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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1151 OF 2012

With I.A. No.01 of 2012 (Application for Condoantion of Delay)

(Against the order dated 6.9.2011 in Appeal No.1301/2010 of the State Commission, Rajasthan)

1. Ajmer Vidyut Vitran Nigam Ltd. Through Assistant Engineer Dungla, District- Chittorgarh Rajasthan

2. Ajmer Vidyut Vitran Nigam Ltd. Industrial Area, Chanderia Tehsil + District –Chittorgarh Rajasthan

…. Petitioners

Versus

Shri Kana S/o Shri Uda Jee R/o Vill – Ramakheda Tehsil Dungla, District –Chittorgarh Rajasthan

...Respondent

BEFORE:

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

HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner (s) : Mr. Manu Mridul, Advocate

Pronounced on: 2 nd January, 2014

ORDER

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

Petitioners/Opposite Parties being aggrieved by order dated 6.9.2011 passed in (F.A. No.1301 of

2010) by State Consumer Disputes Redressal Commission, Rajasthan, Jaipur (for short ‘State

Commission’) 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 90 days has also been

filed.

2. Brief facts are that Respondent/Complainant filed a complaint under the Act stating that he

obtained an electricity connection for agriculture purpose from the petitioners. Respondent had been

making the payment of all bills issued upon him and there were no arrears. The bill issued by petitioners

for the month of November, 2009 mentioned a sum of Rs.28,657/-, in which Rs.26,657/- had been shown

as arrears of the previous bill. Therefore, respondent prayed for quashing of the bill and also prayed that

petitioners be directed to issue a revised bill.

3. The Petitioners in their reply stated that, a sum of Rs.26,627/- is outstanding against the respondent

towards the charges of electricity consumed by him upto August, 2009. The respondent did not make the

payment of charges of electricity consumed by him on time, so the said amount was carried on in the

future bills. Hence, the complaint is liable to be dismissed.

4. District Forum, as per order dated 30.4.2010, partly allowed the complaint and ordered;

“1. The bill of month of November, 2009 issued by Opposite Parties for a sum of

Rs.26,267/- is quashed. The Opposite Party Corporation cannot recover the

aforesaid amount from the Complainant through any bill or notice in future.

However, if any amount is due towards charges of electricity consumed by the

Complainant from October, 2007 the Opposite Parties would be at liberty to recover

through revised bill.

2. Since a sum of Rs.26,267/- was not recovered by the mistake of the Corporation which

ought to have been done 3 years before. The Nigam cannot recover the abovesaid

amount because of legal infirmity. Therefore, it is not justified to award the costs of

litigation to the Complainant.”

5. Being aggrieved, petitioners filed an appeal before the State Commission which dismissed the same

vide the impugned order.

6. Hence, the present petition.

7. We have heard the learned counsel for the petitioners on the application for condonation of delay

and gone through the record.

8. It has been argued by learned counsel for the Petitioners that delay has occurred due to the fact that

Petitioner being a Corporation, the file has to be dealt with at various official levels and delay has occurred

only due to Administrative reasons and same is unintentional and bonafide. In support of its contentions,

learned counsel has relied upon a decision of Hon'ble Supreme Court reported as, State of Haryana Vs.

Chandra Mani and others (1966) 3 Supreme Court Cases 132.

9. The main grounds on which condonation of delay is sought read 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

06.09.2011 copy of which was received in the office of the Petitioners in last week

of October, 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.

Thereafter the Petitioners engaged the undersigned vide an engagement letter

dated 02.01.2012. The authorized officer of the Corporation contacted the

undersigned and sent file of the case in first Second week of February, 2012.

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 a week. 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 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 90 days occurred in

filing the Revision Petition which is totally unintentional and bona fide.”

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

11. In “Postmaster General and others Vs. Living Media India Limited and another, (2012) 3

Supreme Court Cases 563”, 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.”

12. Further, 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”.

13. In the application for condonation of delay, the petitioners have simply mentioned about their

office procedure for the purpose of filing the revision. In the entire application it is nowhere mentioned

as to what was the sufficient cause for not filing the revision in time. Moreover, petitioners have

nowhere mentioned as to for which period the file remained pending and before which official at

different levels. Nor the petitioners have mentioned what was the time taken at each level for getting

the approval. Thus, application for condonation of delay is vague and the same has been filed without

any justification. The petitioners while seeking condonation of delay have tried to take shelter in the

red tape procedure which is prevalent in Government Bodies/Undertakings. It is well settled that a

valuable right has accrued in favour of the respondent due to careless and negligence on the part of the

petitioners and that right cannot be brushed aside lightly.

14. The observations made by Apex Court in “Postmaster General and others (Supra) and Anshul

Aggarwal (Supra) are fully attracted to the facts and circumstances of the present case.

15. Even on merits there are concurrent findings of facts given against the petitioners by two fora

below.

16. Thus, gross negligence, deliberate inaction and lack of bonafide are imputable to the

petitioners. We do not find any sufficient ground to condone the long delay of 90 days. Hence,

application for condonation of delay stand dismissed. Consequently, the revision petition filed by the

petitioners stand dismissed being barred by limitation.

17. No order as to cost.

…………………………………….J

(V.B. GUPTA)

PRESIDING MEMBER

……………………………………………

(REKHA GUPTA)

MEMBER

Sg.


(1) REVISION PETITION NO.4509 OF 2010

(Against order dated 30.08.2010in Appeal No.1151 of 2010 of the State Consumer Disputes Redressal Commission,Haryana, Panchkula)

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

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

....... Petitioner

Versus

Dr. Raj Kumar Gupta S/o Lt. Lal Chand Chand Gupta, R/o 792, Sector-7, Ambala City

...... Respondent

(2) REVISION PETITION NO. 4510 OF 2010

(Against order dated 30.08.2010 in Appeal No.1152 of 2010 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula)

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

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

....... Petitioner

Versus

Pritam Singh Kalra s/o Sh. Mehar Singh, c/o Surjit Singh Kamboj (nazar), Kamboj House, VPO Dhulkot, District Ambala

...... Respondent

BEFORE:

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

For the Petitioner : Ms.Anubha Aggarwal, Advocate

For the Respondent : Mr. R. D. Bedi, Advocate

Pronounced on: 2 nd December, 2013

ORDER


Petitioners/ Opposite Parties being aggrieved by the order dated 30.08.2010 passed by the

State Consumer Disputes Redressal Commission, Haryana, Panchkula in (First Appeals No.1151

and 1152 of 2010) has filed the above noted revision petitions.

2. Since, facts in above noted revision petitions are common and same question of law is

involved as such these revision petitions are being disposed of by this common order.

3. As per facts enumerated in (R.P.No.4509 of 2010), the facts of the case of the

Respondent/Complainant he has purchased a plot No.792 Sector-7,Ambala City was originally

allotted to Mrs. Nancy Chopra vide memo No. 1446 dated 4.5.1979 measuring 300 sq. mtrs and

thereafter, the said plot was reallotted to the complainant vide memo No.11683 dated 9.5.1989.

After clearance of all the dues, the conveyance deed was executed on 29.9.92 and so, the

complainant stepped into the foot-steps of original allottee for all purposes. Since the

complainant wanted to get the account/ payment, if any, due against the house in question settled

for all times, so he approached the OP a number of times to supply him the detail of the account

paid by the complainant against the house in question and the rate of interest charged thereon

and to furnish the yearwise statements of account from the date of allotment till date so that the

complainant can ascertain the correctness of the amount paid by the complainant and may check

the accuracy of the amount but the OP miserably failed to concede the genuine request of the

complainant. It is further the case of the complainant that on 19.1.1993, the Estate Officer

demanded Rs.2,732/- which the complainant paid on 26.5.1993. Notice for additional price was

issued on 24.8.1994 and it was stated therein that if the amount is not paid within the stipulated

period then the allottee will pay interest for the period of default at the rate of 15% per annum.

The complainant made an application to the OP on 13.10.2008 for issuing him the details on

which it was informed that the complainant is still to pay Rs.187965/- as an additional price of

the house in question but with regard to rate of interest, it was verb ally told that compound rate

of interest has been calculated. Thus, under compelling circumstances, the complainant paid

Rs. 45,000/- on 13.10.08, Rs.40,000/- on 15.10.2008, Rs.32,000/- on 16.10.08, Rs. 38,000/- on

17.10.08, totalling Rs. 1,55,000/-. The complainant got served a legal notice dated 26.3.2009 for

recalculation of his account with regard to the house in question on the basis of simple interest

and to return the excess amount if any, to the complainant but in vain. Hence, this complaint.

14. Upon notice, the OP appeared and filed written statement wherein it was asserted that the

complainant committed a complete default by not making timely payment of enhanced price

and other dues due to which interest was charged upon him. It was also pleaded that the

complainant is not a consumer being re-allottee. The complainant failed to pay the enhanced

price for a long period due to which interest as per rules of HUDA was levied upon him and he

is liable to pay whole of the amount. It is also averred that the complainant has not paid

Rs.2,732/- and he must prove the deposit of this amount. An amount of Rs. 53,925/- was

demanded from the complainant vide letter dated 24.8.1994 which was not paid within time and

so, the rate of interest mentioned in that letter was charged upon him. Further, an amount of Rs.

187965/- became due on this plot upto 13.10.2008 and thereafter, the amount shall continue to

increase till the time it is paid in total as the complainant himself claimed to have paid only

Rs.1,55,000/- out of this amount upto 17.10.2008. Interest on the enhanced price has been

charged strictly as per the rules, regulations and instructions and policy of HUDA. It was also

averred that the complaint is hopelessly time barred

4. District Consumer Disputes Redressal Forum, Ambala (for short, ‘District Forum’),vide

its order dated 11.6.2010 has allowed the (Complaint No.140 of 2009)and also vide order dated

18.6.2010 allowed the (Complaint No.269 of 2009) respectively and passed the following

directions in (Complaint Case No.140 of 2009);

“ We are of the confirmed opinion that it is a clear cut case of deficiency in service on the part of OP by not making clear whether any compound interest has been demanded on the delayed payment or not. Nor any calculation has been attached alongwith the written statement or produced at the time of evidence. Hence, the present complaint is hereby accepted and the OP is directed to comply with the following directions within a period of 30 days from the date of receipt of copy of this order:-

a) to withdraw the impugned demand raised vide letter dated 13.10.2008;

b) to raise the demand afresh after recalculating the amount of enhanced land price applying the simple interest at the rate of 15% per annum and adjusting the amount of Rs.1,55,000/- already paid by the complainant. In case any excess amount is found deposited by the complainant, the same be refunded to him.

c) Also to pay Rs.3,000/- as compensation for harassment and litigation expenses.

5. Aggrieved by the order of the District Forum, petitioner filed appeals before the State

Commission which were dismissed in limine by the State Commission vide its impugned order.

6. Hence, the present revision petitions.

7. The main ground on which the order of both the Fora have been assailed is that in their

written statements, petitioner took the specific plea that the complaint has not been filed within

the period of limitation as the plot in question was allowed in 1979 and re-allotted in 1989

whereas, the complaint has been filed in 2009, so under the circumstances, order passed by the

Fora below are not legally sustainable.

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

respondent had issued a legal notice to the petitioners in the year 2008 and the complainant thus,

was filed within a period of limitation. The learned counsel for the respondent has relied upon

the following judgments;

(i) Delhi Financial Corporation v. B.B. Behl, the Punjab Law Reporter, Vol.CXXII-(1999-2);

(ii) State Bank of India, Bhubaneswar v. Ganajam District Tractor’s Owner’s Association and others,Punjab Law Reporter, Vol. CVIII(1994-3);

(iii) Gian Inder Sharma v. Haryana Urban Development Authority and others, 2002(2) PLJ;

(iv) Estate Officer, HUDA, Ambala Vs. Gurdial Singh, decided on 3rd

Feb.,2005 by this Commission

(v) H.U.D.A. v. Raj Singh Rana, 2009(1) RCR (Civil) and

(vi) H.U.D.A and another v. Sushil Kumar Nandal, 2011(1) CPC.

9. The only legal issue which arises for consideration in the present case is as to whether the

complaint filed by the respondent/complainant before the District Forum within the limitation

period or the same is barred by limitation.

10. Petitioner in its written statement filed before the District Forum has specifically raised

an objection that the case is highly time barred. It appears that both the fora below have over

looked the basic provision of Section 24A of the Consumer Protection Act, 1986 while deciding

the complaint as well as appeal.

11. As per the admitted case of the parties, both the respondents are allottee and conveyance

deed was executed in favour of respondent (RP No.4509 of 2010) whereas, in (RP No.4510 of

2010, the complainant was allowed the plot on 24.9.1974 and on 28.9.2002, he requested the

petitioner to intimate the outstanding dues. In response, the complaint filed before the District

Forum, petitioner took the plea that the answering respondent has concealed the material facts

from the Forum by not disclosing the receipt of notice dated 17.8.1994 issued to him for the

payment of dues pending against him as an enhancement and the respondent utterly failed to

make payment and remained in default till date.

12. Section 24-A of the Consumer Protection Act, 1986, deals with this situation which is

reproduced as under ;

“24-A. Limitation period :- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in sub-section (1) a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period. Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

13. The above provision is clearly peremptory in nature requiring the Consumer Fora to see

at the time of entertaining the complaint, whether it has been filed within the stipulated period of

two years from the date of cause of action.

14. Hon’ble Apex Court in case of Kandimalla Raghavaiah & Co. versus National Insurance

Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made

in case State Bank of India vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009

(4) SC 191, as under:-

“12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481

(SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has

held;

8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

15. In para No.13, it has been held by the Hon’ble Supreme Court that;

“The term “cause of action” is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as “bundle of facts”., which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, “cause of action” means the cause of action for which the suit is brought. “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.”

16. Now coming to the plea of learned counsel for the appellant that cause of action will

arise from the date of service of the legal notice dated 6.2.2008. This plea is of no help to the

appellant. It is well settled that by serving the legal notice or by making representation, the

period of limitation cannot be extended by the appellant. In this context, reference can be made

to Kandimalla Raghavaiah & Co. (supra), in which it has been held;

“By no stretch of imagination, it can be said that Insurance Company’s reply dated 21st March, 1996 to the legal notice dated 4th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24th October, 1997 and that too without an

application for condonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground.”

17. Accordingly, it is manifestly clear that both the complaints filed by the respondents before

the District Forum were hopelessly barred by limitaiton and no application for delay was filed on

behalf of the respondent. Under these circumstances, order passed by both the fora below cannot

be sustained and same are liable to be set aside. Consequently, we allow the revision petition and

dismissed the complaint filed before the District Forum.

…………………………J

(V.B. GUPTA)

(PRESIDING MEMBER)

……………………………

(REKHA GUPTA)

MEMBER

SSB/st,



(From order dated 30.10.2007 in First Appeal No.876 of 1997 of the State Consumer Disputes Redressal Commission, Orissa)

M/s Avery India Limited, 28/2,Water Loo Street, Kolkata-700069(West Bengal)

.... Petitioner

Versus

M/s Kaybee Sulphates Limited, Represented by its Director, Niranjan Aggarwal S/o Late Kedarnath Aggarwal, Resident of New Colony, P.O./P.S./Dist. Rayagada, Kay Bee Sulphates Limited at Pitamahal, P. O-Beheraguda, P.S./Dist-Rayagada

..... Respondent

BEFORE:

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

HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr.Vijay Bhat, Regional Manager, and Ms. Kanchan Gambhir, Asstt. Commissioner Secy. of petitioner Company in person.

Pronounced on: 3 rd January, 2014

O R D E R


Present revision petition has been filed by the Petitioner/O.P. under Section 21(b) of the

Consumer Protection Act,1986(for short, ‘Act’) against order dated 30.10.2007,passed by Orissa

State Consumer Disputes Redressal Commission, Cuttack (for short, ‘State Commission’)

2. Brief fact are that Respondent/Complainant filed a consumer complaint against the

petitioner alleging deficiency in service in not setting up the weigh-bridge at his Industrial Unit

and supplying him a defective transfer lever. It is stated by the respondent that he has Sulphate

Industry under construction and process of manufacturing sulphate. Petitioner is a limited

company dealing with sale and erection of weighing machine such as weighbridge. It is further

stated that respondent entered into a contract with the petitioner to purchase a weighbridge from

it. Petitioner agreed to sell, deliver and erect the weighbridge at the site of Pitamahal within the

stipulated time. Accordingly, respondent paid the price of weighbridge amounting to

Rs.2,23,395/- on 27.08.1996. It is further alleged that as per contract, respondent completed the

construction of the weighbridge platform as per the foundation drawing supplied by the

petitioner. However, the weighbridge supplied was defective as the transfer lever was broken,

which was to be replaced by the petitioner. It is alleged that the petitioner neither replaced the

same nor the weighbridge was erected as per the contract, in-spite of several requests of the

respondent. Due to such negligence of the petitioner in absence of the weighbridge, respondent

has suffered huge loss. In such circumstances, respondent has placed order with another

manufacturer to supply him a weighbridge. Thus, alleging deficiency in service, respondent filed

a consumer complaint against the petitioner to take back the defective weighbridge at their cost

and risk and to return the price received by them from him and to pay compensation of Rs.

50,000/-.

3. The petitioner in its written statement has stated that respondent is not a consumer, as his

aforesaid Industry at Pitamahal is for commercial purpose. However, respondent had placed an

order for a Road weighbridge with the petitioner who had agreed to sell the same at a price of

Rs.1,86,740/- giving 5% discount on the original sale price of Rs.1,96,540/-. Further, respondent

was to pay excise duty of 15%, 4% Orissa Sales Tax furnishing as Form-IV and packing charges.

It is further stated that petitioner was to arrange delivery at his site, the freight and insurance

charges having been agreed to be borne by the petitioner. After taking delivery of the

weighbridge, respondent had to construct the Civil work as per foundation drawing supplied by

the petitioner over which petitioner was to install the weighbridge. Respondent paid the price of

the weighbridge phase wise, as a result of which petitioner sent the weighbridge machine by road

on 24.08.1996 which reached respondent on 21.09.1996. While taking delivery of said machine

by the respondent, the Transfer lever was found broken as a result of which the J.E.E. of the

petitioner informed on 24.09.1996 to arrange replacement of the Transfer lever and to send it

direct to the respondent. As it is a spare part which is manufactured separately, time was taken

for its manufacturing. However, it was dispatched to the respondent on 02.02.1997 and it reached

respondent’s site on 09.03.1997. But the respondent refused to receive it and it was kept with the

petitioner till now. It is further stated that the respondent did not receive it in spite of request

made by the petitioner in writing on 10.3.1997, 18.03.1997 and through advocate in writing

dated 15.4.1997. The respondent refused to receive it on the ground that he has filed the

consumer case. It is further stated that though respondent received twice civil drawing for

construction of the said platform from petitioner, yet he had failed to construct in time the

platform properly to be fitted with 20 tons heavy weighbridge machine. So, the petitioner could

not install the weighbridge as respondent has failed to complete the civil work properly and he

also failed to give the full price with Central Excise Duty and Sales Tax with Form-IV as agreed

earlier. Further, it is stated that though, the petitioner is not responsible for breaking of the

Transfer lever, yet he has replaced the same at his cost. Therefore, respondent is not entitled to

get back the price of the weighbridge from them as well as compensation, as for his own

negligence the weighbridge could not be installed in his unit.

4. District Consumer Disputes Redressal Forum, Rayagada, Orissa(for short, ‘District

Forum’) allowed the complaint vide order dated 17.10.1997 and passed the following directions ;

“ The O.Ps to take back their weigh-bridge at their cost and pay back its cost to the complainant as they have not rendered proper service after receiving the full cost of the machine. To meet his needs the complainant is said to have hired the weigh-bridge from some other source and paid heavy hire-charges on that account. So the O.Ps are further directed to pay him 12% interest p.a. from the date of payment of the price of weigh-bridge till date of its payment to the complainant and also Rs.500/- towards cost of litigation”.

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

Commission which dismissed the same, vide its impugned order.

6. Hence, the present revision petition.

7. Notice of the revision petition was issued to the respondent/complainant. Respondent

was duly served by the Registered AD Post for 09.07.2013. On that date, none appeared on

behalf of the respondent. Thereafter, when the matter was listed for final hearing on 28.10.2013,

again none was present on behalf of the respondent, though it was duly served with notice for

that date also. Accordingly, respondent was proceeded exparte on 28.10.2013.

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

9. It has been argued by the learned counsel for the petitioner that respondent is not a

‘Consumer’ within the meaning of Section 2(1) (d) of the Act. Admittedly, the respondent runs a

Sulphate industry and had purchased the weighbridge from the petitioner for the purpose of

above industry only. Further, it was commercial transaction between the petitioner and the

respondent and the same is not a Consumer dispute.

10. Thus, both the Fora below have overlooked this basic fact and have wrongly allowed the

complaint of the respondent. In support, learned counsel has relied upon the decision of Laxmi

Engineering Works Vs. PSG Industrial Institute, II (1995)CPJ I (SC)= 1995 3 SCC 583.

11. As per respondent’s case, it is a limited company engaged in Sulphate industry and for

the process of manufacturing Sulphate, it entered into a contract with the petitioner for purchase

of weighbridge. Therefore, admittedly respondent is engaged in commercial activities and is

running an industry of manufacturing Sulphate.

12. Hon’ble Supreme Court has discussed the term ‘Consumer’ in the celebrated authority,

that is, Laxmi Engineering Works (Supra), wherein it was held;

“The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit”, he will not be a ‘consumer’, within the meaning of Section 2 (d)

(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion – the expression “large scale” is not a very precise expression – Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/ Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression “commercial purpose” – a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a ‘consumer’ but a person who buys a typewriter or a car for typing others’ work, for consideration or for plying the car as a ‘taxi’, can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of ‘self-employment’, such purchaser of goods is yet a ‘consumer’. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz, “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self-employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer”.

The Court further observed;

“A review of the provisions of the Act discloses that the quasi-judicial bodies/authorities/agencies created by the Act known as District Forums, State Commissions and the National Commission are not courts though invested with some of the powers of a civil court. They are quasi- judicial tribunals brought into existence to render inexpensive and speedy remedies to consumers. It is equally clear that these forums/commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. The forum so created is uninhibited by the requirement of court fee or the formal procedures of a court. Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself, any recognized consumers' association can espouse his cause. Where a large number of consumers have a similar

complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/their behalf The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for"business-to-consumer' disputes and not for "business-to-business" disputes. This scheme of the Act in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal”.

13. In view of the above dictum of the law laid down by the Hon’ble Apex Court

respondent/complainant herein, by no stretch of imagination would come within the meaning of

‘Consumer’ as defined under the Act. Accordingly, we hold that both the Fora below have

committed grave error in allowing the complaint of the respondent.We, therefore allow the

present revision petition and dismiss the complaint filed by the respondent before the District

Forum. With these observations, the present petition stands disposed of.


……..……………………J

(V.B. GUPTA) (PRESIDING MEMBER)

…………………………

(REKHA GUPTA) MEMBER

SSB/



(From order dated 15.10.2013 in Complaint Case No. CC/13/233 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

WITH I.A. No. 7989 OF 2013 I.A. No. 7990 OF 2013 (Stay, Condonation of Delay)

TATA AIG General Insurance Co. Ltd. 1st Floor, Lotus Tower, Community Centre, New Friends Colony, New Delhi

… Petitioner

Versus

Kanan Knitwear Having registered office at 204/205 Sunmill Compound, Lower Parel (West) Mumbai through its Partner Shri Pradip Mehta & Shri Hemal Mehta & Shri Rikin Mehta

… Respondent

BEFORE:

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

HON’BLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner : Mr. K. L. Nandwani, Advocate

Pronounced on 6 th January, 2014

O R D E R

JUSTICE J. M. MALIK, PRESIDING MEMBER

1. Tata AIG General Insurance Company Limited, the petitioner/opposite party has called into

question the order rendered on 15.10.2013 by the State Commission, wherein by virtue of

Section 13(2)(a) of the Consumer Protection Act, 1986, the right of the opposite party was

forfeited to file the written version as it could not file the written version within 45 days from the

date of its service.

2. There are two judgments of the Hon’ble Apex Court decided by three judges Benches in

this context. One case is titled as Dr. J. J. Merchant vs. Srinath Chaturvedi III 2002 CPJ 8(SC).

The Apex Court took the different view in Kailash vs. Nanhku and Ors . 2005 (4) SCC 480 . Vide

order dated 29.11.2013, the matter has been referred to the Larger Bench subject to certain

conditions in case titled as New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage

Pvt. Ltd., Civil Appeal No.(s) D 35086 of 2013.

3. The duty cast upon this Commission is to see whether the time can be extended after

examining the request made by the petitioner on the touchstone of both the above said two

divergent orders passed by the Supreme Court. If the case of the petitioner is not covered by

both the above said authorities, giving different views, the Commission will not extend the time.

4. The State Commission has declined to extend the time. That view is supported by the

judgments in Dr. J. J. Merchant vs. Srinath Chaturvedi III 2002 CPJ 8(supra) , Oriental Insurance

Co. Ltd. vs. M/s Rajan Kumar & Bros ( Impex ), SLP (civil) No. 24705 of 2013 decided on

13.08.2013, Kamal Prit Palta & Anr . Vs. Vikas Rana & Ors ., civil appeal No. 4806-4807 of

2013 decided on 12.7.2013, Unitech Ltd. vs. Sanjay Goyal & Ors ., Civil appeal No .( s) 6042 of

2013.

5. Although this Commission gave liberty to file the written statement to the opposite party

after expiry of 45 days in case of Kamdhenu Pickles and Spices Industries Private Ltd. versus

Regional Claims Manager HDFC EGRO and another after reading the judgment of Kamal Prit

Palta and another (supra) subject to deposit of half of the amount claimed by the complainant in

the sum of Rs.1,93,00,000/-. However, subsequently the same Bench has referred the matter to

the Larger Bench in another case.

6. The case of the petitioner is covered by Dr. J. J. Merchant vs. Srinath Chaturvedi (supra)

and consequently, no time can be extended.

7. Moreover, the law laid down in Kailash vs. Nanhku and Ors . ( supra ) is also not

applicable to this case. In Kailash vs. Nanhku and Ors. (supra) it was held:

“38. The learned counsel for the respondent, on the other hand, invited

our attention to a three-judge Bench decision of this Court in Dr. J.J.

Merchant and Ors. V. Shrinath Chaturvedi MANU/SC/0668/2002 :

[2002]SUPP1SCR469, wherein we find a reference made to Order VIII,

Rule 1 of the CPC vide paras 14 and 15 thereof and the Court having said

that the mandate of the law is required to be strictly adhered to. A careful

reading of the judgment shows that the provisions of Order VIII, Rule 1 of

the CPC did not directly arise for consideration before the Court and to

that extent the observations made by the Court are obiter. Also, the

attention of the Court was not invited to the earlier decision of this Court

in Topline Shoes Ltd. Vs . Corporation Bank JT 2002 (5) SC 111.

39. It was submitted by the senior learned counsel for the appellant

that there may be cases and cases which cannot be foretold or thought of

precisely when grave injustice may result if the time limit of days

prescribed by Order VIII, Rule 1 was rigidly followed as an

insurmountable barrier. The defendant may have fallen sick, unable to

move; may be he is lying unconscious. Also, the person entrusted with the

job of presenting a written statement, complete in all respects and on his

way to the court, may meet with an accident. The illustrations can be

multiplied. If the schedule of time as prescribed was to be followed as a

rule of thumb, failure of justice may be occasioned though for the delay,

the defendant and his counsel may not be to blame at all. However, the

learned counsel for respondent No. 1 submitted that if the court was to

take a liberal view of the provision and introduce elasticity into the

apparent rigidity of the language, the whole purpose behind enacting

Order VIII, Rule 1 in the present form may be lost. It will be undoing the

amendment and restoring the pre-amendment position, submitted the

learned counsel.

46………

(i)………

(v) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law

and hence directory, keeping in view the need for expeditious trial of civil

causes which persuaded the Parliament to enact the provision in its

present form, it is held that ordinarily the time schedule contained in the

provision is to be followed as a rule and departure therefrom would be by

way of exception. A prayer for extension of time made by the defendant

shall not be granted just as a matter of routine and merely for asking,

more so when the period of 90 days has expired. Extension of time may be

allowed by way of an exception, for reasons to be assigned by the

defendant and also be placed on record in writing, howsoever briefly, by

the Court on its being satisfied. Extension of time may be allowed if it was

needed to be given for the circumstances which are exceptional,

occasioned by reasons beyond the control of the defendant and grave

injustice would be occasioned if the time was not extended. Costs may be

imposed and affidavit or documents in support of the grounds pleaded by

the defendant for extension of time may be demanded, depending on the

facts and circumstances of a given case.”

(Emphasis Added)

8. It must be borne in mind that the authority of Dr. Dr. J. J. Merchant vs. Srinath

Chaturvedi (supra ) is a direct judgment under the Consumer Protection Act, 1986 and authority

in Kailash vs. Nanhku and Ors( supra) is a judgment under Order VIII Rule 1 C.P. C. Let us see

whether the case of the petitioner is covered by the judgment given in Nanhku vs. Kailash and

Ors . ( supra ).

9. The instant case was admitted by the State Commission on 26.6.2013. The opposite

party was served on 24.7.2013. It could not file the written statement within 45 days. Shri S. R.

Singh, learned counsel for the petitioner appeared in the State Commission on 15.10.2013. His

Vakalatnama was filed. It appears that the written statement was not filed even on 15.10.2013.

It is surprising to note that the petitioner has not given any reason for extension of time. They

have given the grounds in the relevant paras, which are reproduced as under:

“B. Because the Ld. State Commission has erred in holding that it is

bound by Section 13(2)(a) of the Consumer Protection Act, whereas it has

been laid down in Section 18 of the Act that the same can be modified by

the State Commission to dispose of disputes before it.

C. Because the Ld. State Commission has erred in not granting further

time to the appellant for filing its written version as same could have been

granted subject to conditions as the Ld. State Commission would have

deemed fit. Moreover, the case was at the very initial stage and no harm

would have caused to the parties in giving time to the appellant for filing

the reply, which would have been very important in understanding and

deciding the case on merits.

D. Because the Ld. State Commission has not followed the spirit of the act

and the provisions of the same.”

10. While repeating observations made by the Apex Court in Kailash vs. Nanhku and Ors .

( supra ), we hereby find that “extension of time may be allowed by way of an exception for

reasons to be assigned by the defendant and also be placed on record in writing howsoever,

briefly by the court on its being specified.” No reason at all has been cited. It must be borne in

mind that the procedure of C.P.C. and Consumer Protection Act, 1986 are entirely different.

Consumer Protection Act, 1986 envisages a summary procedure. Section 13 clause 3(A) runs as

follows:

“13(3A) Every complaint shall be heard as expeditiously as possible and

endeavor shall be made to decide the complaint within a period of three

months from the date of receipt of notice by opposite party where the

complaint does not require analysis or testing of commodities and within

five months, if it requires analysis or testing of commodities:

Provided that no adjournment shall be ordinarily granted by the District

Forum unless sufficient cause is shown and the reasons for grant of

adjournment have been recorded in writing by the Forum

Provided further that the District Forum shall make such orders as to the

costs occasioned by the adjournment as may be provided in the

regulations made under this Act.

Provided also that in the event of a complaint being disposed of after the

period so specified, the District Forum shall record in writing, the reasons

for the same at the time of disposing of the said complaint.”

It is thus clear that in the instant case, three months’ time after the receipt of the notice had

already elapsed. Consequently, the order passed by the State Commission cannot be faulted.

11. The revision petition is without merits, therefore, the same is hereby dismissed.

.…..………Sd/-…………………

(J. M. MALIK, J)

PRESIDING MEMBER

.…..……Sd/-……………………

(S. M. KANTIKAR)

MEMBER

Naresh/6


REVISION PETITION NO.1223 OF 2012

Along with I.A. No. 1 of 2012 for Condonation of Delay I.A. No. 2 of 2012 for Stay

(Against order dated in.01.12.2011 First Appeal No. 1578 of 2009 of the State Consumer Disputes Redressal Commission, Rajasthan)

Agricultural Insurance Co. of India Ltd. C-Scheme, Jaipur through Regional Manager through Its Head Office at, 13th Floor, Amdadeep Building, 14 K. G. Marg, Cannaught Place, New Delhi-110001.

....... Petitioner

Versus

Sh. Govind Singh son of Sh. Bhurmal Jat, Resident of Shayaroli, Tehsil Gangapur City District Swai Madhopur, Rajasthan

..... Respondent

BEFORE:

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

HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Sanjiv Sharma, Advocate

For the Respondent : Respondent No.1 is already exparte

Dated :6th January, 2014

ORAL ORDER

Heard.

2. Alongwith present revision petition, petitioner/ Opposite Party No.3 has filed an

application seeking condonation of delay of 21 days.

3. For the reasons mentioned in the application, the delay is condoned.

4. Respondent No.1/Complainant had filed a Consumer Complaint before the District

Consumer Disputes Redressal, Sawai Madhopur, Rajsthan (for short, ‘District Forum’) alleging

deficiency on the ground that he had taken an agricultural loan in the year 2006 and got the

insurance for his entire agricultural land from the opposite parties, including petitioner.

However, the crop of Mustard and Wheat which had been grown on the agricultural land were

completed destroyed due to hailstorm for which Tehsildar has got an inspection done through

Patwari of the area concerned. Respondent No.1 requested the O.Ps to pay the insurance amount

which was not paid. Hence, alleging deficiency on the part of the opposite parties, respondent

no.1 filed a Consumer Complaint.

5. Before the District Forum, opposite parties no.1 and 2 were duly served but did not

appear nor did they file any reply. Hence, they were proceeded exparte.

6. It was petitioner alone who contested the complaint denying any deficiency on its part.

7. District Forum, vide order dated 9.9.2009 allowed the complaint of the respondent no.1

and awarded him a sum of Rs.11,000/- for the crop of wheat and Rs.4,000/- towards

compensation and Rs.1,000/- for the cost of litigation.

8. Petitioner filed an appeal before the State Consumer Disputes Rederssal Commission,

Jaipur (Rajasthan) (for short,‘State Commission’)which was dismissed, vide impugned order

dated 1.12.2011.

9. Aggrieved by the order of the State Commission, petitioner has filed the present revision

petition.

10. Notice of this petition was issued to respondent no.1. Initially, Mr. S.C. Gupta, Advocate

on behalf of respondent no.1 appeared and sought time to file his Vakalatnama but the same was

not filed. Thereafter, on 15.5.2013 none appeared on behalf of the respondent no.1, as such he

was proceeded exparte on that date.

11. It has been contended by the learned counsel for the petitioner that the State Commission

in exercise of its jurisdiction has acted illegally and committed material irregularity. On one hand

in its impugned order it observe that;

“Seven appeals no. 1428/2009 to 1434/2009 have been decided vide order dated 10.5.2010 by the State Commission on similar facts as in the present appeal. In the present appeal, whatever order has been passed by the District Forum, looking into the present facts, we do not find any ground to differ from the order of the State Commission.

Since the order of the District Forum has been passed on the basis of the facts, the rightful relief has been granted to the complainant by rightful application of mind. Therefore, we do not find any ground to interfere.

The appeal of the appellant is dismissed. The amount deposited by the appellant alongwith the earned profit be adjusted into the amount which is to be paid to the complainant. One month time is given for making the remaining compliance”

On the other hand, it has wrongly dismissed the appeal of the petitioner. As per State

Commission’s own reasoning as quoted above, the appeal of the petitioner ought to have been

allowed.

12. We fully agree with the submissions made by the learned counsel, that the State Commission

has acted illegally and has committed grave material irregularity in passing the impugned order.

Moreover, there is a total non-application of mind on the part of the State Commission while

deciding the appeal of the petitioner.

13. A bare perusal of the impugned order quoted above, clearly shows that no reason whatsoever

has been given by the State Commission while deciding the appeal of the petitioner. The State

Commission has even not taken the trouble of mentioning the facts as well as contentions raised

by the learned counsel for the parties.

14. Further, as per copy of order dated 10.5.2010, passed by the State Commission in Appeals

No. 1428 to 1434 of 2009 (reference of which is there in the impugned order), the complaints

filed before the District Forum were partly accepted. The present petitioner was an appellant

before the State Commission in those cases who had filed the above noted appeals. Admittedly,

the State Commission had allowed all those appeals and had set aside the order dated

14.09.2009, passed by the District Forum and had dismissed the complaints filed by the

complainants.

15. We are really surprised as to how and on what basis the State Commission had dismissed

the appeal of the petitioner in the present case, relying upon its own order dated 10.5.2010

passed in (Appeals No. 1428 to 1434 of 2009). This clearly shows that there is total non-

application of mind on the part of the State Commission. 16. We may further point out that this

non-application of mind on the part of the State Commission is due to the fact that this State

Commission, as a matter of practice never give any reasons while disposing the appeals filed

before it.

17. We shall be failing in our duty, if we do not mention that, earlier also inspite of specific

directions given by this Commission to the State Commission, Rajasthan, it has been willfully

ignoring all our directions.

18. In regard, we quote a decision of this Commission, Jaipur Vidut Vitran Nigam Ltd. Vs.

Prakartik Society, RP No.3951 of 2012, decided on 4.4.2013, wherein we observed;

3. Being aggrieved by order of the District Forum, petitioner preferred (Appeal No.110 of 2011) under Section 15 of the Consumer Protection Act, 1986 (short‘Act’) before Rajasthan State Consumer Disputes Redressal Commission,Jaipur (short, “State Commission”). State Commission dismissed the appeal at the admission stage itself, vide order dated 13.5.2011 without giving any reason. It is further stated that, petitioner filed (Revision Petition No.2772 of 2011) before this Commission and challenged order dated 13.5.2011. This Commission vide order dated 24.5.2012, allowed the revision and remanded back the appeal to the State Commission, for deciding the same after giving due reasons.

4. After remand, State Commission again dismissed petitioner’s appeal, vide order dated 16.7.2012, without giving any reason. As such, impugned order is liable to be set aside.

5. Counsel for respondent does not dispute these facts.

6. It is an admitted fact that earlier State Commission dismissed (Appeal No.110 of 2011) vide order dated 13.5.2011 and observed;

“Keeping in view all the facts and circumstances of the case, there is no error in the order dated 16.12.2010 passed in complaint No.119 of 2007 by District Consumer Disputes Redressal Forum, Savai Madhopur. The order of the District Forum is based on facts in which there is no need for interfere and the appeal of the appellant being without any force is liable to be dismissed. Therefore, the appeal of the appellant is dismissed and the orders of the District Consumer Disputes Forum, Savai Madhopur dated 16.12.2010 passed in complaint No.119/2007 are confirmed”.

7. Against order dated 13.5.2011, petitioner preferred(Revision Petition No.2772 of 2011) before this Commission and the same was allowed vide order dated 24.5.2012.This Commission held ;

“After perusal of the impugned order, we find that appeal has been dismissed by the State Commission by making general observations that there is no error in the order of the District Forum. Passing of a non-speaking order is against the principle of natural justice. Hence, we are incline to allow this appeal and to remand the matter at the admission stage itself.

We, therefore, allow this petition. Impugned order is set aside and matter is remanded to the State Commission with directions to consider the same on merits and to decide the same after giving due reasons.

State Commission shall make endeavor to dispose of the appeal

preferably, within a period of six months from the date of receipt of the order.

Revision petition stands disposed of accordingly. Parties are directed to appear before the State Commission on

16.7.2012”.

8. After remand, State Commission again without giving any reason, dismissed petitioner’s appeal, vide impugned order dated 16.7.2012.Translated copy of the order states ;

“The present matter has been remand back from Hon’ble National Consumer Disputes Redressal Commission vide order dated 24.5.2012.

Looking and the facts circumstances. We find in error in the judgment/Abroad passed by District Forum Sub by Madhopur in Case No.199 of 2007 passed on 16.12.2010.

As the Abroad passed by the District Forum has been passed by deeply looking into the matter. We have it should be find that there is no point in interference. Abroad and hence, the present appeal against by dated 16.12.2010 passed in Case No.199 of 2007.

Sd/- Sd/-(Sunita Ranka) (Ashok Parihar)

Member, Chairman State Commission Consumer State Commission Disputes,Jaipur Consumer Disputes, Jaipur 9. Bare perusal of impugned order shows that, no reason whatsoever has been given by the State Commission. Hon’ble Supreme Court in, HVPNL Vs. Mahavir (2004) 10 SCC 86 observed ;

“4. At the admission stage, we passed an order on 21.7.2000 as follows :

“In a number of cases coming up in appeal in this Court, we find that the State Consumer Disputes Redressal Commission, Haryana at Chandigarh is passing a standard order in the following terms :

‘We have heard the Law Officer of HVPNL, appellant and have also perused the impugned order. We do not find any legal infirmity in the details and well-reasoned order passed by District Forum, Kaithal. Accordingly, we uphold the impugned order and dismiss the appeal.’

