not charge any kind of interest, penalty etc. It further directed

the respondent to pay Rs.1,00,000/- to the petitioner on account of escalation of the

construction price and also to pay Rs.20,000/- on account of mental agony and Rs.2,000/-

as litigation expenses.

4. Aggrieved by the order of District Forum, respondent filed appeal before the State

Commission which was dismissed vide the impugned order.

5. Hence, this revision.

6. We have heard learned counsel for the parties and gone through the record.

7. The main grounds on which condonation of delay have been sought are reproduced as

under;

“2. That the delay of 310 days has occurred in filing the revision petition and

delay has occurred due non service of the notice because the address of the

petitioner was changed and the intimation was duly given to the respondent

vide application no.4318 dated 11.3.2008. It was not in the knowledge of the

petitioner that if there was any appeal was filed by the respondent. The order

of the case was also not received to petitioner as it was not sent at proper

and new address. It was only brought to the knowledge of the petitioner at the

time when application for transfer of the plot/decree was filed. Then petitioner

applied for the copy of the order and which was received on 24.4.2012. Thus

due to aforesaid reason matter could not be filed within limitation.

3. That, therefore, the delay in filing is not deliberate or intentional and the

delay is bonafide and genuine. The petitioner case is likely to succeed on

merits.

8. It is an admitted fact that petitioner was ex parte before the State Commission and that

is why petitioner has taken a plea to the effect in its application for condonation of delay that

he was not in the knowledge of the fact that any appeal was filed by the respondent before

the State Commission nor the order passed by the State Commission was received by the

petitioner as it was not sent at proper and new address. Further, it is the case of the

petitioner that it was only brought to his knowledge, at the time when application for transfer

of plot/decree was filed.

9. In the entire application, petitioner has nowhere stated the date on which he got the

knowledge of passing of the impugned order. Further, petitioner has nowhere mentioned

the date on which he filed application for transfer of the plot. The other plea taken by

petitioner is, that he applied for the copy of order of State Commission which was received

by him only on 24.4.2012.

10. The impugned order was passed by the State Commission on 5.4.2011. On the

certified copy of the same, there is an endorsement that;

“Certified copy of the order supplied free of cost to the parties/counsel

on 3.5.2011.”

11. Thus, it is apparent from the record that free copy of the impugned order had been

supplied to the petitioner, as early as on 3.5.2011.

12. However, the certified copy of the order filed alongwith present petition, was issued

only on 24.4.2012. It goes on to show that it is the second copy of the order which was

obtained by the petitioner.

13. Therefore, it stand established from the record, that petitioner had received the free

copy of order, as early as on 3.5.2011. Under these circumstances, the limitation period

shall start from that date only. Under these circumstances, the revision petition filed before

this Commission is hopelessly barred by limitation.

14. It is well settled that ‘sufficient cause’ with regard to condonation of delay in each

case, is a question of fact.

15. In Ram Lal and others 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.”

16. 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”.

17. 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.”

18. Now, 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”.

19. The observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case. Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to the petitioner. Accordingly, no sufficient ground is made out for condoning the long delay of 310 days. Application for condonation of delay is therefore not maintainable.

20. Even on merits, the State Commission has rightly held that “a re-allottee cannot be treated as “Consumer” and therefore cannot take the plea that the area was not developed.”

21. We find no reason to disagree with the reasoning given by the State Commission. There is no illegality or infirmity in the impugned order passed by State

Commission. Accordingly, present revision petition being barred by limitation as well as on merit, stand dismissed with cost of Rs.5,000/- (Rupees Five Thousand only) to be deposited in the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks.

22. In case, petitioner fails to deposit the cost within the prescribed period, he shall be

liable to pay interest @ 9% p.a., till realization.

23. List on 11.4.2014 for compliance.

…………………………………….J

(V.B. GUPTA)

PRESIDING MEMBER

…………………………………………

(REKHA GUPTA)

MEMBER

Sg.


ORIGINAL PETITION NO. 47 OF 1997WITH IA/3030/2013(For Setting aside order of this Commission, dated 01.11.2002) Mr. Pradeep Kumar Goel S/o. Sh.R.S. Goyal, R/o. C-460 Yojana Vihar, Delhi – 110092

… Complainant Versus

1. M/s J.K. Synthetics Ltd. Asaram Buildings Kamla Nagar, Kanpur – 208005 2. M/s. Bajaj Capital Investment Centre Pvt. Ltd. United India Life Building, F-Block Connaught Place, New Delhi – 110001

… Opposite Parties BEFORE:

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

For the Complainant : In person

For Opp. Party No.1 : Mr. Nitin Soni, Advocate

For Opp. Party No. 2 : Mr. Vishwas Sethi, Auth. Representative

PRONOUNCED ON _6TH MARCH, 2014 O R D E R

JUSTICE J.M. MALIK

1. This is the oldest case pending in this Commission. The original complaint was filed

before this Commission, on 27.01.1997. Sh.Pradeep Kumar Goel, the complainant,

deposited a sum of Rs.13,85,000/- in Fixed Deposit Receipts, with M/s.

J.K.Synthetics Ltd., OP1. The Deposit Receipts were issued in the joint names of Sh.Ram

Swaroop Goyal, first named, Sh.Pradeep Kumar Geol, second named and Mrs.Pushpa

Goel, third named, during the year 1991-92. Sh. Ram Swaroop Goyal, father of the

complainant, expired in August, 1991. The complainant requested OP1 to delete his

father’s name and requested for pre-mature withdrawal, vide letter dated

27.09.1991. The complainant, being the second joint owner, was entitled to get

the disputed amount.

2. The amount was deposited @ 14% p.a. compounded monthly and OP1 paid

interest to depositors @ 15% p.a. compounded quarterly, from 10.01.1992 to 09.12.1993

and @ 14% p.a. interest compounded monthly from 10.12.1993 to 30.11.1995 and 15%

p.a. interest compounded monthly since 01.12.1995. The said

amount was deposited through M/s. Bajaj Capital Investment Centre Pvt. Ltd., OP2 who

paid incentive @ 1% p.a. to their Clients. Both the companies are paying since

September, 1996 with permission of RBI, interest rate more than 21% p.a. and Company’s

Broker/Agent, paying incentive @ 7% p.a.

3. In the meantime, Sh. Deepak Kumar Goyal, the brother of the

complainant, contacted OP1 and requested them not to pay the amount claimed, in his joint

name. However, OPs advised him to claim one-third share in the property of his

father. Sh. Deepak Kumar Goyal asked them not to make

the payment without the Court order. OP advised him to obtain an Injunction

Order against the Complainant.

4. Sh. Deepak Kumar Goyal, filed a Suit for Permanent Injunction in the Civil

Court of Kanpur. The 4th ACMM Court declined to grant ad-interim Injunction order to

Sh.Deepak Kumar Goyal as he failed to furnish the list of FDRs or specifically list of

properties or other particulars. In October, 1991, OPs furnished him a List of FDRs. He

could furnish 24 numbers of the List, out of 26. It is alleged that OP

was not fair in extending help to Sh.Deepak Kumar Goyal, to get Injunction Order. The

OP refused to make the payment vide letter dated 09.11.1991 (Annexure A-5) and asked

the complainant that they would wait for court’s directions. An ad-

interim injunction was granted on 14.04.1991. The OP again failed to make the

payment vide letter dated 23.11.1991. On 09.11.1992, vide Annexure A-8, the ACMM,

Kanpur, dismissed the ad-interim

injunction and stay stood vacated.

5. The complainant again requested OP1 to make the payment vide letter

dated 25.12.1992, Annexure A-9. OP1 could not pay the amount to the

complainant. Sh.Deepak Kumar Goyal filed an application before the High Court of

Allahabad which was rejected vide order dated 17.11.1992. Sh.Deepak Goyal filed an

appeal against that order. The complainant had to give an undertaking that he

would not withdraw the amount upto 22.12.1992 and onwards.

6. The Hon’ble High Court, Allahabad, passed an order dated 01.08.1994, Annexure A-

12, granting an injunction specifically on shares and debentures and allowing Sh.

Deepak Kumar Goyal one-third of bank deposits and two-thirds to the respondents. The

complainant filed a Special Leave Petition, titled Pradeep Kumar Geol Vs. Deepak Kumar

Goyal and Vijay Kumar Goyal, against the order of High

Court, Allahabad and Hon’ble Supreme Court granted ex-parte order dated 25.11.1004.

7. A legal notice dated 21.12.1994 was served on the OPs. OPs did not make the

payment. The Complainant filed an Original Petition No.97 of 1995, before this

Commission, for recovery of amount. He also filed petitions before the Company Law

Board, MRTPC, New Delhi and Supreme Court. His complaint was dismissed by this

Commission, vide order dated 06.12.1995, which runs, as follows:-

“ORDER

The right of the complainant to receive the amounts under the deposit receipts in question is pending before the High Court of Allahabad as well as in some other litigations between the parties. In these circumstances, we are not disposed to adjudicate upon the subject matter of the present dispute when civil proceedings in respect of the identical issues are

pending in courts. The complainant is at liberty to urge all his contentions in the pending litigation or to institute an appropriate action in a competent civil court to have his title to those amounts declared by the civil court. Without prejudice to the complainant’s rights in that regard, this original petition is dismissed on the limited ground indicated above, without going into the merits of the case.

Sd/-

(V. Balakrishna Eradi)

President

Sd/-

(B.S.Yadav)

Member

Sd/-

(S.S.Chadha)

Member

Sd/-

(R.Thamarajakshi)

Member

Sd/-

(S.P. Bagla)

Member”.

8. Prior to that, the Hon’ble Apex Court stayed the operation

of the order of the High Court, vide order dated 25.11.1994. The Hon’ble

Apex Court, vide order dated 15.01.1996, passed the following order, in SLP No.

19299 of 1994, titled Pradeep Kumar Goel Vs. Deepak Kumar Goyal & Anr. :-

“The service is deemed sufficient in view of the office report dated January 12, 1996.

Leave granted. Heard counsel for the appellant. When the first defendant is putting forward a Will under which he claims that all the properties have been bequeathed to him by the father and when the said plea of his has not so far been pronounced upon and held to be untenable, the interim order impugned is unsustainable. Under the impugned order, the learned Single Judge has directed that the plaintiff shall withdraw one-third of the compensation amount relating to the properties covered by the Will. While we do not express any opinion on the merits of the case of either party, we only say that at this stage of proceedings, the

impugned order could not have been made.

Accordingly, the order is set aside and the matter is remitted to the High Court for

disposing of the application in accordance

with law.

The appeal is disposed of accordingly. No costs”.

9. Consequently, a second complaint was filed with the following prayers:-

“1) Opp.party be directed to repay principal amount of Rs.13,85,000/- with interest @ 20% per annum, interest compounded yearly, from the date of deposit till the date of filing complaint on 27.01.1997 for Rs.26,88,009.19, Grant Total Rs.40,73,009.19(Annexure No.20) and further interest in same manner till the date of payment and double of the amount to be returned.

2) Broker incentive @ 1% per annum with interest in same manner as above every year on total sums i.e., principal amount + interest.

3) Expenses in typing, postage, telephones, faxes, travelling to Kanpur be allowed Rs.30,000/- (Thirty thousand only).

4) damages, financial loss, harassment,

mental agony be allowed Rs.50 lacs (Fifty lacs).

5) Cost of the complaint be allowed

Rs.20,000/- (Twenty thousand only).

6) Any other relief under amended Companies Act.

7) Any other such order(s) or directions may kindly be passed”.

10. OP1 has initially contested this case on the following three

grounds. Firstly, the case is barred by limitation, secondly, the second complaint, on the

same cause of action is not maintainable. Lastly, there is no deficiency on the part of OP1.

11. We have heard the complainant, in person, and the counsel for the OPs. Previously,

the case was adjourned because it was stated that the case of OP1 was still pending with

BIFR. The case was adjourned sine die, vide order dated 01.11.2002.

12. Thereafter, the case was put up before us, on 10.05.2013. Counsel for OP1 stated at

Bar that they have kept aside the money in question, and they are ready to pay the same

to the person, who is

entitled to that.

13. After having closest scrutiny of the record and after having heard the complainant

and the counsel for the OPs, as also after going through the written synopses, we find that

the instant case is not maintainable. The complainant has invited our attention towards the

order passed by the Civil Court, on 14.11.1991, which runs as follows:-

“In the Court of 4th Additional Chief Metropolitan Magistrate, Kanpur

Suit No. 1129 of 1991

Deepak Kumar Goyal

Vs.

1. Pradeep Kumar &(2) Vijay Kumar Goyal

English translation of Ex-parte Ad-interim injunction order dt. 14.11.91 against application order 39 Rule 1 & 2 (Index No.9 Ga 2).

14.11.91 : Case called. Counsel for plaintiff present. Plaintiff has filed 3 documents along with index 17 Ga2. Registry has been served on opp.party no.2. Summons through registry has been sent to opp.party no.1 but not returned back. Application index 9 Ga2 was represented.

Plaintiff has stated that if all properties would be

taken by opp.parties, then he would be unable to get any part and suit will become infructuous.

Therefore, it is directed that till the final disposal of application index 9 Ga2 opp.parties would not withdraw properties of their father Shri Ram Swaroop Goyal either in his individual name or jointly with opp.parties from concerned Bank/ Company/Officer.

Dated 2.12.91 fixed for W.S./index 9 Ga2.

Sd/-

Illegible”.

14. The complainant stated that, at this stage, no civil suit is pending. Sh.

Deepak Kumar Goyal has since passed away. His

Legal Representatives are not pursuing this case. He stated that no Civil Suit of any kind

is pending.

15. This Commission is bound by the order, dated 06.12.1995, passed by 4-Members’

Bench of this Commission, headed by Hon’ble Mr.Justice V.Balakrishna Eradi, the then

President. We cannot pass a different order from that. Although the issues involved in

this case were not adjudicated in the Original Petition No.97 of 1995, on 06.12.1995, yet,

this Commission cannot ignore the directions given by the 4-Members’ Bench of this

Commission, headed by Hon’ble Mr.Justice V.Balakrishna Eradi, the then President.

16. No reason was given as to why second complaint was being filed.

17. It is not known, whether, the Civil Suit is still pending or not,

and no solid, concrete and flappable evidence was adduced, before us. It is difficult to

say, whether, the complainant himself is stating the truth or not. Above all, as per the

directions given by the previous Bench of this Commission, he should have filed a Civil

Suit.

18. There lies no rub in pursuing in the matter in Civil Court, as well. He can

seek help from Section 14 of the Limitation Act and the observations made by this Hon’ble

Supreme Court in the Case of Laxmi Engineering Works Vs. PSG Industrial Institute,

(1995) 3 SCC 583, wherein in Para 23 of its judgment, it was held :-

“23. The appeal accordingly fails and is dismissed but without costs. If the appellant chooses to file a suit for the relief claimed in these proceedings, he can do so according to law and in such a case he can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, while computing the period of limitation prescribed for such a suit”.

19. There is one more aspect which arises for consideration of this Commission. This

is a unique case. The OP is ready to pay the amount, but this Commission cannot order

that the said amount be paid to the Complainant. Counsel for OP1 submits that, in case, this

money is given to the complainant, and subsequently, the Civil Court orders that this

money be given to his brothers, and for that reason, the OP should not be vexed

twice. The OP should not be made to pay the amount, twice.

20. Although, in these proceedings, notice was sent to Mr.Deepak Kumar Goyal, yet, he

has not turned up. Moreover, he is not a necessary party in this case. Under these

circumstances, no order in favour of the complainant can be passed. If so advised, he can

approach the Civil Court, as per law. The complaint is, therefore, dismissed. No costs.

.…..…………………………

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

.…..…………………………

(DR.S. M. KANTIKAR) MEMBER

dd/15


(1) REVISION PETITION No. 3187 OF 2013(Against order dated 25.07.2013 in First Appeal No.382 of 2012 of the State Consumer Disputes Redressal Commission, Chhattisgarh)

Bhartiya College of Agriculture Agricultural Engineering Pulgaon Chowk, Durg Tehsil & District – Durg (CG) Through : Managing Director Sushil Chandrakar

....... Petitioner

Versus

Sagar Sinha S/o Shri Girish Sinha R/o : Present Address : Pachri Para Ward No.28, Tehsil & District Durg (CG) Permanent Address : Village – Parna Tehsil – Gunderdehi, District Durg (CG)

...Respondents

AND also in the REVISION PETITION No. 3188 to 3190 OF 2013

BEFORE:


HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Manish Gupta, Advocate

Pronounced on : 6th March,2014

ORDER

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

Respondent/Complainant-Sagar Sinha, had filed Consumer Complaint No.3 of 2012,

whereas Respondent/ Complainant-Anil Kumar Sahu, filed Consumer Complaint No.04

of12,before District Consumer GrievanceRedressal Forum, Durg (Chhattisgarh) (for short,

‘District Forum’).

2. The Consumer Complaints were contested by the Petitioner/Opposite Party.

3. District Forum, vide separate orders of the even date 25.06.2012, allowed both

the complaints.

4. Being aggrieved, both parties filed separate appeals before the Chhattisgarh State

Consumer Disputes Redressal Commission, Raipur (for short ‘State

Commission’)bearing(FA Nos.12/382,383,388 and 389/12). Vide impugned order dated

25.7.2013,the State Commission, allowed the appeals filed by the respondent, whereas

appeals of the Petitioner were dismissed.

5. Now petitioner has filed above revision petitions.

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

7. Since, facts of both complaints filed by the respondents are similar and common

question of law is involved hence, these petitions are being disposed of by this common

order.

8. Facts of (Revision Petition No.3187 of 2013) are taken as the lead case. Respondent

had filed a consumer complaint against the Petitioner on the allegations, that he took

admission in the First Year B. Tech.(Agriculture) for 2010-2011 as a regular student in

Petitioner’s College which is affiliated with Indira Gandhi Agricultural University, Raipur.

Counseling fee of Rs.200/-was paid on 2.8.2010. Thereafter, a sum of Rs.21,900/- was

deposited him with the petitioner on 16.7.2010. Thus, respondent was allowed to appear in

examination for the First Semester.

9. It is further alleged that examination for First Semester was held on 26.11.2010.

However, respondent’s result along with two other students was withheld. On enquiry,

respondent was told that caste verification has not been done. It is stated that respondent

belongs to ‘General Category’. Since, result of respondent has not been declared nor the

fee deposited by him has been refunded, as such deficiency has been committed by the

petitioner.

10. On these allegations respondent filed consumer complaint seeking the following reliefs;

“a. To return the fee of both the semester Rs.43,800/-(Rupees Forty three thousand) with 18% annual interest from the non-applicant institution.

b. The complainant may be given Rs. 20,000/- with the 18% annual interest which was spend on the other educational facilities from the non-applicant institution.

c. The applicant be granted Rs.6,000/- at the rate of 20/-per day as conveyance expenditure from Pachari Para Durg to non-applicant institution.

d. The complainant kindly be granted Rs. 10,000/- as a cost of litigation form the non-applicant institution.

e. The complainant kindly be granted Rs.2,00,000/- as a compensation for the loss of physical, mental and economy from the non-applicant institution.”

11. District Forum after hearing both parties, allowed the complaint and passed following

directions;

“1. The non-applicant pay Rs.43,000/- to the complainant within the one month from the date of order.

2. The annual interest @ 7% to be paid on the above amount from the date of institution of the complaint dated 21.12.2011.

3. The non-applicant pay Rs.1,000/- to the complainant for mental harassment.

4. Cost of litigation of Rs.1,000/- of the complainant is admitted which is to be paid by non-applicant”.

12. It has been contended by learned counsel for the petitioner that respondent got

admitted in Petitioner’s College as per directions and norms laid down by Indira Gandhi

Agricultural University, Raipur. It was the duty of the respondent to submit his caste

verification certificate to the University to confirm the seat of “OBC quota”. The respondent

could not be treated as ‘General Category’ for want of caste verification certificate. Since,

respondent did not submit the caste verification certificate, therefore he could not be

enrolled in the University. Under these circumstances, impugned order is liable to be set

aside.

13. Respondent in para no.3 of its complaint has stated that he comes under the ‘General

Category’. The petitioner in its written statement nowhere denied these averments of the

respondent. Thus, it is manifestly clear that respondent belonged to ‘General Category’.

There is nothing on record to show that when respondent had applied for admission in July,

2010, he was ever asked to produce the caste certificate. Further, respondent belongs to

the ‘General Category’ and as such there was no question of his submitting any caste

certificate for the “OBC seat”.

14. Even otherwise, the petitioner for reasons best known to it, has not placed on record

the ‘Application Form for admission’ submitted by the respondent at the time of taking

admission in the above course. The application form for admission, was the best piece of

evidence which could have thrown light on the entire controversy as to whether respondent

had applied for ‘General Category’ seat or for the ‘OBC Category’. It is also an admitted

fact, that respondent had deposited the requisite fee with Petitioner’s College in July,2010.

Thereafter,respondent had taken examination for First as well as Second Semester,

respondent but till date result qua the respondent has not been declared.

15. The State Commission in the impugned order observed;

“ We find that by giving admission to general category candidate against OBC quota seat definitely amounts to deficiency in service for which the complainant had to suffer a lot of mental harassment and financial loss and above all loss of more than one valuable year of his academic life. In these circumstances we find the amount awarded by the District Forum to be insufficient. Though the complainant had claimed Rs.2,79,000/- but the said amount appears to be exaggerated. We find compensation of Rs.50,000/- in addition to the amount awarded by the District Forum to be proper compensation in the facts of the case. So far as rate of interest is considered we find the rate awarded by the District Forum to be proper. Hence appeal No.FA/12/388 filed by complainant is partly allowed in aforementioned terms. The other Appeal bearing No. FA/12/382 filed by O.P./Institution being devoid of merits, is hereby dismissed”.

16. Under section 21 (b) of the Consumer Protection Act,1986 this Commission can

interfere with the order of the State Commission where such State Commission has

exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested,

or has acted in the exercise of its jurisdiction illegally or with material irregularity.

17. We fully concur with the findings given by the State Commission, that there was no fault

on the part of the respondent at all. On the other hand, the fault lies at the door of the

petitioner. Under these circumstances, we do not find any infirmity or irregularity in the

impugned order passed by the State Commission. Accordingly, above revision

petitions having no legal merit, stand dismissed with total cost of Rs.10,000/-(Rupees Ten

Thousand only).

18. Petitioner is directed to deposit the above cost by way of demand draft in the name of

“Consumer Legal Aid Account” within four weeks from today.

19. In case, petitioner fails to deposit the cost within the prescribed period, then it shall also

be liable to pay interest @ 9% p.a., till realization.


…………………………J

(V.B. GUPTA) PRESIDING MEMBR

…………………………


SSB/


REVISION PETITION NO. 2156 OF 2012(From the order dated 29.09.2011 in First Appeal No. 2567/2005 of State Consumer Disputes Redressal Commission, Maharashtra, Aurangabad) Dr. Vishwanath Shivling Birajdar R/o Shriram Colony, Sanjivani Hospital, Bidar Road, Udgir Tq. Udgir, Dist. Latur, Maharashtra …Petitioner

Versus 1. Gangadhar Sangram Mitkari 2. Kamalbai Gangadhar Mitkari, Both R/o Banshelki Road Udgir, Tq. Udgir Dist, Latur,

Maharashtra.

3. Vivekanand Medical Foundation & Research Centre Vivekanand Hospital through Dr. A.L. Kukde

4. Branch Manager, New India Assurance Company Ltd. Branch Latur, Infront of Bashveshwar, Mangal Karyalaya, Latur, Maharashtra.

…Respondents

BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBERHON’BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Amol N. Suryawanshi, Advocate

For the Respondent No.-1 & 2 : Mr. Shashi Bhushan, Adv.

For the Respondent No 3 : Nemo

For the Respondent No. 4 : Dr. Sushil Kumar Gupta, Advocate

PRONOUNCED ON 7th MARCH, 2014

ORDER


1. The Petitioner preferred the present Revision Petition against the common impugned

order dated 29.09.2011 passed by the Maharashtra State Consumer Disputes

redressal Commission, (in short, ‘State Commission’) Mumbai, Circuit Bench at

Aurangabad in First Appeal Nos. 2567/2005, 2613/2005 and 101/2006 wherein the

State Commission partly allowed the appeal filed by the Petitioner and directed him to

pay Rs.50,000/- with 9% interest to the Complainant from 23.07.2004 till its realization.

2. Facts in brief : Ganesh, son of Complainants Sh. Gangadhar Mitkari and

Smt. Kamblabai Mitkari who was suffering from piles was operated on 5/6/2003, by the

petitioner/OP-1 Dr. Birajdar, at his Sanjivini Hospital, Udgir. It was alleged that OP-1,

prescribed Injection Voveron for the pain, which was given by an untrained

compounder. Thereafter, at 2.00 p.m. Ganesh complained about non-urination. At 6.00

p.m., as there was no movement of Ganesh, the OP-1 was called, but he did not

attend. Again, at 11.00 p.m., Complainant called the OP-1 and his compounder but no

avail. On 06.06.2003, early in the morning, at 6.00 am, the OP-1 referred the patient to

Vivekanand Hospital (OP-2) at Latur. It was alleged that, prior to the operation, the

pathological tests were not conducted by OP-1. I was also alleged that immediately

after the operation, the patient complained of pain and suffered from convulsion and

vomiting and non-urinal, but OP-1 did not examine the patient, did not take proper

precautions and that there was a delay in referring the patient to OP-2. The OP-1

instead of referring the case to Nero surgeon, the operation was carried out by M.S.

Surgeon at Vivekanand Hospital (OP-2). The Complainant contended that the

deceased was a strong and healthy young boy, who has received a call for recruitment

in police force. He was running a grocery shop and Complainants were dependent on

him. Therefore, both OP-1, Dr. Birajdar and OP-2 Vivekanand Hospital are liable for

medical negligence and deficiency in service.

3. Hence, a complaint was filed before the District Consumer Disputes Redressal Forum

(in short, ‘District Forum’) and claimed compensation of Rs.10,00,000/- with 12%

interest, from the date of complaint, and Rs.50,000/- for mental agony.

4. The District Forum directed OP No.1 and 3 to pay Rs.50,000/- + Rs.29,457/- with 9%

p.a. interest from the date of complaint i.e. 23/07/2004, till its realization. District Forum

also directed the Opponent No. 1 and 3 to pay Rs.2,000/- towards the cost of the

complaint. Opponent No.2 was exonerated by the order.

5. Dissatisfied with order of District Forum, the Complainants filed an appeal

(FA/2567/2005) before State Commission for enhancement of compensation,

Opponent No.-1 and 3 filed the appeals for quashing and setting aside the order of

District Forum.

6. The State Commission dismissed the appeal filed by the Complainant and the appeal

filed by OP-1 was partly allowed and the appeal No 101/2006 filed by Insurance Co.

(OP-3) was allowed.

7. We have heard the Counsel for both the parties and perused the records. The

Counsel for the petitioner vehemently argued and denied any negligence in performing

piles operation. The OP-1 performed Surgery for piles on 5/6/2003 and kept the patient

Ganesh under observation. On the same evening, patient had developed signs of

convulsions and vomiting, which was diagnosed as a Cerebro-Vascular accident

(CVA), hence the OP-1 advised to shift the patient to Vivekanand Hospital (OP-2)

at Latur, for further management of CVA, but the complainant delayed in shifting to

6/6/2003. At OP-2 hospital, the patient was admitted in ICU and after MRI study, the

patient was diagnosed as “Hyper-acute Cerebral Infarction at Left Fronto pertaining to

Left ICA territory with cerebral edema with occlusion of Left ICA. On emergency basis,

doctors at OP-2 conducted operation for Decompression hemi-craniotomy, kept the

patient under observation in ICU, who died on 9/6/2003. The counsel for OP-1

contended that there was no nexus between operation for piles and CVA. There was no

expert opinion to prove that the said clot was due to surgery of Hemorrhoids (piles) and

there was negligence in the treatment.

8. In our view, the main crux in this case is, whether, there was negligence on behalf of

OP-1 or OP-2 or by both, in the treatment of deceased Ganesh. We have perused the

evidence on rec.ord. The District Forum sought an opinion from

Dr. Dattaprasanna B. Katikar, a Neuro Surgeon from Solapur, who was examined as a

Commissioner. He clearly opined that there was no possibility of formation of clot in the

carotid artery, during surgery for piles. The operation for Decompression hemi-

craniotomy at Vivekanand Hospital (OP-2) performed on Ganesh, was as a lifesaving

and an emergency procedure. It was a standard practice in such cases. Therefore, it

was not a negligence committed either by Dr. Birajdar or at Vivekanand Hospital in

conducting their respective surgeries.

9. The Counsel for the complainant vehemently argued that an unqualified compounder

administered injection to Ganesh, prior to operation, necessary tests were not

performed and the piles operation was conducted, without an Anesthetist. We have

referred to standard medical books on the subject of “Operative Surgery, Surgical

Management of Hemorrhoids, Practice of Surgery for the Colon, Rectum, and

Anus,” by Philip H. Gordon, Santhat Nivatvongs. Accordingly, an operation for piles

can be performed under local anesthesia. Surgeons can administer local anesthesia.

The need for calling an Anesthetist, is not a must. This view is supported by the

opinion of the Govt. surgeon (Ex.3/24) and opinion of the Board of Doctors

at Ambajogai (Ex. 3/25). Dr. Sudhir was an Anesthetic expert and in his cross

examination (Ex.48) he has mentioned that local anesthetia can be given for the piles

operation. However, experts have mentioned that the compounder should be a trained

one. Employing untrained compounder and administering injection to the deceased

through him, was a deficiency in service on the part of the OP-1.In furtherance, we do

not find any merit in arguments advanced by Counsel for complainant, about the delay

on the part of the OP-1, to refer the patient to OP-2, and that OP-1 had obtained

signatures on blank forms by pressurizing.

10. There are four basic elements to a medical negligence/ malpractice case. The four

legal elements (4 D’s) must be proven by complainant to succeed in a medical

negligence case.

(1) Duty - a professional duty owed to the patient;(2) Deficiency / Breach of such Duty;(3) Direct Causation- injury caused by the breach (Causa Causans)(4) Resulting Damages.

Causation means that the medical professional’s breach of the standard of care caused

or contributed to causing some harm to the patient. In this case, even if the untrained

compounder has given pain killer injection Voveron to Ganesh, it did not cause any

damage to the patient. Hence, we refrain ourselves to consider this issue, as a medical

negligence.

11. We have relied upon several judgements of Hon’ble Supreme Court and this

Commission on medical negligence.

In Jacob Mathew V State of Punjab & Anr, (2005) 6 SSC 1= III (2005) CPJ 9 (SC)

was 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.”

12. Also, we like to refer to the Bolam test, in this context. 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. Applying the above

principles in the instant case, we do not find any medical negligence on the part of OP-

1 and OP-2, who have used their best professional judgment and took due care during

surgery and during unexpected CVA to the deceased Ganesh.

13. Since, the present case is based upon an allegation of deviation from ordinary

professional practice, it is worth to refer Lord President Clyde in Scottish

case Hunter v Hanley 1955 SC 200,wherein it has laid down the following requirements

to be established by the patient to fasten liability in case of negligence committed by a

doctor:

"To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course, the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on the pursuer to establish these three facts, and without all three, his case will fail."

14. Based on the discussion above, we do not find any negligence caused by OP-1 and

OP-2, in the surgical treatment of the deceased. Consequently, we set aside the order

passed by the State Commission.

15. Despite this, we take serious view against the OP-1, who took services of an

Unqualified Compounder, which amounts to deficiency in service. It is a breach of duty

“per se actionable” as per the Core Law. A Medical Professional, like OP-1, should not

to be allowed scot free and to take undue advantage of such situation. We can’t ignore

the fact that, OP-1 is a Doctor and he is expected to treat the prospective patients, who

will approach him in future. Hence, he should not be allowed to be unpunished because

of deficiency in service. Therefore, we hold OP-1 liable for the deficiency in service.

16. It is, as well, a lapse on the enforcing health agencies. It is also aimed that the

concerned enforcing authorities for medical establishment should take remedial

measures to avoid such lapses. We feel it necessary to circulate the copy

of this order to the Professional Regulatory Bodies like, MCI,DCI, IMA, etc., to educate

the medical professionals in this aspect of health law.

17. Therefore, on entirety of the our discussion , we direct the OP-1 to pay Rs.25,000/-

compensation to the Complainant, within 90 days, otherwise it will carry interest @ 9%

p.a. till it’srealisation. There is no order as to costs.


…...…………………………(S. M. KANTIKAR)MEMBER

Mss/11 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO.2475 OF 2010(Against the order dated 6.4.2010 in Appeal No.2688, 2702-2704 of 2009 of the State Commission, Karnataka) Tata Coffee Ltd. A Company registered under The Companies Act, 1956 Having its registered office at Pollibetta, Kodagu, Karnataka and Its corporate office at 57, Railway Parellel Road, Kumara Park West, Bangalore- 560020

…..Petitioner Versus

Sri N. Sreenivasalu Son of N. Nagaraj, Murari General Stores, Bangalore Road, Bellary (in CC-49/2009)

…..Respondent

REVISION PETITION NO.2476 to 2478 OF 2010 BEFORE HON’BLE MRS. VINEETA RAI, PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER For the Petitioner In all cases : Mr. Dhananjaya Joshi, Advocate For the Respondent : Mr. Vamshi Krishna C., AdvocateIn all cases PRONOUNCED ON: 7/3/2014 ORDER


These are a set of four revision petitions filed by M/S Tata Coffee Ltd. The four

respondents herein had filed separate complaints before District Consumer Forum Bellary,

seeking refund and compensation against the revision petitioners. All four complaints were

allowed by the District Forum and appeals against them have been dismissed by the State

Commission. By a common order, the State Commission has decided eight appeals, four

filed by the present revision petitioners and the other four by the complainants. The latter

had sought enhancement in the awards made by the District Forum. The State

Commission has allowed the appeals of the respondent/complainants and dismissed the

ones filed by the revision petitioner/OP. The revision petition thus has been filed against

concurrent findings of fact by the District Forum as well as the State Commission.

2. All four complainants are brothers and their complaints have arisen from a single

transaction of purchase of block board from the respondent. All four used the material in

their respectivehouses for making of furniture, box type wardrobe, T.V. cabinet, dressing

tables and other furniture items. The block board after some time were found to be affected

by borer infestation. They took up the matter with the vendor/OP but did not get appropriate

response. Hence four different consumer complaints were filed before the District

consumer Forum Bellary, with prayer for refund of costs and award of compensation as

follows:-Prayer Refund of Cost Compensation

Sri N. Sreenivasulu 8.69 lacs 4.5 lacs

Venkatesh 10.47 lacs 5 lacs

Sri N. Murari, 4.61 lacs 2.5 lacs Balaji 11.46 lacs 5.5 lacs

------------------- ----------------- 35.23 lacs 17.5 lacs

3. The OP contested the complaints on the grounds inter alia of limitation, territorial

jurisdiction and absence of evidence of manufacturing defects. The District Form came to a

conclusion that since the goods purchased by the complainants were delivered and used at

Bellary, the complainants resided at carried on their business at Bellary, the Forum had

territorial jurisdiction to decide the complaint. On the question of limitation, the District

Forum held that the cause of action arose in March 2007 when the block board was found

infested by the borer worms. It rejected the contention of the OPs that cause of action

arose in April, 2005, when the block boards were purchased. Hence the complaints were

within the prescribed time limit.

4. Considering that all complaints arose from a single purchase, the District Forum

ordered refund of the purchase price jointly to the four complainants. It also awarded

interest at 9% from the date of the complaint. The State Commission, as already noted, had

considered all eight appeals against the order of the District Forum. The four appeals filed

by the RP/OP have been dismissed. The other four filed by the Complainants have been

allowed, to the extent of award of Rs.5,000/- as compensation and Rs.2000/- as litigation

cost, to the four complainants.

5. We have carefully considered the records as filed by the rival sides to the revision

petitions. The two sides have also been heard at length by the Circuit Bench of this

Commission at Bangalore on 06.2.2014. Mr. Dhananjaya Joshi, Advocate has been heard

on behalf of M/s. Tata Coffee Ltd. and Mr. Vamshi Krishna, Advocate for four

respondents/complainants.

6. At the very outset it needs to be observed that these revision petitions arise under

Section 21 (b) of the Consumer Protection Act, 1986. This provision empowers the National

Commission to calls for the record and pass appropriate order in any consumer dispute,

pending or decided by any State Commission, ‘where it appears to the National

Commission that such State Commission has exercised a jurisdiction not vested in it

by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise

of its jurisdiction illegally or with material irregularity.’

7. The scope of proceedings under this provision came up for detailed consideration

by Hon’ble Supreme Court in Rubi (Chandra) Dutta Vs. United India Insurance

Company Limited, (2011) 11 SCC 269. In this case, the complaint filed against repudiation

of the motor vehicle accident claim by the insurer, was allowed by the District Forum. The

State Commission agreed with the findings of the District Forum, but limited the award to

the amount of loss as assessed by the surveyor. The National Commission reversed the

concurrent finding of fact relating to the licence of the driver and quashed the orders of the

District Forum and the State Commission. Civil Appeal against the order of the National

Commission has been allowed by Hon’ble Supreme Court with the following observations:-

“23. 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”.

8. In the present revision petitions, the main ground raised on behalf of M/s. Tata Coffee

Ltd. is that of that of limitation. It is contended that the complaint was filed in the year 2009

in relation to materials purchased in 2005. Hence, it should have been dismissed as barred

by limitation under Section 24-A of the Consumer Protection Act, 1986. Learned counsel

for the revision petitioners argued that the borer-infestation should have taken place before

the complainants informed the petitioner through their letter of 7.3.2007. He however,

concede that the complainants could have written only after clearly noticing the infestation

and not before. Therefore, in our view, the fora below have very rightly refused to compute

the limitation from 2005.9. The revision petition also claims that borer infestation can happen on account of a

number of reasons, including poor maintenance for which the petitioner cannot be held

liable. This contention is a mere suggestion of a possibility and nothing more. It does not

refer to any evidence to show that infestation was caused by any action or non-action on

the part of the buyers i.e. complainants. The revision petitions also contend that the

infestation have probably arisen from the venner/frames sourced from third parties and

used in making of furniture. This is again a mere suggestion of possibility and is rejected as

such.

10. It was pointed out by learned counsel for the respondents/complainants that the

primary burden of proof had been discharged by them through the evidence of the

concerned carpenter before the District Forum. Thereafter, it was for the OPs to produce

evidence in support of their contentions, which was not done. On the contrary, when the complainants moved the application before the State Commission to appoint an architect engineer as an independent expert to evaluate the damage caused to the furniture, it was opposed by the present revision petitioners. Therefore, the

contentions relating to quality and to what caused the loss, merit no further consideration.

11. The issue of territorial jurisdiction is again raised in the revision petition. But, we find

that the petitioner/OP has solely relied upon a stipulation in the purchase bill stating ‘all

disputes are subject to Bangalore jurisdiction’. In support, the revision petition contends

that when two courts have concurrent jurisdiction to entertain and try a dispute, the parties

can by consent confer exclusive jurisdiction on one of the two courts. This is factually

incorrect. No evidence was led before the fora below to show that the two sides had

‘mutually consented’ to keeping the jurisdiction in Bangalore. On this issue District Forum

has relied upon the provision in Section 12 (1) (a) in the Act to hold that as the goods were

delivered in Bellary, the jurisdiction lay with the District Forum at Bellary. We may add here

that in terms of the provision in Section 11 (1) (c) the jurisdiction would lie with the District

Forum where the cause of action has arisen, whether wholly or in part. In the present case,

the cause of action arose in Bellary, where the goods were physically received and

utilized. It arose when the block boards used in making of the furniture itemswere found to

be infested with the borer pest. We therefore, hold that the District Forum Bellary, has

rightly exercised jurisdiction over the consumer complaint in this case.

In the light of the details considered above, we find no justification to interfere with the

concurrent findings of the fora below, in exercise of powers under Section 21 (b) of the

Consumer Protection Act, 1986. The revision petitions are held to be devoid of merit and

are dismissed as such.

…..…………….Sd/-…….……(VINEETA RAI)PRESIDING MEMBER

…..…………….Sd/-…….……(VINAY KUMAR)MEMBERS./-



(Against order dated 13.04.2010 in First Appeal No. 1291/2010 of the State Consumer Disputes Redressal Commission, Karnataka, Bangalore)

Reliance General Insurance Co. Ltd. 60, Okhla Industrial Area, Phase-III New Delhi

…Petitioner Versus

Shivakumara S Door No. 144, 8th Main, 5th Cross, Bhuvaneshwari Nagar, T. Dasarahalli, Bangalore

…Respondent BEFORE: HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. H.N. Keshava Prashanth, AdvocateFor the Respondent : Mr. V. Subhash Reddy, Advocate

PRONOUNCED ON : 07th MARCH, 2014 at Delhi

ORDER

DR. S.M.KANTIKAR, MEMBER

Arguments in this case were heard at Circuit Bench Bangalore on 13.02.2014 and

order was reserved.

This revision is directed against the order dated 13.04.2010 of the Karnataka State

Consumer Disputes Redressal Commission Bangalore in Appeal No. 1291 of 2010.

2. Briefly stated facts relevant for the disposal of this revision petition are that the

respondent complainant insured his motor cab / taxi with the opposite

party. The unladen weight of the insured vehicle was 980 kgs. The aforesaid vehicle was

involved in an accident with a bus on 20.09.2007 and it was damaged beyond repairs. FIR

in respect of the accident was registered and intimation was also given to the

petitioner insurance company. At the time of accident, the vehicle was being driven by

one Manjunath G. who was having a driving license authorising him to drive a light

motor vehicle. The driving license, however, did not have an endorsement authorizing the

driver to driver transport / passenger carrying vehicle. The petitioner

insurance company taking note of the aforesaid fact repudiated the claim filed by the

respondent complainant claiming that at the time of accident, the vehicle was being driven

by a person not having an effective driving license which amounted to the violation of the

conditions of the insurance policy. Being aggrieved of the repudiation of the claim, the

petitioner filed a consumer complaint.

3. Learned District Forum on consideration of the pleadings of the parties and the

evidence produced was of the view that repudiation of insurance claim amounted to

deficiency in service and directed the petitioner to pay to the respondent complainant IDV of

the vehicle i.e. Rs.3,13,790/- after adjusting the cost of the salvage within 60 days. It was

also directed that in the event of the petitioner not complying with the order, he shall pay

interest on the aforesaid amount @ 8% p.a. from the date of the order.

4. The petitioner being aggrieved of the order of the District Forum preferred an appeal

before the State Commission. The appeal, however, was dismissed vide impugned order.

5. Learned counsel for the petitioner has taken us through the insurance policy and

submitted that as per the driver’s clause of the insurance policy, the insurance contract was

subject to the condition that insured vehicle shall be driven by a person holding an effective

driving license authorising him to drive the vehicle of such category. Learned counsel has

contended that the vehicle in question was covered byCommercial

Vehicle (passenger carrying ) package policy. Admittedly, the driver was holding a driving

license of LMV without any endorsement authorising him to drive a transport / passenger

vehicle. Therefore, at the time of accident, the driver was not having an effective driving

license. He has thus contended that petitioner was justified in repudiating the claim and

the foras below have passed the judgmentignoring the above stated facts. Learned counsel

has thus urged us to accept the revision and set aside the impugned orders being based

upon incorrect appreciation of facts and insurance contract. In support of his contention,

learned counsel for the petitioner has relied upon the judgments of the Supreme Court in

the matter of Ashok Gangadhar Maratha Vs. Oriental Insurance Co. Ltd. reported in

(1999) 6 SCC 620 and New India Assurance Co. Ltd. Vs. Prabhu Lal reported in 2008

(1) T.A.C. 401 (SC).

6. On the contrary, learned counsel for the respondent/complainant has argued in

support of the impugned orders of the fora below. He has contended that the issue in this

case is no more res-integra and has been settled by the Supreme Court in the matters

of National Insurance Co. Ltd. Vs. Annappa Irappa Nesaria alias Nesaragi (2008) 3

SCC 464 and New India Assurance Co. Ltd. Vs. RoshnabhenRahemansha Fakir

& Anr. (2008) 8 SCC 253. Learned counsel for the respondent / complainant has thus

urged us to dismiss the revision petition.

7. Undisputedly, the subject vehicle was insured as commercial vehicle

( passenger carrying) package policy and its unladen weight was less than 7500 kgs. Thus,

in view of section 2 (21) of the Motor Vehicles Act, 1988 ( in short, ‘the Act’), it was a

light motor vehicle. As per the allegations in the complaint, the vehicle was involved in an

accident resulting in huge damage to the car and also injuries to passengers travelling in

the car. Admittedly, at the time of accident, though the driver of the vehicle was having

driving licence authorising him to drive a light motor vehicle, but it did not have endorsement

authorising the driver to drive a transport vehicle. The insurance claim of the respondent

complainant was repudiated solely on the ground that the driver of the vehicle was not

holding an effective driving licence, which amounts to violation of the terms and conditions

of the insurance policy.

8. As per the insurance policy, the subject vehicle was insured under commercial

vehicle ( passenger carrying) package policy. As per the allegations in the complaint, at

the time of accident, the vehicle was carrying passengers who suffered injuries. It is

undisputed that the unladen weight of subject vehicle was less than 7500 kgs. Thus, it was

light motor vehicle as defined under section 2 (21) of the Act. It is not in dispute that the

driver of the subject vehicle was having a driving licence authorising him to drive a light

motor vehicle without any endorsement authorising him to drive transport light motor

vehicle. The question is whether aforesaid licence was an effective licence authorising the

driver to drive aforesaid vehicle for carriage of passengers for hire and reward?

9. In order to find answer to the above question, it would be useful to have a look on

some relevant provisions of the Act. Section 2 (21) defines Light Motor Vehicle as under:

"Light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms”.

10. Admittedly, the unladen weight of the vehicle in question was less than

7500 kgs. Therefore, it is squarely covered within the definition of Light Motor Vehicle.

11. Section 3 of the Act deals with the necessity for driving licence and it reads thus:

“Necessity for driving licence. (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub- section (2) of section 75] unless his driving licence specifically entitles him so to do.”

12. From the above, it is clear that no person having a driving licence shall drive a

transport vehicle other than a motor cab or motorcycle hired for his own use or rental under

any scheme made under section 75 (2) unless his driving licence specifically entitles him to

do so. Undisputedly, in the instant case, the driver of the vehicle was not having an

endorsement authorising him to drive a transport vehicle. Thus, the driver only had an

effective driving licence authorising him to drive a Light Motor Vehicle other than a transport

vehicle.

13. Section 2 (47) of the Act defines “Transport Vehicle” as under:

"transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.”

On reading of the above it is clear that public service vehicle is a transport vehicle.

Section 2 (35) of the Act defines “Public Service Vehicle” as under:

"public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage.”

14. On bare reading of the above definitions, it is clear that in motor vehicle used or

adapted to be used for carriage of passengers for hire or reward is a public service vehicle

and it includes a motor cab. Admittedly, the subject vehicle is a motor cab which was used

for carriage of passengers for hire and reward. Therefore, the subject vehicle at the time of

accident was a “public service vehicle”. Therefore, it is squarely covered under the

definition of a “transport vehicle”. Undisputedly, the driving licence of the driver of the

subject vehicle at the time of accident was not having endorsement authorising him to drive

a transport vehicle. Therefore, in view of section 3 of the Act, he cannot be termed as a

person having an effective driving licence. Thus, it is clear that subject vehicle at the time of

accident was being driven by a person not having an effective driving licence, as such, it is

a clear case of violation of terms and conditions of the insurance policy particularly the

Driver’s Clause, which is reproduced as under:

“Driver : Any person including insured:

Provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license.

Provided also that the person holding an effective learner’s licence may also drive the vehicle when not used for the transport of passengers at the time of the accident and that such a person satisfied the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989.”

15. From the above it is clear that the foras below have fallen in grave error in allowing

the complaint ignoring the above provisions of the Act as also the terms and conditions of

the insurance policy particular the “Driver’s Clause”. Thus, the impugned orders cannot be

sustained. In our aforesaid view, we find support from the judgments of the Supreme Court

in the matters of Oriental Insurance Co. Ltd. Vs. AngadKol and Ors. III (2009) SLT

586, New India Assurance Co. Ltd. Vs. Prabhu Lal (2008) CPJ 1 (SC), National

Insurance Co. Ltd. Vs. Kusum Rai II (2006) CPJ 8 (SC), General Assurance Society

Ltd. Vs.Chandanmall Jain and Another (1996) 3 SCR 500 and

Ashok Gangadhar Maratha Vs.Oriental Insurance Co. Ltd. (1999) 6 SCC620.

16. Learned counsel for the respondent in support of his contentions has relied upon the

judgments of the Supreme Court in the matters of National Insurance Co. Ltd.

Vs. Annappa Irappa Nesaria aliasNesaragi (2008) 3 SCC 464 and New India

Assurance Co. Ltd. Vs. Roshnabhen Rahemansha Fakir & Anr. (2008) 8 SCC 253. So

far as judgment in the matter of Annappa Irappa Nesaria alias Nesaragi(supra) is

concerned, it has taken a view contrary to the view taken by the Supreme Court in the

above noted judgments. Further, on careful perusal of the judgments relied upon by the

respondent, we find that in the aforesaid case, definition of “public service vehicle” and

“transport vehicle” as provided in section 2(35) and 2 (47) of the Act were not considered by

the Hon’ble Supreme Court. In view of this we tend to rely upon the judgment referred

above.

17. So far as the judgment in the matter of Roshnabhen Rahemansha Fakir & Anr. is

concerned, the aforesaid judgment does not help the respondent because vide the said

judgment, the Hon’bleSupreme Court set aside the view taken by High Court of Gujarat and

passed in favour of the claimant in exercise of its jurisdiction under Article 142 of the

Constitution of India.

18. Lastly, counsel for the respondent placed reliance on the judgment in

the Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. (2010) 4 SCC wherein the Apex

Court has spelled out criterion for fixing the claim of the insured on non-standard basis as

under:

Sl. No. Description Percentage of settlement

(i)Under declaration of licensed carrying capacity

Deduct 3 years’ difference in premium from the amount of claim or deduct 25% of claim amount whichever is higher.

(ii)Overloading of vehicles beyond licensed carrying capacity

Pay claims not exceeding 75% of admissible claim.

(iii)Any other breach of warranty condition of policy including limitation as to use

Pay up to 75% of admissible claim.

19. Since the driver of the subject vehicle was not holding an effective driving licence to

drive a transport vehicle which is fundamental breach of terms and conditions of the policy,

the above judgment is not applicable to the facts and circumstances of the present case.

20. This Commission in the case of Mudipalli Ellappa Ravi vs. M/s

Royal Sundram Alliance Insurance Co. Ltd., revision petition No. 1272 of 2012

decided on 6.9.2012, held:

“We have heard counsel for the petitioner and have considered her submissions. She only submits that the violation of the terms and conditions of the policy could be waived by the respondent insurance company and the claim could have been settled at least on non-standard basis, if not, as full claim going by the decision of the Supreme Court in the case of Amlendu Sahoo vs. Oriental Insurance Co. Ltd. (decision dated 25.03.2010 in Civil Appeal No. 27032010). We have noted down these submissions only to be rejected because if the nature and kind of breach of the terms and conditions of the policy did not entitle the petitioner even the settlement of his claim even on non-standard basis. The breach being of fundamental in nature, we see no merit in these contentions. The order passed by the State Commission is justified on record and does not suffer from any illegality, material irregularity, much less any jurisdictional error, which warrants interference of this Commission. Dismissed.”

21. Aggrieved by that order, SLP bearing (civil) No. 39343 of 2012 was filed before the

Supreme Court. The Supreme Court was pleased to dismiss the SLP vide order dated

14.1.2013 and upheld the order passed by this Commission.

22. Similar view was taken by the Commission in the matter of New India Assurance

Co. Ltd. Vs. Prabhu Lal 1 (2008) CPJ 1 (SC). In that case also, the SLP No. 12832-12833

of 2012 was filed in the Supreme Court and the Supreme Court dismissed the SLP vide

order dated 03.12.2012.

23. In view of the discussion above, we are of the view that the impugned orders of

the foras below suffer from material illegality inasmuch as those orders have been passed

without analysing the relevant provisions of the Act. Thus, the orders cannot be

sustained. Revision petition is accordingly allowed, impugned orders of the foras below are

set aside and complaint is dismissed.

.…………………………

(AJIT BHARIHOKE, J.)PRESIDING MEMBER

..…………………………(S. M. KANTIKAR)MEMBER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 580 OF 2012(Against the order dated 21.10.2011 in Appeal No.2904/2010 & 4418/2010 of the State Commission, Karnataka)

Asith, S/o B.V. Shamaiah, Major Prop. of Akshaya Enterprises, No.4-A, Garden Area, LLR Road, Shimoga 577201

…..Petitioner

VersusG. Manjunath, S/o Govindappa Agriculturist, R/o Channahalli Village, Harnahalli Hobli, Shimoga Tq. & Dist. Karnataka State …..Respondent BEFORE HON’BLE MRS. VINEETA RAI, PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER For the Petitioner : Mrs. Anjana Chandrashekar, Advocate For the Respondent: Mr. Nagaia, Advocate PRONOUNCED ON: 11th March, 2014 ORDER


Complainant G.Manjunath had filed a consumer complaint against the present

respondent, before the District Consumer Disputes Redressal Forum Shimoga. The case of

the complainant was that the OP Asith, Proprietor Akshay Enterprises had undertaken, and

was paid for, commissioning of a drip irrigation system in 28.28 acres of the complainant’s

land. The work was executed only to the extent of 18 acres. Due to this under completion

of irrigation system, fruit crops planted by the complainant in remaining 10.28 acres suffered

heavily. Even the quality of material used was alleged to be inferior to the agreed

quality. Due to such incomplete execution of the work and inferior quality, the complainant

was also deprived of central subsidy to the extent of the Rs.4.5 lakhs.

2. Per contra, the case of the present revision petitioner/OP was that the work had been

fully executed as agreed between the parties. There was no under

completion. The consumer complaint was alleged to have been filed as a counter-blast to a money claim of the OP against the complainant.

3. The District Forum held that the complainant was entitled to receive an amount of

Rs.2,40,364/- for the implementation of the drip irrigation system in the remaining area of

10.28 acres, Rs50,000/- towards labour including the cost of the planting

material, Rs 15,000/- as compensation and Rs.5,000/- as litigation cost.

4. The above order of the District Forum was appealed by both parties, before the

Karnataka State Consumer Disputes Redressal Commission by a common order of

21.10.2011. The State Commission had dismissed both appeals and confirmed the order of

the District Forum. Now a revision petition has been filed against the order of the State

Commission by Shri Asith, Proprietor, M/s. Akshaya Enterprises, Shimoga, who were the

original respondent before the District Forum.

5. We have carefully considered the records and heard the two

sides. Advocates, Ms. Anjana Chandrashekar for the revision petitioner and Mr. Nagaia, for

the respondent/complainant, have been heard by the Circuit Bench of this Commission at

Bangalore.

6. The District Forum had first dismissed the complaint on 13.12.2008. Its decision was

upheld by the State Commission in the appeal decided on 20.7.2009. However, when the

matter went before National Commission, it was remanded back on 17.2.2010 for fresh

consideration and disposal by the District Forum. In the second round of consideration of

the complaint, the District Forum has granted relief to the complainant as mentioned above.

7. In the revision petition before us, the main ground of challenge to the impugned order

is that there is no material on record to show that only 18 acres of lands was drip irrigated.

The revision petition primarily rests upon the reports dated 14.10.2008 and 4.11.2008 of the

Commissioner appointed by the District Forum. According to the revision petitioner, the

respondent/complainant owns 46 acres, out of which 37.14 acres were under drip irrigation,

as reported by the Court Commissioner. We find that the District Forum has considered

evidence relating to barbed wire fencing of the area and purchase of planting materials, to

come to the conclusion that the work was executed only to the extent of 18 acres and not

28.28 acres.

8. As for the report of the Court Commissioner, the District Forum has observed—“On going through the report of the commissioner it is clear that the

commissioner without exact measurement by any experienced surveyor mentioned the extent approximately as 46 acres i.e. barbed wire fenced. As per project report the barbed fencing is only to an extent of 28 acres 28 guntas of land belonging to the complainant. The commissioner without actual measurement mentioned the extent as drip irrigated as 37.14 acre i.e. approximately. It is not the case of the complainant nor the ease of the opponent that the opponent implemented drip irrigation system to so much extent of land but implemented drip irrigation system only to an extent of 18 acre only leaving 10 acres 28 guntas of land.”

It needs to be observed that appointment of the local Assistant Director of Horticulture by

the District Forum as the Court Commissioner was specifically in the background of the

claim of the complainant that the work of commissioning of drip irrigation system was

executed by the OP only to the extent of 18 acres of lands and not for 28.28 acres. The

Local Commissioner inspected the fields in the presence of the two sides. Yet, the report

turned out is more on the condition of fruit crops on this land. It carries no clear cut finding

in relation to the acreage of commissioning of drip irrigation by the OP. Only in a passing

manner, the report refers to 37.14 acres being under drip irrigation out of the total 46 acres

seen by him. But, even after noting the acreage, the report offers no help in determining the

reason for non-coverage of about 9 acres falling between the total area and covered area,

as mentioned by him. Therefore, in our view the State Commission and the District Forum

have both very rightly refused to place any reliance on the report of the Court

Commissioner.

9. In view of the above, we hold that the concurrent findings of the fora below are based

on correct appreciation of the evidence led before them. The impugned order does not

suffer from any illegality or material irregularity, which could justify intervention of this

Commission under Section 21 (b) of the Consumer Protection Act, 1986. The revision

petition is consequently dismissed for want of merit.

…..…………….…Sd/-….…… (VINEETA RAI)PRESIDING MEMBER

…..……………Sd/-.…….…… (VINAY KUMAR)MEMBERS./-

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2190 OF 2013(From the order dated 20.03.2013 in First Appeal No. 663/2011 of State Consumer Disputes Redressal Commission, Andhra Pradesh, Hyderabad) Dr. K. Ranga Rao Dr. N. V. Rao Memorial Nursing Home, Addanki Village & Mandal Prakasam District Andhra Pradesh

…PetitionerVersus

Shaik Dadoo Saheb S/o Sk. Pentu Sdahib R/o Alavalapadu Village J. Panguluru Mandal Prakasam District Andhra Pradesh

…Respondent

BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBERHON’BLE DR. S. M. KANTIKAR, MEMBER For the Petitioner : Ms. Tatini Basu, Advocate

For the Respondent : Ms. A. Subhashini, Advocate PRONOUNCED ON 11th MARCH, 2014

ORDER


1. This revision is filed against the impugned order dated 20.03.2013 passed by the State

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

Hyderabad, Andhra Pradesh in FA/663/2011.

2. The deceased, Sheikh Hasina, (Patient) daughter of the Complainant Shaikh Dadoo

Sahib, consulted the Petitioner/OP Dr. K. Ranga Rao, on 27.07.2008, for severe

abdominal pain. The OP examined her on OPD basis, and thereafter, on 28.09.2008,

again when she complained of unbearable pain in the abdomen, contacted the OP,

who advised the Complainant, for the Scanning report (USG) from Dr. Jaya Kishore,

the Sinologists, from Ongole. The Complainant took her for USG to Dr. Jaya Kishore,

who did the ultrasound, on 29.9.2008 and telephonically informed the OP. Thereafter,

Dr. Jaya Kishore, advised the Complainant to take the patient to Srinivasa Hospital.

There, Dr. PSM Prasad examined her and examined the USG report. He informed the

Complainant about the serious condition of his daughter, and advised him to take her

immediately to Andhra Hospital, Vijayawada. In furtherance, the doctors at Andhra

Hospital, examined her and advised to shift her when accordingly, she was shifted by

ambulance to Nagarjun Hospital, Vijayawada, for better treatment. Thereafter,

treatment was started, however her condition deteriorated, and she expired around 9

pm, on 29.09.2008. On the basis of USG report, Dr. Prasad’s opinion and the

prescriptions of Nagarjun Hospital, the Complainant alleged negligence on the part of

OP, for delay in diagnosis and referral. Hence, a complaint before the District

Consumer Disputes Redressal Forum, (in short, District Forum’) in CC/41/2009 at

Ongole was filed for compensation.

3. The District Forum on consideration of pleadings and evidence directed the

Petitioner/OP to pay Rs.50000/- as compensation and Rs.5000/- for costs of litigation,

the State Commission dismissed the appeal filed by the OP and confirmed the order of

the District Forum.

4. Against the impugned order of State Commission, the OP filed this revision petition.

5. We have heard the Counsel of both the parties, carefully perused the evidence on

record, the referral slip, Nagarjun Hospital case sheets and the affidavits submitted by

the doctors, who treated the deceased.

6. The Counsel for the OP argued that the OP is a highly reputed and committed doctor,

running a nursing home for past two decades, in a small town, Addanki (Andhra

Pradesh). OP performed his duty with reasonable care and caution. OP referred the

patient, Hasina for USG study, and then to higher centers. Hence, there was no

negligence on the part of OP.

7. We have focused our attention on the written version filed by OP and the relevant

submission made by OP is reproduced as follows:“ the averments mentioned in the complaint that the deceased Shaikh

Hasina was the married daughter of the Complainant, and that on two occasions, prior to 27.09.2008, the OP treated her, as she complained pain in her abdomen and that she was brought to OP’s hospital, on 27.09.2008 complaining severe abdomen pain, is true. But the other allegations mentioned in the complaint that on 27.09.2008, she was brought by the Complainant to OP’s nursing home for treatment as the pains became severe, that the OP examined her, but not admitted her as an inpatient, by allotting a room in his Nursing Home and on 28.09.2008, the OP examined her again in a routine manner, but on 29.09.2008, when she cried with unbearable pains, the OP advised the Complainant to bring scanning report of hers, from Ongole, by referring her to Dr. Ch. Jaya Kishore, Radiologists and Sinologists, Sai Vijaya Diagnostic Centre at Ongole, for scanning.”

8. It was an admitted fact, by OP that, complainant and his family members used to take

treatment from his hospital, for past 20 years. The complainant, on 27.9.2008, brought

Ms. Hasina, to his hospital, on account of “Chronic Ulcer Disease”. Therefore, in our

view, the OP assumes to be a Family Physician. It is also the responsibility of the

family physician to make appropriate referrals without any delay. If a diagnosis is made

and a referral to a specialist should be made, the failure to communicate this, to the

patient, is negligence. Sometimes family physicians are simply too busy to follow-up

with patients and, like above, the patient has a responsibility to be his own advocate, in

following up with their physician. However, if a crucial test is never ordered, the results

can hardly be followed-up, thereafter. In today's environment of ever-increasing

complicated medicine, it is the responsibility of the family doctor to ensure that

diagnostic tests are performed and follow-up is being made in such like Chronic Ulcer

Disease.

9. A communication lapse among physicians, their patients, and other health care

providers, are frequently the focus of medical negligence claims. Here, we find that,

Causation became an important issue in this case. In our opinion, earlier diagnosis

would have altered the outcome. Possibly, that earlier diagnosis /treatment could have

salvaged the life and avoided the serious casualty. It was admitted by OP that, he has

treated Hasina on two occasions, for pain in abdomen, prior to 27.9.2008; hence, we

are unable to subscribe that, Why, during the earlier visits, the OP failed to advise

proper investigations and USG study for Hasina, when he knew that it was a case of

“Chronic Ulcer Disease”? The OP has not taken the reasonable care and followed

the Standards of Practice which, ought to be taken by a qualified doctor. It amounts to

the act of omission by OP.

10. It is also pertinent to note that OP has not produced a single document or medical

record, showing the past treatment of the deceased. OP has produced only the USG,

referral slip dated 28.9.2008, but he has not produced any cogent evidence about the

treatment and advice which he gave to the complainant, on 27.9.2008. We do not

agree with the contention of the OP that the Complainant delayed the matter and

wasted time, in securing necessary funds, to go to another hospital. Even the record,

on file, shows that the patient was referred, without giving any previous medical history

like the medicines used and the treatment so far given to the patient and history etc.

OP has delegated his duty of referral, through the diagnostic centre to send the patient

to some other hospital it appears that OP has waddled out of his responsibility. The

patient was in critical condition and suffering from severe abdominal pain was referred

to three different hospitals. We have perused the affidavit evidences of the Doctors

from Srinivasa Hospital, Andhra Hospital and the Nagarjun Hospital which do not

support the contention of OP. We would like to refer the Bolam test (Bolam Vs. Frien

Hospital Management Committee (1957)1 WLR 582).The OP did not exercise

reasonable care and caution. It was the duty of OP towards the patient to inform /

communicate about the seriousness of the disease and give proper advice, for further

treatment. This amounts to deficiency in service. It was unfortunate that the patient was

to rush from one hospital to another, throughout the day, and ultimately lost the Golden/

crucial period, who, subsequently, became more critical, and succumbed to disease.

Applying the Bolam’s principles of Standard of Practice and Reasonable Care, we hold OP-1 liable for medical negligence.

11. Consequently, revision petition filed by the petitioner, is dismissed. No order as to

costs.

.…..…………………………(J. M. MALIK, J.)PRESIDING MEMBER …...…………………………(Dr. S. M. KANTIKAR)MEMBER

Mss/11

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2561 OF 2008

(From the order dated 04.03.2008 in Appeal No. A-306/2005 of the State Consumer Disputes Redressal Commission, Delhi)

Life Insurance Corporation of India Divisional Office No. 1 25, K.G. Marg, New Delhi –

110001 Through: Assistant Secretary Northern Zonal Office, LIC Jeevan Bharti, Connaught Circus New Delhi

…Petitioner/Opp. Party

VersusMr. Chander Shekhar S/o Sh. Roop Chand Yadav R/o WZ/48/2, Village Khyala Delhi – 110088


BEFORE


For the Petitioner :Mr. Ashok Kashyap, Advocate

For the Respondent :Mr. M.L. Yadav, Advocate


O R D E R



4.3.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in short,

‘the State Commission’) in Appeal No. A-306/2005 - LIC of India Vs. Chander Shekhar by

which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent’s wife Sangeeta obtained

policy for Rs.1,00,000/- from OP/petitioner on 28.8.1997 and Sangeeta died on

29.4.1999. Complainant being husband and heir of deceased Sangeeta submitted claim

which was repudiated by OP on the ground of death of policyholder under mysterious

circumstance. Alleging deficiency on the part of OP, complainant filed complaint before

District Forum. OP resisted complaint and submitted that as death of complainant’s wife

was under mysterious circumstance, claim was not maintainable and was rightly repudiated

and prayed for dismissal of complaint. Learned District Forum after hearing both the parties

allowed complaint and directed OP to pay Rs.1,00,000/- with 9% p.a. interest and further

allowed cost of Rs.5,000/-. 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 per terms and conditions of policy death of assured did not occur in accident in public place, petitioner rightly repudiated

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

5. It is not disputed that deceased obtained policy on 28.8.1997 and she died on

28.4.1999 meaning thereby within two years of obtaining of policy. As per terms and

conditions of policy, Clause 4B appended with the policy was applicable, which runs as

under:

“Notwithstanding anything within mentioned to the contrary, it is hereby declared and agreed that in the event of death of the life assured occurring as a result of intentional self-injury, suicide or attempted suicide, insanity, accident other than an accident in a public place or murder at any time on or after the date on which the risk under policy has commenced but before the expiry of three years from the date of this policy, the corporation’s liability shall be limited to the sum equal to the total amount of premium (exclusive of extra-premiums, if any) paid under this policy without interest.” Provided that in case the life Assured shall commit suicide before the expiry of one year reckoned from the date of this policy, the provisions of the clause under the heading, “Suicide” printed on the back of the policy shall

apply

.6. Perusal of aforesaid clause makes it crystal clear that if within a period of 3 years from taking policy, death of assured occurrs as a result of intentional self-injury, suicide, accident other than an accident in a public place, LIC’s liability is limited to the sum equal to the total amount of premium paid under the policy without interest.

7. Now, the core question to be decided in this matter is whether death occurred in an

accident in public place or not. Complainant has not mentioned in the complaint under what

circumstances death occurred. In support of his complaint, complainant and his father filed

affidavit in which it was mentioned that complainant along with his wife Sangeeta were

returning from marriage party in the intervening night of 28.4.1999 and 29.4.1999 and at

12.30 A.M. in the mid-night on account of accident both fell unconscious and some

passers-by took them to Jaina Hospital, Meera Bagh, Delhi and on next day while shifting

to Maharaja Agarsen Hospital , Sangeeta succumbed to death due to injuries. Neither this

fact finds place in the complaint, nor complainant filed any FIR regarding accident. On the

other hand, complainant submitted statement to LIC in which it was mentioned

that Sangeeta fell down in the bathroom which caused immediate death due to neck bone

fracture and this statement bears signatures of complainant. As

per certificate of Jaina Hospital, Sangeeta was admitted in the hospital on 29.4.1999 at 1.30

A.M. She was having multiple lacerated cuts on face with bleeding wounds. She was

advised to stay in the hospital for observation, but she left hospital against medical

advice. From perusal of Jaina Hospital record, it becomes clear that nowhere it was

mentioned that Sangeeta sustained injuries in any accident. Nowhere it has been reported

that on account of neck bone fracture, she was admitted in the hospital. Not only

this, Sangeeta was taken from hospital against the medical advice and she was brought to

Maharaja Agarsen Hospital only after death. No post mortem was placed on record and in

such circumstances, it cannot be believed that Sangeeta died due to injuries sustained

in road accident and complainant was entitled to refund of only premium paid by the

assured and not the policy amount as per Clause 4-B of the policy. Learned District Forum

committed error in allowing complaint fully and learned State Commission further committed

error in dismissing appeal and imposing cost of Rs.25,000/- and impugned order is liable to

be set aside.

8. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 4.3.2008 passed by the State Commission, Delhi in Appeal No. A-306/2005 - LIC of India Vs. Chander Shekhar and order of District Forum dated 2.4.2005 in Case No. OC/1240/01 – Chander Shekhar Vs. LIC of India are set aside and modified and complainant is held entitled to refund of premium paid by assured to OP with no order as to costs.

……………Sd/-………………( K.S. CHAUDHARI, J)

PRESIDING MEMBER

k


(From the order dated 08.07.2008 in Appeal No. 907/2008 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow)

Rajvir Singh S/o Sh. Narain Singh R/o House No. 1089, Radhika Vihar, Phase-II, Post

Krishna Nagar, Mathura, Uttar Pradesh. …Petitioner/Complainant

VersusUttar Pradesh Awas and Vikas Parishad MIG 574, Radhika Vihar Post Krishna Nagar, Mathura, Uttar Pradesh Through Manager

…Respondent/Opp. Party (OP)

BEFORE


For the Petitioner :Mr. Rajvir Singh, In person

For the Respondent :Mr. Sambhavya Shanker, Proxy Counsel


O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the order dated

08.07.2008 passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, ‘the State Commission’) in FA No. 907/2008 - Uttar Pradesh Residential and Development Council Vs. Rajvir Singh by which, while allowing appeal, order of District Forum allowing complaint was dismissed.

2. Brief facts of the case are that complainant/petitioner purchased house

on installments from OP/respondent which was not properly constructed but under

compelling circumstances, he obtained possession of the house and sale deed was

executed in his name on the oral assurance that deficiencies in the house will be removed

later on. Construction work was of inferior quality and latrine, tank, kitchen, bathroom and

fittings were leaking. Alleging deficiency on the part of OP, complainant

filed complaint before District Forum. OP filed vakalatnama, but did not file written

statement and was proceeded ex-parte. Learned District Forum after hearing complainant

allowed complaint and directed OP to pay Rs.25,000/- along with interest. OP filed appeal

and learned State Commission vide impugned order while allowing appeal, set aside order

of District Forum and complaint was dismissed against which, this revision petition has been

filed.

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

record.

4. Petitioner submitted that as construction of house was defective and learned District

Forum rightly granted compensation, learned State Commission committed error in allowing

appeal and dismissing complaint; hence, revision petition be allowed and impugned order

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

passed by learned State Commission is in accordance with law; hence, revision petition be

dismissed.

5. Perusal of record reveals that learned District Forum allowed complaint ex-

parte. Learned State Commission while allowing appeal observed that petitioner failed to

place any document on record regarding deficiencies in the house. Admittedly, sale deed

in favour of the petitioner was executed on 1.9.2005 and possession was given on

29.10.2005 and at that time no defect was pointed in writing. Petitioner tried to prove by

affidavit that respondent assured to rectify defects in the construction, but no such

assurance stood proved in the absence of any documentary evidence. Complaint was also

filed on 26.4.2006 i.e. after almost 6 months of taking possession. Had there been

deficiency in construction, petitioner should have given notice for removing deficiencies just

after taking possession and should have filed complaint immediately. In the absence of any

satisfactory evidence on record, it cannot be presumed that there was any deficiency in the

construction work which was to be rectified. Learned State Commission has not committed

any error in allowing appeal.

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

costs.


PRESIDING MEMBER

k


(From the order dated 02.11.2012 in CMP No. 712/2012 in FASR No. 2142/2011 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai)

With IA/432/2013 (Stay)

K. Alfred S/o S.K. Dharmaraj, No. 34/2, East Vanniar Street,

Best Namasivayam Apartment,K.K. Nagar West, Chennai – 600078

…Petitioner/Complainant

Versus

Mahindra and Mahindra Financial Services Ltd. Rep. by its Managing Director, Tirupati House, 13, Kanniah Street, Near North Usman Road, T. Nagar, Chennai – 600017


BEFORE


For the Petitioner :In person

For the Respondent :Mr. Rajan Singh, Advocate


O R D E R



02.11.2012 passed by the Tamil Nadu State Consumer Disputes Redressal Commission,

Chennai (in short, ‘the State Commission’) in CMP No. 712/2012 in FASR No.

2142/2011 Mahindra & Mahindra Financial Services Ltd. Vs. – K. Alfred by which,

application

for condonationof delay was allowed.

2. Complainant/petitioner filed complaint before District Forum. OP/respondent did not

file written statement and was proceeded ex-parte and District Forum allowed complaint

and directed OP to pay Rs.10,000/- towards compensation for mental agony and Rs.5,000/-

as cost of litigation. Both the parties preferred appeals before State Commission and

respondent also filed application for condonation of delay of 200 days. Learned State

Commission vide impugned order condoned delay subject to payment of Rs.500/- as cost

against which, this revision petition has been filed.

3. Heard petitioner in person and Counsel for respondent finally at admission stage and

perused record.

4. Petitioner submitted that learned State Commission has committed error in allowing

application for condonation of delay of 200 days without assigning any reason; hence,

revision petition be allowed and impugned order be set aside. On the other hand, learned

Counsel for the respondent submitted that after condonation of delay at the insistence of

petitioner both appeals were decided by learned State Commission vide order dated

24.9.2013. In such circumstances, revision petition has become infructuous and may be

dismissed.

5. Perusal of record reveals that impugned order dated 2.11.2012 condoning delay was

not a speaking order. Record further reveals that after preferring revision, petitioner insisted

before State Commission to decide appeal and in such circumstances, learned State

Commission decided appeal of both the parties by order dated 24.9.2013. As appeals have

been decided finally by the learned State Commission, revision petition challenging order

of condonation of delay becomes infructuous and revision petition is liable to be

dismissed. Petitioner is free to challenge the order dated 24.9.2013 by filing a fresh revision

petition in which he can also challenge the order dated 2.11.2012 regarding condonation of

delay.

6. Consequently, revision petition filed by the petitioner is dismissed as having become

infructuous with no order as to costs.


PRESIDING MEMBER

k


(From the order dated 28.02.2008 in Appeal No. 746/2005 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai)

1. S. Seshadri S/o Mr. K. Srinivasan, 7A, Queens Court, 130, Montieth Road, Egmore

Chennai – 600008 2. Renuka Seshadri W/o Mr. S. Seshadri 7A, Queens Court, 130, Montieth Road, Egmore

Chennai – 600008 …Petitioners/Complainants

Versus

The Housing Development Finance Corpn. Ltd. Rep. by its Resident Manager, 79 LB

Road,Chennai – 600020


BEFORE



For the Petitioners :NEMO

For the Respondent :Mr. K.P. Toms, Advocate


O R D E R



28.02.2008 passed by the Tamil Nadu State Consumer Disputes Redressal Commission,

Chennai (in short, ‘the State Commission’) in Appeal No.746 of 2005 – S. Seshadri & Anr.

Vs. The Housing Development Finance Corporation Ltd. by which, while dismissing appeal,

order of District Forum dismissing complaint was upheld.

2. Brief facts of the case are that complainant/petitioner availed home loan of

Rs.7,00,000/- from OP/respondent on equitable mortgage of their property. As per request

of the complainant, payment was preponed and full payment was made under protest by

letter dated 31.1.2004. Alleging deficiency on the part of OP in charging excess interest,

penalty forprepayment and delay in returning documents, complainant filed complaint

before District Forum. OP resisted complaint and submitted that

interest preponment charges have been levied as per terms and conditions of the loan

agreement. It was further submitted that original documents of property were returned on

19.2.2004 and there was no deficiency on their part and prayed for dismissal of

complaint. Learned District Forum after hearing both the parties dismissed complaint

against which, appeal filed by the petitioner was dismissed by learned State Commission

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

3. None appeared for the petitioner and by letter he requested that matter may be

disposed of.

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

5. Learned Counsel for the respondent submitted that order passed by learned State

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

6. Perusal of record reveals that interest and preponment charges have been levied as

per loan agreement entered between the petitioner and the respondent and apparently,

there was no delay in returning documents. Petitioner deposited amount on 31.1.2004 and

OP asked the complainant to take documents on 16.2.2004 and documents were returned

on 19.2.2004. In such circumstances, order passed by learned State Commission and

learned District Forum are in accordance with law.

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

and revision petition is liable to be dismissed.



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

..……………Sd/-………………

( DR. B.C. GUPTA ) MEMBER

k


(From the order dated 29.06.2011 in Appeal No. A/10/1087 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

1. M/s. Adhiraj Construction (P) Ltd. 303, Sharda Chambers, 15, New Marine Lines,

Mumbai – 400020 2. Mr. Kunj Behari Gupta Director of the Adhiraj Construction (P) Ltd.

303, Sharda Chambers, 15, New Marine Lines, Mumbai – 400020 …Petitioners/Opp. Parties (OP)

VersusMr. Suresh K.V. D-301, Neel Sankalp Sector 5, New Panvel Navi Mumbai


BEFORE



For the Petitioner : Mr. Anand Patwardhan, Advocate

For the Res. No. 1 : Mr. Uday B. Wavikar & Mr. Vikas Nautiyal, Advocates

For the Res. No. 2 : Transposed as Petitioner No. 2


O R D E R




Mumbai (in short, ‘the State Commission’) in Appeal No. A/10/1087 – Adhiraj Construction

Pvt. Ltd. Vs. Suresh K V by which, while dismissing

application

for condonation of delay, appeal was dismissed.

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

District Forum and learned District Forum vide order dated 31.12.2007 allowed complaint

and directed OP/petitioner to give legal possession of the flat on receipt of balance amount

and further directed to pay Rs.25,000/- for mental agony and Rs.10,000/-

as litigationexpenses. OP filed appeal along with application for condonation of delay and

learned State Commission vide impugned order dismissed application for condonation of

delay as it was of more than 1000 days and consequently, appeal was not entertained

against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that he did not receive free copy of order of District Forum and there was delay of only 115 days in preferring appeal, but learned State Commission committed error in dismissing application for condonation of delay as delay was of more than 1000 days; hence, revision petition be allowed and impugned order be set aside and matter may be remanded back. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. Learned State Commission while dismissing application for condonation of delay

observed as under:

“From the certified copy of the order produced i.e. main file (Set I), it could be seen that impugned order is dated 31/12/2007. Copy thereof was sent by the forum to the parties under certificate of posting on 04/01/2008. It is a certified copy obtained afterwards on 21/09/2010. Copy of original certified copy received bears date of issue on 04/01/2008 and it is filed in second set for a member. It also bears date of dispatch of the said copy (free copy) as 04/01/2008. Therefore, this particular information is, prima facie, concealed by the applicant/appellant while presenting the application for condonation of delay. Under the circumstances, we find that delay in filing the appeal is not appropriately calculated. It is more than 1000 days and the same is apparently not properly explained, much less satisfactorily explained. Holding accordingly, we pass following order:-

ORDER

Misc.application for condonation of delay is rejected.

Consequently, appeal is not entertained.

Copies of the order be furnished to the parties”

6. To ascertain whether original certified copy issued on 4.1.2008 was available in

second set of the Member or not, record was called from the State Commission and learned

State Commission apprised that no extra set is available with them and record sent by them

does not contain original certified copy issued on 4.1.2008. Learned Counsel for the

respondent has drawn our attention to the noting made stating that free copy was sent by

UPC on 4.1.2008, but learned Counsel for the petitioner submitted that free copy alleged to

have been sent by UPC was never received by the petitioner.

7. Petitioner moved application for condonation of delay of 115 days whereas learned

State Commission dismissed application for condonation of delay on the ground that there

was delay of more than 1000 days calculated on the basis of original certified copy bearing

date of issue as 4.1.2008, which was filed in second set of the Member. As we do not find

certified copy issued on 4.1.2008 in State Commission’s record, it cannot be inferred that

there was delay of more than 1000 days in filing appeal and, prima facie, there was delay of

115/155 days in filing the appeal. In such circumstances, matter is to be remanded back to

learned State Commission to decide fresh application for condonation of delay treatingdelay

as 115/155 days in filing appeal.

8. Consequently, revision petition is allowed and impugned order dated 29.6.2011

passed by learned State Commission in Appeal No. A/10/1087 – Adhiraj Construction Pvt.

Ltd. Vs. Suresh K V is set aside and matter is remanded back to learned State Commission

to decide application for condoanation of delay afresh in the light of above observation after

giving an opportunity of being heard to both the parties.

9. Parties are directed to appear before the State Commission on 14.4.2014.


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk


(From the order dated 19.09.2011 in First Appeal No. 244 of 2008 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)

Life Insurance Corporation of India Jeevan Prakash Building, Relief Road Ahmedabad – 380001 Through its Branch Manager

…Petitioner/Opp. Party (OP)

Versus1. Help Line Grahak Mandal Through its Trustee Sh. Mukesh Shah, 4/B, Durvankar Apartment Kharivav Road, Near GPO, Vadodara – 390001

2. Shefaliben Mukeshbahi Patel Bhatvada, Vaadi, Vadodara


BEFORE



For the Petitioner : Mr. Amit Bansal, Advocate

For the Res. Nos. 1& 2 : NEMO/Ex-parte


O R D E R



19.09.2011 passed by the Gujarat State Consumer Disputes Redressal Commission,

Ahmedabad (in short, ‘the State Commission’) in Appeal No. 244 of 2008 – Life Insurance

Corporation of India Vs. Shri Mukesh Shah (Trustee of Helpline Consumer Mandal) by

which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that Mukesh Patel husband of the complainant No.

2/Respondent No. 2 obtained insurance policy for Rs.5,00,000/- on 30.11.2000 from

OP/petitioner. Mukesh Patel died on 13.12.2000. Complainant preferred claim before OP,

which was repudiated on the ground of suppression of illness in proposal form. Alleging

deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted

complaint and submitted that insured died within 13 days after taking policy and suppressed

material fact regarding his health; though, he had taken treatment from 18.11.2000 to

22.11.2000 and 1.12.2000 to 13.12.2000 and claim was rightly repudiated; hence,

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

complaint and directed OP to pay Rs.5,00,000/- along with interest @ 9% p.a. and further

allowed Rs.3,000/- towards cost of proceedings. Appeal filed by the petitioner was

dismissed by learned State Commission by impugned order against which, this revision

petition has been filed.

3. None appeared for respondent 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 deceased suppressed material facts

regarding his health, disease, previous treatment and hospitalisation and died within 13

days of obtaining policy and petitioner rightly repudiated the claim, but learned District

Forum committed error in allowing complaint and learned State Commission further

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

order be set aside.

6. Perusal of record reveals that in the proposal form submitted by the deceased insured

on 30.11.2000, his reply to personal history runs as under: “11 Personal History: : No

(a) During the last five years did you consult a : No Medical

Practitioner

for any ailment requiring

treatment for more than a week?

b) Have you ever been admitted to any hospital : No

or nursing home for general check-up, observation,

treatment or operation?

c) Have you remained absent from place of work : No.on grounds of health during the last five years?

(d) Are you suffering from or have you ever suffered : No

from ailments pertaining to Liver, Stomach, Heart,

Lungs, Kidney, Brain or Nervous system?

(e) Are you suffering or have you ever suffered : No

from Diabetes, Tuberculosis, High Blood Pressure,

Low Blood Pressure, Cancer, Epilepsy, Hernia,

Hydrocele, Leprosy or any other disease?

(f) Do you have any bodily defect or deformity? : No

(g) Do you ever have any accident or injury? : No

(h) Do you use or have you ever used: Reply : No

i) Alcoholic drinks : No

ii) Narcotics : No

iii) Any other Drugs : No

iv) Tobacco in any form : No

(i) What has been your usual state of health? : Good

(j) Have you ever received or at present ailing/ : No

undergoing Medical advice, treatment or tests in

connection with Hepatitis 'B' or an AIDS-related

condition?

On the contrary, record reveals that deceased consulted Dr. Bipin N Shah on 18.11.2000

with history of fever of 3 weeks duration and he was diagnosed to have Infective

Endocarditis that is on Prosthetic Aortic valve by Echo Cardiogram. It further appears

that Aortic valve replacement was done by Dr. Rajesh Desai at Rajasthan Hospital

in Ahmedabad before 2 years. It further reveals that on 30.11.2000 insured’s health started

worsening his kidneys started disfunctioning and his mentation approached to decline and

he was referred to Mumbai for further treatment. Record of Medical Research Centre (New

Wing) of Bombay Hospital Trust also contains similar endorsement and as per death

certificate issued byPublic Health Department of Mumbai, Mahanagar Palika, death caused

due to Cardio Respiratory failure on account of Multi Organ Failure “Septicaemia with

Hepatic Failure with Renal failure”. 7. Perusal of record clearly reveals that insured’s health was not good and he was

admitted in the hospital just prior to obtaining insurance policy; even then, he suppressed

material fact regarding his health and illness and previous treatment and in such

circumstances, OP has not committed any error in repudiating claim in the light of judgment

of Hon’ble ApexCourt reported in (2009) 8 SCC 316 – Satwant Kaur Sandhu Vs. New

India Assurance Co. Ltd. in which it was held that:

A. Insurance – Health insurance – Mediclaim policy – Nature and object of – Objection of insured to disclose true and full information sought in proposal form – Extent of said disclosure necessary – when information on a specific aspect is asked for in the proposal form, held, the assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge – Obligation to disclose extends only to facts which are known to the applicant and not to what he sought to have known – Whether the information sought for is material for the purpose of the policy is a matter not to be determined by the proposer”.“In present case, although insured was aware of the fact that he was suffering from chronic diabetes and renal failure, he did not disclose the said fact in proposal form for the policy – Hence, insurer was fully justified in repudiating the insurance contract.”

8. In the light of above discussion, it becomes clear that petitioner has not committed

any deficiency in repudiating claim on account of suppression of material fact while taking

policy from the petitioner and learned District Forum committed error in allowing complaint

and learned State Commission further committed error in dismissing appeal and revision

petition is to be allowed.


dated 19.9.2011 in Appeal No. 244 of 2008 – Life Insurance Corporation of India

Vs. ShriMukesh Shah (Trustee of Helpline Consumer Mandal) and order of District Forum

dated 31.1.2008 passed in CC No. 741 of 2003 is set aside and complaint stands dismissed



PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk


(From the order dated 04.06.2012 in Appeal No. 596/2012 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

1. The Branch Manager Life Insurance Corporation of India, Sindhanor, District Raichur. 2. The Manager/Divisional Manger Raichur Both represented by the Manager (L&HPF) 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)

VersusSri Ranganath S/o Late Mahadevappa Adaki R/o Aradakal Village Lingansugur TQ Raichur


BEFORE



For the Petitioner s : Mr. Pankul Nagpal, Advocate

For the Respondent : Mr. Pankaj Kumar, Advocate


O R D E R



04.06.2012 passed by the Karnataka State Consumer Disputes Redressal Commission,

Bangalore (in short, ‘the State Commission’) in Appeal No. 596/2012 – The Branch

Manager, LIC of India & Anr. Vs. Sri Ranganath by which, while dismissing appeal, order of

District Forumallowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent’s mother Smt. Shankaramma

obtained LIC policy No. 665061575 for a sum of Rs.50,000/- under New Janaraksha Plan

with profits for a period of 16 years commencing from 19.03.2009. Complainant was

nominee and legal heir of his mother. Smt. Shankaramma died on 12.5.2009. Complainant

submitted claim before OP/Petitioner, but that was repudiated by letter dated 9.2.2011 on

the ground that policy lapsed before death. Alleging deficiency on the part of OP,

complainant filed complaint before District Forum. OPs resisted complaint and submitted

that life assured did not pay due premium within the grace period and quarterly premium

due from December, 2009 was not paid; hence, policy lapsed. It was further submitted that

in usual practice, OP in the premium receipt itself shows next date for payment of premium

and no separate intimation is required for payment of premium and rightly repudiated the

claim and prayed for dismissal of complaint. Learned District Forum after hearing both the

parties allowed complaint and directed OP to pay Rs.50,000/- along with interest @ 9%

p.a. Appeal filed by the petitioner was dismissed by learned State Commission at

admission stage against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that as policy already lapsed before

death of insured, Insurance Co. rightly repudiated claim, but learned District Forum

committed error in allowing complaint and learned State Commission further committed

error in dismissing appeal; hence, revision petition be allowed and impugned order be set

aside. On the other hand, learned Counsel for the respondent submitted that order passed

by learned State Commission is in accordance with law; hence, revision petition be

dismissed.

5. It is admitted case of the parties that complainant’s mother obtained insurance policy

for a sum of Rs.50,000/- on 19.3.2009 and quarterly premium was to be paid in March,

June, September and December as shown in the policy. Insured died on 12.5.2009.

6. Learned Counsel for the petitioner submitted that premium due in December, 2009

and March, 2010 were not paid and learned Counsel for the respondent could not place any

document on record to prove that premium due in December, 2009 and March, 2010 were

paid by the insured and in such circumstances, it can be inferred that premium payable in

December, 2009 and March, 2010 were not paid. As per clause 2 of condition of the Policy,

30 days grace period was allowed for payment of quarterly premiums and it has further

been mentioned that if premium was not paid before expiry of days of grace, the policy

lapses. In the present case, payment due in December, 2009 and March, 2010 were not

paid within the grace period and in such circumstances, policy stood lapsed after 30 days of

premium to be deposited.

7. Learned Counsel for respondent submitted that no separate intimation regarding

payment of premium and grace period was given which amounted deficiency on the part of

petitioner. We do not agree with the submission because in the policy cover itself it has

been mentioned that premium was payable in March, June, September and December and

in such circumstances, no separate intimation for payment of premium was required. As

policy lapsed before death of insured, no claim was payable under the policy and petitioner

rightly repudiated the claim, but District Forum committed error in allowing complaint and

learned State Commission further committed error in dismissing appeal and revision petition

is to be allowed.


dated 04.06.2012 passed by the Karnataka State Commission, Bangalore in Appeal No.

596/2012 – The Branch Manager, LIC of India & Anr. Vs. Sri Ranganath and order of

District Forum dated 16.02.2012 passed in Complaint No. 82/2011 – Ranganath Vs. The

Branch Manager, LIC of India & Anr. is set aside and complaint stands dismissed with no

order as to costs.


PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBERk



(From the order dated 01.07.2013 in Appeal No. 30/2013 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Abhey Singh S/o Sh. Prabhu Dayal R/o H. No. 333, Street No. 14, Vijay Nagar, Konsiwas

Road, Distt. & Tehsil Rewari Haryana …Petitioner/Complainant

Versus1. Magma Leasing Ltd. G-74, Kamla Palace, Near Dharuhera Chungi, Rewari, Distt. & Tehsil Rewari Haryana2. Magma Leasing Ltd. Regd. office 24, Park Street, Kolkata – 700016 3. Anil Kumar, Officer, Magma Leasing Ltd. G-74, Kamla Palace, Near Dharuhera Chungi, Rewari, Distt. & Tehsil Rewari Haryana

…Respondents/Opp.Parties (OP)

BEFORE



For the Petitioner : Mr. Pawan Kr. Ray, Advocate

For the Respondents : Mr. Satish Kumar, Advocate


O R D E R



01.07.2013 passed by the Haryana State Consumer Disputes Redressal Commission,

Panchkula (in short, ‘the State Commission’) in Revision Petition No.30/2013 – Magma

Leasing Ltd. & Anr. Vs. Abhey Singh & Anr. by which, while allowing revision, order of

District Forum allowing amendment in the complaint was set aside.

2. Brief facts of the case are that complainant/Respondent No.1 purchased Truck No.

HR-47A-5171 from Libra Auto Mobile Ltd. for a sum of Rs. 11,17,136/- out of which,

Rs.10,00,000/- was financed by OP/petitioner and amount was to be repaid in 45

installments of Rs.30,536/- each. It was further alleged that vehicle was purchased on

15.2.2007, but OP wrongly started interest on installments from 29.1.2007 instead of

15.3.2007. Complainant paid insurance amount of Rs.38,050/-, but OP wrongly debited

this amount in the account of the complainant. OP also debited Rs.16,797/- in the account

of complainant on the basis of other charges, though, no such charges

were payable. Alleging deficiency on the part of OPs, complainant filed complaint before

District Forum. OP resisted complaint and submitted that complainant purchased truck

for commercial purposes and complaint has been filed just to delay

the recovery proceedings against the complainant and took some other objections also and

prayed for dismissal of complaint. During the pendency of complaint, complainant moved

application

for amendment in the complaint, which was allowed by learned District Forum against which, revision filed by the OP was allowed against which, this revision petition has been filed.


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

amendment, but learned State Commission committed error in setting aside amendment;

hence, revision petition be allowed and impugned order be set aside, whereas learned

Counsel for the respondents submitted that order passed by learned State Commission is in

accordance with law; hence, revision petition be dismissed.

5. Perusal of record reveals that complaint was filed on 21.2.2011 and written

statement along with objection regarding purchase of truck for commercial purposes was

filed on 9.6.2011. Complainant filed his evidence on 24.1.2012 and later on OPs filed

evidence and case was fixed for arguments on 9.10.2012 which was adjourned to

25.10.2012 and onthat day, complainant moved application for amendment of the

complaint, which runs as under:

“2. That at the time of filing of above noted complaint of said complaint Abhey Singh (Applicant) complainant had disclosed the material fact to his counsel that said vehicle (truck) bearing No.HR47A-5171 is used by the complainant for the purpose of earning his for his family livelihood. The whole family is depend upon the income generated by the said truck not for the purpose of any other commercial activities. The said fact was inadvertently not mentioned the said complaint or affidavit filed by the advocate of applicant/complainant.

3. That the above said fact came to the knowledge of applicant on dated 9.10.2011. On that day applicant inspected the file and thereafter now applicant filed this present application before the Hon’ble Forum. Material prejudice will be caused if this amendment will not allowed because the whole claim of the claimant is based on the said fact that the impugned vehicle bearing No.HR47A-5171 is used for the purpose of earning livelihood of complainant not for the commercial purpose”.

6. Learned District Forum allowed this amendment on the ground that strict principles

of Civil Procedure Code are not applicable in these summary proceedings and matter

should be decided on merits to determine whether the complainant purchased vehicle for

self-employment or for commercial purposes. Learned State Commission while setting

aside amendment, observed as under: “The facts of the instant case are attracted to the above cited case. In this case, there is nothing on the record to show that the complainant in spite of due diligence, could not have raised the matter before the commencement of the trial of the complaint. Therefore, the application moved by the complainant at the fag end of the trial of the compliant i.e. at the time of arguments, was not entertainable. District Consumer Forum has failed to appreciate the above stated facts of the case and committed grave error in allowed the application. Hence, the impugned order cannot be allowed to sustain”.

7. Learned Counsel for the petitioner placed reliance on III (2012) CPJ 706 (NC) Madan

Lal Arora Vs. Dharampal Ji, M.D.H. & Ors. in which it was held that delay is no ground for

refusal of prayer for amendment in written statement and Court cannot go into the question

of merit of amendment and order of impleading a party was passed. On the contrary,

learned counsel for the respondent placed reliance on (2005) 6 SCC 344 – Salem

Advocate Bar Association, T.N. Vs. Union of India in which it was held that amendment

after commencement of trial can be allowed only if amendment could not have been sought

in spite of due diligence.

8. Perusal of record reveals that OP took objection regarding purchase of truck for

commercial purposes on 9.6.2011 and according to application for amendment of

pleadings, complainant came to know this fact on 9.11.2011, but the application for

amendment was moved on 25.10.2012, after more than a year and that too after closing of

evidence by both the parties and after adjournment for final arguments. Thus, it becomes

clear that complainant did not move for amendment at the earliest and learned State

Commission rightly came to the conclusion that application for amendment of complaint at

the time of arguments was not entertainable.


and revision petition is liable to be dismissed.

10. Consequently revision petition filed by the petitioner is dismissed with no order as to

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

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 2241 OF 2013(From the order dated 21.02.2013 in First Appeal No. 25/2012 of State Consumer Disputes Redressal Commission, Andhra Pradesh, Hyderabad) Life Insurance Corporation of India Having its Central Office at ‘YOGAKSHEMA’ Jeevan Bima marg, Mumbai & its CO Legal Cell Delhi office, At H-39, New Asiatic Building, IInd Floor, Backside Connaught Place, New Delhi- 110001

…Petitioner Versus

Sh. C. Venkataramudu S/o Sh. K. C. Kottliah R/o 1-11-2-5-C, Kondapur Post Serlingampalli Mandal Ranga Reddy District Hyderabad 500008 (AP)

…Respondent

BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Anoop K. Kaushal, Advocate

For the Respondent : Mr. C. Venkataramudu, In person PRONOUNCED ON 11th MARCH, 2014

ORDER


1. The present Revision Petition is filed under Section 21 (b) of the Consumer

Protection Act, 1986 against the impugned order, dated 21.02.2013, passed in

FA/25/2012 by the State Consumer Disputes Redressal Commission, Hyderabad (in

short, ‘State Commission’). The State Commission allowed the Appeal and dismissed

the complaint.

2. Facts, in brief, relevant to decide this revision are, that Sh. C. Venkataramudu, the

Complainant took Asha Deep–II Policy, from Life Insurance Corporation of India, the

Opposite Party, for the sum assured Rs.2,00,000/-. That as per the policy conditions, if

the life assured is hospitalized, because of cancer, paralysis, heart and kidneys

ailment, then the said Insurance Corporation will pay 50% of the sum assured i.e.

Rs.1,00,000/- to the policy holder. The proposal form was submitted on 10.05.2002.

3. Complainant paid premium regularly, for two years. On 25.9.2003, complainant had

undergone a By Pass Surgery at Sri. Satya Sai Institute of Medical Sciences, and

thereafter, filed a claim with the OP. The claim was repudiated on the ground that, the

Complainant suppressed the material fact and took treatment after submitting the

proposal form, but before paying the first premium. The complainant Suppressed about

his consultation with Cardiologist for CAG. Aggrieved by the repudiation, complainant

filed a complaint before the District Consumer Disputes Redressal Forum, (in short,

‘District Forum’). The District Forum dismissed the complaint.

4. Against the order of District Forum, the complainant preferred an appeal before the

State Commission. The State Commission allowed the appeal and set aside the order

of District Forum and ordered that the Complainant is eligible for 50% of the sum

assured i.e. Rs.1,00,000/- @ 9% p.a., from the date of complaint and costs of

Rs.3,000/-.

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

6. We have heard the parties. The Complainant argued the matter in person and

submitted the written argument. The Counsel for the OP vehemently argued that, the

complainant had submitted the proposal form, on 10/5/2002, thereafter presented

himself before LIC medical examiner, but did not state anything adverse about his

health. The Complainant paid first premium, on 31.7.2002. The Complainant/life

assured executed the proposal for insurance and underwent medical and other special

tests, on 10.05.2002, the reports and other documents were received by the OP

Corporation i.e., Insurer (LIC), only on 31.07.2002. The counsel for OP submitted that

Complainant paid the premium on 31.07.2002 and prior to this on 25.06.2002, he has

consulted a Cardiologist, for Chest Pain. He drew our attention to the Out Patient

Report of Department of Cardiology, Sri Satya Sai Institute of Higher Medical Sciences,

Puttaparthi, which clearly show that Complainant visited Cardiology Department, on

25/6/2002, investigated by ECHO and diagnosed as AOE CL III, H/O REST PAIN and

advised medicines and CAG.

7. We have perused the declaration given by the Complainant, on 28.08.2002. The

answers given under the heading of “Additional Personal History”, have

been falsely declared. We are surprised to note that the complainant, being a RMP

himself, deliberately suppressed such material fact, about Cardiology Consultation and

knowingly, paid First Premium.

8. Therefore, we are of considered view that, under the terms and conditions of the said

policy, it was the duty of the proposer to give correct answers to all the questions, in the

proposal form with regard to state of health, as the contract of insurance, unlike other

contracts, is based on ‘utmost good faith’, and in the event of any false statement or

concealment of material facts, by the proposer /life assured, the same is rendered, null

and void, ab initio. The sole responsibility of filling complete proposal form, is on the

proposer. It is also the responsibility of the proposer to read and understand the forms,

before signing the same.

9. Therefore, on the basis of foregoing discussion, we set aside order passed by State

Commission and dismiss the complaint. The revision petition filed by the petitioner, is

allowed. No order as to costs. .…..…………………………(J. M. MALIK, J.)PRESIDING MEMBER …...…………………………(Dr. S. M. KANTIKAR)MEMBERMss/12



(From the order dated 07.01.2013 in Appeal No. 2667/2006 of the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad)

Muktaji Vishnuji Chemate R/o Bhalvani, Taluka Parner District Ahmednagar, Maharashtra

…Petitioner/Complainant

Versus1. Escorts Ltd. Through Authorized Representative Corporate Centre 15/5, Mathura Road, Faridabad 2. Daulat Auto Services S. No. 126/128, Plot No. 18 Farmtract Tractor Agency, Station Road, Kinetic Chowk, Ahmednagar

3. Mr. Mahesh Kelkar 105, Chitar Floriana Estate, East Avenue, Kalyani Nagar, Pune – 411014 4. Mr. Rajan Nanda Escorts Ltd., 18/4, Mathura Road, Faridabad – 121007 5. Business Head Escorts Ltd., 18/4, Mathura Road, Faridabad – 121007

…Respondents/Opp. Parties (OP)

BEFORE



For the Petitioner : Mr. Amol Karande, Advocate


O R D E R




Circuit Bench at Aurangabad (in short, ‘the State Commission’) in Appeal No. 2667/2006 –

Escorts Ltd. & Ors. Vs. Mr. Muktaji Vishnuji Chemate & Anr. by which while allowing appeal

partly, order of District Forum allowing complaint, was modified.

2. Brief facts of the case are that complainant/petitioner purchased tractor on 10-08-2004

from opposite party no. 5/Respondent No. 2, which was manufactured by O.P. No. 1 to

4/Respondents No. 1, 3 to 5. Respondents advertised and assured that tractor would

require 2.5 litre diesel per hour whereas it was consuming 6 litres diesel per hour from time

to time. Tractor was taken to O.P. No. 5 and he changed some parts but problem was

not solved. Alleging deficiency on the part of the opposite party, complainant filed

complaint for replacement of tractor and damages. Opposite party no. 1 to 4 resisted

complaint and submitted that there was no independent expert evidence and in absence of

that there was nomanufacturing defect in the tractor. It was further submitted that

complaints of complainant were attended promptly and consumption of diesel depend upon

use of tractor, load being carried, drought conditions and other related aspects and prayed

for dismissal of complaint. O.P. No. 5 also resisted complaint and submitted that tractor

consumed only 2.2 litre of diesel for 16 kms. and there was no defect. It was further

submitted that if there was any manufacturing defect, he was not responsible and prayed for

dismissal of complaint. Learned District Forum after hearing both the parties allowed

complaint partly against O.P. Nos. 1 to 4 and directed them to replace tractor by new one,

having no manufacturing defect and further allowed Rs.10,000/- as compensation,

Rs.5,000/- towards mental agony and Rs.2,000/- as cost of litigation. Appeal filed by O.P.

No. 1 to 4 was partly allowed by learned State Commission vide impugned order and

learned State Commission modified the order of the District Forum and directed them to

replace the engine by new engine, against which this revision petition has been filed.

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

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

complaint and directed opposite parties to replace the tractor by new defect free tractor but

learned State Commission committed error in allowing appeal partly and directing opposite

parties to replace engine, hence revision petition be admitted.

5. Learned counsel for the petitioner was asked to place on record any

document/assurance regarding consumption of 2½ litre diesel per hour as well expert

report that tractor was consuming 6 litre diesel per hour. Inspite of only such document on

record learned District Forum allowed replacement of tractor by new tractor without any

reason. Learned State Commission rightly modified the order and directed opposite party

no. 1 to 4 to replace only the engine by new engine. As alleged in the complaint, deficiency

in tractor was only regarding consumption of excess diesel, learned State Commission

rightly directed opposite parties to replace engine. No other deficiency was pointed out in

the tractor and in such circumstances; learned State Commission rightly modified the

order. There was no necessity to replace tractor by a new tractor.


and revision petition is liable to be dismissed at admission stage.



..……………………………(K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………………………

(DR. B.C. GUPTA)

MEMBERaj


REVISION PETITION NO. 3052 OF 2010(From the order dated 03.06.2010 in Appeal No. 1160 of 2009 of the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur)

M/s. Shanker Golden Transport Company Through: Its Manager, Shri Hanuman, R/o- 60-61, Sansar Chandra Road, Jaipur, (Rajasthan)

… Petitioner-OP1

Versus1. M/s. Ambika Sales Through: Its Manager, Sh. Vinod Singh Bagiyal, Kanota House,

Mani Ram Ki Kothi, Haldiyon Ka Rasta, Johari Bazar, Jaipur (Rajasthan)

… Respondent-Complainant

2. M/s. Vaibhav Garments, J-5, Housing Board, Chittorgarh (Rajasthan)

… Respondent-OP2

BEFORE:

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

For the Petitioner : Mr. Devendra Mohan Mathur, Advocate

For the Respondent No. 1: Mr. Reepak Kansal, Advocate

For the Respondent No. 2: (Notice Not Required)

PRONOUNCED ON : 12th MARCH 2014O R D E R

PER JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER

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

dated 03.06.2010, passed by the State Commission in Appeal no.

1160/2009, Ambika Sales, Jaipur vs. M/s. Shanker Golden Transport Company, vide

which, while allowing the appeal, order of District Forum dismissing complaint was set

aside.

2. Brief facts of the case are that complainant/respondent no. 1 booked goods with

opposite party no. 1/petitioner on 28.9.2005 through builty no. 404730 and on 01.10.2005

through builty

no. 405962. Both these builties were of self and goods of both these builties was to be

delivered only after getting payment of

Rs. 91,294/- from opposite party no. 2/respondent no. 2. Opposite party no. 1 delivered

goods to opposite party no. 2 without endorsement by the complainant and without

receiving payment of Rs. 91,294/-. Alleging deficiency on the part of the opposite parties,

complainant filed complaint before the District Forum. Opposite party no.

1 contested complaint and submitted that as per oral instructions of complainant, goods

were handed over to opposite party no. 2. Complainant does not want to

recover money from opposite party no. 2 and has filed complaint in collusion. It was,

further, submitted that after delivery of goods, for six months, complainant did not contacted

to the opposite party and prayed for dismissal of complaint. Complainant deleted opposite

party no. 2 on 14.02.2007. The District Forum after hearing both the parties dismissed

complaint. Appeal filed by the complainant was allowed by the State

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

3. After admission, respondent no. 2 was not served, as he stood deleted by the

complainant.