We may point out that while dealing with a first appeal, this is not the way to dispose of the matter.

The appellant forum is bound to refer to the pleadings of the case, the submissions of the counsel, necessary points for consideration, discuss the evidence and dispose of the matter by giving valid reasons. It is very easy to dispose of any appeal in this fashion and the higher courts would not know whether learned State Commission had applied its mind to the case. We hope that such orders will not be passed by the State Consumer Disputes Redressal Commission, Haryana at Chandigarh in future. A copy of this order may be communicated to the Commission.

Issue notice for remand of the matter to the State Commission for disposal afresh in accordance with law.

Status quo, as of today, shall be maintained by the parties.

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.”

10. Again, in Canadian 4 Ur Immigration Ser & Anr. Vs. Lakhwinder Singh, Special Leave to Appeal (Civil) No. (s) 8811/2009, decided on 21.2.2011, Hon’ble Apex Court held ;

“A bare perusal of the impugned order of the National Commission shows that no reasons have been recorded therein. It is well settled that even an order of affirmance must contain reasons, even though in brief, vide Divisional Forest Officer VS. Madhusudan Rao, JT 2008 (2) SC 253, vide para 19.

In the result, this appeal is allowed. The impugned order of the National Commission is set aside and the matter is remanded back to the National Commission to decide the matter afresh in accordance with law after hearing the parties concerned and by giving reasons.”

11. In the present case, the State Commission inspite of specific directions given by this Commission, did not give any reason while deciding the appeal. In view of the dictum of Hon’ble Supreme Court in HVPNL Vs. Mahavir and Canadian 4 Ur Immigration Ser (supra) we have no option but to allow the present revision petition. Accordingly, impugned order passed by the State Commission is set aside and matter is again remanded back to the State Commission, with specific directions that it should consider the matter afresh, in accordance with law after hearing the parties concerned and by giving appropriate reasons.

12. State Commission shall make an endeavour to dispose of the appeal, preferably within six months from the date of receipt of this order.

13. Present revision stands disposed of accordingly.”

19. Before parting with, we must express our deep anguish at the manner in which the State

Commission has been disposing the appeals in a mechanical manner without giving any reasons

whatsoever, inspite of mandate given by the Hon’ble Apex Court, that while deciding the

appeals, the Appellate Forum must give specific reasons.

20. Accordingly, we set aside the impugned order passed by the State Commission and

remand the matter back to it with specific directions that it should consider the matter afresh in

accordance with the provisions of law and keeping in view the above observations made by this

Commission, by giving appropriate reasons.

21. The State Commission shall make an endeavour to dispose of the appeal, preferably

within six months from the date of receipt of this order.

22. Present revision petition stands disposed of accordingly.

23. Petitioner is directed to appear before the State Commission on 12.2.2014.

24. Dasti.

…………………………J

(V.B. GUPTA)

(PRESIDING MEMBER)

…………………………

(REKHA GUPTA)

MEMBER

SSB/16



(From the order dated 20.03.2008 in First Appeal No. 87/2008 of the State Consumer Disputes Redressal Commission, Delhi)

Sh. D. Vilas Rao Deputy Manager (Legal) Authorized Representative of Sundram Finance Ltd. 607-608, 6th Floor, Ashok Estate No. 24, Barakhamba Road, New Delhi – 110001

…Petitioner/Opp. Party (OP)

Versus

Shri Amit Kumar Sharma S/o Sh. M.P. Sharma, R/o 68-69, Baba Colony, Burari, New Delhi

…Respondent/Complainant

BEFORE

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

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner: Mr. Sanjay Kumar, Advocate with Mr. Saurabh , Asstt. Mgr. (Legal)

For the Respondent : Mr. B.K. Srivastava, Advocate

PRONOUNCED ON 7 th January, 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 20.03.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in Appeal No. 87 of 2008 – Sundaram Finance Ltd. Vs. Amit Kumar Sharma by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent entered into loan agreement for purchasing a new Tata Indica Car with OP/petitioner for loan amount of Rs.2,90,000/-, which was to be paid in 47 monthly instalments of Rs.7,854/-. Complainant deposited 47 post-dated cheques of Rs.7,854/- each against the instalments. Cheques were cleared till 11.9.2003. Due to financial constraints, complainant could not pay instalment of October, 2003 and he intimated to Shri Shyam Sunder on 8.11.2003 on telephone that instalments of October and November will be deposited in November, 2003, but on 13.11.2003 some unknown persons revealing themselves to be the persons of OP snatched vehicle from complainant’s driver. Notice given by complainant was not replied by OP. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP appeared and submitted that as per clause of the loan agreement, the matter was to be referred to Arbitrator for Arbitration. Learned District Forum dismissed application under Section 8 of the Arbitration and Conciliation Act, 1996 filed by OP on account of non-appearance of OP and allowed complaint ex-parte and directed OP to pay compensation of Rs.50,000/- and further awarded Rs.5,000/- as 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. Heard learned Counsel for the parties and perused record.

4. Learned Counsel for the petitioner submitted that petitioner was not given any opportunity to file written submissions and to lead evidence and learned District Forum has wrongly mentioned in the order that both the parties led evidence and both the parties were heard and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside and matter be remanded back to District Forum. Learned Counsel for the respondent also admitted that by inadvertence, learned District forum has recorded that parties led evidence and they were heard, but submitted that on merits order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. Perusal of order sheets of District Forum reveals that petitioner has not filed reply to the complaint and filed application under Section 8 of the Arbitration and Conciliation Act, 1996, which was adjourned from time to time. On 5.2.2007, none appeared for the OP and in such circumstances, his application under Section 8 of the Arbitration and Conciliation Act, 1996 was dismissed and he was proceeded ex-parte and on next date i.e. 22.3.2007, complainant filed affidavit and later on after hearing complainant, complaint was allowed by District forum. Admittedly, OP was not given any opportunity to file written submissions. After dismissal of application under Section 8 of the Arbitration and Conciliation Act, 1996, learned District Forum should have given opportunity to the OP to file written statement and lead evidence in counter to affidavit filed by the complainant. Learned District Forum wrongly mentioned in the order that OP contested the complaint, led evidence and he was heard. Learned Counsel for the respondent does not dispute these facts.

6. As learned District Forum decided complaint without giving opportunity to the petitioner to file written statement and to lead evidence and learned State Commission further committed error in dismissing appeal without looking to this aspect, we deem it proper to set aside the impugned order and remand the matter back to the learned District Forum.

7. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 20.3.2008 passed by learned State Commission in Appeal No. 87 of 2008 – Sundaram Finance Ltd. Vs. Amit Kumar Sharma and order of District Forum dated 6.12.2007 is set aside and matter is remanded back to District Forum to decide the complaint after giving an opportunity to the petitioner to file written statement and lead evidence with no order as to costs.

8. Parties are directed to appear before the learned District forum on 6.2.2014 and on that date, petitioner shall file its written statement.

………………Sd/-……………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk



(From the order dated 29.08.2012 in First Appeal No. A/11/444 of Maharashtra State Consumer Disputes Redressal Commission)

Runwal Developers Pvt. Ltd. Runwal & Omkar Esquare, 5th Floor, Opp Sion Chunnabhatti Signal, Off Eastern Express Highway, Sion (E) Mumbai – 400022.

... Petitioners

Versus

Dinesh Hegde r/o C/11, Cynara Opposite Mukund L.B.S. Marg, Kurla (W), Mumbai – 400070

… Respondent


(From the order dated 29.08.2012 in First Appeal No. A/11/444 of Maharashtra State Consumer Disputes Redressal Commission)

Dinesh Hegde r/o C/11, Cynara Opposite Mukund L.B.S. Marg, Kurla (W), Mumbai – 400070... Petitioners

Versus

Runwal Developers Pvt. Ltd. Runwal & Omkar Esquare, 5th Floor, Opp Sion Chunnabhatti Signal, Off Eastern Express Highway, Sion (E) Mumbai – 400022.

… Respondent

BEFORE



APPEARED AT THE TIME OF ARGUMENTS

For the Petitioner(s) Mr. Sudhir Nandarajog, Sr. AdvocateMr. Vikas Mehta,

Advocate

Ms.Aditi Mishra, Advocate Mr. Kumar Rachit,

Advocate

For the Respondent/ Mrs. Bindu Jain, Advocate

Complainant

PRONOUNCED ON : 7 th JANUARY 2014

O R D E R

PER DR. B.C. GUPTA, MEMBER

These two revision petitions, i.e., RP No. 4890 of 2012, “Dinesh Vittal Hegde versus Runwal Developers Pvt. Ltd.” and RP No. 4108 of 2012, ‘Runwal Developers Pvt. Ltd. versus Dinesh Hegde” have been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 29.08.2012, passed by the Maharashtra State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No. A/11/444, “Dinesh Vittal Hegde versus Runwal Developers Pvt. Ltd.”, vide which while allowing the appeal, the order dated 19.04.2011 passed by the District Consumer Disputes Redressal Forum, Mumbai (suburban), dismissing the consumer complaint in question, was set aside. This single order shall dispose of both these revision petitions and a copy of the same be kept on each file.

2. Brief facts of the case are that complainant Dinesh Vittal Hegde was allotted flat no. 302 in the scheme, Runwal Pride, behind R Mall, LBS Marg, Mulund and he paid Rs.20,000/- as advance deposit for the same. (It has been wrongly mentioned in the impugned order that two flats were purchased as per agreement dated 11.05.2005). This flat was being constructed by the O.P. “Runwal Developers Pvt. Ltd.” and the total price of the flat was Rs.31,66,750/- including maintenance changes for the first eighteen months. The complainant paid further Rs.30,000/- on 16.12.2004 and Rs.1,16,750/- on 15.03.2005 and in this way, a total sum of Rs.1,66,750/- being 5% of the total value of the flat was paid by the complainant to the OP. An agreement of sale was signed between the parties on 11.04.2005, according to which the OP was to complete the construction and hand over the possession of the flat by 31.10.2006. The registration fee was paid on 07.04.2005 and the flat was registered on 16.04.2005. As per the record of the case, demand letters for payment of money were sent by the builder to the complainant from time to time and he kept on making payments as per the demand made in those letters. On 13.04.2008, the OP sent a letter, requesting final payment of Rs.2,89,713/- saying that 100% construction work had been completed. The said payment was also made on 19.10.2008. The case of the complainant is that the OP failed to deliver the possession to him on one pretext or the other, and finally demanded an additional sum of Rs.9,68,510/- as payment of interest vide letter dated 26.11.2009. The possession was given only after the said amount was paid. The case of the OP, on the other hand, is that this flat had been allotted under Advance Disbursement Facility (ADF), according to which after making payment of Rs.1,66,750/-, the remaining amount of Rs.30 lakh was to be paid in one go. As the complainant had opted for booking under the ‘Advance Disbursement Facility’ (ADF), the builder, therefore, asked them to make the payment of interest of Rs.9.68 lakh, after taking into account the dates of deposit of various instalments from time to time. The District Forum after taking into account the evidence of the parties, dismissed the complaint in question. However, in appeal, the State Commission partly allowed the appeal of the complainant and directed the OP to refund the amount of Rs.9,68,510/- along with interest @9% p.a. from the date of filing the consumer complaint, i.e., 05.06.2010. Against this order, the present revision petition has been made one by the complainant, Dinesh Vittal Hegde, RP No. 4890 / 2012 in which the complainant has demanded the refund of Rs.9,68,510/- with interest @18% p.a. from 6.5.2010 and a compensation of Rs.6,75,000/- for delay in delivering the possession by 18 months, a compensation of Rs.1,50,000/-, refund of Rs.54,000/- paid towards maintenance charges without receiving possession of flat and withdrawal of demand for additional Rs.23,675/- for maintenance from Feb. 2008 to March 2010 and demand of Rs.41,657/- for property tax and legal expenses of Rs.1,50,000/-. The second revision petition no. 4108/2012 has been filed by the Developer/OP, in which it has been demanded that the impugned order dated 29.08.2012 may be set aside.

3. At the time of hearing before us, learned counsel for the OP/Builder argued that the said flat had been booked by the complainant under the ‘Advance Disbursement Facility’, according to which the money is required to be paid at the initial stage itself and in the process, the allottee is entitled to some discount. In the present case, the complainant has been found to be a persistent defaulter, because he did not make the payment of the entire money in one instalment. The learned counsel further stated that as stated in the agreement dated 11.04.2005, the interest is to be charged @21% p.a., if any payment is delayed beyond a period of 7 days. The complainant had made full payment and the interest also before taking the possession in this case, but later on, he sought refund of the interest deposited, by filing the consumer complaint in question. The complaint had been rightly dismissed by the District Forum and the same order should have been upheld by the State Commission. Learned counsel contended that OP had sent reminders to the complainant from time to time asking him to deposit the necessary amount with them. Copies of these letters were on record.

4. In reply, the learned counsel for complainant, Dinesh Vittal Hegde denied having availed of any ADF facility. He stated that in his ‘affidavit in evidence’ in support of his complaint filed before the District Forum, he had clearly denied having opted for Advance Disbursement Facility. He also denied that he was offered concessional rates of Rs.2,650/- per sq. ft. In fact, the market rate in the locality at that time was Rs.2,650/- per sq. ft. only. Learned counsel has further drawn our attention to the letters received from the OP from time to time, informing about the percentage of completion of the project and asking for more money. In these letters, they never asked for the interest component. The payments were made in accordance with the demands raised in these letters. The learned counsel specifically referred to a letter dated 13.04.2008 through which a demand of Rs.2,89,713/- had been made. The total cost of the flat as well as the amount received has been mentioned in the said letter. The balance cost of the flat has been stated to be Rs.1,58,337/- and by adding various charges like the society charges, maintenance charges, development charges, etc., the sum of Rs.2,89,713/- had been demanded. The said sum was also paid to the builder. The complainant sent a letter dated 28.11.2008 to the builder requesting him to deliver him the possession of the flat since he had deposited the entire money, including the payment of Rs.2,89,713/-. The builder did not deliver the possession, although the project had been completed in February 2008; but then all of a sudden, sent a letter on 25.11.2009, asking for the payment of Rs.9,68,510/- as interest charges. In fact, they insisted that the said amount should be paid in cash, but on the insistence of the complainant, they accepted the said amount through cheque. The learned counsel stated that the builder was supposed to deliver the possession by the year 2006 as per the terms of agreement, but the possession was given on 06.05.2010. He stated that interest should rather be given by the builder to the complainant for the late delivery of possession by way of compensation. The learned counsel also referred to the order passed by the Hon’ble Supreme Court in “V.N. Bharat versus G.D.A.” [IV (2008) CPJ 13 (SC)] and “Rubi (Chandra) Dutta versus United India Insurance Co. Ltd.” [2011 (11) SCC (269)] in support of his arguments stating that interest should be paid from the date of the filing of the complaint.

5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. It is made out from the facts on record that the builder obtained the occupation certificate for the said project in February 2008, but the possession of the flat was given on 06.05.2010, although it has been mentioned in the agreement dated 11.04.2005 that the possession may be given before 31.10.2006. The crucial documents in the case are the letters written by the builder to the complainant, demanding payment of money from time to time. The total cost of the flat has been stated to be Rs.31,66,750/-, out of which 5% amount, i.e., Rs.1,66,750/- was paid at the initial stage, while booking the flat. Later on, there are letters dated 3.3.2005, 09.05.2005, 17.06.2005, 12.07.,2005, 22.07.2005, 10.12.2005, 10.05.2006, 07.11.2006, 06.11.2007, 25.12.2007, 13.04.2008 and 04.11.2008 on record. In none of these letters, there is mention of any amount due to the builder on account of interest components. In one letter dated 03.03.2005, it has been mentioned that it was ADF case and, therefore, 100% payment was due, but in all subsequent letters, there is no mention of any interest component. On the letter dated 13.04.2008, through which final demand of Rs.2,89,713/- was raised, there is no mention of any interest component. In the detailed letter sent by the Builder on 04.11.2008 to the complainant it has been mentioned as follows:-

“We are pleased to handover the possession of flat No. 302 on 3rd Floor in A wing at Runwal Pride, LBS Marg, Behind R Mall, Mulund (W) Mumbai

as we have already obtained Occupation Certificate (OC) dated 14.02.2008 from Mumbai Municipal Corporation………”

6. A number of other terms and conditions have been mentioned in the said letter, but it has nowhere been stated that any money is outstanding from the complainant on account of interest. It is only through letter dated 25.11.2009 that a demand of Rs.9,68,510/- was raised by the Builder, saying that the said money was payable on account of interest.

7. From the entire factual matrix of the case, it is made out that in accordance with the agreement dated 11.04.2005, executed between the parties, the said flat was booked under the Advanced Disbursement Facility Scheme under which the entire payment was to be made in one single instalment. On the booking form dated 29.11.2004, copy of which is on record, the cost of the flat was first written as Rs.32,25,305/- @Rs.2,699/- per sq. ft., but later on, there was cutting on these figures and the cost of flat has been shown to be Rs.31,66,750/- at a rate of Rs.2,650/- per sq. ft. In the letters dated 17.01.2005 and 3.03.2005 sent by the OP to the complainant, mention has again been made about the ADF case and it has been stated in the letter dated 03.03.2005 that 100% amount is due. However, interestingly, in all subsequent letters, there is no mention of ADF scheme and in all such letters, the progress of the construction of the flat has been intimated and the sum due has been demanded. The letter dated 13.04.2008 says that the total balance amount is Rs.2,89,713/-, out of which the balance cost of the flat is Rs.1,58,337/-. In the letter dated 04.11.2008, vide which the possession was offered, there is no mention of ADF Scheme. These facts give rise to the presumption that either there was some understanding between the parties to charge the amount in instalments and not in one instalment as per the ADF scheme, or the builder/OP inadvertently raised demand as per the progress of the construction without insisting on lump-sum payment. In this kind of situation, when the agreement between the parties mentions about the payment as per ADF scheme, but subsequently, the amounts were demanded and received as per the progress of construction, it shall be appropriate if the complainant is made to pay only 50% of the additional demand of Rs.9,68,510/- raised by the OP and the balance 50% is foregone by the builder/OP. Accordingly, the OP shall refund 50% of the amount of Rs.9,68,510/-, i.e., Rs.4,84,255/- to the complainant alongwith interest @9% p.a. from the date of the receipt of the said amount of Rs.9,68,510/-.

8. Further, the complainant, in his revision petition, has demanded relief for delayed delivery of possession by 18 months for a sum of Rs.6.75 lakh, a compensation of Rs.1.5 lakh, refund of Rs.5,40,000/- paid towards maintenance charges without receiving possession of the flat, order of withdrawal of demand for additional maintenance charges of Rs.23,675/- from Feb. 2008 to March 2010 and withdrawal of demand for property tax of Rs.41,657/- and cost of legal expenses amounting to Rs.1,50,000/-.

9. Looking at the facts and circumstances of the case, we find it reasonable that the Builder should refund the maintenance charges taken from the complainant, i.e., Rs.5,40,000/- and also cancel his demand for additional maintenance charges because the complainant should be required to pay maintenance charges only when the possession of the flat has been given to him.

10. With the above observations, both these revision petitions are partly allowed; the order passed by the State Commission is set aside and the Builder/OP is directed to make payments and cancel demand for additional maintenance charges as stated above. There shall be no order as to costs.

Sd/-

(K.S. CHAUDHARI J.) PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA) MEMBER

RS/



(From the order dated 12.06.2008 in Appeal No. 2326/07 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Central Bank of India Kaprigudda Branch, Cauvery Building, Falnir Road Mangalore -575002Karnataka

…Petitioner/Opp. Party (OP)

Versus

Mr. K. Ramdas Shetty S/o late Sh. B.M. Shetty, R/o Patel House, Hendady Village, Brmhavar, Udupi, Karnataka


BEFORE



For the Petitioner: Mr. Jaswinder Singh, Advocate

For the Respondent: Ms.Arti Bansal, Advocate, Mr. Kunal Punj, Advocate


O R D E R


This revision petition has been filed by the petitioner against the order dated 12.6.2008

passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ‘the

State Commission’) in Appeal No. 2326 of 2007 – Central Bank of India Vs. K. Ramdas Shetty

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

2. Brief facts of the case are that complainant/respondent deposited Rs.50,000/- in FDR No. 012280 in 2003 with OP/petitioner. Complainant availed loan facility on this FDR. When FDR came up for renewal, complainant asked OP to return the amount with interest, but OP arbitrarily renewed FDR and complainant’s request to return the FDR after deducting the loan amount of Rs.9,000/- was not acceded. It was further alleged that complainant is retired employee of OP. During the period of employment, complainant passed certain cheques of customers with due diligence and care but subsequently customer claimed that cheques were forged and they filed suit against the OP for which, complainant has been named as a witness. It was further alleged that OP neither held any department enquiry, nor held the complainant guilty of negligence; even

then, refused to return amount of FDR. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that Rs.50,000/- from the retirement benefits of complainant were kept in FDR as a security towards the embezzlement case filed by Dr. P.K. Usman in the civil court. It was further submitted that complainant processed 29 cheques between June 1992 to June, 1993 and in respect of those cheques suit was filed for recovery of Rs.42,880/- and this amount has been kept as security with the consent of the complainant and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to refund Rs.50,000/- along with 8.25% p.a. interest after deducting loan amount of Rs.9,000/- and further allowed Rs.750/- as litigation expenses. Appeal filed by the petitioner was dismissed by learned State Commission against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that on the request of respondent himself, amount of Rs.50,000/- has been kept in deposit as security to meet out the civil suit and further submitted that civil suit filed by Dr. P.K. Usman has been decreed against the petitioner and payment of more than Rs. 50,000/- has already been made to Dr. P.K. Usman. There was no deficiency on the part of petitioner; even then, learned District Forum has committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that petitioner was not entitled to retain amount of FDR without holding an enquiry and finding guilty to the respondent and orders passed by learned District Forum and learned State Commission are in accordance with law; hence, revision petition be dismissed.

5. Perusal of record clearly reveals that complainant by letter dated 30.8.1993 intimated to the Regional Manager of OP that his retiremental benefits may not be withheld and last but one para of the letter runs as under:

“Inspite of all the above facts, if the Management so desires I am prepared to deposit Rs.50,000/- with the Branch for a reasonable time and my Terminal benefits please be released immediately. I hope you will agree with me that holding the entire Terminal benefit is quite unfair and unjust and the member has to live and he cannot go to street begging after retiring from this great institution”.

By another letter of the same date, complainant deposited Rs.50,000/- in FDR in pursuance to the aforesaid letter dated 30.8.1993 in which it was subsequently stated that he is keeping the FDR of Rs.50,000/- with the bank till the case of Dr. P.K. Usman is settled with the bank. Thus, it becomes clear that amount of Rs.50,000/- was not kept in FDR in the year 2003, as alleged in the complaint, but this amount was kept in FDR right from 1993 as security for any liability on the bank on account of civil suit filed by Dr. P.K. Usman. By perusal of decree dated 20.12.2007 passed by Civil Judge, Sr. Div. Mangalore in Original Suit No. 136/94 - Dr. P.K. Usman Vs. Central Bank of India, it becomes clear that Central Bank of India/petitioner was directed to refund Rs.49,680/- to the plaintiff- Dr. P.K. Usman along with cost of suit amounting to Rs.7,104/-. Learned Counsel for the petitioner further submitted that this amount has already been paid by the petitioner to Dr. P.K. Usman. In the light of admission of the complainant, petitioner was entitled to keep Rs.50,000/- in FDR as security for any liability to be incurred by the bank in the suit filed by Dr. P.K. Usman. This amount has not been kept in FDR as a routine customer of the bank but has been kept by the complainant to get retiremental benefits without any impeadment. Complainant cannot blow hot and cold at the same time. He could not have got his retiremental benefits released till inquiry or till conclusion of civil suit. He himself consented for putting Rs.50,000/- in FDR till the outcome of the civil suit and FDR was renewed

year to year till disposal of civil suit. Complainant does not fall within the purview of consumer and we do not find any deficiency in service on the part of petitioner in declining to refund amount of aforesaid FDR tendered as security towards the liability.

6. In the light of above discussion, it becomes clear that complaint was liable to be dismissed and learned District Forum committed error in allowing complaint and learned State Commission committed error in dismissing appeal and revision petition is to be allowed.

7. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 12.6.2008 passed by learned State Commission) in Appeal No. 2326 of 2007 – Central Bank of India Vs. K. Ramdas Shetty and order of District Forum dated 15.10.2007 passed in Complaint No. 462 of 2006 is set aside and complaint stands dismissed with no order as to costs.

………………Sd/-……………


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk



(From the order dated 08.04.2008 in First Appeal No. 1336/SC/2007 of Uttar Pradesh State Consumer Disputes Redressal Commission)

Executive Engineer, Electricity Distribution Division-1, Lakhimpur Kheri (U.P.)

... Petitioner

Versus

Ashok Kumar Sharma s/o Shri L.P. Sharma r/o 108, Shahpura Kothi, Lakhimpur Kheri, Uttar Pradesh

… Respondent

BEFORE




For the Petitioner(s) Mr. Upendra Mishra, Advocate

For Mr. Vinay Garg, Advocate

For the Respondent NEMO


O R D E R


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 Uttar Pradesh State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 1336/SC/2007, “Executive Engineer, Electricity Distribution Division No. 1, Lakhimpur Kheri versus Dr. Ashok Kumar Sharma”, vide which while dismissing the appeal, the order dated 07.04.2007 passed by the District Consumer Disputes Redressal Forum, Lakhimpur Kheri, allowing the consumer complaint no. 107/03, was upheld.

2. Brief facts of the case are that the complainant/respondent Dr. Ashok Kumar Sharma operates a diagnostic clinic in his house and that he had obtained an electric connection for domestic consumption of power under electric tariff plan known as LMV-1. The Executive Engineer of the area sent a notice to him asking him to pay the electricity charges under category LMV-2, as he was running the clinic for commercial purpose. The complainant, however, took the position that he was simply doing an advisory business in a portion of his house and hence, he could not be compelled to pay electricity tariff for commercial purpose. The complainant filed the consumer complaint in question, which was heard by the District Forum and it was directed by the District Forum that the electric connection of the complainant should be treated as domestic connection. An appeal filed against this order was dismissed by the State Commission vide impugned order dated 08.04.2008. It is against this order that the present revision petition has been made.

3. At the time of hearing before us, it was contended by the learned counsel for the petitioner/OP that the complainant was running his clinic for commercial purpose and hence, as per the Rate Schedule issued by the Uttar Pradesh Power Corporation Limited, effective from 1.12.2004 in accordance with the order dated 10.11.2004, passed by the U.P. Electricity Regulatory Commission, he is to be charged as per Rate Schedule LMV-2. This schedule is applicable for non-domestic light, fan and power and is applicable to Doctors as well, but excludes the lawyers’ chambers. The District Forum had based its order on a press-clipping that was published in “Dainik Jagran,” in which it has been stated that the chambers of the lawyers were not commercial establishments. The District Forum concluded that similarly, the clinics of the Doctors were not commercial establishments. This assertion of the District Forum could not be stated to be correct. Further, the District Forum had erroneously stated that Doctors’ clinics were not included in the Rate Schedule LMV-2. The State Commission has also concurred with this view in a wrongful manner, because the word ‘Doctors’ does appear in LMV-2.

4. The complainant/respondent was issued notice for final hearing and was duly served. However, he sent a letter dated 16.11.2013, giving his version about the issue involved and requested that the said petition be dismissed. He has stated in his written submission that he had deposited the electricity bill of `10,280/-, according to the Plan LMV-2 on 25.03.2010. He had further deposited the final bill of `842/- upto 16.01.2013 and his electricity connection had been permanently disconnected. The concerned Sub Divisional Officer had also issued a letter to the Junior Engineer asking him to permanently disconnect the electricity connection.

5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. From the documents produced on record by the petitioner, it is made out that the rate schedules for electricity tariff as issued by the UP Power Corporation Limited have been classified in two categories; the rate schedule LMV-1 is meant for domestic power connections, whereas rate schedule LMV-2 is meant for non-domestic power connections. The copies of the rate schedules effective from 16.09.2001 as issued vide notification dated 10.09.2001, rate schedules applicable with effect from 9.11.2002 as issued by notification dated 2.11.2002 and the rate schedules effective from 1.12.2004 have been placed on record. In all these rate schedules, the private diagnostic centres including X-ray plants have been included in rate schedule LMV-2. There is no mention of the word Doctors in the rate schedules effective from 16.09.2001 and 9.11.2002 but the word Doctors has been mentioned in the rate schedule effective with effect from 1.12.2004. The present complaint has been made in the year 2003 and at that time, the rate schedule effective with effect from 9.11.2002 was applicable. The District Form and the State Commission have tried to make a distinction between a private diagnostic centre and the Doctors clinic, saying that the private diagnostic centres were covered under LMV-2, whereas Doctors’ clinics should be covered under LMV-1. However, we do not find any justification to agree with the findings of the District Forum and the State Commission. It is very clear from record that the tariff structure covered under the category LMV-1 is meant only for domestic purposes whereas the tariff structure LMV-2 is applicable for non-domestic purposes. In the instant case, it has been stated in complaint itself that the complainant is running a clinic at the premises in question. It is quite obvious that running a clinic is not a

domestic purpose and hence it cannot be covered under the rate schedule LMV-1 by any stretch of imagination.

6. Further, the District Forum reached at their conclusion based on a press-clipping according to which chambers of lawyers are not commercial establishments. We are unable to understand how a similarity has been drawn between chambers of lawyers and the clinics run by Doctors. It has been specifically mentioned in the rate schedule effective with effect from 1.12.2004 that lawyers’ chambers shall be covered under LMV-1.

7. The petitioner has also stated that as per the inspection carried out on 27.08.2008 by their Department, it has been stated that the complainant is running his clinic at the premises in question, but he does not reside there. The version of the complainant that he is running some advisory business at his residential premises cannot be accepted.

8. Further, the contention of the complainant that he had made payment of bills upto date and that the connection had been permanently disconnected now, does not have any relevance with the complaint which was made in the year 2003. Moreover, the complainant has himself admitted that he has made payments as per the tariff structure in LMV-2.

9. Based on the above discussion, this revision petition is allowed and the orders passed by the State Commission and District Forum are set aside. The consumer complaint in question, is dismissed with no order as to costs.

Sd/

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBER

RS/



(From the order dated 08.06.2007 in First Appeal No. 1595/2005 of Karnataka State Consumer Disputes Redressal Commission)

The United India Insurance Co. Ltd. Divisional Office No. 2, No. 1134, Prince of Wales Road, Chamarajapuram, Mysore

... Petitioner

Versus

1. Gowramma w/o (L) Shivanna

2. Lakshmamma w/o (L) Puttaswaamy K

3. Savithramma w/o Radhakrishna

4. Ramakrishana alias Moganna s/o (L) S.K. Thimmegowda (since deceased through LRs.)

1. Shivamma

2. Kumari R Swetha

3. R. Venkatesh

4. Shavan Kumar

5. Bharathi w/o M.H. Prakash All r/o Bandipalya Village Kasaba Hobli Mysore

6. M/s. Shiva Gas Service by the Proprietor, Indane Distributors for Mysore South, 10 th Cross Corner, Vidyaranyapura, Mysore

7. The Chief Manager Indian Oil Corporation LPG Division, Unity Building, Bangalore.

… Respondent(s)

BEFORE




For the Petitioner(s) Mr. A.K. De, Advocate Mr. Rajesh Dewedi, Advocate

For Respondent–1 to 5 Not admitted

For Respondent No. 6 Ex-parte

For Respondent No. 7 Mr. Shinoj K. Narayanan, Advocate


O R D E R


This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 08.06.2007, passed by the Karnataka State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 1595/2005, “Smt. Gowramma versus M/s. Shiva Gas Service & Ors.”, vide which while allowing the appeal, the order dated 24.08.2005, passed by District Consumer Disputes Redressal Forum, Mysore, dismissing the consumer complaint CD 57–05 dated 24.08.2005, dismissing the said complaint, was set aside.

2. Brief facts of the case, as stated in the complaint filed by Smt. Gowramma and others are that the father of the complainants, Shri B.K. Thimmegowda had taken a LPG gas connection for his domestic use from OP No. 1 M/s. Shiva Gas Service under customer no. 10663. He used to obtain LPG cylinders regularly and the last cylinder was obtained on 27.11.99 from OP No. 1. However, on 7.12.99 when Sh. Thimmegowda and his wife returned to their home at 4:30 pm, they felt some foul smell and opened doors and windows of the house, but at that very moment, the gas cylinder exploded, causing severe injuries to both husband and wife, i.e., the parents of the complainants and also caused heavy damage to the building and other moveable properties. Both the parents died on 10.12.99 because of injuries sustained by them, due to gas explosion on 07.12.99. As per the complainants, the loss caused to the building was `5,15,540/- and loss to immoveable property was estimated to be `2 lakh. The complainants, alleging deficiency in service on the part of the OP, demanded compensation for the death of their parents and also for the loss caused to moveable and immoveable properties. Initially, the complainants filed 3 different complaints before the District Forum, claiming damages of `4.95 lakh in each case. The pecuniary jurisdiction of the District Forum at that time was upto `5 lakh only. The District Forum, however, returned the complaints to the complainants for presentation before the State Commission. The complainants then filed complaint No.55/2002 before the State Commission which was disposed of by them vide order dated 18.11.2004, wherein it was directed that OP No. 1 should furnish information to the insurance company OP No. 3 within two months of that order and OP No. 3 should consider their claim and if the claim was repudiated, the complainants were permitted to avail any other remedy. A claim amounting to `17,20,540/- was lodged with the OPs. On their failure to settle the claim, the consumer complaint in question, was filed. The District Forum after hearing the parties dismissed the claim saying that the gas cylinder in question, was installed on 27.11.99 and it was continuously used for a period of 10 days before the explosion occurred. There was, therefore, no possibility of sudden development of defect in the gas cylinder or the regulator. Further, these materials were neither seized by the Police, nor a case was registered against the OPs, under section 338 or 304 (A) of the I.P.C. An appeal was filed against this order before the State Commission and the same was allowed by the State Commission vide impugned order and it was stated as follows:-

“Appeal is allowed. Impugned order is set aside.

Complaint filed by the complainants is allowed in part. Therefore, OPs 1 & 2 are liable to pay compensation of Rs.2,00,000/- in favour of the complainants within two months from today. Since there is an insurance coverage the amount so directed to be paid by OPs 1 & 2 as directed above is to be paid by the Insurance Company to the complainants within two months from today. The parties are directed to bear their own costs.”

It is against this order that the present petition has been made.

3. At the time of hearing before this Commission on 3.10.2007, notice was ordered to be issued to respondent no. 6 & 7 only, i.e., Shiva Gas Service and the Chief Manager, Indian Oil Corporation. No notice was ordered to be issued to respondent no. 1 to 5, who are the complainants. On 12.12.2007, this Commission admitted the revision petition filed by the insurance company qua the respondent no. 6 & 7 only and dismissed the revision petition against respondent no. 1 to 5. It is clear, therefore, that so far as payment of compensation to the complainants is concerned, the issue needs to be settled between the Insurance Company, the Gas Agency and the Indian Oil Corporation. On subsequent hearings, the gas agency was ordered to be proceeded against exparte as they did not appear despite service.

4. At the time of hearing before us on 3.12.2013, it was contended on behalf of the petitioner Insurance Company that respondent no. 7 Indian Oil Corporation or the Gas Agency had not challenged the order passed by the State Commission vide which compensation was ordered to be given to the complainants. It is clear, therefore, that in so far as the complainants are concerned, the compensation has to be given to them. The only point to be decided in the present case is whether the payment of compensation is to be made by the Indian Oil Corporation and Gas Agency or the Insurance Company is liable in any manner under the terms and conditions of the Policy to make such payment. Learned counsel has drawn our attention to the copy of the insurance policy on record, stating that under the public liability clause of the Insurance Company, such matter was not covered and hence, the Insurance Company was not liable to make payment to the complainants. He further stated that as observed by the learned District Forum, clause 7 of the Policy makes it very clear that the Insurance Company agreed to indemnify the loss suffered by a third party, only when the accident was caused at the premises of OP No. 1, i.e., Gas Agency or the registered address of the customer only while the Cylinder being installed by the insured and/or his employee or when the accident takes place when the gas cylinder is being carried by OP No. 1 or by his employee for installation to the house of consumer. In the instant case, the said cylinder was installed on 27.11.99, but the explosion had occurred after a period of 10 days, i.e., on 07.12.99. It was clear, therefore, that the explosion did not occur when the cylinder was being installed. The State Commission did not give any reasons to observe that the payment in question, is to be reimbursed by the Insurance Company to OP no. 1 & 2. The complaint was, therefore, liable to be accepted and the said order modified to say that only OP No. 1 & 2 should make the payment.

5. Learned counsel for the respondent Indian Oil Corporation, when asked to explain, under which clause, the Insurance Company was liable to pay compensation in the matter, could not offer any satisfactory explanation.

6. The learned counsel for the Insurance Company stated that as per Order dated 3.10.2007, passed by this Commission, during the pendency of the present revision petition, the Insurance

Company was required to deposit the amount awarded by the State Commission within a period of four weeks from the Order. It was stated in that Order that it would be open to the complainant to withdraw the same by furnishing adequate security.

7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. As already stated, this petition has been admitted to examine and settle the issue, whether the payment to the complainant is to be made by the Insurance Company or the gas agency or the Indian Oil Corporation. It is made out from the material before us and the arguments advanced by the parties that under the terms and conditions of the Insurance Policy in question, it is not obligatory on the part of the petitioner Insurance Company to make the payment to the complainants, as the said cylinder was not in the process of being installed. It is evident therefore that OP No. 1 & 2 are jointly and severally liable to pay the amount of compensation as awarded by the State Commission to the complainants.

8. The revision petition is, therefore, allowed and the impugned order is modified to say that OP No. 1 & 2, i.e., M/s. Shiva Gas Service and the Indian Oil Corporation, shall be liable jointly and severally, to pay compensation of `2 lakh to the complainants. However, since the payment has already been made to the complainants, the Insurance Company shall be at liberty to recover the said amount from the OP No. 1 & 2. There shall be no order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBER

RS/



(From the order dated 15.01.2008 in First Appeal No. A-26/04 of DELHI State Consumer Disputes Redressal Commission)

Dr. Girja Kotha Koal, Gynaecologist Clinic at Choudhary Surgreev Singh Market, Nehru Vihar, Main Karawal Nagar Road, Delhi – 110094.

... Petitioner

Versus

1. J.K. Tripathi s/o S.S. Tripathi

2. Kusum Tripathi w/o J.K. Tripathi both residents of A – 455, Street No. 48, West Karawal Nagar Delhi – 110094.

3. St. Stephens Hospital through its Director, Tis Hazari, Delhi – 110054.

… Respondent(s)

BEFORE




For the Petitioner(s) Mohd. Ikram, Advocate

For the Respondent–1 In person

For the Respondent–2 Mr. J.K. Tripathi, Authorised Rep.

For the Respondent-3 Ms. Phaguni N. Lal, Proxy Adv. for Mr. Rajeev

Sharma, Advocate


O R D E R


This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 15.01.2008, passed by the Delhi State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 26/04, “J.K. Tripathi & Ors. versus Dr. Girja Kotha Koal”, vide which the order dated 11.11.2003 passed by the District Consumer Disputes Redressal Forum, dismissing the consumer complaint in question, was set aside and the appeal was allowed and the petitioner was ordered to pay a compensation of Rs.25,000/- to the complainants/respondents.