4. Heard learned counsel for the parties and perused record.

5. Learned counsel for the petitioner submitted that goods of self builty were delivered by

opposite party no. 1 to opposite party no. 2 as per instructions of the complainant and the

District Forum rightly dismissed the complaint even then, the 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 respondent no. 1 submitted that order

passed by the State Commission is in accordance with law, hence revision petition be

dismissed.

6. It is admitted case of the parties that complainant transported goods vide two

self builties through opposite party no. 1 and opposite party no. 1 delivered goods to

opposite party no. 2.

7. The short question to be decided is whether any payment of value of goods was to be

received by opposite party no. 1 while delivering goods to opposite party no.

2. Admittedly,builties do not mention value of the goods and only freight etc. to be charged

has been indicated on the builty. Perusal of record clearly reveals that after receiving

freight and other charges, goods were delivered by opposite party no. 1 to opposite party

no. 2 on

production

of original builty. Opposite party no. 1 specifically pleaded that goods were delivered to opposite party no. 2, as per instructions of complainant himself. Complainant’s grievance is

only to the extent that payment was not taken by opposite party no. 1 from opposite party no. 2 at the time of delivery of goods. There was no question of receiving payment as builty did not contain price of the goods as well as self builties goods are to be delivered to the person, who presents original builty without making any payment. Petitioner rightly delivered goods to opposite party no. 2 on presentation of original builty and the District Forum rightly dismissed the complaint.

8. Complainant impleaded opposite party no. 2 in the complaint who received goods of

self builty, but later on, deleted opposite party no. 2 from the array of parties. It

showscollusion between the complainant and opposite party no. 2, who had received goods

of self builty, sent by complainant. Learned counsel for the respondent could not place

originalbuilty on record and in the absence of original builty, petitioner was not liable to

make payment of value of the goods of the builty and the State Commission committed

error in allowing complaint and this order is liable to set aside.


dated 03.06.2010, passed by the State Commission in appeal no.

1160/2009, Ambika Sales, Jaipur vs. M/s. Shanker Golden Transport Company is set aside

and order of the District Forum dismissing complaint is affirmed with no order as to costs.

..……………………………

(K. S. CHAUDHARI)

PRESIDING MEMBER

..……………………………

(DR. B.C. GUPTA)

MEMBERPSM

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 188 OF 2013

(Against the order dated 18.09.2012 in Appeal No. 743/2011 of the State Commission Andhra Pradesh, Hyderabad)

WITH INTERIM APPLICATION NO. 356 OF 2013 INTERIM APPLICATION NO. 794 OF 2013 (Stay and Omission of Parties)

1. The Iffco Tokio General Ins. Co. Ltd. 8, AJC Bose Road Circular Court, Ist Floor Kolkata – 700017.

2. The Iffco Tokio General Insurance Co. Ltd. Rep. by its Manager Dwarakanagar Visakhapatnam ( A.P.) Through The Vice President The Iffco Tokio General Insurance Co. Ltd. C.S.C. 42A, Shakespeare Sarani 3rd Floor, Flat No.3A Express Tower, Kolkata – 700017

........ Petitioners

Vs.

Boddeda Satyavathi w/o Late Venkata Ramana D.No.2-44, Chinna Vathapalem (V) Aripaka Post, Subbavaram (M) Visakapatnam – 530008

......... Respondent

BEFORE:

HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

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

For the Respondent : Ms. K Radha, Advocate


ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision petition is directed against the order of the State Commission,

Hyderabad dated 18.09.2012 in First Appeal No.743/2011 whereby the State

Commission allowed the appeal preferred by the respondent/complainant, set aside the

order of the District Forum and directed the petitioner to pay a sum of Rs.5 lacs to the

respondent/complainant with interest of 9% p.a. from the date of the complaint till the

realization of amount besides cost of litigation of Rs.5,000/-.2. Briefly put the facts relevant for the disposal of the revision petition are that Late

Buddeda Venkata Ramana, husband of the respondent/complainant had obtained a

Group Personal Accident Policy through M/s. Golden Multi Service Club Ltd. The policy

was valid for the period w.e.f. 16.01.2006 to 15.01.2007 and it covered accident risk of

Rs.1 lac. It is claimed by the complainant that on 22.02.2006, the insured accidently fall

from a coconut tree and sustained head injury. He was taken to

Government Hospital Anakapalle where he was given treatment as out-

patient. Thereafter, he was shifted to his residence where he died on 22.02.2006. The

death was immediately notified to the Village Gram Panchayat and insurance claim was

filed with the petitioner insurance company but the claim was not allowed. Being

aggrieved, the respondent/complainant filed a consumer complaint before the District

Forum.

3. The petitioner insurance company in their WS took the plea that the insurance

claim filed by the respondent/complainant was rightly repudiated because the reason for

death of the insured was not the accident but he died due to jaundice.

4. Learned District Forum on consideration of evidence and the pleadings of the

parties, did not find merit in the complaint. Accordingly, the complaint was dismissed

with cost of Rs.5,000/-.

5. Being aggrieved by the order of the District Forum, the respondent/complainant

preferred an appeal. The State Commission, Hyderabad on consideration of evidence

came to the conclusion that the death of the deceased was caused because of injuries

suffered due to fall from the coconut tree. As such, the State Commission thus held that

the claim was covered under the insurance policy and the repudiation was not

justified. Accordingly, the appeal was allowed, order of the District Forum was set aside

and the petitioner insurance company was directed to pay the insurance amount with

9% interest p.a. from the date of filing of complaint along with cost of Rs.5,000/-. It is

against this order the petitioner filed the revision petition.

6. It is not disputed that the deceased was insured under personal accident group

policy. It is also not disputed that during the validity of the said policy the insured died

on 22.06.2006. Only dispute between the parties is with regard to the cause of death.

According to the respondent/complainant, the insured died because of the head

injury suffered on 20.06.2006 due to fall from the coconut tree whereas according to the

petitioner the cause of death of the insured was jaundice as such under the terms and

conditions of personal accident cover group policy, the petitioner insurance company

was not obligated to pay the insurance claim.

7. On perusal of record, we find that the foundation of the order of the State

Commission is the medical certificate purported to have been issued by Dr.G.Sarat

Chandra Babu of Vaidyalayam Area Hospital, Anakapalle, which reads thus:“MEDICAL CERTIFICATE Signature of the Patient: This is to certify that Sri/Smt./Kum Boddeda Venkata Ramana, Male 38, Chinna Vathapalem (V) is suffering from injury head due to fall from tree and is advised rest and treatment for a period of one day w.e.f. 20/2/06. Hence this certificate.Place: Sd/-Date: MEDICAL OFFICER”

8. The above medical certificate which is the bedrock of the impugned order is highly

suspect and even if it is taken as correct, then also it does not establish that the insured

B.V.Ramana died because of head injury suffered in an accidental fall from coconut

tree. Perusal of the translated copy of the insurance claim filed by the respondent

complainant would show that in the aforesaid claim, against the column “description of

accident / cause of accident”, the

answer

given is “jaundice”. No information regarding the extent of injury, date or time of death is given. Further against the column “Name / ADD of Hospital where insured was treated” and “Name / ADD of Doctor who attended injured”, neither the name of the hospital is mentioned nor name of the doctor is mentioned. Had the insured been taken to Vaidyalayam Area Hospital, Anakapalle under the natural course of circumstances, the complainant respondent would have mentioned the name of the hospital and had the patient been examined / treated by Dr.G.Sarat Chandra Babu, the complainant obviously would have mentioned his name. This circumstance clearly show that the medical certificate issued by the above noted doctor has been procured to substantiate the claim. Otherwise also, on reading of the medical certificate we find this certificate does not throw any light upon the cause of death of the deceased. It may also be noted that Dr. K.V.V.Anand of Area Hospital Anakapalle in his testimony has stated that the OPD ticket of the hospital bearing no. 14205 dated 20.02.2006 in the name of N.V.Rao aged 35 years is not in the handwriting of any of the medical officers working in the hospital. He further stated that medical certificate issued by Dr. Babu is not based upon OPD ticket. Therefore, OPD ticket itself is a suspect. Perusal of Investigation Report dated 29.09.2006 of R.Ramakrishna Rao, Surveyor and Loss Assessor, we find that during the inquiry, the Surveyor spoke to the respondent complainant as also Mrs.B. Poornimavathi, daughter of the insured and Sh. B.Sriramulu, father of the insured. All of them stated that insured Sh. B.Venkata Ramana had died on 22.02.2006 at home due to jaundice and fever. In view of the above, we find it difficult to rely upon the medical certificate issued by Dr.G.Sarat Chandra Babu and OPD ticket.

9. The State Commission in our considered view while setting aside the order of the

District Forum has failed to appreciate aforesaid aspect of the case. Therefore, the order of

the State Commission which has been passed ignoring the material evidence, cannot be

sustained. Revision petition is, therefore, allowed. Order of the State Commission is set

aside and the complaint is dismissed.

………………Sd/-………….

(AJIT BHARIHOKE, J) ( PRESIDING MEMBER)

…………Sd/-………………

(SURESH CHANDRA) MEMBER

Am/



(From the order dated 31.12.2013 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in Appeal no. 1010 of 2013)

Mopuri Obanna Son of M C Kondaiah Resident of H No. 11-3-155 Shri Venkateshwara Colony Road no. 13 Saroor Nagar Hyderabad (Andhra Pradesh)

Petitioner

Versus

M/s Sai Chaitanya Housing Pvt. Ltd, Office at Flat no. 311 Annapurna Block Aditya Enclave Ameerpet Hyderabad (Andhra Pradesh) Represented by its Chairman D Sambasiva Rao

Respondent

BEFORE:



For the Petitioner Mrs K Radha, Advocate


ORDER

REKHA GUPTA



Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (‘the State

Commission’) in First Appeal no. 1010 of 2013.

2. The brief facts of the case as per the petitioner/ complainant are that the respondent/

opposite party floated a venture under the name and style “Flight City” in S Nos. 451/P and

457/ P situated at Maheswaram Village and Mandal, RR District. The respondent

represented and obtained necessary approvals from the competent authorities. The

respondent promised to develop the venture as per the norms of HUDA/ DTCP. Being

induced by the representations made by the respondent, the petitioner joined as a Member.

3. The respondent offered to sell plot no. 31 in ‘C’ site in the said venture. The petitioner

paid Rs.4,00,000/- vide Andhra Bank Cheque no. 659394 which was encashed on

21.03.2006. He also paid another sum of Rs.6,44,700/- vide Andhra Bank Cheque no.

697101 which was encashed on 02.11.2006. The petitioner has filed the Xerox copy of the

Bank Pass Book to establish that the said cheques were encashed by the respondent, on

the respective dates. The petitioner paid a total sale consideration of Rs.10,44,700/- to the

respondent. The respondent executed and registered the sale deed on 18.11.2006 in

favour of the petitioner conveying the title plot no. 31-C admeasuring 337 sq. yds in Sy no.

451/P and 457/P inMaheswaram village and Mandal, RR District. Though the petitioner paid

Rs.10,44,700/- in the sale deed the respondent mentioned Rs.2,35,900/- as the market

value of the property.

4. Though the sale deed was handed over to the petitioner, the respondent has not

handed over the copy of HUDA/DTCP approved plain inspite of repeated demands made by

the petitioner. On several occasions, the petitioner made personal visits to the Head

Office of the respondent at Ameerpret, as well as the Branch Office of the respondent

at Dilsukhnagar. There is no proper response from any one of them. The respondent has

not complied with the demand of the petitioner.

5. The petitioner being vexed with the indifferent attitude of the respondent, on

15.11.2012, sent a registered letter to the Registered office of the respondent situated at

Flat no. 311, Annapurna Block, Aditya Enclave, Ameerpet, Hyderabad. The said registered

letter returned un-served with postal endorsement “addressee left hence, returned to

sender”. The petitioner was shocked to learn that the Head Office of the respondent was

closed/ shifted without any intimation even to postal authorities.

6. On 01.12.2012, the petitioner sent another registered letter demanding the respondent

to supply a copy of DTCP/HUDA approved plan. Though the said registered letter served on

the respondent, they have not chosen to give any reply to the petitioner.

7. Having been left with no other alternative on 26.12.2012 the petitioner got issued

a legal notice demanding the respondent to furnish a copy of the approved plan of the lay

out issued by HUDA/ DTCP. Though the legal notice was served, the respondent has not

chosen to give any reply nor furnished a copy of the approved plan. The stoic silence

maintained by the respondent reveals that they have not obtained any approval for the said

layout either from HUDA or DTCP.

8. The respondent being a Real Estate Development was well aware that without proper

approval from DTCP/ HUDA/ HMDA offering to sell the plots to innocent customers not only

amounts to deficiency in service but also amounts to unfair trade practice. A perusal of the

registered Sale Deed dated 18.11.2008, executed by the respondent discloses that the

respondent has intentionally not even whispered about the approval given by HUDA/DTCP.

From the above, it can be concluded that the respondent has not obtained any approval

from the Urban Development Authority. The petitioner and his family members have been

subjected to serious inconvenience, hardship and mental agony apart from irreparable

financial loss.

9. Cause of action: Cause of action has arose on 18.03.2006 when the petitioner paid

Rs.4,00,000/- and on 02.11.2006, when the petitioner paid Rs.6,44,700/- and on 18.11.2006

when the respondent executed the registered sale deed in favour of the petitioner on

15.11.2012, when the petitioner sent a registered letter to registered office of the

respondent on 01.12.2012, the petitioner sent another registered letter demanding the

respondent to supply a copy of DTCP approved plan and on 26.12.2012 when the petitioner

got issued a legal notice and at Dilsukhnagar, RR District where the respondent is situated

at Maheswaram Village RR District where the plot is situated within the jurisdiction of

the Hon’ble Forum.

10. Therefore, it was prayed that the Hon’ble Forum in the interest of justice may be

pleased to direct the respondent:

(i) To refund Rs.10,44,700/- with interest @ 18% per annum from the

respective dates of payment till the date of realisation;

(ii) To pay compensation of Rs.60,000/- towards serious inconvenience,

hardship and mental agony;

(iii) To pay cost of Rs.10,000/-

11. Before the District Consumer Disputes Redressal Forum, Ranga Reddy District (‘the

District Forum’), the respondent/ opposite party was declared ex parte. The District Forum

observed as under:

“3. Notice was sent to the opposite party which returned with endorsement

“unclaimed”. Service was found sufficient and the right to file written version of the

opposite party was forfeited”.

The District Forum allowed the complaint by observing that: “though sufficient

opportunity

was given, opposite party did not choose to file any written version or adduce any evidence in his support, denying the allegations made by the complainant. In the absence of any rebuttal evidence, we have to believe the version of the complainant that the opposite party had not obtained any approvals from the necessary authorities. As such selling the plots to the customers by representing that the approvals are duly obtained from necessary authorities amounts to ‘deficiency of service’ and ‘unfair trade practice’ on part of the opposite party.

In view of our finding in Point No.1, we are of the opinion that the complainant is

entitled to claim back the sale consideration paid by him from the opposite party.

However, an interest of 12% p.a. only can be awarded to him from the date of

payment i.e. 02.11.2006 till realization. As interest is being awarded, compensation

cannot be given. The complainant is also entitled to claim an amount of Rs.2,000/-

from the opposite party towards costs of the complaint.

In the result, the complaint is allowed directing the opposite party to repay the entire

amount of Rs.10,44,700/- (Rupees Ten Lakhs Forty Four Thousand Seven Hundred

only) along with 12% interest p.a. from 02.11.2006 till date of realization. The

opposite party is also directed to pay to the complainant an amount of Rs.2,000/- as

costs of the complaint”.

12. Aggrieved by the order of the District Forum the respondent/ opposite party filed an

appeal before the State Commission. The State Commission gave the following order:

“In the result, the appeal is allowed. The order of the District Forum is modified. The

appellant/ opposite party is directed to supply copy of HUDA/DTCP approved layout

and pay an amount of Rs.25,000/- to the respondent complainant”.

13. In their order dated 31.12.2013 the State Commission observed as under:

“The appellant was proceeded ex parte. Feeling aggrieved by the order of the

District Forum, the opposite party has filed appeal contending that the District Forum

failed to see that the appellant executed sale deed in favour of the respondent on

18.11.2006 and the complaint is filed on 17.01.2013 which is beyond the period of

limitation. It is contended that surrendering rights and claiming return of the amount

is unjust enrichment of the respondent and that the respondent has not filed any

document to show that the appellant promised him approved layout of the plot. It is

contended that the award of interest from the date of sale deed instead of date of

complaint even when the respondent is in possession and enjoyment of the property

is unjust and arbitrary.

Sale of plot bearing number 31 in Flight City, Maheswaram Village and Mandal, R.R.

District under registered sale deed bearing document number 20882/06 dated

18.11.2006 and handing over possession of the plot as also the sale deed are

beyond any dispute. The learned counsel for the appellant has contended that the

claim is barred by law of limitation on the premise of period between date of sale

deed and date of filing the complaint exceeding 6 years against the limitation period

of 2 years prescribed by Section 24-A of the Consumer Protection Act. He has

placed reliance on the decision of the Hon’ble Supreme Court in “Haryana Urban

Development Authority vs B.K.Sood” reported in (2006) I SCC 164.

In B K Sood (supra), possession of site was delivered to the complainant in 1987

and unauthorized bhatties were kept in the verandah of neighboring house prior to

1989 the removal of which were claimed by the complainant , were removed in 1994.

The complaint was filed before the State Commission in 1997 which was held by the

Supreme Court barred by law of limitation as under:

“Section 24-A of the Consumer Protection Act, 1986 (referred two as the Act hereafter) expressly cast a duty on the Commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.

The Section debars any Fora set up under Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor the State Commission had considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time. According to the complaint filed by the respondent, the cause of action arose when, according to the respondent, possession was received of the booth site and it was allegedly found that an area less than the area advertised had been given. This happened in January, 1987. Furthermore, the bhatties which were alleged to have caused loss and damage to the respondent, as stated in the complaint, had been installed before 1989 and removed in 1994. The complaint before the State Commission was filed by the respondent in 1997, ten years after the taking of possession, eight years after the cause of alleged damage commenced and three years after the cause ceased. There was not even any prayer by the respondent in his complaint for condoning the delay. Therefore, the claim of the respondent on the basis of the allegations contained in the complaint was clearly barred by limitation as the two year period prescribed by Section 24A of the Act had expired much before the complaint was admitted by the State Commission. This finding is sufficient for allowing the appeal.”

In the instant case, the sale deed was executed and possession for the plot was

delivered to the respondent on 18.11.2006. The respondent had not adduced any

evidence to the effect he demanded for refund of the amount paid to the appellant

company. He had chosen to address letter on 15.11.2012 and 1.12.2012 and notice

dated 26.12.2012 with a request to furnish copy of HUDA approved layout of the

plot. The complaint is filed seeking for refund of the sale consideration about 6 years

after the sale deed is executed and possession was delivered to the respondent. As

such, and on application of ratio in B K Sood (supra), we are of the view that

complaint is barred by law of limitation in so far as claim for return of the amount is

concerned.

It is the case of the respondent that the appellant misrepresenting that the venture

was with HUDA approved layout and he purchased the plot in the venture believing

the version of the appellant company that HUDA had sanctioned the layout. The

appellant had not furnished copy of layout to the respondent. As such the complaint

cannot be said to be filed beyond period of limitation. However, the respondent had

not sought for the layout and molded the relief for refund of the amount in terms of

the notice dated 26.12.2012 the material portion of which reads as under:

“5. My client further states that being a Real Estate Development and you are well aware that without property approval from DTCP/HUDA/HMDA offering to sell the plots to innocent customers not only amounts to deficiency in service but also amounts to unfair trade practice. A perusal of the registered Sale Deed dt.18.11.2006 executed by you discloses that you intentionally never whispered about the approval given by HUDA/DTCP. From the above, it can be concluded that you have not obtained any approval from the Urban DevelopmentAuthority. Your stoic silence without giving reply to the registered of my client also fortifies the said conclusion. You have to clarify whether you obtained approval for the said lay out from any competent authority or not. Depending upon you response/reply, my client will initiate further proceedings.”

As stated in the aforementioned paragraphs of the order, the claim for return of the

sale consideration cannot be held sustainable in the eye of law and keeping in view

of the principles of natural justice and also the claim for furnishing of layout as

sought for in the letters dated 15.11.2012 and 1.12.2012 and notice dated

26.12.2012 being within time, we are inclined to modify the relief granted by the

District Forum and award the relief for supplying the copy of HUDA/DTCP approved

layout of the plot and a sum of Rs.25,000/- towards compensation to the respondent.

In the result, the appeal is allowed. The order of the District Forum is modified. The

appellant/opposite party is directed to supply copy of HUDA/DTCP approved layout

and pay an amount of Rs.25,000/- to the respondent/complainant. There shall be no

separate order as to costs”.


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

The State Commission ought not to have interfered with the order of the District

Forum which rightly directed the respondent to refund the amount of Rs.10,44,700/-

with interest at 12% on 02.11.2006 as admittedly the respondent failed to supply the

approved layout of HUDA/ DTCP. The respondent did not whisper in his memorandum of appeal filed before the

State Commission in respect of the approved plan of HUDA/ DTCP and has not

assured the complainant or the State Commission that he will supply the copy of the

approved layout to the petitioner. Hence, the State Commission was not correct in

modifying the order of the District Forum.

The respondent have received Rs.10,44,700/- towards the sale consideration in

respect of the plot in question executed the sale deed for Rs.2,35,900/- only. There

is no explanation from the respondent in this regard.

The cause of action is a continuous one as the respondent failed to supply the

copy of the approved plan and other link documents in spite of several requests

made by the petitioner and did not contest the complaint before the District Forum,

hence, his plea that the complaint is barred by limitation is liable to be rejected,

particularly when he failed to give any reply to the letters dated 15.11.2012,

01.12.2012 and the Legal Notice dated 26.12.2012 sent by the petitioner.

16. It is an undisputed fact that even as per the complaint of the petitioner that the cause

of action had arisen in 2006. The complaint was filed in 2013. Even as per the case of the

petitioner after 2006 the year in which he paid Rs.10,44,700/- to the respondent and the

respondent executed the registered sale deed in favour of the petitioner on 18.11.2006, the

petitioner next wrote to the respondent only on 15.11.2012 and filed the complaint before

the District Forum in January 2013.

17. We find that, in view of facts above, the State Commission has correctly held that the

complaint was filed seeking refund of the amount six years after the sale deed had been

executed and possession was delivered to the respondent, as such on the application of

ratio of B K Sood (Supra) it is barred by law and limitation. Hence, the order of the State

Commission is set aside, the revision petition as also the complaint are dismissed as the

complaint is not maintainable, with a cost of Rs.5,000/- (Rupees five thousand only).

18. Petitioner is directed to deposit the cost of Rs.5,000/- (Rupees five thousand only) by

way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission,

within four weeks from today. In case, the petitioner fails to deposit the said cost within the

prescribed period, then it shall also be liable to pay interest @ 9% per annum till realization.

19. List on 11th April 2014 for compliance.

Sd/-

[ V B Gupta, J.]

Sd/-

[Rekha Gupta]

Satish


REVISION PETITION NO. 2064 OF 2012 (From the order dated 17.04.2012 in Appeal No. C-271/10 of the State Consumer Disputes Redressal Commission, Delhi)

Beverly Park Maintenance Services Ltd. (Through Its Authorized Signatory) Shopping Mall, Phase-I, DLF City, Gurgaon-122002 Haryana

… Petitioner-Opposite Party

VersusKashmir Fab Styles Pvt. Ltd. Having its Corporate Office at C-67, Hoisery Complex, Industrial Area Phase-II, Noida

… Respondent-Complainant

BEFORE:

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

For the Petitioner : Ms. Priya Deep, Advocate

For the Respondent : Mr. R. K. Dhawan, Advocate


PER JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER


17.04.2012, passed by the State Commission in Complaint No. 271/2010, Kashmir Fab

Styles Pvt.Ltd. vs. Beverly Park Maintenance Services Ltd., by which, application of

opposite party for dismissing complaint was dismissed.

2. The brief facts of the case are that complainant-respondent booked space in order to

earn its livelihood with opposite party-petitioner and complainant was allotted shop no. 322,

DLF Place, Promenade, Vasant Kunj, New Delhi. Complainant paid Rs. 11,20,847/-, but

opposite party did not open Mall. Alleging malpractice and deficiency on the party of the

opposite party, complainant filed complaint for refund of deposited amount and expenses

incurred on interiors and compensation etc. Opposite party filed application under Section

26 of Consumer Protection Act and submitted that complaint was not maintainable as

parallel arbitration proceedings have already commenced between the parties and

complaint pertains to commercial space, which does not fall within the purview of Consumer

Protection Act and prayed for dismissal of complaint. Complainant submitted reply and

further submitted that opposite party took many adjournments for filing written statements

and later on, filed this application, which may be dismissed. The State Commission vide

impugned order dismissed application against which this revision petition has been filed.

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

4. Learned counsel for the petitioner submitted that as arbitration proceedings had

already commenced before the arbitrator for the same relief and complainant participated in

the proceedings, complaint filed after participation in the proceedings was not

maintainable. It was, further, submitted that complaint pertains to commercial space in the

Mall and in such circumstances, complainant does not fall within the purview of consumer,

even then, the State Commission committed error in dismissing the application, hence

revision petition be allowed and impugned order be set aside and complaint be

dismissed. On the other hand, learned counsel for the respondent submitted that

proceedings under Consumer Protection Act are in addition to proceedings before any other

forum and premises were taken for earning livelihood, hence order passed by the State

Commission is in accordance with law and revision petition be dismissed.

5. Perusal of record reveals that arbitrator initiated arbitration proceedings and issued

letter on 03.08.2010 and in compliance to that letter, complainant appeared before the

arbitrator on 28.08.2010, whereas complaint before the State Commission was filed on

31.08.2010. Reliefs claimed in the complaint are as under:-

a. to direct the respondents to make payment to the complainant of

admitted amount of security i.e. Rs. 11,20,847/- lying with them along with

interest @24% p.a. upto the date of payment;

b. to direct the respondents to make payment of Rs.

16 lacs incurred on interiors, fitouts at shop no. 322.

c. this Hon’ble Commission may be further pleased to direct the

respondents to pay a sum of Rs. 20 lacs as

cumulative damages/compensation for the loss or injury suffered by

complainant and for the business losses due to the non-opening of the Mall;

d. this Hon’ble Commission may be further pleased to

award compensation on account of mental agony,

torture, harassment suffered by the complainant amounting to Rs. 10 lacs.

e. entire cost of the present complaint/ litigation be also paid to the

complainant in the interest of justice;

f. pass such other further order/orders as this Hon’ble Commission

may deem fit and proper in the facts and circumstances of the present case

in the interest of justice.”

6. Complainant submitted reply to the claim before the arbitrator with almost similar

prayers. Thus, it becomes clear that same reliefs were claimed in the complaint, which

wereclaimed before the arbitrator.

7. Now the core question is, whether two parallel proceedings for similar relief can be

persuaded before two different forums. Learned counsel for the respondent submitted that

section 3, Consumer Protection Act enables complaint to file complaint under the

Consumer Protection Act in spite of proceedings initiated before the arbitrator for similar

relief. I do not agree with the submission of learned counsel for the respondent because

two proceedings for similar relief can not run simultaneously in two forums. This

Commission in I (1994) CPJ 1 (NC), Hanuman Prasad vs. The New India Assurance Co.

Ltd. held that when a case is pending in a court in which full evidence is to be recorded the

Forums constituted under the Consumer Protection Act, 1986 should not entertain the

complaint with respect to the same cause of action.

8. Respondent is entitled to prove his claim before the arbitrator by leading evidence,

whereas proceedings before the State Commission were to be disposed summarily. Once

respondent participated in proceedings before the arbitrator for the same relief, proceedings

for similar relief could not have been initiated before the State Commission and the State

Commission committed error in holding that both proceedings may go simultaneously. The

words ‘in addition’ appearing in S.3 C.P. Act enables complainant to file complaint before

Consumer Fora also if not filed before other forum.

9. The State Commission observed in its order that in para 5 of the complaint, the

complainant categorically pleaded that complainant had obtained shop on lease basis for

earning his own livelihood. Admittedly complainant is a private limited company, which

booked space and was allotted shop in the Mall of opposite party. By no stretch of

imagination, it can be said that complaint booked this space for earning its livelihood. Only

a living person can plead that he booked premises for earning his livelihood. Complainant

being private limited company is distinct from its members as held by privy

council in Soloman vs. Soloman & Co. The State Commission committed error in holding

that complaint was maintainable as shop was taken on lease for earning his own livelihood

and not for commercial purpose.

10. In the light of above discussion, revision petition is to be allowed and impugned order

is liable to set aside.


dated 17.04.2012 in Complaint

No. 271/2010, Kashmir Fab Styles Pvt. Ltd. vs. Beverly Park Maintenance Services Ltd.,

passed by the State Commission is set aside and complaint stands dismissed, with no order

as to costs.

..……………………………

(K. S. CHAUDHARI)

PRESIDING MEMBERPSM


FIRST APPEAL NO. 463 OF 2013

(From the order dated 18.04.2013 in CC No. 13/2010 of Goa State Consumer Disputes Redressal Commission)

National Insurance Co. Ltd. 3, Middleton Street Calcutta, Delhi Regional Office I, at TowerII, Level IV, Jeevan Bharti Building, 124, Connaught Circus, New Delhi – 110001. And one of its branch offices at Mapusa Branch Office, Third Floor, Eaman Smruti, Near Laxmi Narayan Temple, Mapusa, Goa.

... Appellant

Versus

Mr. Abraham M.P. Mascarenhas R/o Masky Villa, H. No. 816 (138), Naikwado, Calangute, Bardez, Goa

… Respondent

BEFORE




For the Appellant Mr. Yogesh Malhotra, Advocate

For the Respondent In person


PER DR. B.C. GUPTA, MEMBER

This first appeal has been filed under section 19 of the Consumer Protection Act,

1986 against the impugned order dated 18.04.2013, passed by the Goa State Consumer

Disputes Redressal Commission (hereinafter referred as ‘the State Commission’)

in Consumer Complaint No. 13/2010, “Mr. Abraham M. P. Mascarenhas vs. National

Insurance Company Ltd.” vide which the said complaint filed by the present respondent was

partly allowed and the petitioner/opposite party was directed to pay a sum of `22,46,750/- as

compensation for damage to the vehicle and also to pay a sum of `1 lakh as compensation

for mental harassment, besides `5,000/- as cost of litigation.

2. Briefly stated, the facts of the case are that the complainant/respondent is the owner

of a passenger bus (Luxury 41 seater) bearing registration no. GA-03-K-0315 and according

to him, he spent an amount of `9,30,000/- for purchase of Leyland 222 Chassis and further

`14,35,000/- for building a Volvo type Coach body on the said Chassis. The complainant

had obtained financial assistance from the State Bank of India, Calangute

Branch, Goa amounting to `20 lakhs for purchase of the said bus. The loan was repayable

in 60 instalments of `45,800/- each. The vehicle was got insured with the

petitioner/opposite party, i.e. the Insurance Company and while doing so, the value of the

bus was declared as `23,65,000/- and after allowing 5% depreciation, the Insured Declared

Value (IDV) in respect of the said bus was stated to be `22,46,750/-. The Insurance policy

was valid from 15.02.2009 to 14.02.2010 and involvedpayment of Insurance premium of

`63,327/-. On 17.01.2010, the said bus while plying on the National Highway no. 17 on

Bombay-Goa route, met with an accident at

2.00 am at Saliste Talera, Maharashtra, in which two persons died and two more persons

were injured. An intimation was immediately sent to the opposite party, Insurance

Company and a claim was also lodged with the opposite party on 10.02.2010. It has been

stated by the complainant that the insurance company appointed Sh. Amay Singnapurkar to

carry out a spot survey, who submitted its report on 19.01.2010. After submission of the

claim on 10.02.2010, the opposite party appointed Sh. M. N. Khandeparkar, surveyor/loss

assessor/valuer to assess the loss and the said surveyor submitted its report on

18.04.2010. As per the complainant, it was a case of ‘total loss’, as the vehicle was not in a

repairable condition since the chassis, engine, body etc. were damaged and twisted. The

complainant has stated that the claim of ‘total loss’ was based on opinion from the experts

in the field of manufacturing and bus

body-building workshops. The complainant obtained quotation dated 27.01.2010 from M/s.

Shree Sai Coach Builders, who had built the body of the bus and an estimate dated

05.02.2010 from M/s. Shiv Samarth Motors (I) Pvt. Ltd. from where, the chassis had been

purchased and another estimate dated 27.02.2010 from Shree Damodar Coach Crafts Pvt.

Ltd. The surveyor appointed by the Insurance Company stated that the bus could be

repaired and also forwarded a repair estimate. A copy of the report of the surveyor was

furnished by the Insurance Company to the complainant. However, vide his letter dated

07.05.2010, the complainant requested for appointment of a second surveyor. The

complainant pointed out certain inconsistencies in the report of the surveyor. However,

when the Insurance Company did not accept the request of the complainant, he sent a legal

notice to the opposite party on 06.07.2010, calling upon them to settle his claim on total loss

basis. On their failure to do so, the consumer complaint in question was filed, requesting for

payment of `22,46,750/- on total loss basis, a compensation of `2.5 lakhs for mental

harassment, an amount of `6.3 lakhs on account of loss of income and `3,20,600/- for

payment to State Bank of India. In this way, claim was made for payment of a total amount

of `34,47,350/-. The State Commission vide impugned order partly allowed the complaint

and directed the opposite party, Insurance Company to pay a sum of ` 22,46,750/- to the

complainant as total loss of vehicle and also to pay compensation of ` 1 lakh for mental

harassment and `5,000/- as cost of litigation. It is against this order that the present petition

has been made.

3. At the time of hearing before us, the learned counsel for the appellant has drawn our

attention to the report submitted by the surveyor appointed by the Insurance Company

dated 18.04.2010. As per this report, the assessment of the loss has been made to be

`8,64,986/- including the labour charges of `72,500/-. Learned counsel argued that the said

surveyor, in his report had given a detailed report about the parts to be replaced, after

making due provisions for depreciation etc. in accordance with the terms and conditions of

the Insurance Policy in question. Learned counsel stated that the complainant had filed a

report by another surveyor K. B. Arora & Company dated 16.11.2010, in which it was stated

that vehicle was damaged beyond limits of satisfactory repairs and complete bus body was

required to be rebuilt on a new chassis frame. Learned counsel stated that the said report

of K. B. Arora & Company was just an ‘inspection certificate’ and there was no basis for

accepting such a report. The report given by Laxmi Bus Body Builder, in which it had stated

that no repair could be carried out to the said vehicle, was also without any basis. The

report given by Shree Damodar Coach Crafts Pvt. Ltd. dated 27.02.2010 had stated that

cost of repair will be 14.31 lakhs. The State Commission had based their order on the

report of K. B. Arora & Company in preference to the report of the surveyor appointed by

the insurer, but there was no reasonable basis for coming to the conclusion that it was a

case of total loss. Learned counsel for the appellant has drawn our attention to the

judgment passed by the Hon’ble Supreme Court, in United India Insurance Co. Ltd. &

Ors. vs. Roshan Lal Oil Mills Ltd. & Ors. as reported in (2000) 10 SCC 19, Venkateswara

Syndicate vs. Oriental Insurance Company Ltd. & Anr. as reported in III (2009) CPJ 81

(SC) and also the orders of the National Commission in Pentagaon Steel Pvt. Ltd. vs. New

India Assurance Company Ltd. & Ors., as reported in III (2010) CPJ 339 (NC), saying that

the report of the surveyor is a valuable document and should not be easily brushed aside.

4. On the other hand, learned counsel for the respondent stated that the said vehicle

had not even completed one year of insurance, and during the accident, it had been very

severely damaged, and it was a case of total loss. The order passed by the State

Commission was, therefore, in accordance with law and should be upheld. Learned

counsel has drawn our attention to the report given by K. B. Arora & Company, in which it

has been stated as follows:-

“1) The vehicle has suffered extensive damages. Complete front

show-cum-cowl assembly is crushed and crumpled.

2) Bus body full left side is smashed. Right side bus body is

twisted. Complete flooring is crumpled, folded and damaged. Roof top &

ceiling is damaged. Seats & doors are damaged. Front Wind shield glass &

many window glasses area broken.

3) Complete chassis frame is severely twisted, both in horizontal as

well as vertical planes.

4) Engine assembly, clutch assembly & gear box assembly are

jerked, dislocated & shifted back. There is a strong possibility of damages

being noticed once these assemblies are dismounted & dismantled.

5) Left tyre & wheel disc, front axle, front suspension, brake system,

steering system, radiator assembly & many more parts are also damaged.

In our view the vehicle is damaged beyond limits of satisfactory

repairs. Complete bus body is required to be rebuilt on a new chassis frame

in order to ensure smooth & trouble free running of the vehicle in future.”

5. Learned counsel stated that it was clear from the report of K. B. Arora & Company

that it was a case of total loss as complete chassis frame had been severely twisted, engine

assembly, clutch assembly and gear box had been dislocated and shifted back and most of

the parts of the vehicle had been damaged. Learned counsel has also referred to the report

given by Shree Damodar Coach Crafts Pvt. Ltd., in which details about body works, body

parts and labour had been given, which goes to show that the vehicle suffered extensive

damage. Learned counsel has also drawn our attention to letters from M/s. Shiv Samarth

Motors (I) Pvt. Ltd, in which it has been stated that all the major aggregates are damaged

beyond any economical repairs. Another letter from Laxmi Bus Body Builders says as

follows:-

“We have seen and checked the above mentioned vehicle which is

presently kept at our workshop and regret to say that there cannot be any repairs carried out to the said vehicle since the body is damaged beyond repairs. The damage from the roof top to the floor and the entire structure is

twisted and has moved behind and cannot be straightened, if done the vehicle

will pull to the right or left because of the power (hydraulic) steering and will be

risky to the passengers travelling in it. The said vehicle will have to be built on

another chassis as the chassis is also damaged severely and if at all you try to

build the body on the same chassis you will be doing so at your own risk and we

will not be responsible for the same.”

6. Learned counsel has also stated that there are various inconsistencies in the report of

the surveyor as narrated in the complaint. The items no. 36, 37, 38, 49 and 51 are put at

50% depreciation, considering they are rubber parts, whereas they are made of metal. At

serial no. 62, regarding front bumper, depreciation of 52.5% has been allowed, whereas the

said part is made of metal.

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

consideration to the arguments advanced before us.

8. There is a delay of 29 days in filing the present appeal. An application I.A. No.

3959/2013 has been filed requesting for condonation of delay. It has been stated therein

that although a copy of the impugned order dated 18.04.2013 was received on 22.04.2013,

the delay in filing the appeal occurred due to administrative delay in examining the matter at

various levels in the Company and obtain the necessary approvals. Moreover, learned

counsel for the appellant also remained out of station due to holidays in the month of June,

2013. In view of the position explained in the application for condonation of delay, the said

delay is ordered to be condoned.

9. Now, coming to the merits of the case, the basic issue involved in the present case

revolves around the proposition whether the damage to the bus, as a result of accident, can

be termed as ‘total loss’ or not. The State Commission observed in the impugned order that

there were two reports of surveyors on record of equal weight, one produced by the

surveyor of opposite party, Sh. Khandeparkar and the other produced by that of the

complainant, Sh. K. B. Arora and Company. The latter report was allowed to be produced

by order dated 08.11.2011 of the State Commission. The report of Sh. Khandeparkar is

accompanied by an affidavit, whereas the report of Sh. K. B. Arora & Company is not

supported by an affidavit. However, the State Commission gave weightage to both these

reports, saying that Sh. K. B. Arora & Company was also an approved surveyor. We,

however, do not agree with this contention of the State Commission, because a report

which is accompanied by an affidavit should carry more weight as compared to the other

report. It was open to the complainant to file an affidavit when the report of Sh. K. B. Arora

& Company was placed on record. Moreover, the report given by Sh. Damodar Coach

Crafts Private Limited and letter from M/s. Shiv Samarth Motors should have been duly

proved on record.

10. However, a critical examination of the report submitted by

Sh. M. N. Khandeparkar, the surveyor appointed by the Insurance Company and which is

accompanied by an affidavit, reveals that the vehicle suffered an extensive damage and

hence, the case falls under the category of ‘total loss’. The report submitted by Shri M. N.

Khandeparkar states as follows:- “BODY:-

Front w/s glass was broken. The frontal impact had ripped the

panelling/structure upto the front seats on the LHS. Passenger door was

crushed, flooring was crushed. Front panels were dented. Top was

dented. Dashboard was damaged. W/s frame was twisted. The entire structure

on the LHS was affected and the pillars were bent. Repairs involved complete

dismantling of panels on the LHS, repairing/aligning the structure and repaneling

with new panels wherever necessary. The impact on the LHS had also

distorted/twisted the RHS of the body. The RHS pillars were bent as is evident

in the photographs. As such, the entire body had skewed from its centre axis, warranting reconstruction. CHASSIS FRAME: Chassis longitudinal members were distinctly bent and twisted. The LHS

front tyre was pushed back and had hit against the LHS members. The frame

had also sagged in its vertical axis. Same was beyond economical repairs. N.B.: The chassis number was not physically accessible for tracing. The

number though was visually confirmed. Tracing would be availed during

inspectors on dismantling. (Photograph attached)

MISCELLANEOUS:The seats were twisted, warranting repairs. Wiper arms/blades were

sheared. Dashboard had cracked. H/L’s were broken. Side indicators had

cracked. R/V mirrors were broken. Wiring was cut in places. Front axle had

dislocated, causing damages to the front stearing/suspension components. LHS

front wheel disc was dented. Air cleaner was pressed.”

11. A perusal of the above report shows that the chassis, longitudinal members were

distinctly bent and twisted, the frame had sagged in vertical axis and the same was beyond

economical repairs. The entire body had skewed from its centre axis warranting

reconstruction. A plain reading of the report submitted by the surveyor appointed by the

Insurance Company indicates that there has been an extensive damage to the bus and

certain parts were beyond economical repairs. The said surveyor has, however, attached

an estimate for repair of the vehicle amounting to

` 8.65 lakhs. The State Commission came to the conclusion, however, that it is a case of

“total loss” and hence the Insurance Company was liable to make payment as per the

stated IDV of the vehicle.

12. Based on the entire factual matrix of the case and considering the report produced by

the surveyor, appointed by appellant/opposite party, Insurance Company, we shall like to

give an opportunity to the appellant to make attempt for the repair of the vehicle on their

own and at their own cost, restore it back to its original condition and hand over the same to

the complainant with a certificate duly signed by appropriate technical authority that the

vehicle is in a perfect road-worthy condition. For this purpose, we allow a time of three

months from today for doing the needful and provide the vehicle back to the respondent. In

case, the petitioners are not in a position to do the needful within the stipulated period, the

appeal shall stand automatically dismissed and order of the State Commission

sustained. With these directions, this appeal stands disposed of. There shall be no order

as to costs.

..……………………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..……………………………

(DR. B.C. GUPTA)

MEMBERPSM


REVISION PETITION NO. 1183 of 2007(From the Order dated 27.12.2006 in Appeal No. 325/2006 of the State Consumer Disputes Redressal Commission, Madhya Pradesh)

M.P. Housing Board, Through its Estate Officer, Shopping Complex, Opposite Dainik Bhasker Press, Indore

.. Petitioner Vs.

Subhash Chandra Vyas, S/o Shri B.M. Vyas, R/o AH-90, HIG 11, Nalanda Keshar Bagh, Indore

..Respondent

BEFORE: -HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT

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

For the Petitioner : Ms. Anjali K. Verma and Ms. Meera Mathur, Advocates For the Respondent : Mr. Mohd. Anis U.R. Rehman Advocate O R D E R(Pronounced on 13th March, 2014) D.K. JAIN, J., PRESIDENT

On remand by the Hon’ble Supreme Court, vide order dated 26.04.2013, setting

aside the order passed by this Commission on 31.03.2011, this revision petition under

section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”) has been listed for

fresh adjudication.

2. Briefly stated, the material facts giving rise to the revision petition are as under:-

3. On 28.06.1999, the Madhya Pradesh Housing Board (for short “The Housing Board”)

issued an advertisement inviting applications for registration for allotment of residential

houses under HIG Housing Scheme. The allotment was to be governed by the Rules and

Conditions of the Board, existing at that time. The Complainant got registered under the

said scheme on 06.09.1999. On 16.05.2001, he was informed that his registration has

been accepted under the Scheme and a house bearing No.H-90 had been reserved for him

and that the construction of the house was likely to be completed in the month of June

2001. On 23.06.2001, an allotment letter was issued to the Complainant and he was called

upon todeposit a sum of `75,183/- (including best location charges @ 5%) within 30 days

before taking the possession. It seems that the Complainant had made a request for

charging of lease rent only for a period of three years, instead of eleven years and

therefore, vide letter dated 20.12.2001, he was asked to deposit a sum of `44,156/-, furnish

two passport size photographs and a non-judicial paper of `50/- for execution of agreement

etc. The Complainant deposited the said amount of `44,156/- on 22.01.2002, but did not

furnish non-judicial paper and the photographs. These were furnished only on

28.03.2002. On the same very day, the agreement was executed and possession of the

house was handed over to him. However, alleging unfair trade practice on the part of the

Housing Board, on 18.08.2003, the Complainant filed a complaint under Section 12 of the

Act before the District Consumer Disputes Redressal Forum, Indore (for short “the District

Forum”) inter alia, praying for interest @ 16.5% p.a. on `8,98,156/- the total amount

deposited by him, for the period from December 2001 till 28.03.2001 and refund of a sum

of `11,838/- charged by the Housing Board @ 5% of the price of the house as best location

charges.

4. On appraisal of the material placed before it, the District Forum accepted both the said

claims and allowed the complaint with a direction that the said amount paid by the

Complainant as best location charges shall be refunded along with interest @ 12% p.a. on

the entire amount paid by the Complainant for the period from 01.01.2002 to

28.03.2002. Aggrieved, the Housing Board preferred appeal to the Madhya Pradesh State

Consumer Disputes Redressal Commission (for short “the State Commission”), but without

success. The said order was challenged before this Commission. Following a three member

Bench’s decision of this Commission in Rajesh Kumar Gupta Vs. Estate Manager, M.P.H.D.

(Revision Petition No.303/2004 decided on 07.07.2004) wherein it was held that the

Housing Board was not entitled to demand 10% extra charges for a corner plot because of

its advantageous position, vide order dated 31.03.2011, the Revision Petition was

dismissed.

5. Being dis-satisfied with the said order, the Housing Board carried the matter to the

Supreme Court. As noted above, the Hon’ble Supreme Court, vide order dated 26.04.13

(inCivil Appeal No. 4116/2013) has set aside the order passed by this Commission on

31.03.2011, on the ground that the decision of this Commission in Rajesh Kumar Gupta’s

case(supra), stands reversed by its decision dated 16.04.2009 - (Estate Manager, M.P.

Housing Board Vs. Rajesh Kumar Gupta – (2009) 16 SCC 118 and accordingly remitted the

matter to this Commission for reconsideration.

6. We have heard Ld. Counsel for the parties. In so far as the first question, viz;

whether the Housing Board could charge from the Complainant an additional amount @

5% for better location of the house, is concerned, the issue is no longer res integra.

In Rajesh Kumar Gupta (supra) answering the question whether the Madhya Pradesh

Housing Board was authorized to levy extra charges @ 10% and @ 5% for the corner and

best location plots respectively, in favour of the Housing Board, the Supreme Court held as

follows:-“ The National Commission was of the view that because by sheer chance of luck in the draw of plot in the lottery the plot was allotted, the principle relating to charging the additional amounts for the best location or corner plot cannot be applicable. This conclusion is contrary to the advertisement made for registration of the house. It has been specifically mentioned therein that the registration of the house shall be determined by the lottery and the terms and conditions of registrationand allotment specifically provided for additional charges. That being so, the view taken by the National Commission cannot be sustained and is set aside.”

Thus, the levy of extra charge by the Housing Board for best location plots @ 5% has been

upheld by the Supreme Court. In light of the said decision, charging of extra amount @

5% of the price by the Housing Board is unquestionable. We hold accordingly.

7. In so far as the second issue, viz; whether the Housing Board was liable to pay

interest to the Complainant on account of alleged delay in handing over the possession of

the house is concerned, Mrs. Meera Mathur asserted that there was no delay on the part of

the Housing Board in delivery of possession, as it was the Complainant himself who

delayed possession by not furnishing the photographs and non-judicial paper, demanded

by the Housing Board vide letter dated 28.12.2001. The documents were furnished on

28.03.2002 and on the same day the possession of the house was handed over to the

Complainant, who received possession without any protest. In support of the contention

that having taken the possession of the house at the agreed price, the question of award

of interest on the price paid by the Complainant did not arise, strong reliance was placed

by the Ld. Counsel on the decision of the Supreme Court in Bangalore Development

Authority Vs. Syndicate Bank – (2007) 6 SCC 711. It was thus pleaded that the orders of

the Fora below on this point also deserve to be set aside.

8. We find substance in the contention of Ld. Counsel for the Housing Board. It is clear

from the record that vide letter dated 20.12.2001 the Complainant was asked to pay a sum

of `44,156/-, as balance consideration for the house, along with the said documents. On

his own showing, the documents were furnished by the Complainant only on 28.03.2002

even though he had paid the additional demand of `44,156/- on 22.01.2002. At the time of

taking possession of the house on 28.03.2002, the Complainant did not raise any claim

towards interest on account of delay in handing over of the possession. After a lapse of

over one year, the complaint was filed. We are of the opinion that under these

circumstances, theFora below were not justified in awarding interest on the amount paid by

the Complainant as price of the house for the period from 01.01.2002 to 28.03.2002. It is

also difficult to decipher the relevance of 01.01.2002, from which date the interest has

been awarded by both the Fora. In our view, the delay in execution of the agreement and

the consequent delivery of possession was clearly attributable to the Complainant and not

to the Housing Board, as alleged.

8. In view of the above, we allow the Revision Petition and set aside the impugned

order with no order as to costs.

…………………..(D.K. JAIN, J.)PRESIDENT

. . . . . . . . . . . . . . . .(VINEETA RAI)MEMBER

. . . . . . . . . . . . . . . .(VINAY KUMAR)MEMBER AR

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI.

FIRST APPEAL NO.65 of 2009(Against order dated 1.5.2006 in Consumer Case No.150 of 2003 of the State Consumer Disputes Redressal Commission, Orissa, Cuttack) Branch Manager, Puri Gramya Bank Astarang Branch, At/PO. Astarang, PS. Kakatpur, Dist. Puri, Orissa.

….. Appellant Versus 1. Susama Kumari Biswal Wife of Kanhu Charan Biswal At/PO Astarang, PS. Kakatpur, District-Puri 2. The Collector-cum-Chairman Khushi Sahayak Kendra Programme, Puri At/PO/PS/Dist. Puri, Orissa [Respondents no.2 and 3 stand deleted vide order dated 26.2.14, passed by this Commission]3. The District Agriculture Officer, Krushi Sahayak, Puri At/PS/Dist. Puri, Orissa 4. The Senior Manager, Oriental Insurance Co. Ltd. C.B.O.I., At. Mission Road, PO. Buzibazar, Distt. Cuttack Orissa

…. Respondents BEFORE HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER HON’BLE MRS. REKHA GUPTA, MEMBER For the Appellant : Mr. Manoj Kumar Das, Adv. with Mr. M.R. Mishra, Adv. For the Respondents : Mr. Ashok Mishra, Advocate for R-1 NEMO for R-2 and 3 Ms. Savita Singh, Adv. for R-4 Pronounced on 13th March, 2014 PER MR JUSTICE V.B.GUPTA, PRESIDING MEMBER ORDER Appellant/Opposite Party No.1 has filed this First Appeal challenging order dated

1.5.2006, passed by State Consumer Disputes Redressal Commission, Cuttack, Orissa(for

short, ‘State Commission’).

2. The case of Complainant/Respondent No.1 in brief is that, in order to start a Diary Farm

under loan basis, she sent her proposal to the Krushi Sahayak Kendra, Puri which was

approved by them, vide letter dated 04.02.1998 and her proposal to avail a loan of

Rs.3,69,000/- was forwarded to the Appellant-Bank for sanction. Appellant sanctioned

the loan amount of Rs.3 lakhs in the favour of respondent, vide letter dated 03.11.1998. The

sanction order clearly stated, that the 20 number of cows shall be purchased in two phases.

However, appellant issued funds for purchase of 7 number of cows only on three different

dates, i.e. on 20.4.1999,30.4.1999 and 4.05.1999. As a result thereof, respondent no.1

could not run a full-fledged Diary unit to enable her to earn profit and to repay the loan. As

per the terms and conditions, respondent no.1 was required to repay a sum of Rs.5,000/-as

monthly installment and she has paid at least one installment on 29.10.1999. However, she

could not repay further as her Diary unit and 7 numbers of cows were destroyed due to the

Super Cyclone on 29/30.10.1999. Respondent no.1 reported this matter to Respondent

No.2/Collector, Puri. Respondents No.2 and 3 and New India Insurance Company produced

the certificate of the Tehisldar,Kakatpur, regarding destruction of her Diary unit. Though,

respondent no.4 which had insured 5 cows, sanctioned a sum of Rs.33,000/-,Respondent

No.4/ Oriental Insurance Company, has not yet given the insurance claim for the other 2

cows.

3. It is further alleged that when appellant issued notice for repayment of the loan,

respondent no.1 intimated the appellant as the farm has been completely destroyed by the

Super Cyclone as such appellant did not releasemoney for the rest 13 numbers of cows,

the project is not continuing and repayment of loan amount by respondent no.1 does not

arise. It is further stated, that respondent no.1 could have availed the subsidy amount of

Rs.86,400/- form the Government had the project been completed with 20 cows unit.