2. Brief facts of the case are that J.K. Tripathi and his wife Kusum Tripathi had been visiting the clinic of the petitioner/OP Dr. Girja Kotha Koal regarding some gynae problems of

complainant no. 2 Kusum Tripathi. In October 1999, the complainant no. 2 showed indication of positive pregnancy and since then, she had been regularly visiting the said clinic along with her husband. On 22.03.2000, she felt mild pain in her stomach, whereupon she visited the clinic of the petitioner and explained the problem to the Doctor. It has been alleged that the Doctor did not apply her mind diligently as she was busy in abortion cases. She advised that there was infection in the urine and it was not a labour pain. However, on 23.3.2000 at 2:00 am, i.e., a few hours after visiting the clinic, the complainant no. 2 developed unbearable pain, but the petitioner could not be contacted and consequently, complainant no. 2 was taken to St. Stephens Hospital where she delivered a pre-mature child, after seven months of pregnancy. The child had to be kept on incubation for the next 57 days, during which the complainant suffered mental agony, harassment and emotional suffering. Their two other children also suffered due to engagement of the complainants with the hospital. The complainants demanded a sum of Rs.1,01,000/- through the consumer complaint filed before the District Forum. The petitioner on the other hand stated that pre-mature delivery is not a rare phenomena at all and its occurrence in the instant case cannot be taken as evidence of medical negligence. The pre-mature delivery can occur due to various reasons. The District Forum after taking into account the evidence of the parties, dismissed the consumer complaint, saying that the OPs had not been found guilty of any negligence. However, the State Commission allowed the appeal against the order of the District Forum and directed the present petitioner to pay a compensation of Rs.25,000/- to the complainants. It is against this order that the present petition has been made.

3. At the time of hearing before us, learned counsel for the petitioner stated that the petitioner had taken extra care to ensure that pre-mature delivery does not take place but such cases had been occurring worldwide and hence, in the instant case, it could not be stated that there was any negligence on the part of the Doctor. Learned counsel further stated that the District Forum had reached the right conclusion and dismissed the complaint in question. Further, the petitioner had been prescribing medicines to complainant no. 2 from time to time, but the complainants had not visited the clinic after 4.1.2000 for follow-up of the treatment. Learned counsel stated that the petitioner was running a clinic and not a nursing home and she had advised the complainant to get herself registered with a Government or Private Hospital for proper and regular ante-natal check-up and delivery. The learned counsel has drawn our attention to copies of medical literature in support of her version.

4. Learned counsel for the complainants/respondents, however, stated that the petitioner did not properly apply her mind to the condition of complainant no. 2, on 22.3.2000 and she stated it to be a case of urine infection only. Learned counsel has further drawn our attention to a prescription made by the petitioner on 20.12.1999, saying that the Doctor had prescribed medicines on 20.12.1999 and 4.1.2000. Learned counsel has also drawn our attention to the judgement delivered by the Hon’ble Supreme Court in “Indian Medical Association versus V.P. Shanta & Ors.” [(1995) (6) SCC 651] saying that the Doctor was negligent in handling the present case and hence guilty of deficiency in service.

5. Learned counsel for the St. Stephens Hospital, respondent no. 3, stated that as per the orders passed by the State Commission, St. Stephens Hospital had not been held responsible in any manner for not giving proper treatment to the patient. The complainant had not challenged the order of the State Commission, meaning thereby that they were not seeking any relief against respondent No. 3.

6. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us. The admitted facts of the case are that the complainant Kusum Tripathi has been under the treatment of the petitioner in connection with her pregnancy and she had been visiting her hospital from time to time. A perusal of copy of the prescription given by the petitioner Dr. Girja Kotha to the complainant reveals that her qualification is MBBS, DGO (Diploma in Gynaecology & Obstetrics) as stated on her letter-pad. It is clear, therefore, that the petitioner was fully qualified to deal with the case of pregnancy in hand. The first prescription as per record has been given on 20.12.99, and at the back of said document, further prescription written on 4.01.2000 has been recorded. In reply to the consumer complaint filed before the District Forum, the petitioner has stated that in the absence of any document, it was not possible to comment on the contents of the paragraph under reply. However, in the revision petition, the petitioner has clearly admitted that she prescribed medicines to the complainant on 20.12.99 and then again on 04.01.2000. It has been categorically stated in the revision petition that the complainant had signs of threatened abortion and accordingly, the petitioner prescribed the

medicines for pre-empting, pre-mature labour. All medicines mentioned on the prescription and reproduced in the petition were for preventing threatened abortion or pre-mature delivery with a view that the pregnancy should go through full term. The petitioner has further mentioned that even after diligently taking all these medicines and exercising extreme care and caution and restricting oneself to minimum physical activity, the patient in 30% to 40% of the cases do not reach the full term of pregnancy. The petitioner after referring to the medical literature on the subject has also tried to say that pre-mature delivery is not a rare phenomena. The main ground taken by the complainant against the petitioner says that when she came to the petitioner on 22.03.2000 at 10 AM and complained of mild pain, suspecting it to be labour pain, the petitioner did not give her much attention, as she was busy in abortion cases and just asked her to go for urine test. From the stand taken by the petitioner in the petition, it is clear that being a qualified gynaecologist and fully knowing that it could be a case of pre-mature delivery, she should have examined the patient to find out whether it was a case of labour pain or not. On the other hand, she asked the patient to go for urine test. The said urine test was conducted in the laboratory of the petitioner herself and report of this test has been placed on record by the respondent/complainant alongwith their counter-affidavit to the revision petition. It is very clear, therefore, that complainant did visit the petitioner on 22.03.2000 and got her urine examination done in her laboratory. However, the petitioner has tried to say that she is not aware whether the complainant came to her on 22.03.2000, although, she has nowhere denied that the complainant came to her on that day. Further, the respondent has placed on record a copy of the expert opinion given by Dr. C.P. Rai, MBBS, MD (Obst. & Gyna.) in which he has stated that this was a case of clear-cut deficiency and negligence in service due to carelessness. Dr. Rai has clearly stated that at the stage of threatened abortion of 12 weeks, proper treatment was not given. If the diagnosis was clinched properly at that time, the pregnancy could have been pushed to full term.

7. Vide impugned order, the State Commission after applying the criteria for medical negligence, as contained in Bolam’s case and the judgement delivered by the Hon’ble Supreme Court in “Indian Medical Association versus V.P. Shanta & Ors.” [1995 (6) SC 651], reached the conclusion that it was a case of medical negligence particularly when the Doctor happened to be a skilled person and possessed requisite medical qualification. It is clear from the facts on record as stated above that when the complainant visited the petitioner on 22.03.2000 in the morning hours, she did not make any attempt to examine her and to find out whether she was suffering from labour-pain at that time or not ?

8. From the foregoing discussion, it is clear that the impugned order has been passed after making detailed analysis and correct appreciation of the facts on record and there is no infirmity, illegality or jurisdictional error in the same for which any interference may be called for, through the present revision petition. The impugned order is, therefore, upheld and the Revision Petition is ordered to be dismissed with no order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBER

RS/


FIRST APPEAL NO. 67 OF 2009

(From the order dated 27.03.2008 in Complaint No. C-297/2001 of Delhi State Consumer Disputes Redressal Commission)

Sanjeev Gupta S/o Late Sh. Devinder Gupta, R/o 119 C, Pocket D, Phase-III, Ashok Vihar, Delhi

... Appellant

Versus

1. Oriental Insurance Co. Ltd. Regd. Office: Oriental House, A-25/27, Asif Ali Road, New Delhi 110002

2. The Branch Manager, Oriental Insurance Co. Ltd. 7678, Singh Sabha Road, Near Amba Cinema, Delhi- 110007

3. The Regional Manager, Oriental Insurance Co. Ltd. 88, Janpath, New Delhi 110001

4. Chief General Manager, Oriental Insurance Co. Ltd. Jeewan Bharti Building, Connaught Place, New Delhi 110001

…. Respondents

BEFORE

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



For the Appellant

For the Respondent

In person

Mr. R. B. Shami, Advocate


O R D E R


This first appeal no. 67 of 2009 has been filed under section 19 of the Consumer

Protection Act, 1986 against the order dated 30.01.2009, passed in execution application 2008/37

and the order dated 27.03.2008 passed in Consumer Complaint No. C-297/2001, both with the

title, Sanjeev Gupta vs. Oriental Insurance Company Ltd. & Ors.

2. The brief facts of the case are that the appellant/complainant Sanjeev Gupta got his Tata

bus

no. DL-1PA/1485, model 1997, registered with the Respondent/Opposite Party, Insurance

Company vide cover note no. 439273 dated 10.07.1999, policy no. 2000/2581, valid from

11.07.1999 to 10.07.2000 for a sum of `6.75 lakhs and premium amounting to `19,405/- was paid

to the Insurance Company.

3. The said bus is stated to have been stolen in the night between 31.12.1999 and

01.01.2000, for which FIR No. 4/2000 under Section 379 IPC was recorded on 02.01.2000 with

Police Station Ashok Vihar, Delhi. Respondent/Opposite Party was also informed on

01.01.2000. The complainant filed claim with the Insurance Company for recovery of the

amount involved, but on failure of the respondent Company to settle the claim, he filed the

consumer complaint in question, demanding a total sum of `10,30,100/-, including `6.75 lakhs as

sum insured, `1 lakh for compensation as mental agony, `2.43 lakhs as interest @ 24%, `11,000/-

as litigation charges and `1,100/- as notice charges. The State Commission, after taking into

account the evidence of the parties, allowed the complaint and directed the Opposite Parties to

pay a sum of `6.75 lakhs less 15% towards indemnification of actual loss by way of total loss and

to pay `50,000/- as compensation for mental harassment and `10,000/- as cost of litigation. The

complainant then filed an execution application against the Opposite Party before the State

Commission, praying for issuing warrant of attachment to the tune of award against the Opposite

Party and interest @ 24% for withholding the awarded amount.

4. Vide order dated 30.01.2009, the State Commission has recorded that the

respondent/opposite party had deposited a cheque of the decretal amount with the Office of

Registrar and the said cheque be released to the applicant and the execution petition be

consigned to record room having been satisfied. The present appeal has been filed with the

prayer that the order of the State Commission dated 27.03.2008, should be set aside to the extent,

whereby the State Commission has directed deduction of 15% from the insured amount of `6.75

lakhs. It has also been requested that interest @ 18% p.a. should be allowed from the date of

filing the complaint till realization of the amount. Alongwith the appeal, an application for

condonation of delay has been filed, saying that the delay in filing the appeal should be

condoned.

5. At the time of hearing before us, the appellant argued his case in person. He was asked to

explain the delay of 291 days in filing the present appeal. The appellant stated that the delay had

occurred due to wrong legal advice rendered to him by an advocate. The said advocate advised

him that execution application should be first filed in the case, because the Opposite Parties had

not obeyed the order of the State Commission dated 27.03.2008 on flimsy grounds. There was

no negligence or inaction on the part of the appellant and hence, the delay in filing the appeal

should be condoned. On the other hand, learned counsel for the respondents stated that the filing

of execution application before the State Commission had nothing to do with the delay in filing

the appeal and hence, the appeal should be dismissed on the ground of delay alone. In support of

his arguments, learned counsel for the respondents has drawn our attention to the orders passed

by this Commission in HDFC Ergo General Insurance Co. Ltd. vs. Rachhpal Singh as reported in

I(2013)CPJ644(NC), Suresh Kumar vs. National Insurance Company Ltd. as reported in

I(2013)CPJ60(NC) and Major Jai Parkash vs. Haryana Urban Development Authority & Ors. as

reported in I(2013)CPJ593(NC).

6. We have examined the material on record and given thoughtful consideration to the

arguments advanced before us. It is made out from the facts on record that the appeal in question

has been filed after a delay of 291 days and no proper explanation has been furnished for the

same. The appellant has tried to put the blame on his advocate, saying the he was wrongly

advised by the said advocate to file the execution application first, and then to file the appeal in

question. We tend to agree with the arguments advanced by learned counsel for the respondents

that the filing of execution application has nothing to do with the filing of the appeal against the

order dated 27.03.2008 of the State Commission. The appellant has not been able to give any

cogent and convincing reasons why they could not file the appeal in time.

7. A view has been taken by the Hon’ble Apex Court in a number of judgments given recently, that the delay in filing Appeal/Revision Petition etc. should not be condoned, unless there are valid and cogent reasons for doing the same. In this regard, reference may be made to the order passed by the Hon’ble Apex Court in case R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009(2)SCALE108, where 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.”

8. Hon’ble Apex Court in 2012(2)CPC3(SC) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed as under:

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

9. In view of the orders passed by the Hon’ble Apex Court, we do not find any justification

to condone the delay in filing the appeal in the present case, as no solid reasons have been

advanced by the appellant for condonation of delay. The appeal in question is, therefore, ordered

to be dismissed on the ground of delay in filing the same. There shall be no order as to costs.

..……………………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..……………………………

(DR. B.C. GUPTA)

MEMBER

PSM



(From the order dated 07.05.2012 in First Appeal No. 470 of 2007 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

1. Uttar Haryana Bijli Vitran Nigam Ltd., Through Managing Director, Shakti Bhawan,Panchkula

2. The SDO (OP) Sub Division, UHBVNL, Bilaspur, District, Yamuna Nagar

… Petitioners

Versus

1. Man Singh, Son of Balwant Singh, Resident of Bheel Chhapper, Tehsil – Jagadhari, District Yamuna Nagar,

2. Gulsher, Son of Meer Hasan, Resident of Village Balaswa, Thana – Nangal, District Saharanpur, Haryana

… Respondents

BEFORE:

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

HON’BLE DR. B C. GUPTA, MEMBER

For the Petitioners : Dr. Sudhir Bisla, Advocate, Ms. Sumitra Bisla, Advocate

For the Respondents : Mr. Anil Hooda, Proxy Counsel for Mr. Narender Yadav,

Advocate

PRONOUNCED ON 7 th JANUARY, 2014

O R D E R


1. This revision petition has been filed by the petitioner against the order dated 07.05.2012

passed by the learned State Consumer Disputes Redressal Commission, Haryana (in short, ‘the

State Commission’) in Appeal No. 470 of 2007 – Uttar Haryana Bijli Vitran Nigam Ltd. & Anr.

Vs. Man Singh & Anr. by which while dismissing the appeal, order of the District Forum

quashing the demand was upheld.

2. Complainant filed complaint before the District Forum for quashing demand raised by the

opposite party on the basis of tempering of seals of electricity meter.

3. This revision petition has been filed with application for condonation of delay of 111

days.

4. Heard learned counsel for the parties and perused record.

5. As the complaint itself was not maintainable before the District Forum, we deem it

appropriate to condone the delay of 111 days in filing the revision petition, subject to payment of

Rs. 5,000/- as costs by the petitioner to respondent within one month.

6. The State Commission dismissed the appeal as barred by 36 days as also on merits. As

the complaint itself was not maintainable before the District Forum, we deem it appropriate to

condone the delay of 36 days in filing the appeal before the State Commission.

7. As far merits of the case are concerned, this complaint pertains to offence committed u/s

135 Indian Electricity Act and against the assessment made by Assessment Officer for the theft

of electricity. In the light of judgment passed by Hon’ble Apex Court in Civil Appeal No. 5466

of 2012 “U.P. Power Corporation Ltd. & Ors. Vs. Anis Ahmad’, this complaint was not

maintainable before District Forum under Consumer Protection Act, 1986.

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

dated 07.05.2012 passed by the learned State Commission in First Appeal No. 470 of 2007 is set

aside and complaint stands dismissed.

9. Liberty is granted to the petitioner to seek appropriate remedy available to him before the appropriate Forum.

Sd/-

..…………………..………J

(K. S. CHAUDHARI) PRESIDING MEMBER

Sd/-

……………….……………

(DR. B. C. GUPTA) MEMBER

SB/4


(1) REVISION PETITION NO. 719 OF 2012

(Against the order dated 15.12.2011 in First Appeal No. 1072 of 2007 of the State Consumer Disputes Redressal Commission, Gujarat)

Kotak Securities Limited Registered Office at: Bakhavar, First floor, 229, Nariman Point, Mumbai.

....... Petitioner/(Original Opponent no. 1)

Versus

1. Shri Bharatkumar Ranchhoddas Rana R/o Ramkrupa, Mota Parsiwad, Near Ice, Factory, Valsad-396001

2. Smt. Gulabben Bharatkumar Rana R/o Ramkrupa, Mota Parsiwad, Near Ice, Factory, Valsad-396001

3. Shri Chetan Dinesh Modi Proprietor of M/s Modi Fiancial Services Sai Keval, Jalaram Road, Valasad 396001.

4. Shri Authosh Pankajbhai Desai R/o 6/A, Shiva Krupa,Gitanjali Society, Teethal Road,Valsad -396001.

....Respondents/Opponents)

AND REVISION PETITION NO.720, 918, 1264, 14878 and 1488 OF 2012

BEFORE:

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


In RP Nos.719 & 720 of 2012

For the Petitioner : Mr. Abhinav Vashishth,Sr.Advocate with

Mr. C.A. Sinha & Mr.Milan Negi, Advs.

For the Respondent : Mr. Vineet Sinha, Advocate for R-1 & 2

Mr. Ashish Kumar, Advocate for

Mr. Jawahar Narang, Advocate for R-3

Mr. V.M. Pancholi, Advocate for R-4

In RP Nos.918 & 1264 of 2012

For the Petitioner : Mr. Ashish Kumar, Advocate for

Mr. Jawahar Narang, Advocate

For the Respondent : Mr. Vineet Sinha, Advocate for R-1 & 2

Mr. V.M. Pancholi, Advocate for R-3

Mr. C.A. Sinha, Advocate for R-4

In RP Nos.1487 & 1488 of 2012

For the Petitioner :Mr. V.M. Pancholi, Advocate

For the Respondent :Mr. Vineet Sinha, Advocate for R-1 & 2

Mr. C.A. Sinha, Advocate for R-3

Mr. Ashish Kumar, Advocate for

Mr. Jawahar Narang, Adv. for R-4

Pronounced on: 8 th January, 2014

O R D E R


Since common question of law and facts are involved, these revision petitions are being

disposed of by this common order.

2. Case titled as Kotak Securities Ltd. Vs. Bharat Kumar Ranchoddas Rana and others (RP

No.719 of 2012) is taken as the lead case.

3. Respondents No.1 and 2 who were the Complainants before the Consumer Disputes

Redressal Forum, Valsad (for short,‘Consumer Forum’) filed consumer complaints on the

allegations that respondent no.1 is running a Grocery shop and is jointly holding a D-mat

Account with respondent no.2 holding shares of certain companies. It is further stated that

respondent no.1 came in contact with Petitioner/Opposite Party-Sh.Ashotosh Pankajbhai Desai

(in RPs.No.1487 and 1488 of 2012) through his relative. Keeping in view the reputation of

Petitioner-Kotak Securities Ltd. and Opposite Party-Modi Financial Service, respondent no 1

started business with them. As per directions of Sh.Ashotosh Pankajbhai Desai, respondent no.1

gave his entire share portfolio for portfolio management with a condition that the existing shares

portfolio will be kept intact and with the day trading, whatever money will be earned by

Mr.Ashutosh Pankajbhai Desai, will be passed on to the respondent no. 1. It is also alleged that

Mr. Ashutosh Pankajbhai Desai did not take any action for opening an account with Kotak

Securities Ltd. but he opened a separate account which amounts to deficiency in service.

Respondent No.1 had been repeatedly asking Ashutosh Pankajbhai Desai to transfer the holding

in his account which he did not do and retained all the shares in his account including those

purchased and thereby keeping all the dividends and other benefits accrued on shares given by

the companies with him(Ashutosh Pankajbhai Desai)only. In the Consumer Complaints it was

prayed that the opposite parties be directed to restore the shares existing in the name of

respondents no.1 and 2 or to pay them entire amount along with interest.

4. The Complaints were contested by the opposite parties.

5. District Forum vide its order dated 21.7.2007, partly allowed the complaints.

6. Aggrieved by the order of the District Forum, opposite parties filed appeals before the

Consumer Disputes Redressal Commission, Ahmedabad(for short, ‘Consumer Commission’)

which dismissed their appeals, vide the impugned orders.

7. Hence, these revisions.

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

9. It is an admitted fact that the complainants had been indulging regularly in day trading of

the shares.

10. Thus,the short question which arise for consideration in these petitions is, as to whether

Respondents No.1 and 2/Complainants are ‘Consumers’ or not, as per Section 2(i)(d)of the

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

11. Expression ‘consumer’ has been defined in Section 2 (1) (d) of the Act, which reads as

under;

“d “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; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;

Explanation------ For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.

12. Respondents No. 1 and 2 have nowhere pleaded in their complaints that they doing the

share business for self- employment. Nor, it has been pleaded that the services provided by

petitioners-opposite parties were being availed of exclusively for the purpose of earning of their

livelihood by means of self-employment. It is well settled that the disputes between the parties

relating to commercial purposes, are excluded under the Act.

13. This Commission in Vijay Kumar Vs. Indusind Bank, II (2012) CPJ 181 (NC) has held;

“Since, petitioner has been trading regularly in the shares which is a commercial transaction and for which he has also availed the “over draft facility” from the respondent, as such he would not be a consumer as per Section 2 (1) (d) (ii) of the Act. Moreover, regular trading in the purchase and sale of the shares is a commercial transaction and the only motive is to earn profit. Thus, this activity is purely commercial one and is not covered under the Act”.

14. In the present cases, respondents no.1 and 2 have been trading regularly in the share

business and the same being a commercial activity. Hence, respondents no.1 and 2 would not fall

under the definition of ‘Consumer’ as per the Act. Moreover, regular trading in the sale and

purchase of the shares is a purely commercial activity and the only motive is to earn profits.

Therefore, this activity being purely commercial one, is not covered under the provisions of the

Act.

15. Accordingly, we hold that since respondents no.1 and 2 are not the ‘Consumers’ as per

provisions of the Act, both the Fora below have committed grave error in allowing their

complaints. Consequently, we allow the present revision petitions and set aside the impugned

order passed by the State Commission as well as the order of District Forum. With the result, the

complaints filed by the respondents no.1 and 2 before the District Forum shall stand dismissed.

16. With these observations, the present revision petitions stands disposed of.


……..……………………J

(V.B. GUPTA)

(PRESIDING MEMBER)

…………………………

(REKHA GUPTA)

MEMBER

SSB/,



(Against the order dated 30.07.2012 in First Appeal No. 1398/2011 of the State Commission Haryana, Panchkula)

1. LIC of India Branch office A-1, Tagore Market Kirti Nagar, New Delhi

2. LIC of India Divisional Office – 111, Jeevan Pravah District Centre, Janak Puri, New Delhi

3. LIC of India Branch Manager, Jeevan Jyoti Building Shopping Complex, New Delhi

4. The Divisional Manager LIC of India 489, Model Town, Divisional Office Karnal Through Assistant Secretary Central office ( Legal) H-39, New Asiatic Building Connaught Place, New Delhi – 1

........ Petitioner (s)

Vs.

Kamlesh w/o Shri Jai Bhagwan Qr. 213/D, Guard Line, Jind JunctionTehsil & District Jind Through Shri Jai Bhagwan s/o Dharam Singh

......... Respondent

BEFORE:

HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

For the Petitioners : Mr. Ashok Kashyap, Advocate

For the Respondent : Mr. Harikesh Singh, Advocate

Dated : 09 th January, 2014

ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the order of the State Commission dated 30.07.2012

whereby State Commission Haryana Panchkula dismissed the appeal preferred by the petitioners

opposite parties against the order of the District Forum Jind dated 09.08.2011.

2. Briefly put, the facts relevant for the disposal of this revision petition are that

complainant respondent purchased an insurance policy worth Rs.25000/- from the petitioner on

10.05.2001 with half year premium of Rs.904/-. The complainant respondent dutifully paid the

insurance premium. The complainant unfortunately developed complaint of severe headache in

the month of November 2003. On 25.12.2003, the complainant became unconscious and she

was taken to All India Institute of Medical Sciences, New Delhi. There she remained under

treatment w.e.f. 02.01.2004 to 27.01.2004 as an impatient. Her treatment is still going on and

she has become 100% disabled. The complainant filed the claim under the insurance policy

alongwith 100% permanent disability certificate issued by the Board of Doctors of General

Hospital Jind on 02.06.2008. The opposite party, however, repudiated the claim. This led to the

filing of the consumer complaint by the complainant Ms. Kamlesh through her husband and

nominee Jai Bhagwan.

3. The petitioners opposite parties contested the complaint by filing written statement

wherein opposite parties took the plea that the complaint was barred by limitation. On merits, it

was alleged that disability suffered by the complainant was not a consequence of an accident. As

such, the petitioners opposite parties was not bound to pay the claim as per terms and conditions

of the insurance policy.

4. The District Forum on perusal of the pleadings and evidence accepted the complaint with

following observations:

“The medical certificate of All India Institute of Medical Sciences, New Delhi

has issued a certificate in respect of the complainant, Kamlesh, which clearly

mention that “sudden onset severe headache and loss of consciousness on

25.12.2003, dysphagia from 30.12.2003, weakness of right side of body-

1.1.2004. K/C/O of Dm/Hypertension on irregular treatment.

The disease was sudden unexpected and unfortunate which may be

covered under definition of accident. Hence the opposite party is having

deficiency of service for non-payment of insurance amount to the complainant.

In view of the above facts and circumstances of this case, the complaint

of the complainant is accepted. Therefore, the opposite party no.1 is hereby

directed to pay the full amount of policy alongwith all other benefits accrued on

account of the said insurance policy within a period of 30 days positively.

Further, the premium paid by the complainant after November 2003 shall also

be returned to the complainant alongwith the amount of insurance claim. If the

amount is n ot paid within stipulated period, the interest @ 9% p.a. will be paid

by the opposite party w.e.f. the date of filing the complaint till realization of the

amount benefits. The parties will bear their own costs.”

5. Being aggrieved of the order of the District Forum, the petitioners opposite parties

preferred an appeal before the State Commission Haryana Panchkula and the State Commission

dismissed the appeal. This has resulted in filing of the revision petition.

6. Mr. Ashok Kashyap, learned counsel for the petitioners has contended that the impugned

orders are not sustainable, being based on incorrect appreciation of law and facts. Expanding on

the argument, learned counsel for the petitioners has taken us through the complaint as also the

terms and conditions of the insurance policy particularly clause 10-2 of the policy which deals

with the accident benefit. Learned counsel for the petitioners argued that perusal of the aforesaid

provision would show that accident benefit in respect of permanent disability has resulted

because of involvement of the life assured in the accident. However, in the instant case, as per

the allegations in the complaint, the petitioner has suffered permanent disability because of

certain medical reasons. As such, the petitioners company was justified in repudiating the claim.

It is further argued that State Commission has also ignored the fact that the cause of action for

filing the claim under the insurance policy arose in the year 2004 when the respondent

complainant suffered permanent disability. Therefore, in view of section 24A of the Consumer

Protection Act, 1986, the complainant was required to file the complaint within two years of the

date of cause of action but the complainant has filed the complaint after the expiry of period of

limitation with the delay of almost five years, in the year 2011. As such, the complaint ought to

have been dismissed as barred by limitation.

7. Mr. Harikesh Singh, Advocate, learned counsel for the respondent complainant on the

contrary has argued in support of the impugned order and prays for dismissal of the revision

petition.

8. We have considered the rival contentions and perused the record. It is undisputed that the

respondent complainant suffered onset of severe headache followed by loss of consciousness

resulting in permanent disability. It is also not in dispute that the respondent complainant filed

insurance claim with the petitioner company under the accident benefit clause of the insurance

policy. Stand of the petitioner is that permanent disability suffered by the respondent

complainant is due to a medical reason and not due to some accident as envisaged by the

insurance policy. As such, the petitioner is justified in repudiating the claim. Both the foras

below while allowing the complaint of the respondent have taken the view that the disease which

ultimately resulted in permanent disability suffered by the complainant was sudden and

unexpected. Therefore, it is covered under the definition of the accident as envisaged in the

insurance policy. From this it is evident that real controversy between the parties is about

definition and scope of term accident as envisaged by the insurance policy.

9. In order to find answer to this controversy, it would be useful to have a look on relevant

terms and conditions of the insurance policy. Clauses 10-2, 10-4 and 10-5 of the insurance

policy deals with the claims of the insured relating to the permanent disability suffered on

account of the accident. The said clauses are reproduced thus:

10-2 “Accident Benefit”; If at any time when this policy is in force for the full

sum assured, the life assured before the expiry of the period for which the

premium is payable or bvefore the policy anniversary on which the age nearer

birthday of the life assured is 70, whichever is earlier, is involved in an

accident resulting in either permanent disability as hereinafter defined or death

and the same is proved to the satisfaction of the Corporation. The Corporation

agrees in the case of; (a) Disability to the life assured; (i) to pay in monthly

instalment spread over 10 years and additional sum equal to the sum assured

under the policy, if the policy becomes a claim before the expiry of the said

period of ten years, the disability benefit instalments which have not fallen due

wil be paid alongwith the claim (ii) to waive the payment of future premiums.

10-4 The disability above referred to must be disability which is the result of

an accident and must be total and permanent and such that there is neither then

nor at any time thereafter any work, occupation or profession that the Life

Assured can ever sufficiently do or follow to earn or obtain any wages,

compensation or profit. Accidental injuries which independently of all other

causes and within 120 days from the happening of such accident, result in the

irrevocable loss of entire site of both eyes or amputation of both hands at or

above the writs or in the amputation of both the feet at or above the ankles or

above the wrist and ankle should also be deemed to constitute such disability.

10-5 Immediately after the happening of the disability full particulars thereof

must be given in writing to the Branch Office of the Corporation where this

policy serviced together with the then address and whereabouts of the life

assured and within 120 days after the happening of disability there must be

given to the servicing office of the Corporation in the manner required by it,

proof of disability satisfactory to the Corporation and without any expense to

the Corporation, and thereafter similar proof must be given as and when

required by the Corporation, of the continuance of such disability. Any medical

examiner nominated by the Corporation shall be allowed to examine the person

of the Life Assured in respect of any disability claimed in such manner and at

such time before and/or after the disability is accepted by the Corporation as

the Corporation may require”.

10. Before venturing into finding the answer to the above question, it would be useful to

have a look on the law relating to interpretation of the insurance contract. The question relating

to interpretation of an insurance contract came up before the Supreme Court in the case of

Oriental Insurance Co. Ltd. V. Sony Cheriyan (1996) 6 SCC 451 wherein Hon’ble Supreme

Court observed thus:

“The insurance policy between the insurer and the insured represents a

contract between the parties. Since the insurer undertakes to compensate the

loss suffered by the insured on account of risks covered by the insurance policy,

the terms of the agreement have to be strictly construed to determine the extent

of liability of the insurer. The insured cannot claim anything more than what is

covered by the insurance policy”.

Similarly in the case of General Assurance Society Ltd. V. Chandumull Jain (1996) 3

SCR 500 the Constitution Bench of the Hon’ble Supreme Court observed thus:

“In interpreting documents relating to a contract of insurance, the duty of the

court is to interpret the words in which the contract is expressed by the parties,

because it is not for the Court to make a new contract, however reasonable, if

the parties have not made it themselves. Looking at the proposal, the letter of

acceptance and the cover notes, it is clear that a contract of insurance under

the standard policy for fire and extended to cover floor, cyclone, etc. had come

into being”.

Similar view was taken by the Hon’ble Supreme Court in the matter of United India

Insurance Co. Ltd. V. Harchand Rai Chandan Lal (2004) 8 SCC 644, wherein it was observed

thus:

“Therefore, it is settled law that the terms of the contract have to be strictly

read and natural meaning must be given to it. No outside aid should be sought

unless the meaning is ambiguous”.

11. On perusal of record, we find that the District Forum as also the State

Commission while allowing the complaint and insurance claim of the respondent have

observed that physical ailment which resulted in permanent disability suffered by the

complainant was sudden and unexpected. Therefore, it is covered under the definition of

accident and as such, the repudiation of the claim by the insurance policy was

unjustified.

12. The view taken by the foras below is not sustainable because it is based upon the

incorrect interpretation of the word ‘accident’ used in the insurance policy. In our view, the

word ‘accident’ in the context of the insurance policy means an event which is unintended and

unforeseen and which is something that does not occur in the usual course of events. No doubt

the headache followed by permanent disability to the complainant occurred unexpectedly but this

does not mean that aforesaid medical ailment is covered by the word ‘accident’ as envisaged in

the insurance policy. The foras below while taking the above noted view have lost sight of the

terms and conditions of the insurance contract as stipulated in clause 10 (2), 10 (4) and 10 (5)

reproduced above. On reading of clause 10 (2), it is evident that accident benefit is promised by

the insurer only if the assured is involved in an accident resulting in permanent disability or

death. Clause 10 (4) of the insurance contract clarifies the disability under claim must be a

permanent disability which is result of an accident. The clause further provides certain injuries

which are deemed to constitute disability under accident benefit clause and it also provides that

such disabilities should be the result of injuries independent of all other causes as a result of an

accident. From the aforesaid stipulation, it is clear that the word ‘accident’ used in the policy

particularly under the accident benefit clause, means the accident as understood in common

parlance and it does not include the disability caused by medical reasons. Thus in our view, the

foras below have committed a grave error in allowing the complaint by giving an expansive

definition to the word ‘ accident’, which is not envisaged by the insurance contract. Therefore,

the impugned orders being contrary to the law laid down by the Supreme Court cannot be

sustained.

13. As a result of above discussion, we allow the revision petition, set aside the orders of the

fora below and dismiss the complaint. No order as to costs.

…………………………Sd/-

(AJIT BHARIHOKE, J)( PRESIDING MEMBER)

………………………Sd/-…

(SURESH CHANDRA)

MEMBER

Am/



(Against the order dated 29.04.2013 in FA No. 553/2009 of the State Commission Punjab, Chandigarh)

WITH IA / 5645 / 2013 (STAY)

1. Ropar Improvement Trust, Ropar Through its Chairman Having office at Ropar ( Punjab)

2. Executive Officer, Improvement Trust Ropar

........ Petitioners

Vs.

Baldev Raj s/o Sh. Shadi Lal r/o 391, Dasmesh Nagar, Roopnagar Punjab


BEFORE:



For the Petitioner : Mr. Karan Dewan, Advocate

For the Respondent : In person


ORDER


1. This revision is directed against the order of the State Commission Punjab dated

29.04.2013. Briefly stated the facts relevant for the disposal of the revision petition are that

respondent filed consumer complaint alleging deficiency in service against the petitioner Trust

and its Executive Officer. The consumer complaint was allowed by the District Forum vide

order dated 23.08.2001 in following terms:

“(i) To withdraw letter dated 2732 Dt.10-03-2K qua resumption of plot no. 391

situated in at Bela Road part 1 Dashmesh Nagar Ropar being illegal, null and void not

binding on the complainant.

(ii) To deliver the possession of the said plot without any further delay.

(iii) To sanction the site plan on application and to deliver the possession subject to

the compliance of due formalities by the complainant.

(iv) To execute the sale deed of the plot in question on application but subject to the

compliance of due formalities by the complainant.

(v) To provide two year time to the complainant for construction over the plot in

question to be counted w.e.f. the date of defecto-delivery of the possession.

(vi) Not to recover any non construction fee for which claim had been made by it.

(vii) The compliance was to be made by the O.P. within 30 days from the date of

receipt of copy of the judgment”.

2. The petitioners not being satisfied with the order of the District Forum filed an appeal

before the State Commission and the State Commission vide its order dated 30.05.2005 modified

the relief No.5 granted by the District Forum as under:

The complainant shall within a period of three weeks from today submit a duplicate

plan of the house which is stated to have been submitted with the improvement trust way

back in the year 1994. He would also carry out other formalities which may be

required for getting the plan sanctioned. If any defects are pointed out in the plan,

those would also be removed by the complainant within the stipulated period. The

improvement Trust would, after completing the formalities etc. required sanction plan

within a period of one month thereafter and would also offer the delivery of physical

possession of the plot. The complainant would complete the construction within a

period of one year with effect from the date of sanctioning of the plan/delivery of the

possession, whichever is later. If the construction is not completed within the period of

one year, Improvement Trust would be entitled to charge the non-construction fee in

accordance with law. The rest of the directions given by the District Forum are

maintained.”

3. The aforesaid order of the State Commission has become final.

4. On 10.10.2007, the respondent filed an execution application under section 27 of the

Consumer Protection Act praying for taking penal action against the petitioner Trust for non

compliance of the order of the District Forum dated 23.08.2001 as modified by the order of the

State Commission dated 30.05.2005. The respondent alleged in the application that the

petitioner opposite party has intentionally failed to comply with the order despite of number of

application moved by the respondent during the period w.e.f. 14.10.2005 till 18.09.2007. Instead

of complying with the order, the petitioner claimed a sum of Rs.26,123/- with interest on account

of the balance price despite of the fact that the petitioner in response to the original complaint

stated that total sale price of the plot with interest had been paid by the respondent complainant

and no dues certificate was issued in his favour vide memo no. 2082 dated 16.06.1994. It was

also alleged that the petitioner has failed to execute the sale deed and also to pay the cost of

Rs.1000/- imposed by the fora below.

5. The petitioner in his reply to the execution application claimed that cost of Rs.1000/- has

been paid to the respondent complainant vide cheque no.454305 dated 19.11.2007. The

petitioner also claimed in the reply that the sale deed of the plot could not be executed because of

failure of the respondent complainant to clear outstanding dues and to furnish the indemnity

bond. However, during the pendency of the execution petition, the petitioner executed sale deed

in favour of the respondent on the stamp papers of Rs.76000/- on the basis of stamp duty

calculated as per reserved price of the plot at the time of allotment. The sale deed when presented

before the Sub Registrar impounded on the ground that stamp duty paid was less and the

Collector Ropar vide order dated 28.05.2009 directed that a sum of Rs.1,61,730/- with interest be

recovered and the original sale deed be returned to the parties. Respondent preferred an appeal

against the order of the Collector before the Commissioner Roop Nagar Mandal and the

Commissioner vide order dated 21.09.2012 had dismissed the appeal.

6. Learned District Forum on consideration of the record and submissions made by the

parties concluded that there was a deliberate delay on the part of the petitioners in complying

with the order of the State Commission dated 30.09.2005 so far as execution of sale deed,

delivery of possession of the plot and payment of cost is concerned, which was not explained by

the respondent Trust. Accordingly, the District Forum allowed the application filed by the

respondent complainant under section 27 of the Act and ordered thus:

“For the aforesaid reasons, we partly accept the application and direct the respondent

Trust through its Executive Officer, to pay fine in the sum of Rs.10,000/-. The

respondent Trust is at liberty to recover the amount of fine from the defaulting

employee/officer, responsible for the delay in compliance of orders under execution,

after holding enquiry as per rules governing his/her service conditions. In case of

default of deposit of the amount of fine, the Executive Officer of the respondent Trust

shall undergo simple imprisonment for a period of six months.”

7. The respondent complainant not being satisfied with the aforesaid order preferred an

appeal before the State Commission Punjab Chandigarh and the learned State Commission partly

allowed the appeal and directed the petitioners in this revision petition to make good the

deficiency in stamp duty as demanded by the revenue authorities.

8. Learned counsel for the petitioner submitted that the impugned order of the State

Commission is unsustainable for the reason that State Commission has ignored that the rates of

stamp duty payable were enhanced by the Government w.e.f. 22.10.2002 i.e. much before the

order of the State Commission dated 30.09.2005 in appeal against the order of the District

Forum. Learned counsel further contended that the State Commission has failed to appreciate

that the stamp duty is payable by the purchaser and the stamp duty paid by the respondent

complainant for the purpose of registration of sale deed was less than the stamp duty payable as

per the enhanced rate notified by the Government w.e.f. 22.10.2002. Counsel has contended that

the enhancement of the stamp duty cannot be attributed to the delay caused by the petitioner in

execution of the sale deed. As such, the petitioners cannot be saddled with the liability to make

good the deficiency in stamp duty as calculated by the Collector.

9. Respondent on the contrary has argued in support of the impugned order.

10. The petitioner is aggrieved of the direction of the State Commission calling upon him to

make good deficiency in Court Fee. On perusal of the record, we find that the order which is

subject matter of the application under section 27 of the Act was passed on 30.09.2005.

Undisputedly the sale deed was executed by the petitioners after a long delay of more than two

years on 16.01.2008. The question is whether this delay has resulted in putting the respondent

complainant under liability to pay the enhanced stamp duty. Admittedly, the rates of stamp duty

were increased by Government w.e.f. 22.10.2002 and the sale deed submitted by the respondent

complainant for registration was impounded because of lesser stamp duty as per the rates

applicable w.e.f. 22.10.2002. Therefore, it is obvious that delay on the part of the petitioners to

execute the sale deed has not added to the liability of the respondent complainant to pay

enhanced Court fee because the order under execution was passed on 30.05.2005 and even if the

petitioner had executed the sale deed on the same date, the liability on the respondent

complainant viz-a-viz. the stamp duty would have been the same. The sale deed has been

impounded because the respondent provided stamp papers of lesser stamp duty for which failure

on the part of the respondent complainant, the petitioners cannot be burdened. Thus, in our view

the State Commission has committed a grave illegality by directing the petitioner to make good

the deficiency in stamp duty. As such impugned order cannot be sustained.