However, respondent no.1 could not get it due to the deficiency in service on the part of the

appellant. Had appellant given her moneyfor the rest of 13 cows, she would have been

benefited by earning a sum of Rs.24 lakhs. Thus, she also sustained a loss of more than

Rs.2 lakhs due to the destruction of the cow shed which she had erected and the appellant

did not insure it as per the terms and conditions of the loan. Over and above this, the

appellant has adjusted Rs.1 lakh which was kept by the guarantors as fixed deposit towards

the loan account which is arbitrary and illegal.

4. Appellant did not file any written version, but filed a counter affidavit (in Misc. Case No.

427 of 2005) arising out of the present case.

5. Respondents No.2 and 4 did not file any written statement. Respondent No.3, in its

written version admitted that respondent no.1 had approached respondent no.2 for

establishment of a commercial Diary project under the new agricultural policy which was

approved by it and was sent to appellant with a recommendation to finance the project of

respondent no.1, as per their Banking procedure. It is further stated that a full-fledged diary

project consists of 20 cows. However, sanction of 7 numbers of Jersy Cows by the

appellant, contravene the agricultural policy.

6. State Commission, vide impugned order partly allowed the complaint passed following

directions;“ Opposite party No.1 to compensate Rs.1,35,000/- which amount was released for the construction of cowshed in favour of the complainant and to adjust the same towards the outstanding loanamount of the complainant. We further direct that the insured amount with opposite party No.4 be adjusted against the outstanding loan amount of the complainant. The opposite party No. 4 is directed to settle the claim with interest at the prevailing commercial Bank rate of interest within thirty days of receiving copy of this order”.

7. Being aggrieved, appellant has filed this appeal.

8. We have heard the learned counsel for the appellant as well as counsel

for respondents no.1 and 4 and gone through the record.

9. On 26.2.2014, at the time of arguments learned counsel for appellant gave a statement

that it does not claim any relief against respondents no.2 and 3. Accordingly, names

of respondents no.2 and 3 were ordered to be deleted from the array of the parties.

10. It has been contended by learned counsel for the appellant, that respondent no.1 has

not place any proof with regard to the actual loss suffered with respect to the cow shed. The

next limb of argument advanced by the learned counsel is, that as per terms and conditions

of the loan it was for respondent no.1 to have the cow shed insured. She did not give any

instructions or authorization to the appellant for making insurance cover with respect of the

cow shed. Thus, State Commission has committed grave error on this aspect.

11. On the other hand, it has been contended by learned counsel for respondent no.1, that

it was for the appellant to have got the cowshed insured and in the absence of the

same, liability for it shall rest upon the appellant.

12. Appellant, vide its letter dated 3.11.1998 (Page 23 of the Paper-book) sanctioned a

loan of Rs.3 lakhs in favour of respondent no.1. The terms and conditions regarding the

loan has been placed at (Page 25-26 of the Paper-book. The relevant condition is No.5

which state;

“5. Farm building live stock feed stock etc. are to be insured for full value under

Bank’s clause. Periodical renewal of the insurance should be ensured”.

13. A plain reading of this condition shows that it was for the respondent no.1 to have the

farm building, live stock and feed stock etc, insured for full value. Above condition nowhere

states, that it was for the appellant to get the renewal of the insurance.

14. There is nothing on record to show that respondent no.1 ever got the farm building, live

stock and feed stock etc. insured. Nor there is any document to show, that respondent no.1

asked the appellant to get the same insured.

15. Under these circumstances, in view of the condition no.5, it was the duty of respondent

no. 1 to have got the building and stock etc. insured. There is also no evidence to show that

respondent no.1, ever gave any instructions to the appellant to get the same insured. As

such no liability can be fastened upon the appellant. The State Commission has thus

committed a grave error in allowing the complaint of respondent no.1.

16. Accordingly, we set aside the impugned order and allow the present appeal.

Consequently, the complaint filed by respondent no.1 before the State Commission, stands

dismissed.

17. Parties shall bear their own costs. …………………J(V.B.GUPTA) PRESIDING MEMBER ……………………….(REKHA GUPTA) MEMBERSSB/



(From the order dated 18.05.2012 in First Appeal No. 404/2009 of Jharkhand State Consumer Disputes Redressal Commission)

The Regional Commissioner, CMPF, D-III Dhanbad, P.O. CMPF Office, Distt. Dhanbad, Jharkhand

... Petitioner

Versus

Anant Sethi, s/o Late Basudeo Tewari r/o at Sudamdih, P.O. & P.S. Sudamdih Distt. Dhanbad, Jharkhand

… Respondent


(From the order dated 18.05.2012 in First Appeal No. 404/2009 of Jharkhand State Consumer Disputes Redressal Commission)

The Project Officer, Bhowra (N) Colliery under E.J. Area of M/s BCCL P.O. – Bhowra, District Dhanbad Jharkhand

... Petitioner

Versus

1. Anant Sethi, s/o Late Basudeo Tewari r/o at Sudamdih Main Colony, P.O. Sudamdih Distt. Dhanbad, Jharkhand

2. The Regional Commissioner CMPF, Dhanbad, D.III having office at Jagjiwan Nagar, Dhanbad.

… Respondent

BEFORE




In RP-3036/2012For the Petitioner : Mr. Mohit Kumar Shah, Advocate Ms. Shilpi Shah, AdvocateFor the Respondent : Mr. Babban Lal, Senior Advocate with Mr. Apurb Lal, Advocate Ms. Susmita, AdvocateIn RP-4370/2012For the Petitioner : Mr. Vivek Narayan Sharma, AdvocateFor the Respondent No. 1 : Mr. Babban Lal, Senior Advocate with Mr. Apurb Lal, Advocate Ms. Susmita, AdvocateFor the Respondent No. 2 : Mr. Mohit Kumar Shah, Advocate Ms. Shilpi Shah, Advocate



These two revision petitions, i.e., RP No. 3036/2012, Regional Commissioner, CMPF

Dhanbad versus Anant Sethi, and RP No. 4370/2012, The Project Officer versus Anant

Sethi & Anr.’ have been filed under section 21(b) of the Consumer Protection Act, 1986,

against the impugned order dated 18.05.2012, passed by the Jharkhand State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 404/2009

“Anant Sethi versus The Regional Commissioner CMPF Dhanbad & Ors.” vide which while

allowing the appeal, the order dated 30.11.2009, passed by District Consumer Disputes

Redressal Forum, Dhanbad in consumer complaint no. 48/2009, dismissing the complaint

in question was set aside. This single order shall dispose off the two revision petitions and

a copy of the same may be placed on each file.

2. Brief facts of the case are that complainant/respondent Anant Sethi is a retired

employee of M/s Bharat Cooking Coal Limited (BCCL), Bhowra (North) Colliery of E.J. area,

Bhowra. He was a member of Coal Mines Provident Fund (CMPF) having CMPF account

no. C/382840 and was also a member of Coal Mines Pension Scheme. The complainant

was initially appointed in National Coal Development Corporation (NCDC) on

2.03.1962. Later on, various coal companies including the NCDC, merged into Coal India

Limited, whereas various subsidiary companies were also formed, one of which is

BCCL. The complainant joined BCCL on 11.09.69. According to the complainant, the

employees of NCDC were asked to opt as to whether they wanted to remain governed by

the NCDC terms and conditions, or they accepted the service conditions of the BCCL. The

complainant submitted his option on 2.03.1970, saying that he wanted to remain governed

by the service conditions of the NCDC. Upon retirement, the complainant was sanctioned

pension @25% of last drawn wages. However, the complainant has stated in his complaint

that in pursuance of some decision of the Supreme Court, a circular dated 17.04.2008 vide

OM No. CIL/C54/(I)/Ex/NCDC PAN 840 dated 17.04.2008 of Coal India Limited and then a

circular No. BCCL/Pension/2008/341 dated 18.04.2008 was issued by the BCCL, advising

the concerned collieries / units to pay pension as per the decision of the Supreme

Court. According to the complainant, he is entitled for payment of pension @50% of his

basic pay. However, despite making a number of representations to the OPs, his pension

was not revised. OP No. 2, General Manager, E.J. Area, Bhowra, Dhanabad had sent a

letter to OP No. 1, i.e., Regional Commissioner, CMPF requesting him to revise the

pension, but no action was taken by respondent no. 1. The complainant filed the consumer

complaint in question which was decided by the District Forum vide their order dated

30.11.2009, saying that there was no deficiency in service on the part of the OPs and the

complaint was ordered to be dismissed. However, the complainant challenged this order by

way of appeal before the State Commission, which was allowed and the OPs were directed

to refix his pension and pay the dues. It is against this order that the present revision

petitions have been made.

3. In reply to the consumer complaint before the District Forum, the Regional

Commissioner, CMPF, OP No. 1 stated that pension under NCWA VII had been settled and

the revised pension came to `_6,269/- per month and thearrears amounting to `_20,417/-

were sent to the complainant vide cheque dated 06.03.2009. Regarding the settlement of

pension as per NCDC rules OP No. 1 stated that the pensioner was qualified for CMPF

membership and he made contribution since March 1970 to 2.03.2003 as per CMPF

Scheme 1948 and the BCCL had also deposited their share. The complainant applied for

revision of CMPF accumulation and the same had been refunded to him. Further, the

complainant was governed as per provisions of Coal Mines Pension Scheme 1998 and

entitled for pension as per Para 10(2) of the Scheme. He had also given a declaration that

he was covered under the said Scheme and also given option to that effect.

4. In their reply to the complaint, OP No. 2, BCCL stated that the complainant had been

paid the right amount of pension and the facts as stated in response given by OP No. 1,

were correct.

5. At the time of hearing before us, the learned counsel for the petitioner in RP No.

3036/2012, Regional Commissioner, CMPF versus Anant Sethi, has drawn our attention to

a copy of Coal Mines Pension Scheme 1998, as notified vide GSR No. 123(E) dated

05.03.1998 under the Coal Mines Provident Fund and Miscellaneous Provisions

(Amendment) Act, 1996, notified under S.O. No. 232(E) dated 20.03.1998. The

complainant was covered under clause X, “Monthly Pension” and he was eligible to receive

monthly pension @25% of the average emoluments. The learned counsel has also drawn

our attention to the undertaking given by the complainant to the Regional Commissioner,

CMPF, Dhanbad that he undertakes to refund or make good the amount to which he was

not entitled. The complainant had also given his option at the time of submission of claim of

pension under Coal Mines Pension Scheme 1998, saying that he had opted to draw full

admissible amount of pension under paragraph 15(1)(A) of the Scheme. The learned

Counsel stated that the petitioner was a statutory authority created by an Act of Parliament

and hence, they were not bound to act in accordance with the circular issued by a Coal

Company. The learned counsel also stated that as per the said judgement of the High

Court dated 19.08.2005, duly affirmed by the Hon’ble Supreme Court in their order dated

13.03.2007, the direction was to revise the Dearness Allowance only and the same had

already been done. The petitioner could, therefore, not deviate from the provisions of the

Scheme and the said circular of the Coal India or the BCCL were not applicable to them.

6. In reply, the learned counsel for complainant/respondent admitted that the petitioner

was supposed to make payment of pension @25% of the pay drawn by the employee, but

he stated that the balance 25% amount was to be paid by the Coal India, either directly or

through the petitioner.

7. In the second revision petition, RP No. 4370/2012, learned counsel for the petitioner

stated that there had been a delay of 64 days in filing the revision petition, but the same had

occurred as they became aware of the impugned order dated 18.05.2012 on 26/27.07.2012,

upon receipt of claim from the respondent. An

application

for obtaining the certified copy of the order was made on 2.08.2012 and the same was issued on 1.10.2012. The revision petition was filed after getting the approval of the competent authority, engaging the counsel and then preparing the revision petition. The delay, being unintentional, should be condoned.

8. The learned counsel further argued that the erstwhile employees of Coal Production

and Development Collieries (CPDC) Organisation, Coal Controller Organisation (CCO) and

State Railway Collieries were absorbed in the service of the NCDC in the year

1956. However, the employees, who joined post-1956 were ‘appointed’ and not ‘absorbed’

in the service of NCDC. In the instant case, the complainant was ‘appointed’ with NCDC on

2.03.62 and hence, he was governed by the Corporation Rules only, which did not contain

any provision relating to pension. An office memorandum dated 17.08.1968 for

implementation of wage board recommendations in respect of monthly paid staff was issued

with effect from 16.08.67. The employees who had been appointed before 16.08.67 were

given the option to retain the conditions of service enjoyed by them. The complainant, vide

option form dated 02.03.70, opted for retaining the existing service conditions and still, he

was not entitled to receive pension as per these service conditions. However, after having

opted for wage board recommendations, the complainant became member of CMPF

Scheme in 1970 and was given CMPF account number C/382840. By virtue of that, the

complainant became member of Coal Mines Family Pension Scheme, 1971 and 1998

floated under CMPF, which was contributory in nature. The pension of the complainant had

already been settled, revised and fully paid till date.

9. The complainant does not fall under the category of employee to whom Office

Memorandum dated 2.05.2001 was applicable, because the said memorandum was

applicable to employees absorbed from Central / Railway services, i.e., Pre-1956 set of

employees. The said memorandum dated 2.05.2001 was, later on modified vide

memorandum dated 21.08.2007 in compliance of order passed by the Hon’ble

Supreme Court on 13.03.2007 in SLP (C) No. 3617/2007 and SLP (C) No.

5117/2006. However, the category of employees covered remained the same, meaning

thereby that the complainant cannot get benefit of the said memorandum. The complainant

requested first time for payment of pension @50% of the salary vide his letter dated

4.10.2008, i.e., after 6 years of his retirement. The District Forum had, therefore, rightly

dismissed the consumer complaint in question, based on the facts on record. However, the

order passed by the State Commission was not in accordance with law and deserved to be

set aside. The learned counsel further stated that the entire situation had been clarified in

their rejoinder filed before this Commission on 23.09.2013. 10. In reply, the learned counsel for the complainant admitted that he was not in the

category of ‘absorbed’ employees, since he was appointed to the service of NCDC from

2.03.1962. He, however, stated that he was entitled to get pension @50% of his

salary. The order passed by the State Commission was in accordance with law and the

same should be upheld.

11. On behalf of respondent Anant Sethi, written notes of arguments have also been filed

on 23.12.2013, which are on record. It has been stated therein that the respondent have

opted for the pay-scales, coal mines attendance bonus and DA recommended by Coal

Wage Board and accepted by Government of India and for retaining the existing conditions

of service (as on 14.08.67) by which he was governed at that time. The respondent had

exercised this option after going through the OM No. RD/WB/IMP/Monthly

Staff/68/17/08/1968. It has further been stated that the Coal India Limited issued OM dated

17.04.2008 in respect of exNCDC employees who retired under Wage Board

recommendations or Industrial scale of pay. Both executive and non-executive pensioners

were entitled to DA with effect from 1.1.92 and 1.7.96 respectively. Further, the executive

and non-executive cadre employees were entitled to 50% basic pay as pension with effect

from 1.1.92 and 1.7.96 respectively. The OM dated 17.04.2008 was explicitly for direct

employees of NCDC like the present respondent and being ex-NCDC employee, he was

entitled to get benefit of OM dated 17.04.2008.


to the arguments advanced before us. In so far as RP No. 3036/2012, Regional

Commissioner, CMPF, Dhanbad versus Anant Sethi is concerned, it has been categorically

stated by the petitioner that they are a statutory authority created by an Act of Parliament,

and they are supposed to give pension @25% of the salary as per the provisions of the

Coal Mines Pension Scheme 1998. They have also stated that even if Coal India or BCCL

have issued any further circular on the subject, they are not bound by it, as they have to

proceed in accordance with the provisions of the Scheme / Act. This position has been

admitted by the respondent during the course of arguments. It is clear, therefore, that no

relief is required against the petitioner in RP No. 3036/2012 by the

complainant/respondent. This revision petition is, therefore, liable to be allowed and the

order passed by the State Commission, qua the petitioner, Regional Commissioner, CMPF,

Dhanbad set aside.

13. Now, coming to RP No. 4370/2012, it is an admitted position that the respondent

Anant Sethi was appointed to the service on 2.03.1962 and he is not one of the ‘absorbed’

pre-1956 employees. The petitioners have clarified that the Office Memorandum dated

2.05.2001 was issued by Coal India Limited to regulate the pension in respect of such

pensioners, who on absorption from the Central/Railway services, rendering pensionable

service, had retired under available scale of pay. This OM, therefore, does not apply to the

present respondent. In accordance with the orders passed by the Hon’ble Supreme Court

on 13.03.2007 in SLP (C) 3617/2007 and SLP (C) 5117/2006, a modified OM was issued

on 21.08.2007. It is the case of the petitioner that the category of employees covered under

the Memo dated 21.08.2007 remained the same as was under the OM dated

2.05.2001. Further modification in the OM dated 21.08.2007 vide OM dated 17.04.2008,

was made in compliance of order dated 13.03.2007 of the Hon’ble Supreme Court, but the

category of employees covered, remained the same. The complainant has requested that

he should be given pension @50% of basic salary in accordance with the OM dated

17.04.2008. However, since the petitioners have been able to show that such

memorandum was applicable only to the absorbed employees and hence not applicable to

the respondent, we do not find any justification to differ with this view, in view of the facts

and circumstances of the case. It is clear, therefore, that the State Commission have taken

an erroneous view in holding that the Memorandum dated 17.04.2008 was applicable to the

respondent. The order passed by the State Commission is, therefore, liable to be set aside

on this ground also.

14. Based on the above discussion, both these revision petitions are ordered to be

accepted and the order passed by the State Commission is set aside and that of the District

Forum is upheld. The consumer complaint, in question, is ordered to be dismissed with no

order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3337 OF 2013With I.A. No.5926 (For Stay) I.A. No.5927 (For C/Delay) I.A. No.5928( Exemption from Translation of Doc.) I.A. No.5929 ((For Addl. Doc.)

(Against the order dated 19.12.2011 in Appeal No.2440 of 2011 of the State Commission,Uttar Pradesh)

Kanpur Development Authority, Kanpur Nagar, through its Vice-Chairman, Motijheel, Kanpur (U.P.)

…Petitioner

Versus

Smt. Indra Singh, W/o Dr. Rajpal Singh R/o H. No. 117/151, Block-Q, Kanpur Nagar U.P.

…Respondent

BEFORE:



For the Petitioner : Mr. Abhishek Chaudhary, Advocate

Pronounced on: 14th March, 2014

ORDER


Petitioner/Opposite Party being aggrieved by order dated 19.12.2011, passed by State

Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (for short, ‘State

Commission’) in First Appeal (No.2440 of 2011) has filed the present revision petition under

Section 21(b) of Consumer Protection Act, 1986 (for short, ‘Act’).

2. Facts in brief are that Respondent/Complainant purchased one freehold plot situated in

Sharda Nagar, Kanpur from one Abdul Shakoor. After purchase of the plot, respondent made

effort to deposit the development fee with the petitioner, but no action was taken in this

regard. In the year 1991, petitioner published a notification for regularization of the property by

collecting development fee etc. On the basis of said notification, respondent deposited a sum of

Rs.10,117/- in the account of the petitioner. In spite of numerous requests, the petitioner did not

give any approval. Alleging deficiency on the part of Petitioner-Authority, respondent filed a

consumer complaint.

3. The complaint was contested by the petitioner who in its written statement has admitted

that the respondent had deposited a sum of Rs.10,117/- on 27.3.1991. The other plea taken by

respondent is, that the plot in question is in unauthorized occupation of the respondent and

same is earmarked for a proposed park.

4. District Consumer Disputes Redressal Forum, Kanpur Dehat (for short, District Forum’)

allowed the complaint. It directed the petitioner to regularize the plot in dispute at the rate

prevalent in the year 1990-91, after collecting the balance from the respondent within 30 days

and intimate the District Forum. Petitioner was also directed to pay Rs.10,000/-

as compensation for mental agony and harassment and Rs.2,000/- towards cost of litigation.

5. Being aggrieved, petitioner filed an appeal before the State Commission, after a period of

two and a half years.

6. The State Commission, vide impugned order dismissed the appeal on the ground of

limitation as well as on merits.

7. Now, petitioner has filed the present petition against the order of the State Commission.

Alongwith it, an application for condonation of delay has been filed. However, no period of delay

has been mentioned in the application at all. Be that as it may, as per Office note there is delay

of 519 days.

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

9. It has been contended by learned counsel that delay has occurred due to office procedure.

However, petitioner has a case on merits, since respondent is in unauthorized occupation of the

plot and the complaint is also barred by limitation.

10. The grounds on which condonation of delay has been sought read as under;

“2. That there is a delay of________days in preferring the above said petition. It is submitted that the above said delay is neither intentional nor deliberate but it is on account of facts stated herein below.

3. That the impugned order was passed on 19.12.2011 wherein the appeal was dismissed for delay on behalf of the appellants as well as on merits.

4. That vide letter dated 1.4.2012, Shri Kanchan Gupta, concerned Clerk met the undersigned with the wrong file by the same name.

5. That the file which was wrongly sent earlier was received back to the Kanpur Development Authority on 4.8.2012. Thereafter vide letter dated 21.6.2013, the clarification was sought for from Shri Azaz Ansari for not making available necessary documents as Zonal plan, layout plan, revenue plan, copy of award to the concerned Advocate. That the office of the undersigned received the regularization file from the concerned official on 25.8.2012. That the undersigned asked for other necessary documents like the copy of the award, zonal plans, revenue documents etc.

6. That the undersigned vide letter dated 8.9.2012 asked for the necessary papers as the appeal before the Hon'ble State Commission was dismissed as the authority had not adduced evidence to support the claim.

7. That again vide letter dated 25.5.2013, the undersigned asked for the copy of the award which is legible as the copy supplied earlier was illegible.

8. That explanation has been sought from Mr. Kanchan Gupta and Mr. Azaz Ansari officials of the authority for delay in filing the present revision petition and appropriate action will be taken for causing the delay.

9. Thereafter it took some time in drafting the petition, translations etc.”

11. It is an admitted fact that impugned order was passed on 19.12.2011. However, petitioner

has cleverly omitted to mention an important fact as on which date it received the certified copy

of the impugned order. As percertified copy of the impugned order placed on record, petitioner

had received it on 20.1.2012. The explanation given by petitioner is, that vide letter dated

1.4.2012, Shri Kanchan Gupta, Clerk met the counsel for the petitioner with wrong file by the

same name. Thus, the file which was sent wrongly earlier was received by the petitioner on

4.8.2012. Thereafter, vide letter dated 21.6.2012 certain clarification were sought from one Shri

Azaz Ansari. As apparent from the record, present petition was filed before this Commission

only on 20.9.2013. No plausible explanation has been given by the petitioner for this long delay

of 519 days. Even otherwise, petitioner had not filed any affidavit of the concerned officials,

namely, Mr. Kanchan Gupta and Mr. Azaz Ansari who were dealing with the matter, nor it had

filed the affidavit of the counsel who was dealing with the matter.

12. In Ram Lal and others 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 discretionarypower after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

13. 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”.



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.”

15. The 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”.

16. Lastly, in Post Master General and others (Supra), Hon'ble Supreme

Court observed;

“24. 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;

“29. 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.

30. 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 landlosers 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 landlosers. 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 landlosers 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 Apex Court further observed;

“27. 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.

28. 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.

29. 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.

30. 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.”

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

18. Even otherwise also, the petitioner had been non-suited before the State Commission, on

the ground of delay for more than two and a half years. The explanation offered before the

State Commission seeking condonation of delay staes;

“The file was not traceable for some time”

19. The State Commission while disposing the appeal rightly observed;

“It appears to be a vague submission of the Development Authority just to

justify the delay. Since, we do not find any merit in the explanation offered by

Kanpur Development Authority, we are not inclined to accept it and condone the

delay.”

20. Even on merit, the State Commission observed that appeal is devoid of force and held;

“The complainant’s claim for regularization in accordance with the scheme of the Kanpur Development Authority was resisted and contested by the Kanpur Development Authority on the ground that the land in occupation of Smt. Indra Singh was a part of the public park. This plea is being reiterated by the Development Authority for the last several years but not an iota of documentary evidence has been filed either before the Forum below or before us to substantiate the said plea.

We are, therefore, not impressed with the Development Authority’s ground of resistance.The complainant purchased the land in her occupation from Sri Abdul Shakoor. The Kanpur Development Authority has not even adduced in evidence any paper or document to prove that the land of Sri Abdul Shakoor was acquired by it and compensation paid to him. In the absence of the relevant documents, it is difficult to accept the appellant’s plea that the land in question was a part of the public park.”

21. We fully agree with the reasoning given by the State Commission that there was delay of

two and a half years in filing the appeal before it. Under such circumstances, it rightly refused to

condone the long delay of two and a half years.

22. In the present case, petitioner as per averments made in para no.5 of the written statement

admits;

“That it had accepted a sum of Rs.10,117/- on 27.3.1991 from the petitioner.”

23. There is nothing on record to show that petitioner has returned that amount to the

respondent so far. Thus, petitioner had been enjoying the aforesaid amount for last more than

23 years without any lawful authority.

24. Accordingly, the present petition is nothing but gross abuse of the process of law and has

been filed just to waste time of this Commission and to deprive the respondent fruits of the

award which was passed in his favour as early as in the year 2009.

25. It is well settled that frivolous litigation clogs the wheels of justice, making it difficult for

courts to provide easy and speedy justice to the genuine litigants. A strong message is required

to be sent to those litigants who are in the habit of challenging the order of the fora below even

if the same are based on sound reasoning. No one should be permitted to frustrate the object of

the Act which provide for speedy justice, by indulging in frivolous litigation. Under these

circumstances, the present revision petition is liable to be dismissed with punitive cost.

26. Now, question which arise for consideration is as to what should be the quantum of cost

which should be imposed upon the Petitioner-Authority for wasting the time of State

Commission as well as of this Commission. It has been clearly established from the record that

petitioner had been pursuing this litigation in a very careless, casual and negligent manner.

27. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors., Civil Appeal

Nos.4912-4913 of 2011 decided on July4, 2011 has observed;

“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.

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 Sing 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.

It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers.

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 him and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.”

While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.

The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.

On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well-reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/- (Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation.”

28. Accordingly, the present revision petition being barred by limitation as well as not

maintainable on merit, stand dismissed with cost of Rs.50,000/- (Rupees Fifty Thousand only).

Petitioner is directed to deposit the cost by way of a demand draft in the name of ‘Consumer

Legal Aid Account’ of this Commission, within four weeks.

29. In case, petitioner fails to deposit the cost within the prescribed period, then it shall be

liable to pay interest @ 9% p.a., till realization.

30. Thereafter, the petitioner shall recover the costs amount from the salaries of the delinquent

officials who had been pursuing this meritless litigation with the sole aim of wasting the public

ex-chequer. An affidavit, duly sworn by the Chairman of Petitioner-Authority giving details of

the officials from whose salaries the costs have been recovered, be also filed within four

weeks.

31. Pending applications stand disposed of.

32. List for compliance on 25.4.2014.

…………………………………….J

(V.B. GUPTA)

PRESIDING MEMBER

…………………………………………

(REKHA GUPTA)

MEMBER

sg.


REVISION PETITION NO. 949 OF 2011(Against the order dated 18.08.2010 in Appeal No.2455/2009 of the State Commission, Karnataka)

1. The Manager ICICI Lombard General Insurance Co. Ltd. 4th Floor, Shri Krishna Tower Khanapur Road, Tilakwadi Belgaum 2. The Regional Manager ICICI Lombard General Insurance Co. Ltd. 61/1, II Floor, Prestige Corniche Richmond Road Bangalore- 560025 3. The Manager Legal Department ICICI Lombard General Insurance Co. Ltd. Regd. Off: ICICI Bank Towers Bandra Kurla Complex Mumbai-51 Now represented by Its Manager LegalICICI Lombard General Insurance Co. Ltd. # 89, II Floor, S.V.R. Complex Hosur Main Road, Madivala Bangalore- 560068 Through its Manager (Legal) ICICI Lombard General Insurance Co. Limited 3rd Floor, Narain Manzil 23, Barakhamba Road New Delhi- 110001

…..Petitioners Versus Shri Gafur Alamgeer Sayyad R/o CTS No.4822/70 Bansur Building, II Main, I Cross, Sadashiv Nagar Belgaum Karnataka

…..Respondent BEFORE HON’BLE MRS. VINEETA RAI, PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER For the Petitioner : Mr. A.N. Krishna Swamy, Advocate For the Respondent: Mr. Prashant F. Goudar, Advocate PRONOUNCED ON: 14/3/2014 ORDER


Complainant Gafur Alamgeer Sayyad had insured his car with OPs/ICICI Lombard

General Insurance Co. Ltd. During the period of insurance the car met with an

accident. The surveyor appointed by the insurance company made a detailed assessment

and submitted his report. However, the claim was repudiated on the ground that while it

was insured for private use, thevehicle was used on hire basis at the time of the accident,

which was in violation of the terms and conditions of the policy.

2. The District Forum considered the evidence in detail. It took note of the fact that

the driver of the vehicle had made a deposition before Workman Compensation

Commissioner Belgaum, which showed that the vehicle was being used for commercial

purpose on the date of the accident. However, it held that even if it was a violation of terms

and conditions, it did not constitute afundamental breach of the policy

conditions. Therefore, the claim could not have been repudiated in totality. The District

Forum accordingly, held that the OPs should have settled the claim on non-standard

basis. Therefore, it held the OPs responsible to pay Rs.4.5 lakhs to the complainant with 6

% interest, from the date of the repudiation. The vehicle was insured for Rs.6.72 lakhs.

3. The decision of the District Forum was challenged by both sides before the State

Commission. In a common order, the State Commission has agreed with the District Forum

and held that “Even if there is a violation in terms & conditions of the Policy, the OPs are not

justified in repudiating the entire claim of the complainant. In similar cases, this

Commission has taken the view that if there is a violation in terms of the Policy, the OPs are

liable to settle the claim on non-standard basis.”

4. ICICI Lombard General Insurance Co. has filed this revision petition challenging the

concurrent view taken by the fora below that it was a case for settlement on non-standard

basis and not for outright repudiation of the claim in its entirety. The sole ground of

challenge is that the liabilities of the insurance company cannot go beyond the terms and

conditions of the insurance policy which is binding on the parties to the insurance

contract.

5. The revision petition has been considered by the Circuit Bench of this Commission at

Bangalore. Advocates Mr. A. N. Krishnaswamy for the Insurance Company

and Mr. Prashant F.Goudar for the respondent/complainant have been heard. We have

also carefully perused the records as submitted before us. The petition has been filed with

delay of 123 days. A perusal of

application seeking condonation of this delay shows that the copy of the impugned order was received on 7.10.2010. Thereafter, for the next four months the matter just kept moving from oneoffice to another within the insurance company. Finally, papers were sent to their counsel on 2.2.2011 with decision to file the revision petition before this Commission. The explanation for such inordinate consumption of time is far from satisfactory. The revision petition is therefore liable to be dismissed on the ground of limitation alone.

6. Coming to merits, the pleadings of the OP/Insurance Co. before the District Forum

show that the repudiation of the claim was on the solitary ground of the vehicle being used

for commercialpurpose i.e. for hire. Learned counsel for the revision petitioner emphasised

that use of the vehicle for commercial purpose had been clearly established before

the fora below. There is no dispute that the vehicle was insured for private use only. For

commercial use, the insured would have an obligation to pay premium at a higher rate. He

therefore argued that there cannot be any justification for settlement at 75% of the assessed

loss.

7. On the other hand, learned counsel for respondent/complainant has placed direct

reliance on the decision of Hon’ble Supreme Court in National Insurance

Company Vs. NitinKhandelwal, IV (2008) CPJ 1 (SC). This too was a case where the

vehicle was found to be used for commercial purpose, in violation of the terms and

conditions of the policy. The District Forum dismissed the complaint but the State

Commission as well as the National Commission took a view that reimbursement on non-

standard basis would be just and fair, in the facts and circumstances of the

case. H’ble Supreme Court of India has agreed with the National Commission, observing

that—“12. 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.

13. In the instant case, the State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstance in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.

14. In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of the settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission.”

8. The view taken in the decision above has been confirmed by the Supreme Court of

India in Amalendu Sahoo Vs. Oriental Insurance Company Ltd., II (2010) CPJ (SC). In

this case, too the claim for accident under the policy was repudiated by the insurer on the

ground that vehicle was given on hire in violation of the terms of policy. The District Forum

and the State Commission upheld repudiation on the ground of violation of the specific

condition in the policy.

9. The National Commission refused to interfere with the concurrent findings of

the fora below. However, the Apex Court held that repudiation of the claim in this case was

not sustainable. The court confirmed the view taken in the Nitin Khandelwal case and

allowed the complaint holding that-

“15. The State Commission has allowed only 75% claim of the respondent on non-standard basis. We are not deciding whether the State Commission was justified in allowing the claim of the respondent on non-standard basis because the respondent has not filed any appeal against the said order. The said order of the State Commission was upheld by the National Commission.

16. In our considered view, no interference is called for. This appeal is accordingly disposed of. In the facts and circumstances of the case, the parties are directed to bear their own costs.”

10. It needs to be pointed out that in the matter before us, it was not the case of the

OP/Insurance Company that there was any vital nexus between the accident of the vehicle

and the deviation of purpose in its use. The evidence of the driver before the District Forum

shows that the car had collided with a tractor trolley while travelling on Pune- Bangalore

National Highway. The tractor trolley was loaded with sugarcane and the accident had

allegedly occurred due to the fault of the tractor trolley. As per the car driver, the car was

being driven at 50-60 km per hour, at that time. Thus, while the use of the vehicle was

irregular, it did not constitute any fundamental breach due to which the owner of the vehicle

should be denied indemnification by the insurer. We therefore, find ourselves in full

agreement with the view taken by the fora below.

11. In view of the details examined above, revision petition No.949 of 2011 is dismissed

both on grounds of limitation and merit.

…..…………….…….……(VINEETA RAI)PRESIDING MEMBER




(From the order dated 19.11.2007 in Appeal No. 223/2007 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Life Insurance Corporation of India Through the Sr. Divisional Manager Divisional Office-I,‘Jeevan Prakash’ J.C. Road, Bangalore – 560002

…Petitioner/Opp. Party

Versus1. Veena W/o Late Manje Gowda R/o Theveraghatta Opposite to University Camp, Bhadravati Taluk Shimoga District – 577201 Karnataka 2. Ranjith S/o Late Manje Gowda 3. Ramya D/o Late Manje Gowda Since the Respondents Nos. 2 & 3 Are minors, represented by their Mother the 1st Respondent


BEFORE



For the Petitioner :Mrs. Harvinder Kaur, Advocate

For the Res. No. 1to3 :Ex-parte


O R D E R



19.11.2007 passed by the Karnataka State Consumer Disputes Redressal Commission,

Bangalore (in short, ‘the State Commission’) in Appeal No.223 of 2007 – The LIC of India

Vs. Veena & Ors. by which, while dismissing appeal, order of District Forum allowing

complaint was upheld.

2. Brief facts of the case are that complainant No. 1/respondent No. 1’s husband and

Complainant Nos. 2 & 3/Respondent Nos. 2 & 3’s father Manje Gowda was an agriculturist

and was hale and healthy. He took insurance policy for Rs.1,00,000/- on 27.4.2001 from

OP petitioner. On 14.4.2003, the insured untimely expired. Claim submitted by the

complainants was not settled by OP. Alleging deficiency on the part of OP, complainant

filed complaint before District Forum. OP resisted complaint and submitted that death

occurred within 2 years from the date of policy and on investigation it was found that

assured suffered from Ischemic heart disease about one year and 10 months before

issuance of policy and underwent treatment in different hospitals, but he suppressed this

fact in the proposal form. On account of fraudulent suppression of material facts, claim was

repudiated and prayed for dismissal of complaint. Learned District Forum after hearing both

the parties allowed complaint and directed OP to pay Rs.1,00,000/- with 10% p.a. interest

and further awarded Rs.5,000/- for mental agony and Rs.2,000/- towards cost

of litigation. Appeal filed by the petitioner was dismissed by learned State

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

3. None appeared for 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 on account of fraudulent

suppression of previous disease and treatment in the proposal form and as assured died

within two years of obtaining policy, claim was not payable even then District Forum

committed error in allowing complaint and learned State Commission further committed

error in dismissing appeal; hence, revision petition be allowed and impugned order be set

aside.

6. It is not disputed that assured Manje Gowda obtained insurance policy from OP on

27.5.2001 and he died untimely on 15.4.2003 i.e. within 2 years of obtaining policy. Perusal

of proposal form reveals that -

Personal History:

(a) During the last five years did you consult a Medical

Practitioner

for any ailment requiring treatment for more than a week? - No

b) Have you ever been admitted to any hospital or

nursing home for general check-up, observation,

treatment or operation? - No

(c) Have you remained absent from place of work on grounds of health during the last five

years? - No

(d) Are you suffering from or have you ever suffered

from ailments pertaining to Liver, Stomach,Heart,

Lungs, Kidney, Brain or Nervous system? - No

Queries from (a) to (d) were replied in negative, whereas documents on record reveal that

assured consulted doctor on 6.7.1999 and he was found Ischemic heart disease on

7.7.1999. He consulted Cardiologist on 5.8.1999 and took treatment for this disease. Again

on 14.12.1999, he was admitted in KMC Hospital, Manipal and was discharged on

20.12.1999 with the final diagnosis of Ischemic heart disease, moderate L.V. dys-function

etc. Again he was admitted in Nanjappa Hospital on 18.4.2000 and was discharged on the

same day and on 3.5.2001, he underwent Echo Cardiography at Subbaiah Hospital,

Shimoga. On 26.5.2001, he visited Sri Basaveshwara Hospital and took treatment. Insured

has given wrong declaration in reply to the questions in paragraph 11 (a) to (d) and has

given false answers and obtained policy fraudulently. Petitioner has not committed any

error in repudiating claim.

7. Learned District Forum allowed complaint and learned State Commission observed in

the order that insured committed suicide and there was no nexus between the cause of

death and treatment taken by the insured and on this basis dismissed appeal of the

petitioner.

8. Complainant has not pleaded in the complaint that insured committed suicide and in

such circumstances, it cannot be inferred that insured died on account of suicide. In the

complaint, only this fact has been mentioned that he died untimely. Apparently, it appears

that on account of heart disease, insured collapsed. Even if it is presumed that that cause

of death had no nexus with the disease suffered by the insured, complainants were not

entitled for any claim as held by this Commission in II (2007) CPJ 51 (NC) – Life Insurance

Corporation of India Vs. Krishan Chander Sharma as there was clear suppression of

material facts regarding insured’s health.

9. Complainant mentioned in the complaint that insured was an agriculturist and hale

and healthy whereas record reveals that he was suffering from heart disease. Thus, it

becomes clear that complainants have not come with clean hands and on this count also

complaint was liable to be dismissed and learned District Forum committed error in

allowing complaint and learned State Commission further committed error in dismissing

appeal and revision petition is to be allowed.


dated 19.11.2007 passed by the Karnataka State Commission, Bangalore in Appeal No.223

of 2007 – The LIC of India Vs. Veena & Ors. and order of District Forum 19.12.2006 passed

in C. NO. 124/04 - Veena & Ors. Vs. The LIC of India are set aside and complaint stands

dismissed with no order as to costs.


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk



(From the order dated 29.08.2013 in First Appeal No. 1588/2011 of Uttar Pradesh State Consumer Disputes Redressal Commission)

Radha Verma w/o Late Sri Rajiv Verma 16-Sri Anandpur Dham Dharampur Vishunipur, Balrampur - 271201.

... Petitioner/complainant

Versus

Vice Chairman Ghaziabad Development Authority Ghaziabad (U.P.)

… Respondent/OP

BEFORE




For the Petitioner(s) Mr. Mata Prasad Verma, A.R.

Father-in-law of the petitioner



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

Act, 1986 against the impugned order dated 29.08.2013, passed by the Uttar Pradesh State

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

1588/2011, “Radha Verma versus Vice Chairman, Ghaziabad Development Authority,” vide

which while dismissing the appeal, the order dated 03.08.2011, passed by the District

Consumer Disputes Redressal Forum, Ghaziabad in consumer complaint No. 348/2009,

allowing the said complaint, was upheld.

2. Brief facts of the case are that the petitioner/complainant Radha Verma applied to the

respondent Ghaziabad Development Authority (GDA) for allotment of a house in Madhuban

Bapudham EWS Housing Scheme, property code 41F and Yojana Code 772 vide

application number 10486. She was declared successful in the draw of lots, held on

12.06.2009, but the allotment letter was not issued to her despite sending two letters dated

20.08.2009 and 23.09.2009 by her. It has been stated in the complaint that because of

the enhancement of the cost of the house in other schemes, the respondent was not

issuing allotment letter to her. Through the consumer complaint in question, the petitioner

requested for allotment of house in the scheme in which she had made application and in

case of failure to allot the house, to pay a compensation of `_8.25 lakh and also to give

compensation of `_20,000/- for mental agony.

3. The respondent GDA filed their response before the District Forum, admitting that the

petitioner had been declared successful in the draw of lots, but stated that the allotment

letter had not been issued to her because her concurrence for increase in the cost of the

unit in question from `_2 lakh to `_3.25 lakh was awaited. Letters had been sent to the

complainant to get consent for increased cost but she had not sent reply to those

letters. The District Forum after taking into account the evidence of the parties, directed

vide their order dated 03.08.2011 that allotment letter be issued to the complainant for the

house in Yojana Code 772, property code 41F, but the GDA was free to fix the cost of the

house after issuing the allotment letter. A compensation of ` 5,000/- for

mental harassment and ` 2,000/- as cost of litigation was also allowed. As a sequel to the

orders passed by the District Forum, the respondent GDA allotted flat no. Pocket E, 30/11 B

to the complainant and the allotment letter was issued on 26.11.2011 and the final cost was

mentioned as ` 3,75,060/-. It is also mentioned that estimated cost of the said flat was `

2.70 lakh, but since the proposed grant was not provided by the Government, the cost of

the flat had to be revised. An appeal was made by the complainant against the order of the

District Forum, but it was dismissed vide impugned order. It is against this order that the

petitioner/complainant has preferred this revision petition.

4. At the time of arguments before us, the authorised representative of the petitioner,

Mata Prasad Verma has drawn our attention to the written arguments filed by the petitioner

before the State Commission which are on record. He stated that there had been injustice

to the complainant at the hands of the respondent, because the cost of the flat had been

revised by them without any valid reason. The respondent had also filed written arguments

before the State Commission, a copy of which has been filed by the petitioner, alongwith the

revision petition.

5. We have examined the entire material on record including the written arguments filed

on behalf of both the parties before the State Commission. Admittedly, the

petitioner/complainant became successful in the draw of lots held by the respondent

Authority for allotment of flats in question, but the Authority decided to revise the price of the

flat from ` 2 lakh to ` 3.25 lakh, which was not consented to by the petitioner and hence, the

allotment letter was not issued to her. The District Forum, while passing their order on the

consumer complaint in question, directed that allotment letter should be issued by the

respondent, but the GDA had the right to fix the price of the flat on their own. Accordingly,

an allotment letter dated 26.11.2011 was issued in favour of the complainant and flat No. E-

Block 10/11 B for a consideration of ` 3,75,060/- was allotted to her. It is the stand of the

GDA that they had to revise the cost of the flat, since the proposed subsidy was not given

by the Government. The petitioner/complainant has not been able to show anywhere that

the respondent Authority had no right to revise the price of the flat. The District Forum and

the State Commission have rightly observed that the determination of the price of the flat

was within the domain of the GDA. The respondent have also given reference to the orders

passed by the National Commission in “National Consumer Awareness Group versus

The Housing Commissioner Punjab” [as reported in 1997 (3) CPJ 88 (NC)] and

“Commissioner, Gujarat Housing Board & Anr. versus Thakkar Somalal” [as reported

in 1996 (2) CPJ 90 (NC)], in which it has been held by this Commission that the question of

pricing of flat by a housing Authority or Board is not a consumer dispute. A similar view has

also been held in “Ghaziabad Development Atuhority versus Sandeep Singh” [Appeal

No. 2482 / 2011 decided on 22.12.2011]

6. In the light of the discussion above, it is held that the petitioner/complainant has not

been able to prove anywhere that the respondent had no right to fix the price of the

flat. The orders passed by the District Forum and State Commission, therefore, do not

suffer from any illegality, infirmity or jurisdictional error and the same are upheld. The

revision petition is ordered to be dismissed. There shall be no order as to costs.Sd/-

(K.S. CHAUDHARI J.) PRESIDING MEMBER

Sd/-


RS/



(From the order dated 25.01.13 in M.A. No. 1127/2012 in FA No. 731/2012 of Punjab State Consumer Disputes Redressal Commission)

1. M/s EMAAR MGF Land Limited Registered Office, ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001.

2. M/s EMAAR MGF Land Limited Mohali Hills, Sector 105 Mohali, Punjab

... Petitioners/OPs

Versus

1. Rupinder Kaur w/o Raminder Jeet Singh,

2. Gaurav Deep Singh s/o Raminder Jeet Singh,

3. Pawan Deep Singh s/o Raminder Jeet Singh,

all residents of House No. 4, Guru Gobind Singh Nagar, Jalandhar.

… Respondents/Complainants

BEFORE




For the Petitioner Mr. Aditya Narain, Advocate

Ms. Anushree Narain, Advocate

Mr. Shashank Bhushan, Advocate

For the Respondents Mr. Adarsh Ganesh, Advocate

with Dr. Balwinder Singh, Advocate

PRONOUNCED ON : 14TH MARCH 2014O R D E R



Act, 1986 against the impugned order dated 25.01.2013, passed by the Punjab State


731/2012, “M/s. Emmar MGF Land Limited versus Rupinder Kaur & Ors.” vide which, while

dismissing the appeal, the order dated 4.10.2011, passed by the District Consumer

Disputes Redressal Forum, SAS Nagar, Mohali, Punjab in CC No. 291/2011, allowing the

said complaint, was upheld. The appeal was ordered to be dismissed by the State

Commission on grounds of delay in filing the said appeal.

2. Brief facts of the case are that the present respondents/complainants filed the

consumer complaint in question against the petitioner/OP Developer, alleging that the

petitioner/OP had performed deficiency in service and negligence in not carrying out the

development of Sector 109, SAS Nagar, Mohali as per promises made in their letter dated

08.06.2007 and for not allowing the complainants to make their choices for preferential

location, even after receiving the requisite charges and in not handing over possession

etc. The complaint was heard by the District Forum and decided by them vide order dated

04.10.2011. On that date, the counsel for the petitioner/OP was not present before the

District Forum, although he had been appearing during the previous hearings, but the

District Forum, without giving a chance of hearing to the OP, passed the order in

question. An appeal against this order was dismissed vide impugned order by the State

Commission on the ground that there was a delay of 210 days in filing the said appeal. It is

against this order that the present petition has been made.

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

as pleaded by them in their application for condonation of delay, filed before the State

Commission, the petitioners had been regularly appearing before the District Forum through

their counsel and had filed their reply and evidence. However, the said counsel did not

appear before the District Forum on the date of arguments, but still, the case was heard and

decided by the District Forum on that very day. Further, they never received copy of the

order of the District Forum and came to know about the same on 14.04.2012, when a legal

notice was received by them. They immediately engaged a new counsel and got hold of

certified copies of the case papers and order of the District Forum on 30.04.2012. The

appeal was then filed before the State Commission on 01.06.2012. The learned counsel

argued that if the limitation is counted from the date of knowledge, there was only a delay of

11 days in filing the appeal before the State Commission and hence, the same should have

been condoned by the State Commission and their appeal heard on merits. The learned

counsel has drawn our attention to copies of the interlocutory orders passed by the District

Forum in which the presence of Mr. Ashish Swarup, Advocate has been recorded. The

learned counsel has referred to an order passed by the Hon’ble Apex Court in “Secretary,

Department of Horticulture, Chandigarh & Anr. versus Raghu Raj” [as reported in

(2008) 13 SCC 395], in which it has been held that a party should not suffer on account of

non-appearance of an Advocate. It has also been held that matter should have been

adjourned so as to enable the counsel to make his submissions on merits. A similar view

has been expressed by the Hon’ble Apex Court in “Rafiq and Anr. versus Munshilal &

Anr.” [as reported in AIR 1981 SC 1400], saying that a party should not suffer for omission

on the part of their counsel. In “Housing Board, Haryana versus Housing Board Colony

Welfare Association and Ors.” [as reported in AIR 1996 SC 92], the Apex Court held that

the period of limitation should commence from the date on which copies of the order were

ready and made available.

4. On the other hand, the learned counsel for the complainants/respondents have

placed on record a copy of letter No. DCDRC/SAS Nagar/2014/302 dated 30.01.2014, in

which it has been stated that copy of the order dated 04.10.2011 in the instant case was

dispatched through registered post to the complainants and the opposite parties vide

dispatch No. DCDRF/SAS Nagar/2011/3295-3296 dated 10.10.2011. However, the learned

counsel could not explain, whether there was proof of the said letter having been received

by the petitioners. The learned counsel also stated that the petitioner should have been

vigilant about the progress of the case and should have enquired themselves from the

District Forum about the order passed in the case on 04.10.2011.


to the arguments advanced before us.

6. The State Commission vide impugned order, dismissed the first appeal filed by the

petitioners/OPs only on the ground that there was a delay of 210 days in filing the said

appeal. On the other hand, the case of the petitioners is that they had no knowledge about

the order of the District Forum, and as soon as they came to know about the order, they

took the requisite steps and filed the appeal with a delay of 11 days only before the State

Commission. In this regard, the copies of the interim orders passed by the District Forum,

Mohali have been placed on record by the petitioners. As per these orders, the complaint in

question was admitted and a notice was ordered to be issued on 06.07.2011 for 27.07.2011

by the District Forum. On 27.07.2011, Mr. Ashish Swarup, Advocate was present before

the District Forum on behalf of the OPs. The said counsel was present on the next dates of

hearing, i.e., 16.08.2011, 25.08.2011, 28.09.2011 as well. On 28.09.2011, the District

Forum have recorded the following order:-“Present :- Sh. Surinder Singh, Proxy Counsel for the

complainant Sh. Ashish Swarup, C1 for the OPs No evidence of the complainant is present, Proxy counsel seeks adjournment on the ground that counsel for the complainant is away to Delhi to attend some case in the Hon’ble Supreme Court. The adjournment is allowed on costs of Rs.500/- which should be deposited in the Legal Aid Account of this Forum. For evidence of the parties and arguments to come up on 04.10.2011. Written arguments be placed on the file two days earlier.”

7. It is evident from above that on 28.09.2011, no evidence was produced on behalf of

the complainants and they sought adjournment. The case was adjourned to 04.10.2011 for

evidence of the parties and arguments. On 4.10.2011, the statement of Shri Balwinder

Singh, Advocate for the complainants was recorded and documents were obtained on

record. The counsel for the petitioners/OPs was not present on that date. However, the

District Forum passed their final order also on that date. It is clear, therefore, that the case

was decided without providing any chance to the petitioners to lead their arguments or to

give any evidence in rebuttal.

8. Further, the case of the petitioners is that they came to know about the said order

around 20.04.2012 when they received legal notice dated 14.04.2012. Although the letter

issued by the District Forum says that copy of the order dated 04.10.2011 was dispatched

by registered post to both the parties on 10.10.2011; however, there is nothing on record to

show whether the petitioners received that copy or not. In the absence of any evidence to

this effect, it shall be in the interest of justice that benefit of doubt is given to the petitioner

and their version believed that they were not aware of the order dated 04.10.2011 for about

six months.

9. From the situation narrated above, it is made out that the counsel for the petitioner

had been appearing before the District Forum on earlier occasions, but he absented himself

on 4.10.2011, on which date, the District Forum recorded the evidence of the

respondents/complainants, heard their arguments and also passed final order. Since there

is no conclusive proof that the petitioners received a copy of the said order of the District

Forum dispatched by post, it shall be worthwhile to provide them an opportunity to plead

their case on merits before the Consumer Fora below. The petition is, therefore, allowed

and the orders passed by the State Commission and the District Forum are set aside. The

matter is remanded to the District Forum with the direction that they should provide an

opportunity to the petitioners/OPs to plead their case before them by leading evidence and

then, the District Forum should decide the case afresh, after providing an opportunity to

both the parties of hearing again. The parties have been directed to appear before the

District Consumer Disputes Redressal Forum, SAS Nagar, Mohali on 28.05.2014 for further

proceedings. There shall be no order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/


REVISION PETITION NO. 1006 of 2013(Against the order dated 05.02.2013 in First Appeal No. 431/2012 of the Rajasthan State Consumer Disputes Redressal Commission) 1. The Union of India, Ministry of Finance Through its Secretary, North Block, New Delhi-110001 2. Reserve Bank of India, Through its Regional Director, Near Rambagh Circle, Tonk Road, Jaipur 3. Reserve Bank of India, through its Deputy General Manager, Banking Department, Near Rambagh Circle, Tonk Road, Jaipur

.....Petitioners

Versus Bakshi Ram Ahuja, Son of Shri Bhagwan Das Ahuja, Resident of 9/812, Malviya Nagar, Jaipur at present resident of Plot No.354 Sarita Vihar, New Delhi-110076 ........Respondent

BEFOREHON’BLE MRS. VINEETA RAI, PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER For the Petitioner : Mr. Baldev Malik and Mr. Arjun Malik, Advocates For the Respondent : Mr. Pawan Kumar Ray, Advocate PRONOUNCED ON: 27/3/14 ORDER


This revision petition has been filed against concurrent orders of the fora below. The

matter was heard on a few occasions and finally on 17.2.2014. Mr. Baldev Malik, Advocate

for the revision petitioners and Mr. Pawan Kumar Ray, Advocate for the respondent have

been heard. We have also considered the record carefully.

2. The matter arises from investment of Rs.3 Lacs by the respondent/complainant on

18.5.2002 in 8% RELIEF BONDS, 2002 issued by the petitioners. The investment was

made in bonds of Rs.1000/- each, having maturity value of Rs.1,480.25ps. But, on

completion of the period of investment, the complainant was paid in May 2007 only the

invested amount of Rs.3 Lacs. Interest on the amount deposited was denied on the ground

of the investment having been made in violation of the Ministry of

Finance Notification No.F.4(5) W & M/2008 dated 22nd April 2002.

3. Per contra, the case of the revision petitioners/OPs was that the investment of

Rs.3 Lacs was in utilization of the enhanced limit of investment from Rs. 2 Lacs to

Rs.3 Lacs, under the Notification of 22.04.2002. It is contended that this Notification also

carried a condition that in a case of investment retirement benefits, as in the present case,

the investment had to be made within three months of the date of receipt of retirement

benefits. These benefits were received by the complainant on 07.02.2002. Hence, the

permissible time limit for making the investment, utilising the enhanced limit, had ended on

06.05.2002. Consequently, the investment being made in violation of the Notification of

22.04.2002 was not entitled to the benefit of interest.

4. The District Forum held that the Notification of 22.04.2002, which governed this entire

transaction, did not carry any clause permitting the OPs to deny interest on the

investment. It also held that having utilised the money of the complainant for a period of

five years, it was not open to the OPs to deny the interest thereon to the complainant. Such

denial would amount to unfair tradepractice. Therefore, the District Forum awarded the full

interest on the bond as assured together with 6% interest from 1.12.2007.

5. While confirming the order of the District Forum, the State Commission has also

observed that there is nothing on the record to show that at the time of making the

investment, the contents of the Notification of 22.04.2002 had been informed to him.

6. During the course of arguments before us, Mr. Baldev Malik, learned counsel for the

revision petitioners strongly argued that if the respondents/complainant was aware of

the enhancementof limit of investment from Rs.2 Lacs to Rs.3 Lacs, he cannot be permitted

to claim that he was unaware of another stipulation in the same Notification. Therefore, he

cannot be permitted to claim that his investment was made within the permissible time limit.

7. We have carefully perused the Ministry of Finance Notification 22.04.2002. It does

not carry, as very rightly observed by the District Forum, any clause which could empower

the petitioners to deny interest on the investment in its entirety, merely on the ground that

the investment had been made beyond the permissible time limit of three months. Learned

counsel for the revision petitioners confined his attempt at explanation to a claim that the

petitioners cannot be compelled to pay any interest on the investment made in violation of

the terms of the Notification. We do not consider this to be an acceptable explanation.

8. Further, neither the revision petitioner nor the arguments of the learned counsel have

attempted to offer any explanation as to why the investment could not be refused in the first

instance at the point of offer itself in May 2002. Even if the complainant was not aware of

all stipulations of the Notification, the department cannot be permitted to have acted in

ignorance thereof. Interestingly, the records as produced on behalf of the petitioners

themselves show that the fact of investment being in contravention of Notification of

22.04.2002 was brought to their notice during the course of departmental audit in July

2006. There is absolutely no explanation why the offer of refund of the principal amount

could not be made immediately thereafter. There is again, no explanation why the revision

petitioners had to wait right till the completion of the entire period of investment of the

bonds, to enforce the condition of the Notification.

9. It has also been contended on behalf of the petitioners that there was no relationship

of consumer and service provider between them and the complainant. In our view, having

invited subscription to the bonds and having received subscription from the complainant, the

petitioners cannot be permitted to seek refuge behind this argument.

10. In the background of the details discussed above, we find no grounds in this revision

petition to justify our intervention in exercise of powers under Section 21 (b) of

the Consumer ProtectionAct, 1986. The revision petition is held to be devoid of any merit

and is dismissed as such.…..…………….…….……(VINEETA RAI)PRESIDING MEMBER



REVISION PETITION NO. 685 OF 2012WITH (I.A. NO.2 OF 2012, FOR C/DELAY)

(Against the order dated 09.08.2011 in Appeal No.193/2010 of the State Commission, Rajasthan, Circuit Bench at Jodhpur)

1. ICICI Lombard General Insurance Co. Ltd. Regional Office Plot No.947, Ground Floor, Pram Tower, 10th D Road, Sardarpura, Jodhpur (Rajasthan)

2. ICICI Lombard General Insurance Co. Ltd. Bhagwati Bhawan, IInd floor Above P.L. Motors Government Hostel Crossing MI Road, Jaipur (Rajasthan)

3. ICICI Lombard General Insurance Co. Ltd. Registered Office ICICI Bank Tower Bandra Kurla Complex Mumbai – 400051 Through its Manager (Legal) ICICI Lombard General Insurance Co. Ltd. 315 – Third Floor, Aggarwal City Mall, Pitampura New Delhi - 110034

....... Petitioners

VersusJitendra S/o Shri Bhanwar Lal Kalia By Caste – Maheshwari R/o 7, Hariom Niwas Behind Akashwani Pawta C. Road Jodhpur (Rajasthan)

…... Respondent

BEFORE:

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


For the Petitioner : Mr. Amit Tyagi, Advocate

For the Respondent : Ms. Madhurima Tatia, Advocate

Pronounced on : 19th March, 2014 ORDER

REKHA GUPTA

Revision Petition No. 685 of 2012 has been filed under section 21 (b) of the

Consumer Protection Act, 1986 for setting aside the order dated 9.8.2011, passed by

Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench at Jodhpur

(short, “State Commission”) in First Appeal No.193 of 2010.

2. The brief facts of the case as per respondent/complainant is that he filed a consumer

complaint against petitioners/opposite parties that he got comprehensive policy

no.3003/52630179/00/000 for this LP truck no.RJ-19-GA-7037. In the said insurance

policy, for damages against respondent himself, responsibility equivalent to the cost of truck

was also accepted and the respondent had paid the premium to the petitioners. During the

period of insurance on 24.11.2007, when respondent’s driver was going from Sayla to

Merta, in midnight at about 1.30 a.m., having loaded sacks filled with cotton, which he had

taken from agricultural farm of one Narayan Ram Gurjar, of Village Sayla, Tehsil –

Bhopalgarh. When the said truck reached Gotan, at about 4.00 a.m., as soon entered in

Gotan town, due to unknown reasons the sacks filled with cotton caught fire all of sudden,

then the driver immediately took the truck, out of the town and tried to get it overturned but

as the vehicle came off the road, it got stuck in sand and did not overturn. To extinguish

fire, he informed Magarpalika Mandal, Merta, who sent fire brigades, who could not control

fire despite best efforts and cotton sacks loaded in the truck got burnt. Report to the said

incident was lodged by driver in Police Station Gotan. Respondent filed his claim before

the petitioner – insurance company but they repudiated the said claim on 27.5.2008, saying

that the said incident of fire outburst occurred due to grave negligence on the part of

respondent and thus, claim is not payable. Hence, respondent has prayed a sum of

Rs.7,45,180/- for damages to sacks along with interest @ 18% per annum and Rs.20,000/-

for damages.

3. Petitioner – insurance company has replied that fire broke out due to gross

negligence of respondent. They have submitted that cotton sacks were exceeding 2½ feet

from the height ascertained thus, the said sacks caught fire from the electricity wires and

were burnt. It was due to gross negligence on the part of the respondent and as such, the

claim has been correctly repudiated. They have not committed any deficiency in

service. Hence, it was prayed that complaint should be dismissed.

4. District Consumer Disputes Redressal Forum, Jodhpur, Rajasthan, vide their order

dated 25.6.2010, accepted the complaint with the following directions ;

“Thus, complaint filed by complainant is accepted against the respondents and it is ordered that the respondents, jointly and severally, within a period of one month from the date of judgment, will pay a sum of Rs.2,52,200/- along with the interest @ 9% p.a. from the date of filing of complaint, i.e., 29.8.2008. In addition to this, they will also pay a sum of Rs.2,000/- against cost of complaint and if not so, complainant will be entitled to get the said payable amount of Rs.2,000/- with interest at the rate of 9% per annum from the date of decision.”

5. Dissatisfied with the order of the District Forum, the respondent/ complainant filed an

appeal for enhancement before the State Commission. State Commission, vide order dated

9.8.2011, allowing the appeal and passed the following order ;

“In this situation, we find this appeal acceptable and award challenged passed by the learned Tribunal is quashed upto the said extent and insurance company is ordered to pay the sum assured for the truck, within one month and to also pay interest @ 9% on this

amount from the date of filing of complaint and to also pay Rs.25,000/- to complainant for mental agony and Rs.5,000/- for cost of appeal.

6. Hence, the revision petition.

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

the case.

8. Along with present revision petition, an application seeking condonation of delay of 85

days has also been filed. The reasons given for the delay are as follows ;

“3. That the impugned judgment was passed by the Hon’ble State Commission, Circuit Bench, Jodhpur, Rajasthan on 9.8.2011 and the certified copy of the same was received on 29.8.2011. Thereafter, the matter was examined by the concerned Divisional Office of the insurance company at Jodhpur.

4. The matter was therefore, referred to the regional office of the insurance company at Jaipur for taking action in the matter. The regional office of the insurance company at Jaipur, after going through the merits of case, referred the matter to the Head Office at Mumbai for taking further action in the matter. Consequently, it was decided that a revision petition be filed before the Hon’ble Commission at New Delhi.

5. The records of the case along with claim file was sent to regional office at New Delhi which is the concerned office for dealing with the matters pertaining to Hon’ble National Commission.

6. It is submitted that in the meanwhile the respondent/ insured approached the petitioner – insurance company along with his relatives for settlement of his claim. It is respectfully submitted that when respondent/insured came to know that revision petition is being filed against the impugned order, he himself came forward and negotiated and finally requested the insurance company for settlement of the claim on payment of Rs.9,50,000/- (inclusive of the insured value of vehicle with interests and penal amounts as directed by the Hon’ble Fora below) and agreed to forgo the order/directions issued by the learned District Forum regarding the payment towards cotton loaded on the insured vehicle. The insured/respondent had also promised to provide the discharge voucher/ settlement letter towards full and final settlement for the said amount of Rs.9,50,000/-. Relying upon the assurances of the insured, the petitioner insurance company did not proceed with the filing of the revision petition this Hon’ble Commission and the cheque of Rs.9,50,000/- was prepared in favour of the insured to settle the claim on full and final settlement basis. However, the respondent/insured intentionally and willfully delayed the settlement process on one

pretext or the other and did not provide the final settlement letter and finally declined to enter into any sort of settlement with the petitioner – insurance company, thus, deliberately the respondent caused inordinate delay to the insurance company in preferring the instant revision petition before this Hon’ble Commission.

7. That after the failure of the settlement proposed by the respondent/insured himself, the regional office at New Delhi, thereafter, marked the case to a counsel for preparation of the revision petition and, accordingly, the records of the case were handed over to the counsel.

8. After perusal of the documents and while in the process of drafting the revision petition, it transpired that a number of important documents such as copy of the consumer complaint, Investigator Report etc. did not form part of the records of the case that was handed over to the counsel.

9. Consequently, the counsel informed the insurance company about the non-availability of the said documents without which it was not possible to draft a revision petition.

10. In furtherance to the request of the counsel for the insurance company, the relevant documents were subsequently made available in the office of the counsel for the insurance company at Delhi.

11. That most of the vital documents, almost the entire records of the case were in Hindi language and the same required English translation for the purpose of drafting and preferring the revision petition before this Hon’ble Commission.

12. That the said documents were immediately sent for translation. The translation process took some time.

13. That thereafter looking at the enormous delay that was taking place, the revision petition was drafted by the counsel on instructions from the insurance company.

14. After drafting of the revision petition, on 13.2.2012 the same was sent over to the insurance company for approval and the insurance company suggested certain changes in the draft and sent the draft revision petition back to the office of the counsel for the insurance company for necessary modifications.

15.The necessary modifications/incorporations after having been effected in the office of the counsel for the insurance company, the same was returned to the insurance company for signatures. The final draft was perused, approved by the insurance company and the same was returned to the office of the counsel for filing of the same before this Hon’ble Commission. Thereafter, the revision petition was filed before this Commission.”

9. In the entire application, no specific dates or reasons have been given to explain the

day to day delay of 85 days. It has been mentioned, however, that respondent/complainant

had approached the petitioner/insurance company along with his relatives for settlement of

his claim. No evidence has been given to support this statement. Further, counsel for

petitioners has stated that a cheque for Rs.9.50,000/- had been forwarded to Shri P.Singhvi,

counsel for respondent on 31.1.2012. Counsel for respondent has categorically stated that

the said cheque has never been received by the respondent.

10. It is well settled that “Sufficient Cause” for condoning the delay in each case is a

question of fact.

11. We are of the view that the petitioners have failed to give any proper justification for

the delay of 85 days. The petitioners have failed to give day to day justification with dates

as also “Sufficient Cause” for condoning the delay of 85 days.

12. Apex Court in case Anshul Aggarwal Vs. New Okhla Industrial Development

Authority, IV(2011) CPJ 63(SC) has observed ;“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras”.

13. 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;“24. 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;

“29. 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.

30. 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 landlosers 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 landlosers. 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 landlosers 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 ;

“27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

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

14. Under these circumstances, no sufficient cause is made out for condoning the delay of

85 days in filing the present petition. Accordingly, application for condonation of delay is

not maintainable. Consequently, the present revision petition being hopelessly barred by

limitation is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand Only).

15. Cost of Rs.5,000/- to be paid by way of demand draft in the name of the respondent and remaining amount of Rs.5,000/- to be deposited in the ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case, petitioners fail to deposit the said cost within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization.


(V.B. GUPTA) (PRESIDING MEMBER)

(REKHA GUPTA) (MEMBER)

Sonia/

NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION NEW DELHI

ORIGINAL PETITION NO. 93 OF 2004

Ambience Island Apartment Owners : 1. Mr. Gopal Agarwal S/o Sh. D.P.Agarwal R/o H 902, Ambience Island

Lagoon Apartments NH-8, Gurgaon, Haryana 2. Mrs. Uma Agarwal W/o Sh. Ram Chandra Agarwal R/o F 904 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 3. Mr. Sanjay Badshah S/o Sh. B.N. Badshah R/o E 902 Ambience Island NH-8, Gurgaon, Haryana 4. Mrs. Anuradha Balaram W/o Sh. Ajit Balaram R/o C 704 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 5. Capt. Sandipan Banerjee S/o Lte Sh. Rash Mohan Banerjee R/o C 902 Ambience Island Lagoon Apartments, NH-8, Gurgaon, Haryana

6. Mr. J.S. Bhasin S/o Sh. Gurcharan Singh R/o E 801 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 7. Mrs. Meena Bhogal W/o Late Wg. Cd. B.S. Bohtal R/o E 401 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 8. Mr. Jayant Budhiraja S/o Sh. Ram Prakash R/o E 301 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana

9. Capt. J.S. Chaudhary S/o Sh. Harnam Singh R/o C 402 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 10. Mr. Pawan Chaudhary S/o Sh. K.G.K. Chaudhary R/o F 401 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 11. Mr. Pradeep Chowdhary S/o Sh. B.D. Chowdhary R/o F 801 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 12. Mr. Ankan Dabral S/o Sh. Prateek Dabral R/o C 601 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 13. Capt. Sanjay Dey S/o Brig. S.K. Dey R/o C 003 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana14. Lt. Gen. G.K. Duggal S/o Late Sh. C.L. Duggal R/o C 201 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 15. Col. D.S. Goel (Retd.) S/o Sh. Shyam Lal R/o F 304 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 16. Mr. Dipak Goyal S/o Sh. J.M. Goyal R/o H 602 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 17. Capt. G.P.S. Grewal S/o Late Sh. K.S. Grewal R/o H 604 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 18. Mr. A.C. Gupta S/o Late Sh. H.C. Gupta R/o H 601 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 19. Mrs. Sushma Gupta W/o Sh. R.K. Gupta R/o H 503 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 20. Mrs. Indira Haran W/o Dr. E.G.P. Haran R/o H 201 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana

21. Air Marshal S.G. Inamdar (Retd.) S/o Sh. G.R. Inamdar R/o E 002 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 22. Mrs. Anchal Jain W/o Sh. A.K. Jain R/o H 803 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 23. Mrs-. Anil K. Jain S/o Sh. R.S. Jain R/o C 501 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 24. Mr. Hitesh Jain S/o Sh. M.K. Jain R/o H 102 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 25. Mr. Saket Kanoi S/o Sh. N.P. Kanoi R/o F 504 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 26. Mr. A.K. Khanna S/o Late Sh. K.D. Khanna R/o H 101 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 27. Mrs. Meera Khanna W/o Lt. Gen. A.S. Khanna R/o C 502 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana28. Mr. Jatin Khetarpal S/o Sh. Raj Kumar Khetarpal R/o E 804 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 29. Major Gen. G.S. Kohli S/o Sh. S.G. Kohli R/o H 404 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 30. Mr. Anurag Kumar S/o Sh. A.P. Singh R/o F 704 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 31. Mr. Yogesh Kumar S/o Late Sh. B.M. Sharma R/o H 703 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 32. Mr. A.K. Madhur S/o Late Sh. B.M. Madhur R/o F 601 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 33. Mr. Kamlendra Maliah S/o Sh. Pushpendra Maliah R/o E 903 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 34. Mr. Pushpinder Malik S/o Sh. M.S. Malik R/o C 604 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 35. Mrs. Hemali Nangia w/o Sh. Rajesh Nangia R/o F 103 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 36. Mr. Manoj Pahwa S/o Sh. C.D.Pahwa R/o E 403 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 37. Mr. R.K. Parimoo S/o Sh. B.M. Parimoo R/o E 302 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 38. Mr. Ashwani Prabhakar S/o Late Sh. Om Prakash Prabhakar R/o H 901 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 39. Mr. Shiney Prasad S/o Sh. Hemand Prasad R/o F 701 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 40. Lt. Gen. A.K. Puri S/o Late Sh. D.R. Puri R/o F 903 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 41. Dr. Ashok Rattan S/o Sh. H.R. Rattan R/o C 901 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 42. Mrs. Anita Rawal W/o Sh. Samvit Rawal R/o C 403 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana

43. Mr. Jasdeep Singh Sahota S/o Sh. Kuldeep Singh Sahota R/o F 804 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 44. Mr. Ishan Mohan Sandhu S/o Shri Pankaj Mohan R/p E 901 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 45. Mr. A.K. Saxena S/o Late Sh. H.K. Saxena R/o F 301 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 46. Mr. S.R. Sehgal S/o Late Sh. Sita Ram R/o H 403 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 47. Mr. Sumit Sehgal S/o Sh. S.N. Sehgal R/o F 901 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 48. Dr. Amitabha Sen S/o Late Sh. Ashataru Sen R/o E 103 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 49. Mr. Bharat B. Sharma S/o Sh. Raj Kumar Sharma R/o E 802 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 50. Mrs. Priya Sharma W/o Wg. Cdr. Neeraj Sharma (Retd.) R/o C 503 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 51. Mr. Jasbir Singh Sidhu S/o Sh. G.S. Sidhu R/o F 203 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 52. Dr. H. Singh S/o Capt. Ranjit Singh R/o F 602 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 53. Mrs. Jasmine Singh W/o Sh.Joginder Singh R/o E 101 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 54. Mr. Abhishek Singhania S/o Sh. K.N. Agarwal R/o C 703 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 55. Mr. Shailendra K. Singh S/o Sh. K.N. Singh R/o F 404 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 56. Mr. Vijay Sirse S/o Sh. Murgeppa Sirse R/o E 703 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 57. Mr. B.S. Soin S/o Sh. O.P. Single R/o C 503 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 58. Mr. O.P. Sud S/o Late Sh. N.R. Sud R/o E 502 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 59. Cl. R.P. Suhag S/o Col. KS. Suhag R/o H 401 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 60. Mr. R. Suryanarayan S/o Sh. V. Rajagopal R/o F 603 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 61. Mr. Pawan Swarup S/o Sh. R. Swarup R/o F 204 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 62. Dr. (Col.) Subhash Chandra Talwar S/o Late Sh. R.P. Talwar R/o F 803 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 63. Mr. Anil Uppal S/o Sh. S.K. Uppal R/o E 204 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 64. Mr. Suresh Varma S/o Sh. P.M. Ramesan R/o C 803 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana

65. Capt. Vipen Vig S/o Late Brig. O.P. Vig R/o E 203 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 66. Mrs. K. Yadav W/o Capt. D. Yadav R/o H 702 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana

…Complainants Versus1. Mr. Raj Singh Gehlot L-4 Green Park Extension New Delhi- 110016 2. M/s HLF Enterprises Private Limited L-4, Green Park Extension New Delhi- 110016 3. M/s Ambience Infrastructure Private Limited L-4, Green Park Extension New Delhi- 110016

3. M/s Scan Elevators K-127, Krishna Park Extension New Delhi -1100181. ... Opposite Parties

BEFORE:

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

For all the 66 Complainants : Dr. Amitaba Sen, Advocate With Ms. Aditi Pandey, Ms. Geetanjali Sethi, Mr.Nihit Nagpal, Mr. Puneet Dhawan, Ms. Malyashree Sridharan & Ms. Pragati Aneja, Advocates

For OPs 1 to 3:: Mr.Sumit Gehlawat, Advocate With Mr. T.S. Thakraon, Advocate. For OP No.4:: Mr. Ajay Sharma, Advocate With Ms. Poonam Lau, Advocate

PRONOUNCED ON _19TH MARCH, 2014 ORDER PER JUSTICE J.M. MALIK

1. The grievance of 66 Flat Owners of Ambience Island Apartment, the complainants,

has two prongs against its Builder, Promoter, Mr.Raj Singh Gehlot, who represents

Opposite Party Nos. 1, 2 & 3. Firstly, the OPs 1, 2 & 3 did not install the full numbers

of Elevators, as promised and piled on the agony of the Flat Owners, by not maintaining

the already installed lifts throughout the Apartment Complex and more particularly, in Block

Nos. C, E, F and H, by M/s. Scan Elevators, OP4.

2. The OPs 1, 2 & 3 advertised through Newspapers regarding the above said

Apartment Complex. The advertisement had captivating features, one of them being,

“high-speed Elevators”, with one lift for every ten Apartments, thereby implying that four

Elevators would be provided for each of the four Blocks, i.e., C, E, F & H, housing 40

Apartments each, i.e. total 16 Elevators for four Blocks. Further the OPs despite

having chutes for four Lifts, provided two Elevators in each of the above said four

Blocks. Copy of theadvertisement and other promotional media affirming the same have

been placed on record as Annexure 1, thru 3.

3. The crux of the whole problem is that, from day one, the lifts were very slow and

prone to frequent breakdowns. Due to lack of any maintenance at all, most of the

features of the lifts, including, but not limited to the alternate power source have

become totally dysfunctional. In the event of power failure, the lifts are therefore plunged

into darkness till the back-up of power source takes over, thus

making it a harrowing experience for the people stuck in the lifts

during power cuts. The whole problem relating to the lifts is compounded because

of the intentional neglect on the part of the OPs to maintain the safety and

operation of the lifts.

4. The lifts in the Blocks C, E, F & H lack the automatic rescue device,

the mechanism which takes the Elevators to the nearest floor enabling the occupants

thereof to alight safely in the event of a power failure. The absence

of this automatic rescue device in the Elevators in the said Blocks means that the

occupants of a lift are frequently stuck between floors in the event of a

power failure. OP4 has throughout failed miserably to perform its duties during one

year warranty period or subsequent maintenance of the lifts. The lifts were not

maintained properly. In absence of proper maintenance there have been instances where

the Elevators have come to stop after failing freely for several floors. There have been

occasions when the lifts have, instead of stopping at the proper landing, came to a stop,

couple of feet above the landing, thereby leaving the occupants therein with no option but

to jump out of the lift to alight and in the process hurting themselves.

5. The complainants have lodged various complaints and correspondence and

representations were exchanged between the parties, but these did not ring the bell. The

correspondence has been appended on record as Annexure 5. M/s. Scan Elevators Ltd.,

OP4 was to provide 16 lifts, however, Eight lifts were not installed. The OPs, by

not installing the eight lifts, enriched themselves to the tune of Rs.1,28,00,000/- , the

same being determined from the Quotation received from OTIS, which has been placed on

record as Annexure No.6. The OPs are liable to pay interest @ 21% p.a. from April,

2001, to the date of filing of the complaint. Consequently, this complaint was filed before

thisCommission, on 08.11.2004, with the following prayers:-“a. Direct the Respondents to install two additional express elevators with recognized and reputable brand, each in the blocks of C, E, F & H.

b. Direct the Respondents to replace the existing elevators with recognized and reputable brands in the Apartment Blocks, C, E, F & H and ensure that they work efficiently.c. Direct the Respondents to pay interest @ 12% on Rs.88,00,000/- from April, 2001 to the date of filing of this complaint.d. Direct the Respondents to pay cost of the present complaint.e. Direct the Respondents to pay appropriate compensation to each Complainant towards the mental agony, suffering, torture and damages that each of the complainants have had to undergo because of the deficient lifts provided by the Respondents.f. Any other and/or further relief which this Hon’ble Commission may be pleased to grant in the light of the facts of the present complaint”.

6. OPs 1 to 3 have enumerated the following defences in their support. There is no

deficiency on the part of the OPs. All the

lifts installed therein are of good quality. The lifts were installed before the

possession and the occupation certificate which was received on 31.12.2001 from Town

& Country Planning, Haryana, Chandigarh. The Complainants were fully aware on and

before the booking of the flats regarding the quality of the lifts in question and the same

were installed and maintained by OP4. No complaint or representation

regarding the above said defects were made to the OPs. The counsel for the

complainant, Dr. Amitabha Sen, is one of the residents of the said Apartments Complex

residing at No.E-303. He has filed several false and frivolous cases against the

OPs. Again, Complainant Nos. 3, 12, 13, 14, 21, 22, 23, 29, 30, 34, 38, 41, 42 and

54 have given statements and affidavits that they have carried out unauthorized

construction in their Apartments. They have violated building bye-laws and other

norms of parking and representative blocks of the residents. The OP2 received a

notice from the Director, Town & Country Planning, Haryana, Chandigarh against the

complainants who have violated the building bye-laws. Those

documents have been annexed as Annexure–D. Complainant Nos. 9, 12, 22, 23, 24 &

52 did not purchase the flat from OPs. Like-wise, complainant Nos. 2 & 6, did not have

any right, title or interest in the subject matter of the complaint. Again, this case is barred

by limitation. Most of the complainants applied and were allotted the apartments

in question prior to November,2002. The present complaint was filed in this Commission,

on 08.11.2004.

7. The allottees were informed at the time of booking that there was provision for

four lifts, in each Block, i.e. C, E, F & H and two lifts have been provided in each Block

and it was agreed that Allottees can get the additional lift(s) installed at their own

cost. The agreement of sale is clear in this respect.

8. OP4 listed the following defences. It has got no privity of contract with the

complainants. It is neither an agent nor in any way connected with the management of

OPs 1 to 3. Dealings, transactions between OP4 and OPs 1 to 3 on the other hand,

were on ‘principal- to- principal’ basis, wherein, the

former had complied with/honoured the contract given by OPs 1 to 3, strictly in

accordance with the requirements and specification stipulated in the letter dated

18.12.2000 and the offer letter dated 21.11.2000, during the warranty period only. It

is explained that there was no condition for installing the lifts with the promise or any

condition stipulated in the Agreement for ‘high-speed’ Elevators. The OP 4 has even

stationed its Engineers and team of Technicians permanently in the building and were

providing 24 hours ‘call-back’ service, though, the same was never stipulated in the terms

and conditions of the contract.

9. After having subjected the evidence and written synopses to a

closet scrutiny and having heard the counsel at length, we have come to the following

conclusions.

A. Number of Lifts :

The main question revolves round the total number of lifts. According to the

counsel for the complainants, they were taken for a ride. The attention of this

Commission was invited towards the Advertisement, at C1, C2 & C3, marked as

Annexure-2, reads :- “3. Amenities & Facilities :

i) Ratio of one lift to no. of ]apartments in the block ] 1: 10 1:24 to 57”.

[Emphasis supplied].

10. The brochure at Ex.C-4, shows that there would be four lifts, one

each, for ten Flats.

11. We clap no value to these namby pamby pleas. The evidence has to

be viewed holistically. It has not to be read in vacua to the detriment of one and to the

benefit of other. This has to be read as a whole as composite

document. On the other hand, there is final agreement entered into between the

parties. The other promises, advertisements, assurances given to the Buyers, pale into

insignificance, when the matter is settled between the parties, through the

Agreement. Para H of the Agreement, dated 01.11.2001, clearly, specifically and

unequivocally mentions :-“H. AND WHEREAS, the Apartment Allottee acknowledges that the Company has readily provided all information, clarifications as required by him/her but that he/she has not relied upon and is not influenced by any architect’s plans, sales plans, sale brochures, advertisements, representations, warranties, statements or estimates of any nature, whatsoever, whether, written or oral, made by the company, its selling agents/brokers or otherwise, including, but not limited to any representations relating to description or physical condition of the property, the Building or the Apartment or the size or dimensions of the Apartment or the rooms therein or any other physical characteristics thereof, the services to be provided to the Apartment Allottees, the estimated facilities available to the Apartment Alolottees or any other data except as specifically represented in this Agreement and that the Apartment Allottees has relied solely on his/her own judgment and investigation in deciding to enter into this Agreement and to purchase the said Apartment. No oral or writtenrepresentations or statements shall be considered to be part of this Agreement and that this Agreement is self-contained and complete in itself in all respects”.

12. This clearly goes to show that the ‘Agreemen supercedes the Brochures,

Advertisements, Representations, Sale Plans, etc. It was the duty of the complainants

to go through the Agreement, thoroughly, ‘line by line’ and ‘word by word’. They signed the

papers with ‘open’ eyes. They are educated people. They are represented by an

Advocate, who, also resides there. Consequently, the Brochure and Sale Plans pale into

insignificance. No compensation in respect of two lifts in the premises can be granted.

13. Moreover, the case of OPs 1 to 3 is that they have started selling Apartments in

March, 2001. At the time of booking the Apartments, they were required to move into the

flats and the lifts were installed and operational. The flats were inspected by

the allottees. They were informed about the details of the lifts. They were informed of the

number and quality of the lifts in question and the same were installed and maintained by

Scan Elevators Ltd., OP4. It is also pointed out that the complainants have failed

to provide any correspondences exchanged between the complainants and the OPs

regarding installation of additional lifts made before filing the present complaint. The OPs

have referred to the letters dated 19.04.2001, 26.01.2004 and 01.11.2006. Thus, the

complainants were aware regarding the two lifts and not four lifts. On the

contrary, if the complainants bought a pig in a poke, who can come to

their rescue?. Their silence, for a long time, is pernicious.

14. Last, but not the least, the case of the complainants is barred by time, on this

particular count. No date of cause of action was specified, when the lifts were not

installed, at the very inception, in the year 2001, the complaint should have been filed

somewhere, in the year 2003, itself.

B. The entire case is not barred by time :

15. The next submission made by the counsel for OPs 1 to 3 was that the case is

barred by time. No date of cause of action was specified. The occupation certificate of the

complainant was received on 21.12.2001 and the possession was handed over to the

owners of the apartments. Most of the complainants applied and were allotted apartments,

prior to November, 2002, i.e., two years’ prior to the

filing of the complaint. The present complaint was filed on 08.11.2004 and it

is barred by time. The alleged figure disclosed by the complainants in the sum of Rs.3,

20,68,000/- is false and highly inflated.

16. His argument has force in a measure. By no stretch of imagination, it can be held

that the case is entirely barred by time. The year of maintenance, changes

with every year. Fresh cause of action arises with every year. The case may be barred

for claiming the amount of lifts because it was filed two years’ after the

lifts, were installed, but, rest of the case is, within the period of limitation.

C. Whether, all the complainants are interested in pursuing this case:-

17. The case of OPs 1, 2 and 3 is that the complainant Nos. 12, 13, 14, 21, 22, 23, 30,

34, 38, 41, 42 & 54 have given statements that they have got no concern with the present

complaint and their signatures have been obtained by fraud and misrepresentation. It is

prayed that this Commission should file contempt poceedings for filing the present

complaint. Moreover, complainant Nos. 9, 24 & 52 have

neither booked any flat nor purchased the flats. The complainant Nos. 2 &

6 have already sold their flats. There is no privity of contract between complainant N

os. 8, 28, 46, 47 & 59.

18. All these arguments are bereft of merit. The complainants have filed a paper,

signed by the above said flat owners, viz, 12, 13, 14, etc. If they are not interested in filing

the complaint, they should come to the Commission or they should come through the

Advocate. On 07.03.2014, we passed the following orders :-“Counsel for the parties are present.Arguments heard.

It is made clear that those who do not want to continue with the

case, may file a separate

application, either in person or through their Advocate, withVakalatnama.

Affidavit may be filed within 3 days, i.e., till 4.00PM, on Monday, 10.03.2014.Arguments are closed, Advocates need not come for the Arguments.Reserved for orders”.

19. None of the litigants have filed application for withdrawal of the

case. However, the complainants have filed a Joint Statement, on behalf of, as many as

193 residents. The arguments advanced on behalf of OPs is that there is no privity of

contract between those who have sold the premises or where the tenants are

residing. This argument is not a coherent argument. Are they not getting the

maintenance allowance from

them. Consequently, privity of contract stands established. They want to have the

benefit of both the worlds. On the one hand, they are charging maintenance allowance

and on the other hand, they contend that they have got no connection with them.

D. Violation of Byelaws :

20. The next submission made by the counsel for the OPs 1 to

3 was that the complainants have violated the bye-laws by way of carrying out illegal

construction in their respective Apartments and even the defacement of the exterior of the

building blocks in the complex. OP2 received a notice from the Director, Town & Country

Planning, Haryana, Chandigarh, as detailed above. It is also submitted that the

maintenance due up to November, 2012, towards complainant, Dr.Amitabha Sen,

Complainant No.48, in the sum of Rs.55,598/-, towards complainant

No.62, Mr.Subhash Chandra Talwar, in the sum of Rs.1,12,580/-, towards complainant

No.44, Mr.Ishan Mohan Sandhu, in the sum of Rs.32,894/- and towards complainant

No.65, Mr.Vipen Vig, in the sum of Rs.4,355/-.

21. Do all these questions germane to the present controversy? In case

the complainants have violated the law and rules, the law will take its own course. The

Director, Town & Country Planning, Haryana, Chandigarh, is already seized of the matter.

E. Maintenance of Lifts :

22. Now we turn to the question of maintenance of the lifts/

Elevators. The counsel for the complainants has placed reliance on the following

authorities. (1) Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC

3105 (2)Manroland Druckimachinen Vs. Multicolour Offset Ltd. & Anr., (2004) 7 SCC

447, (3) Optonica Kalyani Sharp India Ltd. Vs. Gopal Lakhotia, II (2003) CPJ 435, (4)

Mrs. MeenaBalan & Anr. Vs. Maxworth Homes Ltd. & Anr., II (2002) CPJ 52 (MRTP),

(5) Dr.Mohanarao Maruthirao Charge Vs. M/s. Sipani Automobiles Ltd., II (1992) CPJ

613 and (6) Original Petition No. 25 OF 2005, titled Mrs. Rashmi Handa & Ors. Vs.

M/s. OTIS Elevator Company (India) Ltd., decided by this Bench, on 21.01.2014.

23. On the contrary, the counsel for the Opposite Parties 1, 2 and 3, has cited the

following authorities, in support of his case. (1) Ravneet Singh bagga Vs. M/s. KLM Royal

Dutch Airlines & Anr., (2000) 1 SCC 66 (2) Satish Garg & Anr. Vs. Netafim Irrigation

India Pvt. Ltd. & Anr. (RP No. 2086 of 2012) decided by this Commission on

03.10.2012(3) Usha (India) Ltd., Vs. State Estate Management Pvt. Ltd., I (2005) CPJ 43

(NC), (4) Shri Maqbool Alam Ansari Vs. Mr.M.S.K. Mapara (RP No.2179 of 2009)

decided by this Commission on 09.02.2012 (5) Sahil Garden Co-op. Housing Society

Ltd., Vs. Paranjpe Estates & Development Co. (P) Ltd., (FA No. 346 of 2010) decided

by this Commission on 04.07.2012, (6) Kishori Lal Bablani Vs. Aditya Enterprises &

ORs., II (2012) CPJ 682 (NC), (7) Sujata Nath Vs. Popular Nursing Home & Ors., III

(2011) CPJ 239 (NC), (8) Ramesh Kumar Sihan Hans VS. Goyal Eye Institute, 2 (2012)

CPJ 676 (NC), (9) Ratna Ghosh & Ors., Vs. Dr. P.K. Agarwal & Ors., (Complaint No.9 0f

2010) decided by this Commission on 29.03.2010, (10) Indian Oil Corporation Vs.

Consumer Protection Council & Anr., SLP (C ) No.9440 of 1993, decided on

07.12.1993 and (11)Topline Shoes Ltd., Vs. Corporation Bank, AIR 2002 SC 2427.

24. It is an admitted fact that the OP charges maintenances of the lift at Rs.1.50

per sq.ft. and now it has been raised to Rs.2.26/- per sq.ft. Let us take up the

case of ShriPramod Kishan, who has got 2656 sq.ft. He was present in the

Commission during the final arguments. He has to pay a sum of Rs.6,975/- approx., as

maintenance charges. The maintenance charges, also include the maintenance of the lifts,

security, etc.

25. It is noteworthy that the OPs 1 to 3 and even 4, did not utter

a word/syllable or whisper, about the maintenance of the lifts. No record was produced

before this Commission. No evidence of their regular visit saw the light of the day. No

attendance register was maintained nor it was explained as to why it was not

maintained. No Engineer ever visited or maintained the lifts. It is surprising

to note that no record is being maintained for the last about more than a decade. The

maintenance allowance is charged regularly except few exceptions.

26. The admission of this fact comes out from the horse’s mouth itself. Mr.

Raj Singh Gehlot, Opposite party No.1, in the capacity of Director, Ambience Developers &

Infrastructure Pvt. Ltd., issued letter dated 17.09.2007 to Lt.Gen.Vinay Shankar, President,

Ambience Lagoon Apartments Residents Welfare Association, the relevant para of which,

runs as follows:-“In this respect, I would like to draw your attention to the discussions and consensus arrived with you in the matter whereby it was agreed that after obtaining the requisite approval of your association, you will send us a formal requisition for obtaining of quotation for replacement of the above said lift at the costs and expenses of the residents. Please note that we were in agreement that keeping in view all the aspects and betterment of the services at Lagoon Complex, the lifts need to be replaced and the exterior paint need to be carried out for which you were supposed to send me the authorization letter. Similarly, fire-fighting equipments and services need major repair and over hauling for which your formal approval is necessary”.

27. The Minutes of Meeting held with the representatives of Resident’s Welfare

Association on 31.08.2003, mentions under the caption, “LIFTS”, as under :-“RWA is not at all happy with lifts provided by Scan Elevators, particularly with reference to Quality of Mtc. They alleged that same problems keep on appearing again and again and the mtc., works need to be toned-up to improve performance and reliability.

Besides above, following observations were made by them to improve quality of service: A. Some of the emergency ] Action to be takenlights in Lift cabins are not ] by Scan Elevators”.functional. ]

28. The lifts provided by the OPs are not in consonance with the

recently enacted Haryana Laws involving maintenance and operation of all lifts, operating

in the State of Haryana. The lifts, supplied by the OPs, are so bad that the OPs have

failed to renew the licence for the lifts, which is another mandatory requirement for

operating lifts in the State of Haryana. The complainants have prayed that all the 22 lifts

should be replaced, which will incur a cost of Rs. 4,47,70,044/-. The complainants are also

entitled to interest @ 12% p.a. for 10 years to the tune of Rs.13,92,34,837/-.

29. Let us now, turn to the Expert Reports, filed by both the parties, which favours the

case of each party. Sh. A.K.Verma, Electrical Engineer, appointed as Expert on behalf of

the complainants, submitted his affidavit, the relevant portion of which, is as under :-“I have visited one or more of the lifts installed. They do not qualify as high-speed elevators as their speed is less than 1.5 mtrs. per second. They are in a very sorry state of affairs as they seem to have remained unserviced for a long time and are thus in an urgent need of an exhaustive maintenance. All elevators, therefore, should be essentially serviced by trained and experienced Technicians at an interval not exceeding 30 days and preventive maintenance/ repairs/replacement be carried out under expert supervision and guidance”.

30. On the other hand, the Certificate of Inspection submitted by the

Expert, Sh.S.S.Malani, on behalf of OPs, is as under :-“The inspection of the lifts installed in the premises of Lagoon residential complex, Gurgaon, is carried out and is found safe for operation“.

31. Dr. Amitabha Sen lodged a complaint with the District Town Planner, Enforcement,

HUDA, on 13.01.2005. Its relevant para No.10, runs as follows:-“The sub-standard Elevators provided in the Apartments Complex are a far cry from the promised hi-speed elevators and have resulted in several injuries already”.

32. The opposite parties want to make bricks, without straw. It is well settled that the

documentary evidence will always get preponderance over the oral submissions,

because, it is well known axiom of law that, ‘men may tell lies, but the documents,

cannot’. There is not even an iota of documentary evidence, which may go to reveal that

any action, any work, any payment, etc., was made to the maintainer of lifts, either by OP4

or any other maintenance company, for the last, more than a decade. Why are they

charging, such a huge amount, towards ‘maintenance’?. Is

there, any purpose to feather their ‘own’ nest? The OPs 1, 2 and 3 are liable to pay

70% of the maintenance charges from November, 2002, till date. The said amount be

returned, within 90 days, with interest at the rate of 9% p.a., from the date of receipt of this

order, else, it will carry interest at the rate of 12% p.a., till its realization.

F. Liability of OP4.

33. The learned counsel for OP4 vehemently argued that the contract for

maintenance of lifts in question, was given for one year only and that too, it was a ‘free’

maintenance. The lifts were installed on 21.11.2000. It was specifically mentioned in the

Quotation – ‘Scan Elevator Limited’, as under :“Our Quotation includes for one year (12 months) free maintenance. The period of this maintenance will be deemed to commence on the date the installation is completed and offered for inspection. The date of commencement of this service will remainunchanged irrespective of any delay in building completion, availability of permanent power supply, inspection, taking over or commencing use of the lift. Maintenance will consist of regular examination and any necessary adjustment and lubrication of equipment by competent employees under our direction and supervision. The required supplies will be furnished except such parts as may be needed because of negligence, misuse or accident not caused by us. Upon your request, special examination will be made, should trouble develop between regular examinations and you agree to notify us promptly of any such trouble. All work will be performed during our regular working hours of our regular working days, except for emergency, minor adjustment, call back service which will be provided during regular working hours and also during any overtime hours. No work or service other than the specifically mentioned is included or intended.

It is agreed that we do not assume possession or control of any part of the equipment but such remains your exclusively as the owner (or lessee) thereof. We shall not be liable for any loss, damage or delay due to cause beyond our reasonable control including but not limited to acts of government, strikes, fire explosion, theft,floods, riot, civil commotion, or malicious, mischief or act of God. Under no circumstances, shall we be liable for consequential damages”.

34. OP 4 has produced the agreement for one year only. It is an indisputable

fact that their agreement, for future, was not renewed. The deficiency on part of OPs 1, 2

and 3 is discernible as, in the future, such like agreements did not see the light of the

day. This is unfair trade practice on part of OPs 1, 2 and 3. The OP4 should have

produced the maintenance record, record showing the details about appointment of

Guards, Engineers, Experts, etc. However, OP4 is conspicuously silent about it. As its

role was limited, therefore, we impose costs on OP4, in the sum of Rs.1,32,000/- , to be

divided by the complainants, in the sum of Rs.2,000/- each. Same be paid, within 90

days of the receipt of this order, otherwise, it would carry interest at the rate of 9% p.a.

35. The OPs 1, 2 and 3 are directed to maintain the lifts every day, month and year,

within a period of 90 days, from the date of receipt of this order, otherwise, they are liable to

pay penalty of Rs.15,000/- each, for Blocks C, E, F and H, per month. They are directed to

maintain the record, in this context. Liability, if any, shall be saddled upon them if there is

any accident or mishap. We also impose costs of Rs.5,000/- each, to be paid to each

of the 66 complainants, which be paid, within 90 days, else, it will carry interest at the rate

of 9% p.a., till realization.

.…..…………………………(J. M. MALIK,J.)PRESIDING MEMBER .…..…………………………(DR.S. M. KANTIKAR)MEMBER

dd

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

REVISION PETITION NO.3833 OF 2011

(Against order dated 14.09.2011 in First Appeal No. 5199 of 2010 of Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Virupaxappa I. Yaragatti, age 51 Years Occupation private work, Residing at 348/B, Arvind Nagar, HUBLI- 580024, Kartnataka

….. Petitioner

Versus

The Senior Branch Manager, L.I.C. of India, City Branch-I, Lamington Road, HUBLI-580020

…. Respondent

BEFORE

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


For the Petitioner : NEMO

For the Respondent : Mr. Kamal Mehta, Advocate

Pronounced on 19th March, 2014

PER MR JUSTICE V.B.GUPTA, PRESIDING MEMBER

ORDER

Above petition has been received by Post in which there is a challenge to order

dated 14.09.2011,passed by the Karnataka State Consumer Disputes Redressal

Commission, Bangalore, vide which appeal filed by the Respondent/Opposite Party was

allowed.

2. Brief facts are, that Petitioner/Complainant is a holder of an Insurance Policy issued by

the respondent which was due to mature on 25.6.2009. However, he received a premium

demand notice on 24.5.2010 from the respondent which was unjust and improper. The

policy had matured on 25.6.2009 and as such the annuity payment was to start from

01.07.2010 as per the policy. Though all these facts were brought to the notice of the

respondent, but it failed to pay the annuity payment. Hence, petitioner feeling deficiency in

service filed the complaint.

3. Respondent in its written statement took the plea that the policy commenced from

25.6.1998 under T & T 96-32 scheme and the Premium is payable for 32 years, that is, till

25.6.2019 and not till 25.6.2009 as alleged by the petitioner. The date of maturity will be

25.6.2020 and not 25.6.2010.There is a typographical mistake in the policy. Petitioner

cannot take undue advantage and benefit of the mistake crept in. The approach of the

petitioner is not fair and honest. Hence, respondent has prayed for dismissal of the

complaint.

4. District Consumer Dispute Redressal Forum, Dharwad (for short, ‘District Forum’) vide

order dated 19.11.2010, allowed the complaint in part, with direction to the respondent to

pay Rs.1,000/- monthly from 1.7.2010 along with Rs.500/- as cost of the litigation.

5. Being aggrieved, respondent filed an appeal before the State Commission, which

allowed the same vide the impugned order.

6. Since, present petition was received by Post, even then various notices were sent to the

petitioner. However, petitioner did not appear but sent his written submissions.

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

well as the written submissions of the petitioner.

8. It has been contended by the learned counsel for the respondent, that though there was

a mistake in the Policy Bond, but the same was rectified when it came to its notice. As

such, petitioner cannot take advantage on the basis of such mistake. Moreover, it is

fundamental principle of insurance that utmost good faith must be observed by the

contracting parties and nobody can take advantage due to typographic mistake, which

stood rectified later on. In support, learned counsel has relied upon a decision of this

Commission reported as Life Insurance Corporation of India vs. Anil Kumar Jain

(R.P.No.2802 of 2011) decided on 11.2.2013.

9. Case of petitioner is, that as per Policy Bond issued by the respondent it was due to

mature on 25.06.2009. Hence, the premium demand notice received by him on 24.5.2010 is

unjust and improper. When Policy had matured on 25.6.2009, the annuity payment is to

start from 1.7.2010. As per Policy Bond, respondent had failed to pay the annuity payment.

So, there is deficiency in service and as such impugned order is liable to be set aside.

10. On the other hand, it has been contended by learned counsel for the respondent, that

though there was a mistake in the Policy Bond, which was rectified later on. However as per

the proposal form submitted by the petitioner, the period of annuity had been mentioned as

‘32 Years’. The period of 32 years has not yet come to an end and as such, State

Commission rightly dismissed the complaint.

11. The State Commission in the impugned order observed;

“9. As admitted, the complainant signed the form for Jeevan Dhara policy wherein it is clearly mentioned the period after which annuity starts is to vest with 32 years. When that is so, annuity last payment payable is 25.06.2019, payment of maturity starts on 25.6.2020. The admitted facts are ignored by the DF. When complainant is still liable to pay the premium up to 25.6.2019, he cannot seek the maturity by

25.6.2009 and seek for payment of annuity from 25.6.2010. There is a default on the part of the complainant. When he is the defaulter, he cannot allege the deficiency in service.

10. Complainant with all fairness, would have contacted the OP and get clarified the mistake crept in, he has not done so. He wants to take undue advantage of the mistake found in the policy. It is said he who seeks equity, must do equity, must come with clean hands, but here the approach of the complainant is otherwise. When complainant himself is liable to pay the premium up to 2019, he cannot seek for the payment of the matured annuity starting from 1.07.2010.

11. The appellant is liable to show that the impugned order is erroneous, suffers from legal infirmity, unsustainable in law. It also suffers from error apparent on the face of record requiring our inference. We find there is an illegality and irregularity committed by the DF in allowing the said complaint. The rights of the complainant are not affected, let him pay the premium upto 25.6.2019 and seek for the annuity as per the policy terms and conditions. When such an equally efficacious relief is readily available to the complainant, we don’t think that he can raise such kind of consumer dispute which is rather premature. Viewed from any angle, we find there is a merit in the appeal filed by the appellant”.

12. It is an admitted fact that there were certain typographical errors in the Policy Bond,

‘Jeevan Dhara with Deferred Participation’. As per the Policy Bond, first date of annuity

installment has been shown as 25.06.2009. At the same time, deferment period has been

shown as‘32 Years’. However, as per the basic document, that is, the Proposal Form (copy

placed at Page No.54 of the Paper-book)which was submitted by the petitioner, the period

when Annuity is to start, has been mentioned as ’32 Years’. Further, the Plan Term is ‘92-

32’, which means that the Policy was for a period of ‘32 years’. Under these circumstances,

the mere fact that there has been some typographical errors in the Policy Bond, will have no

bearing on the terms of the Policy Bond.

13. In Life Insurance Corporation of India Vs. Anil Kumar (Supra) the issue was

“whether Insurance Company can rectify typographical mistake and charge more premium,

which is payable on term table 79-30”.It relied upon a decision of Hon’ble Supreme

Court in H.P.Forest Company Ltd. Vs. M/s United India Insurance Co. Ltd., Civil

Appeal No. 6347 of 2000, where Apex Court held;

“that on the basis of typographical mistake which has been rectified in the records of the Company before the occurrence, insured cannot get benefit of typographical mistake. In that case insured took insurance cover for a period of 8 months whereas by typographical mistake, one year was mentioned in the insurance policy and insured was not held entitled for compensation on account of loss caused

after 8 months but within 12 months of insurance policy on the basis of typographical mistake in the insurance cover”.

14. In view of the above decision, it is clear that typographical mistakes can be rectified as

and when they are noticed. Thus, respondent has not committed any error in asking the

petitioner to make payment of premium to continue as per term plan. Under these

circumstances, there is no deficiency in service on the part of the respondent. Therefore,

the State Commission vide its impugned order has rightly allowed the appeal of the

respondent by dismissing the complaint of the petitioner/complainant filed before the

District Forum.

15. We do not find that there is any illegality, irregularity or infirmity in the impugned order

passed by the State Commission in dismissing the complaint of the petitioner and allowing

the appeal of the respondent. Consequently, we affirm the decision of the State

Commission. Hence, the present revision petition stand dismissed. With the result, the

complaint filed by the petitioner/complainant before the District Forum, also stand

dismissed.

15. No order as to cost.

....…………………J

(V.B.GUPTA) PRESIDING MEMBER

……………………….


SSB/


REVISION PETITION NO. 3239 OF 2013(From order dated 29.07.2013 in First Appeal No. 234 of 2010 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

Dr. Chander Mohan PCMS-I, Civil Hospital, Rambagh, Amritsar, Punjab-143001… Petitioner

Versus

1. Gurcharanjit Sharma R/o H.No. 1563, Thanewali Gali Inside Japani Mills, G.T. Road, Chhehharta, Amritsar, Punjab

2. Dr. K.K. Rattan Rattan Hospital, New Mohani Park, Opp. Khalsa College Amritsar,

Punjab (Performa Party)

3. Dr. Babu Lal PCMS-I, District Family Welfare Officer, Office of Civil Surgeon, R/o 64, Kabir Park, Opp. Guru Nanak University G.T. Road, Amritsar Punjab (Performa Party)

4. The Oriental Insurance Co. Ltd. Branch Office No. III, 26, Kennedy Avenue Court Road, Amritsar, Punjab, Through its Branch Manager

… Respondents BEFORE: HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Hari Kumar G., Advocate For the Respondent No.1 : Mr. Subhiksh Vasu Dev, Advocate Ms. Aagam Kaur, Advocate Mr. A.P. Singh, Advocate For the Respondent No.2 to 4 : Nemo PRONOUNCED ON 19th MARCH, 2014 ORDER


1. Facts in brief: The Complainant, Mr. Gurcharanjit Sharma, was examined by the

Petitioner/OP-1, Dr. Chander Mohan, at Namita Hospital, Amritsar and advised

a Cataract surgeryon right eye. Accordingly, the operation was conducted by the OP-1

at Rattan Hospital, Amritsar on 4/10/2006 at about 8.30 a.m. The complainant paid

Rs.3,000/- as a fee to Dr. Chander Mohan(OP-1). The OP-1 who was posted at Civil

Hospital, Amritsar, was also practising privately. During post-operative period OP-1 did

not attend the patient, despite several calls. OP-1 was negligent during operation,

hence, the Complainant lost eyesight and his eyes got damaged. Thereafter, the

complainant/patient was referred to Dr. Om Prakash Satyam Netralaya, on 05.10.2006,

where he was examined by the specialist of the hospital and was informed that he has

lost the eyesight permanently. Therefore, allegingnegligence on the part of OP-1, the

complainant filed a complaint before District Consumer Disputes Redressal Forum (in

short, ‘District Forum’) seeking total compensation to the tune of Rs.20 lacs.