11. In view of the discussion above, we allow the revision petition and set aside the

impugned order passed by the State Commission and restore the order of the District Forum. No

order as to costs.

………………………….Sd/-(AJIT BHARIHOKE, J)( PRESIDING MEMBER)

…………………………Sd/-

(SURESH CHANDRA)

MEMBER

Am/


REVISION PETITION NO. 815 OF 2013 With IA/1449 (For exemption from filing C/c) IA/1480/2013 (For stay)

(From the order dated 08.05.2012 in First Appeal No. 172/2010 of the State Consumer Disputes Redressal Commission, Himachal Pradesh)

Vishal Sood S/o Shri Ramesh Chand R/o Krishan Bhawan, Mashobra Shimla – 12, (Himachal Pradesh)

…Petitioner/Complainant

Versus

1. Regional Manager M/s. Tata Motors Finance Ltd. Kanchanjanga Building, 4th Road, Barakhamba Road, New Delhi – 110001.

2. The Manager M/s. Tata Motors Finance Ltd. Gumma Niwas, Lower Chakkar Shimla, Himachal Pradesh

…Respondent/Opp. Parties (OP)

BEFORE



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


O R D E R


This revision petition has been filed by the petitioner against the order dated 08.05.2012 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (in short, ‘the State Commission’) in Appeal No. 172 of 2010 – Vishal Sood Vs. Regional Manager, M/s. Tata Motors Finance Ltd. & Anr. by which, while dismissing appeal, order of District Forum allowing complaint partly was upheld.

2. Brief facts of the case are that Complainant/Petitioner purchased vehicle in February, 2005 for Rs.4,95,600/- after raising loan. He agreed to pay loan in 47 monthly instalments of Rs.10,325/- and submitted 40 post-dated cheques. He received notice from OP/Respondent demanding Rs.44,414/- due from him asking him to make payment immediately or return the vehicle. On the next day, the vehicle was repossessed by OP and later on it was sold for a sum of Rs.1,65,000/- and this amount was appropriated towards the loan liability of the petitioner. It was further alleged that the vehicle was repossessed illegally. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP contested and submitted that only after notice; vehicle was repossessed and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, held that repossession of the vehicle was illegal and allowed complaint partly and directed OP to pay Rs.20,000/- as damages. Complainant filed appeal before State Commission for enhancement of compensation and learned State Commission vide impugned order dismissed appeal against which, this revision petition has been filed along with application for condonation of delay.

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

4. Petitioner filed application for condonation of delay and submitted that certified copy of the impugned order was received by him on 19.12.2012 and revision petition filed by him is well within time; even then, petitioner is filing application to avoid any illegal complications. Registry reported delay of 192 days in filing revision petition. By the order dated 22.3.2013, it was observed that petitioner received free copy of the order by hand on 23.5.2012 and learned Counsel for the petitioner prayed for adjournment for verification. Later on, petitioner filed affidavit on 17.9.2013 in which he admitted receipt of copy of order on 23.5.2012 and submitted that copy was handed over to his Counsel on the same day who assured to file revision petition, but revision petition was not filed and later on his Counsel returned brief to him. Petitioner obtained certified copy for filing this revision petition.

5. In the application for condonation of delay, the petitioner stated that revision petition has been filed within the period of limitation and only on inquiry he filed affidavit in which he admitted receipt of copy of the order on 23.5.2012 and concocted new story that copy of the order was given to the Counsel for filing revision petition who assured to file revision petition, but was not filed and brief was returned. Thus, it becomes clear that he tried to mislead this Commission and suppressed the fact of receipt of free copy by hand in application for condonation of delay. Petitioner has not come with clean hands in filing the application for condonation of delay. Not only this, petitioner has not given any cogent reason for inordinate delay of 192 days in filing revision petition and concocted false story that copy was given to the Counsel for filing revision petition who assured to file revision petition and later on returned the brief. He has also not filed affidavit of his Counsel to whom copy of order was given for preparation of revision petition and in the absence of such affidavit, it cannot be believed that petitioner handed over copy of the order to the Counsel for filing revision petition. Thus, it becomes clear that petitioner wilfully suppressed this fact in application for condonation of delay.

7. As there is inordinate delay of 192 days, this delay cannot be condoned in the light of the judgments passed by the Hon’ble Apex Court and the National Commission in (1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Anr.; (2) (2012) 3 SCC 563 – Office of The Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State Commission) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority.

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

………………Sd/-……………


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk



(From the order dated 05.07.2012 in First Appeal No. 480 / 2007 of Punjab State Consumer Disputes Redressal Commission)

New India Assurance Co. Ltd. Registered Office : 87, M.G. Road, Fort, Mumbai. Regional Office: Level V, Tower – II, Jeevan Bharti Building Connaught Place, New Delhi – 110001. Divisional Office, Dalhousie Road, Pathankot – 145001.

... Petitioner

versus

Dr. Gurbaksh Chaudhary s/o Ram Prakash Chaudhary Chaudhary Diagnostic Research Centre Opposite Warehouse, near Bus Stand, Gurdaspur Road,’ Pathankot, Punjab

… Respondent

BEFORE




For the Petitioner(s) Ms. Meenakshi Midha, Advocate

For the Respondent(s) Mr. Jos Chiramel, Advocate


O R D E R


This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 05.07.2012, passed by the Punjab State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 480/2007, “New India Assurance Co. Ltd. versus Dr. Gurbaksh Chaudhary”, vide which, while dismissing the appeal, the order dated 31.01.2007, passed by the District Consumer Disputes Redressal Forum, Gurdaspur, allowing the consumer complaint no. 119/2006, was upheld.

2. Brief facts of the case are that the complainant/respondent Dr. Gurbaksh Chaudhary got installed a C.T. Scan machine at his diagnostic centre at Pathankot, Punjab and the said machine was purchased through finance from the Punjab National Bank in the year 2002, and got insured with the petitioner Insurance Company, vide Policy No. 361600-44-02-0010 from 16.07.2002 to 15.07.2003, for which a sum of `1,18,338/- was paid to the petitioner as premium. The Policy

was renewed vide cover note No. 230187 for the period 16.07.2003 to 15.07.2004, with sum insured of `50 lakhs and the premium charged was `56,700/-. It has been stated in the complaint that the said machine broke down in March 2004. The complainant informed the petitioner in writing on 08.03.2004, but the petitioner did not keep the intimation letter with them and advised the complainant to attach the estimate of repairs alongwith the letter. The complainant then contacted the engineers of JAP Imaging Solutions, SAS Nagar, Mohali on 09.03.20004, who inspected the machine on 10.03.2004 and gave an estimate of loss/repairs for a sum of `7,70,000/-. On 11.03.2004, the complainant sent the claim letter alongwith report of estimated loss and it was handed over to the Divisional Manager of the petitioner company, who gave the remarks that the exact date of the visit of Engineer should be intimated to them, so that they could call and send the surveyor accordingly. The engineers of the company visited the premises on 14.03.2004 and an intimation to this effect was given telephonically to the petitioner, but they did not depute any surveyor till 28.03.2004. Their surveyor Anil Kumar Dhir, visited the premises on 28.03.2004, and all information, papers and reports were made available to him. Thereafter, letters were written to the Insurance Company from time to time, giving full details of the case. The petitioner Company, however, sent a letter to them on 06.05.2005, saying that the surveyor’s report had been received and the claim was being processed, but still, nothing was paid. It has further been stated in the complaint that at the time of the visit of surveyor, the new parts as well as the replaced parts of the machine was shown to him. The surveyor wanted that the defective parts should be put-back in the machine to see the faulty operation, but it was explained to him by the engineers of the repairing company that the machine being very sensitive, the old parts could not be re-inserted in the machine. The complainant put forward a claim for payment of `7,70,000/- alongwith interest @12% p.a. with effect from 28.03.2005. However, on the failure of the Insurance Company to pay the same, the consumer complaint in question, was filed before the District Forum. The District Forum vide their order dated 31.01.2007, awarded a sum of `5,10,830/- to the complainant, alongwith interest @9% p.a. with effect from 15.05.2005. An appeal filed against this order was dismissed by the State Commission vide impugned order and the order passed by the District Forum was upheld. It is against this order that the present revision petition has been made.

3. At the time of hearing before us, the learned counsel for the petitioner Insurance Company stated that the complainant have not cooperated with the surveyor during his visit to the premises and the said surveyor had no occasion to see the damage done to the machine. As per the report given by the surveyor, the damage was to the tune of `2.55 lakh. The surveyor has brought out in his report that the year of manufacture of the CT scan machine as mentioned in the Insurance Policy is 1999 whereas the said machine was found manufactured in the year 1987. As per the valuation report of M/s. Sanjeev Gupta and Associates, the cost of the machine was only `16 lakh, being old. The parts replaced by the insured were not new but second hand. The surveyor assessed the total loss as `7.70 lakh and after allowing for 50% depreciation, the assessed value of the loss was reduced to `3.85 lakh. After further applying the average clause, the quantum of loss assessed was `2,68,858.33 and after deducting 5% for less clause, the final amount came to be `2,55,415.92.

4. The learned counsel has further drawn our attention to the letter dated 2.06.2004, sent by the Insurance Company to the complainant, in which they have mentioned that the intimation letter dated 11.03.2004 from the complainant was received by them the same day and the Assistant General Manager of the Company had given the remarks, “Please let us have the exact date of visit of engineer to enable us to call the surveyor accordingly.” It is further stated by the Insurance Company that the complainant telephonically informed the Divisional Manager on 26.03.2004 that the engineer shall visit on 28.03.2004. The surveyor visited the premises of the complainant on 28.03.2004, when he was informed by the complainant that the machine had already been repaired. It has been stated in the letter dated 2.06.2004 that the Company will not be able to settle the claim in the absence of proper survey. Further, the company sent another letter to them on 22.11.2005, saying that the complainant had hidden the material facts from the petitioner and had not cooperated during survey and assessment of the loss and hence, they were not entitled to any claim. The learned counsel argued that in the light of these facts, the

conclusion drawn by the State Commission did not reflect a correct appreciation of the facts on record and hence, the order passed by the State Commission should be set aside.

5. In reply, the learned counsel for the complainant/respondent stated that the scope of a revision petition is limited, because issues such as the quantum of compensation etc., could not be examined, while deciding the revision petition. At the revisional stage, the order passed by the lower courts can be modified only, if there has been a patent error of law or jurisdiction. As per the facts of the present case, the machine got damaged on 08.03.2004 and on the same date, the petitioner/OP was given information as stated in the complaint itself. The petitioner/OP asked the complainant to give assessment for repair of this machine, following which they contacted a repairer and got estimates from them. They sent a letter to the Insurance Company on 11.03.2004, saying that they had contacted the engineers from Chandigarh to come and check the machine and they were expecting the engineer to visit their premises in the next two days. This letter was duly received by the Company as admitted by them on 11.03.2004 itself and the Divisional Manager made the remarks for finding out the exact date of the visit of the engineers. The machine was accordingly got repaired by them, but the Insurance Company deputed the surveyor quite late, and the said surveyor reached them only on 28.03.2004, when the machine had already been repaired. The surveyor desired that the old parts should be inserted again into the machine, so that he could make proper assessment of the defects in the machine, but it was not possible to reinsert the old parts at that stage, because the machine is highly sensitive and it could have led to further damage to the machine. The surveyor sent them a letter also dated 1.04.2004, saying that old parts should be put again, but it was not feasible to do so. Further, the report of the surveyor says that the machine was made in 1987, but the surveyor has not given any reasons to arrive at that conclusion. Learned counsel has also drawn our attention to the terms and conditions of the insurance Policy, saying that the sum insured has to be equal to the cost of the replacement of the insured property by new property of the same kind and same capacity.

6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. It is the case of the complainant that the machine broke-down in the month of March 2004 and they informed the Insurance Company on 08.03.2004 in writing, regarding the problem in the machine. The petitioner/OP advised them to attach the estimate of repairs alongwith the letter. The complainant, thereafter, contacted the engineers of JAP Imaging Services, 838, Phase-II, SAS Nagar, Chandigarh on 09.03.2004, who inspected the machine on 10.03.2004 and gave an estimate of loss/repairs for a sum of `7,70,000/-. The complainant then sent claim letter to the Company on 11.03.2004, alongwith estimated cost of loss and the same was handed over to Shri Ram Krishan, Divisional Manager of the Company, who gave his remarks as quoted above on the said letter. However, a perusal of the said letter dated 11.03.2004 indicates that the complainant has therein stated as follows:-

“This is to bring to your kind notice that our CT Scan Machine is giving problem and we have contacted engineers from Chandigarh to come and check our machine to find out the fault. We are expecting engineers to visit our centre in next two days.”

A hand-written note is there on this letter, saying that copies of the estimate and service report are attached.

7. It is clear from this letter that there is no reference to the earlier letter having been written on 08.03.2004. Moreover, there is no evidence on record to show that the complainant ever informed the Company about the repair of the machine done on 14.03.2004. The Insurance Company have stated that the complainant informed them telephonically on 26.03.2004 about the visit of the engineer on 28.03.2004, whereupon they deputed their surveyor to go to the complainant on 28.03.2004. When the surveyor reached there, he was told that the machine had already been repaired about two weeks back. Thereafter, the surveyor wrote letters to them

asking for various documents and information, but as per the version of the Company, the same was not supplied to them. The Company also wrote to the complainant they had not cooperated with the surveyor due to which the assessment could not be made properly. The letter of repudiation dated 02.06.2004 has stated this aspect in clear terms.

8. Further, a perusal of the report given by the surveyor says that this machine was made in the year 1987 and they have mentioned the exact dates of manufacturing of various parts of the machine in the report. According to the report, the parts replaced were old, and not new. They have also stated that although the machine was insured for `41.90 lakh, but as per the valuation report of M/s. Sanjeev Gupta and Associates, the cost of machine was only `16 lakh, being old. The surveyor has, therefore, calculated the loss after making a depreciation of 50% on the assessed amount. The surveyor after further applying the average clause etc. found the net loss to be `2,55,415.42 ps.

9. In view of the facts explained above, when it has been brought out clearly in the report of the surveyor that this was an old machine, made in the year 1987 and its value was much lower than the value of `41.90 lakh for which it was insured, there does not seem to be any reason for allowing a sum of `5,10,830/- as awarded by the State Commission and District Forum. It has been stated in a number of decided cases, viz., “United India Insurance Co. Ltd. & Ors. versus Roshal Lal Oil Mills Ltd. & Ors.” [2000 (10) SCC 19], that report of the surveyor is an important document and it should be considered before arriving at a judgement. In the present case, the complainant has not been able to give any cogent and convincing explanation to rebut the conclusions arrived at by the surveyor.

10. In view of the facts stated above, this revision petition is partly allowed and the award given by the State Commission and the District Forum is modified, saying that the complainant shall be entitled to a compensation of `2,55,415.42ps. as assessed by the surveyor, alongwith interest @9% p.a. from the date of filing the complaint, till realisation. There shall be no order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBER

RS/


FIRST APPEAL NO. 214 OF 2010

(Against the order dated 29.04.2010 in CC No. 08/256 of the Delhi State Consumer Disputes Redressal Commission,)

Jasvir Kohli s/o Late Shri R.L.Kohli r/o 2829, Ashok Street, Ram Bazar Mori Gate, Delhi – 110006

........ Appellant

Vs.

Punjab National Bank (Commercial Bank) Chawla Market, Sadar Bazar Delhi – 110006


BEFORE:



For the Appellant : Mr.S.K.Srivastav, Advocate

Mr. M.K.Dubey, Advocate

For the Respondent : Mr. Rajat Sharma, Advocate


ORDER



whereby the State Commission Delhi allowed the complaint filed by the appellant.

2. Undisputed facts for the disposal of this revision petition are that the appellant filed a

consumer complaint alleging deficiency in service on the part of the opposite party bank

resulting in loss of Rs. 12,40,000/- to the appellant. Opposite party resisted the complaint. The

State Commission, however, on consideration of evidence allowed the complaint and directed

thus:

“We direct the OP to pay to the complainant a sum of Rs.12,40,000/- with interest @

5% p.a. w.e.f. the date this amount was withdrawn from his account i.e. 14.05.2007 till

date. No separate order for compensation is required to be passed because award of

interest shall adequately meet the ends of justice. The complaint is, accordingly,

allowed with cost of litigation of Rs.10,000/-“.

3. The appellant being aggrieved of the amount of compensation awarded by the State

Commission has preferred the First Appeal seeking enhancement of interest as also

compensation and litigation expenses.

4. Learned counsel for the appellant has contended that State Commission has committed a

grave error in awarding interest at a paltry rate of 5% p.a. ignoring the fact that even if the

appellant had deposited the money wrongly withdrawn from his account in a Fixed Deposit

Account it would have earned interest @ 9% p.a.. It is further contended that the State

Commission has failed to appreciate that due to the unauthorised withdrawl of Rs.12.00 lakh

from the account of the appellant, the appellant has suffered great mental trauma and harassment.

Therefore, the State Commission ought to have awarded compensation of mental trauma, agony

and harassment suffered by the complainant appellant and also the litigation expenses.

5. Learned counsel for the respondent has contended that the appellant has not come to the

Commission with clean hands and the appeal is liable to be dismissed because the appellant has

already settled his claim and received a sum of Rs.15,92,784/- in full and final settlement of his

claim.

6. We have considered the rival contentions and perused the record.

7. Respondent has placed on record true copy of order dated 04.12.2012 passed by the State

Commission in Execution Proceedings 2010/31 which is reproduced thus:

“04.12.2012

Present : Decree Holder in person

Mr. Subhash Khurana, Manager of the J.D. Bank

EX-2010/13

Manager of J.D. Bank handed over a demand draft to the Decree Holder

before this Commission for an amount of Rs.15,92,784/- in full and final satisfaction of

his claim. The Decree Holder by putting an endorsement of the receipt on the order

sheet has also endorsed that he is received this amount in full and final satisfaction of

his claim. Execution case is therefore disposed of being settled.

File be consigned to record room”.

8. On perusal of the above noted proceedings of the Executing Court, it is seen that on

04.12.2012, the appellant has accepted a sum of Rs.15,92,784/- in full and final settlement of his

claim. Once the appellant has received the said amount in full and final settlement, he now

cannot be permitted to re-agitate the matter and seek enhancement of rate of interest or

compensation etc. Learned counsel for the appellant has tried to wriggle out this situation by

contending that the words ‘full and final settlement of his claim’ used in the proceedings dated

04.12.2012 are in respect of the claim under the Execution Proceedings. It is contended that

appellant had preferred an appeal against the impugned order dated 29.04.2010 in July 2010

itself and there is nothing in the proceedings dated 04.12.2012 to suggest that the appellant

agreed to withdraw his appeal. We do not agree with this contention for the reason that the first

appeal filed against the order of the State Commission was dismissed for non-prosecution on

06.08.2010. The application for restoration of said appeal was moved much later in the year

2013 and the appeal was restored vide order dated 05.04.2013. From this it is clear that on

04.12.2012, no appeal of the appellant was pending. Thus there was no need for clarification

that settlement between the parties was subject to outcome of the appeal. It is clear that the

appellant had received the amount of Rs.15,92,784/- in full and final settlement of his claim.

Once having settled the claim, the appellant now has no right to re-agitate the matter. It appears

that application for restoration of appeal was moved after the settlement with ulterior motive to

entrust more money from the opposite party.

9. In view of the discussion above, we do not find merit in the appeal. Appeal is

accordingly dismissed with no order as to costs.

………………………….


…………………………

(SURESH CHANDRA)

MEMBER

Am/


REVISION PETITION NO. 3548 – 3549 OF 2013

(Against the order dated 12.07.2013 in FA No. 861 & 891 of 2011 of the State Commission Rajasthan, Jaipur)

Ramesh Chandra s/o Shri Munshi Ram Village Lal Vadi, Tehsil Ramgarh, District Alwar Address for Correspondence : - Kamal Chamaria, Advocate C-2, Plot No. 69-70, Kanchan Residency Shyam Vatika, Nandpuri, Ram Nagar, Ext. Sodala Jaipur Rajasthan

........ Petitioner

Vs.

1. ICICI Lombard General Insurance Co. Ltd. Bhagat Singh Circle, Alwar, Rajasthan

2. Tata Motors Finance Co. Ltd. Tej Mandi, Alwar, Rajasthan

......... Respondents

BEFORE:



For the Petitioner : Mr. Himanshu Singh Dhillon, Advocate


ORDER


This revision is directed against the order of the State Commission Rajasthan Jaipur dated

12.07.2013 whereby the State Commission dismissed the appeal of the petitioner complainant

seeking enhancement of the compensation.

2. Briefly put facts relevant for the disposal of this revision petition are that the petitioner

complainant insured his truck no. RJ 14-2G-6061 with the respondent opposite party vide a

policy valid for the period 12.02.2008 to 11.02.2009. The truck was stolen on the night

intervening 4-5 April, 2008 at about 1.00 -1.30 a.m. when the driver of the truck went to the

fields Singhara Thana, Punahan to attend the call of nature. The matter was reported to the

police vide vide FIR No. 107 on 15.04.2008. The insurance company was also informed about

the theft. Petitioner filed insurance claim which was repudiated by the opposite party on two

counts i.e. the delay in reporting the theft and also the failure on the part of the assured driver to

take reasonable care to protect the interest of the insured opposite party. This resulted in filing of

the consumer complaint.

3. The District Consumer Forum Ajmer Jaipur on consideration of the pleadings of the

parties and evidence allowed the complaint on non-standard basis with following observations:

“At the time of the arguments complainant advocate cited a judgment (2010) CPJ

297 (NC) National Insurance Co. Ltd. Vs. Kamal Singh in which it is held by the

Court that ‘Driver was not expected to carry key while getting down to answer

nature’s call-Claim be settled on ‘non-standard basis.’ According to complainant

Driver went to nearby agriculture field to attend nature’s call during the time

truck was stolen and he has never intimated the policy authority about 10 days

and it is breach of policy. Therefore, according to Hon’ble Apex Court citation

Amalendu Sahoo’s versus Oriental Insurance Co. Ltd. 2010 CPJ 485 we allow the

claim of the complainant at non-standard basis.

ORDER

“That the insurance company has directed to pay to deduct 25% from the insured

amount of truck sum of Rs.7,00,000/- and pay 75% amounting to Rs.5,25,000/- to

non-complainant no.2 financer and to pay the balance amount, if any, to the

complainant as well as to pay the complainant a sum of Rs.3000/- towards mental

agony, tension and depression and litigation expenses within a period of one

month”.

4. Being aggrieved of the order of the District Forum, the respondent opposite party

preferred an appeal before the State Commission. Petitioner complainant also filed an appeal

against the order of the District Forum seeking enhancement of compensation claiming that the

District Forum has no right to reduce the claim to 75% only.

5. The State Commission on consideration of record allowed the appeal and dismissed the

complaint on the premise that the respondent complainant has failed to take reasonable care and

precaution to protect the interest of the insurance company inasmuch as that while leaving the

truck, the driver and khalasi left the keys in the ignition and also that the vehicle of the truck was

not reported promptly and the FIR was lodged after a delay of 11 days.

6. Shri Pushpinder Singh, Advocate, learned counsel for the petitioner has contended that

order of the State Commission is based upon incorrect appreciation of law and facts. The State

Commission has failed to appreciate that the driver and khalasi of the truck did not left the truck

unattended. They had gone to attend the call of the nature for few minutes in the nearby field

which cannot be taken as a circumstance to conclude that the driver and khalasi of the truck

failed to take precaution to protect the interest of the insurer. It is further contended that State

Commission while dismissing the complaint on the ground of late reporting of theft failed to

appreciate that as per the repudiation letter dated 28.05.2008, the insurance company repudiated

the claim only on the ground to take reasonable care and precaution, which a prudent man ought

to have taken to protect the insured truck and the plea of the late reporting of the theft is after-

thought. It is also argued that trial Court also failed to appreciate that during investigation, one

Akbar was arrested who confessed that he had stolen the truck which clearly indicate that the

truck was actually stolen and claim preferred by the petitioner was not false.

7. Undisputedly, the truck in question was allegedly stolen on the night of 4th – 5th April,

2008 at around 1-1.30 a.m. As per the allegations in the complaint, the theft was reported to the

police 11 days later vide FIR No. 107 lodged at P.S. Punahan District Gurgaon on 15.04.2008.

There is nothing in the complaint to indicate on which date the theft was reported to the

respondent insurance company. Thus, it can be safely inferred that theft was reported by the

petitioner to the authorities after a delay of 11 days. The aforesaid delay obviously has

prevented the insurance company as also the police to start timely investigation with a view to

locate and recover the truck. Thus, we do not find any fault with the order of the State

Commission that by failing to promptly inform the theft of the truck to the police as well as the

insurance company, the petitioner has failed to take proper care to protect the interest of the

respondent insurance company. As such, the respondent insurance company was justified in

repudiating the claim.

8. It is contended by learned counsel for the petitioner that the State Commission has

committed a grave error in failing to appreciate that during the police investigation, one Akbar

was arrested who confessed that he had stolen the truck. As such, there can be no doubt about

the correctness of the story of the theft of the truck. This factor, in our view, is of no avail to the

petitioner particularly when he has violated the terms and conditions of the insurance policy by

failing to report the theft to the police as well as the insurance company within a reasonable time.

Even the judgment of the Supreme Court in the matter of Amalendu Sahoo Vs. Oriental

Insurance Co. Ltd II (2010) CPJ 9 (SC) is of no avail to the petitioner for the reason that

aforesaid judgment is based on its own peculiar facts. In that case, the vehicle insured was a

personal vehicle but it was used for hire which according to the insurance company was violative

of the terms and conditions of the insurance policy. The aforesaid misuser which was subject

matter of the Amalendu Sahoo’s case had no causal link to the theft. However, in the instant

case, the violation committed by the petitioner is grave because by failing to intimate the theft to

the police and the insurance company, the petitioner has prevented those authorities from taking

prompt action to locate and recover the truck.

9. In view of the discussion above, we are of the opinion that the impugned order does not

suffer from any jurisdictional error or legal infirmity which may call for any interference by this

Commission in exercise of its revisional jurisdiction. Revision petition is, therefore, dismissed

with no order as to costs.

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

…………………………

(SURESH CHANDRA)

MEMBER

Am/



(From the order dated 11.02.2013 in Appeal No. FA/12/403 of the Chhattisgarh State Consumer Disputes Redressal Commission, Pandri, Raipur)

WITH IA/7598/2013 (CONDONATION OF DELAY)

Smt. Seema Garg W/o Sh. Sanjiv Garg, R/o Nalwa Sponge Iron Colony, Taraimal, Post, Tehsil & District Raigarh (C.G.)

… Petitioner

Versus

The Oriental Insurance Company Ltd., Itwari Bazar, Raigarh (C.G.) Through Senior Divisional Manager, Divisional Office No. 1, City and District Raipur (C.G.)

… Respondent

BEFORE

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



For the Petitioner

: Mr. S. K. Singh, Advocate


O R D E R


This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 11.02.2013, passed by the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (for short ‘the State Commission’) in appeal no. FA/12/403, The Oriental Insurance Company Limited Vs. Smt. Seema Garg, vide which, while allowing appeal filed by the opposite party/respondent, Insurance Company, the order dated 08.06.2012 passed by the District Consumer Disputes Redressal Forum, Raigarh in case no. 95/2010, allowing the complaint in question, was set aside and the complaint was ordered to be dismissed.

2. Briefly stated the facts of the case are that a trailer vehicle bearing registration no. CG-

13A/9924 was insured with the Opposite Party/Insurance Company, vide policy no.

153300/31/2009/1130 from 05.05.2009 to 04.05.2010. The said vehicle was damaged in a road

accident on 29.06.2009. A surveyor was appointed by the Insurance Company to assess the loss.

However, the Insurance Company repudiated the claim, saying that the vehicle was not being

driven by a person having a valid and effective driving licence at the relevant time and hence,

there was a material violation of the terms and conditions of the policy. The driver, Mukesh

Kumar Sahu was holder of driving licence to drive motorcycle, LMV etc., but the permission to

drive transport vehicle and heavy goods vehicle was given w.e.f. 09.11.2009, whereas the

accident took place on 29.06.2009. The present petitioner filed the consumer complaint in

question, which was allowed by the District Forum, vide their order dated 08.06.2012. The

District Forum ordered that the petitioner was entitled to receive a sum of `1,77,660/- towards

vehicle repair bill and after deducting an amount of `32,811/-, already received from the opposite

party as compensation, opposite party was required to pay `1,44,849/- to the complainant

alongwith interest at the rate of 9% per annum and compensation of `4,000/- towards mental

agony and `1,000/- towards cost of litigation. An appeal was filed by the Opposite

Party/Insurance Company before the State Commission against this order, and the same was

allowed vide impugned order dated 11.02.2013. The State Commission held that the driver of

the complainant was not having valid and effective driving licence at the time of incident and

hence, there was a material violation of the conditions of the policy. Learned State Commission

also observed that the amount of `32,811/- had in fact, been given by the complainant to the

Insurance Company for getting the vehicle insured for ` 7,50,000/-. The State Commission

dismissed the consumer complaint in question. The present revision petition has been filed

against this order.

3. At the time of admission hearing before us, learned counsel for the

petitioner/complainant stated that the petitioner informed the respondent/Insurance company

immediately after the said incident and submitted all relevant documents to the surveyor. The

surveyor had assessed the loss to the tune of `1,77,660/-. There was no wilful breach or violation

of law on the part of the insured. It was the duty of the insurer to prove that there was wilful

violation of the terms and conditions of the policy. The driver was already having licence to

drive motorcycle, LMV etc., but the endorsement to drive transport vehicle was given w.e.f.

09.11.2009. Learned counsel stated that since the policy had been obtained after depositing

requisite amount of premium, the claim should not have been repudiated.

4. We have examined the entire material on record and given our thoughtful consideration

to the arguments advanced by learned counsel for the petitioner at the time of admission hearing.

There is a delay of 200 days in filing the present revision petition. An application for

condonation of delay has been filed by the petitioner vide I.A. No. 7598/2013. It has been stated

therein that copy of the impugned order dated 11.02.2013 was received by the petitioner on

07.3.2013, whereupon the petitioner approached the local counsel for advice. She was advised to

file a petition before the National Commission and for that purpose, she contacted the present

counsel at Delhi. The present counsel advised her to bring complete set of paper book filed

before the District Forum and the State Commission. However, her local counsel told her that

copy of the paper book was not traceable. As such, a time of about three months were lost in

obtaining copy of the paper book. Further, some time was spent in getting the document

translated into English. The petition was presented before this Commission on 19.09.2013, but it

was returned with certain objections. The petitioner has stated that delay of 200 days occurred

because of the factors described above. Although, these are not cogent and convincing reasons

for condoning the delay, yet in the interest of justice, the delay is condoned because the

petitioner should not suffer for the fault of her counsel.

5. The petitioner/complainant has admitted in the grounds of revision petition that, although

the driver of the vehicle in question was having licence to drive motorcycle, LMV etc., but the

endorsement to drive transport vehicle was made w.e.f. 09.11.2009 only, whereas the accident

took place prior to that i.e. 29.06.2009. It is clear, therefore, that the driver was not in possession

of a valid and effective driving licence at the time of the accident. In a large number of cases

decided by the Hon’ble Apex Court and this Commission, it has been observed that when a

driver does not have a valid and effective driving licence at the time of incident, the claim could

not be honoured. The District Forum has also referred in their order, the case, ‘New India

Insurance Company Ltd. vs. Prabhu Lal’ as reported in (2008)ISCC696, wherein it was held that

if there was no entry in the driving licence regarding driving of a transport vehicle, the Insurance

Company was not liable to pay compensation for the loss. Even after quoting this judgment, the

District Forum decided to allow the complaint, the reasons for which have not been elaborated.

However, the impugned order passed by the State Commission is based on a correct appreciation

of the facts and circumstances on record as well as the legal proposition governing the issue.

We, therefore, do not find any illegality, irregularity or jurisdictional error in the impugned order

of the State Commission. The same is, therefore, ordered to be upheld and the present revision

petition is ordered to be dismissed at admission stage, with no order as to costs.

..……………………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..……………………………

(DR. B.C. GUPTA)

MEMBER

PSM


REVISION PETITION NO.666 OF 2012

(From the order dated 24.08.2011 in F.A. No.2011/2008 of the U.P. State Consumer Disputes Redressal Commission, Lucknow)

KUMARI MEENA D/O SRI BRIJESH KUMAR, R/O VILLAGE-NAVALI, P/O-BASUNDHARA, DISTRICT-ETAH, (U.P.)

.….. PETITIONER

Versus

1. POST MASTER, SUB POST OFFICE AWAGARH, DISTRICT-ETAH, (U.P.)

2. SUPERINTENDENT OF POST OFFICE, POSTAL DIVISION, ETAH (U.P.)

3. STATE OF U.P. THROUGH CHIEF SECRETARY SAMAJIK LOK KALYAN MANTRALAYA SECRETARIAT, LUCKNOW, U.P.

....... RESPONDENTS

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER


For the Petitioner : Mr.Viresh Kumar Yadav, Advocate

For the Respondents : Mr.Nikhil Jain, proxy counsel for

Dr. Uday Veer Singh, Adv. for R1 and R2

Mr.Gaurav Dhingra, Adv. for R3

PRONOUNCED ON: 15 th January, 2014

ORDER

PER SURESH CHANDRA, MEMBER

This revision petition has been filed by petitioner/complainant challenging the impugned

order dated 24.08.2011 passed by the U.P. State Consumer Disputes Redressal Commission,

Lucknow (‘the State Commission’, for short) in Appeal No.2011 of 2008 whereby the State

Commission allowed the appeal of OPs no.1 and 2/ respondents no.1 and 2 herein against the

order dated 24.09.2008 passed by the District Forum, Etah in Complaint No.93 of 2007.

Vide its order, the District Forum had allowed the complaint of the petitioner against the

respondents no.1 and 2 but dismissed the complaint against the OP. no.3/respondent no.3,

the State Bank India in terms of the following directions:-

“It is ordered to the opposite parties No.1 & 2 that to make the payment of

Cheque No.831810 dated 23.12.2006 of amount of Rs.20,000/- to the

complainant with interest @ 9% annually from the date 20.01.2007 to till

payment within one month from the date of order. Opposite parties No.1

& 2 also ordered to make the payment of amount Rs.3,000/- as physical &

mental harassment and amount of Rs.2,000/- as cost of litigation within

one month from the date of order. Complainant is directed to make

available the above said cheque to the opposite party No.1 within 15 days

from the date of order.”

2. Briefly stated the facts relevant for disposal of this revision petition are that the petitioner

received the cheque dated 23.12.2006 drawn on the State Bank of India under the scheme of

U.P. Govt., namely, “Kanya Vidhya Dhan Yojana” for poor girls, which was deposited by

the petitioner in her Saving Account no.1515935 with the OP post office at Awagarh on

20.01.2007. This fact is not disputed by the OP postal authority. It is also not under dispute

that the cheque, which was for an amount of Rs.20,000/- was payable by the OP no.3, the

State Bank of India, Tehsil Jasrana, District Firozabad (U.P.). After depositing the cheque

with the OP post office for collection of the amount from the drawee bank, the

petitioner/complainant kept on ennquiring about the crediting of the proceeds of the cheque

into her saving account but could not get a satisfactory answer from the OP post office.

Thereupon the petitioner gave a letter to the post office and also to District Magistrate, Etah

and as per the averments made, no action was taken by the OP post office. Eventually, the

cheque in question was returned by the OP post office after six months saying that the

validity of the cheque had lapsed and obtained signature of the petitioner on plain papers on

01.06.2007 forcibly thereby indicating that the validity of the cheque had lapsed and as such,

the proceeds could not be collected. It is the grievance of the petitioner that she had

deposited the cheque with OPs no.1 and 2 on 20.01.2007 but because of carelessness and

negligence on the part of the OP post office, the cheque was not presented to the drawee bank

within its validity and hence she could not get the money under the scheme of the U.P.

Government. Alleging deficiency in service on the part of the post office, the petitioner filed

a Consumer Complaint with the District Forum, Etah in which the petitioner prayed for

direction by the District Forum to the OPs for payment of the cheque along with the

compensation for her mental agony and harassment.

3. The OPs filed their written statement opposing the complaint. The contention of the OP

no.3 Bank was that no such cheque was received in their branch as alleged by the

complainant/petitioner and as such, it had no liability for encashing the same and hence, the

question of any deficiency in service on its part did not arise. The OPs no.1 and 2 admitted

that the cheque in question was deposited with respondent no.1 post office on 20.01.2007. It

was submitted by them that the cheque was forwarded by the Sub Post Master for collection

on 20.01.2007 through the Post Master, Etah Post Office, who in turn further sent to Post

Master Firozabad vide registered letter no.5096 dated 26.01.2007 but this registered letter did

not reach its proper place and reached at other places like Faizabad, Azamgarh and Basti and

eventually was received back with the Sub Post Office Awagarh from Basti Post Office vide

registered post. In the meanwhile, since the validity of the cheque had expired, it was sent by

the Post Master to the complainant/petitioner for revalidation and extension of the cheque

date. It was contended by the OPs that the complainant instead of getting the cheque

revalidated, filed the consumer complaint, which is liable to be dismissed because the

complainant herself failed to redeposit the cheque after extension of its validity period. The

collection of the aforesaid cheque could not be done because it could not reach the proper

place for collection. It was submitted that it happened through an inadvertent mistake

because of which the cheque went to wrong place rather than reaching at correct destination

and during this period its validity expired. Denying any deficiency in service on their part,

the OPs no.1 and 2 prayed for dismissal of the complaint.

4. Parties filed their affidavits in support of their submissions and also led evidence before

the District Forum. After hearing the parties and appraising the evidence adduced before it,

the District Forum accepted the complaint in terms of its order reproduced above. As stated

above, the OPs no.1 and 2 went in appeal before the State Commission challenging the order

of the District Forum. The State Commission vide its impugned order reversed the order of

the District Forum and allowed the appeal while dismissing the complaint.

5. We have heard learned Shri Viresh Kumar Yadav, counsel for the petitioner, Shri Nikhil

Jain, proxy counsel for Dr. Uday Veer Singh, Advocate for the respondents no.1 and 2 and

Shri Gaurav Dhingra, Advocate for newly added respondent no.3, namely, State of U.P.,

through Chief Secretary.

6. Learned counsel for respondent no.3, i.e., U.P. Government has submitted that the R3 is

not in a position to revalidate the cheque because the funds, which were received under the

scheme have already lapsed and there is no budget for making the payment of the cheque

amount to the petitioner. Learned counsel for the petitioner has submitted that the State

Commission has failed to appreciate that the present case pertains to deficiency in service on

the part of the OP post office in collecting the proceeds of the cheque deposited with it for

collecting and crediting of the amount into the saving account of the petitioner in time. In

view of this, the State Commission has wrongly applied the Section 6 of the Indian Post

Office Act, 1898 which provides that only if a willful act and fraud is proved against any

employee of the post office, an order can be passed by Consumer Forum for deficiency in

service caused and cost of litigation. He has argued that even in the written statement filed

by the OP post office the plea regarding applicability of Section 6 of the Indian Post Office

Act to the present case was not taken. He argued that Section 6 will apply only if the matter

pertains to delivery of a postal article. This being the case of negligent handling of the

cheque deposited by the petitioner with the OP post office which caused the delay in question

leading to expiry of its validity, which deprived the petitioner from enjoying the proceeds of

the cheque granted to her by the U.P. Government. He contended that since the U.P.

Government is not in a position to revalidate the cheque, the OP post office in its capacity as

the service provider to the petitioner who is its account holder, has to be squarely held liable

for compensating the petitioner on account of its lapse and deficiency in service. He,

therefore, submitted that the District Forum had rightly allowed the complaint of the

petitioner and directed the OP post office to compensate the petitioner as per the directions

vide its order. The impugned order, which is based on wrong appreciation of facts and

incorrect application of Section 6 of the Indian Post Office Act, 1898 is perverse and cannot

be sustained in the eye of law. The impugned order is, therefore, liable to be set aside and

the order of the District Forum deserves to be restored. Per contra, learned counsel for the

respondents no.1 and 2 has supported the impugned order.