2. The District Forum observed that the said complaint raises complicated questions of

facts which cannot be decided by summary proceedings. The District Forum dismissed

the complaint with liberty to avail remedy before the civil court of competent jurisdiction.

3. Aggrieved by the order of District Forum, the complainant filed the First Appeal

No.234/2010 before State Consumer Disputes Redressal Commission, (in short, ‘State

Commission’).

4. The State Commission after hearing the parties and on perusal of evidence on file

allowed the appeal and held OP-1 liable for negligence and directed OP-1 to pay Rs.5

lakhs aslump-sum compensation to the complainant. The State Commission dismissed

the complaint, qua, OP-2 and 3.

5. Against the impugned order of State Commission, the OP-1 filed this revision.

6. We have heard the Counsels for the both parties, perused the medical records on file

and the evidence adduced before both the fora below. The affidavit

evidence submitted by Senior Vitrio Retinal Surgeons namely, Dr. Ajay Sharma of Dr.

Om Prakash Satyam Netralaya, Amritsar and Dr. Vipin Vig of Dr. Sohan Singh Eye

Hospital, Amritsar, opined about Expulsive Haemorrhage as ;“Expulsive haemorrhage is a devastating, unfortunate but well known complication of many types of intraocular eye surgery which can happen with all precautions taken even at the best hospitals of the world. Expulsive haemorrhage can occur intra-operatively & post operatively due to sudden & spontaneous rupture of blood vessels at the back of eye (posterior segment). This unfortunate complication is more likely to occur in the patients with history of generalized arteriosclerosis, high myopia, diabetes, hypertension & glaucoma as their blood vessels are more likely to be fragile. This sudden bleeding can cause immediate damage to delicate tissues of the eye & usually causes irreparable damage to the eye”.

7. The counsel for the Petitioner/OP-1, brought to our attention a letter/certificate issued

by the SMO, Civil Hospital, Amritsar that OP-1 was on duty, in the operation theatre of

the free eye camp, organized by District Blindness Control Society, Amritsar and, from

8.00 a.m. to 2.30 p.m. The Complainant was operated upon for cataract in the eye, in

the said camp on 04.10.2006, and the complainant’s name was at serial No.

8, in the Eye Camp Register.

8. The Counsel for the Complainant vehemently argued and brought to our attention

certain documents–Annexure P-16, Rattan Hospital,

Patient’s Record, and treatment chart with columns having dates mentioned as

4/10/2006, 5/10/2006 and 6/10/2006. We are quite surprised to see it, because the

entries appear to be erroneous and incomplete. The entry in the column ‘Consultant’, it

is written as “Cataract R/E”. There is no mention of any Registration Number. Even the

treatment sheet appears to be just, a created document, with certain dates. It does not

bear any signatures of either Staff nurse or any doctor. Such like documents can be

created at any time and by any one.

9. The Counsel for OP-1 brought our attention to the cross examination of Complainant’s

son (CW-2), who admitted that “Dr. Chandra Mohan is a Govt Doctor and conducted

Surgery at Govt Hospital. The affidavit evidence of Dr. K. K. Rattan and Dr. Babu Lal,

PCMS-I, clearly establishes the malafied intention of the complainant, by creating

forged medical documents.

10. Even otherwise, the Complainant’s right eye was damaged due to Expulsive

Haemorrhages. It was a known complication which has developed neither due to

cataract surgery nor negligence committed by the eye surgeon. We are unable to rely

upon the records produced by the complainant, because the record of Rattan Hospital,

is devoid of any post-operative Expulsive Haemorrhages, but shows only a reference to

higher centre.

11. Therefore, we are of considered view that, the complainant has made a futile attempt to

create medical documents to prove his allegations against the all OPs. We are not

inclined to give any importance to those documents. The question, whether the

Cataract operation was performed in Camp or in Private hospital, is not relevant but

what is most crucial is, to decide, whether OP-1 was negligent or not? We have

referred and relied upon the medical texts in Norman Jafee’s book on Cataract

Surgery and It’s Complications, we have seen the evidence adduced by Vitrio-

Retinal Surgeons that the Expulsive Haemorrhage is one of the most frightening and

serious complications, post-operatively. Hence, due to the forgoing discussions, we do

not consider, it as ‘negligence’, on the part of OP-1, in performing cataract operation.

12. It is apparent that the complainant approached the Consumer Forum with unclean

hands, but we refrain from imposing any punitive costs upon him because our

sympathy lies with him as, he, unfortunately, had suffered Expulsive Haemorrhage and

lost his Right eye. Hence, we set aside the impugned order of State Commission and

allow this revision petition and dismiss the complaint. No order as to costs.

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

…...…………………………(S. M. KANTIKAR) MEMBERMss/9


REVISION PETITION NO. 2215 OF 2013(From order dated 22.02.2013 in First Appeal No. 36 of 2013 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Rajendra Singh R/o Chiranjeev Colony Bhiwani, Tehsil and District Bhawani Haryana… Petitioner

Versus

1. Life Insurance Corporation of India Regional Office at Jeewan Prakash 489, Model Town, Karnal (Haryana) Through Divisional Manager

2. Branch Manager Life Insurance Corporation Of India Bhiwani… Respondents

BEFORE: HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Madhurendra Kumar, Advocate For the Respondents : Mr. Anoop K. Kaushal, Advocate PRONOUNCED ON 19th MARCH, 2014ORDER


1. The present Revision Petition is directed against the Impugned Order dated

22.02.2013, whereby the Hon’ble State Consumer Disputes Redressal Commission (in

short, ‘State Commission’), Haryana at Panchkula, wherein it has

erroneously accepted the First Appeal filed by the Respondents herein and

consequently set aside the order dated 01.02.2010 passed by the District Consumer

Disputes Redressal Forum, (in short, ‘District Forum’) and dismissed the complaint filed

by the Petitioner herein.

2. The brief relevant facts herein are that, the Petitioner/Complainant, Rajendra Singh,

got insured his son, Pawan Kumar, a minor, with the Life Insurance Corporation of

India Respondents/ OPsvide Policy No. 174209252 for Rs.70,000/- commencing from

28.11.2004 to 31.03.2005. Unfortunately, Pawan Kumar, died on 15.03.2007. On

submitting the claim by the Complainant, with respect to the above said policy, the OPs

refunded an amount of Rs.8295/- only to the Complainant, because as per the terms

and conditions of the policy, only premium paid before deferreddates was refunded.

The complainant challenged the action of the OPs, by filing complaint before District

Consumer Disputes Redressal Forum (in short, ‘District Forum’), Bhiwani and prayed

for direction to the OPs to pay the insured amount of Rs.70,000/- with interest

and litigation expenses.

3. The District Forum allowed the said complaint on 01.07.2010, and directed the OPs to

pay full insured value along with other benefits and interest @ 12% per annum, from

the date of death of life assured, till its realization and also Rs.2,200/- as litigation

charges.

4. Being aggrieved with the order passed by the Ld. District Forum, OPs filed First

Appeal No. 36 of 2013 before the State Commission, Haryana.

5. The State Commission allowed the Appeal on the premise that the insurance

policy was to commence till the child attained the age of 7 years as per the policy, and

dismissed the Complaint.

6. Against the impugned order of State Commission, this revision petition filed by the

Complainant.

7. We have heard the Counsel for the both parties and perused the Terms and

Condition of the insurance policy.

8. The Counsel for the Complainant vehemently argued that the District Forum had

wrongly observed that the claim of the Petitioner in Special Provisions-B, Clause-2, is

not applicable in the instant case, as the said terms have neither been read over to the

Petitioner nor there is any evidence that these terms have been brought to the notice of

the Petitioner. Mere mentioning such terms in the policy is not sufficient to decline the

claim of the Petitioner. Therefore, it is a proved case of deficiency in service, committed

by the Respondents. The Petitioner had been paying the premium, regularly, with

effect from 18.11.2004 and his son expired, on 15.03.2007. Hence, the OP cannot

wriggle out of contractual obligation as the said contract became complete on the date

of issuance of insurance policy, in the name of the deceased.

9. The Ld. Counsel for the OP argued that it was a valid repudiation, as per the terms

and conditions of the said policy. We have perused the Policy No.174209252, the date

of commencement is 28.11.2004 and the Deferred Date mentioned in it is 28.11.2007.

We have also perused the Special Provisions “A” and “B” of the said policy, which are

more confusing. Hence, we sought clarification from the Counsel for OP as to why

there are different dates, causing confusion. He was also not in a position to clarify it.

Accordingly, we ordered on 4/2/2014, “Learned counsel for the respondent wants to

take instructions why the deferred date mentioned in the schedule is so

confusing. The matter is adjourned to 24.2.2014.”

10. On 24.2.2014, the Counsel for OP was unable to specify the correctness of

applicability of Deferred Date. He has placed reliance upon the Judgment of Hon’ble

Delhi High Court, in LIC of India Vs. Rajiv Khosla 186 (2012) DLT266, DB, relating to

the point of Deferred Date. Counsel for the complainant relied upon the judgment of this

Commission in the case Murali Agro Products Vs. Oriental Insurance Co.

I(2005)CPJ 1 (NC), wherein it was held in paras 22 to 24, as follows:“Para 22: “Contact of Insurance is based upon good faith. It is the duty of insurers and their agents to disclose all material facts in their knowledge since obligation of good faith applies them equally with the assured.” Para 23: Secondly, if the contract is vague, benefit should be given to the insured. The exclusion term of insurance policy must be read down so as to serve the main purpose of policy t5hat is to indemnify the damage caused due to fire. Para 24 : Finally, it is so to state that the Insurance Company to have terms clearly defined in insurance policy with reasonable clarity and not to continue with the old forms which terms are vague.”

11. In another case, Devi alias Rita Gupta Vs. National Insurance Co. Ltd. 2008 (1)

CLT Page 70 it has been held that in case of insurance claim, when two reasonable

interpretations of the terms of the policy are possible, the interpretation which favors the

insured is to be accepted and not the interpretation which favors the insurer.

12. Therefore, we are of considered view that, in the instant case, the OPs miserably failed

to point out that any such terms and conditions were explained to the Complainant who

represented the insured. It is deficiency in service by the OP. Accordingly, we set aside

the order passed by the State Commission. We allow this revision petition and restore

the order of District Forum.

13. The OP is directed to comply with the order of District Forum, within 90 days, from the

date of receipt of this order, otherwise, it will carry further interest @ 9% p.a., till its

realization. Parties, to bear their own costs.


.…..…………………………(S. M. KANTIKAR)MEMBER Mss/8

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3449 OF 2012(From the order dated 16.05.2012 in Appeal No. 1284/09 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

With IA/5837/2013 (Placing Addl. Documents)

Jaibir Singh S/o Sh. Balbir Singh R/o H. NO. 562, Sector-17, Gurgaon (Haryana) … Petitioner/Complainant

Versus

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

2. The Estate Officer Haryana Urban Development Authority Sector 14, Gurgaon, Haryana

3. The Administrator Haryana Urban Development Authority Sector 14, Gurgaon, Haryana

…Respondents/Opp. Parties (OP)

BEFORE



For the Petitioner : Ms. Shilpa Chohan, Advocate

For the Respondent : Dr. Sudhir Bisla, Advocate


O R D E R



16.05.2012 passed by the Haryana State Consumer Disputes Redressal Commission,

Panchkula (in short, ‘the State Commission’) in Appeal No. 1284 of 2009 – The Estate

Officer, Haryana Urban Dev. Authority & Ors. Vs. Jaibir by which, while allowing appeal,

order of District Forum allowing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner purchased Plot No. 3951,

Sector 23-23-A, Gurgaon in the year 1994 from OP/respondent. Complainant

sought possession of plot from OP, but OP disclosed that plot was omitted from zonal

plan. Alleging deficiency on the part of OP, complainant filed Complaint No. 352/1996

before Consumer Forum, which was allowed by order dated 25.7.1996. OP filed appeal

which was dismissed by learned State Commission vide order dated 3.8.1998. OP offered

alternate Plot No. 1053-G, Sector 22, Gurgaon on 19.2.2004, but demanded market price at

the rate of Rs.3850/- per sq. yds. Complainant accepted the offer, but prayed for allotting

plot at the cost at which original plot was allotted. Complainant also filed Execution Petition

before District Forum, but as District Forum did not pass any order, complainant filed

another complaint before District Forum. OP resisted complaint and submitted that alternate

plot was given at the existing rates as per HUDA policy and prayed for dismissal of

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

observed that OP can charge price of alternate plot only equal to the price on which

previous plot was given. It was further observed that if any excess payment has been made

by the complainant, that shall be refunded along with 9% p.a. interest and if there are any

dues, they shall be paid by the complainant. Appeal filed by the petitioner was allowed by

learned State Commission vide impugned order against which, this revision petition has

been filed.


4. Learned Counsel for the petitioner submitted that inspite of the fact that order dated

3.8.1998 passed by learned State Commission attained finality and OP was bound to allot

alternate plot on the price on which previous plot was given, OP demanded current market

rate and learned District Forum rightly allowed complaint, but learned State Commission

committed error in allowing appeal on the ground that alternate plot was not claimed in the

first complaint; hence, revision petition be allowed and impugned order be set aside. On the

other hand, learned Counsel for the respondent submitted that order passed by learned

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

5. Perusal of record reveals that learned District Forum vide order dated 25.7.1996

directed OP to deliver possession of alternate plot within 2 months to the complainant and

further allowed interest for the period of delay in handing over possession and this order

was affirmed by learned State Commission. When appeal was dismissed by order dated

3.8.1998, OP was under an obligation to implement the order of District Forum, but to our

utter surprise, OP vide letter dated 19.2.2004 offered alternative plot and demanded cost of

alternative plot @ Rs.3850/- per sq. yd., whereas it was to be allotted in the exchange of

omitted plot, meaning thereby at the rate at which original plot was allotted. Apparently, OP

issued letter dated 19.2.2004 in violation of order of State Commission which had attained

finality.

6. Complainant also filed Execution Application before District Forum, but it appears that

no order was passed on that Execution application and complainant filed another complaint

for quashing demand of market rate and learned District Forum rightly allowed complaint

and directed OP to charge the price of the alternate price only equal to the price on which

previous plot was given.

7. Learned State Commission while allowing appeal observed that remedy for seeking

alternative plot at the rate at which the original plot was allotted, was not claimed or if

claimed and not granted would be deemed to have been denied and fresh complaint was

not maintainable. We do not agree with the observations made by learned State

Commission as in the original complaint which was allowed by order dated 25.7.1996. OP

was directed to handover possession of the alternate plot which makes it crystal clear that

alternative plot was to be allotted on the rate on which omitted plot was allotted and there

was no question of subsequently seeking prayer for alternate plot at the rate on which

original plot was allotted. Learned State Commission has taken erroneous view that

remedy for seeking alternative plot at the rate at which original plot was allotted was not

claimed or if claim was not granted would amount to denial of relief. In such circumstances,

impugned order is liable to set aside and order of District Forum is to be affirmed.

8. Perusal of record further reveals that during pendency of appeal before State

Commission, OP executed Deed of Conveyance in favour of the complainant on 21.3.2011,

but it was observed in the Conveyance Deed that complainant undertakes to pay additional

price if any determined and demanded by the Estate Officer. We hereby observe that no

extra payment on the basis of market price is to be made by the complainant.

9. As observed earlier, respondent should have complied with the order of District

Forum, but intentionally harassed complainant by demanding price of plot at market

rate. We direct Chief Administrator of Respondent-HUDA to take disciplinary action against

the concerned officers who issued letter dated 19.2.2004 demanding price of plot @

Rs.3850/- per sq. yd.


dated 16.05.2012 passed by the State Commission in Appeal No. 1284 of 2009 – The

Estate Officer, Haryana Urban Dev. Authority & Ors. Vs. Jaibir is set aside and order of

District Forum allowing complaint is affirmed with no order as to costs. ..………………Sd/-……………( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBERk



(From the order dated 23.03.2011 in First Appeal No. 649/2010 of Chhattisgarh State Consumer Disputes Redressal Commission)

Additional Secretary, Chhattisgarh State Power Holding Company Ltd. Head Office Danganiya, Raipur (C.G.).

... Petitioner

Versus

Bajaj Allianz General Insurance Company Ltd. through Branch Manager, Shivmohan Bhawan, Pandri, Raipur (C.G.)

… Respondent

BEFORE




For the Petitioner

Mr. R.K. Bhawnani, Advocate

For the Respondent Mr. Parinay T. Vasandani, Advocate




Act, 1986 against the impugned order dated 23.03.2011, passed by the Chhattisgarh State


649/2010, “Bajaj Allianz General Insurance Co. Ltd. versus Additional Secretary,

Chhattisgarh State Power Holding Company Limited” vide which, while allowing appeal, the

order dated 15.09.2010, passed by the District Consumer Disputes Redressal Forum,

Raipur in consumer complaint no. CC/08/25, allowing the said complaint, was set aside.

2. Brief facts of the case are that the petitioner/complainant Chhattisgarh State Power

Holding Company Limited obtained a group personal accident insurance policy from the

OP for the benefit of its employees for the period 10.09.05 to 09.09.2006, according to

which a sum of ` 4 lakh was payable in case of accidental death of any employee of the

petitioner/complainant. The Policy No. OG-06-2303-9902-00000029 was issued by the

insurance companyon payment of ` 49,03,900/- as premium. It has been stated that an

employee of the complainant, Maniram Sahoo aged 49 years, employed as Attendant

Class-2 (Line) was doing some construction work for the Chhattisgarh State Electricity

Board on 10.07.2006 and he climbed on an electric pole 36’ in height for the purpose. The

said Maniram Sahoo fell down from the electrical pole and died. The report of the incident

was lodged with the Police. The body of the deceased was taken to the hospital and post-

mortem was conducted, the report of which is on record. The petitioner/complainant

company paid a sum of ` 4 lakh to the legal representatives of the deceased and claimed

that amount from the insurance company by sending the claim form alongwith the required

documents on 1.08.2006. The Insurance Company repudiated the claim on 18.09.2007,

saying that the said employee died due to cardiac arrest. The present consumer complaint

was, thereupon filed, claiming a sum of ` 4 lakh from the Insurance Company alongwith `

50,000/- as compensation for mental harassment etc.

3. In the written statement to the complaint filed by the Insurance Company, it was

denied that Maniram Sahoo died due to injuries on account of falling from electric

pole. They stated that according to the post-mortem report, he died due to heart failure, as

he had been suffering from diabetes and heart disease. The Insurance Company

maintained that the claim had been rightly repudiated by them.

4. The District Forum vide their order dated 15.09.2010 allowed the complaint, saying

that a sum of ` 4 lakh should be paid to the heirs of the deceased, alongwith an interest of

6% p.a. from the date of complaint and also a sum of `5,000/- as compensation for mental

harassment and ` 1,000/- as cost of litigation. An appeal was filed against this order before

the State Commission which accepted the same and set aside the order of the District

Forum, saying that it was a case of natural death and hence, under the terms of

Group Janta Personal Accident Policy, the Insurance Company was not liable to pay any

amount. It is against this order that the present revision petition has come up.

5. At the time of arguments before us, the learned counsel for the petitioner stated that

the death of their employee Maniram Sahoo occurred due to his sudden fall from an electric

pole, 36’ high and hence, this was death due to accident. He has drawn our attention to a

letter No. 033-12-Gen./Accident/760 dated 10.08.2006, sent by the Superintendent

Engineer (S.E.) Construction circular of the petitioner at Bilaspur, addressed to the Chief

Engineer Bilaspur, in which it has been stated that Maniram Sahoo, Line Attendant met with

a fatal non-electrical accident on 10.07.2006 at 3:30 PM, while shifting the high tension wire

of Railway over-bridge, Korba. Based on various statements submitted before the S.E., it

was concluded that the accident was absolutely non-electrical and the supply was

completely switched off, i.e., he was working on a dead line and hence, their Department

was not responsible for the accident. The learned counsel has drawn our attention to

clause 3.4 and 3.5 of the Personal Accident Policy document, issued by the respondent

Insurance Company, which states as follows:-“3.4 “Accident” or “Accidental” means a

sudden, unintended and fortuitous external and visible event.

3.5 “Bodily Injury” means physical bodily harm or injury, but

does not include any mental sickness, disease or illness.” 6. It has also been stated that the Company will pay the sum assured in the event of

Accidental Bodily Injury, causing the Insured’s death within 12 months of the Accidental

Bodily Injury being sustained. The learned counsel argued that the insured was working on

an electric pole and repairing the electric supply line. As a result of severe shock due to

falling down from the pole, 36’ in height, he got heart-attack, as a result of which, he

died. The Insurance Company was, therefore, liable to pay the amount in question to the

petitioner. The petitioner had already paid this amount to the legal representatives of the

deceased.

7. In reply, the learned counsel for the respondent Insurance Company has drawn our

attention to judgement of the Hon’ble Supreme Court in ‘Rubi (Chandra) Dutta versus

United India Insurance Company Limited’ [as reported in (2011) 11 SCC 269], saying

that the scope of revision petition under section 21(b) of the Consumer Protection Act, 1986

was limited to cases where some prima-facie or patent error appears in the impugned

order. A different interpretation of the same facts on record was not permissible and hence,

this petition is liable to be dismissed. Learned counsel also invited our attention in this

regard to the orders passed by the National Commission in “New India Assurance Co. Ltd. versus Lakhwinder Kaur” [as reported in II (2007) CPJ 36 (NC)] and “Oriental Insurance Company Ltd. versus Shri Kant Pandharinath Yeole” [as reported in II (1994)

CPJ 106 (NC)] in support of the arguments that the scope of revision petition was

limited. The learned counsel stated that the version of the petitioner that the employee died

due to shock, had not been taken by them earlier. In fact, while working on the pole, the

deceased suffered heart attack, died there and then fell down. The learned counsel has

drawn our attention to the Post-Mortem report, saying that the death was stated to have

taken place due to cardiac arrest and no external injury was seen on his body and hence, it

is natural death only.


to the arguments advanced before us. The admitted facts are that the

petitioner/complainant had obtained a Group Personal Accident Insurance Policy for the

benefit of its employees from the respondent/OP Insurance Company, under which a sum

of ` 4 lakh was payable in case of accidental death of any employee of the

petitioner/complainant. It is also admitted that the deceased employee Maniram Sahoo was

doing some construction work on an electric pole at 36’ height and that he fell down from

the said pole, after which he was declared dead by the medical authorities. The version of

the complainant that at that time, the power was switched off has also not been denied by

the other party. The basic issue to be decided in the present case is whether in this case,

the death occurred due to accident and whether the Insurance Company is liable to pay the

claim in accordance with the terms and conditions of the Insurance Policy in question.

9. The report of the post mortem about the cause of death says as follows:-“The cause of death is Cardiorespiratory failure which may be due to associated Cardiac Pathology. Time passed since death is within 12 hours from commencement of Post mortem examination.”

10. As per the above report, the cause of death is cardiorespiratory failure. The cause of

cardiac arrest could be the existence of a pre-cardiac disease or even in the absence of

such a disease, the cardiac arrest could take place due to shock upon falling from a pole 36’

in height. In the event of death by any means, the cardiac arrest or cardiac failure has to

take place and only after that, a person is usually declared as dead. The cause of death

stated in the post mortem report, therefore, does not support the version of the respondent

that it was a death not due to accident. Further, it has been stated in the post mortem

report that no external injury was found on the body of the deceased. During fall from a

pole, it is not necessary that bodily injury should always take place. The basic point is that

there has been a fall from a pole and there has been the death of the employee. The

argument taken by the respondent that the employee suffered heart attack while working on

the pole, he died then and there, and then fell down, is not substantiated by any medical

evidence. Rather, the version that because of his fall from the pole, he got a shock, due to

which he suffered a heart-attack and died, seems to be a more plausible explanation. Even

if it is believed that heart-attack occurred while he was working on pole, the factum of falling

from the pole and his death does not exclude the incident from the nomenclature of

‘accident’, based on the test of any prudent thinking and common sense.

11. It is made out very clearly from the facts on record, therefore, that this is a case

where death has occurred because of an accident, involving fall from an electric pole 36’ in

height and under the terms and conditions of the Insurance Policy, the respondent is liable

to pay compensation to the legal heirs of the deceased employee. Since in this case, the

amount of ` 4 lakh has already been paid to the legal heirs of the deceased employee, the

OP has to pay the said amount to the petitioner/complainant and also a compensation of

`_5,000/- for mental agony and ` 1,000/- as litigation cost as ordered by the District Forum.

12. Based on the above discussion, this revision petition is allowed, impugned order

passed by the State Commission is set aside and the order dated 15.09.2010 passed by the

District Forum upheld. There shall be no order as to costs.Sd/-

(K.S. CHAUDHARI J.) PRESIDING MEMBER

Sd/-


RS/



(From the order dated 04.05.2005 in First Appeal No. 2819/2004 of Haryana State Consumer Disputes Redressal Commission)

Haryana Urban Development Authority through its Estate Officer, Sector – 12, Faridabad.

... Petitioner/OP

Versus

Adhunik Educational Cultural and Welfare Society (Regd.) RZ-2063/27-B, Tugalkabad Extn. New Delhi through its General Secretary B.M. Aggarwal.

… Respondent/Complainant

BEFORE




For the Petitioner NEMO

For the Respondent NEMO

PRONOUNCED ON : 19th MARCH 2014O R D E R PER DR. B.C. GUPTA, MEMBER


Act, 1986 against the impugned order dated 04.05.2005, passed by the Haryana State

Consumer Disputes Redressal Commission (for short ‘the State Commission’) in Appeal

No. 2819/2004, “Haryana Urban Development Authority (hereinafter referred to as HUDA)

versus Adhunik Educational Cultural & Welfare Society”, vide which while partly allowing the

appeal, the order dated 20.07.2004, passed by the District Consumer Disputes Redressal

Forum, Faridabad, allowing the consumer complaint no. 810 dated 17.10.2003, filed by the

present respondent, was modified.

2. Brief facts of the case are that the complainant filed consumer complaint no. 810 on

17.10.2003 on the ground that they purchased a Nursery School site No. 3 at Sector 21 D,

Faridabad through open auction on 15.10.98 at a cost of ` 17,32,500/- and the allotment

letters dated 26.07.98 and 30.07.99 were issued to them. 10% of the cost of the site was

deposited at the time of auction and 15% was deposited within 30 days from the date of

allotment. The balance payment was also made as per schedule in instalments, but the

petitioner/OP failed to discharge its responsibility to hand over physical un-encumbered

possession of the site immediately after deposit of 25% of the total cost. After writing many

letters to the OP for possession, the formal possession was offered vide letter dated

30.07.99 and handed over vide letter dated 09.08.99. The building plan of the site was

sanctioned on 24.05.2000, but when the complainant was about to start the construction

work, they found high tension electricity line passing through their plot. It has been alleged

that it was the duty of the OP to remove the high tension wire and other encroachments,

before handing over the possession of the plot. The OP had, therefore, indulged in

deficiency in service. The District Forum after taking into account the evidence of

the parties, allowed the complaint and ordered to remove the high tension wire

forthwith. The District Forum also stated that if it was not possible to shift the said wire from

that place, an alternative site of the same size and similar price should be given to the

complainant. In addition, an amount of ` 4,75,345/- received from the complainant in the

shape of interest on instalments was ordered to be refunded. It was also directed that

interest @10% p.a. should be paid on the deposited amount. The District Forum also

ordered to pay a sum of ` 2 lakh as compensation for mental harassment and ` 2,000/- as

cost of litigation. An appeal was filed against this order before the State Commission and

vide impugned order dated 04.05.2005 of the said Commission, it was stated that HUDA

had made a revised zoning plan for the area and in view of that, the directions issued by the

District Forum had become infructuous. However, the complainant was entitled to get

interest @10% p.a. on the deposited amount after 2 years from the date of allotment till the

date of revision of Zoning Plan, i.e., 04.08.2003. The compensation of ` 2 lakh awarded to

the complainant was also reduced to ` 50,000/-. It is against this order that the present

revision petition has been filed by the OP, HUDA.

3. This revision petition was filed in this Commission on 23.05.2006 with a delay of 79

days. An application for condonation of delay was also filed alongwith the revision

petition. A notice was issued to the respondent / complainant vide order dated 07.06.2006

and the operation of the impugned order was stayed. Thereafter, the case remained

pending in this Commission for admission hearing for long time and it was ordered to be

admitted on 02.12.2011. It was also ordered that the case be listed for final hearing in due

course. Later on, when the case was taken-up for hearing, notices were sent to the parties

for appearance on 02.01.2014. However, the petitioner did not appear despite the delivery

of notice upon the petitioner as well as their counsel. The respondent also did not appear

despite the delivery of notice to counsel for respondent. When the matter was taken-up for

consideration on 2.01.2014, it was decided that one more intimation should be given to the

parties in the interest of justice and the case was fixed for hearing on 20.02.2014. On

20.02.2014, as per the office report, the notice has been delivered to the petitioner as well

as to their counsel but despite that, none appeared on behalf of the petitioner. The

respondent also did not appear.

4. Looking at the material on record, it is observed that the petition was filed with a

delay of 79 days. In the application for condonation of delay, it has been mentioned that the

copy of the impugned order dated 04.05.2005 was delivered/despatched by the registry of

the State Commission on 05.012.2005. However, after receiving the same, the matter was

required to be dealt with in various branches of the OP involving lengthy, lethargic and

cumbersome procedure, as per the version of the petitioner itself, which resulted in delay

although the same was not intentional.

5. We do not find any justification for the condonation of delay as the petitioner have

themselves admitted about lengthy, lethargic and cumbersome procedure prevalent in their

office. The Hon’ble Apex Court in a catena of judgements delivered recently have settled

the law very clearly that unless cogent and convincing explanation is furnished by a party

for condonation of delay, the same should not be condoned. We, therefore, do not find any

justification for the condonation of delay in the present case and the revision petition

deserves to be dismissed on this ground alone.

6. Even on merits, it is made out from record that there was high tension wire passing

over or near the plot in question. The petitioners then themselves changed the zoning

plan. The State Commission have rightly observed in their order that because of the

change in the zoning plan, the first direction contained in the order of the District Forum to

remove the high tension wire over the plot had become infructuous. The date of the

revision of the zoning plan has been stated to be 04.08.2003. The State Commission has

also observed that the complainant had already been compensated by awarding interest

@10% p.a. on the amount deposited. In their wisdom, they directed that compensation on

account of mental harassment should be reduced from ` 2 lakh to ` 50,000/-.

7. It is clear from the above position that there is no merit in the revision petition, which

require interference in the order passed by the State Commission. The petitioners

themselves changed the zoning plan in order to take care of the problem caused by high

tension wire over the plot. It is held, therefore, that the order of the State Commission does

not suffer from any illegality, irregularity or jurisdictional error as well. Moreover, the

petitioner has not come forward to plead their case despite affecting service of notice twice

upon them. In the light of this situation, this revision petition is ordered to be dismissed and

the order passed by the State Commission upheld with no order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/


REVISION PETITION No. 2712 of 2008(From the order dated 01.04.2008 of the State Consumer Disputes Redressal Commission, Union Territory, Chandigarh in Appeal no. 20 of 2008) Anil Goyal Son of Late Balwant Goyal Resident of House no. 354 Sector 16, Panchkula Haryana

Petitioner Versus

M/s Indus Airways Private Ltd The Original of India Flat no. 003, Plot no. 3 Registered RBCGHS, Sector 10 Office Dwarka – 110075 Delhi Through its Managing Director The General Manager Indus Airways Private Ltd. Corporate Office 1438 Mohan Meakin Society Sector 5, Vasundhav Ghaziabad 201010

Respondents REVISION PETITION No. 2713 of 2008(From the order dated 01.04.2008 of the State Consumer Disputes Redressal Commission, Union Territory, Chandigarh in Appeal no. 874 of 2007) 1. Arvinder Pal Son of Shri Rajinder Singh 2. Mrs Amarpreet Kaur Wife of Shri Arvinder Pal 3. Kumari Guddu Kaur Daughter of Shri Arvinder Pal 4. Master Aviraj Pal Son of Shri Arvinder Pal Resident of House no. 62 Golden Avenue, Phase 1 Jallandhar

Petitioners Versus

M/s Indus Airways Private Ltd The Original of India Flat no. 003, Plot no. 3 Registered RBCGHS, Sector 10 Office Dwarka – 110075 Delhi Through its Managing Director The General Manager Indus Airways Private Ltd. Corporate Office 1438 Mohan Meakin Society Sector 5, Vasundhav Ghaziabad 201010

Respondents BEFORE: HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBERHON’BLE MRS REKHA GUPTA MEMBER For the Petitioner Ms Anuradha Gupta, Advocate

For the Respondent Mr M L Mahajan, Advocate


ORDER

REKHA GUPTA

Revision petition nos. 2712 of 2008 and 2713 of 2008 have been filed by the

petitioners Mr Anil Goyal and Mr Arvinder Pal and Others, against the impugned orders

dated 01.04.2008 in Appeal nos. 20 of 2008 and 874 of 2007 of the State Consumer

Disputes Redressal Commission, Union Territory, Chandigarh (‘State Commission’). Since

both the revision petitions have been filed against the same impugned order of the State

Commission, we propose to pass a common order.

2. The brief facts as stated in the complaint no. 202 of 2007 titled Arvinder Pal vs M/s

Indus Airways Private Ltd., as that the petitioners/ complainants were to attend a family

function at New Delhi on 29.12.2006 at 08.00 P M. They purchased air tickets to travel from

Chandigarh to Delhi. Payments were made through credit card and the status of tickets was

confirmed. The flight was scheduled to start from Chandigarh at 05.30 P M. Petitioners

reached domestic airport terminal, Chandigarh at 04.30 P M on the said date but they were

informed by the staff of M/s Indus Airways Private Limited – Respondent herein that the

flight had been cancelled, but no reason was assigned. At that time neither weather was

foggy, nor, there was any natural calamity but on inquiry they came to know that the flight

had been cancelled due to less passengers booked for 29.12.2006 on the route from

Chandigarh to Delhi. Ultimately, they hired a taxi for Delhi to attend the function and spent

Rs.4,000/-. Cancellation of flight caused much pain and agony to them and they had to

incur expenditure and they claimed in all Rs.2,17,900/-, including price of tickets, taxi

charges and compensation for harassment etc.

3. Respondent/opposite party contested the complaint and admitted the purchase of

tickets and payment through credit cards but stated that the said flight could not land at

Chandigarh due to unavailability of watch hours which was beyond their control. They

denied that the flight was cancelled due to less passengers. They further stated that they

had given an offer to the petitioners for refund of full amount of tickets or they could enjoy

complementary tickets with existing tickets up to 28.02.2007 but the same was not

accepted. They denied other allegations and stated that the complaint should be dismissed.

4. After hearing the counsel for the parties, the District Consumer

Disputes Redressal Forum – I, Union Territory, Chandigarh (‘the District Forum’) vide order

dated 27.09.2007 accepted the complaint with cost of Rs.1100/-. They were allowed

compensation of Rs.40,000/- i.e., Rs.10,000/- each for mental agony and harassment etc.,

besides reimbursement of taxi charges to the tune of Rs.4,000/-. The same was ordered to

be paid within 30 days failing which interest @ 9% per annum with effect from 29.12.2006

till payment was to be given.

5. In complaint no. 198 of 2007 which was filed by Shri Anil Goyal, it was claimed that he

was invited to attend some business engagement at Gurgaon on 29.12.2006 and as such

had purchased air ticket to travel from Chandigarh to Delhi and the payment was made

through credit card. The status of the ticket was confirmed. The flight was to start from

Chandigarh at 05.30 P M and when he reached the domestic airport terminal, Chandigarh

at 04.30 P M, he was informed by the staff of Indus Airways that the flight had been

cancelled. Other allegations are the same. Respondents filed reply opposing the complaint

and taking same pleas as were taken in complaint case no. 202 of 2007. Parties adduced

their evidence by way of affidavits. After hearing the counsel for the parties, District Forum

accepted the complaint with cost of Rs.1100/- and awarded compensation of Rs.10,000/-

besides Rs.4,000/- as refund of taxi charges. Amount was to be paid within 30 days

otherwise the same would carry interest @ 9% with effect from 29.12.2006 till payment.

6. Aggrieved by the order of the District Forum two separate appeals were filed by the

respondents before the State Commission. Against the interim order dated 09.01.2008, two

different revision petitions were also filed. In the said order it had been stated that since the

OPs had intentionally not obeyed the order and had not made payment within time as

directed by the Forum, therefore, Managing Director of M/s Indus Airways be sentenced to

imprisonment for one year and fine of Rs.10,000/-. The State Commission vide their order

dated 01.04.2008 accepted the appeals and stated that “the impugned orders being illegal

are set aside and the complaints are dismissed. Since the impugned order do not stand, the

orders passed on 09.01.2008 for arrest of Managing Director of M/s Indus Airways also do

not stand and are set aside having become infructuous. Consequently, the revision

petitions are accepted”.

7. While accepting the appeal, the State Commission observed as under:

“There is no dispute about it that on 29.12.2006 the complainants were to travel from

Chandigarh to Delhi against confirmed tickets issued by M/s Indus Airways. The time

of departure on 29.12.2006 from Chandigarh for Delhi from domestic airport

terminal was 17.30 hours (05.30 P M). The case of complainants is that they had

reached domestic airport terminal, Chandigarh at 04.30 PM and on inquiry from the

staff of M/s Indus Airways, they came to know that the flight had been cancelled but

the reasons was not assigned for cancellation of flight. They further stated that on

that date neither the weather was foggy, nor there was any natural calamity but on

further inquiry they discovered that flight was cancelled due to less passengers

booked for the flight on the route from Chandigarh to Delhi. The appellants had

denied that flight had been cancelled which was scheduled to start from Chandigarh

at 05.30 PM on 29.12.2006 due to less passengers booked. The Airport Authority

Chandigarh had issued certificate dated 15.12.2007 which is very relevant in this

case. The airport authorities had certified that Indus Airways Private Limited

scheduled flight no. 09-103 from Mumbai to Chandigarh was unable to land at

Chandigarh airport on 29.12.2006 due to closure of airfield after 2020 hours. They

have further certified that Chandigarh airfield normal watch hour is from Dawn to

Dusk and initial extension of watch hours was given with the request of above airline.

They next stated that due to closure of Chandigarh airfield during the arrival time,

Indus Airways Flight 09-103 was diverted to IGI Airport, Delhi.

In the ticket annexure C 1 issued in favour of Shri Arvinder Pal the flight number has

been mentioned to be 09-202. However, in the certificate issued by Airport

Authorities, Chandigarh, flight number has been mentioned to be 09-103. In the

complaint of Shri Anil Goyal the flight number has not been mentioned. The affidavit

of Mrs Lili Beri, Director, M/s Indus Airways Pvt. Ltd., dated 18.03.2008 duly attested

by the Oath Commissioner has been filed. It states that M/s Indus Airways Pvt., Ltd.,

used to operate one flight daily which originated from Delhi – Chandigarh – Mumbai

– Chandigarh – Delhi. It was next stated that flight which originated from Delhi was

numbered 09-101 to Chandigarh and thereafter when it took off from Chandigarh for

Mumbai it was known as 09-102 and when it originated from Mumbai back to

Chandigarh the flight was known as 09-103 and when it landed at Chandigarh and

took off to Delhi it was known as 09-202. It next stated that when complainant had

purchased the ticket from Chandigarh to Delhi the flight number was given as 09-202

but the flight which was coming from Mumbai to Chandigarh was given the flight no.

09-103 and since the flight no. 09-103 did not land at Chandigarh. Therefore, flight

no. 09-202 from Chandigarh to Delhi did not originate. It is further stated that flight

no. 09-202 was to take off from Chandigarh to Delhi at 17.40 hours but the same

was delayed and appellant company had paid for the watch hours to the airport

authority but due to closer of airfield after 20.20 hours the same was not allowed to

land. On 29.12.2006 due to fog at Delhi airport the flight was delayed and thereafter

same continued to be delayed even at Mumbai airport due to traffic congestion.

There is no dispute about it that in the month of December, fog is heavy as winter

session is on its peak. Hence, certificate coupled with the affidavit of Mrs Lili Beri,

Director of M/s Indus Airways, positively proves that there was only one flight which

was operated by M/s Indus Airways Pvt., Ltd., and that flight was delayed at Delhi –

Mumbai route due to fog and even the appellant (M/s Indus Airways) got the watch

hours extended but due to closure of the airfield at 20.20 flight no. 09-103 could not

land and was diverted to IGI Airport, Delhi. Hence, it gives lie to the version of

complainants that flight was cancelled due to less booked passengers”.

8. Hence, the present revision petitions.

9. The main grounds for the revision petitions are as follows:

The State Commission, U T Chandigarh failed to consider the facts that the flight

was scheduled to start from Chandigarh at 05.30 P M on 29.12.2006. When the

petitioner reached the Domestic Airport Terminal Chandigarh at 04.30 P M on the

said date they were informed by the staff of the respondents that the flight had been

cancelled but no reason was assigned for the cancellation of flight. Neither the

weather was foggy nor there was any natural calamity but on enquiry it was

discovered that the flight was cancelled due to less passengers, i.e., only five

passengers were booked for 29.12.2006 on the route from Chandigarh to Delhi, as

such, due to less of number of passengers the flight has been cancelled, as the

same would cause huge losses to the respondents/ company.

The State Commission, U T Chandigarh erroneously reversed the finding of the

District Forum – 1, Chandigarh and failed to appreciate the admitted facts that after

receipt of the notice from the District Forum – 1, UT, Chandigarh, the respondents

filed written statement and evidence and admitted the contents of the complaint but

they submitted that the said flight could not land due to unavailability of watch hours

which was beyond the control of OPs. The OPs has not denied the facts that only

five passengers were booked from Chandigarh.

The respondents preferred an appeal against the order of the District Forum 1

dated 27.09.2007. The State Commission allowed the appeal filed by the

respondents and dismissed the complaint vide a common order dated 01.04.2008 by

holding that the respondents are not at fault, without any regard to the facts and

circumstances of the case and that too just on the basis of procured certificate and

false affidavit submitted by the respondents by way of additional evidence.

It is submitted that the respondents procured a certificate as per their/ its own

convenience and thereafter the same was produced by the respondents before the

State Commission, Chandigarh in appeal along with an application for additional

evidence.

Mrs Lili Beri, Director of the respondent’s intentionally, deliberately and

knowingly filed a false affidavit by way of additional evidence on the basis of clever

manipulation, procured certificate dated 15.12.2007 to cover up their misdeed and

mislead the State Commission, Chandigarh and the same was considered as

genuine evidence by the State Commission and on the basis of above and false

evidence, the State Commission, Chandigarh held that the respondents are not at

fault and dismissed the complaint.

10. We have heard the learned counsel for the parties and have carefully gone through

the records of the case. It is an admitted fact that flight no. 09-103 from Mumbai did not land

at Chandigarh and therefore, flight no. 09-202 from Delhi to Chandigarh did not originate.

This was due to the fact that a single aircraft was to fly on the sector Delhi – Chandigarh –

Mumbai – Chandigarh – Delhi and due to weather conditions and the fog which normally

occur in northern India during the month of December the flight schedule was disturbed.

Since the flight from Mumbai could not land and due to unavailability of watch hour at

Chandigarh it was cancelled and diverted directly to Delhi. It is also an admitted fact that the

scheduled flight was 05.30 p m and at 04. 30 p m, they were informed by the staff regarding

the cancellation of the flight and offered refund.

11. Though the counsel for the petitioner has argued that the flight was cancelled not due

to weather conditions but on account of only five passengers who were found to be

travelling from Chandigarh, counsel for the petitioner could not show or file any documents

in support of her claim. She could also not file any document to support her argument that

the weather conditions were not foggy. Airlines have to take decisions regarding flight

schedules in the interest of passenger safety. These decisions have to be taken as per the

weather conditions and the facilities available at the airports for night landing. At the

Chandigarh airport the available watch hour were from dawn to dusk.

12. Thus, in view of the facts stated above no jurisdictional or legal error has been shown

to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since,

the State Commission have given a detailed and well-reasoned order which does not call

for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction

or material irregularity. Thus, present revision petitions arehereby, dismissed. Parties shall

bear their own costs.

Sd/-

..………………………………[ V B Gupta, J.] Sd/-………………………………..[Rekha Gupta] Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHICONSUMER COMPLAINT NO. 270 OF 2013

1. Smt. Madhu Saigal W/o. Ashok Kumar Saigal

2. Ms.Aditi Saigal (Minor) Grand-daughter of Smt.Madhu Saigal

Both R/o : F-17, First Floor, Hauz Khas Enclave New Delhi – 110016 Permanent Address at : Aditi Apartments 52/42, Tashkent Road, Civil Lines Allahabad – 211001, Uttar Pradesh

… Complainants

Versus

1. M/s Omaxe Buildhome Pvt. Ltd. 10, Local Shopping Center, Kalkaji, New Delhi – 110019 2. New Okhla Industrial Development Authority Administrative Complex, Sector-6, Noida -201301 District Gautam Budh Nagar Uttar Pradesh

…. Opposite Parties BEFORE:

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

For the Complainants : Mr. Rahul Rathore, Advocate & Ms. Priyanjali Singh, Advocate with him.

For the Opp. Party No. 1: Mr. Sukumar Pattjoshi, Sr.Advocate

& Mr.Shalabh Singal & Mr.S.K.Dubey,

Advocates with him.

For the Opp. Party No.2 : Mr. Ravindra Kumar, Advocate

PRONOUNCED ON : 20th MARCH, 2014

ORDER


1. The main controversy swirls around the question, “Whether, the complainants

can invest, by purchasing more than one apartment, from the Opposite Parties?”. Are

they, consumers?. The complainants have filed a lengthy complaint, running into 42

pages, however, the sum and substance of the above said controversy lies in the above

said question.

2. This is a case of two senior citizens, Smt.Madhu Saigal, aged about 73 years and

her husband, Mr.Ashok Saigal, aged about 76 years. They have invested their life

savings to the tune of over Rs.2.00 crores, in purchase of two apartments, in a Project in

the hope of spending their retirement life, with their son, Sh.Amit Saigal. Unfortunately,

their son, passed away. It is alleged that they have suffered at the hands of Builder,

OP1, at every stage, right from the inception, till now. Although, they have paid the entire

amount, yet, the possession of the flats have not been given to them. Ms.Aditi Saigal, is

grand-daughter and sole-surviving descendant of complainant No.1 and her

husband, having been substituted as a co-allottee, in place of her son, Sh.Amit Saigal.

3. However, the question revolves around the controversy, whether, the complainants

are entitled to invest in more than one apartment? Although the complainants have not

stated in so many words, as to how many apartments, they were going to purchase, yet, it

appears that they were going to purchase two apartments as is apparent from the

following pleas:

“In view of the illegal charges, dues payable on possession were bumped up from Rs.34,94,965/- (i.e. Rs. 17,47,482.50 per subject apartment) to Rs.52,24,267.32, an excess charge of Rs.17,29,302.32 beyond the original agreement”.

4. The complainant No.1 is the owner of Aditi Apartments, 52/42, Tashkent Road, Civil

Lines, Allahabad. These two apartments are Nos. 2 & 3, respectively. The total area of the

plot in dispute of both the apartments is 4,450 sq.ft. (1625 x 2 = 3250 + 600 x 2 = 1200)

is The complaint was filed with the prayer to execute and register the apartments in

question, in their favour, to compensate the complainants. Further, the present complaint

was filed with 14 prayers which are detailed in the complaint itself.

5. The learned counsel for the complainant vehemently argued that the complainants

are old-aged citizens, they are investors and they should be

saved from the harassment and mental agony, coming from the OPs.

6. All these arguments have left no impression upon us. It is apparent that the

complainants are ‘investors’ and they are ‘not’ ‘consumers’. This view stands fortified by

various following authorities.

7. This Commission, in case titled, Chilkuri Adarsh Vs.

ESS ESS VEE Constructions, III (2012) CPJ 315, has held, as under :-

“Arguments of the learned Counsel have been considered. However, we are of the view that the complaint

as presented cannot be maintained before a Consumer Fora, like ours, as the agreement was for the construction of two showrooms, which obviously relate to commercial purpose and the complainant, therefore, will not come within the definition of a ‘consumer’, as per Section 2(1)(d) of the Consumer Protection Act, 1986. This has been the consistent view of this Commission. It has held that even when a consumer has booked more than one unit of residential premises; it amounts to booking of such premises for investment/commercial purpose.

It was further held, “This Commission, in the case of Jagmohan Chabra and another Vs. DLF Universal Ltd., IV (2007) CPJ 199, in a somewhat similar case, held that the complaint was not maintainable, under the Consumer Protection Act, 1986. It had, therefore, disposed 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. 6030-6031 of 2008, filed before the Supreme Court which stands dismissed, vide Apex Court’s order dated 29.09.2008”.

8. This Commission, by a Bench, consisting of Justice J.M. Malik

and Mr. Vinay Kumar in the case titled as “Mrs. Savi Gupta

Vs. Omaxe Azorim Developers Pvt. Ltd. in Consumer Complaint No.208 of

2012, decided on 01.10.2012, took the same view.

9. Again, this Commission, by a Bench, consisting of Justice J.M. Malik and Dr.

S.M. Kantikar in Consumer Case Nos. 307 to 309 of

2012, titled M/s. Moran Plantation Pvt. Ltd. & Ors. Vs. M/s. Ambience Private

Ltd., decided on 02.09.2013, took the similar view, wherein it was held:-

“In the facts of the present case, we maintain the same view, and while dismissing the complaints, as not maintainable, reserve the rights of the complainants to approach the appropriate Civil Court to seek their remedy, if so advised”.

10. Consequently, we are of the considered view that the complainants are ‘not’

‘consumers’. Hence, this complaint is not maintainable, and is, therefore, dismissed. The

complainants are, however, given liberty to approach the appropriate forum to

seek redressal of their grievances, if so advised. They may take advantage of the

ruling of theHon’ble Supreme Court in the case of Laxmi Engineering Works Vs.

PSG Industrial Institute, (1995) 3 SCC 583, to seek exclusion of the time

spent in prosecuting this complaint, before this Commission.

…..…………………………

(J. M. MALIK, J)

PRESIDING MEMBER

.…..…………………………(DR.S. M. KANTIKAR)

MEMBER

dd/1

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI REVISION PETITION NO. 3382 OF 2013(Against the order dated 17.06.2013 in First Appeal No. 872/2010 & 873/2010 to 879/2010 of the State Consumer Disputes Redressal Commission, Gujarat, Ahmedabad)

1. The Chairman-cum-Managing Director, ONGC Ltd. Jivan Prabhat Tower 11th Floor, 124, Connaught Place New Delhi – 110001 2. The Executive Officer ONGC Limited, PRBS Section Ground Floor, Old Secretariat Building Tel Bhavan, Dehradun 3. The Chief Manager (F&A) ONGC, 5th Floor Chandkheda, Ahmedabad

... Petitioners Versus

1. Consumer Education Research Society Suraksha Sankul Ahmedabad-Gujarat Highway Thaltej, Ahmedabad – 380054 2. Sh. Suvinder Singh A/191, Sarvottam Nagar Near P.O. Railway ColonyAhmedabad – 380019

3. The Manager (P&GS) Life Insurance Corporation of India Ltd G/701, 3rd Floor, Jivan Prakash Tilak Road, Ahmedabad - 380001

... Respondents

REVISION PETITION NO. 3383 to 3389 2013

BEFORE:


For the Petitioners in all cases : Mr. Shivendu Singh , Advocate For the LIC : Mr. Rajesh K. Gupta, Advocate For the Respondents 1& 2 : Mr. Amjid Maqbool, Advocate with Mr. Siddharth Kaushik, Advocate Pronounced on 20th March, 2014 O R D E R


1. The parties are up in arms over the question of pension. It is always desirable that the

pensioners should be treated with kid gloves but it is unfortunate that in our times, they are

exasperated by senseless delay. The Department is always interested in wasting more

money and their time, than it is involved in such like frivolous litigations.

2. The Chairman-cum-Managing Director, ONGC Ltd. and their Executive Officer and the

Chief Manager(F& A) have called into question the orders rendered by the District Forum

and Gujarat State Consumer Disputes Redressal Commission, Ahmedabad. Both

the fora below have given the concurrent findings.

3. All the revision petitions are identical and the same will be decided through this

common judgment.

4. This is an indisputable fact that all these cases pertain to the pension. The main

grievance of the opposite parties/petitioners is that the consumer fora are not armed with

the power to adjudicate the pension matters. The counsel for the petitioners did not raise

any other point. In order to buttress his arguments, he has cited an authority of the

Supreme Court reported in Dr. Jagmittar Sain Bhagat vs. Dir. Health Services, Haryana

& Ors. decided on 11.7.2013 in civil appeal No. 5476 of 2013 wherein the Supreme

Court was pleased to observe:

“In view of the above, it is evident that by no stretch of imagination a

government servant can raise any dispute regarding his service

conditions or for payment of gratuity or GPF or any of

his retiral benefits before any of the Forum under the Act. The

government servant does not fall under the definition of a “consumer”

as defined under Section 2(i)(d)(ii) of the Act. Such government

servant is entitled to claim his retiral benefits strictly in accordance with

his service conditions and regulations or statutory rules framed for that

purpose. The appropriate forum, for redressal of any his grievance,

may be the State Administrative Tribunal, if any, or Civil Court but

certainly not a Forum under The Act.”

5. Learned counsel for the petitioner vehemently argued that the consumer fora have

arrogated to themselves those powers which they do not possess.

6. We clap no value with these arguments. The judgment

of Dr. Jagmittar Sain Bhagat vs. Dir. Health Services, Haryana & Ors. (supra) must be

read holistically. The same cannot be read in vacua to the detriment of one party and to the

benefit of another party. Para 15 of the same judgment runs as follows:

“In Regional Provident Fund Commissioner v. Bhavani AIR 2008 SC

2957, this court dealt with the issue as to whether Dr. Padia’s submissions

regarding the non-applicability of the Act to the case of Regional Provident

Fund Commissioner – the person responsible for the working of a Pension

Scheme, could be held to be a ‘service giver’ within the meaning of Section

2(1)(o) of the Act, as it was neither a case of rendering of free service nor

rendering of service under a contract of personal service so as to bring the

relationship between the parties within the concept of ‘master and

servant’. The court held:“In our view, the respondent comes squarely within the

definition of ‘consumer’ within the meaning of Section 2(1)(d)(ii), inasmuch as, by becoming a member of the Employees’ Family Pension Scheme, 1971, and contributing to the same, she was availing of the services rendered by the appellant for implementation of the Scheme. The same is the case in the other appeals as well.”