7. We have considered the rival contentions and perused the record. Admittedly, it is a case

of alleged deficiency in service on the part of the postal authority in regard to handling of a

cheque deposited by the account holder in her saving account. This being the undisputed

factual position, Section 6 of the Indian Post Office Act, 1898 which provides for exemption

from liability for loss, misdelivery, delay or damage of a postal article will not be applicable

to the present case. In this context, it may be fair and just to have a look at provisions of

Section 6, which may be reproduced thus:-

“6. Exemption from liability for loss, misdelivery, delay or damage. –

The Government shall not incur any liability by reason of the

loss, misdelivery or delay of, or damage to, any postal article in

course of transmission by post, except in so far as such liability

may in express terms be undertaken by the Central Government

as hereinafter provided; and no officer of the Post Office shall

incur any liability by reason of any such loss, misdelivery, delay

or damage, unless he has caused the same fraudulently or by his

wilful act or default.”

8. Keeping in view the above provision, we have no manner of doubt in our mind that the

State Commission committed a grave error in accepting the plea of the OPs during the course

of hearing the appeal and based on this proceeding to upset the finding of the District Forum

and dismissing the complaint. The impugned order, therefore, cannot be sustained in the eye

of law and is liable to be set aside. We, accordingly, accept the revision petition, set aside

the impugned order and restore the order dated 24.09.2008 passed by the District Forum. It

is hereby directed that the respondents no.1 and 2 shall comply with the order of the District

Forum within a period of one month failing which they shall be liable to pay interest @ 12%

p.a. from the date of expiry of period of one month till the date of actual payment of the

amount awarded by the District Forum to the petitioner.

9. The revision petition is accepted in terms of the aforesaid directions. There shall be no

order as to costs for this stage of litigation.

………sd/-…………..…

(AJIT BHARIHOKE, J.)

PRESIDING MEMBER

sd/-…….………

MEMBER

bs

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3486 OF 2013 With I.A. No. 6200 of 2013 for Condonation of Delay (From order dated 03.09.2012 in First Appeal No. 822 of 2012 of State Consumer Disputes Redresdsal Commission, Haryana, Panchkula ) Dr. Ravinder Kumar H. No. Krishna Vihar West, Najafgarh, New Delhi-110043

………Petitioner

Versus 1. Managing Director, Dish TV India Ltd. FC-19, Sector-16A, Film City, Noida, Uttar Pradesh India Pincode-201301. 2. Prop. Sh. Deepak Ahuja Ahuja Sales Agency, Gandhi Park Market, Main Bazaar, Kaithal, Haryana-136027. …… Respondents BEFORE:

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

For the Petitioner : In person.

Pronounced on: 15 th January, 2014

ORDER

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

Being aggrieved by order dated 03.09.2012 passed by the State Consumer

Disputes Redressal Commission, Panchkula (Haryana)(for short, ‘State Commission’),

Petitioner/Complainant filed an appeal under Section 19 of the Consumer Protection

Act, 1986(for short, ‘Act’) which has been converted into a revision petition.

2. Alongwith this revision, petitioner has filed an application seeking condonation of

delay. However, in the entire application, no period of delay has been mentioned.

However, as per the office report, there is delay of 290 days.

3. Petitioner/Complainant filed a Consumer Complaint before the Consumer

Disputes Redressal Forum, Kaithal(for short, ‘District Forum’) on the grounds that he

had purchased a Dish TV DTH from Respondent No.1/O.P. No.1 for a sum of

Rs.2,490/-. It is alleged that from the date of installation of Dish TV, it was not working

properly and it was handed over to Respondent No.2/O.P.No.2 for repairs. When

petitioner approached respondent no.2 to take Dish Box, he found that it was in a

broken condition. However, when the said Box was installed with TV, it gave problem

to DTH. Alleging deficiency in service on part of the respondents, petitioner filed a

consumer complaint before the District Forum.

4. The complaint was contested by the respondents.

5. District Forum, vide order dated 23.2.2012 dismissed the complaint of the

petitioner.

6. Aggrieved by the order of the District Forum, petitioner, filed an appeal before

the State Commission which came up for hearing before it on 03.09.2012. On that date,

none was present on behalf of the appellant. Therefore, the State Commission held;

“Perusal of the file shows that this appeal was received in this Commission by post on 29.6.2012, thereafter, it was listed for motion hearing on 10.7.2012. On the date of motion hearing, taking into account the non-appearance of the appellant, notice was ordered to be issued to him for today. In pursuance to the order dated 10.7.2012, notice was issued by the office under office dispatch No. 2198 dated 13.7.2011. A period of 30 days has already been passed but notice has neither been received back served nor unserved. Even appellant did not take care to appear before this Commission to argue the matter on motion hearing. In the absence of the appellant, we proceed to pass an appropriate order, after going through the entire case file”.

7. The State Commission, as per impugned order concurred with the view of the

District Forum and dismissed the appeal in limine.

8. Now, petitioner has filed this revision.

9. We have heard the petitioner who has argued the matter on his own and gone

through the record.

10. It is well settled that “sufficient cause” for condonation of delay in each case, is a

question of fact.

11. It is the case of the petitioner that he did not receive the copy of impugned

order dated 03.09.2012. Hence, on 4.8.2013 and 15.09.2013, he sent e-mail to the

State Commission and wrote an application to the Secretary of the State Commission

on 23.8.2013 asking for the status of his case. Thereafter, on 24.09.2013, he visited the

State Commission, Haryana and enquired about his case and got the certified copy of

the order. Immediately thereafter, he filed the appeal before this Commission and thus

the same is within time.

12. It is an admitted case that petitioner was Appellant before the State

Commission. Once petitioner has filed the appeal before the State Commission, it was

his bounden duty to have followed it with due care and diligently. Petitioner after

filing the appeal, went into deep slumber and never bothered to know about the status

of its appeal.

13. Be that as it may, it is apparent from the impugned order that, notice of hearing

was issued to the petitioner by the State Commission. Inspite thereof, petitioner did

not appear.

14. Secondly, petitioner has made false averments in the present petition that he

did not receive the free copy of the impugned order passed by the State Commission.

Petitioner himself has placed on record certified copy of the impugned order dated

03.09.2012 issued to him on his application for obtaining the certified copy on which

there is an endorsement which states; “Certified copy of the order supplied free of cost

to the parties/counsel on 12.09.2012”.

15. As petitioner has been supplied with the free copy of the impugned order, as early

as on 12.09.2012 and the present revision petition has been filed only on 27.09.2013,

thus there is long delay of 290 days in filing of the revision before this Commission.

16. Recently, Supreme Court in Anshul Aggarwal vs. New Okhla Industrial

Development Authority, IV (2011) CPJ 63 (SC) has laid down that;

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

17. Thus, no sufficient ground whatsoever seeking condonation of delay of 290 days,

has been shown by the petitioner at all.

18 In view of above decision of Apex Court in Anshul Aggarwal(Supra), we find no

ground to condone the long delay of 290 days. Hence, application for condonation of

delay being not maintainable is hereby dismissed. Consequently, the revision petition

is not maintainable, being barred by limitation and the same stand dismissed.


…………………………J

(V.B. GUPTA)

(PRESIDING MEMBER)

…………………………

(REKHA GUPTA)

MEMBER

SSB/



(From the order dated 08.03.2013 in Appeal No. 541/2012 of Kerala State Consumer Disputes Redressal Commission)

WITH INTERIM APPLICATION NO. 4543 OF 2013 (STAY)

Life Insurance Corporation of India C.O. (Legal) Cell Delhi, H-39, (1st Floor), New Asiatic Building Connaught Circus, New Delhi – 110001. Through Sh. Balihar Singh Assistant Secretary (Legal)

… Petitioner

versus

Smt. Sudhi P.P. D/o Shri Sankunni Kuttissery House, Veliyankode, Pazhanji P.O. Malappuram PIN – 100000 (KERALA)

… Respondent

AND REVISION PETITION NO. 2675 OF 2013

(From the order dated 08.03.2013 in Appeal No. 542/2012 of Kerala State Consumer Disputes Redressal Commission)

WITH INTERIM APPLICATION NO. 4544 OF 2013 (STAY)

Life Insurance Corporation of India C.O. (Legal) Cell Delhi, H-39, (1st Floor), New Asiatic Building Connaught Circus, New Delhi – 110001. Through Sh. Balihar Singh Assistant Secretary (Legal)

… Petitioner

versus

Shri Sankunni P.P Panthaparambil House, Sreenilayam, Kaliadathur, P.O. Palakkad – 679552 (KERALA)

… Respondent

BEFORE

HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner(s) Ms. Jaya Tomar, Advocate

For the Respondent Mr. Sankunni P.P.,

(in RP No. 2674/2013)

(In RP No. 2675/2013)

(father of respondent)

In person


O R D E R


Both these revision petitions are based on identical facts and involve similar question of law and hence are being disposed off by this common order. For the purpose of narration of facts, the lead case is Revision Petition No. 2674 of 2013.

2. Briefly stated, the respondent Smt. Sudhi P.P., who is the complainant in this case, deposited a sum of Rs.50,000/- in Growth Fund Market Plus Policy issued on 11.12.2007 by the petitioner Insurance Company/opposite party through their agent Vijaya Raghavan. As per the allegations, the agent had told the complainant / respondent that the amount could be withdrawn only after three years. On 29.11.2011, after three years, the respondent/complainant approached the opposite party/petitioner for withdrawing the amount but she was shocked to know that she would get only Rs.49,799/- . It was the grievance of the respondent that in spite of the amount remaining in deposit for four years, she did not get any increase in the deposited amount. Alleging this as deficiency in service, the complainant/respondent filed a consumer complaint with the District Consumer Disputes Redressal Forum, Palakkad praying for a compensation of Rs.2 lakh with interest @12% p.a. in addition to court expenses and compensation for mental agony.

3. The OP/petitioner filed its reply before the District Forum in which it was admitted that the complainant had availed Market Plus Policy for Rs.50,000/-. It was submitted that Market Plus Policy was subject to market risk and was issued subject to terms and conditions mentioned in the policy document itself. As per the policy document, the risk has to be borne by the life assured during the term of the policy and the value of the policy holders unit account shall be the number of units in the account multiplied by the NAV of the units of that date. In view of this, the NAV of units was likely to increase or decrease depending upon the investment performance of the fund. It was also submitted by the opposite party that it had advised the complainant not to surrender the policy when the market was low. It also pointed out that it never advertised or made any propaganda that the market value of the policy would get doubled after three years. Denying any deficiency in service on its part, the OP Insurance Company prayed for dismissal of the complaint.

4. Both the parties filed their affidavits of evidence along with other documents. After hearing the parties and appraising the evidence before it, the District Forum dismissed the complaint vide its order dated 15.05.2012. Aggrieved by this order of the District Forum, the complainant / respondent filed an appeal bearing No. 541/2012, before the Kerala State Consumer Disputes Redressal Commission (for short ‘the State Commission’) which vide its impugned order dated 08.03.2013 accepted the appeal and reversed the order of the District Forum in terms of the following directions:-

“The opposite party is directed to refund Rs.50,000/- with interest at the rate of 9 % per annum from the date of investment till date of refund. The amount if any already paid shall be deducted from the amount ordered to be paid. The parties are directed to bear their costs in the appeal.”

5. It is against the aforesaid order of the State Commission that the present revision petition has been filed. The other revision petition is also against a similar order passed on the same date by the State Commission in the other appeal bearing No. 542/2012.

6. We have heard Ms. Jaya Tomar, Advocate for the petitioner Insurance Company and Shri Sankunni P.P., who has filed authority letter issued in his favour, for the respondent and perused the record.

7. Learned counsel for the petitioner has submitted that the State Commission while reversing the well-reasoned order of the District Forum has failed to take into consideration clause 20 of the Policy in question, which clearly states that the risk under the Policy is borne by the life assured. It also failed to consider the fact that when there is no pleading by the respondent in her complaint that the petitioner Insurance Company has not invested the fund prudently then there was no need for the petitioner to prove the same. She further submitted that the District Forum had considered different terms and conditions subject to which the policy in question was issued and keeping them in view it rightly non-suited the claim of the complainant and held that there was no deficiency in service on the part of the petitioner insurance company. The State Commission while reversing this order of the District Forum not only failed to take into consideration these important terms and conditions of the policy but has also reversed the order on strange grounds and reasons, which cannot be sustained in the eyes of law. She submitted that it is well-settled by now that it is not permissible for the courts to substitute the terms of the contract itself under the garb of construing terms incorporated in the agreement of insurance. She finally submitted that the amount of refund calculated on the request of the respondent for pre-mature surrender of the Policy was strictly in accordance with the terms of the policy and based on NAV (Net Assets Value) of the fund prevailing on the date of the surrender. There was, thus, no deficiency in service on the part of the petitioner Insurance Company and hence the impugned order is liable to be set aside. On the other hand, the Authorised Representative of the respondent submitted that the State Commission has rightly accepted the appeal and reversed the order of the District Forum. He has also filed written arguments on behalf of the respondent in which it is stated that the petitioner Insurance Company had accepted the fund amount under the Policy from the respondent by undertaking to conduct share trading business on behalf of the respondent. According to the respondent, it has not been shown and proved by the Insurance Company as to whether it conducted this business honestly and fairly by taking due care and caution. She has alleged that the transactions done by the Insurance Company were unilateral without disclosing the details thereof to the respondent and hence loss sustained by the complainant/respondent was due to negligent conduct and deficiency in service on the part of the Insurance Company, for which they have been rightly held liable by the State Commission vide its impugned order which deserves to be confirmed.

8. Having considered the rival contentions, we find that the terms and conditions of the policy in question, a copy of which is placed on record, are quite elaborate and specific. While pre-mature surrender is permissible under the Policy after a minimum period of three years, the maturity date given in the Policy is 11.12.2018. These facts are not in dispute. This being the position, we find that the District Forum has returned its finding strictly in terms of the conditions subject to which the growth policy was issued. While dismissing the complaint of the respondent, it has observed thus:-

“It is an admitted fact that the complainant has taken a market plus policy in the year 2007 and premium of Rs.50,000/- was paid and surrendered an amount of Rs.49,799/- in the year 2011. Complainant himself has stated in the complaint that he has deposited the amount in growth fund, market plus plan. Complainant has no case that the agent has misrepresented him regarding the terms and conditions of the policy. Complainant has merely stated that the agent has told that

the amount cannot be withdrawn within 3 years of deposit. Ext.B1 proposal form is signed by the complainant. As per Ext.B2 the maturity date of the policy is 11/12/2018. Complainant has surrendered the amount in the year 2011 much prior to the maturity date. Complainant himself has stated that opposite party adviced not to withdraw at that time as the market was low. As per clause 10 of Ext.B2 policy, the surrender value payable will be fixed value of units held in the policy holders account at the date of surrender. As per Ext.B4 the number of units held by the complainant is 33674.61 units. The said units multiplied by the NAV as on the date of surrender cuts to Rs.49,499/-. Said amount was paid to the complainant as evident from Ext.B4. We understand that the complainant has deposited the amount under high expectation and the complaint in the result of loss of that expectation. Market plus plan being an unit linked policy in subject to market variation. Insurance being a contract between the parties, they are bound by the terms and conditions of the policy. It is settled position that forum cannot go beyond the terms and conditions of the policy. We find that opposite party has paid whatever amount complainant is entitled to. Hence we are not in a position to attribute any deficiency in service on the part of opposite party”

9. We may note that even though the State Commission has not pointed out violation of any of the conditions of the Policy on the part of the Insurance Company which could constitute deficiency in service, it has yet reversed the finding returned by the District Forum on some reasoning which, in our view, is strange and unjustified. It has given the following reasons in support of the impugned order which may be reproduced thus:-

“In market plus plan policies especially in growth fund plans there is a striking difference with the other simpler life insurance policies. Here nearly 80% of the amount is invested in the share market and that amount is liable to the vagaries of the share market. Once amount is invested with the opposite party the complainant has no say as to the nature of the shares in which or in the shares of which company the amount is to be invested. Here involves a risk factor and therefore a duty is cast on the part of the officers of the opposite party to invest in only those shares the value of which are likely to increase, that is, a question of prudent investment of the amount in the share market is involved. It is the duty of the opposite party to convince the insured that her money was invested and prudently managed by the opposite party in the share market. No such plea is taken by the opposite party. They simply say that the complainant is bound to accept the money which they offer. There is an element of deficiency in service involved in this aspect. In the absence of specific contention and proof that the money invested by the appellant/complainant was prudently invested in share market by the opposite parties, they are bound to reasonably compensate the complainant especially as expectation of reasonable increase in her investment was natural. Hence I am inclined to hold that the respondent is bound to refund the invested amount with reasonable interest of 9% per annum. In the circumstances, separate compensation for deficiency in service need not be allowed. ”

10. We do not agree with the view taken by the State Commission. It is not understood as to how and on what basis, the State Commission could assume that “It was the duty of the OP to convince the insured that her money was invested and prudently managed by the opposite party in the share market” and that the Opposite party failed to do so. Learned counsel for the petitioner has rightly pointed out that there was no such plea by the complainant / respondent in

her complaint. In such a situation, the question of any plea being taken by the petitioner Insurance Company did not arise. In any case, it has to be appreciated that Life Insurance Corporation of India which is the petitioner herein is the largest company in the field which is required to manage billions of rupees deposited by the policy-holders and a large number of professionals constantly oversee and advise the investments of the Company in different products in the market. Had this ground been taken by the petitioner/complainant, it could have been easily dealt with and suitably answered by the Insurance Company. The finding of the State Commission, therefore, is not only perverse but is based on lack of information on the subject. In the circumstances, the impugned order is liable to be set aside. We, therefore, allow the two revision petitions, set aside the impugned orders and restore the orders passed by the District Forum and dismiss the complaints with the direction that parties shall their own costs.

..……………Sd/-………………..

(AJIT BHARIHOKE J.)

PRESIDING MEMBER

....…………Sd/-…………………

(SURESH CHANDRA)

MEMBER

RS/



(Against the order dated 24.04.2012 in First Appeal No. 891/2011 of the M.P. State Commission, Bhopal)

M/s Mahindra & Mahindra Financial Services Ltd. 2nd Floor, Sadhna House 507, P.B. Marg, Worli Mumai – 400018 Through its Authorised signatory Samarjeet Khokhar Legal Executive Branch Office 226-228, Second Floor, Ansal Chamber -2 Plot No.6, Bhikaji Cama Place, New Delhi – 110066

........ Petitioner

Vs.

1. Chetram Prajapati s/o Late Shri Panchamal Prajapati r/o Gandhi ward, Panagar District & Tehsil Jabalpur Madhya Pradesh

2. National Insurance Company Ltd. Through the Divisional Manager Divisional Office 495, Karamchand Chowk, Madatlal Jabalpur, Madhya Pradesh

......... Respondents

BEFORE:


For the Petitioner : Mr. Amit Singh, Advocate

Mr. Rajan Singh, Advocate

For the Respondent No.1 : Nemo

For the Respondent No.2 : Mr. K.K.Bhat, Advocate


ORDER



whereby the State Commission accepted the appeal preferred by respondent no.1 complainant

and set aside the order of the District Forum dated 02.05.2011.

2. Briefly stated the facts relevant for the disposal of this revision petition are that

complainant respondent no.1 purchased a tractor after obtaining finance from the petitioner (OP

no.2) in the consumer complaint. The tractor was insured with respondent no.2 insurance

company. During the validity of the insurance policy, the tractor was stolen. The theft was

reported to the police and the information was also given to the police as also respondent no.2

insurance company. The insurance claim filed by the complainant respondent no.1 was not

settled. Therefore, respondent no.1 complainant was compelled to file consumer complaint

impleading respondent no.1 insurer as the appellant (financer) as OPs.

3. Respondent no.1 insurer contested the consumer complaint by filing a written statement.

There is no need to detail the pleas taken by respondent no.1 insurer in the written statement.

The appellant opposite party no.2 also filed written statement in response to the complaint filed

by respondent no.1 wherein the appellant no.2 prayed for rejection of consumer complaint with

heavy costs.

4. Learned District Forum on consideration of the pleadings of the parties as also the

evidence produced allowed the complaint vide order dated 28.02.2011 with following directions:

“1. The Opposite Party No.1 may settle the claim of the complainant within one

month as per the terms and conditions of the policy.

2. The opposite party no.1 may pay a sum of Rs.5000/- (Rupees Five Thousand only)

to the complainant on account of mental annoyance and also pay a sum of Rs.1000/-

(Rupees one thousand) towards cost of the litigation within one month.

3. The opposite party no.1 shall also be liable to pay interest @ 8% per annum on

the compensation amount, whichever is payable to the complainant from the date of

filing of the complaint dated 02.07.2009 till its realization.

4. Complaint filed against the non-applicant no.2 has been rejected”.

5. The aforesaid order of the District Forum has become final.

6. Pursuant to the above said order, respondent no.2 insurance company settled the claim of

respondent Chetram and submitted a cheque of Rs.3,58,731/- alongwith an application claiming

that the order of the District Forum has been complied.

7. As the matter rested thus, the petitioner claiming to have lien over the insurance claim for

the reason that he is a financer filed an application with following prayer:

“In view of the above facts it is, therefore, prayed that this Hon’ble Court be pleased to

order National Insurance Company to release the claim amount in favour of Mahindra

and Mahindra Financial Services Ltd. and if they deposit in the office this Hon’ble

Court then same may kindly be released in favour of the Mahindra and Mahindra

Financial Services Ltd. and further be pleased to hold claim amount till the outcome of

arbitration award and also hold the claim amount because the complainant is only

entitled for the money after furnishing no dues certificate from the Mahindra and

Mahindra Financial Services Ltd. in the interest of justice”.

8. The District Forum Jabalpur (M.P.) after serving notice on the complainant opposite

party no.1 allowed the application with following observations:

“In the aforesaid letter also, there is mentioning of payment of the compensation

amount by the Insurance Company to Mahindra & Mahindra and in regards to the said

letter, the Applicant has not contended before this Forum that he has not written to the

Insurance Company. Similarly, the objection taken by the applicant that M/s Mahindra

& Mahindra initiate the recovery proceedings as per rules and in the present case, the

cheque of the deposited amount towards stolen of tractor trolley was deposited by the

insurance company and on this tractor trolley, M/s Mahindra & Mahindra had financed

to the applicant and hence, looking to this circumstances, if M/s Mahindra & Mahindra

is demanding from this Forum to reimburse the amount so deposited, then we can say

that the said proceedings is as per rules. In these circumstances, looking to the

contentions made in the present case, we find appropriate to give the said amount to

Mahindra & Mahindra to adjust in the loan obtained by the applicant from them to

purchase the said tractor trolley.

Looking to the objection made by the applicant, we also find appropriate and in

the safety of the order that the aforesaid order may be complied with after one month.

If the applicant wants to initiate any proceedings in this regard, then he can do the

same, otherwise, after one month, the said amount may be given to the non applicant

M/s Mahindra & Mahindra”.

9. Being aggrieved by the aforesaid order dated 02.05.2011 of the District Forum, the

complainant Chetram Prajapati preferred an appeal before the State Commission. The State

Commission on consideration of the facts of the case took the view that order of the District

Forum amounted to review of its earlier order dated 28.02.2011 which was not permissible in

view of the judgment of the Supreme Court in the matter of Rajeev Hitendra Pathak Vs. Achyut

Kashinath Karekar 2011 (8) SCJ 308. Accordingly, the State Commission accepted the appeal

preferred by the respondent no.1 and set aside the order of the District Forum dated 02.05.2011.

10. Learned Shri Amit Singh, Advocate, for the petitioner has taken me through the judgment

of the Supreme Court in the matter of Krishna Food and Baking Industry Private Limited vs

New India Assurance Company Limited & Anr. 2008) 15 SCC 631 and contended that the

impugned order of the State Commission is not sustainable as it is contrary to the law laid down

by the Supreme Court in the above noted case. Learned counsel has contended that the State

Commission has failed to appreciate that the said tractor was financed by the petitioner and that

the amount of loan is still outstanding against respondent no.1 complainant. As such, the

petitioner has lien over the amount of insurance claim and the amount was rightly directed by the

District Forum to be paid to him. Thus he has urged me to set aside the impugned order and

restore the order of the District Forum.

11. Respondent no.1 complainant is ex parte in the matter. Mr. K.K.Bhat, Advocate, learned

counsel for respondent no.2 insurance company states that he has nothing to add or subtract of

the submissions made on behalf of the petitioner and the respondent no.2 shall obey the orders of

the National Commission.

12. I do not find any merit in the contentions of the learned counsel for the petitioner. In

order to avail benefit of the judgment in the matter of Krishna Food and Baking Industry Private

Limited ( supra), the petitioner is firstly required to show that some amount is due in his favour

and he is also required to quantify that amount. On perusal of record, I find that in the written

statement filed before the consumer fora, the petitioner did not set up the plea of having any lien

over the insurance claim and instead he prayed for dismissal of the complaint preferred by

respondent no.1. Admittedly the petitioner was party to the complaint before the District Forum.

If the petitioner was aggrieved of the aforesaid order of the District Forum, he should have filed

appeal against the said order. The petitioner, however, has not filed appeal and allowed the

order of District Forum to become final. Therefore, in my considered view, the State

Commission was right in concluding that the subsequent application moved by the petitioner

seeking to exercise the right of lien over the amount deposited by the insurance company was in

the nature of review of the order dated 28.02.2011 which was not appealed against and

dismissing the application in view of law laid down by the Supreme Court in the matter of

Rajeev Hitendra Pathak Vs. Achyut Kashinath Karekar (supra).

13. However, respondent no.1 in his written submission has contended that in respect of the

subject loan transaction, arbitration proceedings were initiated wherein an award has been passed

in favour of the petitioner. The petitioner has even filed execution proceedings in respect of the

said award which is pending in the Court of District Judge concerned. The petitioner has not

even disclosed the details of the award passed in his favour. Since the award in favour of the

petitioner is under execution, the right course for the petitioner was to apply for the attachment

of the amount deposited by respondent no.2 pursuant to the insurance claim. The petitioner,

however, instead of adopting the right course has moved this application which is in the nature of

the review of the order dated 28.02.2011 passed by the District Forum in the proceedings in

which the petitioner was also a party. The application, therefore, is not maintainable in view of

the judgment of the Supreme Court in the matter of Rajeev Hitendra Pathak Vs. Achyut

Kashinath Karekar (supra).

14. In view of the discussion above, I conclude that the State Commission has rightly

allowed the appeal preferred by respondent no.1 complainant and dismissed the application.

There is no infirmity in the impugned order which may call for interference by this Commission

in revisional jurisdiction. Revision petition is, therefore, dismissed with no order as to costs.

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

Am/


FIRST APPEAL NO. 307 to 309 of 2012

(From the order dated 03.05.2012 in Complaint No. 27 of 2010 of the State Consumer Disputes Redressal Commission, Rajasthan)

M/s. Sunita Jain W/o Mr. Uttam Chand Jain R/o Village Chhan, District Tonk, Rajasthan

…Appellant/Complainant

Versus

Modern Threads (India) Ltd. A-4, Vijay Path, Tilak Nagar, Jaipur – 302004 … Respondent/Opp. Party (OP)

BEFORE



For the Appellants : Mr. S.K. P:attjoshi, Sr. Advocate with

Mr. Ehraz Zafar & Mr. Sumeer Sodhi,

Advocates

For the Respondent : Mr. Biju Mattam, Advocate


O R D E R


These appeals arise out of common order of learned State Commission; hence, decided

by common order. These appeals have been filed by the appellant against the order dated

3.5.2012 passed by learned State Commission in C.C. No. 27/2010 – Sunita Jain Vs. Modern

Threads (India) Ltd., C.C. No. 26/2010 – Sunita Jain Vs. Modern Terry Towels Ltd., C.C. No.

25/2010 – Sunita Jain Vs. Modern Denim Ltd. by which, complaints were disposed with the

direction to take action before the operating agency.

2. Brief facts of the cases are that in pursuance of employees of OP-Respondent, Complainant-Appellant and their relatives made deposits with OP. OP assured the depositors that

they would be provided interest on principal and interest but they did not issue cheques. Alleging deficiency on the part of OPs, complainants filed complaints before State Commission. OPs contested the complaint and submitted that no action can be taken against the OP as operating agency has been appointed by BIFR. It was further submitted that complaints were time barred which may be dismissed. Lastly, it was submitted that some payments have been made to the depositors and OPs are prepared to comply with the directions of National Commission and complainants may submit their claims before the operating agency. Learned State Commission after hearing both the parties disposed of the complaint with the direction that complainants are free to take action before operating agency against which, these appeals have been filed.


4. Learned Counsel for the appellant submitted that order passed by learned State Commission is contrary to law; hence, appeals be allowed and matter may be remanded back to learned State Commission to decide the complaints on merits. 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. It is not disputed that respondents have been declared sick under BIFR and operating agency has been appointed.

6. Learned Counsel for the appellant submitted that inspite of appointment of operating agency, learned State Commission had jurisdiction to deal with the complaints. In support of his contention, he has placed reliance on judgment of this Commission in R.P. No. 2355/2006 – Mahesh Chandra Sharma Vs. M/s. Modern Threads (India) Ltd. decided on 10.10.2007 in which it was held that deposits made with the Company cannot be termed as loan and complaints are maintainable before the Consumer Fora. In R.P. 310 of 2007 – Abhishek Bhansali Vs. The Chairman, M/s. Modern Denim Ltd. decided on 25.9.2012 by this Commission, order of District Forum allowing interest @ 15% p.a. was upheld meaning thereby complaints were held maintainable. Same principle was upheld in II (2006) CPJ 195 (NC) – Sneha Dyechem Ltd. Vs. Jyoti Rathore. Hon’ble Apex Court in Civil Appeal No. 11029/2013 @ (SLP (C) No. 35942/2012 – Inderjeet Arya and Anr. Vs. ICICI Bank Ltd. decided on 13.12.2013 held that the term ‘suit’ have to be confined in the context of sub-section (1) of Section 22 of SICA of those actions which are dealt with under the Code and not in the comprehensive overarching proceedings so as to apply to any original proceedings before any legal forum. Thus, it becomes clear that complaints are maintainable before Consumer Forum and learned State Commission has committed error in disposing complaints on the basis of judgments of this Commission. in R.P. No. 417 to 431 of 2000 – Modern Thread (India) Ltd. Vs. Lt. Col. B.K. Sharma (Retd.), as Hon’ble Apex Court held that original proceedings before any other legal forum are maintainable.

7. In the light of aforesaid discussion, impugned order is liable to be set aside and matters are to be remanded back to learned State Commission to decide in accordance with law.

8. Consequently, F.A. No. 307/2012 – Sunita Jain Vs. Modern Threads (India) Ltd., F.A. No. 308/2012 – Sunita Jain Vs. Modern Terry Towels Ltd., F.A. No. 309/2012 – Sunita Jain Vs. Modern Denim Ltd. are allowed and impugned order dated 3.5.2012 passed by learned State Commission in Complaint NO. 25/2010, 26/2010 & 27/2010 are set aside and complaints are

remanded back to the learned State Commission for deciding the matters on merits after giving an opportunity of being heard to the parties.

9. Parties are directed to appear before the State Commission, Rajasthan on 27.2.2014.

………………Sd/-……………

( K.S. CHAUDHARI, J) PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA ) MEMBER

k



(From the order dated 30.05.2008 in First Appeal No. 35/2008 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

1. The New India Assurance Co. Ltd. Nehru Memorial Hall Dr. Ambedkar Road, Pune 2. The New India Assurance Co. Ltd. Branch Office, M.G. Road, Kochi -11

. …Petitioners/Opp. Parties (OP)

Versus

Akbar S/o Nabeesa Kolayil House, Mundoor P.O. Palakkad, Kerala


BEFORE



For the Petitioners : Mr. Mohan Babu Aggarwal, Advocate

For the Respondent : NEMO


O R D E R


This revision petition has been filed by the petitioner against the order dated 30.05.2008 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, ‘the State Commission’) in Appeal No. 35 of 2008 – The New India Assurance Co. Ltd. Vs. Akbar by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that Complainant/respondent purchased Motorcycle KL9 P2518 from M. Ali on 16.1.2006 and got registration certificate transferred in his name. He intimated to OP/petitioner with a request to change name in the insurance policy issued by OP for a period of one year from 18.6.2005 to 17.6.2006. Motor Cycle was stolen during the intervening night of 5-6/2/2006. FIR was lodged and claim was also lodged with the OP. As claim was not settled, alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP contested and submitted that there was no privity of contact between the complainant and OP, as complainant was not insured and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to make payment for loss of the vehicle along with Rs.500/- as cost of the proceedings. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

3. None appeared for the respondent even after service.

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

5. Learned Counsel for the petitioner submitted that as there was no privity of contact between the parties and insurance policy was not transferred in the name of the complainant, petitioner was not liable; even then, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside.

6. Perusal of record clearly reveals that complainant purchased vehicle on 16.1.2006, which was insured by OP. During currency of insurance policy, vehicle was stolen on 5-6/2/2006. Admittedly, insurance policy was not transferred in the name of complainant, learned District Forum, though, mentioned judgment of Apex Court reported in 1996 ACJ 65 – Complete Insulation (P) Ltd. Vs. New India Assurance Co. Ltd., but ignored that judgment on the basis of judgment of the National Commission as well as High Court of Kerala and allowed complaint on the assumption that benefits of policy automatically accrues to new owners on transfer of vehicle. Learned State Commission also upheld the order of District Forum on the basis of circular issued by Traffic Advisory Committee.

7. Hon’ble Apex Court in Complete Insulation (P) Ltd. (supra) has held that inspite of intimation of transfer of vehicle by the complainant to the insurance company; complainant is not entitled for indemnification of damages to the vehicle till policy is transferred in complainant’s name. No doubt, this Commission has held in Narain Singh’s case reported in 2008 (1) CLT 46 (NC) that benefits under Policy automatically accrues to the new owner on transfer of vehicle, but it was based on the basis of India Motor Tariff Regulations applicable upto 30.6.2002. Now, new regulations have come in force from 1.7.2002 and in the light of new regulations complainant was not entitled to indemnification as held by this Commission in (2009) CPJ 158 (NC) – Madan Singh Vs. United India Ins. Co. Ltd. Complainant was entitled for reimbursement of damages only if the policy had already transferred in his name before theft took place. 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.

8. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 30.5.2008 passed by Learned State Commission in in Appeal No. 35 of 2008 – The New India Assurance Co. Ltd. Vs. Akbar and order dated 23.1.2008 passed by Learned District Forum in CC No. 109/2006 is set aside and complaint stands dismissed with no order as to costs.

………………Sd/-……………


..……………Sd/-………………

(DR. B.C. GUPTA ) MEMBER

k



(From the order dated 29.11.2011 in First Appeal No. 1268/2011 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

Ashok Kumar Sharma S/o Sh. Jagdish Prasad Sharma R/o Chetan Nagar, Dholpur Road, Bari, District Dholpur, Rajasthan


Versus

1. Reliance General Insurance Co. Ltd. Reliance Center 19, Balchand Heerachand Marg, Ballard Estate, Mumbai

2. General Manager, Reliance General Insurance Co. Ltd. Plot No. 60 Okhla Indl. Area Phase No. 3, New Delhi

3. General Manager (Claim Theft) Maker Towers, Second Floor, Nityanand Nagar,Queens Road, Vaishali Nagar, Jaipur.

4. Branch Manager, Reliance General Ins. Co. Ltd. Data Arcade, First Floor, Station Road, Alwar.

…Respondents/Opp. Parties (OP)

BEFORE



For the Petitioner : Mr. Sabyasachi Mishra, Advocate

For the Respondents : Mr. Navneet Kumar, Advocate

PRONOUNCED ON 20 th January , 2014

O R D E R



passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, ‘the

State Commission’) in Appeal No. 1268 of 2011 – Ashok Kumar Sharma Vs. Reliance General

Ins. Co. Ltd. by which, appeal filed by the complainant for enhancement of compensation was

dismissed.

2. Brief facts of the case are that Complainant/Petitioner’s Jeep No. RJ 11 4A 0483 was insured by OP/respondent for a period of one year from 21.1.2009 to 22.10.2010. Jeep was stolen. FIR was lodged on the same day and immediately informed to the OP/respondent. OP repudiated claim on the ground of delay of 83 days in intimation to Insurance Company. Complainant alleging deficiency on the part of OP, filed complaint before District Forum. OP resisted complaint. Learned District Forum after hearing both the parties partly allowed claim and directed OP to pay 60% of the claim amount i.e. Rs.2,83,695/- on non-standard basis and further allowed Rs.3,000/- as compensation. Appeal filed by the complainant was dismissed by leaned State Commission vide impugned order against which, this revision petition has been filed.

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

4. Learned Counsel for the petitioner submitted that impugned order is not a speaking order; hence, the revision petition be allowed and impugned order be set aside and matter may be remanded back to the learned State Commission. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. Perusal of impugned order clearly reveals that this order neither contains any fact, nor any ground of appeal or decision on the points raised in the memo of appeal. As the order of learned State Commission is not a speaking order and we do not find apparently any cogent reason for allowing claim on sub-standard basis, the impugned order is liable to be set aside in the light of the following judgment.

6. Hon’ble Apex Court in (2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as under:

“1.In a number of cases coming up in appeal in this Court, we find that the State Consumer Disputes Redressal Commission, Haryana at Chandigarh is passing a standard order in the following terms:

‘We have heard the Law Officer of HVPN – appellant and have also perused the impugned order. We do not find any legal infirmity in the detailed and well-reasoned order passed by District Forum, Kaithal. Accordingly, we uphold the impugned order and dismiss the appeal’.

2. We may point out that while dealing with a first appeal, this is not the way to dispose of the matter. The appellate forum is bound to refer to the pleadings of the case, the submissions of the counsel, necessary points for consideration, discuss the evidence and dispose of the matter by giving valid reasons. It is very easy to dispose of any appeal in this fashion and the higher courts would not know whether learned State Commission had applied its mind to the case. We hope that such orders will not be passed by the State Consumer Disputes Redressal Commission, Haryana at Chandigarh in future. A copy of this order may be communicated to the Commission”.

7. In the light of aforesaid judgement, impugned order dated 29.11.2011 passed by learned State Commission in Appeal No. 1268 of 2011 – Ashok Kumar Sharma Vs. Reliance General Insurance Co. Ltd. & Ors. is set aside and matter is remanded back to the learned State Commission to decide the appeal afresh on merits by a speaking order after giving an opportunity of being heard to the parties.

8. Parties are directed to appear before the learned State Commission on 25.2.2014. A copy of this order be sent to the Rajasthan State Commission, Jaipur.

Sd/-………………


Sd/-…………………


k


REVISION PETITION NO.1641 OF 2012 (From the order dated 16.01.2012 in F.A. No.180/2011 of the State Consumer Disputes Redressal Commission, U.T. Chandigarh)

1. ICICI LOMBARD MOTOR INSURANCE, THROUGH ITS MANAGER, QUITE OFFICE NO.10, SECTOR-41, CHANDIGARH

2. ICICI LOMBARD MOTOR INSURANCE THROUGH ITS MANAGER, ZENITH HOUSE, KESHAV RAO KHARE MARG, MATA LAXMI, MUMBAI-400004 THROUGH ITS MANAGER (LEGAL) ICICI LOMBARD GENERAL INSURANCE CO. LIMITED 315-THIRD FLOOR AGGARWAL CITY MALL PITAMPURA NEW DELHI-110034.

.….. PETITIONERS

Versus

NIKHIL SYAL S/O SH. PARMOD SYAL RESIDENT OF H. NO.1187, SECTOR 44-B, CHANDIGARH

....... RESPONDENT

BEFORE:



For the Petitioner : Mr.Yogesh Malhotra, Advocate

For the Respondent : Mr.Jagvir Sharma, Advocate

PRONOUNCED ON: 17 th January, 2014

ORDER


Challenge in this revision petition is to the impugned order dated 16.01.2012 passed

by the State Consumer Disputes Redressal Commission, Union Territory Chandigarh (‘the

State Commission’, for short) in First Appeal No.180 of 2011 whereby the State Commission

has upset the finding returned by the District Forum vide its order dated 16.06.2011 in

Consumer Complaint No.345/2010 by which the District Forum had non suited the claim of

the complainant/respondent herein and dismissed his complaint filed against the OPs, who

are the petitioners. Vide its impugned order, the State Commission has granted the following

relief to the respondent/complainant:-

i ) T h e r e s p o n d e n t s / O p p o s i t e P a r t i e s a r e d i r e c t e d t o p a y R s . 7 , 1 8 , 4 1 1 / - t o t h e

a p p e l l a n t , b e i n g t h e i n s u r e d v a l u e o f t h e v e h i c l e , a f t e r d e d u c t i n g t h e

d e p r e c i a t i o n v a l u e , a s p e r t h e t e r m s a n d c o n d i t i o n s o f t h e I n s u r a n c e P o l i c y .

i i ) T h e r e s p o n d e n t s / O p p o s i t e P a r t i e s a r e a l s o d i r e c t e d t o p a y R s . 2 0 , 0 0 0 / - t o

t h e a p p e l l a n t / c o m p l a i n a n t a s c o m p e n s a t i o n o n a c c o u n t o f m e n t a l a g o n y a n d

p h y s i c a l h a r a s s m e n t .

i i i ) T h e r e s p o n d e n t s / O p p o s i t e P a r t i e s a r e a l s o d i r e c t e d t o p a y R s . 1 0 , 0 0 0 / - t o

t h e a p p e l l a n t / c o m p l a i n a n t a s c o s t s o f l i t i g a t i o n .