7. It must be borne in mind that the complainants in the instant case are not the

government servants. They work in a semi government institution. They cannot approach

the State Administrative Tribunal or civil court. The civil court will entail a lot of time. By

virtue of Section 3 of the Consumer Protection Act, 1986, they have got the remedy

of redressal of their grievances in the consumer fora itself.

8. Moreover, in Regional Provident Fund Commissioner vs. Shiv Kumar Joshi, 2000

SCC 98, it was held:

“We cannot accept the argument that the Regional Provident Fund

Commissioner, being Central Government, cannot be held to be

rendering “service” within the meaning and scheme of the Act. The

Regional Provident Fund Commissioner, under the Act and the

Scheme discharges statutory functions for running the Scheme. It has

not, in any way, been delegated with the sovereign powers of the

State so as to hold it as a Central Government, being not the authority

rendering the “service” under the Act. The Commissioner is a

separate and distinct entity. It cannot legally claim that the facilities

provided by the “Scheme” were not “service” or that

the benefits under the Scheme being provided were free of charge.

The definition of “consumer” under the Act includes not only the

person who hires the “services” for consideration but also the

beneficiary, for whose benefit such services are hired. Even if

it is held that administrative charges are paid by the Central

Government and no part of it is paid by the employee, the services

of the Provident Fund Commissioner in running the Scheme shall be

deemed to have been availed of for consideration by the Central

Government for the benefit of employees who would be treated as

beneficiaries within the meaning of that word used in the definition of

“consumer”. This court in Spring Meadows Hospital

V. Harjot Ahluwalia, 7 (1998) 4 SCC: JT (1998) 2 SC

620, to which one of us (Saghir Ahmad, J) was a party has already

held that the “consumer” means a person who hires or avails of any

services and includes any beneficiary of such service other than the

person who hires or avails the services. The Act gives a

comprehensive definition of “consumer” who is the principal

beneficiary of the legislation but at the same time in view of the

comprehensive definition of the term “consumer” even a member of

the family of such “consumer” was held to be having the status

of ‘consumer’ ”.

9. This view was taken by our Bench in Assistant Provident Fund

Commissioner, Raichur vs. Vasant Madhav Kerur (RP No. 765 of 2013) and other

connected 27 revision petitions decided on 9.4.2013.

10. Consequently, all the revision petitions are meritless and the same are dismissed with

costs of Rs.5000/- each payable to each of the complainants, which shall be paid within

three months, otherwise, it will carry interest @10% per annum till realisation.

.…..…………………………(J. M. MALIK, J.)PRESIDING MEMBERNaresh/14-21



(From the order dated 06.01.2014 in First Appeal No. 241/2008 of the State Consumer Disputes Redressal Commission, Madhya Pradesh )WITH IA/1620/2014 (FOR STAY)

Hindustan Coca-Cola Beverages Pvt. Ltd. Malviya Nagar, Bhopal, Madhya Pradesh And at : 3rd Floor, Orchid Centre Golf Course Road, Sector-53Gurgaon, Haryana

… Petitioner Vs.1. Purushottam Gaur S/o. Sh. Kanhaiyalal Gaur R/o District Hospital Compound Dhar Road, Indore, Madhya Pradesh 2. Sanchi Point, Proprietor Raj Kumar S/o. Sh. Kailash Panchal R/o. Dhar Road, Near Dist. Hospital Indore, Madhya Pradesh

… Respondents

BEFORE:

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

For the Petitioner : Mr. Gyanendra Sharma, Advocate

PRONOUNCED ON 21st MARCH, 2014

O R D E R

JUSTICE J.M. MALIK

1. Sh. Purushottam Gaur, the complainant, purchased a bottle of Fanta, cool drink,

on 03.05.2006, from Sanchi Point, Prop. Raj Kumar, Indore, who was arrayed as OP4 in

the complaint filed by Sh.Purushottam Gaur, on 16.06.2006. When he arrived at his

house, he noticed that there were some insects in the said Fanta bottle. He made a

complaint to OP4, who contended that it was the responsibility of Coca Cola

Company. There was a news item in the paper during the evening about this incident. The

complainant also arrayed Hindustan Coca Cola Beverages Pvt. Ltd., Bhopal, as OP1,

Hindustan Coca Cola Beverages Pvt. Ltd., Zila Rajgarh, as OP2, Hindustan Coca Cola

Beverages Pvt. Ltd., Indore, as OP3. The complainant demanded compensation in the

sum of Rs.4,01,000/-.

2. The case was contested by the Ops 1 to 3. They contended that OP4

is not their Authorised Dealer. They contended that there is no evidence

that the said bottle was actually manufactured by them. They further contended that the

product is spurious and that their Bottling Plant is of latest technology with high standard of

hygiene and there is no question of any insect entering into the bottle. The

bottles are sold after conducting a number of tests.

3. The District Forum dismissed the complaint. However, the

State Commission accepted the First Appeal filed by the complainant and granted a sum

of Rs.10,000/- in his favour and imposed costs in the sum of Rs.3,000/- upon the OPs.

4. We have heard the counsel for the petitioner at length. Our attention was invited

towards the Expert’s evidence. This is Laboratory Report, dated 12.10.2007. Its relevant

extract, runs as follows:-

Reference : Your letter dated Indore, 03.10.2007, serial number G.FO/807/07 – Your case ID 410/06 Purushottam Gaur Vs. Hindustan Coca Cola.

Dear Sir,

This is with reference to your letter dated and referenced as above.

Please note the following observations :

(a) As a part of our investigation to check whether sample bottle provided is indeed packed by the manufacturer, we procured a sample from the open market for comparison. It was found that the manner of logo printing, the colour of caps, and some of the information printed on the same, provided did not match the bottle procured from the market (this may have been due to any number of reasons). Some of the differences in details are listed below :

S/N Particular of sample bottle Particulars of marketbottle

1 Cap Colour–Orange Cap–colour- Blue

2 FANTA Logo is printed FANTA logo is printed against white swirl with

against a white block bubbles.

3 Fluid in bottle is clear Fluid in bottle is slightly turbid.

4 Apart from this marking & text on the sample bottle as well as the bottle from the open market are also different.

It is, therefore, indeterminable that the bottle is indeed the same as that of the manufacturer or not unless a control sample is provided by the manufacturer from the same batch (batch number 207).

We also understand that though the crimp cap is currently intact, it is not conclusive that the bottle had not been opened and repacked with a new cap. The manufacturer may be able to shed more light on this matter.

We hope that the above information will help. Please do let us know if there are any further queries.

Thank you and regards,

J.B. Vispute, QA Managar

Certificate of Analysis

Particular of sample submitted :

Nature Cold Drinks

(FANTA)

Your reference

No.

G.FO/807/07

Dated 03.10.2007

Batch No. BN207A CODE No. DO 482

Date of Mfg. 18.04.2006 Date of Receipt 04.10.2007

Quantify 1 Bottle Out Ref.No. 14375/07-08

Packing Glass Bottle – Sealed

Page No.

Date

1 of 1

11.10.2007

Sealed/

Unsealed

Ref.1: Puroshottam Gaur Vs. HindustanCoca Cola

Ref. 2: Case ID 410/06

Description of the ]: Orange coloured clear

Contents of glass] homogeneous (not suspension

Bottle ] form) fluid filled in Glass bottle.

Label Information

Batch No. : BN 207 A

Mfg.Date : 18.04.06 13:44

Quantity : 200 ml

“Foreign Matter : PRESENT

The visual examination of bottle shows one large

Insect (approximately sized 10mm) floating on top

of the bottle; two small insects and several insects

Body parts are suspended in the fluid.

Note : Please read this test report in conjunction

with our letter dated 12th October, 2007, and enclosed with this report.

Note :1. Date of completion of Analysis: 11.10.07

2.The Customer has not requested provided

any specification. Note Applicable.

For Choksi Laboratories Ltd”.

5. The counsel for the petitioner vehemently argued that this bottle does not belong to

them and that they have not manufactured this bottle. He

further cited an authority, Amit Swamy Vs. Coca Cola India Ltd. & Ors, II (2007) CPJ

256 (NC), the facts of which, are altogether different and the same are not applicable

to this case.

6. It must be borne in mind that onus of proof shifts on to the OPs after the receipt of

the report from the Laboratory. They did not raise any objection. They did not try to help the

Laboratory personnel. They did not even answer the

questions posed by the Incharge of the Laboratory and did not provide any assistance

to the Laboratory personnel. Mere saying that OP4 has no connection with them, is not

enough. They should have made an enquiry as to why this bottle was sold by

OP4. OP4 could have given the answer from where he had purchased this

bottle. No efforts were made by OPs 1 to 3, regarding the origin of that bottle. Prima

facie, it appears that this bottle belongs to OPs 1 to 3. However, they

have failed to rebut the evidence against them. They must find out as to who

is copying their bottle. The control sample was never provided by the OPs to the

Laboratory Incharge. The manufacturer could not help as to where the bottle had been

opened and re-packed with a new cap. The OPs could have appointed their own

Expert to find out, whether, the bottle in question, belonged to them or not?. The question

is, who could manufacture the bottles on behalf of OPs 1 to 3. Such like incidences,

come to light, immediately. The petitioner is conspicuously silent about the same. The

silence on their part is pernicious. The case against OPs 1 to3 stands proved. The revision

petition, being without merit, is hereby dismissed. No order as to costs.

.…..…………………………


.…..…………………………

(DR. S. M. KANTIKAR) MEMBER

dd/9


FIRST APPEAL NO. 277 OF 2009(From the order dated 10.06.2009 in CC No. 5 of 2005 of Uttarakhand State Consumer Disputes Redressal Commission, Dehradun)

Megarthi Malik S/o Vijender Singh R/o Village Baram Pur Jatt. Pargana, Mangalour Tehsil Roorkee, Distt. Haridwar

… Appellant/Complainant

Versus

1. Life Insurance Corpn. of India Branch Deoband, Distt. Saharanpur U.P. Through its Branch Manager

2. Life Insurance Corpn. of India Divisional Office, Dehradun Through Divisional Manager

… Respondents/Opp. Parties (OP)

BEFORE:

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

For the Appellant : Mr. Jatin Sapra, Advocate

For the Respondents : Mr. U.C. Mittal, Advocate

PRONOUNCED ON 21st March, 2014

O R D E R


This appeal has been filed by the appellant against the order dated 10.06.2009

passed by the Uttarakhand State Consumer Disputes Redressal Commission, Dehradun (in

short, ‘the State Commission’) in CC No. 05 of 2005 – Megarthi Malik Vs. Life

Insurance Corpn. of India & Anr. by which, while dismissing complaint, complainant was

allowed to seek remedy in the civil court.

2. Brief facts of the case are that complainant/appellant’s uncle Vinod Kumar

obtained insurance policy from OP-respondent for a sum of Rs.10,00,000/- on 28.3.2003

and complainant was nominee in the policy. Assured died in the road accident on

17.5.2003. Complainant submitted claim, but OP repudiated claim on the ground of

deliberate mis-statement and withholding correct information regarding income. Assured

had income of Rs.4,30,000/- p.a. from agriculture, milk business and purchase and sale of

old tractors. Alleging deficiency on the part of OP, complainant filed complaint before State

Commission. OP resisted complaint and submitted that brother of deceased reported that

complainant’s uncle Vinod Kumar’s death did not occur on account of accident, but he was

murdered and his income was only Rs.55,000/- p.a. It was further submitted that insurance

for huge sum was taken by insured with malafide intention and claim involves complicated

and complex questions of fact which cannot be adjudicated in summary proceedings and

prayed for dismissal of complaint. Learned State Commission after hearing both the parties

dismissed complaint and allowed complainant to avail remedy from the competent court of

civil jurisdiction against which, this appeal has been filed.


4. Learned Counsel for the appellant submitted that it was a clear case of deficiency in

service in repudiating insurance claim even then State Commission committed error in

dismissing complaint and directing complainant to seek remedy from the civil court; hence,

appeal be allowed and impugned order be set aside and amount of policy may be awarded

to him. On the other hand, learned Counsel for the respondent submitted that order passed

by learned State Commission is in accordance with law; hence, appeal be dismissed.

5. Normally insurance coverage is taken either for the

security

of family members or for tax saving. Admittedly, assured was unmarried and he was also not income tax payee. Perusal of record further reveals that within two months of obtaining policy assured Vinay Kumar @ Vinod Kumar died under mysterious circumstances and learned State Commission rightly observed as under:

“Having heard the learned counsel for the parties in the light of the facts, circumstances, material on record and the legal aspects of the case, we may state at the outset that the claim under the above policy of insurance involves complicated and complex questions of fact, which are pregnant with meaningful suspicion and, therefore, the complaint based on such facts, cannot be adjudicated in summary proceedings and the complainant is to be relegated to seek remedy as

is available to him according to law from a competent court of civil jurisdiction. To avoid recording of any expression of opinion, we prefer to detail following

glaring aspects of the case, those persuaded us to arrive at the above-mentioned conclusion:

(a) Sh. Vinay Kumar @ Vinod Kumar aged about 49 years purchased the insurance policy for the first time in his life and for a huge sum of Rs. 10,00,000/-.

(b) He was resident of Village Brahampur, Post Office Gurukul Narsan, District Haridwar of State of Uttarakhand and whereas, the proposal for purchasing the policy of insurance was made from Tehsil Deoband, District Saharanpur in the State of Uttar Pradesh and reason for which was not brought to light.

(c) Life assured had shown his annual income as Rs. 1,80,000/- from agriculture, as against which, on the basis of the revenue records, the revenue authorities, on inquiry, submitted report with the insurer that the annual income of Sh. Vinay Kumar from agriculture was Rs. 55,000/-.

(d) The policy for sum of Rs. 10,00,000/- carried annual premium of Rs. 60,858/-, as against annual income on investigation found to be Rs. 55,000/- only.

(e) Policy of insurance commenced from 28.03.2003 and the life assured allegedly died under suspicious circumstances in less than two months in a motor accident on 17.05.2003.

(f) Complainant lodged the FIR after four days on 21.05.2003, stating therein that his uncle, the life assured had left the house in the evening of 16.05.2003 by saying that he is going out of village for three or four days. It was not mentioned as to what was the destination or the place where the life assured wanted to visit for these 3 – 4 days. Report further states that one Sh. Rampal Singh, Ex-Pradhan of Village Mannakheri told the complainant that on 17.05.2003, a person met with a motor accident and dead body of the victim had been taken away by police of P.S. Mangalour. The complainant thereafter went to the police station and alleged to have identified from the photograph and clothes that the victim was his uncle, the life assured.

(g) Sh. Rampal, who was alleged to have given information about the motor accident, filed affidavit and though knew the complainant from before, did not make an averment that after accident, the life assured was identified by him. His credentials and correctness of the statement need probe on oral examination on oath.

(h) Post-mortem report of an unknown male mentioned the cause of death as shock and hemorrhage due to antemortem injuries, which needed to be affirmed from the statement of the medical officer as to whether or not the antemortem injuries were caused in a motor accident.

(i) None has been named or mentioned as eye-witness of the alleged motor accident, in which the life assured allegedly suffered injuries, resulting in his death.

(j) Life assured had three brothers, one of whom Dr. Prem Chand Shastri, during investigation by the LIC, came forward and averred in the affidavit that life assured was unmarried; that the life assure was being treated and kept just like a domestic servant by another brother Vijender, whose son is the complainant – nominee and that probably the death of life assured was homicidal and not as a result of injuries in a motor accident.

(k) This brother of the life assured also submitted a representation with the Senior Superintendent of Police, Haridwar on 07.06.2003, wherein serious doubts were raised about the death of a person, who was stated to be the life assured and he apprehended that probably his brother, the life assured was murdered.

(l) Complainant and two witnesses Sh. Ranjeet Singh and Sh. Kanwarpal in their affidavits averred that the life assured had other source of income, namely, from purchase and sale of the old tractors and from milk business and their claim also need probe on their oral examination on oath.

(m) The claim, after investigation was repudiated by the LIC and the view was also upheld by the Zonal Committee of LIC after consideration of all relevant facts”.

6. Looking to the various aspects to be considered while deciding complaint, learned

State Commission rightly dismissed complaint and directed complainant to seek remedy

from competent court of civil jurisdiction. This Commission in Complaint No. 217/2006

– Bhagwanji D. Patel & Anr. Vs. The Chairman & Managing Director, Indian

Bank decided on 6.5.2011 after referring following judgments of Hon’ble Apex Court –

(2000) 2 SCC 1 – Synco Industries Vs. State Bank of Bikaner & Jaipur

and Ors. and 2006 (134) Company Cases 103 (SC) – Oriental Insurance Co. Ltd.

Vs. Muni Mahesh Patel directed complainant to approach civil court of competent

jurisdiction.

7. Looking to the complex question of death of assured in mysterious circumstances and

other factors mentioned in the order of learned State Commission, we do not find any

illegality in the impugned order and appeal is liable to be dismissed.

8. Consequently, appeal filed by the appellant is dismissed with no order as to costs.

..……………Sd/-……..………

(K. S. CHAUDHARI, J)

PRESIDING MEMBER

………………Sd/-.……………

(DR. B. C. GUPTA)

MEMBER

k

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

REVISION PETITION NO.2325 OF 2011

(Against order dated 14.1.2011 in First Appeal No.A/10/828 of Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

Dr. Anshu Sanjay Sharma, W/o Shri Sanjay Sharma, M-87, 2nd Floor, G. K. Part-I, New Delhi 110048

….. Petitioner

Versus

M/s Royal Sundaram Alliance Insurance Company Limited, Having its registered office at 21, Patulos Road, Chennai-600002 And Claims and Branch Office at Delhi “C” Wing, 201-204, 2nd Floor, Hiranandani Business Park, Powai Mumbai-400006 Maharashtra

…. Respondent

BEFORE

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


For the Petitioner : Mr. Aastha Tyagi, Advocate

For the Respondent : Mr. P.K. Seth, Advocate

Pronounced on 24th March, 2014

PER MR JUSTICE V.B.GUPTA, PRESIDING MEMBER

ORDER

Being aggrieved by order dated 14.01.2011, passed by Maharastra State Consumer

Disputes Redressal Commission, Maharashtra, Mumbnai in (Appeal No. A/10/828),

Petitioner/Complainant has filed this revision petition.

2. Brief facts of this case are, that petitioner’s vehicle MH-02-NA-1995 got submerged in

water due to extra ordinary floods on 26th and 27 July, 2005. As a result thereof, the vehicle

sustained damages including to its engine. It is alleged that vehicle was repaired at

Patel Auto incurring total expenditure of Rs.4,50,000/-.It is further stated that those repairs

were carried out on the assurance from the Surveyor-Mr.Piyush Lohar appointed by

Respondent/Opposite Party. When petitioner lodged its claim with the respondent, they only

offered to pay a sum of Rs.1,72,361/- towards full and final settlement of her claim.

Petitioner did not agree to that amount and filed a consumer complaint before the Additional

Consumer Complaint Redressal Forum, Mumbai(for short, ‘Consumer Forum’).

3. The complaint was contested by the respondent stating in its written statement that

there was no tie-up arrangement with the repairers chosen by the petitioner herself. Under

these circumstances, respondent had no responsibility for the acts and/or omissions of the

petitioner’s repairer. Respondent had offered a sum of Rs.1,72,361/-and sought surrender

of the salvage of repair. The claim filed by the petitioner is highly exaggerated one and as

such present complaint is liable to be dismissed.

4. Consumer Forum, vide order dated 15.7.2010, dismissed the complaint with cost.

However, it directed that the sum of Rs.1,71,361/- deposited by the respondent, be paid to

the complainant.

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

Commission, which dismissed the same, vide impugned order.

6. Hence, this revision petition.

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

8. It has been contended by the learned counsel for the petitioner, that petitioner had

produced all the relevant documents as provided by M/s Patel Auto, to the respondent to

substantiate her claim. The vehicle

was also inspected by one of the surveyor of the respondent. After getting their green

signal, only the repairs was done. The claim has been repudiated wrongly only on the

premise that M/s Auto Patel has provided inflated bills. However, as per law of subrogation,

it is specifically provided that respondent can approach the court of law for obtaining

the money from the dealer for not providing the necessary services to the insured.

9. On the other hand, it has been contended by learned counsel for the respondent, that

petitioner had not proved any of the documents with regard to repairs filed before the

District Forum. Hence, there is no infirmity or illegality in the impugned order.

10. The State Commission, in its order has observed;

“Complainant except making statement about expenditure incurred by her for repairs, failed to substantiate her case about actual repairs and, particularly, to rebut the case advanced and established by the Insurance company based upon the investigation of their surveyor cum investigator supra. Complainant Dr. Anshu Sharma also preferred not to file any affidavit on her own to substantiate her case. She solely relied upon the affidavit of Dr. Bishwandu Bardhan, her constituted attorney, whose affidavit dated 9.12.2006 is filed by way of an evidence. Probative value of the said affidavit can be well questioned since he is not the one, who has personal knowledge of the facts alleged by the complainant. Said affidavit is also not properly verified though such verification issue can be for the time being kept aside looking to the Bombay practice.

Respondent/Insurance company relied upon the affidavit of their General Manager Mr.R.Suresh to substantiate their case and which finds corroboration from the documents produced on record.

Therefore, considering all these aspects, we find Insurance company was right in settling the claim to the extent which they find it genuine and could be admissible under the insurance policy. They have communicated their assessment and offered an amount of Rs.1,72,361/- as per their letter dated Nil (Exhibit L) relied upon by the complainant herself. Letter of theInsurance company is dated 23.12. 2005 (Exhibit M) wherein Insurance company has given particulars how they worked out the liability. To this letter complainant herself had replied on 28/12/2005 (Exhibit N) and rejoinder or reply to the said letter dated 03/1/2006 (Exhibit O) was sent by the Insurance company again sticking to their earlier offer.

Thus, we find that complainant miserably failed to establish that action of Insurance company to settle the claim at a particular amount which is less than her claim, was arbitrary or erroneous and, therefore, there is a deficiency in service on the part of Insurance company. Hence, we find the appeal devoid of any substance and, holding accordingly, pass the following order:-

ORDER

Appeal stands dismissed”.

11. It is apparent from the record that complainant herself had not appeared in the witness

box nor had filed her own affidavit to substantiate her claim. Moreover, the documents

regarding repairs of the vehicle have not been proved at all. There is also nothing on record

to show, that M/s Patel Auto had appeared before the Consumer Forum to prove this fact as

to how much actual expenditure had been incurred for repairs of the vehicle.

12. Under section 21 (b) of the Act, this Commission can interfere with the order of the

State Commission where such State Commission has exercised jurisdiction not vested in it

by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its

jurisdiction illegally or with material irregularity.

13. 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 someprima 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.”

14. In view of the concurrent findings of facts given by both the fora below, no jurisdiction or

legal error has been shown to call for interference in the exercise of power under section 21

(b) of the Act. Both the fora have given cogent reasons in their order which do not call for

any interference nor do they suffer from any infirmity or revisional exercise of jurisdiction.

15. It is not that every order passed by the fora below is to be challenged by a litigant even

when the same is based on sound reasonings.

16. The present petition being meritless is required to be dismissed with cost. Accordingly,

the same is hereby dismissed with cost of Rs.5,000/- (Rupees Five Thousand only).

17. Petitioner is directed to deposit the cost by way of demand draft, in the name of

“Consumer Legal Aid Account” of this Commission, within four weeks from today. In case,

petitioner fails to deposit the cost within the prescribed period, then she shall also be liable

to pay interest @ 9% p.a., till realization.


……..……………………J


…………………………


SSB

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO.3847 OF 2012

(From the order dated 3.8.2012 in Appeal No.1468/2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

1. DLF New Gurgaon Home Developers Pvt. Ltd. DLF Centre, Sansad Marg, New Delhi-110001 Through its Senior General Manager (Legal) Ms. Poonam Madan

2. General Manager, Customer Service DLF New Gurgaon Home Developers Pvt. Ltd. DLF Centre, Sansad Marg, New Delhi-110001 Through its Senior General Manager (Legal) Ms. Poonam Madan

3. Authorised Signatory DLF New Gurgaon Home Developers Pvt. Ltd. DLF Centre, Sansad Marg, New Delhi-110001 Through its Senior General Manager (Legal) Ms. Poonam Madan

… Petitioners

Versus

1. Hari Singh S/o Shri Ram Kala R/o Village & Post Office Nathupur, Gurgaon (Haryana)

2. Sh. Narender Kalra Proprietor of M/s MXX Associates P-3/6, DLF-II, Gurgaon (Haryana)

... Respondents

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioners : Mr. H.L. Tikkoo, Sr. Advocate

Alongwith Mr. Pritpal Nijja, Advocate

And Mr. Pranav Akshar Kapur, Advocate

For the Respondent-1 : Mr. Rajeev Chhibber, Advocate

For the Respondent-2 : Ex-parte (Vide order dated 6.3.2014.)

PRONOUNCED ON: 24th March, 2014

ORDER

(PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER)

This revision is directed against the order of the State Consumer

Disputes Redressal Commission Haryana (hereinafter referred to as State Commission)

dated 03.08.2012 whereby the State Commission dismissed the appeal of the petitioners

(OP Nos. 1, 2 & 4) and confirming the order of the District Forum Gurgaon.

2. Briefly stated facts relevant for the disposal of this revision petition are that the

respondent/complainants filed a consumer complaint claiming that he applied for a

residential flat with super area of 1760 sq. ft. in the project launched by the petitioners

known as New Town Heights, DLF Gurgaon, Sector 90. The flat was booked through

respondent no.2 (OP No.3). Booking amount of Rs.5,00,000/- was

paid alongwithapplication vide cheque dated 08.02.2008 drawn on Oriental Bank of

Commerce, Tagore International School Branch, Qutub Enclave, Gurgaon. The

respondent complainant had also applied for one parking slot but there was no demand for

preferential location. It is the case of the complainant that the petitioners/opposite parties

instead of allotting him an apartment in “New Town Heights, Sector 90, Gurgaon”, allotted

him apartment No.GBB 080 alongwith two parking slots in another project with the similar

name located in Sector 91 Gurgaon and demanded further payment of Rs.10,62,500/-. The

complainant was not interested in the allotment of flat in the project at Section 91, so he

sent a legal notice to the opposite parties seeking refund of his money. The opposite

parties failed to refund the booking amount. Claiming this to be deficiency in service, the

respondent complainant approached the District Forum, Gurgaon.

3. The petitioners opposite parties no. 1, 2 & 4 in the written statements took the stand

that initially they had launched a scheme under the name “New Town Heights in Sector 90

Gurgaon.” The scheme was a great success. Therefore, the petitioner

no.1 company launched other scheme under same name in Sector 91 Gurgaon. According

to the petitioners, the complainant respondent had actually booked a flat in “New Town

Heights Sector 91, Gurgaon” but due to inadvertence the marketing department of the

opposite party company used the printed application form relating to sector

90 project without making necessarycorrection by striking out Sector 90 Gurgaon and

replacing it with Sector 91 Gurgaon. According to the petitioners the booking pertaining to

“New Town Heights Sector 90, Gurgaon” was already closed on 07.02.2008 and the

complainant respondent who had applied for allotment on 08.02.2008 could not have

booked the flat in sector 90 project. The petitioners have admitted that a sum of Rs.5.00

lakh was deposited by the respondent alongwith his application form for allotment of

apartment having super area of 1760 sq. ft. alongwith parking. It is alleged that since no

apartment of 1760 sq. ft. was available in the project at Sector 91, with the consent of the

complainant he was allotted a bigger size apartment having super area of 2125 sq. ft. The

OPs have claimed that they sent various letters dated 16.04.2008, 03.05.2008, 10.05.2008

and 04.06.2008 informing the respondent complainant about the allotment but the

complainant remained silent and instead of making payment as per the demand, he sent a

legal notice on 09.06.2008. The petitioners claim that the complainant never objected for

allotment of apartment measuring 2125 sq. ft.in Sector 91 project and the complaint has

been filed in order to wriggle out of the terms and conditions of the contract between the

parties. Thus, the sum and substance of the stand of the petitioners is that they have acted

strictly in terms of the contract and there is no deficiency in service.

4. District Forum on consideration of the pleadings as also the evidence adduced,

allowed the complaint. Relevant portion of the order of the District Forum reads as

under:“We have heard the parties and appraised the material on record carefully. There is no denial of the facts that initially the opposite parties have launched their scheme - New Town Heights, DLF, Gurgaon in Sector 90, Gurgaon for apartments with super area of 1760 sq.ft.. It is admitted fact that the complainant has applied for it vide his Application (Annexure-A1) by depositing a sum of Rs. 5,00,000/-vide Cheuqe dated 8.2.2008 for super area of 1760 sq.ft. and in the scheme New Town Heights, DLF, Gurgaon in Sector 90, Gurgaon is very much mentioned in it. Copy of Application Form is (Annexure A-1). Even the opposite parties have also further admitted that due to success of their first scheme of Sector-90, Gurgaon, they have immediately launched a new scheme under the same name and style of New Town Heights, DLF, Gurgaon in Sector 91, Gurgaon with a bigger area of 2125 sq.ft. (two parking spaces) instead of one on a preferential location with higher rates. Thus, opposite party has instead of allotting the apartment for which the complainant has applied on 8.2.2008 has started corresponding with the complainant informing him about the Provisional Allotment of Apartment No.4 on 8th floor in building No. GBB, Phase-III New Town Heights, DLF, Gurgaon in Sector 91, Gurgaon vide their letter dated 29.3.2008. (Annexure-A5) by issuing the receipt of his payment as per his application. But as per his application, he has never applied for it (Annexure A1) on 8.2.2008. Thereafter, the opposite party has started writing time and again about allotment of the said apartment to him vide their letter dated 16.4.2008 (Annexure A-4) and letter dated 3.5.2008 (Annexure A-6) by asking him to make the payment in 2.5 years in installments as per payment plan and demanded Rs.10.62,500/-. Finally, legal notice was sent by the complainant dated 9.6.2008 (Annexure A-8). Postal receipt dated 19.7.2008 (Annexure A-20) and so on. But the opposite party started giving reminder of their said disputed allotment vide letter dated 27.6.2008 (Annexure A-18). Reply of the legal notice of the opposite party dated 27.8.2008 (Annexure -29) regarding impugned allotment is also on the file. In view of the above discussion, we are of the considered opinion that though the complainant has applied for a smaller Apartment measuring 1760 sq.ft. with one Parking only in Sector 90, DLF, Gurgaon which found corroboration from the documents placed on record by the complainant but the respondents have wrongly and illegally has allotted the complainant an

apartment of bigger size of 2125 sq.ft. with two parking and on preferential location though in the same name of scheme of New Town Heights but in Sector -91, DLF Gurgaon with higher rates and higher price and have casually informed him about allotment on 29.3.2008, 16.4.2008, 3.5.2008 asking him to pay accordingly. The respondents, however, failed to seek the consent of the complainant in writing about changing the allotment of smaller Apartment of Sector 90 with one Parking as against the bigger Apartment for which the complainant has never applied. The onus to prove was on the opposite party that the complainant has changed his option from smaller apartment to bigger apartment and in their different scheme and in different Sector at higher price which it failed to discharge. Consequently, the opposite party is deficient in service by wrong allotment of the apartment to which the complainant has never applied vide his application dated 8.2.2008 (Annexure A-1). Thus, the complainant is entitled to allotment of an apartment measuring 1760 sq.ft. with one Parking in New Town Heights Sector-90,. DLF, Gurgaon with same terms and conditions as of that scheme within 30 days failing which the complainant is entitled to refund of his amount of Rs.5,00,000/- deposited by him with them alongwith his application on 8.2.2008 with interest at the rate of 12% p.a. from the date of deposit till its realization. The complainant has also been harassed by the opposite party causing mental agony, facing litigation since long. Thus, he is entitled to compensation of Rs.20,000/- and litigation charges of Rs.3000/-.”

5. Being aggrieved of the order of the District Forum, the petitioners/opposite

parties approached the State Commission in appeal. State Commission after hearing

the parties dismissed the appeal with following observations:“The controversy between the parties is with respect to the allotment of Apartment No.GBB084 alongwith its parking (two) in New Town Heights, DLF, Gurgaon in Sector 91, Gurgaon instead of allotment of apartment in New Town Heights, DLF, in Sector 90, Gurgaon for a super area of 1760 sq. ft. The complainant had applied for allotment of apartment in New Town Heights, DLF, in Sector 90, Gurgaon, for a super area of 1760 sq. ft. but the appellants-opposite parties without taking the consent of the complainant had allotted him bigger size apartment of 2125 sq. ft. in Sector 91, Gurgaon. The appellants-opposite parties have failed to prove on the record by leading any cogent and convincing evidence to show that they had taken the consent of complainant for allotment of bigger size apartment in Sector 91, Gurgaon. Thus, the appellants-opposite parties have rightly been held deficient in service.

Having taken into consideration the facts and circumstances of the case and the finding recorded by the District Forum, we hardly find any ground to interfere in the impugned order.”

6. Shri H.L. Tikkoo, Sr. Advocate for the petitioners has assailed the impugned order

of the Fora below on the ground that the State Commission has failed to appreciate that this

is a case of bonafidemistake. Actually the complainant had applied for booking of a flat in

“New Town Heights, Sector 91, Gurgaon” but due to inadvertence the left over application

forms for booking of flats in “New Town Heights, Sector 90, Gurgaon” was used without

making necessary deletion and correction in respect of sector number. It is argued that

initially the complainant had applied for allotment of a flat of 1760 sq. ft. super area and

since flats of said area were not available in the project, with the knowledge and consent of

the complainant, he was allotted a larger flat having area of 2150 sq. ft. super area with

two parkings at a preferential location. It is further argued that the State Commission has

failed to appreciate that the complainant is a speculator. He has booked the flat with the

intention to earn profit by selling it in the event of appreciation of the price and when the

anticipated appreciation did not take place the complainant filed the consumer complaint

with a view to wriggle out of the contract which confer the right upon the petitioners to forfeit

the amount of Rs.5 Lakhs deposited by him alongwith the application. It is also argued that

the dispute raised in this complaint relates to the breach of terms and conditions of the

contract. Therefore, the Consumer Fora has no jurisdiction to deal with the matter. In this

regard, counsel for the petitioners has relied upon the judgments of Sourabh Prakash vs.

DLF Universal Ltd. (2007) 1 SCC 228 and BharathiKnitting Company vs. DHL

Worldwide Express Courier Division of Airfreight Ltd. (1996) 4 SCC 704.

7. On perusal of photocopy of the application form for booking of flat, it transpires that

the flat in question was booked through the broker Narender Kalra. The application form

admittedly is in respect of booking of flat in “New Town Heights, Sector 90, Gurgaon” Stand

of the petitioners is that actually the complainant had booked the flat in Sector 91, Gurgaon

but due to inadvertence the left over forms pertaining to the booking in the project at Sector

90 was used without making necessary corrections. The onus of proving this fact obviously

is on the petitioners. This controversy could easily have been resolved by examining the

broker Narender Kalra who is the best person to prove whether the respondent complainant

had applied for booking of flat in “New Town Heights, Sector 90, Gurgaon” or Sector

91. Narender Kalrahas not been examined by the petitioners. Since the petitioners have

withheld the best evidence, we are inclined to draw an adverse presumption that had the

broker Narender Kalra been examined as a witness, his version would not have supported

the claim of the petitioners.

8. Looking from the other angle, on perusal of application form, we find that

complainant had applied for apartment of 1760 sq. ft. super area alongwith one parking. As

per the petitioners, 1760 sq. ft. flat was not available in Sector 91. Therefore, with the

consent of the respondent complainant he was offered an apartment of excess area with

two parking. The petitioners have not pointed out any evidence to indicate that non

availability of the flats of 1760 sq. ft. was ever brought to the notice of the complainant and

his consent was obtained before allotting the flat of excess area with two parking to the

complainant and demanding further payment from him. Thus, in our considered view,

allotment of flat of higher area with two parking lots by the opposite parties to the

complainant against his request for allotment of apartment of 1760 sq. ft. can at best be

taken as counter offer to the application of allotment submitted by the complainant and it

cannot be termed as a concluded contract unless the proposal is accepted by the

complainant. Thus, in our view petitioner have no right to forfeit the amount of Rs.5.00 lakh

deposited by the petitioner at the time of applying for the flat. The judgments relied upon by

the petitioners, in our considered view, are of no avail to the petitioners for the reason that

no concluded contract for allotment of the flat of 2125 sq. ft. with two parkings in Sector 91

project came into force.

9. Further, it is contended that the consumer complaint by the respondent/complainant

is not maintainable for the reason that he booked the flat for speculative reasons and as

such he is not a consumer. In support of this contention, learned counsel for the petitioners

has drawn our attention to the letters dated 16.4.2008, 3.5.2008, 4.5.2008 and 4.6.2008 and

submitted that vide these letters respondent/complainant was informed that he has been

allotted a flat in Sector 91, DLF, Gurgaon but he deliberately did not respond to those letters

and waited for increase in property price and when there was no escalation in price, he

served the legal notice on the petitioners. There is no basis for the above-said submission.

Petitioners have failed to point out any evidence, which may lead to the conclusion that the

respondent/complainant had booked the flat for speculative reasons. Admittedly,

respondent/complainant had applied for a flat measuring 1760 sq. ft. super area with one

parking lot without option for preferential location and the petitioners/opposite parties

offered him booking of a bigger flat measuring 2150 sq. ft. super area with two parkings and

also of preferential location. This was not what the complainant had applied for. Therefore,

the refusal of the complainant to accept the offer of the petitioners in Sector 91 cannot be

taken as a decision motivated by the speculative design.

10. It is further argued that the orders of the Foras below are without jurisdiction for the

reason that the value of the flat was much beyond pecuniary jurisdiction of Rs.20 Lakhs of

the District Forum. We do not find merit in this contention. On perusal of complaint, we find

that the complainant has prayed for direction to the petitioners to withdraw the demand of

payment for second parking as also demand of Rs.10,62,500/- for preferential location or to

return his booking amount of Rs.5 Lakhs with interest. Looking from any angle, the claim in

the complaint is not beyond Rs.20 Lakhs. Therefore, we find no merit in this contention that

the District Forum has acted without pecuniary jurisdiction in allowing the complaint.

11. In view of the discussion above, we do not find any infirmity or illegality in the

impugned orders of the Foras below which are well reasoned and based upon the pleadings

and the evidence adduced by the parties. The petitioners have not been able to point out

any jurisdictional error or material irregularity, which may persuade us to interfere with the

impugned order in exercise of the revisional jurisdiction.

12. Revision petition is, therefore, dismissed with cost of Rs.25,000/- (rupees twenty five

thousand only) to be paid by the petitioners to the respondent/complainant.

………………Sd/-..………..

(AJIT BHARIHOKE, J.) PRESIDING MEMBER

……………Sd/-…..………..

(SURESH CHANDRA) MEMBER

Raj/16


REVISION PETITION NO. 897 OF 2011 (Against the order dated 12.11.2010 in Appeal No.1038/2004 of the State Commission, Kerala)

VASNATHA SAMKUTTY VASANTHA BHAVAN PAZHAVANGADI (P.O.) RANNI VILLAGE RANNI TALUK – 689673

....... Petitioner

Versus

1. THE MANAGER/DIRECTOR MARTHOMA MEDICAL MISSION CENTRE ANGADI, P.O. RANNI

…... Respondent No.1

2. DR. P.V. GEORGE, M.S. SURGEON RANNI MARTHOMA MEDICAL MISSION CENTRE ANGADI, P.O. RANNI

…...Respondent No.2(Note : Respondent No.2 deleted, vide order dated 11.3.2014)

BEFORE:

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


For the Petitioner: Mr. Biju P.Raman, Advocate with Ms. Usha Nandini V., Advocate

For Respondent: Mr. Mohit Abraham, Advocate with Mr.B.S.Kanwar, Advocate for R-1

Pronounced on : 25th March, 2014 ORDERPER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER

Petitioner/Complainant has filed this revision petition under section 21(b) of

the Consumer Protection Act, 1986 (short, ‘Act’) challenging order dated 12.11.2010

passed in (First Appeal No.1038 of 2004) by Kerala State Consumer

Disputes Redressal Commission, Thiruvananthapuram (short, “State Commission”).

2. Brief facts are that Petitioner/Complainant was admitted in the hospital of

Respondent No.1/Opposite Party No.1 on 8.1.2000 for complaint of stomach pain. She was

examined by Respondent No.2/Opposite party No.2 and was operated for appendicitis by

him on that day itself. Subsequently, she was treated in the hospital till 15.1.2000 and was

finally discharged. Since, the condition of petitioner was very serious so on reference from

respondent hospital, again she was admitted in General Hospital, Pathanamthitta. She was

treated there till 29.1.2000 by Dr.K.T.Sebastian. Thereafter, she was treated as an out-

patient in the same hospital till 28.3.2000. Again petitioner got serious pain and was

admitted in General Hospital on 28.3.2000 and discharged on 6.4.2000. The petitioner is

continuing the treatment as out-patient. It is stated that petitioner had suffered huge

monetary loss and mental agony for more than seven months. It is further alleged that the

loss sustained was due to the rash and negligent and irresponsible act and operation

treatment of the respondents. Thus, petitioner filed a complaint to get reimbursement of

treatment expenses with compensation and cost.

3. Respondent no.2 was duly served but did not appear before the District Forum.

4. Respondent no.1 in its written statement has stated that petitioner was first seen in

the O.P.D. on 8.1.2000 with history of severe abdominal pain. The patient was a

known hypertensiveand diabetic. The case was referred to respondent no.2, as acute

Appendicitis/Ruptured Appendix was suspected. That was the final diagnosis made by the

surgeon clinically. The surgery was performed by respondent no.2 on 8.2.2000 itself after

obtaining the consent of the patient and her husband. On surgery, it was found that she

was having a rapture in the intestine near to theIeocaeseal junction. Peritoneal cavity was

full of pus. Appendix could not be identified because of the infections and adhesions. So,

the pus was manually removed and after that a drain was put. The intestine was

repaired. She was carefully and properly managed with three antibiotics for control of

infection. This is the treatment which can be given by any surgeon under like

circumstances. However, the desired improvement was not seen to the satisfaction of the

patient. So, she requested for a discharge for better treatment. Thus, she was discharged

at 12 noon on 14.1.2000 at her own request and was allowed to leave the hospital even

without final payment. The averments regarding the loss suffered and expenditure incurred

by the petitioner are not true. Answering respondent is not responsible for any loss

sustained by the petitioner. The claim of the petitioner that she sustained loss due to rash

and negligent irresponsible act was denied. She was given the best treatment with utmost

care and there was no deficiency of service, as there was no negligence at any stage of the

surgery. Hence, respondent no.1 prayed for dismissal of the complaint.

5. District Consumer Disputes Redressal Forum, Pathanamthitta (short, ‘District Forum’)

vide order dated 11.8.2004, while allowing the complaint, passed the following directions ;

“In result, this petition is allowed with modification, thereby the petitioner is allowed to receive treatment expenses amounting Rs.7,000/- (Rupees seven thousand only) for her treatment in the hospital, respondent no.1 together compensation Rs.75,000/- (Rupees Seventy Five Thousand only) and towards treatment in the General Hospital, the petitioner is allowed to receive Rs.5,000/- (Rupees five thousand only). In addition to the said amounts, she is allowed to receive Rs.2,500/- (Rupees two thousand five hundred only) towards loss of income by way of coolly of her husband on account of his necessity to accompany the patient during her

treatment in the hospital as well as the General Gospital, Pathanamthitta. Towards other expenses in the said hospitals, she is allowed to received Rs.5,000/- (Rupees thousand only) and she is also allowed to get Rs.3,000/- (Rupees three thousand only) from the first and respondents, as the cost of proceedings. The respondent nos.1 and 2 are jointly and severally liable to pay the amounts awarded towards medical expenses, other expenses and compensation. For the medical expenses amounting Rs.12,000/- she is allowed to receive interest @ 12% per annum for that amount from the date of this petition till this date, and thereafter, at 6% interest per annum till whole payment. The respondents are directed to pay the amounts so awarded as per this order within two months from the date of receipt of this order, failing which the interest for the medical expenses will follow at 9% per annum till whole payment.”

6. Aggrieved by the order of the District Forum, respondent no.1 filed an appeal before

the State Commission which allowed the same, vide impugned order.

7. Hence, this revision petition.

8. We have the heard learned counsel for the parties and have gone through the record

of the case.

9. During pendency of this petition, petitioner filed an application seeking permission to

delete respondent no.2 from the array of the parties, on the ground that respondent no.2,

(doctor) had passed away during the pendency of the appeal. Application for deletion of

respondent no.2 was allowed, vide order dated 11.3.2014 passed by this

Commission and name of respondent no.2 was deleted from the array of the parties.

10. It has been contended by learned counsel for the petitioner, that petitioner’s operation

was conducted by the doctor without proper diagnosis or taking proper precaution. District

Forum had rightly reached at the conclusion that the hospital had conducted the operation

in a rash and negligent manner. Further, it is contended that respondent no.2 reached at

the conclusion regarding ruptured appendicitis, without conducting the proper diagnosis or

examination like scan or X-ray. Had the proper examination being conducted, the correct

position of Appendicitis could have been marked and the same could have been

removed. Thus, State Commission had committed grave error in setting aside the order

passed by the District Forum.

11. On the other hand, it has been contended by learned counsel for respondent no.1

that there was no negligence on its part. Moreover, petitioner’s own witness had also

supported the case of the respondents.

12. The State Commission in its impugned order has observed that there was no

negligence on the part of the respondents. In this regard, relevant findings of the State

Commission are reproduced as under ;

“14. The complainant as PW1 has admitted that she was having diabetes and hypertension and she was obese at the relevant time. The complainant as PW1 or PW2, the expert doctor examined on the side of the complainant have not disputed the correctness of the entries in R1 medical records. The facts that the complainant was having ruptured intestine at ileocaecal junction and the peritoneum (abdominal cavity) was filled with pus and by doing the surgery the entire pus was removed from the peritoneum and the ruptured intestine was repaired and the complainant was treated by administering antibiotics to control the infection are not disputed. The aforesaid facts would make it clear that the second opposite party adopted proper procedure by doing an emergency surgery on 08-01-2000. Thus, the materials available on record would show that there was no sort of medical negligence or deficiency of service on the part of second opposite party Dr. P.V. George (Surgeon) and the first opposite party hospital.

15. A close study of the testimony of PW2 Dr. Sebastian would make it clear that there was no negligence or deficiency of service on the part of second opposite party Dr.P.V. Gorge, Surgeon who conducted the first surgery on the complainant. It is to be noted that PW2 Dr. K.T. Sebastian had the opportunity to conduct a second surgery on the complainant at General Hospital, Pathanamthitta. It is further to be noted that the complainant was referred from the first opposite party hospital for further treatment at General Hospital, Pathanamthitta. The complainant was referred to General Hospital, Pathanamthitta at the request of the complainant. The complainant was operated by PW2 on 30-10-2000. Ext.P7 is the discharge card issued from General Hospital, Pathanamthitta with respect to the treatment of the complainant at that hospital. It would show that the complainant was admitted in General Hospital, Pathanamthitta on 28.09.2000 and discharged on 30.10.2000. It would further show that she was treated at that hospital for incisional hernia on right side and ovarian cyst left side. It would also show that during the said surgery PW2 had also removed appendix as the patient had appendicitis on an earlier occasion. It is also recorded in P7 discharge card that the patient (complainant) was opened up on earlier occasion for appendectomy, locating appendix failed. P7 discharge card would also show that PW2 Dr. Sebastian had done appendectomy, ovarian cyst was removed and incisional hernia was repaired. There is nothing indicative of medical negligence or deficiency of service on the part of the second opposite party doctor in doing the first surgery.

16. PW2 Dr. Sebastian in his examination in chief itself deposed about P5 medical certificate issued by him. It is deposed that by the

statement in P5 certificate that during the previous surgery of appendectomy the doctor failed to locate the appendix cannot be treated as failure of surgery. He clarified that the doctor only failed in locating the appendix during the previous surgery. In cross examination PW2 admitted the fact that there may arise occasion of failure to locate the appendix due to infection and adhesions. It is also admitted by PW2 that in such a situation it is better to avoid further exploration for appendix as further attempt to locate appendix may lead to complication. PW2 during his cross examination deposed in categorical terms that there was no negligence on the part of the doctor who conducted the previous surgery on the complainant. Nowhere PW2 has deposed about any negligence on the part of the second opposite party Dr. P.V. George in doing the first surgery. According to PW2, the procedure adopted by the second opposite party Dr. P.V. George can be considered as proper procedure and there was no negligence in adopting such a procedure or method by the second opposite party. Thus, the expert witness examined on the side of the complainant has only supported the case of the opposite parties that the second opposite party doctor had done all the best possible treatment and procedure and there was no negligence or deficiency of service on the part of the opposite parties.

17. The Forum below unfortunately failed to appreciate the oral testimony of PW2 and the P5 medical certificate and P7 discharge card issued by him in their correct perspective. In effect, the complainant failed to prove the alleged medical negligence or deficiency of service on the part of the opposite parties. The Forum below cannot be justified in finding negligence or deficiency of service on the part of the opposite parties. The materials on record would only show that proper procedure was adopted by the second opposite party in doing the surgery on the complainant on 08-01-2000 and in administering further treatment for the complainant at the first opposite party hospital. So, the impugned order passed by the Forum below awarding compensation and cost to the complainant is liable to be quashed. These points are answered accordingly.

In the result, the appeal is allowed.”

13. In the context, as to what constitute ‘Medical Negligence’, Hon’ble Supreme Court

has laid down the law in “Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1” as under ;

“1. Negligence is the breach of a duty caused 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.

2. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day,

he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.

3. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

4. The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.”

5. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law my not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence,the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

6. The word ‘gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ‘grossly.’

7. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

8. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

14. In the present case, petitioner’s own witness i.e. PW2, Dr.Sebastian, the expert

doctor examined on her behalf has not disputed the correctness of the entries in R1 medical

records.

15. Further, PW2 had categorically made clear in his statement that ;

“there was no negligence on the part of second opposite party, Dr.P.V.George, who conducted previous surgery on the complainant.”

PW2 had further stated that ;

“the procedure adopted by second opposite party Dr.P.V.George can be considered as proper procedure and there was no negligence in adopting such a procedure or method by the second opposite party. Thus, the expert witness examined on the side of the complainant has only supported the case of the opposite parties that the second opposite parties doctor had done all the best possible treatment and procedure and there was no negligence or deficiency of service on the part of the opposite parties”.

16. In view of the above evidence, we have no hesitation in holding that the order

passed by the State Commission is based on sound reasonings. No jurisdictional or legal

error has been shown to us, to call for interference in the exercise of powers under Section

21 (b) of Act. Since, the State Commission has given detailed and reasoned order, it does

not call for any interference nor it suffer from any infirmity or erroneous exercise of

jurisdiction or material irregularity.

17. Thus, there is no merit in the present petition and the same is hereby dismissed.

18. No order as to cost.

…………………..………J


…………………...……….

(REKHA GUPTA) (MEMBER)

Sonia/


REVISION PETITION NO. 3850 of 2008(Against the order dated 18.07.2008 in ORi. Appeal No.A1587/05 of the State Consumer Disputes Redressal Commission, Maharashtra, Nagpur Circuit Bench) Shri Avinash S/o V. Prabhune R/o 85, S.E Railway Colony (1st lay out) Shri Nilayam Apartment Rana Pratap Nagar, Nagpur 440022 Phone 9049800158

.....Petitioner

Versus 1. Executive Engineer, Maharashtra State Electricity Distribution Company Ltd. (Formerly MSEB), Congress Nagar Division Dhantoli, Nagpur- 440012 2. Asst. Engineer, Maharashtra State Electricity Distribution Company Ltd. (Formerly MSEB), Trimurty Nagar Sub Division Trimurty Nagar, Nagpur 440022 3. Junior Engineer, Maharashtra State Electricity Distribution Company Ltd. (Formerly MSEB), Rana Pratap Nagar Complaint Centre Nagpur- 440022

........Respondents BEFORE HON’BLE MR. JUSTICE D. K. JAIN, PRESIDENTHON’BLE MR. VINAY KUMAR, MEMBER For the Petitioner : In personFor the Respondent : Mr. Ajit Bhasme & Mr. Pankaj Mishra, Advocate PRONOUNCED ON: 25/3/2014. ORDER


The matter in this revision petition arises from disconnection of power supply to the

house of the complainant on 19.8.2004. The last date for payment of this bill of Rs.1348.54

was 3.8.2004. It was paid by a cheque of 2.8.2004. The amount was debited to the bank

account of the complainant on 4.8.2004.

2. As per the complaint before the District Forum--

“11.) The complainant submits that arbitrary disconnection of electricity even after payment of the bill and without following the procedure contemplated by the Indian Electricity Act, 2003 amounts to ‘deficiency in service’ as defined u/s. 2(1)(g) of the Act. It is further submitted that the said action was also in contradiction with the conditionsprinted on the electricity bill itself. It has been specifically printed on the bill that consumer has to pay the bill on or before the due date. Since the complainant has paid the bill on 02/08/2004, a day prior to the due date (i.e. 03/08/2004) therefore it was incumbent on the O.Ps. to have verified their own record before taking such drastic step. In fact the action of O.Ps to put Complainant in the default list was illegal. The instructions printed on Bill shows that the electricity supply will be disconnected without further intimation in case arrears shown in (EKUN THAKBAKI) ARE NOT PAID WITHIN 15 DAYS. From copy of the Bill, it is evident that no arrears were outstanding against Complainant. The O.Ps were furthernegligent in not giving the notice or even intimation before disconnecting the electricity supply. The O.P. no.1 being the supervising authority of O.P. and 2 no. 3 even after receipt of the letters from the complainant, have not taken any step to redress the grievance. In fact reply dt 17/09/04 (DOC No.5)

shows that O.P. No.2 has not taken the matter seriously & O.P. No. 3 did not reply at all. Therefore the O.Ps were negligent in providing the services, which amounts to deficiency in service.12.) The Complainant further submits that the saddest part of MSEB team action is that they are not keeping any evidence of disconnection/ reconnection at Consumer level, which is highly objectionable. So it becomes difficult for consumer to lodge complaint against MSEB’s harassment. There must be several unreported cases of such disconnections. Complainant approached & requested all bottom to TOPMOST Authorities of MSEB at Nagpur Level but all efforts were found to be in vain.”