2. The factual matrix relevant for the disposal of this revision petition may be stated thus.

The respondent/complainant got his Honda Civic Car bearing registration No.HR-68-B(T)

0003 insured with the petitioners/OPs for the period from 22.08.2008 to 21.08.2009. As per

the allegation, the said vehicle caught fire during the early hours of 19.02.2009 when the

vehicle was parked outside the residence of the complainant. The vehicle got damaged

because of the fire. A DDR bearing No.14 dated 19.02.2009 was lodged with the local police

station and an insurance claim for reimbursement was filed with the petitioner insurance

company. The insurance company failed to decide the claim in six months which led the

complainant/respondent serve a legal notice upon it but without any avail. Consequently,

alleging deficiency in service and unfair trade practice on the part of the insurance company,

the respondent/complainant knocked the door of the District Forum by filing a complaint U/s

12 of the Consumer Protection Act, 1986.

3. On notice, the insurance company resisted the complaint by filing a written statement. It

was stated by the insurance company that it had insured vehicle with registration no.HR-68-

B-0003 and not the car bearing registration no.HR-68-B(T) 0003. Besides this, it was stated

that the claim of the respondent had been rightly repudiated on the ground that the car was

burnt purposely which according to the insurance company was evident from the Forensic

Report dated 14.07.2009 of the Directorate of Forensic Science, Govt. of Gujarat to whom

the sealed sample of the burnt material from the car in question had been sent for analysis

and report. It was the contention of the insurance company that the loss caused was

attributable to burning of the car by sprinkling of petroleum product and that there was no

accidental fire. Thus, it was pointed out that it was a case of arson which was not covered

under the terms and conditions of the insurance policy. Denying any deficiency in service or

unfair trade practice on its part, the OP insurance company prayed for dismissal of the

complaint. The parties led the evidence in support of their respective claims. After hearing

the parties and going through the evidence and record of the case, the District Forum held

that the car burnt was not insured with the OP insurance company vide the policy in question

and it was further held that the loss was not covered under the terms of the policy.

Aggrieved of the order of the District Forum, the respondent carried the matter before the

State Commission by filing an appeal against this order. As stated above, the State

Commission accepted the appeal and reversed the order of the District Forum and granted

relief in terms of the impugned order reproduced above.

4. We have heard learned Shri Yogesh Malhotra, Advocate for the petitioners and Shri

Jagvir Sharma, Advocate for the respondent.

5. Learned counsel for the petitioners has submitted that the State Commission has

erroneously disturbed the finding of the District Forum and awarded the IDV of the vehicle

by way of compensation to the respondent. Learned counsel further submitted that even

though the claim came to be repudiated by the petitioner insurance company in the light of

the report of the forensic sciences laboratory, which indicated presence of residues of

hydrocarbons on the basis of which they confirmed “petroleum hydrocarbon” in the sample

sent to it which led the insurance company to hold that the fire was caused by sprinkling of

petroleum product over the body of the vehicle. Learned counsel clarified that right now

the petitioners are pressing about the quantum of compensation, which should rightly be

passed on the assessment contained in the surveyor’s report and not the IDV of the vehicle.

He, therefore, pleaded that the impugned order be set aside and compensation, if at all, to be

awarded should be passed on the surveyor’s report which has assessed the value of the loss

and damage to Rs.3,70,446/-. Learned counsel also did not press the issue raised earlier by

the petitioner insurance company regarding coverage of the incident in question under the

terms and conditions of the policy.

6. Per contra, learned counsel for the respondent has supported the impugned order and has

submitted that it is passed on careful consideration of the related aspects of this case by the

State Commission and hence deserves to be confirmed.

7. Having considered the rival contentions carefully and after perusing the record, we find

that the State Commission has considered various issues raised by the OP insurance company

in its impugned order and has rightly set aside the order of the District Forum which had

gravely erred in concluding that the claim of the complainant was not payable as per the

terms and conditions of the insurance policy. So far as the quantum of compensation is

concerned, the State Commission while accepting the appeal and setting aside the order of

the District Forum has recorded the following reasons which made it to grant relief to the

complainant on total loss basis:-

“..... A l t h o u g h i n t h e f o r e n s i c r e p o r t , i t w a s m e n t i o n e d t h a t t h e r e s i d u e s o f

p e t r o l e u m h y d r o c a r b o n s w e r e d e t e c t e d i n t h e c o n t e n t s o f t h e e x h i b i t , b u t t h a t d i d

n o t p r o v e t h a t t h e c a r w a s b u r n t d e l i b e r a t e l y , b y t h e c o m p l a i n a n t , b y s p r i n k l i n g

p e t r o l e u m p r o d u c t s , o n t h e s a m e . T h e s a m p l e w h i c h w a s s e n t t o t h e f o r e n s i c

s c i e n c e l a b o r a t o r y f o r a n a l y s i s , w a s t a k e n f r o m t h e p e t r o l e u m v e h i c l e , a n d t h e

d e t e c t i o n o f t h e e x i s t e n c e o f r e s i d u e s o f p e t r o l e u m h y d r o c a r b o n s , t h e r e f o r e , c o u l d

n o t b e r u l e d o u t . A c c o r d i n g t o t h e c o m p l a i n a n t , h e h a d p a r k e d h i s v e h i c l e , o u t s i d e

h i s h o u s e , a n d w h e n a t a b o u t 5 . 3 0 a . m . , h e c a m e o u t s i d e h i s h o u s e , h e f o u n d t h e

v e h i c l e b u r n i n g f r o m f r o n t a n d b a c k s i d e . M r . S a c h i n G u l a t i , I n v e s t i g a t o r a p p o i n t e d

b y t h e O p p o s i t e P a r t i e s , i n h i s r e p o r t , a t p a g e s 3 8 a n d 3 9 o f t h e D i s t r i c t F o r u m

r e c o r d , h e l d t h a t t h e D D R l o d g e d b y t h e c o m p l a i n a n t w a s f o u n d t o b e g e n u i n e . H e

f u r t h e r c o n f i r m e d t h a t t h e i n c i d e n t w a s f o u n d t o b e g e n u i n e . N o t a n g i b l e e v i d e n c e

w a s l e d b y t h e O p p o s i t e P a r t i e s , t o r e b u t t h e f i n d i n g s o f M r . S a c h i n G u l a t i ,

I n v e s t i g a t o r . N o e v i d e n c e w a s a l s o l e d b y t h e O p p o s i t e P a r t i e s t h a t t h e v e h i c l e w a s

b u r n t b y t h e c o m p l a i n a n t b u t , a t t h e s a m e t i m e , i t c a n n o t b e r u l e d o u t t h a t s o m e b o d y

o t h e r t h a n t h e c o m p l a i n a n t , o u t o f m a l i c e , b u r n t t h e v e h i c l e . I t i s e v i d e n t f r o m t h e

t e r m s a n d c o n d i t i o n s o f t h e I n s u r a n c e P o l i c y a t p a g e 7 2 o f t h e D i s t r i c t F o r u m f i l e ,

t h a t d a m a g e t o t h e v e h i c l e , c a u s e d b y t e r r o r i s m , r i o t s , s t r i k e o r m a l i c i o u s a c t w a s

c o v e r e d t h e r e u n d e r . S i n c e s o m e b o d y o t h e r t h a n t h e c o m p l a i n a n t , b y m a l i c i o u s a c t ,

b u r n t t h e v e h i c l e , b y s p r i n k l i n g t h e p e t r o l e u m p r o d u c t o n t h e s a m e a n d c o m p l e t e l y

d a m a g e d / d e s t r o y e d t h e s a m e , s u c h a c t f e l l w i t h i n t h e p u r v i e w o f t h e t e r m s a n d

c o n d i t i o n s o f t h e I n s u r a n c e P o l i c y . T h e c o m p l a i n a n t , w a s t h u s , e n t i t l e d t o

i n d e m n i f i c a t i o n o n t o t a l l o s s b a s i s . T h e D i s t r i c t F o r u m w a s w r o n g i n h o l d i n g t h a t

t h e l o s s w a s n o t c o v e r e d u n d e r t h e t e r m s o f t h e P o l i c y . T h e f i n d i n g s o f t h e D i s t r i c t

F o r u m , i n t h i s r e g a r d , b e i n g i n c o r r e c t a r e r e v e r s e d . ”

8. We agree with the view taken by the State Commission. It has to be appreciated that the

car in question was 2006 Model and the incident in question was on 19.02.2009. The

surveyor’s report undoubtedly demonstrates that the vehicle got extensively damaged in the

incident of fire but for this, the loss/damage would not have come to Rs.3,70,446/- after

making necessary adjustment done by the surveyor. Keeping in view the assessment done by

the surveyor in monetary terms and also the fact that the damage to the vehicle was on

account of fire, we are of the considered view that the State Commission was right in

granting indemnification to the complainant on total loss basis. The State Commission has

already directed that the compensation will be paid “after deducting the depreciation value,

as per the terms and conditions of the Insurance Policy”. Thus, on the whole, we find that

the order of the State Commission is fair and just in the given facts and circumstances and we

do not find any reason to differ with the same. In the circumstances, the revision petition is

liable to be dismissed and it is dismissed accordingly with the parties to bear their own costs.

…….…Sd/-………………..…


PRESIDING MEMBER

….……sd/-………….………

SURESH CHANDRA)

MEMBER

bs



(From order dated 10.06.2013 in First Appeal No. 173/2010 of the Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench No. 2, Jaipur)

WITH IA/6774/2013 & I A/6775/2013 (FOR STAY & CONDONATION OF DELAY)

Rajasthan Housing Board Through its President Jyoti Nagar Jaipur, Rajasthan

… Petitioner

Versus

Vimal Chand Jain S/o Sh. Pooranmal Jain R/o 38-286, Rajat Path Mansarovar, Jaipur Rajasthan … Respondent

BEFORE:

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

HON’BLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner : Mr. K. L. Janjani & Mr. Pankaj Kumar Singh, Advocates

PRONOUNCED ON_20.01.2014

O R D E R

JUSTICE J.M.MALIK

1. There is delay of 12 days in filing this revision petition. For the reasons detailed in the

application for condonation of delay, the said delay is hereby condoned.

2. Sh. Vimal Chand Jain, the complainant got registration of the house in the year 1989 in

the ‘disabled’ category, with the petitioner/opposite party. He paid Rs.2,000/- + Rs.3,500/- on

21.08.1989 and 03.03.1993, respectively. The complainant was informed vide letter dated

24.08.1998 that the allotment of the house would be made in Sanganer Scheme in place of

Mansarovar Scheme and he was asked to give his option for Hire Purchase System or Cash

Purchase System. The complainant was asked to deposit the remaining instalments. The

complainant wrote letter to the petitioner stating that if it is not possible to allot the house in

Mansarovar Scheme, then the same may be allotted in Sanganer and earlier option of hire

purchase system be maintained. He explained that opposite party may issue notice so that the

remaining instalments could be deposited. However, as the opposite party failed to allot the

house, the complainant filed a complaint before the District forum. The District Forum vide

order dated 03.06.2006, held, as under :-

“19. Thus the dispute of the complainant against opposite parties

Rajasthan Housing Board is admitted and the opposite parties

Rajasthan Housing Board is directed to include the name of the

complainant in the lottery to be drawn in Sanganer Scheme giving

effect to this order and when the name of the complainant is found

in the lottery draw, then 9 percent interest on the deposited amount

Rs.2,000/- + Rs.3,500/- = Rs.5,500/- from the date of deposit to the

date of allotment shall be adjusted with the total amount to be

deposited and the complainant has to deposit the balance amount

and the opposite parties shall pay Rs.2,000/- against the disputed

cost (in words Rupees two thousand ) to the complainant”.

3. Aggrieved by that order, the appeal was preferred before the State Commission. The

State Commission dismissed the appeal vide order dated 21.12.2009. The petitioner has not filed

the certified copy of the order of the State Commission, dated 21.12.2009. There is no inkling in

the written synopsis that revision petition was also filed before this Commission, the written

synopsis are conspicuously silent about the same. The order passed by the District Forum

dated 03.06.2006 has attained finality. This does not behove on the part of the petitioner to

attack that judgment. It is clear that the petitioner has been boarding the contempt of court

proceedings. In further proceedings, the petitioner has no authority to challenge that order.

4. Thereafter the complainant filed contempt petition before the Executing Court for non-

compliance of the said order. The District Forum disposed of the contempt petition on the

ground that since the petitioner-Board had already produced the papers for allotment of plot,

therefore, the contempt application was not maintainable. Aggrieved by that order, the

complainant filed First Appeal before the State Commission. The State Commission, vide

order dated 10.06.2013, held as under :-

“We heard the arguments of both parties. The complainant got

registration of the house in 1989 and the complainant in

disabled category in the application. Allotment of house

against the flat has been made in favour of the complainant. The

complainant filed an allotment letter No.3408 dated

18.10.2000 of another applicant named Sudhir Kumar Jain and

we perused it. The aforesaid allotment letter is also of General

Registration Scheme 1989 and its seniority has been shown at

serial number 21 in the allotment letter. The defendant also got

his registration in 1989 in LIG category. The total value of the

house has been shown Rs.1,97,746/- in the allotment letter and

the area of the house is 60 square meter, whereas the allotment

letter was issued to the complainant on 04.12.2009, against

which the complainant filed objection. The said house is of LIG

Category in the aforesaid allotment letter and its standard area

is 21.38 square meter, and the value of the house is

Rs.2,90,065/-. As both the registrations were made in 1989 and

the District Forum also passed this order that the allotment

letter at the then rates be issued to the applicant. But after

perusal of aforesaid both allotment letters, it is lucid clear that

the allotment letter for lower income group house at the then

rates has not been issued to the applicant, therefore, the appeal

of the complainant/appellant is liable to be admitted.

In the result, the appeal of the complainant is admitted and the

order dated 21.12.2009 passed in the contempt proceeding by

District Consumer Forum is set aside, and opposite party,

Board is ordered to allot independent LIG house at the then rate

having the area of 60 square meter and value Rs.1,97,746/-.

This amount of Rs.1,97,746/- be recovered without charging any

interest from the defendant. Cost of the appeal Rs.5,000/- be

also paid to the appellant. 45 days’ time is given to the opposite

party for the compliance of the order”.

5. It is also interesting to note that the petitioner has not placed on record, the order of

contempt of court passed by the District Forum.

6. We have heard the counsel for the petitioner. The counsel for the petitioner vehemently

argued that the original order passed by the District Forum, dated 03.06.2006 suffers from

various infirmities. He started counting the same before this Commission. He was informed

that the order has attained finality and cannot be challenged in these proceedings. He could

limit his arguments on the contempt application only. It is surprising to note that all the record

was not produced before this Commission. It was expected that the Commission will adjourn the

matter unnecessarily, for the production of the documents and the prayer was also made,

which was not accepted. An adjournment would mean pursuing the case for another year

whereas this dispute has origin since the year 1989, Justice delayed is not only Justice denied- it

is also Justice circumvented, Justice mocked and the system of Justice undermined. These are

the welfare policies floated by the Rajasthan Housing Board. More than 25 years have elapsed

but the poor complainant has not received the plot. This is how the Rajasthan Housing Board

deals with a person belonging to ‘disabled’ category.

7. The State Commission has dismissed the original cross appeals filed by both the

parties, vide its order dated 06.08.2008. It is well settled that an Executing Court cannot go

behind the decree. The order passed by the District Forum, dated 03.06.2006, has become final.

Consequently, the order passed by the State Commission cannot be faulted. It is in tune with

the previous orders passed by the District Forum and State Commission. The Revision Petition

is without merit and the same is, therefore, dismissed.

8. The petitioner is further given opportunity to comply with the order of the State

Commission, within 120 days, from the date of receipt of this order. The possession of plot he

given to him within 120 days. Fresh notice be given to the complainant by the petitioner to

pay the residue amount, after deducting the amount paid by him, the total amount, being

Rs.1,97,746/, without interest, within a period of 30 days from the date of receipt of the

notice. The cost of the appeal in the sum of Rs.5,000/-, as ordered by the State

Commission shall remain intact. The said costs be paid to the complainant by the petitioner.

If the needful is not done, within 120 days, the petitioner/OP will be liable to pay Rs.5,000/-

per month to the complainant, as penalty, till the plot is handed over to him.

.…..…………………………

(J. M. MALIK, J)

PRESIDING MEMBER

.…..…………………………

(S. M. KANTIKAR)

MEMBER

dd/5


ORIGINAL PETITION NO. 25 OF 2005

1. Mrs. Rashmi Handa D-4074, Vasant Kunj New Delhi – 110 017

2. Miss. Srishti Handa D-4074 Vasant Kunj New Delhi Through Mrs. Rashmi Handa

3. Master Kshitij Handa D-4074, Vasant Kunj New Delhi Through Mrs. Rashmi Handa

... Complainants

Versus

1. OTIS Elevator Company (India) Ltd. Through Chairman 11th Floor, Himalaya House 23, K.G.Marg New Delhi – 110001

2. Research and Analysis Wing (RAW) Through Secretary (R) Cabinet Secretariat, Government of India Bikaner House Annexe Shah Jahan Road New Delhi – 110011

3. Military Engineering Services Through Engineer-in-Chief Ministry of Defence, Government of India South Block New Delhi – 110011

…. Opposite Parties

BEFORE:

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

HON’BLE DR. S.M. KANTIKAR, MEMBER

For the Complainants : Ms. Surbhi Mehta, Advocate With Mr. Sharad Bhahsali, Advocate

For Opp. Party No. 1 : Mr.Rohan Batra, Advocate With Mr. Dhruv Dewan, Advocate

For Opp. Party No. 2 : Mr. Jaswinder Singh, Advocate

For Opp. Party No.3 : Mr. Amit Ranjan, Garrison Engineer E.M., Base Hospital

PRONOUNCED ON_21 st JANUARY, 2014

ORDER

JUSTICE J.M. MALIK

1. Fame and power driven with the ulterior motive of greed, leads to devastation. To us here, death is the most terrible thing, we know. We understand ‘death’, for the first time, when he (death) puts his hand upon one, whom we love.

2. The facts of this unfortunate case, are these. Mr.Vipin Handa, aged about 46 years, who was working as Director, lost his life in tragic circumstances. The OTIS, OP1 installed Elevator in CGO Complex, in December, 2001. On 20.03.2003, at about 10.40AM, a

meeting of senior officers concluded on the 11th Floor of Research Analysis Wing (RAW) office in the CGO Complex at Lodhi Road, New Delhi. Lift No.6 is reserved for the officers of the level of Joint Secretary and above. During the second trip, Down, in the lift, Mr.Vipin Handa was one of the few officers who were in the Elevator. Approximately, at about 10.45AM, the lift abruptly stopped between 6 th and 7th Floor. The operator in the lift informed the lift operator in the control room that the lift had stopped. Three persons from the control room reached the 7 th Floor, opened the lift door on the 7 th

floor with a manual key and spoke with the operator inside. They asked all the occupants to await their return to begin the rescue operation, locked the lift door again and left. Two men went up to the Machine Room on the 11 th Floor, switched off the main supply Miniature Circuit Breaker (MCB) and returned to the 7 th Floor. They opened the lift door again, manually, and began helping the officers stranded in the lift to climb on to the 7 th

floor. The First Officer was rescued successfully.

3. Mr. Vipin Handa was the second officer to be rescued. While he was being rescued by the lift operators, the lift abruptly moved downwards for about 5-7 seconds, crushing Mr.Handa’s neck between the cabin roof panel and the floor, causing his instantaneous death. At that time, the lift was closer to the 6 th Floor and the remaining Eleven officers were helped out. Mr.Handa’s body remained hanging from the 7 th Floor. Ultimately, the cabin roof panel was forced open with the assistance of the Delhi Fire Service and the In-house Maintenance/Engineering Staff and Mr.Handa’s body was recovered and taken to hospital. Maintenance staff of OP1 was absent during the entire incident on 20.03.2003. Body of Mr.Vipin Handa was taken to AIIMS, New Delhi, where he was declared brought dead, on arrival, at 12.53PM. The matter was reported to police vide Annexure P-15. Copy of autopsy report mentioned the cause of death as “hemorrhagic shock due to multiple injuries caused by blunt force”.

4. Mr. Vipin Handa was selected by Indian Revenue Service (Customs & Central Excise Group A) in the year 1980 and was posted to the Directorate of Revenue Intelligence under the Ministry of Finance, from 1987-2000. He was appointed as First Secretary to the Embassy of India in the United States of America, in the year 1995. He was also posted as Counsellor in the High Commission of India in Islamabad. During his posting at Pakistan, Mr.Vipin Handa was expelled from Pakistan after a period of approximately 18 months. Thereafter, Mr.Handa was assigned to Research and Analysis Wing under the Cabinet Secretariat where his death occurred. He was also awarded the Uttam Seva Praman Patra posthumously by the Government of India for the year 2003 and got other meritorious certificates from various other Departments.

5. OTIS Co., OP1, installed the Elevator in RAW, OP No.2, under the Cabinet Secretariat. Military Engineering Services (‘MES’, in short), OP No.3, entered into a maintenance and repair contract with OP1. OP 1 was liable under condition 46 of the General Conditions of Contract, to rectify the defects immediately. The instant complaint was filed by Mrs.Rashmi Handa, wife of Mr.Vipin Handa and by their daughter and son, claiming compensation and damages to the tune of Rs.1,89,05,922/-, with interest @ 20% p.a. from the date of institution of claim, i.e. 18.03.2005.

DEFENCE OF OP 1 :

6. The following defences were listed. The complainants are not consumers under the Consumer Protection Act, 1986. The cause and responsibility of the unfortunate incident is relatable to OP 3 and its employees. At the time of unfortunate accident, the employees of the OP1 were not supposed to be present at the site as per the maintenance contract

signed between OP 3 & 1. As per the agreement, employees of OP1 were supposed to be present from 0700 hrs to 10.00 hrs, 12.30 hrs to 14.30 hrs and 16.30 hrs to 19.00hrs, for attending to the complaints, etc. This case entails complex questions of facts requiring detailed evidence which will not be possible to decide in these summary proceedings. OP 3 is responsible for, as is evident from Expert Committee report, submitted by Prof. C.B.Bhatia, upon request made by Deputy Commissioner of Police, dated 30.04.2003. The report further states that death of Mr.Vipin Handa was caused due to break release action, which was done when the second officer among 13 stranded in lift no.6, was being rescued out of the lift on the 7th floor. It is further reported that the lifts stop functioning inadvertently, due to “Voltage Fluctuation” and that all manual controls in the lifts supersede the automatic control and interlocking. OP1 did everything it could under its power to take note of the situation and intimate the same to the OP3. OP 2 & 3 did not do anything in to remove the problem of power fluctuation by installing stabilisers as it was the duty of OP2 & 3. OP 1 rectified the malfunction as and when asked for. Nobody contacted OP1 on its emergency numbers. OP1 was contacted only at 12.00 Noon, after the incident. The employees of OP3 who were present at the time of the accident, are responsible for the same. They should have waited for the employees of OP1. They tried to rescue the stranded passengers on their own without following the instructions which appeared on a pamphlet/sticker pasted in the lift itself, which led to untimely death of Mr. Vipin Handa.

DEFENCE OP 2:

7. OP 2 acquired the lift system from OP1, through OP3, which is actually responsible for the over-all maintenance of the entire office complex of OP2, including lift system. In the contact, OP3 has entrusted the responsibility of repairs and maintenance of lift system to OP1. The lift in question was installed in December, 2001, its warranty had expired in November, 2002, followed by Annual Maintenance Contract (AMC) entered into by OP3 and OP1. It is explained that, as a matter of fact, OP2 is a ‘consumer’ of the services being provided by OP 1 and OP3, both in regard to its acquisition and its maintenance. This Commission has no jurisdiction to proceed against OP2. OP1 was not having any

personnel in the premises, on the ill-fated day when Sh.Vipin Handa had lost his life. He died due to gross negligence on the part of OP1. Under the Government Rules, the maintenance of a Government building, is done only by a Government Agency. In the instant case, OP 3 had constructed the Headquarters complex of OP2 and right from the very beginning, it has been maintaining the complex in all respects. The family pensionary dues in respect of Mr.Vipin Handa, Ex-Director, payable to his family amounts to Rs.1,19,877/-. The family of the deceased officer was paid family pensionary dues, including ex-gratia, under extraordinary Pension Rules, as lumpsum compensation in the sum of Rs.5,00,000/-, the highest amount payable to the family of the Government servant who dies in harness. As per seniority list, Sh.Vipin Handa was to be promoted to the Grade of Joint Secretary in the year 2004, which was dependent on the recommendations of the Departmental Promotion Committee.

DEFENCE OF OP 3

8. OP 3 has enumerated the following defences. This case should be dismissed under Order VII, Rule 11 CPC as it discloses no cause of action. The case is bad for non-joinder of OP3. OP 3 sent numerous letters, reminders and personal visits to office of OP1 to rectify the defects, but all in vain. Joint meetings were held between OP3 and OP1 for rectifying the defects, but OP2 paid no heed and took the same very casually. It is wrong to say that OP1 and OP3 are jointly and severally liable for the maintenance of the lift.

There was no negligence or lapse on the part of OP3. OP 1 was paid a sum of Rs.4,94,988/- by this OP for the Comprehensive Maintenance Contract. Complaints were lodged with OP1 and 18 reminders have been filed on record, in this context. OP1 miserably failed to rectify the defects in spite of repeated letters and reminders sent by OP3. OP1 has not provided proper services to the maintenance of the lift. OP1 should have deputed permanent staff to be stationed for RAW building, during the office hours. OP3 has taken interest and care for the smooth functioning of the lift. Moreover, the relevant clause of the Agreement, i.e., 6(1) runs, as follows:-

“PRECAUTIONS AGAINST LOSS/DAMAGES

6.1 All the precautions against loss/damages shall be taken by the

contractor. In case of accident during operation of lift, the contractor is

liable to pay compensation, as applicable. The unit rate is to include

the cost of compensation and NO EXTRA amount on this ground shall

be entertained”.

Although complaint was lodged with the police, no case is made out against the employees of OP3, under Section 304A.

MAINTAINABILITY OF THE COMPLAINT:

9. We have heard the counsel for the parties and perused the written submissions. The first argument urged by the counsel for M/s. OTIS Elevator Company (India) Ltd., OP1, was that complainants have improperly instituted the complaint because Ms.Srishti Handa, complainant No.2 , who was a major, did not sign the complaint. She also did not file her affidavit in support of the complaint. Consequently, the complaint cannot be considered to be instituted on behalf of complainant no.2. Moreover, Mr. Kshitij Handa, who has attained majority during the pendency of this case,

did not elect on the continuation of the proceedings.

10. We are unable to pin any value to these feckless arguments. It appears that the counsel for the OP1 has not inspected the Correspondence File, properly. The original Vakalatnama was signed by Mrs.Rashmi Handa and Ms.Srishti Handa. Their Advocate was Ms.Meenakshi Arora. The complainants have later changed their counsel. A second Vakalatnama is also available on record. The same was signed on 24.02.2012. It is signed by the three complainants and four Advocates of the complainants, namely, Mr.Sharad Bansal, Mr.Kaustubh Sinha, Ms.Surbhi Mehta and Mr.Virender Negi. It is thus clear that this objection was raised merely for the sake of cavil. Such like technicalities should not come in the way of maintainability of this complaint. Consequently, we are of the considered view that this objection must be eschewed out of consideration. This case was argued by Ms.Surbhi Mehta, Advocate.

JURISDICTION OF THIS COMMISSION:

11. The second submission made by the counsel for OP1 and OP3 was that such like controversy cannot be decided in summary proceedings. This matter involves adjudication of complex questions of facts relating to causation of the accident which led to the death of the deceased for which appreciation of detailed evidence is required. Counsel for OP1 has placed reliance on Synco Industries Vs. State of Bikaner and Jaipur, (2002) 2 SCC 1 (para 3) and Bhagwanji D. Patel and Anr. Vs. Indian Bank and Ors., III (2011) CPJ 175 (NC) (para 18).

12. This does not appear to be a coherent argument. In Dr.J.J.Merchant & Ors., Vs. Shrinath Chaturvedi, AIR (2002) CPJ 8 (SC), a judgment, delivered by Three-Judges’ Bench, the same question was raised before the Apex Court. Paras 9, 10 & 11 are relevant. Para No.11 is reproduced, as hereunder :-

“11. Further, under the Act, the National Commission is required to be

headed by a retired Judge of this Court and the State Commission is

required to be headed by a retired High Court Judge. They are

competent to decide complicated issues of law or facts. Hence, it

would not be proper to hold that in cases where negligence of experts

is alleged, consumers should be directed to approach the Civil Court”.

It is thus clear that this authority applies to this case to a hair.

NEGLIGENCE AND DEFICIENCY – THE CRUX OF THE MATTER :

13. The principal argument advanced by all the three Opposite parties is that the death of the deceased is not attributable to any deficiency of service on the part of each OP, respectively. They have tried to put the blame on each other. They have tried to wriggle out of their liability. It must be mentioned here that there is a Technical Report of Lift Accident Investigation, submitted to Delhi Police, on 27.04.2003, by Prof. C.M.Bhatia, which report is of infinite importance. It is a very lengthy report but the main conclusions drawn by the Expert, are reproduced here as under :-

“5. MAIN CONCLUSIONS :

The following are the main conclusions:-

48. The accident causing the death of the diplomat took place due to

sudden downward motion of the lift when he was being rescued. His

body was half-way in and half-way out. There is no reason that the lift

could move down under the conditions, which have been described to

the undersigned.

49. The following is the sequence of events and comments as per the

Technical Investigation conducted with the agencies involved in

providing

the service:

- The lift stops on 7th due to voltage fluctuation with 13 people inside

it.

- Some helper staff switches off the main MCB of the lift.

- The operator switches off the Reset Button located in the lift cabin.

- The lift door is opened with the help of manual key and one officer

is rescued successfully.

- The second office, i.e., the diplomat is being rescued. He is half, in

and half, out, and the door of the lift is open when the lift moves down

by a few feet, all of a sudden, and stops near the 6 th floor, with the

remaining 11 people inside it *.

- The diplomat gets stuck in the shaft *.

- The lift continues to be stationary near the 6th floor with no further

motion *.

- All remaining 11 officers are rescued out in the similar manner

as before. Nothing happens earlier to the first officer, who was rescued

on 7th floor, or to the other 11 officers who were rescued later, on 6th

floor. They are all safe and sound *.

- The answer to the (*) mark points is that while the second officer

was being rescued, the Machine Room door on the 11th floor was

opened, or possibly it was left open. Some body entered the Machine

Room and released the lift brakes, through the Brake Release Key,

moving it down and hence causing the accident.

- There is enough evidence at the site that the Brake Release Key has

been used.

50. Let us examine the other possibilities (other than the use of

Brake Release Key) of downward motion of the lift.

- Since the power supply was switched off, the lift was dead and

could not move through the electrical circuit, either downwards or

upwards. The lift light fan and telephone inside the cabin have a

separate supply and they are working. The MCB only activates or

deactivates the motion and automatic control system related to it.

- Even if the power was switched on by some body through turning-on

the MCB, on 11th floor, the interlock control will prevent the lift from

moving. Because the lift door was open and the diplomat was in the

process of rescue with half of his body in and half out.

- It may be mentioned that all manual controls in such lifts supersede

the automatic control and

interlocking.

- Further, since the power was switched off when the brakes were

released, the interlocking did not work.

- The lift control interlocks therefore did not recognize the release of

brakes, because this action was done manually, by passing the

controls.

Releasing the brakes through the Brake Release Key is the only cause

of accident and is due to the human error/factor beyond any element

of doubt”.

SUBMISSIONS OF OP1

14. The counsel for OP1 has invited our attention towards the said Technical Committee Report, wherein the Expert, also opined, as under :-

“2.TECHNICAL BACKGROUND:

The lift under question is lift number 6, installed

at the RAW Office in the CGO Complex, New Delhi. This lift, as

per the statement of some RAW officials, whom the undersigned

met during the process of investigation, is reserved for use of

officers of higher rank, e.g, Joint Secretary and above. The lift has

been commissioned by a multinational company, M/s. OTIS Ltd.,

and is also being maintained by M/s. OTIS Ltd. At the time of

said accident, the maintenance contract was with M/s. OTIS Ltd.,

and was valid. On visual examination of the lift and its controls by

the undersigned, it was evident that the lift is equipped with very

sophisticated and modern technology, with Microprocessor Cased

Control. It is also equipped with all necessary security and safety

control and there is no reason why such an accident should take

place. The capacity of the lift could not be ascertained because no

specifications were provided to the undersigned”.

15. Counsel for OP 1 has also argued that, upon inspection of the lift, the Expert did not find that any part of the lift was broken at the time of the accident. It is alleged that employees of Military Engineering Service (MES), OP 3, tampered with the ‘Break Release Key’, in the lift room, which was in their exclusive control and occupation. The accident took place about 10.45AM, but the employees of OP3 did not contact the OP1, until 12.00 Noon. He contended that this was a case of accident simplicitor and the police confirmed in its charge-sheet dated 20.03.2003 wherein it was mentioned to fix the responsibility

on the employees of OP3 for the said accident. It was argued that lift brakes were fiddled by the employees of OP3 and the OP1 cannot be held responsible for the same.

16. The attention of this Commission was invited towards page 14 of the said Report, wherein it was mentioned :-

“20. On being asked that when did M/s. OTIS Ltd., write to MES on

installation of the Voltage Stabiliser for the lift number 6 to prevent

its malfunction; Capt. Venkatesh did not know the details, but

certainly said that it was almost very recently”.

17. The attention of this Commission was also invited towards Statement of Mr.Bhushan Kumar, Lift Operator (employee of OP 3). It was emphasised that the report of the Expert should be given due weight and credence. Again, OP1 had put stickers inside the lift, categorically prohibiting interference with the lift mechanism, without involving OP1. The acts of OP3 are, in fact, in violation of Rule 6 (xiii) of the Bombay Lift Rules, 1958, framed under the Bombay Lifts Act, 1939, which provides that no person shall fully interfere with any mechanism of the lift installation. OP 1 has been maintaining the lifts under the Annual Maintenance Contract (AMC). He further laid emphasis on the law laid down in C.Venuprasad, General Manager (Operations) Premier Vinyl Flooring Ltd. Vs. M/s. Narangs International Hotel Pvt. Ltd., decided by this Commission on 09.11.2012, (Original Petition No.179 of 1994 & Original Petition No.2 of 1996). He has referred to para Nos.11 and 24 of the said judgment, which are reproduced here, as under :

“11. On the other hand, learned counsel for the OP Hotel has

contended that the blame squarely rests on the OTIS Elevator Co.

(India) Ltd, who is a reputed elevator manufacturer. They had not

only installed the lift but had the renewal maintenance contract for

over the years. Their responsibility and accountability cannot be

overlooked on their plea of some foreign material having been found

in the gear oil for the simple reason that the gear box is a sealed

unit and the special type of gear oil is supplied by the OTIS Elevator

Co. (India) Ltd, themselves. Their own employee, Mr.Johnson in his

evidence has stated that foreign material could have entered either

from outside or it could even be the result of some wear and

tear/breakdown of gear/worn shaft. To blame the hotel staff with the

allegation of tampering of gear box, therefore, cannot be sustained.

It must have been the adulterated gear oil which was supplied by

the OTIS Elevator Co. (India) Ltd., which would have caused the

damage to the gear inside the box.

25. On the plea of the complainant Hotel that the gear box was a

sealed equipment and the gear oil could be replenished/replaced

only by their own staff, we are inclined to believe the defence of

the OTIS Co., that when the elevator was stuck on the 24 th of

February, 1994 and 26th of February, 1994, the Hotel staff had

handled the equipment without informing the OTIS staff and in the

process had opened the gear box to release the break system.

May be, in the process, the Hotel staff would have put some

lubricating material into the system or may have handled the

machine in a crude and rough manner, resulting in some inner

parts getting brittled inside. We find that Mr.John, in his cross-

examination, has denied that he ever opened the gear box but has

admitted that only the gear box cover has been opened to release

the break in case of certain situation. Since it is contended that

there is no need to open the gear box cover in order to release the

break system, we do not find any substance in the contention of

the complainant Hotel that their staff was totally innocent with

regard to the handling of the lift machine at their own level

resulting in the malfunctioning”.

18. It was further submitted that the purported malfunctioning of lift number 6 had only occurred during the period January to August, 2002. It was explained that since then, there had been no complaint regarding any mal-functioning of the lift and the lift had been working properly. However, one complaint was received in February, 2003, which was not in relation to the lift halting but regarding certain noise in the lift. Consequently, for eight months, prior to the said accident, lift number 6 had been working properly. The problems relating to lift number 6 were related to “Voltage Fluctuation”, on account of fluctuations in supply by the Delhi Electricity Board. OP1 was aware of this problem of voltage fluctuation and it advised OP3 vide letter dated 04.07.2002, i.e., 8 months’ prior to the accident to install a Voltage Stabilizer, for the protection and safe operation of the lift, which is reproduced, as under:-

“Dear Sir,

We were informed by our Route Examiner that the voltage

available at the site sometimes found to be unbalanced which cause

frequent breakdown on new lifts and this also affect the life of the

lift in long run. We would, therefore, request you goodself to

arrange to install Service Line Voltage Corrector Stabiliser of 50

KVA on each phase for the protection and safe operation of our

equipments. The stabilizer specifications are in details herewith”.

The proof of its service upon the OP is also not placed on record. It is also strange enough that this letter was not produced before the Technical Expert. He has mentioned the same in so many words, in his report. The production of this letter at that stage casts a flim of doubt about its genuineness. However, it may be mentioned that on 17.02.2003, OP3, through Major Amit Khosla, Garrison

Engineer, wrote letter to OP1 pointing out, as under :-

“Dear Sir,

1. It has come to the notice of undersigned that in spite of repeated

requests to Mr.Sunil Chadda (GM) (Mod) and Mr.Bhupinder

Singh, Manager Service by the Engineer-in-Charge regarding

rectification of certain noise found during operation of lift No.6,

no action has been taken so far to rectify the same.

2. You are again requested to rectify the defects immediately.

3. Please treat the matter urgent.

Sd/-

(Amit Khosla), Major

Garrison Engineer”.

19. There is no response to this significant letter. It is also argued that in the Tender for Repairs and Maintenance Contract, dated 24.05.2002, there was no stipulation for installation of Voltage Stabiliser. OP1 did not receive any consideration for the same. OP3 had a Helpline in case of emergency. The Mechanic of OP3 was not required to be present at 10.40AM. His duty came to an end after working from 7.00AM to 10.00AM. OP3 did not provide any training to their staff, to carry out rescue operations. In support of his case, Counsel for OP 1 has cited the following authorities:-

i) Barnett Vs.Chelsea [1969] 1 Q.B. 428

ii)Knightley Vs. Johns ]1982] 1 W.L.R. 349

iii) M’Kew Vs. Holland, 1970 SC (H.L.) 20

iv) Horton Vs. Taplin Contracts Ltd [2003] I.C.R. 179

We have gone through the aforesaid judgments. The facts of the said cases and the law laid down therein do not dovetail with the facts of this case.

SUBMISSIONS OF OP 2:

20. Counsel for OP2 explained that the lift in question was installed in December, 2001. Its warranty had expired in November, 2002. Thereafter, there was AMC entered into between OP3 and OP1. OP 2 itself is a “consumer”. It is receiving services from OP1 & 2. OP1 has committed deficiency in service and as such, it is liable for the payment. Again, the definition of the word ‘consumer’, given in Section 2(b) of Consumer Protection Act, 1986, is not wide enough to include OP2. OP1 was also informed through letters dated 11.06.2002 and 30.07.2002 by the Joint Secretary, through which, problems encountered were pointed out, particularly, about lift No.6. OP1 did not respond and as such, shows malafide and culpable negligence. The attention of this Commission was invited towards the contract, particularly clause 6.1, which has already been quoted above. Learned counsel concluded his arguments by stating that only OP1 is liable to pay the compensation to the complainants.

SUBMISSIONS OF OP3 :

21. The Chief Engineer appeared in person. He contended that all the facts are

mentioned in their written statement. He argued that OP3 is not liable for the said incident.

He stressed that in view of Clause 6.1 of the Agreement, quoted above, they are not liable for

any accident.

22. After mulling over of the evidence and after hearing the counsel for the parties, our findings against all the OPs, are as follows.

DEFICIENCY ON THE PART OF OP1 :

23. This is an indisputable fact that the lift was installed in the

premises of OP2 in December, 2001. Nowadays, in the year 2014, the position of electricity supply is very good. It has improved with the passage of time. During the year 2001-02, it was a well-known fact that the electricity supply was not good. There used to be short-cuts, every now and then. The principal defence of OP1 is that due to voltage and fluctuation, the lift stopped and the accident occurred. The deficiency on the part of OP1 is apparent. It is said that money is the biggest seed of strife. Why did they install the lift without Voltage Stabiliser? That fact was known to OP1 from the very first day. Their defence that no Tender was made for Voltage Stabiliser is not worthy of credence. They should have refused to install the lift without Voltage Stabiliser, irrespective of the fact whether there was Tender for Voltage Stabiliser or not. It was risky and the OP1 was aware of that. OP1 has committed an egregious mistake in this context. This is the first deficiency on their part.

24. It is surprising to note that the lift in question was installed only 14 months’ prior to the unfortunate accident. In its letter vide Annexure P-2, Mr.Pankaj Sharma, Assistant Manager, Modernisation, OTIS Elevator Company (India) Ltd, wrote to OP3 through Garrison Engineer Project, on 13.12.2001, where, it was clearly specifically and unequivocally mentioned, as under :-

“1. The equipments components, fixtures being retained are

100% serviceable for smooth functioning of the lift, as a whole,

after modernization.

2. The lift after renovation/modernization shall perform

satisfactorily for a minimum period of 20 years”.

25. The mention of Voltage Stabiliser is conspicuously missing. How can you give such like assurance in absence of Voltage Stabiliser. Like lift No.6, Lift No.5 stopped for 32 times, as per the list submitted on record. There are letters subsequent to the death of Mr.Vipin Handa, as well, which reveal that the needful was not done in time. It is also interesting to note that as per Annexure P-3, Garrenger (Project) West informed the OTIS, OP1, that their Site Engineer was absent since 02.04.2002. OP3 has failed to prove that its Site Engineer used to visit the spot, on each and every day. The Attendance Register showing their presence, was conspicuously missing. According to practice, they have to maintain an Attendance Register, where their presence is marked and certified,

either by OP2 or OP3. The production of their Attendance Register would have gone a long way to establish that that their Engineer was available, particularly, on 20.03.2003, till 10.00AM. In case, their Engineer visited the spot, each and every day, while the complaint was made in respect of Lift Nos.5 & 6 for 32 times, vide pages 34 and 35, as per the agreement, where it was mentioned that the Site Engineer was to look after the premises from 07.00 hrs to 10.00 hrs, 12.30 hrs to 14.30 hrs and 16.30 hrs to 19.00hrs, why so many complaints/defects cropped up?. Was it only an eye-wash?. No evidence of their regular visit saw the light of the day. No explanation was given as to why Attendance Register was not maintained. It also appears that the Site Engineer does not appear on each and every day, as is apparent from Annexure P-3. It also appears that these defects were prevailing for enough time and OP1 did not take any essential steps.

26. OP3 also filed other complaints which go to show the bizarre conduct of OP1. Letter dated 17.02.2003, is crucial. The help of OP1 seems to be exiguous. This is before the death of Mr.Vipin Handa. That is why it is said, “A Stitch in time, Saves Nine”. It was incumbent upon OP1 to examine the power installation and install Voltage Stabiliser along with lift, in such like critical position. It appears that lift was being operated on continuous basis despite knowledge of breakdown of the similar nature. OP1 did not try to rectify the problem. The Expert Report clearly mentions that the lift in question was a Voltage Stabiliser lift and needs Voltage Stabiliser, as a compulsory component for its smooth functioning.

27. Now, we turn to the Agreement entered into between OP1 & OP3. Its paras 3.1 and 3.2 are important. However, Para 6.1 is significant and crucial, (already quoted at Para No.8, page 10 of this order), which rocks the boat to a dangerous extent.

28. The Expert’s report also mentions the following facts:-

“16. During all these events on 20.03.2003 the maintenance person from M/s

Otis Ltd. was not available. No person from M/s Otis was available to be

examined on 25.03.2003.

M/s Otis Ltd., was represented by the three persons as experts, out of those,

two were examined by the Expert.

1. That the concerned lift ((lift number 6) had been malfunctioning ever since it

has been commissioned and installed. The lift had therefore been stopping

inadvertently during its operational service very frequently. This malfunctioning was

noticed during the warranty period and it continues to be the same in the extended

maintenance contract period.

2. The main reason for the malfunctioning of the lift may be the fluctuations in

the incoming voltage supply Delhi Vidyut Board (BSES Rajdhani Power). On being

asked whether the firm has examined how much fluctuation in voltage is there and

what remedies have been taken; Mr. Anurag Manglik replied that a letter in writing

has been given to M/s MES to install Voltage Stabilizer for this lift. No copy of such a

letter written to MES was made available to the undersigned either as evidence or for

his examination.

3. Further he did not know as to when was it done and what action was taken

by M/s MES. He avoided the question by simply saying that he is a Technical Expert

and does not know about the follow up action. The service manager of M/s Otis Ltd.,

who is responsible for this job and he should know better.

4. On being asked whether M/s Otis Ltd. provided any training to the Lift

Operators on running the lift and also on the rescue operation of stranded persons,

when such malfunction takes place; Mr. Anurag Manglik again avoided the reply by

saying “that the firm provides training to their own staff. On doing further cross

examination on the use of the Brake Release Key, Mr.Anurag Manglik agreed

that somebody has definitely used the key, which caused the downward movement of

the lift during the time when the diplomat was in the middle of rescue process.

5. He also agreed that due to Voltage Fluctuation the lift control circuits would

make the supply to turn–off. Once the voltage supply is turned-off, and the MCB is

also switched off. Under this condition the mechanical brakes will hold the lift in its

current position. The lift will therefore not move until somebody releases the

mechanical brakes with the help of the Brake Release Key. In case the brakes are

fully released the lift will move down rapidly due to its weight and gravitational force.

However, if the brakes are momentarily released there will be a momentary down

ward motion.

6. Mr. Manglik replied that Mr.Harish is a Sub-Contractor and M/s Otis Ltd., has

sub-contracted some work to him. Mr. Anil Sharma, the Second Witness explained

that Mr. Harish has been Sub-contracted a

part of the Civil Engineering work by M/s Otis Ltd., and not the Electrical

Engineering work of the lift.

7. While Mr. Bhushan Kumar says repeatedly that during the rescue

operation of the Machine Room on the 11th floor was locked and Mr. Harish

was not to be found anywhere nearby; Mr. Harish claims that around 11.0

A.M., when he was returning from the canteen after having a cup of tea and

snacks, on 20.03.2003, Mr.Bhushan Kumar met him on the ground floor of the

building. Mr. Bhushan Kumar was in a state of shock and was repeating the

sentenced “Baiya ne marwa diya” and insisted that Mr. Harish should

accompany him to the Machine Room on the eleventh floor for help.

8. M/s Otis Ltd., have not been providing proper service to the building lift.

They have a responsibility to address the problems of malfunctioning of the

lift, which the firm has been avoiding to address.

9. The reply given to the undersigned by Mr. Anurag Manglik that M/s

OTIS people would reach the site within 15 to 20 minutes for service as and

when they are informed does not fit into the service contract. The firm should

rather depute a permanent staff to be stationed at RAW building, at least

during the working hours of the office. Otherwise, why are they being paid

for the

service and maintenance contract?.

10. M/s Otis Ltd., also did not seem to have advised M/s MES in time to

install Voltage Stabilizer to nullify voltage fluctuations and also about the

sensitivity of lift control due to such fluctuations. It is an act of sheer

negligence and is termed as a non-professional attitude on the part of M/s Otis

Ltd., causing death due to negligence.

11. M/s Otis Ltd., also did not provide any training to the lift operators on

the proper functioning of the day-to-day service and on the rescue operation

during the emergency.

12. The sub-contracting clause of the agreement needs to be studied and

debated. In case M/s Otis Ltd., has sub-contracted the job to a third agency,

in violation to the contract agreement, due action may please be taken as per

MES rules.

29. There is no record which may go to show that OP1 had assessed the situation before installation of the lifts, no piece of evidence was produced. There is no evidence on record which may go to show that OP1 had given training to OP2 & OP3 about the steps to be followed, in a sequence, in case of sudden stoppage of the lift. OP1 also did not produce any evidence in the form of Duty Chart, Log Book, Job Card, etc., to prove that they

could reach the spot, within 15-20 minutes. No record was produced to show that previously, rescue operations were carried out.

30. Mr. Harish, is a Sub-Contractor and M/s. OTIS Co. Ltd. has sub-contracted some

work to him. No sub-contracts saw the light of the day. Role of Mr.Harish in the entire case

is doubtful. OP1 has failed to show that it has an authority to sub-contract the work. The

contract between the OTIS and Mr.Harish was a crucial document which was withheld by

the OP1 for the reasons best known to them. According to Mr.Bhushan Kumar, Harish was

not available and Mr.Harish explained that he had gone to take a cup

of tea.

LIABILITY OF OP3:

31. However, it is clear that OP 2 and 3 are jointly and severally responsible for the above said accident. The counsel for the complainant has argued that each of them is jointly and severally liable in view of judgments i) Dr. Balram Prasad Vs. Dr.Kunal Saha, 2013 (13) SCALE 1 and (ii) Malay Kumar Ganguly Vs. Dr.Sukumar Mukherjee, (2009) 9 SCC 221. We are in agreement with her contention.

32. It is difficult to fathom, who had fiddled with the lift/control room. The role of Mr.Bhushan, Mr.Vijay and Mr. Harish is very doubtful, as per the Expert Report. The following excerpts from the report of Technical Expert, are important:-

“1. The contradiction of statements between Mr.Harish and

Mr.Bhushan Kumar clearly raises doubt that the Machine Room

door on the 11th floor was open during the rescue operation on

20.03.2003. As such, the room was accessible to anybody.

Therefore, somebody released the Brake when the diplomat,

was half way in and half way out of the lift.

2. It is highly objectionable to keep the officers stranded inside

the lift for 15-20 minutes, waiting for the arrival of M/s. OTIS Ltd.,

staff to rescue the officers. Since this phenomenon of lift stoppage

has been taking place almost every day, M/s. MES should have

warned M/s. OTIS ltd., to do proper maintenance or else quit.

3. On being asked whether he was satisfied with the quality of

services provided by M/s Otis Ltd., he replied that he was not satisfied.

However, when the undersigned asked whether he reported the matter

to his seniors for finding a remedy, to the poor quality of service, Capt.

Venkatesh avoided the reply by saying that “his job is to report events

only”.

4. On being asked that when did M/s Otis Ltd., write to MES on

installation of the Voltage Stabilizer for the lift number 6 to prevent its

malfunction; Capt. Venkatesh did not know the details, but certainly

said that it was almost very

recently.

5. M/s MES has also not played their dutiful role to ensure the safety

and security of officers using this lift. M/s MES could have studied the

contract clause and could have taken an action against M/s Otis Ltd.

for their non-cooperation towards providing proper service as per

service agreement clause and also for not deputing an engineer/

supervisor at RAW premises for rescue operation.

6. It is believed that there is one more lift operator, named Mr. Vijay

Kumar Gupta. This person never came in front of Investigating Team,

for reasons

not known to the undersigned”.

33. What is the use of such like maintenance agency. The case exposes the sloth and

callousness of the administration. OP3 did not deny the receipt of letter dated 04.07.2002,

though counsel for OP2 argued with vehemence that the said letter was not served upon OP3.

34. As per the contract, OP3 failed to produce that they were maintaining the Attendance Register to show that the Engineer from OTIS used to come and visit the place. There is not even an iota of evidence to show that OP3 had charged the amount due to absence of Site Engineer from OTIS as per AMC. On the one hand, OP3, submits that they did not properly rectify the defects, on the other hand, they do not have record to show that Site Engineer ever visited the spot from OTIS. The Maintenance Agreement provides provision of Attendance Register. Consequently, OP3 is wee bit negligent and deficient in discharge of their duty.

DEFICIENCY ON THE PART OF OP2:

35. It is clear that Tender for installation of lifts was given by OP2. The giving of Tender

is not a mere formality. This must be known that OP2 is a Government Institution. For

Tender, the proposal goes through so many officials/Experts, who ought to have known that,

without Voltage Stabiliser, they are going to put the lives of officials in jeopardy. It is

shocking that, to save some money, the precious lives of the people were put in danger. This

is the first deficiency on the part of OP2.

Secondly, although they entered into contract, they never tried to see whether the

contract is being followed properly or there were some deficiencies.

Thirdly, a number of complaints were lodged before the OTIS Co. Ltd. They did not pay

any heed to those complaints. It is surprising to note that OP2 is so powerless that it cannot

compel OP1 to rectify the above said deficiencies. Were they working in cahoots with the other

OPs? The moment they came to know that OTIS is not giving proper service, they should have

immediately, without wasting any time, cancelled their contract and should have put some

other Agency to look after their lifts. Lamently, OP2 did not make any effort to straighten out

the problem. It must also be made clear that OP2 is a “consumer”, qua, the OP1 and OP3.

OP2 is not a “consumer”, qua, the deceased. On the contrary, the deceased, is a “consumer”,

qua, the OP2. However, their liability is limited and that fact will be considered at the

appropriate time.

EFFECT OF SECTION 304-A:

36. The logic trotted out by OP3 is that a case under Section 304-A was lodged against

their employees, the police investigated the case and found that the case was not made out

against the employees of the Opposite Party No. 3. It was contended that no liability can be

saddled with OP3.

37. This argument carries no conviction. There is marked difference between the Criminal

proceedings and Civil proceedings. The Civil Court is not bound by the Criminal Court’s

judgment, but the converse may not be true. Consequently, this argument deserves no

consideration.

COMPENSATION

38. The complainant has submitted the revised calculation in regard to the compensation.

She submitted that it has to be considered in view of the latest Apex Court’s authority in the

case of Dr. Balram Prasad v. Dr. Kunal Saha (supra). She further pointed out that the

compensation should not be calculated on the basis of guidelines laid down in the case of Sarla

Verma & Ors. V. Delhi Transport Corporation (2009) 6 SCC 121, as pointed out by the counsel

for OP-1. According to the calculations, the complainant has claimed total damages in the sum

of Rs.3,01,48,195/-. In the new calculations, she had added Foreign Allowances, Recreation

Grant, amount of future loss of income @ 30%, loss of Consortium in the sum of

Rs.10,00,000/-, Legal expenses in the sum of Rs.30,00,000/- and has mentioned about the

following notes:-

“1. The deceased was posted as Counsellor at Indian Embassy at

Islamabad until 24/1/2003 when he was deported.

2.The income of the deceased was not taxable as can

be seen from para 5 of the LPC attached as Annexure-1A. The tax deducted

is reimbursed through AFA (Additional Foreign Allowance). Hence, no tax

is

deductible from the total emoluments.

3. Exchange rate has been taken as Rs. 48.92 per USD prevalent at that

time and as mentioned in the Last Pay Certificate of the deceased.

4. Considering the exemplary career, future prospects and the status of the

deceased, this is a fit case for applying the methodology adopted by the

Hon’ble Supreme Court in the Kunal Saha case and not the multiplier

suggested by Sarla Verma case. Therefore, the claimant has taken the

multiplier as 23 i.e., the difference between the age of the deceased at the

time of his death and the life expectancy of a healthy individual as 70

years.

5. For the period 25.1.2003 to 20.3.2003, only the basic pay details are

available. Admissible allowances estimated as per evidence attached.

6. All RAW officers are entitled to a 15% Security Allowance on the Basic

Pay”.

39. On the other hand, Opposite Party No. 1 has placed reliance on Sarla Verma & Ors. V.

Delhi Transport Corporation (Supra).

40. This case pertains to the life of a young upcoming officer. He could have been

promoted as Cabinet Secretary or at a equivalent post at the fag end of his career. His sudden

death reminds us a

quote of Walter Scott in ‘The Lady of Lake, -

“Like the dew on mountain

Like the foam on river

Like the bubble on the fountain

Thou art gone, and forever”.

41. In view of the latest law quoted in Dr.Balram Prasad case (supra), we allow the claim

made by the complainants in the sum of Rs.3,01,48,195/-, jointly and severally, with interest at

the rate of 9% from 20.03.2003, the date of death of Sh.Vipin Handa. The said amount be

paid to the complainants, within 90 days, from the date of receipt of this order, otherwise, it will

carry interest at the rate of 12% p.a., till its realization. The liability of OP2 is limited to 5% of

decretal amount and liability of OP3 is limited to 25% of the decretal amount. The rest of the

amount will be paid by OP1.

The case stands disposed of on the above said lines.

……………………..………

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

……………….……………

(DR.S.M.KANTIKAR) MEMBER

dd/25



(Against the order dated 07.08.2012 in Appeal No. 311/2011

of the State Commission Himachal Pradesh,Shimla)

National Insurance Co. Ltd. Having its registered office at 3, Middleton Street Calcutta Delhi Regional Office I, at Tower II Level IV, Jeevan Bharti Building 124, Connaught Circus New Delhi – 110001 And one of its Branch Divisional Offices At Himland Hotel, Circular Road Shimla

........ Petitioner

Vs

1. Vinod Puri Son of Sh. Uttam Chand Resident of village & Post Office Gopalpur Tehsil Sarkaghat District Mandi, H.P. Prop. Trimurti Tyres Molding Works Tahahar, Post Office, Nabhai Tehsil Sarkaghat District Mandi, H.P.

2. Gramin Bank Branch Office Gopalpur Tehsil Sarkaghat District Mandi, H.P. Through its Branch Manager

......... Respondent (s)

BEFORE:



For the Petitioner : Mr. Yogesh Malhotra, Advocate

For the Respondent : Mr. Surender Singh, Advocate for R-1

Nemo for R2 ( Exparte)

Dated : 22 nd January, 2014

ORDER


This revision is directed against the order of the State Commission whereby the State

Commission dismissed the appeal of the petitioner opposite party against the order of the District

Forum allowing the complaint.

2. Briefly put the facts relevant for the disposal of this revision petition are that respondent

no.1 complainant is running a tyre retreading shop in village Tatahar in Sarkaghat Tehsil District

Mandi. He insured his plant and machinery as well as the stock with the petitioner appellant for

the period 06.05.2008 to 05.05.2009. The plant, machinery and accessories were insured for

Rs.5.00 lacs and stocks for Rs.6.00 lacs. According to the complainant, during the validity of the

insurance policy, a fire broke out in one of the two godowns of the respondent complainant

located about 30 meters away from his shop. In that fire, plant, machinery and stock worth

Rs.13.00 lacs were destroyed. The respondent complainant lodged an insurance claim with the

appellant but it was repudiated on the ground that insurance was in respect of the plant,

machinery and stocks available in the shop and the stock or the machinery kept in a godown was

not insured. Aggrieved of this repudiation, respondent complainant preferred a consumer

complaint seeking a direction to the petitioner to pay the insurance money alongwith

compensation and litigation expenses.

3. The appellant contested the complaint and took the above noted plea of repudiation of

claim.

4. Learned District Forum on consideration of the record allowed the complaint with

following directions:

“In the light of above discussion, the complaint is allowed and the opposite party

no.2 is directed to pay Rs.2,61,534/- to the complainant alongwith interest at the

rate of 9% per annum from the date of institution of the complaint till realization.

The opposite party no.2 is further directed to pay to the complainant Rs.10,000/-

on account of compensation for harassment and Rs.3000/- as cost of complaint.”

5. Being aggrieved of the order of the District Forum, the petitioner preferred an appeal

which was dismissed by the State Commission with following observations:

“The place, where the shop of the respondent is situated, is a small village in a

remote Tehsil of Mandi District. Therefore, it can legitimately be concluded that

the work of retreading tyres should be moderate. If that is so, huge stock of

retreading raw material cannot be supposed to be required to be kept in the shop

at any given point of time. In any case, stock worth Rs. 6.00 lacs in the form of

raw material for retreading tyres cannot be even kept in a shop, where plant &

machinery for retreading is also installed. So it can reasonably be presumed that

what was intended to be covered by the insurance policy by way of stock, was the

entire raw material for retreadig tyres kept by the respondent in the shop and

stored in the godowns, though in the policy it is stated that the property is situated

‘at a shop at Thathar, Sarkaghat’. In the peculiar facts and circumstances of this

case, there should be no hitch in inferring that the words “stock in the shop” used

in the policy also include the stock in the godowns which are not situated far off

from the shop.

In view of the above stated position, appeal is dismissed”.

6. Shri Yogesh Malhotra, Advocate, learned counsel for the petitioner has contended that

impugned orders of the foras below are not sustainable as the orders are against the facts and law

and based upon the assumption and presumption. Expanding on the argument, learned counsel

for the petitioner has drawn our attention to the copy of insurance policy wherein name of the

insured is mentioned as HGB Gopalpur A/C SSI-1589 and address is given as “Vinod Puri :

Shop at Tathar PO Sarkaghat The Sarkaghat Distt : Mandi, Himachal Pradesh”. In the middle

of this document, the risk is described as “Tyre Retreading Machinery and stocks” and in the

coloumn below, it is mentioned property is situated at : “Shop at Tathak Sarkaghat – 175001”

and the sum insured of plant, machinery and accessories for Rs.5.00 lacs and stock of rubbers for

retreading Rs.6.00 lacs. It is contended that from the above, it is clear that only the plant,

machinery and accessories and the stock of rubber for retreading lying in the shop was insured.

Counsel has argued that admittedly fire broke at the godown and stock and machinery lying at

the godown which is at a distance of 30 meters from the shop was destroyed. Counsel has

contended that since the property lying at the godown was not insured, insurance company was

justified in repudiating the claim.

7. Counsel for the opposite party on the contrary has argued in support of the orders of the

fora below.

8. We have considered the rival contentions and perused the record. On reading of the order

of the District Forum as well as State Commission, it is clear that both the foras below have

proceeded on the assumption that huge stock worth Rs.6.00 lacs in the form of raw material for

retreading tyres cannot be kept in the shop alongwith plant and machinery required for retreading

of tyres. So it can be reasonably presumed that plant and machinery and stock lying in the

godown which is at short distance from the shop was intended to be covered by the insurance

policy and on this premise, District Forum has allowed the complaint. On perusal of the copy of

insurance contract which is placed on record, it is clear that plant, machinery and accessories as

also the stock of rubbers for retreading situated at shop at Tathak Sarkaghat was insured.

Admittedly, the insurance claim was filed in respect of the stock and material lying in the

godown, which does not find mention as insured property in the policy document. Now the

question arises whether the material lying in the godown was covered by the insurance policy.

Hon’ble Supreme Court while deciding Civil Appeal No. 2080 of 2002 titled as Vikram

Greentech (I) Ltd. & Anr. Vs. New India Assurance Co. Ltd. has looked into the issue as to

how insurance contract must be construed. In the aforesaid judgment, Hon’ble Supreme Court

has observed thus:

“An insurance contract, is a species of commercial transactions and must be construed

like any other contract to its own terms and by itself. In a contract of insurance, there is

requirement of uberimma fides i.e. good faith on the part of the insured. Except that, in

other respects, there is no difference between a contract of insurance and any other

contract. The four essentials of a contract of insurance are, (i) the definition of the risk,

(ii) the duration of the risk, (iii) the premium and (iv) the amount of insurance. Since

upon issuance of insurance policy, the insurer undertakes to indemnify the loss suffered

by the insured on account of risks covered by the insurance policy, its terms have to be

strictly construed to determine the extent of liability of the insurer. The endeavour of the

court must always be to interpret the words in which the contract is expressed by the

parties. The court while construing the terms of policy is not expected to venture into

extra liberalism that may result in re-writing the contract or substituting the terms which

were not intended by the parties. The insured cannot claim anything more than what is

covered by the insurance policy. [General Assurance Society Ltd. Vs. Chandumull Jain

and another, Oriental Insurance Co. Ltd. Vs. Sony Cheriyan and United India Insurance

Co. Ltd. Vs. Harchand Rai Chandan Lal].

Document like proposal form is a commercial document and being an integral part of

policy, reference to proposal form may not only be appropriate but rather essential.

However, the surveyors’ report cannot be taken aid of nor can it furnish the basis for

construction of a policy. Such outside aid for construction of insurance policy is

impermissible.”

9. On reading of the above, it is clear that an insurance contract has to be construed like any

other contract on the basis of its terms and conditions and outside aid for construction of

insurance policy is impermissible.

10. Insurance Policy clearly shows that only the plant, machinery and stock lying in the shop

was insured. Therefore, the petitioner was justified in repudiating the claim of the respondent in

respect of the loss caused to the plant, machinery and stock lying in the godown due to fire. On

reading of the order of the District Forum as well as the State Commission, we find that both the

foras below, in violation of the above noted position of law laid down by the Supreme Court

have expanded the scope of the insurance contract on the basis of presumption and assumption

which is not permissible. Thus, in our view, both the foras below have exceeded their

jurisdiction while allowing the insurance claim of the opposite party. As such, their orders

cannot be sustained.

11. In view of the discussion above, we allow the revision petition, set aside the impugned

orders of the foras below and dismiss the complaint with no order as to costs.

………………………….


…………………………

(SURESH CHANDRA)

MEMBER

Am/



(From the order dated 17.07.2012 in Appeal No. 344/2008 of Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal)

Budha Ganesh S/o Kodulal Saket R/o Village Pahari P.S. & Tehsil Maihar Distt. Satna, (M.P.)

… Petitioner

versus

New India Insurance Company Ltd. Through Divisional Office Divisional Manager Rewa Road, Satna, (M.P. 485001)

… Respondent

BEFORE

HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner(s) Mr. Pancham Lal Advocate

For Respondent Mr. R.C. Mishra, Advocate

PRONOUNCED ON : 21 st JANUARY 2014

O R D E R


Petitioner in this case is the complainant and the Respondent Insurance Company was the Opposite Party before the District Forum. The only issue that arises for our consideration and decision in this case is the effect of delay in reporting theft of the insured vehicle to the Police and/or the Insurance Company.

2. Briefly stated, the tractor and trolley of the petitioner was insured with the OP Insurance Company for the period from 31.12.2005 to 30.12.2006. It was alleged that the tractor and the trolley were stolen on 9.9.2006 during the period of insurance. However, the FIR was filed on 13.9.2006 and the Insurance Company was informed on 19.9.2006. Though, the information was delayed, yet, the Insurance Company appointed an investigator who gave the report that it was not the case of theft, but the persons traveling with the insured in the tractor had taken it away after putting some intoxicating substance in his food at a ‘dhaba’ where all of them had alighted to have food. The Insurance Company after receiving report of the surveyor repudiated the claim of the insured/complainant on the ground of delay in reporting the matter. It also alleged that the investigation done by the surveyor indicated that the incident of theft is false and concocted. This led the complainant to file a consumer complaint against the Opposite party/Insurance Company for deficiency in service before the District Forum which vide its order dated 01.01.2008 accepted the complaint in terms of the following directions:

“i) That Respondent the insurance Company should decide the claim of applicant within 60 days.

ii) That non applicant should pay Rs.3,000/- for deficiency of service.iii) If Rs.2,96,593/- the price of tractor is not paid within 60 days then the

complainant will be entitled to get 12% interest from 29.5.2007 till payment.

iv) The non-applicant will pay the cost of complainant Rs.5,000/-.”

3. Aggrieved by the aforesaid order of the District Forum, the Opposite party/Insurance Company filed an appeal before the Madhya Pradesh Consumer Disputes Redressal Commission, Bhopal bearing No. 344 of 2008. The State Commission vide its impugned order dated 17.7.2012 set aside the order of the District Forum and allowed the appeal while dismissing the complaint of the petitioner. It is against this impugned order of the State Commission that the present revision petition has been filed by the petitioner who is aggrieved of the impugned order.

4. We have heard learned Shri Pancham Lal, Advocate for the petitioner and Shri R.C. Mishra, Advocate for the Respondent/Insurance Company. It is not in dispute that the alleged theft had taken place on 9.9.2006, but the FIR came to be filed on 13.9.2006 and the Insurance Company was intimated about the incident on 19.9.2006. The State Commission has upset the finding of the District Forum mainly on the ground of delay on the part of the Petitioner/Complainant in filing the FIR and informing the Insurance Company about the theft. In returning its finding the State Commission has relied on the judgment and order of this Commission in the case of New India Assurance Company Ltd. Vs. Trilochan Jane (Pronounced on 9.12.2009 in Appeal No. 321 of 2005) while non-suiting the claim of the petitioner and dismissing the complaint. Learned Counsel for the petitioner contended that the petitioner is an uneducated person who does not understand the legal implications and importance of the condition given in the insurance policy. He, therefore, submitted that keeping in view the violation of the condition of the policy regarding immediate filing of the FIR and intimation to the Insurance Company about the incident of theft, the claim of the Petitioner/Complainant can be settled on non-standard basis to the extent of 75% of the value of the vehicle insured keeping in view the ratio laid down by the Apex Court in the case of National Insurance Company Ltd. Vs. Nitin Khandelwal (2008) 11 SCC 259. He contended that the impugned order of the State Commission based on the order in Trilochan Jane Case (Supra) decided by the National Commission be set aside and relief be granted to the petitioner in terms of the ratio laid down by the Apex Court in the Nitin Khandelwal Case (Supra).

5. Per contra, learned Counsel for the Respondent has contended that the facts and circumstances of the present case are similar to those of Trilochan Jane Case (Supra) and as such, the ratio of Nitin Khandelwal Case (Supra) would not be applicable to the present case. He submitted that the State Commission has already considered this aspect and hence there is no merit in the revision petition and the same is liable to be dismissed.

6. We have carefully considered the rival contentions and perused record. Admittedly, there was delay in not only filing the FIR, but also informing the Insurance Company. The State Commission has observed that the delay in the matter on the part of the petitioner prevented the Insurance Co. and the police from tracing out the tractor and the trolley during the initial period soon after the theft and this delay goes to the root of the matter since time is of essence in such matters where theft of the vehicle has taken place. Keeping this aspect in view, the State Commission has rightly decided the appeal applying the judgment and order of this Commission in the case of Trilochan Jane. In the case of Trilochan Jane there was delay only in respect of intimation of the incident of theft to the Insurance Company. Even then, this Commission held it to be a serious violation of the condition of the Insurance policy which would justify the repudiation of the claim on this ground. The ratio of Nitin Khandelwal’s case cannot be applied to the present case because that judgment was in a totally different context. In this regard, we reproduce the observations of this Commission made in the case of Trilochal Jane case, which would amply clarify this aspect:

“Learned Counsel for the respondent, relying upon the judgement of Hon’ble Supreme Court in National Insurance Company Ltd. Vs. Nitin Khandelwal reported in (2008) 11 SCC 256 contended that in the case of theft of vehicle, breach of condition is not germane. The said judgement was in a totally different context. In the said case, the plea taken by the Insurance Company was that the vehicle though insured for personal use was being used as a taxi in violation of the terms of the Policy. The plea raised by the Insurance Company was rejected and it was observed that in the case of theft breach of condition is not germane. In the present case, the respondent did not care to inform the Insurance Company about the theft for a period of 9 days, which could be fatal to the investigation. The delay in lodging the F.I.R. after 2 days of the coming to know of the theft and 9 days to the Insurance Company, can be fatal as, in the meantime, the car could have travelled a long distance or may have been dismantled by that time and sold to Kabaadi (scrap dealer)”.

7. In view of the above discussion, we do not find any infirmity which would justify our interference with the impugned order under section 21(b) of the Consumer Protection Act, 1986. This meritless revision petition, therefore, must be dismissed and it is dismissed accordingly. There shall be no order as to costs.

..……………Sd/-………………..

(AJIT BHARIHOKE J.)

PRESIDING MEMBER

....…………Sd/-…………………

(SURESH CHANDRA)

MEMBER

k



(From the order dated 07.05.2013 in First Appeal No. 202/2011 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

1. General Manager, North Western Railway, Jaipur

2. Senior Division Commercial Manager, North Western Railway, D.R.M. Office, Jodhpur

3. Senior Divisional Commercial Manager, Western Railway, Mumbai

…Petitioners/Opp. Parties (OP)

Versus

Dr. G.L. Gupta S/o Shri C.M. Gupta, R/o 114, Agroha, Opp. Saint Patricks Primary School, P.W.D. Colony, Jodhpur (Rajasthan)

… Respondent/Complainant

BEFORE



For the Petitioners : Mr. Shankar Chouhan, Advocate

For the Respondents : Dr. Sushil Gupta, Advocate

PRONOUNCED ON 21 st January , 2014

O R D E R


This revision petition has been filed by the petitioners against the order dated 07.05.2013

passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, ‘the

State Commission’) in Appeal No. 1278 of 2003 – Dr. G.L. Gupta Vs. General Manager North

Western Railway & Ors. by which, while allowing appeal, order of District Forum dismissing

complaint was set aside.

2. Brief facts of the case are that Complainant/respondent and other 3 Co-passenger travelled in Suriya Nagari Express from Jodhpur to Mumbai on 21.01.2008 in AC 3 tier on berth No. 7,8, 15 & 16. They were provided bed sheet, blanket, pillow and blanket cover by coach attendant which were stinking and blankets were torn which were returned to the attendant and he was asked to bring other sets. Attendant brought other sets which were worst than the former. Alleging deficiency on the part of OP, complainant filed complaint and claimed compensation.

OP resisted complaint and admitted journey of the complainant, but submitted that blankets and other sets provided were not dirty and stinking and further submitted that blanket cover was not provided to any passenger. Change of fresh bed roll was admitted and submitted that there was no complaint afterwards and prayed for dismissal of complaint.

3. Learned District Forum after hearing both the parties, dismissed complaint against which appeal filed by the petitioner was allowed and learned State Commission vide impugned order directed OP to pay Rs.1,000/- for mental agony and Rs. 2,000/- as litigation expenses against which this revision petition has been filed.

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

5. Learned Counsel for the petitioner submitted that neither blanket cover was supplied, nor supplied material was stinking or in torn condition and learned District Forum rightly dismissed complaint, but learned State Commission has committed error in allowing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

6. Perusal of record clearly reveals that in the complaint, complainant submitted that blanket cover was provided and on exchange of previously supplied bed roll, etc. complaint was lodged in the complaint book that the material supplied second time was in worst condition than the material supplied first time. OP in reply submitted that blanket covers were not supplied to any passengers. Complainant has not adduced any evidence to prove the fact that the blanket covers were provided. Notice given by complainant to OP also does not contain this fact that blanket cover was also provided. Thus, it becomes clear that complainant has unnecessarily mentioned wrong fact in the complaint that blanket cover was also provided.

7. Complainant has mentioned in the complaint that in complaint book, complaint was lodged regarding second set of blanket etc., but this fact also does not find place in the notice given by the complainant to the OP. Only one feedback form has been placed on record by the complainant signed by the complainant himself in which it has been mentioned that five bed sheets were unwashed, four pillows were in bad shape and blankets were torn. It is admitted case of the parties that first set was replaced by second set. Complainant has not adduced any evidence to prove the fact that the second set supplied by OP was worst than first set or not upto the mark. Complainant has not summoned complaint book in which complainant has made complaint in writing. In the absence of complaint book and any other cogent evidence, learned State Commission has committed error in allowing complaint only on the basis of preponderance of evidence. Learned State Commission has also mentioned wrong fact in the order that feedback form bears signatures of all the passengers, whereas it bears signature of only one passenger. Learned State Commission has also mentioned in the order that discrepancies in the notice and the complaint are on account of human behaviour. This fact cannot be accepted and learned State Commission has committed error in allowing complaint without any cogent evidence. Learned District Forum rightly dismissed complaint and impugned order is liable to be set aside.

8. Learned Counsel for the respondent placed reliance on (2006) 12 SCC 552 – Avtar Singh & Ors . Vs. Gurdial Singh and Ors . in which it was held that things admitted need not be proved. This judgment does not help to the respondent as petitioner has nowhere admitted supply of stinking or torn bed rolls. Other citations submitted by learned Counsel for the respondent after arguments have also no relevance which need not be discussed.

9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 7.5.2013 passed by learned State Commission in Appeal No. 202/2011 – Dr. G.L. Gupta Vs. General Manager & Ors. is set aside and order of District Forum dated 16.8.2011 is affirmed with no order as to costs.

………………Sd/-……………


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk



WITH I.A./5157/2013 (For Stay)

(From the order dated 21.05.2013 in First Appeal No. 123/2007 of the Bihar State Consumer Disputes Redressal Commission, Patna)

Vishawanath Prasad Verma S/o late Sheo Nandan Prasad Verma, Sheo Niketan, Sheopurin Hat, P S & Distt. Saharsa Bihar


Versus

1. Superintending Engineer Electricity Board, Saharsa Bihar

2. Executive Engineer, Electricity Board (Supply) Saharsha, Bihar

… Respondents/Opp. Parties (OP)

BEFORE



For the Petitioner : Mr. A.P. Sinha, Advocate

PRONOUNCED ON 21 st January , 2014

O R D E R


This revision petition has been filed by the petitioner against the order dated 21.05.2013 passed by the Bihar State Consumer Disputes Redressal Commission, Patna (in short, ‘the State Commission’) in Appeal No. 123 of 2007 – Superintending Engineer, Electricity Board & Anr. Vs. Vishawanath Prasad by which, while allowing appeal, order of District Forum allowing complaint was set aside.

2. Brief facts of the case are that Complainant/petitioner was consumer of OP/respondent and had Consumer No. K.P./EI D.S. 1726 which was provided on 25.9.1998. Complainant being Government servant remained outside; even then, he received bill for the month of June, 2000/- which was paid. Again he received the bill for the month of July, 2000 and amount was paid. Later on, he received bill for Rs.45,490.42 for the month of December, 2001. This bill contained dues of Consumer No. KP/EI D.S.74, which had no connection with the complainant. Inspite of request bill was not rectified and connection was disconnected. Alleging deficiency on the part of OP, complainant filed complaint. OP resisted complaint and submitted that both connections were pertaining to the complainant provided in the same premises and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and quashed aforesaid illegal bill and further directed to issue bill only against connection DS1726. Appeal

filed by OP was allowed by State Commission against which, this revision petition has been filed.

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

4. Learned Counsel for the petitioner submitted that learned District Forum rightly quashed illegal bill and learned State Commission has committed error in allowing appeal on the ground of time barred complaint though, complaint was not time barred; hence, revision petition be admitted.

5. Admittedly, disputed bill for Rs.45,490.42 for the month of December, 2001 was given to the petitioner and he protested on 15.1.2002. Again, he requested for rectification of bill of 3.7.2002 and 25.7.2002 and as per complaint, no further action was taken by the complainant and complaint for quashing the aforesaid illegal bill was filed on 27.6.2006 apparently after 4½ years. Learned State Commission rightly observed that complaint was filed after 4 years and 6 months and complaint was time barred.

6. Learned Counsel for the petitioner submitted that petitioner was continuously pursuing the matter and as his grievances were not redressed, he was compelled to file complaint. Mere persuasion does not extend limitation as held by us in IV (2013) CPJ 567 (NC) - Himachal Futuristic Communications Ltd. Vs. K.C. Aggarwal & Ors.

7. In the light of above discussion, order passed by learned State Commission is in accordance with law, which does not call for any interference and revision petition is liable to be dismissed at admission stage.

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

………………Sd/-……………


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk



(From the order dated 01.11.2007 in Appeal No.334 of 2006 of the H.P. State Consumer Disputes Redressal Commission, Shimla)

1. Life Insurance Corporation of India Northern Zonal Office Jeevan Bharti, Connaught Place, New Delhi – 110001

2. Life Insurance Corporation of India Through its Divisional Manager Shimla

3. Life Insurance Corporation of India Through its Branch Manager Branch Office Nurpur Himachal Pradesh

… Petitioners/Opp. Parties (OP)

Versus

Nita Bhardawaj W/o Late Sh. Ravinder Bhardwaj H.P. Agro Complex, Jachh, PO Jassur, Tehsil Nurpur, District Kangra H.P.