3. While allowing the above complaint, the District Forum noted that—

“3). O.P. No.1 in reply says that the bill issued to complainant on 28/07/2004 of Rs.1350/- was having last date of payment as 03/08/2004. He has accepted that complainant has paid the bill on 02/08/2008 by cheque. But the said cheque amount was debited on 04/08/2004, but O.P. has not received the bill amount on last date of bill i.e. 03/08/2004. The information about payment of above cheque was not received upto 19/08/2004 by O.P., hence his supply was disconnected. He has not done it deliberately & intentionally, whereas complainant has not produced the paid bill receipt so incidence of disconnection is happened. O.P. has further said that there is no necessity of giving notice before disconnection as it is already printed in the bills.

4.) On receipt of complaint from complainant, O.P. has issued directives to concerned officials to express apology to complainant & even after receipt of such apology letter by the complainant, complaint has filed for minor reason, hence O.P. has requested Forum to dismiss the complaint.

5.) The hearing/argument on the said matter was heard on 06/07/2005 by Forum. Complainant has represented in person whereas O.P. has argued through Advocate. Thereafter, Forum has considered Complaint of Complainant, enclosed documents, complainant’s affidavit & O.P.’s reply, their affidavit. Forum has observed following things.

6.) Complainant has enclosed DOC No. 6 as O.P.’s letter dtd 17/09/2004 with Complaint. O.P. No.1 has sent it to O.P. No.2 by taking cognizance of complaint & instructed not to repeat same in future. Similarly, O.P. No.2 has been directed to meet complaint in person for appraising the situation.

7.) Further enclosed DOC No.5, letter dtd 17/09/2005 from O.P. No.2. The O.P. has expressed apology through thee said letter 7 expressed regrets for inconvenience caused to complainant.

8.) In fact, O.P. No.1 has directed O.P. No.2 to meet the complainant & express apology, but O.P. No.2 has sent official letter & expressed apology. It is surprising to note that, O.P. No.1 letter giving directives to O.P. no.2 is of dtd 17/09/2004 & O.P. No.2 apology letter is also of 17/09204, i.e. of the same date, What promptness (!), Especially, when the Complainant has made complaint regarding disconnection on date 20-21, whereas upto 25/08/2004, O.P. could not even trace whether the complainant has paid the bill or not. But as soon as higher officials had issued directives through letter dated 17/09/2004, sent letter to the complainant expressing the apology on the same date, which is absolutely amazing.”

4. The complainant filed an appeal before the State Commission,

seeking enhancement of compensation. It was dismissed with the observation that the

matter ought to have ended with the apology from the OPs.

5. The order of the State Commission is now challenged by the complainant in this

revision petition. The case of the revision petitioner is that it is not a matter of mere

disconnection of electricity. It shows how the consumer routinely suffers as the hand of the

respondent. The primary ground of challenge is that the State Commission should have

gone into the basic question whether the law, as laid down in Section 56 of the Electricity

Act 2003, has been followed by the respondent before disconnection of power supply to his

house.

6. Section 56 deals with disconnection of supply in default of payment. The

provision reads as follows:-

“56. Disconnection of supply in default of payment- (1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days’ notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer:

Provided that the supply of electricity shall not be cut off if such person deposits, under protest,-

(a) An amount equal to the sum claimed from him, or

(b) The electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months,

Whichever is less, pending disposal of any dispute between him and the licensee.

(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.”

7. The petitioner, arguing his case in person, stressed that the above provision lays

down a mandatory requirement of notice in writing of not less than 15 clear days before the

power supply is cut off. In his case, no notice of any kind was issued, which is a clear

violation of Section 56, mentioned above. As per the petitioner, the entire episode of

disconnection on 19.8.2004 and subsequent reconnection with apology by the respondents

would have been avoided, had the requirement of law under Section 56 been complied with

and had notice been served following the procedure laid down under Section 117 of the Act.

8. Mr. Ajit Bhasme, learned counsel for the respondents, has argued that the

requirement of law has not been ignored. The last date for payment in this case was

3.8.2004 and the disconnection was admittedly carried out on 19.8.2004, which was a clear

15 days from the last date for payment of the bill. Learned counsel referred to the relevant

bill in this behalf, which has the following notice printed on it:-

“NOTICE- The amount of Total Arrears Indiacted in this bill is to be deposited within 15 days from the receipt of this bill otherwise as per Indian Electricity Act 2003, Section 56 (1), supply will be disconnected without giving further notice. Thereafter for restoration of electric supply, the amount as per rules will have to be deposited.”

9. Having carefully considered the bill in question and the other records submitted

before us, we do not accept the argument of learned counsel as correct representation of

the matter. Clearly, the notice printed on the bill is in relation to the amount mentioned as

‘arrears’ therein. The bill itself shows that there was no arrears, as on that day. As a matter

of fact, the bill shows negative arrears of Rs.2.74. It is for this reason that the net payable

amount of the bill is shown as Rs.1348.54 as against the gross bill amount of

Rs.1351.28. We therefore, agree with the contention of the revision petitioner that had the

respondents issued a notice under Section 56, his reply would have clearly enlightened

them on the payment of the bill, well before the respondents chose to disconnect the power

supply. Even from the pleadings of the respondents before the District Forum, it is clear

that payment of the amount of Rs.1348.54 in the relevant bill was not verified before

disconnection of power supply.

10. It is necessary to observe here that even if the respondents entertained an unverified

and factually incorrect impression that the bill had not been paid, the act of disconnection of

power supply on 19.8.2004 was in total disregard and violation of the requirement under

Sections 56 and 117 of the Electricity Act, 2003. The impugned order has not gone

into these aspects of the matter. It has placed complete reliance on the fact that the power

supply was restored on 24.8.2004 and a letter of regret for disconnection had been sent to

the complainant. In our view, the conduct of the respondents deserved to be viewed much

more seriously. Precipitate action for disconnection of power supply, without any evidence

of prior verification of payment of the bill, was a serious lapse on the part of the

respondents. It was compounded further by the fact that even procedurally the action was in

flagrant violation of the requirement of Sections 56 and 117 of the Electricity Act, 2003.

11. Consequently, the revision petition is allowed and the impugned order is set aside.

Further, in the facts and circumstances of this case, we also deem it necessary to enhance

the quantum of compensation. Accordingly, the amount of compensation is enhanced from

Rs.1000/- to Rs.5000/- (Rupees Five Thousand) and the cost of Rs.1000/- awarded by the

District Forum is enhanced to Rs.2000/- (Two Thousand).

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

…..…………….Sd/-…….……(VINAY KUMAR) MEMBERS./-

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO.3763 OF 2013 (From the order dated 23.8.2013 in Appeal No.1053/2012 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

ICICI Prudential Life Insurance Co. Ltd. ICICI Pru Life Tower, 1089, Appa Saheb Maratha Marg, Prabha Devi, Mumbai 400025

Also at:

ICICI Prudential Life Insurance Co. Ltd. Apex Mall, 2nd Floor Vidhan Sabha Marg, Lal Kothi Scheme, Tonk Road, Jaipur, Rajasthan

… Petitioner

Versus

Devki Nandan Ojha C/o Sh. Madan Lal Kumawat H.N. 407, Ranjeev Vihar Colony, 200 feet, Ajmer Bypass, Jaipur Presently R/o H.N.3, Jagdishpur, Near 200 Feet Ajmer Bypass, Jaipur, Rajasthan

... Respondent

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner : Mr. Avanish Kumar, Advocate

For the Respondent : In person

PRONOUNCED ON 25th MARCH, 2013

ORDER

(PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER)

The petitioner being aggrieved of the order dated 23.8.2013 passed by

Rajasthan State Consumer Disputes Redressal Commission, Jaipur (hereinafter

referred to as “the State Commission) in appeal No.1053/2012 whereby the State

Commission dismissed the appeal preferred by the petitioner herein against the order of

the District Forum has preferred this revision.

2. Sh. Avanish Kumar, Advocate, learned counsel for the petitioner has contended

that the impugned order of the State Commission is not sustainable for it is a non-

speaking order wherein the pleas taken by the appellant in the appeal have not been

addressed to. Thus, it is urged that the impugned order be set aside and the matter be

remanded back to the State Commission for hearing of appeal on merits.

3. Respondent on the contrary argued in support of the impugned order.

4. We have considered the rival contentions and perused the record. In order to

properly appreciate the contentions of the parties, it is necessary to have a look at the

relevant portion of the impugned order, which reads thus:“Hence the order dated 25.06.2012 passed in complaint No.698 by

District Forum, Jaipur-II, Jaipur is upheld and the appeal of the

appellant is dismissed on merit. If the appellant in the aforesaid

appeal hasdeposited any amount before the District Forum,

then liberty is given to it to take refund of the said amount. The

appellant has been given one month’s time from today

to comply the order passed by the District Forum.”

5. On reading of the aforesaid order, it is evident that the State Commission while

dismissing the appeal preferred by the petitioner has neither referred to the facts of the

case nor it has referred to the grounds of challenge to the order of the District Forum nor

it has given any reason for rejection of those grounds and dismissal of the

appeal. Thus, the impugned order being non-speaking is not sustainable. Similar issue

came up before the Supreme Court in the matter HVPNL vs. Mahavir (2004) 10 SCC

86 wherein the Supreme Court while dealing with the validity of the similar order passed

by the State Commission set aside the order of the State Commission, Haryana with the

following observations:“5. The State Commission of Haryana did not give any reason

for dismissing the first appeal. That order was confirmed by

the National Commission. Inasmuch as there was no discussion

by the State Commission in the first appeal and for the reasons

given by us in the order which we have passed on 21-7-2000, the

orders of the National Commission and the State Commission are

set aside and the matter is remanded to the State Commission to

dispose of the case in accordance with law and in the light of the

order passed by us on 21-7-2000 after giving notice to the parties.

6. The appeal is allowed and disposed of

accordingly. There will be no order as to costs.”

6. In view of the ratio of the aforesaid judgment of the Supreme Court, the impugned

order the impugned order is set aside. The matter is remanded back to the State

Commission with thedirection to hear the parties on merits and dispose of the appeal by a

reasoned order referring to the facts of the case as also the arguments of the respective

parties. Parties are directed to appear before the State Commission on 21.5.2014. The

State Commission is requested to dispose of the appeal within three months from the

appearance of the parties before there.

………………..………..

(AJIT BHARIHOKE, J.)

PRESIDING MEMBER

………………..………..

(SURESH CHANDRA)

MEMBER

Raj/



(From the order dated 06.12.2006 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in Appeal no. 50 of 2005)

Oriental Insurance Company Ltd. Head Office, Oriental House Asaf Ali Road, New Delhi Through its Chief Manager

Petitioner

Versus

Shri Rajnesh Tandon Son of Late Shri Pannalal Tandon Resident of Thistle Bank Estate The Mall Shimla – 171003 Himachal Pradesh

Respondent

BEFORE:



For the Petitioner Mr R B Shami, Advocate


ORDER REKHA GUPTA



Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (‘the State

Commission’) in Appeal no. 50 of 2005.

2. The brief facts of the case as per the respondent/ complainant are that the respondent

purchased a TATA Sumo Maxi Cab registration no. HP 02 – 8314 in November 1997.

Thevehicle no., HP 02 -8314 was purchased by the respondent for the purpose of earning

livelihood by way of self-employment after obtaining a loan from the Canara Bank, the Mall,

Shimla, Himachal Pradesh at a high rate of interest. Vehicle no. HP 02 8314 was got

insured by the respondent with the petitioner - insurance company on 25.10.2000 for a sum

of Rs.2,80,000/-. The premium amount of Rs.5791/- was duly paid and the insurance was

valid from 27.10.2000 to 26.10.2001.

3. Tata Sumo No. HP 02 8314 owned by the respondent was insured with the petitioner

and unfortunately met with an accident on 30.07.2001 near Karara Ghat when the vehicle

was on its way from Darlaghat to Kashlog. The vehicle all of a sudden gathered speed and

went off the road and fell into a 250 feet deep gorge. The factum of accident of the Tata

Sumo was immediately intimated to the insurance company on 31.07.2001 itself

telephonically by the respondent. On being intimated of the accident, the insurance

company appointed one Mr Dograas spot surveyor to inspect the spot of accident and the

vehicle and submitted his detailed report. Mr Dogra visited the spot of accident on the very

next day and directed the respondent to remove the vehicle from the place of accident and

further to submit the registration certificate of the vehicle, road permit, insurance cover note,

driving licence of driver, FIR of the accident and an estimate of repairs of the vehicle to the

insurance company at the earliest for settlement of the claim. The respondent accordingly,

submitted the insurance claim in the last week of August 2001, and requested for

early settlement of the claim.

4. All the relevant papers stood submitted to the insurance company. One Mr Sood was

appointed in October 2001 to submit his final report after carrying out the final survey of the

loss. The final surveyor assessed the vehicle to total loss. As per the report of the said

survey the surveyor recommended indemnification to the tune of Rs.1,70,000/- without

salvage and Rs.1,10,000 with salvage. The respondent has not been supplied a copy of

the survey report and it is beyond the comprehension of the respondent as to how a vehicle

the value whereof was assessed to be Rs.2,80,000/- on 25.10.2000 has depreciated to

Rs.1,70,000/- only with in a period of ten months. The respondent has reasons to believe

that the insurance company has manipulated a self-serving survey report in its favour as the

surveyor who is engaged and paid by the insurance company stands in a fiduciary

relationship with the company. The respondent is not in any manner bound by the biased

and non-impartial report of the surveyor and is entitled to the insured amount of

Rs.2,80,000/- as it is an admitted case of total case.

5. As stated supra the respondent had purchased the vehicle no. HP 02 8314, after

obtaining loan from the Canara Bank at a high rate of interest. Since the vehicle in question

had met with an accident the respondent was in precarious situation as the loan

amount was mounting day by day. The only source of livelihood of the respondent had

been ruined and he has not even in a position to maintain himself and his family members

what to talk of repayment of the loan instalments. Taking advantage of the respondent’s

tight position in the OP insurance company through its officials coerced and pressurised the

respondent into accepting and amount of Rs.75,000/- as full and final settlement of the

claim and retain the salvage. The respondent was threatened that in case he refused to

give his consent the insurance company would ensure that not a single penny was paid to

him. When asked the reasons why the assessed amount of the surveyor was being reduced

from 1,10,000/- to Rs.76,000/- it was stated that the respondent’s claim was non-standard.

Moreover, it was assured that in case the respondent consented to receiving Rs.76,000/- for

the present, the insurance company may think of increasing the amount to Rs.1,10,000/-.

Forced by the circumstances and the misrepresentation made by the officials of the

insurance company the respondent consented to receive Rs.76,000/- as full and final

settlement of his claim on 27.11.2001.

6. Having agreed to make payment of Rs.76,000/- the respondent under

the bonafide belief that the payment would be made immediately. Instead the insurance

company reverted its stand and after a period of about one month the respondent was

intimated vide letter dated 03.01.2002 that the driving licence of the driver of the vehicle

seemed to be false. In response thereto the respondent issued letter dated 06.01.2002

whereby it was made clear that the original driving licence was with the court of Judicial

Magistrate, Arki and time was requested for producing the same. This was accordingly

done. The insurance company persisted with its game of hide and seek and still the claim

was not settled. It was finally vide letter dated03.07.2002, the insurance company had

repudiated the claim for want of valid driving licence.

7. It was therefore, prayed that the complaint may kindly be allowed and the insurance

company may be directed:

(i) to pay to the respondent a sum of Rs.2,80,000/- with interest @ 18% per

annum from 20.04.2001 till the date of payment.

(ii) To pay Rs.50,000/- as damages for mental torture and harassment.

(iii) To pay Rs.5,500/- as costs of litigation.

8. The petitioner/ opposite party – insurance company filed their reply with their

preliminary objections that at the time of alleged accident the driver of the alleged

vehicle Shri Tek Chand was not having a valid driving licence as the same was not renewed

/ valid as confirmed from the R & L A, Shimla (Rural), therefore, the present complaint

deserves to be dismissed on this short score alone.

9. The contents of paragraph 6 of the complaint are only admitted to the extent that the

reply respondent insisted for the original driving licence from the respondent as after due

verification from the R & L A (Rural) Shimla it was found that the said driving licence

of Shri Tek Chand was not renewed/ valid at the time of alleged accident the respondent

miserably failed to submit the said driving licence to the replying company despite the

assurances given by him in his letter appended with the complaint. Since the original driving

licence of the driver was not produced and after due verification the claim was duly

conveyed to the respondent.

10. The District Consumer Disputes Redressl Forum, Shimla, Himachal Pradesh (‘District

Forum’) vide its order dated 03.12.2004 allowed the complaint and directed the petitioner

that “as a sequel of the above, we hereby direct the OP-company to indemnify the

complainant to the extent of Rs.2,04,788/- along with interest at the rate of 12% per annum

with effect from the date of filing of the complaint, till actual payment is made. The litigation

cost is quantified at Rs.2,500/-. These payments be made by the OP – company to the

complainant within a period of 45 days from the date of receipt of copy of this order”.

11. The District Forum has held that:

“It is not in dispute that the vehicle owned by the complainant was duly insured by the OP – company and met with an accident on 03.07.2001 during the currency of the insurance policy. All that is in dispute is as to whether or not at the time of accident, the driver of the vehicle was having a valid driving licence and the claim was rightly repudiated and in case the complainant is entitled to the claim what is the quantum of compensation.

In order to substantiate its argument that the driver of the vehicle was not having a valid and effective driving licence, the OP – company is relying upon annexure R 6 which is verification report of one Ms Rajvinder Sandhu, Advocate and Annexure R 7 on which a report to the effect that DL no. 2445/ 88/ 97 issued in favour of Tek Chand son of BadruRam has not been renewed by the Registering and Licence Authority, Shimla Sunni Sub-Division. We are of the view that evidence brought on record on behalf of the OP-company is not sufficient evidence in order to prove that the DL of Tek Chand who was driving the vehicle at the relevant time was not validity renewed and was fake. In order to prove that the driving licence was fake as has been the considered and consistent view of our State Commission. It was incumbent upon the OP – company to have produced the affidavit of the registering and licensing authority to the effect that the driving licence was not renewed by it was not valid for driving at the time when the accident in question took place. In the absence of the affidavit, it cannot be held that the OP – company has been able to prove that the driver of the vehicle Shri Tek Chand was not having a valid and effective driving licence at the relevant time.

The controversy can be viewed from another angle also. The complainant has filed rejoinder in which it has been specifically pleaded that he had satisfied himself of the validity of the driving licence of Tek Chand before engaging him as his driver. The driver was duly authorised and competent to drive the TATA Sumo Maxi Cab. Here, the law laid down by theHon’ble Supreme Court of India. In Lehru’s case comes to the rescue of the complainant where in it has been very categorically held that where the owner of the vehicle had satisfied himself of the validity of the driving licence, the onus lies on the OP – company to prove that the owner of the vehicle was aware of the fact that the licence was fake. As such, we hold that the driver of the vehicle at the time of the accident was holding an effective and valid driving licence to drive the vehicle”.

12. Aggrieved by the order of the District Forum, the petitioner filed an appeal before the

State Commission. The State Commission observed as under:

“So far plea of driver having no valid and effective driving licence is concerned, in the rejoinder the respondent clearly explained that before employing the driver, he had satisfied himself about his driving licence. In this behalf we may observe that the owner of a vehicle is not expected to run from office to office to ascertain whether the licence had been actually issued or not. Of course, in a case where litigant like appellant in the present appeal is able to establish that despite knowledge of licence

being fake or otherwise the driver being not authorised to drive vehicle of a particular type, the owner still employs such a driver, situation will be totally different. Admittedly that is not the situation in the presentcase, therefore, this plea is hereby rejected. Another reason to take this view is that this controversy has been set at rest by the Hon’ble Supreme Court in a number of cases”.

13. The State Commission had partly allowed the appeal and ordered as under:

“No other point is urged.

In view of the aforesaid discussion while partly allowing this appeal interest is reduced from 12% per annum to 9% per annum and rest of the order of the District Forum below is upheld. No costs.

All interim orders passed from time to time in this appeal shall stand vacated forthwith”.


15. The main grounds of the revision petition are that:

(i) The judgment and order of the State Commission is illegal, erroneous and

contrary to the provisions of law and evidence on record;

(ii) The State Commission failed to appreciate that non-renewal of driving

licence after the expiry of its period is so stands on no-better footing that non-

holding of an effective and valid driving licence;

(iii) The State Commission failed to appreciate that once the insured has

agreed for a sum of Rs.78,000/- of his own sweet will, there is no justification

in awarding Rs.2,04,788/-.

(iv) The State Commission has failed to appreciate that the surveyor has

recommended an amount of Rs.1,70,000/- on total loss basis which always

entails that either salvage has to be handed over to the petitioner or amount

payable would be reduced paid after deduction of the value of the salvage

amount which has been assessed at Rs.50,000/-.

(v) The State Commission failed to appreciate that allowing 12/13 passengers

than permissible limit of 9+1 in TATA Sumo is violation of the Act as well as of

the provisions of the policy.

16. We have heard the learned counsel for the petitioner and have also gone through the

records of the case carefully.

17. The main grounds that have been urged in the revision petition are that the

repudiation letter dated 12.12.2002 stated that the claim of the respondent had been

repudiated on the grounds of “non-effectiveness of driving licence” which was a violation of

policy conditions. Counsel for the petitioner states that they had got the driving licence

verified by Shri RajvinderSandhu, Advocate and he had submitted and stated that:

“The DL No. 2454/SS/97 has been issued in favour of Shri Tek Chand for LTV with effect from 27.01.1998 and valid up to 26.01.2001. But the DL is not renewed vide no. 869/SS/2000 dated 27.02.2001 in the name Shri Tek Chand as per the office record. It was renewed in favour of Shri Pyare Lal D L No. 92/SS/95-96 receipt no. 0460152 with effect from 27.02.2001 as per the office record.”

18. This report dated 02.02.2002 was supported by a report of the Registrar and

Licensing Authority, Shimla Suni Sub-Division, Himachal Pradesh which stated as follows:

“Returned in original with the remarks that DL No. 2454/SS/ 97 issued in favaour of Shri Tek Chand son of Shri Badru Ram resident of Floora Hotel Chakkar Road, Shimla for LTV with effect from 27.01.1998 to 26.01.2001. The D L in question has not been renewed vide no. 869/SS/ 2000 dated 27.02.2001 in the name of Shri Tek Chand as per this office record.”.

19. Both the District Forum and the State Commission held that it was incumbent upon

the OP company to have produced the affidavit of the Registering and Licensing Authority

to the effect that the driving licence was not renewed by it and was not valid for driving

licence at the time when the accident in question took place. In the absence of the affidavit

it cannot be held that the OP – company has been able to prove that the driver of the

vehicle Shri Tek Chand was not having a valid and effective driving licence at the relevant

time.

20. The State Commission in its order had stated that the owner of the vehicle is not

expected to run from office to office to ascertain whether the licence had been actually

issued or not.

21. Counsel for the petitioner has drawn our attention to an Apex Court judgment titled as

– National Insurance Company Ltd., vs J Maheshwarama – Civil Appeal no. 3408 of

2009 - Special Leave Petition (Civil) no. 19995 of 2007) decided on 08.05.2009. The Apex

Court has held as under:

“20. In view of such concurrent finding, the National Commission did not interfere with the same. The State Commission also came to a finding that the burden is on the Insurance Company to show that the driving licence of the deceased was fabricated and the said burden has not been discharged.

21. The basic issue in the case was whether the deceased had a valid driving licence to drive the vehicle i.e. motor cycle with gear which was involved in the accident. The District Forum, State Commission and National Commission were of the view that since the deceased had a valid insurance policy and there was no dispute that the accident had taken place and the insured died during the validity of said policy, the stand that the driving licence of the deceased was fabricated was of no consequence. It was held that the insurance company had not discharged the burden to prove that the driving licence of the deceased was fabricated. The District Forum observed that no affidavit of the authority who issued the certificate (Ex.B-2) has been filed. The view was endorsed by the State Commission and by the National Commission. Additionally, the National Commission held that the licence produced clearly indicated that the deceased was having licence to drive motor

cycle also. This finding cannot be maintained because there was a dispute about the genuineness of the licence failed to show that the deceased had licence to drive motor cycle. Additionally after Exh. B-2 was filed, there was no material brought on record by the complainant to show that the certificate dated 27.2.2006 issued by transport authorities was not authentic. Therefore the question of the insurance company having not discharged the burden, does not arise”.

22. The facts of case (supra), is squarely applicable to the case on hand. It was for the

respondent to bring material on record to show that the certificate issued by the Transport

Authorities was not authentic one at the time of accident on 30.07.2001 and that the driver

had a valid driving licence on the date of the accident.

23. In view of the above facts of the case, the revision petition is allowed and the orders of

the State Commission and the District Forum are set aside and the complaint is dismissed.

No order as to costs.

Sd/-..………………..………..J

(V.B. GUPTA)

Sd/-…………………..………..

(REKHA GUPTA)

Satish

National Consumer Disputes Redressal Commission New Delhi

Revision Petition no. 1763 - 1764 of 2010

(Against the order dated 24.06.2009 in First Appeal no. 96 & 111 of 2008 of the Uttarakhand State Consumer Disputes Redressal Commission, Dehra Dun)

Smt Harshita Wife of Shri Satya Prem Resident of A – 6 Ram Nagar Colony Jwalapur, Post Office Gurukul Kangri District Haridwar Uttarakhand

Petitioner

Versus

(1) Dr Aruna Kulkarni Health Officer Ramakrishna Mission Sevashrama Kankhal, District Haridwar

(2) Ramakrishna Mission Sevashrama Kankhal, District Haridwar Through its Secretary

Respondents

BEFORE:

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

HON'BLE MRS. REKHA GUPTA MEMBER

For the Petitioner Mrs Suman Bagga, Amicus Curiae

For the Respondents Mr Manoj Chatterjee, Advocate and

Ms K Iyer, Advocate for R 1 and 2


ORDER

REKHA GUPTA

Revision Petition nos. 1763 – 1764 of 2010 has been filed under section 21 (B) of

the Consumer Protection Act, 1986 against the order dated 24.06.2009 passed by

theUttarakhand State Consumer Disputes Redressal Commission, Dehradun (‘the State

Commission’) in Appeal nos. 96 and 111 of 2008.

2. The brief facts of the case as per petitioner/ complainant is that petitioner filed a

consumer complaint no. 41 of 2007 for award of compensation of Rs.4,80,000/-, inclusive of

anticipated expenses of Rs.2,00,000/- towards future medical treatment from the

respondent/ opposite parties based on the allegation of medical negligence, which was

partly allowed with cost of Rs.2,000/- and for compensation of Rs.50,000/- per order dated

16.04.1008 passed by the District Forum, Haridwar. Petitioner felt aggrieved by inadequacy

of the compensation awarded, hence, filed first appeal no. 96 of 2008,

seeking enhancement of the amount of compensation and whereas, the opposite parties,

namely Dr Aruna Kulkarni and RamakrsihnaMission Sevashrama, Kankhal, Haridwar where

the said lady doctor was employed filed first appeal no. 111 of 2008 challenging the legality

and propriety of the impugned order and prayed for dismissal of the consumer complaint.

3. The State Commission in their order dated 24.06.2009 has held as under:

“12. For the reasons aforesaid, we sum-up our conclusion with the observation that opposite party No. 1 in the instant case, was possessed of requisite skill, which she professed to have possessed and that she did exercise that skill with reasonable competence and, as such, has not been negligent in performing her duty as Gyne Surgeon while undertaking the caesarean section on the complainant on 13.09.2006 plus tubectomy and helped in the delivery of female child to the complainant in good condition. The allegations of medical negligence, having not been established by any cogent evidence on record, the opposite parties were not to be saddled with any liability to pay any compensation to the complainant and the complaint was, thus, liable to be dismissed. The District Forum fell in error in recording a finding to the contrary, without proper scrutiny of the material on record, by the impugned order and the same, therefore, cannot legally be maintained. In other words, the complainant was not entitled to any compensation and the complaint as well as the appeal filed by the complainant (Smt.Harshita), are liable to be dismissed and whereas, the appeal filed by the opposite parties, is fit to be allowed.

13. First Appeal No. 96 / 2008 is dismissed and First Appeal No. 111 / 2008 is allowed. Order impugned dated 16.04.2008 of the District Forum is set aside and consumer complaint No. 41 / 2007 is dismissed. No order as to costs”.

4. The State Commission in their detailed order dated 24.06.2009 as observed that:

“6. We have heard the complainant’s husband (Sh. Satyaprem) and the learned counsel for the opposite parties and have carefully considered their submissions in the light of the facts, circumstances and legal aspects of the case. At the outset, it need to be stated that the District Forum made an unwarranted observation that opposite party No. 1, while performing the caesarean section for delivery of the child, negligently stitched the uterus and bladder and for saving the life itself of the complainant, it is essential to have these organs separated. It appear that the learned District Forum incorrectly read the medical treatment report dated 20.01.2007 of Dr. Kamra’s Urinary & Surgical Diseases Centre, Inder Road, Dehradun, which pertain to Cystoscopy done under general anesthesia on the complainant Smt. Harshita to find out as to whether or not the bladder has any abnormality and wherein, it has been noted that cervix is stuck to dome of bladder. Therefore, there is need to consider as to whether or not, the case set up by the complainant in her complaint regarding medical negligence on the part of the operating surgeon, stand reasonably proved by the statement of facts and medical record placed on record.

7. To begin with, it is of importance that the complainant was 39 years old at the time of getting herself registered at the antenatal clinic. She had a normal delivery 15 years ago followed by two spontaneous abortions and one medical termination of pregnancy and in her last pregnancy, she was delivered by a caesarean section. Her blood pressure had shown sign of fluctuation. Taking into account these factors, coupled with non-descent of baby’s head at term, opposite party No. 1 rightly took the decision to deliver the complainant’s child by lower segmental caesarean section (LSCS) on 13.09.2006. The surgery was done after prior consent had been given by the complainant’s husband and the same on record, also endorses that theGyne Surgeon shall also be free to take up any other diagnostic examination,

biopsy or surgical operation, necessary for the welfare and health of the patient. This was the reason that, as averred in her affidavit by Dr. Aruna Kulkarni (opposite party No. 1), omental biopsy was taken and specimen was handed over to the complainant’s husband, who was explained all about it. The necessity for it arose, by reason of presence of very tiny multiple white granules on omentum, suggestive of abdominal tuberculosis, not uncommon and fortunately, histopathology report of the biopsy did not show evidence of tuberculosis. In the face of the specific averment in the affidavit and the consent on record, we see no force in the submission that omentalbiopsy was taken without prior intimation and consent and during the process, bladder tissue was excised, resulting in bleeding and collection of blood, referred to as haematoma between the uterus and bladder. There is no dispute that the histopathology report of the biopsy did not show evidence of tuberculosis and this fact, as averred by the opposite party No. 1 in her affidavit, proved that biopsy was not taken from bladder tissue. Therefore, a false allegation was made by the complainant in her complaint.

8. Much stress has been laid on the formation of haematoma between uterus and bladder and the formation of which, has been attributed to medical negligence on the part of opposite party No. 1. There is no evidence whatsoever on record, what to say of expert evidence, as may have even remotely suggested that the collection of blood between uterus and bladder, which had been noticed after 48 hours of the surgery, was attributable to negligence during caesarean section for delivery of child. Opposite party No. 1 categorically averred in her affidavit, in support of the claim made in the written statement, that the complainant had adhesions between omentum and abdominal wall due to previous caesarean section and abdominal wall, urinary bladder was also adherent to the lower part of uterus. In the caesarean section, opposite party No. 1 had to release those adhesions for delivery of the female baby of the complainant. As stated above and as averred in the affidavit by opposite party No. 1, complainant had moderately increased blood pressure and due to presence of adhesions as additional factor, haematoma developed gradually due to capillary oozing and was, as such, diagnosed only after 48 hours of the surgery on 18.09.2006. This was, as stated earlier, was not found when USG was carried for the first time after surgery on 15.09.2006 and, therefore, we see no merit in the allegation made in the complaint and agitated before us by the husband of the complainant that the collection of blood between the uterus and bladder was result of medical negligence on the part of the opposite party No. 1 at the time of performing the caesarean section on the complainant on 13.09.2006. The inference is lent credence to by the discharge certificate; USG reports; notes and records of complainant’s treatment; indoor patients case record; progress sheet from 12.09.2006 to 22.09.2006, the date of discharge of complainant; treatment charts of indoor lab investigation forms etc., placed on record. None of these would admit of any deviation by opposite party No. 1 from the prescribed medical norms and practices even in such cases of “Elderly” in obstetric parlance.

9. We also cannot lose sight of the fact that despite assurance given by the opposite party No. 1 that haematoma would get reduced gradually, the complainant and her husband insisted for discharge from the hospital on 22.09.2006 and even thereafter on 28.09.2006, when the complainant was seen in OPD, her wound was found to have completely healed and some reduction of haematoma was also

observed. The complainant thereafter did not visit the opposite party No. 1 and instead opted for treatment elsewhere in Meerut at Jindal Hospital and Nursing Home in the month of October, 2006 and on being referred for ultrasonography, went through it repeatedly as per record on 04.10.2006, 12.10.2006, 23.10.2006 and 01.11.2006, which showed gradual reduction of the size of haematoma between bladder and uterus. The complainant also underwent Cystoscopy at Dr. Kamra’s Urinary & Surgical Diseases Centre on 20.01.2007, but the report does not indicate that any abnormality in the bladder, attributable to the caesarean section, was noticed. At the risk of repetition, it may be stated that the reports of these medical centres, do not even remotely indicate that the formation of haematoma was due to medical negligence at the time of performing caesarean section for delivery of the child of the complainant on 13.09.2006”.


6. The revision petition has been filed with an application for condonation of delay of 7 ½

months. The reasons given for the delay are as under:

After receiving the judgment passed by the consumer court, Dehradun, petitioner

being a poor lady was unable to decide about filing of the present revision petition as

it was difficult for her to come to Delhi, to engage a lawyer and file the petition before

the Hon’ble Commission keeping in view her financial position.

Somehow, the petitioner was able to contact a family friend who agreed to help

her and with the help of the family friend, the petitioner was able to get in touch with

the lawyer. Since, the petitioner had to gather lot of information and documents, she

could not get the revision prepared in time and the entire process took six months

resulting in delay of approximately six months.

The delay in filing the present petition in neither intentional nor deliberate but due

to the fact that the petitioner was unable to afford the expenses for filing the revision

before thisHon’ble Commission and also because of the fact that being a lady she

could not gather relevant information and documents in time, hence, this application.

7. We have heard the learned counsel for the petitioner and the respondents and have

also gone through the records of the case carefully.

8. Learned counsel for the petitioner has only urged that the petitioner is living in

Dehradun and she is sick and does know anyone in Delhi.

9. Nowhere has it been mentioned in the application for condontion of delay as to when

the impugned order dated 24.06.2009 was received and no names or dates have been

given anywhere at all in the application. The application seeking condonation of delay is

very general and vague and the petitioner and the counsel have failed to explain the day to

day delay of 7 ½ months.

10. At the same time, it is also well settled that “sufficient cause” with regard

to condonation of delay in each case, is a question of fact.

11. The Apex Court In Anshul Aggarwal v. New Okhla Industrial Development

Authority, IV (2011) CPJ 63 (SC), has laid down:

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

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

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

13. 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.”

14. Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 7 ½ months in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and same is hereby dismissed. No order as to costs.

..………………………………

[ V B Gupta, J. ]

Sd/- ………………………………..

Rekha Gupta ]

Satish



(From the order dated 27.09.2006 in First Appeal No. 653/2006 of Karnataka State Consumer Disputes Redressal Commission)

United India Insurance Co. Ltd. Divisional Manager P.B. No. 237/34/3, Akkamahadevi Road, M.M.K. Complex, 2nd Floor, P.J. Extension, Davanagere, Now represented by the Regional Office, No. 25, I Floor, Shankar Narayan Building, M.G. Road, Bangalore – 560001.

... Petitioner/OP

Versus

Sri N.M. Mohammed Jakeer Hussain, s/o Sri N.H. Mohammed Moosa, M/s Bharath Borewells, Nayakanahatti, Chitradurga District – 577501.

… Respondent/Complainant

BEFORE

HON’BLE DR. B.C. GUPTA, PRESIDING MEMBER


For the Petitioner Mr. V.S. Chopra, Advocate

For the Respondent Mr. A.T.M. Sampath, Advocate

Ms. T.S. Santhi, Advocate

Mr. D.I. Syed Swaleha, Advocate


PER DR. B.C. GUPTA, PRESIDING MEMBER

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

Protection Act, 1986 against the impugned order dated 27.09.2006, passed by the

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

Commission’) in FA No. 653 / 2006, “United India Insurance Co. Ltd. versus N.M.

Mohammed Jakeer Hussain” vide which, while dismissing the appeal, the order dated

30.01.2006 in Consumer Complaint No. 92/2005, passed by the District Consumer Disputes

Redressal Forum, allowing the said complaint, was upheld.

2. Brief facts of the case are that the complainant / respondent is carrying out

the business of borewell drilling for the past 10 – 12 years. The complainant owns a lorry,

bearing number KA 117860, which was originally a transport vehicle owned by Syed Peer

Sab of Mandya. The complainant purchased this vehicle, got the registration certificate

changed with effect from 30.12.95 and then, installed a rig unit on it, and the said lorry was

treated as a non-transport vehicle with effect from 21.11.96. The funds for the purchase of

rig unit and its accessories amounting to ` 30 lakh were arranged after raising a loan of `

14.35 lakh from the Karnataka State Finance Corporation and from his personal

resources. The said lorry with rig unit was insured with the petitioner/OP under policy

number 61 and had been renewed from 8.10.2003 to the mid-night of 07.10.2004. The said

lorry met with an accident on 06.10.2004 at about 10.20 PM when it was going towards

Sri Rampura for digging borewell on the way near Iddlanaganahally bridge. It has been

stated in the complaint that a vehicle coming from the rear side was blowing horn for the

purpose of overtaking the lorry. The road was very narrow. The driver of the rig lorry took

the vehicle to the left side of the road, but lost control because the soil at that area was

loose. The lorry fell down, got fire and began to burn due to short-circuit. The driver was

able to contact the complainant at Nayakanahatty at 12:30 midnight over phone, but his

message was not clear. The driver was able to give clear message to the complainant at

about 4:30 AM on 07.10.2004. The complainant rushed to the spot, informed the Police

and fire station, also took fire brigade service to the spot and the fire was put off. However,

by that time, a major portion of the rig had already been burnt out. These facts were

conveyed to the opponent on 07.10.2004 at 11:00 AM. The Police Authorities registered

case F.A. No. 30/04 at Hiriyor. The burnt lorry was got lifted from the spot and parked in the

premises of Mandimutt Oil Industry at Challakare on 25.10.2004 by paying `_25,000/- and

thereafter, the complainant was paying `_50/- as watch and ward charges every day. The

complainant preferred insurance claim with the opponent who advised him to obtain

quotations for repairs and to go for repairs. The complainant contacted some leading big

companies and reputed Engineers, who gave him quotations ranging from ` 20 lakh to ` 27

lakhs with their opinion that the rig unit was completely burnt out and it was not possible

to repair the same. The complainant forwarded the quotations to the OP and requested

that 60% of the amount should be given in advance, so that the repair work could be

started. However, there was no response from the respondents. On 06.05.2005, the

opposite party expressed their inability to settle the claim, following which a legal notice was

sent to them, but there was no reply. It has been stated in the complaint that the actual loss

sustained by the complainant on account of the accident was ` 19.41 lakh. The complainant

requested that the said amount should be paid to him alongwith interest @ 12% p.a. from

the date of the complaint till realisation.

3. In their reply to the complaint filed by the OP, it has been stated that the said vehicle

could not run on the road without getting a fitness certificate from the concerned

authorities. The OPs have denied the version of the complainant about the accident and

subsequent happenings and stated that the complaint was not maintainable. It has further

been stated that the incident was reported to the OP with abnormal delay on

08.10.2004. Moreover, the fire force letter dated 07.10.2004 from the fire brigade indicates

that the incident occurred on 07.10.2004 at 7:30 AM. The fire occurred at the front of the

cabin and there was damage only to the tyres etc. The OPs have stated that they were

prepared to produce the necessary evidence in support of repudiation of the claim. The

District Forum after taking into account the evidence of the parties allowed the complaint,

saying that the respondent/OP shall pay a sum of ` 15 lakh to complainants within a period

of 2 months alongwith interest @9% p.a. They were also directed to pay a sum of ` 5,000/-

as compensation for mental harassment and ` 1,000/- as cost of litigation. The appeal filed

before the State Commission was ordered to be dismissed vide impugned order dated

27.09.2006. It is against this order that the present petition has been made.

4. At the time of hearing before me, learned counsel for the petitioner insurance

company stated that the respondent/ complainant does not qualify to be covered under the

definition of ‘consumer’ as he was indulging in commercial activity related to digging of tube-

well bores. The claim in question was a fictitious one and hence, the consumer complaint

was not maintainable. The State Commission and the District Forum had not given any

weightage to the evidence produced by the petitioner. The learned counsel also argued

that there were three different versions of the accident, as made out from various reports

available. In one of the reports, it has been stated that the vehicle caught fire due to short-

circuit in the battery. In another version, it had been stated that another vehicle was coming

from opposite side and while crossing this vehicle, it hit against the battery box and the fire

occurred due to short-circuit. This version has been given by Shri B.R. Manjunath, the

surveyor appointed by the Insurance Company. In the report of the second

surveyor, Shri K. Kumar, it has been stated that another vehicle was coming from the same

side and when the said vehicle came to the side of insured vehicle, the vehicle took a

sudden turn and it capsized on the left side, resulting in fire. In the claim filed by the

complainant, it has been stated that when the vehicle coming from the rear side tried to

overtake this vehicle, the driver took the rig lorry to the left side and in the process, lost

control of the vehicle, due to loose soil and hence, the vehicle fell down to the left side of

the road. The learned counsel has drawn our attention to the reports given

by Shri B.R. Manjunath, surveyor, Shri Shyam Sunder, investigator and Shri K. Kumar,

surveyor about the incident. Learned counsel argued that they had not got the chance to do

quantification of the damage. Referring to the report of the Motor Vehicle Inspector, the

learned counsel stated that such inspectors are not concerned with insurance claim in any

manner and hence, their report could not be believed. Further, the claim of the complainant

for total loss was not substantiated from the evidence on record, because the vehicle had

suffered damage on the front portion and the tyres only. Even their own witness had stated

that the vehicle could be repaired by spending ` 10.87 lakh only.

5. Learned counsel for the respondent in reply stated that the orders passed by the

State Commission and District Forum are in accordance with law and should be upheld

being concurrent findings. The OPs had themselves admitted that the insurance cover had

been taken by the complainant, showing the IDV of the vehicle as ` 15 lakh. Further, it had

been stated that the Transport Department had registered the vehicle as a non-transport

vehicle. It was clear, therefore, that fitness certificate was not required for plying the vehicle

on the road. The Insurance Company had also issued the insurance policy, treating it as a

rig vehicle. There had been no violation of the terms and conditions of the policy. It was

evidently, a case of total loss and the consumer fora below had rightly allowed the claim.

6. I have examined the entire material on record and given a thoughtful consideration to

the arguments advanced before me. It has been admitted by the OP that they issued the

insurance policy in question, showing the IDV of the vehicle as ` 15 lakh and fully knowing,

that it was a vehicle being used for tubewell boring and for that purpose, a rig was mounted

on the chassis of a truck. It has been stated that the said vehicle is registered as a non-

transport vehicle by the Transport Department. Hence, the version of the OP that fitness

certificate is required for plying the vehicle is not correct. Moreover, it is the job of the

Transport Department to see whether fitness certificate is required in such cases or not. It

is not desirable on the part of the Insurance Company to raise such objections, once they

have issued the insurance policy in question and accepted premium from the insured.

7. There is a delay of 34 days in filing the present revision petition. An application for

condonation of delay has been filed, saying that some time was spent in obtaining legal

opinion and then completing the official formalities, involving making reference to the

Head Office of the company. For the reasons mentioned in the application for condonation

of delay, the said delay is ordered to be condoned.

8. Further, the State Commission have examined in detail the issue of fitness certificate

by referring to section 39 and 56(1) of the Motor Vehicles Act and also referred to the

definition of ‘transport vehicle’ including that for public service vehicle, goods carriage,

educational institution bus and private service vehicle’ as defined in the Act, saying that the

vehicle in question does not fall in any of the above categories and hence, does not come

under the definition of transport vehicle.

9. The District Forum has carried out a detailed analysis of the evidence on record,

including the reports of the two surveyors and that of the investigator. They have stated

that Shyam Sunder, Investigator, told during cross-examination that the engine – cabin

were completely burnt, whereas parts of the rig unit were also burnt. The District Forum

reached the conclusion that it was not possible to have the vehicle repaired and hence, they

allowed the claim on a ‘total loss’ basis. They have also stated that looking at the

quotations for repairing the vehicle and adding labour charges to the same, the cost of

repair shall be more than the IDV of the vehicle.

10. This version of the District Forum has been upheld by the State Commission as well,

by observing that six tyres, disk cabin, engine parts, compressor, batteries

and borewell machinery of the vehicle were damaged in the accident. The motor vehicle

inspector also stated in his report that the vehicle could not be repaired.

11. It is also observed that while hearing a revision petition, re-appraisal of evidence is

not required and the orders passed by the Fora below can be interfered with only if there is

a patent jurisdictional error. In the present case, therefore, there is no justification for any

modification in the well-reasoned orders passed by the State Commission and the

District Fora and the same are confirmed. The revision petition is ordered to be

dismissed. There shall be no order as to costs.

Sd/-

(DR. B.C. GUPTA)

PRESIDING MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI (1) REVISION PETITION NO. 329 OF 2012(Against the order dated 7.4.2011 in AppealNo.1281/2010 of the State Commission, Rajasthan, Jaipur) 1. Ajmer Vidyut Vitran Nigam Ltd. Through Assistant Engineer (O&M) Ajmer Vidyut Vitran Nigam Ltd. Dungla, District – Chittorgarh (Rajasthan)

2. Superintending Engineer A.V.N.N.L. Industrial Area, Chanderia, Tehsil + District- Chittorgarh Rajasthan

…..Petitioners VersusBhagga S/o Shri Nathu Jee R/o Vill –Semaliya Tehsil –Dungla District –Chittorgarh Rajasthan

…….Respondent

REVISION PETITION NO. 330 to 333 AND 683 OF 2012(Against the order dated 7.4.2011 in AppealNo.1282/2010 of the State Commission, Rajasthan, Jaipur)

BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner (s) : Mr. Manu Mridul, Advocate with Ms. Mansi Garg, Advocate

Pronounced on: 31st March, 2014 ORDER


State Consumer Disputes Redressal Commission, Jaipur, Rajasthan (for short, ‘State

Commission’), vide common impugned order dated 7.4.2011, has disposed

of Appeals Nos.1297, 1280-1282 and 1284-1285 of 2010 filed by the Petitioners/Opposite

Parties.

2. Being aggrieved, Petitioners have filed above revision petitions.

3. Since, facts are identical and common question of law is involved in these petitions,

the same are being disposed of by this common order. Facts of Revision Petition

( No.329 of 2012 - Ajmer Vidyut Vitran Nigam Ltd. and others Vs. Bhagga ) shall be taken

as the lead case.

4. Respondent/Complainant had filed a consumer complaint under Section 12

of Consumer Protection Act, 1986 (for short, ‘Act’) before the District Consumer Disputes

Redressal Forum, Chittorgarh, Rajasthan (for short, ‘District Forum’) praying for quashing of

the electricity bills which had been issued illegally by the petitioners.

5. The consumer complaint was contested by the petitioners.

6. The District Forum allowed the complaint of the respondent and quashed the

impugned notice.

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

Commission, which dismissed the same vide the impugned order.

8. Now, petitioners have filed these revision petitions. Alongwith them, applications

seeking condonation of delay ranging from 77 days to 203 days have also been filed.

9. We have heard arguments on the applications for condonation of delay.

10. It has been contended by learned counsel for the petitioners that delay in filing is due

to office procedure as certain vital documents were not supplied to the counsel. That is

why, there was some delay and the same should be condoned.

11. Relevant grounds of which condonation of delay has been sought are reproduced as

under;

“3. That the aforesaid Appeal in this case was disposed of by the learned

State Consumer Disputes Redressal Commission, Jaipur, Rajasthan by

order dated 7.4.2011 copy of which was received in the office of the

Petitioners in last week of May, 2011. Thereafter, the same was sent to

the Office of the Company Secretary who in turn sent the files for legal

opinion to the law department of the Petitioners Corporation. Upon

receipt of the opinion of the legal department which advised for filing of

Revision Petition before this Hon'ble Commission. The

authorized officer of the Corporation contacted the undersigned and

sent file of the case in first week of July. 2011.

4. It is submitted that some of the vital documents have not supplied to the

undersigned so he informed and requested for providing those

documents. The same documents were provided by the Petitioners in

last week of August, 2011. Thereafter, the undersigned sought some

clarifications from the Petitioners and prepared a draft which was sent

for approval and vetting to the Petitioners which took some time.

5. It is further stated that the all the documents and order of the District

Forum and Appeal before the learned State Commission are in Hindi. It

also took time to get it translated in English. In these circumstances a

delay of _____days occurred in filing the Revision Petition which is

totally unintentional and bona fide.

6. The petitioner most respectfully state and submit that the impugned order

is totally illegal and without jurisdiction and as such cannot be sustained

in the eyes of law. Therefore, if the same is allowed to stand only on the

grounds of not approaching this Hon'ble Commission at an earlier date

then an illegal order shall become final which would cause financial loss

to the Government Exchequer as well the Corporation of public

company and its ramification would be bad for the Government

Exchequer as well as the Corporation.

7. In the aforesaid circulation it is necessary that if at all it is considered that

the Petition has been filed beyond limitation provided under the ordinary

law of limitation, the same be condoned.”

12. The impugned order was passed on 7.4.2011. As per petitioners’ case, the same was

received in their office in the last week of May, 2011. Petitioners have not mentioned any

specific date, when it was received. However, as per endorsement made on the certified

copy of the impugned order, the copy was delivered on 28.4.2011. So, the petitioners for

the reasons best known to them, have not mentioned the specific date on which the certified

copy of the impugned order was received by them.

13. Be that as it may, petitioners have nowhere mentioned as to on which date the file

was sent to the office of Company Secretary and on which date he in turn sent the

same for legal opinionto the law department and when the file was received from the legal

department. It is nowhere mentioned in the application as to what documents were required

by the counsel. Even otherwise, as per averments made in the application, the documents

were provided to the counsel in August, 2011, whereas the revision petitions were filed only

on 24.1.2012.

14. Under these circumstances, there is no explanation for delay which had taken place

at the different level in the office of the petitioners. Interestingly, petitioners have not

mentioned the name of any of the officials who had been dealing with the matter at

different stages. Application is absolutely silent on these material points. It would also be

pertinent to point out that in some of the applications for condonation of delay, even period

of delay has not been mentioned..

15. It is well settled that “sufficient cause” for condoning the delay in each

case is a question of fact.

16. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR

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.”

17. 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.”



Industrial Development Corporation reported in (2010) 5 SCC 459 as under;

“We have considered the respective submissions. The law of

limitation is founded on public policy. The legislature does not prescribe

limitation with the object of destroying the rights of the parties but to

ensure that they do not resort to dilatory tactics and seek remedy

without delay. The idea is that every legal remedy must be kept alive for a

period fixed by the legislature. To put it differently, the law of limitation

prescribes a period within which legal remedy can be availed for redress

of the legal injury. At the same time, the courts are bestowed with the

power to condone the delay, if sufficient cause is shown for not availing

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

19. 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”.

20. 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;

“24. 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;

“29. 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. 30. 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 landlosers 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 landlosers. 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 landlosers 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; “27. 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.28. 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.29. 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. 30. 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.31. 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. 32. In the light of the above discussion, the appeals fail and are dismissed on

the ground of delay. No order as to costs”.

21. Observations made by Apex Court in the authoritative pronouncements discussed

above are fully attracted to the facts and circumstances of the case.

22. Even, after getting two adverse findings, petitioners have chosen not to settle

the claim of the respondents but have tried to drag them to the highest fora under the

Act.

23. 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.

24. 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.

25. 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. 26. 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.”

27. Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to

the petitioners. Accordingly, no sufficient grounds are made out for condoning the long

delay ranging from 77 days to 203 days, in filing these petitions. The applications for

condonation of delay, under these circumstances are not maintainable and present

revision petitions being barred by limitation are hereby dismissed with cost of

Rs.20,000/-(Rupees Twenty Thousand only) in each case.

28. Petitioners are directed to deposit the cost by way of demand draft in the name

of ‘Consumer Legal Aid Account’, within four weeks from today.

29. Meanwhile, petitioners shall recover the cost amount from the salaries of the

delinquent officers who have been pursuing these petitions with the sole aim of

wasting the publicexchequer. The affidavit giving the details of the officers/officials

from whose salaries the cost has been recovered, be also filed within four weeks.

30. Pending applications, if any stand disposed of.31 List on 9.5.2014 for compliance.

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

…………………………………………(REKHA GUPTA)MEMBERSg.