… Respondent/Complainant

BEFORE



For the Petitioners : Mr. Buddy A. Ranganadhan, Advocate

For the Respondent : Mr. Vivek Singh Thakur, Advocate

PRONOUNCED ON 21 st January, 2014

O R D E R


This revision petition has been filed by the petitioners/OP against the order dated 01.11.2007 passed by the H.P. State Consumer Disputes Redressal Commission, Shimla (in short, ‘the State Commission’) in Appeal No. 334/06 – LIC of India & Ors. Vs. Nita Bharadwaj by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent’s husband Ravinder Bharadwaj obtained insurance policy for a sum of Rs.2,00,000/-. Complainant’s husband expired on 13.6.2004 and complainant being nominee submitted her claim before the OP/petitioner which was repudiated illegally. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that deceased Ravinder Bharadwaj suppressed material facts regarding pre-existing disease while filling the proposal form. It was further alleged that prior to obtaining policy, Ravinder Bharadwaj was suffering from jaundice in the year 2003 and this fact was not disclosed; hence, claim was rightly repudiated and prayed for

dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to pay policy amount along with 6% p.a. interest from the date of complaint till realization and Rs.1000/- 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.


4. Learned Counsel for the petitioner submitted that deceased while filling proposal form suppressed previous disease fraudulently and petitioner has not committed any deficiency in repudiating claim; even then, learned District Forum has committed error in allowing complaint and learned State Commission has committed error in dismissing appeal; hence, revision petition be allowed and complaint be dismissed. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. It is not disputed that Ravinder Bharadwaj husband of the complainant obtained policy from OP/petitioner w.e.f. 24.3.2004. As per admission in paragraph 5 of the complaint, husband of the complainant suffered minor jaundice in January, 2003 and was fully recovered in February, 2003 and at the time of policy, he was having good health, as there was no sign of jaundice on 24.3.2004. Perusal of proposal form clearly reveals that petitioner replied as under:

(b) Have you ever been admitted to any hospital or - No

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 5 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?

6. As per certificate of employer Annexure P2 deceased was on medical leave from 3.1.2003 to 10.2.2003 for a period of 39 days. Deceased suppressed fact of 39 days medical leave as well as fact of jaundice which is ailment pertaining to liver and in such circumstances, on account of suppression of material disease, petitioner has not committed any error in repudiating claim. Learned Counsel for the petitioner has placed reliance on (2008) I SCC 321 – P.C. Chacko and Another Vs. Chairman, Life Insurance Corporation of India, R.P. No. 3848 of 2007 – LIC & Anr . Vs. Smt. Kempamma decided on 24.1.2013, R.P. No. 4875 of 2012 – Usha Rani & Anr . Vs. LIC & Ors . decided on 5.2.2013 and R.P. No. 2722 of 2008 – LIC of India Vs. Smt. Gurvinder Kaur decided on 30.5.2013 by me in which it was held that it was obligatory on the part of insured to give correct answers at the time of obtaining insurance policy and as insured suppressed material facts regarding disease and medical leave and gave false answers, OP has not committed any deficiency in repudiating claim of the complainant.

7. Learned Counsel for the respondent placed reliance on 2007 CPJ (III) 319 (NC) – LIC Vs. Sajida Bagum and I (2007) CPJ 275 (NC) – LIC of India Vs. Tajalben Kananbhai Patel in which it was held that suppression of common cold/fever not at all relevant and when OP- Doctor examined and certified insured keeping good health at date of issuance of policy, claim cannot be repudiated on the ground of suppression of material facts. We do not agree with the view expressed in these citations in the light of revision petitions decided by me earlier on this point in the light of Hon’ble Apex Court judgment in P.C. Chackoo & Anr. (supra) case.

8. Learned Counsel for the respondent further submitted that as there was no nexus between the jaundice and cause of death of insured, claim should not have been repudiated by the OP. This argument is also devoid of force because assured was under an obligation to give correct answers pertaining to his health at the time of issuance of policy and it is immaterial whether cause of death had any nexus or not with the disease suffered and suppressed by the insured. Respondent has also not placed any document on record to ascertain cause of death of the insured. In such circumstances, we may come to the conclusion that petitioner has not committed any deficiency in repudiating claim on account of suppression of previous disease and treatment.

9. In the light of above discussion, we come to the conclusion that learned State Commission has committed error in dismissing appeal and learned District Forum committed error in allowing complaint and revision petition is liable to be accepted and complaint is liable to be dismissed.

10. Learned Counsel for the respondent submitted that complainant has already received payment after the State Commission’s order. Merely because payment has been received by the complainant in pursuance of dismissal of appeal, revision petition cannot be dismissed.

11. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 1.11.2007 passed by learned State Commission in Appeal No. 334 of 2006 – LIC & Ors. Vs. Nita Bharadwaj is set aside and complaint filed by the respondent is dismissed with no order as to costs.

..………………Sd/-……………

(K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

(DR. B.C. GUPTA )

MEMBER

k



(Against the order dated 05.06.2012 in First Appeal No. 862/2012 of the State Commission Karnataka, Bangalore)

Life Insurance Corporation of India C.O. (Legal) Cell Delhi, H-39 (Ist Floor) New Asiatic Building, Connaught Circus New Delhi – 110001 Through Shri Balihar Singh Assistant Secretary (Legal)

… Petitioner

Vs

Smt. Shankravva w/o Mahadevappa Kadiwai r/o Hulikeri, S..P. Tq. Badami District – Bagalkot, Karnataka


BEFORE:



For the Petitioner : Ms. Jaya Tomar, Advocate

For the Respondent : Mr. Manish Gupta, Advocate

Dated : 22 nd January, 2014

ORDER


1. This revision is directed against the order dated 05.06.2012 in appeal no.862/2012 passed

by District Consumer Disputes Redressal Commission Bangalore.

2. Briefly put, relevant facts for the disposal of this revision petition are that daughter of

respondent complainant had taken an insurance policy for assured sum of Rs.30,000/- alongwith

other consequential benefits on payment of first premium of Rs.1522/- in October 2005. The

premium was to be paid on yearly basis. Though the complainant’s daughter was married, she

nominated the complainant as beneficiary under the insurance policy. On 08.06.2006, daughter

of the complainant respondent was murdered. The deceased assured left behind a minor female

child aged about seven years who is in the custody of the complainant. The complainant

preferred an insurance claim but the petitioner opposite party declined to honour the insurance

policy. This led to filing of the complaint.

3. The petitioner opposite party resisted the complaint. In the written statement, petitioner

admitted issuance of the insurance policy on receipt of premium of Rs.1522/-. The opposite

party, however, pleaded ignorance regarding cause of death of the assured and pleaded that as

per clause 4 (B) of the insurance policy, the nominee is entitled only to the return of the

premium.

5. The District Forum on consideration of evidence held the petitioner opposite party to be

deficient in service and allowed the complaint with following directions:

“Complainant’s complaint is allowed in part as follows:

1. OP shall pay an amount of Rs.30,000/- ( Rupees Thirty Thousand only) to

complainant as assured sum alongwith benefits i.e. vested bonus.

2. OPs shall pay a sum of Rs.15,000 (Rupees fifteen thousand only) towards mental

agony caused to the complainant.

3. Cost of complaint is Rs.500/- (Rupees five hundred only)

4. OP shall comply this order within a month from the date of receipt of order

failing which the amount shall carry interest @ 12% p.a. from the date of order

till payment is made.

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

6. Being aggrieved of the order of the District Forum, the petitioner opposite party preferred

an appeal which was dismissed by the State Commission in limine with following observations:

“Of-course, the appellant herein who appeared before the District Forum filed its

version admitted the insurance of the policy and receipt of the premium of

Rs.1522/- but pleaded with regard to the death of Dyamavva. As per clause 4 (b),

nominee is entitled only for refund of premium amount paid. The plain reading of

clause 4 (b) from the insurance policy, it reads below:

“Notwithstanding anything within mentioned to the ……….. accident other than

an accident in a public place or murder at any time on, or after the date on which

the risk under the policy has commenced but before the expiry or three years from

the date of this policy, corporation’s liability shall be limited to the sum equal to

the total amount of premiums”.

Therefore, considering the fact that the policy holder late Dyamavva met with a

homicidal death within eight months from the date of taking of policy, the murder

is to be considered as an accident. Therefore, the District Forum is right in

allowing the complaint filed by the respondent directing this appellant to pay sum

assured within benefits and Rs.15000/- towards mental agony and Rs.500/-

towards litigation expenses. Failure to comply the said order, the District Forum

rightly directed the appellant to pay interest as ordered. Therefore, viewed from

any angle, we don’t notice any prima-facie case to entertain this appeal. Since

we are dismissing the appeal on merits, the question of considering I.A. I to

condone the delay does not arise. Hence, appeal is liable to be dismissed.

Accordingly, we pass the following:

O R D E R

Appeal is dismissed at the stage of admission. No order as to costs”.

7. Ms. Jaya Tomar, learned counsel for the petitioner has contended that the orders of the

foras below are not sustainable being against the facts. Expanding on the argument, Ms. Jaya

Tomar, Advocate has contended that the impugned orders have been passed on incorrect

interpretation of clause 4 (B) of the insurance contract. Therefore, the impugned orders are

liable to be set aside.

8. Mr. Manish Gupta, Advocate, learned counsel for the respondent on the contrary has

argued in support of the impugned orders and submitted that the foras below have rightly

allowed the consumer complaint.

9. Only controversy for consideration in this revision petition is whether the petitioner

opposite party has rightly repudiated the claim in view of clause 4 (B) of the insurance contract.

In order to find answer to the aforesaid question, it is worthwhile to have a look on clause 4 (B)

which is reproduced thus:

“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 this policy has commenced but before the expiry or

three years from the date of this policy, the Corporation’s liability

shall be limited to the sum equal of the total amount of premiums

(exclusive of extra premiums, if any) paid under this policy

without interest. Provided that in case of life assured shall

commit suicide before the expiry of one year reckoned from the

date of his policy then provisions of the case under the heading

‘SUICIDE’ on the back of this policy shall apply.”

10. On bare reading of clause 4 (B) of the insurance policy it is clear that if the life assured

dies as a result of an accident, other than an accident in a public place or murder within three

years from the date of commence of the insurance policy the liability of the petitioner

Corporation is limited to the amount paid by the assured by way of premium under the policy. In

the instant case admittedly life assured died homicidal death on 8.6.2006 i.e. within one year of

the date of commencement of insurance policy. Thus, in our view foras below were wrong in

allowing the complaint of the respondent to the extent of the amount for which the assured

insured her life. The liability of the petitioner Insurance Company in view of Clause 4 (B) of the

insurance contract was restricted only upto the amount of premium paid by the assured.

Therefore, to that extent the impugned order cannot be sustained. However, the fact remains that

the petitioner Insurance Company as per the terms and conditions of the policy was required to

pay to the respondent the premium amount of Rs.1,522/- paid on 4 th October, 2005. From para-7

of the written statement filed by the petitioner before the Consumer Court it is seen that the

petitioner Company offered to pay to the amount of premium vide its letter dated 14.1.2011.

There is no cogent explanation as to why the petitioner took almost five years to offer the return

of the premium paid by the assured. This delay in making offer to refund the money in our

considered opinion is deficiency in service for which the petitioner is required to compensate the

respondent/complainant.

11. In view of the discussion above, the impugned order cannot be sustained. Revision

petition is partly allowed and impugned order is modified as under: -

“Petitioner is directed to pay Rs.1,522/- alongwith compensation of Rs.10,000/- for

mental trauma and harassment caused. Petitioner is directed to comply with this order

within one month.”

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

…………………………

(SURESH CHANDRA) MEMBERAm/


REVISION PETITION NO. 3626 OF 2011 WITH (I.A. NO.1 OF 2011, FOR C/DELAY)

(Against the order dated 25.11.2009 in Appeal No. 1000/1999 of the State Commission, Punjab, Chandigarh)

Manjinder Singh S/o Shri Ranjit Singh S/o Shri Nahar Singh Aged 21 years, R/o Village Jalaladiwal, Sub Tehsil Raikot, Distt. Ludhiana

....... Petitioner

Versus

1. Gurkeerat Hospital Ludhiana Road, Raikot, Distt. Ludhiana Through Dr.Manbir Singh

2. Dr. Manbir Singh of Gurkeerat Hospital Ludhiana Road, Raikot, Distt. Ludhiana …... Respondents

BEFORE:



For the Petitioner : Mr. Ashok Pathania & Mr.B.S.Sharma, Advs. with petitioner in person

For the Respondent : Mr. H.M.Singh, Advocate

Pronounced on : 23 rd January, 2014 ORDER

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

Petitioner/Complainant being aggrieved by order dated 25.11.2009, passed in First

Appeal No.1000 of 1999 by Punjab State Consumer

Disputes Redressal Commission, Chandigarh (short, “State Commission”) has filed the present

revision petition. Along with it, an application seeking condonation of delay has also been filed

in which no period of delay has been mentioned.

2. Reply to this application has been filed by the Respondents/Opposite Parties.

3. Brief facts are that Petitioner filed a consumer complaint against the respondents on the

ground of medical negligence claiming a sum of Rs.4.90 lakhs as compensation along with

future interest @ 24% p.a. from the date of complaint till realization.

4. The complaint was contested by the respondents.

5. District Consumer Disputes Redressal Forum, Ludhiana (short, “District Forum”) vide its

order dated 11.8.1999, partly allowed the complaint and directed respondent nos.1 and 2 to pay a

sum of Rs.60,000/- as compensation, whereas complaint against respondent Nos.3 and 4 was

dismissed with cost.

6. Being aggrieved, petitioner filed Appeal No.1000 of 1999 (Manjinder Singh

Vs. Gurkeerat Hospital & Ors.) whereas, respondent Nos.1 & 2 filed Appeal No.964 of 1999

(Gurkeerat Hospital & Anr. Vs. Manjinder Singh & Ors.)

7. The State Commission vide order dated 30.9.2002, dismissed the First Appeal No.964 of

1999 filed by respondent Nos.1 & 2. However, it allowed the First Appeal No.1000 of 1999

filed by the petitioner with cost of Rs.1,000/- and modified the order of District Forum.

Respondent Nos.1 & 2 were directed to pay a sum of Rs.4.90 lakhs as compensation.

8. Being aggrieved, respondents nos.1 & 2 filed Revision Petition No.1282 of 2003 before

this Commission. Both parties in that revision agreed that the case be remitted back to the State

Commission with a direction to refer the case to a Board of the doctors to obtain the expert

opinion on the subject. Accordingly, order dated 30.9.2002 of the State Commission was set

aside and the matter was remanded back to the State Commission for referring the same either to

PGI, Chandigarh or to Chandigarh Medical College, Sector-32. Thereafter, State Commission

vide its impugned order dated 25.11.2009, dismissed First Appeal No.964 of 1999 filed by

respondent Nos.1 & 2 and allowed the First Appeal No.1000 of 1999 filed by the petitioner.

Accordingly, it enhanced the amount of compensation from Rs.60,000/- to Rs.2 lakhs and

also awarded Rs.10,000/- as cost of the litigation.

9. Not satisfied with the order of the State Commission, petitioner has filed the present

revision petition for enhancement.

10. We have heard the learned counsel for the parties on the application for condonation of

delay and for that purpose have summoned the record of State Commission also. We have gone

through the entire records.

11. The grounds on which condonation of delay has been sought read as under ;

“2. That on 23.9.2011, the petitioner received a

show cause notice from Learned District Forum, Ludhiana, directing him

to present make himself in person or through on agent on 3.10.2011

regarding compliance of order dated 30.9.2002 passed by learned State

Commission below.

It would be pertinent to mention here that vide aforesaid order

dated 30.9.2002 the Appeal No.964/1999 of the respondent was dismissed

with cost of Rs.1,000/- and Appeal No.1000/1999 of the petitioner was

allowed, wherein petitioner was awarded as Rs.4.90 lakhs as

compensation along with cost of Rs.1,000/- and as such, it were the

respondents who were liable to pay compensation awarded to the

petitioner.

It is respectfully submitted that since there was no document

enclosed with the said notice, the petitioner was under the impression that

as vide order dated 30.9.2002, the Ld. State Commission had awarded

Rs.4.90 lakhs in his favour in which the petitioner had only received the

50% amount of compensation amount i.e. Rs.2.46 lakhs and the said

notice ought to be for release of balance compensation of Rs.2.46 lakhs

which the respondents would have deposited.

3. That the petitioner in compliance of the aforesaid notice appeared

before the Ld. District Forum, Ludhiana on 3.10.2011, through his

counsel and to his surprise hiscounsel was handed over the application

dated 25.8.2011 (P-11) moved by the respondent for execution of

impugned order dated 25.11.2009, passed in Appeal No.1000/1999,

thereby raising a claim of Rs.36,000/- from the petitioner.

4. That the petitioner contacted his counsel Shri Dinesh Malhotra,

Advocate at Chandigarh, who was his Ld. Counsel before the Ld. State

Commission below, who informed the petitioner that arguments were

heard in Appeal No.1000/1999 filed by the petitioner as well as, in

Appeal No.964/1999 filed by the respondents on 13.11.2009 and the

order was reserved and further informed that as and when the Ld. State

Commission pronounces the order, the copies of the same are sent

directly to the parties concerned and that he had no intimation about the

pronouncement of the order, as even the factum of pronouncement of the

order did not figure in the cause list and advised the petitioner to apply

for the copy of order in the Ld. State Commission, if the petitioner had not

received it earlier.

5. That the petitioner applied for the supply of certified copies of the

order dated 25.11.2009 deciding the above noted appeals along with

certified copy of other documents/orders.

6. That the petitioner collected the brief of his case from the previous

counsel and only after obtaining the certified copy of impugned order, he

came to know that although the Ld. State Commission vide common order

dated 25.11.2009 had dismissed the Appeal No.964/1999 of the

respondents and awarded Rs.2 lakhs as compensation in the said appeal

and further while allowing the Appeal No.1000/1999 of the petitioner, the

compensation of Rs.60,000/- as awarded by District Forum was

increased to Rs.2 lakhs as against Rs.4.90 lakhs awarded earlier and as

such, the petitioner was granted Rs.4 lakhs in all, apart from cost

amounting to Rs.10,000/- which total compensation was though short of

Rs.90,000/- awarded earlier. Nevertheless, the impugned order was

confusing and further as advised the petitioner is filing present revision

petition, before this Commission.

7. That under the peculiar facts and circumstances as briefly stated

above in this application, the accompanying main revision petition is

within limitation from the date of knowledge of impugned order.

However, it is further respectfully submitted that in the alternative

the petitioner is seeking the indulgence of this Hon’ble Commission with

prayer to condone the delay of ………. days in filing the Revision Petition

in the event this Hon’ble Commission in pleased to reckon the period of

limitation from the date of impugned order, i.e., 25.11.2009, which was

kept reserved purported to have been passed by the Ld. State Commission

below, hence this application.”

12. In reply, respondent amongst other has stated that the impugned order was passed on

25.11.2009 and the petitioner kept on sleeping over the matter and filed this instant petition after

being served with execution notice. The allegations made against Advocate are unwarranted and

uncalled for as he has been prosecuting his case since beginning. Further, District Consumer

Forum issued notice for execution since the petitioner failed to comply with the order dated

25.11.2009 of the State Commission. There is no question of surprise and respondents are

entitled for the refund of the sum withdrawn by petitioner with interest as the order of the State

Commission attained finality, being not assailed by either of the parties.

13. It is further stated that there is no date or month when Mr.Dinesh Malhotra was contacted

and the advice as allegedly given by the counsel. The order was applied only 20.10.2011 after 17

days of the appearance in execution application, which was ready on same date. The revision has

been filed on 3.11.2011 as reflected from index. There is a delay of more than two years, which

is inordinate and unexplained.

14. Further, the period of limitation would run from 25.11.2009 as per law and there is delay of

more than two years. The order dated 25.11.2009 itself says that order be communicated to the

parties and petitioner was accordingly informed and acquired knowledge in 2009 itself. The

petitioner was negligent in prosecuting his case and now does not want to pay back against

guarantee. He can’t be permitted to enrich after availing the benefit of the order of this

Commission.

15. It has been contended by learned counsel for the petitioner that, after the matter was

reserved for orders by the State Commission, petitioner has not received the copy of the

impugned order. It was only on 23.9.2011, when petitioner received a show cause notice from

the District Forum, Ludhiana, directing him to appear before that Forum on 3.10.2011 regarding

compliance of order dated 30.9.2002 passed by the State Commission, he came to know about

the impugned order. Immediately, thereafter petitioner applied for certified copy and has filed

the present revision petition on 3.11.2011. Thus, revision filed by the petitioner is within the

time. Even otherwise, the petitioner being aggrieved by the impugned order would not have

gained any advantage by not approaching this Commission.

16. It is further contended that now it is settled proposition of law that in administering justice,

the discretion of condoning delay vested in the Court of Law ought to be benevolently exercised

in favour of the aggrieved person like petitioner, who is a farmer from rural area. In support of

its contentions, learned counsel has relied upon the following judgments ;

(i) Mahesh Builders Vs. Sacheeta Co-operative Housing Society Ltd. (2010)

14 SCC 784 ;

(ii) Muneesh Devi Vs. Uttar Pradesh Power Corporation Limited and others

(2013) 10 Supreme Court Cases 478 and

(iii) N.Balakrishnan Vs. M.Krishnamurthy, (1998) 7 SCC 123.

17. On the other hand, it has been contended by learned counsel for the respondents that the

period of limitation would run from 25.11.2009, that is, the date of the impugned order. It is

further contended that the impugned order itself states that “order be communicated to the

parties.” Accordingly, the petitioner was informed. Thus, petitioner had acquired the knowledge

in the year 2009 itself.

18. Another contention raised by learned counsel for respondents is that, the petitioner has

nowhere stated as to on which date he had contacted his previous

counsel, Mr.Dinesh Malhotra nor the affidavit of previous counsel has been filed who has

allegedly given advice to the petitioner. Under these circumstances, no ground is made out for

condoning the long delay of about two years.

19. The short point which arise for consideration in the present case is as to whether the free

copy of the impugned order dated 25.11.2009, was supplied to the petitioner or not.

20. In order to decide this controversy, we had summoned the original record of the State

Commission, so as to ascertain when the free copy of the order was dispatched to the parties.

21. The State Commission in its impugned order has observed that “The arguments in these

cases were heard on 13.11.2009 and the orders were reserved. Now the

orders becommunicated to the parties.”

22. In order to see as to whether the aforesaid directions issued by the State Commission “that

orders be communicated to the parties” have been complied with by the Registry of the State

Commission or not, we also called for the report of the Registrar of the State Commission, who

in its report has stated ;

“that the copy of the order dated 25.11.2009 passed in FA No.964 of 1999 was got ready on 24.12.2009 vide Judgment Dispatch No.15541-15545 dated 24.12.2009. The copies of the order were sent/dispatched to the parties through registered post on 31.12.2009 vide Serial Nos.6769, 6739, 6809, 6810 and 6792 dated 31.12.2009 as per the register maintained for keeping record of sending the copies to the post office. Copies of the order dated 25.11.2009, Dispatch Register, Register for keeping record of sending the copies to the post office, are enclosed herewith for your kind perusal.”

23. As per the above report of the Registrar, it is manifestly clear that free copy of the

impugned orders were dispatched to the parties on 31.12.2009 which is also clear from the

copies of dispatch register placed on record. When the order has been dispatched by the

Registered Post, a presumption would be there that the letters sent by registered post shall be

deemed to have been delivered within thirty days, if the same are not received back

undelivered. There is nothing on record to show that the above noted registered letters sent to

the parties were received back undelivered. Under these circumstances, we have no hesitation in

holding that the free copy of the impugned order had been received by the petitioner latest by

30.1.2010. Therefore, if limitation is to be counted from 30.1.2010, then admittedly there is

delay of more than 20 months in filing of the revision petition before this Commission.

24. Furthermore, petitioner has not filed any affidavit of the previous

counsel, Shri Dinesh Malhotra, who was conducting the appeals before the State Commission

and in whose presence arguments were concluded on 13.11.2009 and

orders were reserved. When final arguments have been concluded in the presence of the counsel

for the petitioner and orders were reserved, then certainly it was the duty of the previous counsel

to have communicated this fact to the petitioner. Be that as it may, it was also the bounden duty

of the petitioner to have inquired from the State Commission or its counsel as to why the order

has not been conveyed to him for a period of more than 20 months. It appears that petitioner

went to in deep slumber and woke up only when he got notice with regard to execution

proceeding from the District Forum. It is well settled that a litigant has to pursue its litigation in a

careful and diligent manner and has to keep track of the appeal filed by him.

25. There is no dispute about the principles of law laid down in the various judgments (supra)

cited by learned counsel for the petitioner, that provisions for condoning the delay should be used

liberally. However, it is also well settled that “Sufficient Cause” for condoning the delay in each

case is a question of fact.

26. In “Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361”, it has

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

27. In “R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108”, Apex Court has

observed ;“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

28. Recently, 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”.

29. Here in the present case as already observed above, the copy of the impugned orders had

been dispatched to the petitioner by Registered Post. Thereafter, petitioner did not take any step

for more than 20 months to know about the status of the appeal filed by it before the State

Commission. Under these circumstances, petitioner itself was negligence, callous and careless.

Moreover, a valuable right has accrued in favour of the respondents in such circumstances.

30. Accordingly, we do not find any sufficient ground to condone the long delay of 20

months in filing of the present revision petition. Therefore, we dismiss the application

for condonation of delay. Consequently, the present revision petition being hopelessly barred by

limitation also stands dismissed.


32. Original record of the State Commission be sent back forthwith.

…………………..………J(V.B. GUPTA)

(PRESIDING MEMBER)

…………………...……….(REKHA GUPTA)

(MEMBER)

Sonia/


REVISION PETITION NO.515 OF 2013(From the order dated 05.01.2010 in F.A. No.1169/2002 of the U.P. State Consumer Disputes Redressal Commission, Lucknow)

SANTOSH KUMAR BAJPAI S/O LATE SHRI SHIV RAM BAJPAI R/O FARE SHOP NO.39,NAGAR NIGAM MARKET, SABZI MANDI, SAKET NAGAR, U.P.

.….. PETITIONER Versus

1. REGISTRATION U.P. HOUSING AND DEVELOPMENT COUNCIL, 104, MAHATMA GANDHI LUCKNOW ROUTE SECRETARY, U.P. HOUSING AND DEVELOPMENT COUNCIL, LUCKNOW. 2. U.P. HOUSING AND DEVELOPMENT COUNCIL OFFICE PROPERTY MANAGEMENT PLAN NO.2, HAMIRPUR ROAD, KANPUR.

....... RESPONDENTS BEFORE:



For the Petitioner : In person

For the Respondents : Mr.Rajiv Yadav, Advocate

PRONOUNCED ON: 23 rd January, 2014

ORDER


This revision petition has been filed to challenge the impugned order dated 05.01.2010

passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (‘ the State

Commission’, for short) in Appeal No. 1169 of 2002 whereby the State Commission

dismissed the appeal of the petitioner, who is also the complainant in this case. By its

impugned order, the State Commission while dismissing the appeal had upheld the order

dated 05.02.2002 passed by the District Consumer Forum, Kanpur City in Complaint Case

No.183 1997 by which the District Forum had partly allowed the complaint of the

petitioner. Along with the revision petition, the petitioner has also filed an

affidavit/application for condoning the delay of 1043 days in filing this revision petition.

2. We have heard the petitioner who has appeared in person and pleaded his case himself

and learned Shri Rajiv Yadav, Advocate appearing for the respondents.

3. As regards the delay, the petitioner has submitted that he is a poor person who could

not afford to engage a counsel to pursue his appeal before the State Commission and as such

he was pursuing it before the State Commission himself. However, in between because of

the death of his wife and also because of his poverty he could not keep a track of his appeal

pending before the State Commission which came to be dismissed by the impugned

order. He came to know about it after number of visits to the State Commission Office

which eventually resulted in the delay of more than three years. After coming to know of

the dismissal of his appeal with the help of some Advocate on 07.02.2013, he immediately

took action to file the revision petition with this Commission on 11.02.2013 and in the

process the delay in question has taken place which, according to him, was neither deliberate

nor intentional but because of his poverty, ignorance and personal difficulties in which he

was placed during the period.

4. The explanation given by the petitioner is vague and general without any documents to

support. He has not indicated as to when his wife died and on which dates he visited the

State Commission before and after the death of his wife to enquire about the status of his

appeal. In view of this, we do not accept the explanation given by the petitioner in support of

the delay and hence, the same cannot be regarded as ‘Sufficient Cause’ for condoning the

inordinate delay of 1043 days in filing this revision petition. This revision petition, therefore,

is liable for dismissal on this ground alone. However, since the petitioner was not

represented before the State Commission at the time of disposal of his appeal, we have

considered his case on merits as well.

5. Briefly stated, the factual matrix of this case are that the petitioner filed an application

for allotment of a house with the respondents in the year 1979 and deposited the requisite fee

of Rs.50/-. At that time, the estimated price of house was indicated as Rs.7500/-. After

registration of his application and a gap of 17 years, the respondents offered him House

No.1979 under the Hanspuram Kanpur Residential Scheme for which the petitioner deposited

a sum of Rs.2,000/- with UCO Bank, Kanpur on 26.08.1996. Later, the respondents asked

for payment of enhanced price of Rs.84,704/- vide letter dated 31.10.1996. The petitioner,

however, insisted on payment of the original price of Rs.7,500/- as determined in the year

1979 but his request was not accepted by the respondents. It was in these circumstances that

the petitioner filed a consumer complaint before the District Forum. The complaint was

opposed by the respondents and after hearing the parties and considering the evidence before

it, the District Forum rejected the request of the petitioner for allotment of the house at the

initial rate of 1979 but partly allowed the complaint by directing the respondents to refund

the amount of Rs.2,050/- to the petitioner along with interest @ 12% within a period of two

months in case the petitioner was not willing to accept the house at the enhanced rate of the

1996 as per the letter of the respondents.

6. Aggrieved of this order of the District Forum, the petitioner filed an appeal before the

State Commission which was dismissed by the State Commission vide its impugned order.

7. We may note that even though, the parties were not present before the State

Commission at the time of disposal of the appeal, the State Commission has considered the

matter on merits and recorded reasons in its order. While dismissing the appeal and

upholding the order of the District Forum, the State Commission has observed thus:“It is a long drawn settled view that the development authority has a right to

escalate the price of a plot or a house provided there is justification for it. In the

case in hand the price of the small houses for economically poor section of the

public was initially settled to be as Rs.7,500/- in the year 1979 but fixation of this

price was not determined for all times to come. With the passage of time the cost

of the building material, land and properties escalated and ten fold escalation in

the period of 17 years i.e. from the time the scheme was floated in the year 1979

and the Parishad’s offer for allotment made to the complainant vide its letter

dated 26.08.1996, was justifiable and sustainable. By no stretch of reasoning the

demand of the Parishad for the escalated price of the house can be said to be

unjust, unreasonable or untenable. The Parishad allotted its houses for the

economical weaker section of the society at the same price of Rs.84,704/- in the

year 1996 and there is no exception to the determination of the said price. The

complainant could not bring on record a single instance whereby a house built by

the Parishad for members of the economical poor section could have been

allotted at a lower price than quoted above in the latter part of the year 1996 or

subsequent thereto.

We are therefore of the decisive opinion that the demand of the escalated

price was just and reasonable and since the complainant himself committed a

default by not adhering there to he is not entitled to get any advantage of his own

default. His complaint has been rightly dismissed. No interference is required.”

8. The main contention of the petitioner on merits is that he had given the application for

the house in question in 1979 and deposited an amount of Rs.50/- for the purpose. He

submitted that at that time the price indicated was Rs.7500/-. Later on, when he received an

offer of allotment of the house in question, he deposited a further amount of Rs.2,000/- in the

year 1996. He submitted that in these circumstances, it was inappropriate and not justified

on the part of the respondent authority to increase the price of the house in question to

Rs.84,704/- in the year 1996 because they were going against their own commitment for

which he had submitted the application. It was his grievance that the District Forum and the

State Commission both failed to appreciate this aspect while rejecting his request for

directing the respondents to accept the initial price of Rs.7500/- rather than insisting on the

enhanced price. On the other hand, learned counsel for the respondents submitted that the

impugned order is appropriate in the given facts and circumstances and there was no reason

why it should be interfered with.

9. We have considered the submission of the petitioner but do not find any merit in it. In

the given circumstances, the view taken by the State Commission is fair and just and we do

not see any justification to interfere with the impugned order while exercising

the revisional jurisdiction under section 21 (b) of the Consumer Protection Act. The revision

petition, therefore, is dismissed with no order as to costs.

……………sd/-……..…


PRESIDING MEMBER

……………sd/-….………

bs



(From the order dated 14.11.2007 in First Appeal No. 2104/2006 of Madhya Pradesh State Consumer Disputes Redressal Commission)

Godrej Industries Limited Pirojshah Nagar Eastern Express Highway, Vikhroli Mumbai – 400079

... Petitioner

Versus

1. Smt. Ritu Bhargava w/o Shri Shekhar Bhargava r/o 5/2, Old Palasia, Indore – 452018.

2. SSKI Securities Ltd., 205 A, Phoenix House, Phoenix Mill Compound, Lower Parel, Mumbai through its Agent Shri Virendra Singh Bhandari, Junior, Yeshwant Niwas Palace, 1, Yeshwant Niwas Road, Indore

3. Chairman, Securities & Exchange Board of India Mittal Court Building, 1st Floor, 224, Nariman Point, Mumbai

4. National Securities Depository Limited, Trade World, 5th Floor, Senapati Bapat Marg, Lowerl Parel, Mumbai

… Respondent(s)



Smt. Ritu Bhargava w/o Shri Shekhar Bhargava r/o 5/2, Old Palasia, Indore – 452018.

... Petitioner

Versus

1. Godrej Industries Limited Pirojshah Nagar Eastern Express Highway, Vikhroli Mumbai – 400079.

2. SSKI Securities Ltd., 205 A, Phoenix House, Phoenix Mill Compound, Lower Parel, Mumbai through its Agent Shri Virendra Singh Bhandari, Junior, Yeshwant Niwas Palace, 1, Yeshwant Niwas Road, Indore

3. Chairman, Securities & Exchange Board of India Mittal Court Building, 1st Floor, 224, Nariman Point, Mumbai

4. National Securities Depository Limited, Trade World, 5th Floor, Senapati Bapat Marg, Lowerl Parel, Mumbai

… Respondent(s)

BEFORE

HON’BLE DR. B.C. GUPTA, PRESIDING MEMBER


RP No. 718 of 2008

For the Petitioner(s) Ms. Surekha Raman, Advocate

For the Respondent–1 Mr. M.S. Ganesh, Sr. Advocate

Mr. K. Seshachary, Advocate

For the Respondent–2 Mr. Sunil Negi A.M. (SSKI)

For the Respondent-3

Ms. Sandhya Kohli, Advocate (SEBI)

For the Respondent-4 NEMO

RP No. 2982 of 2008

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

Mr. K. Seshachary, Advocate

For the Respondent–1 Ms. Surekha Raman, Advocate

For the Respondent–2 Mr. Sunil Negi A.M. (SSKI)

For the Respondent-3

NEMO

For the Respondent-4 Ms. Sandhya Kohli, Advocate (SEBI)

PRONOUNCED ON : 23 rd JANUARY 2014 O R D E R

PER DR. B.C. GUPTA, PRESIDING MEMBER

This single order shall dispose of two revision petitions, RP No. 718/2008, “Godrej

Industries Limited versus Ritu Bhargava & Ors.” and R.P. No. 2982/2008, “Ritu Bhargava

versus Godrej Industries & Ors.” and a copy of the same may be placed on each file.

2. These two revision petitions have been filed under section 21(b) of the

Consumer Protection Act, 1986 against the impugned order dated 14.11.2007 passed by the

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

Commission’) in FA No. 2104/2006, “Ritu Bhargava versus Godrej Industries Ltd. & Ors.”, vide

which, while allowing the appeal, the order dated 04.09.2006, passed by the District Consumer

Disputes Redressal Forum, Indore, dismissing the consumer complaint no. 470/2004 was set

aside.

3. Brief facts of the case are that the complainant Ritu Bhargava, an Advocate at Indore, M.P.

held 45 fully paid up shares of `6 each of OP, Godrej Industries Limited, a public limited

company, duly incorporated under the provisions of the Indian Companies Act, 1956. In

February 2002, the OP Company framed a “Scheme of Arrangement” between the Company

and its shareholders which, among other things, provided for buy back of 40% of its shares. The

Scheme was approved under section 391 and 394 of the Companies Act by the High Court of

Judicature at Bombay. It has been stated that the objections to the scheme taken by the

Securities & Exchange Board of India (hereinafter referred to as ‘SEBI’) and the Central

Government were rejected by the High Court of Judicature at Bombay and the SLP filed by the

SEBI against the order of the High Court of Judicature at Bombay, was also dismissed by the

Supreme Court of India vide order dated 22.2.2006. The version given by the OP Company says

that after sanction of the Scheme by the High Court, it sent letters of offer to all its shareholders,

including the present complainant, intimating that unless the shareholders specifically

communicated their option to continue holding the shares, it would be presumed that consent

for buy-back of the shares had been given by them. The OP Company says that since the

complainant did not exercise any option to retain the shares, the Company exercised its right to

buy-back the complainant’s shares. They remitted an amount of `810/- to the complainant

through account payee cheque on 12.09.2002 at the price of `18 per share. It has been stated in

the complaint that the complainant did receive cheque no. 093334 dated 12.09.2002 for `810/-,

but she returned the said cheque vide her letter dated 26.09.2002. She sent a letter to the

Company saying that she neither received the alleged buy-back offer, nor did she exercise any

option for buy-back. It was stated that unilateral purchase of shares was illegal and amounted to

compulsory acquisition. The complainant requested that her shares should be re-credited to her

de-mat account. The Company, however, stated that they had acted in accordance with the

Scheme, duly approved by the High Court and there was no question of re-crediting the shares,

because the same already stood cancelled and the cancellation was also approved by the Court

vide order dated 28.11.2002. The complainant Ritu Bhargava preferred the consumer complaint

in question, alleging deficiency in service and claiming direction to the OP Company to return /

re-allot her shares. She also claimed compensation of `50,000/- for mental harassment etc. The

District Forum vide order dated 04.09.2006, dismissed the said consumer complaint. However,

on an appeal filed by the complainant before the State Commission, the order of the District

Forum was set aside and the learned State Commission directed the OP Company to credit the

shares to the de-mat account of the complainant and also to pay `5,000/- as compensation and

`25,000/- as cost of litigation. It is against this order that the present petition has been

made. The second revision petition, i.e., RP No. 2982 of 2008 has been filed by Smt. Ritu

Bhargava stating that relief should be granted to the petitioner as prayed for in her complaint and

the shares, in question, should be credited to her account and she should be compensated for

mental harassment etc.

4. At the time of hearing before us, the learned counsel for the Godrej Industries Limited has

drawn attention to the “Scheme of Arrangement” between Godrej Industries Limited and

shareholders of Godrej Industries Limited, saying that as laid down in the Scheme, not more than

2,46,88,014 equity shares, representing 40% of the paid-up equity capital of the company, were

to be purchased by the Company, unless the shareholders expressed their desire to continue

holding the shares and such desire was to be given in the shape of a written intimation to the

Company within 30 days from the Record Date. In case, the number of shares required to be

purchased as per above arrangement, exceeded the total number stated above, the purchase was

to be done by the Company on pro-rata basis. It was also stated in the Scheme that a cash

consideration of `18/- per share was to be paid to shareholders within 14 days from the date of

purchase of the equity shares. The equity shares thus, purchased were to be cancelled and the

share capital of the Company was to be reduced to the extent of face value of the equity shares so

cancelled.

5. The learned counsel stated that the petitioner Company framed the Scheme and filed a

Company Application No. 123/2002 in the Hon’ble High Court of Judicature at Bombay for

convening a meeting of the equity shareholders. The High Court by order dated 01.03.2002,

directed a meeting of the equity shareholders of the Company to be held at Mumbai on

6.04.2002. The Scheme was made known to the shareholders through notices and publications

but the complainant Ritu Bhargava did not prefer any objection to the Scheme. There was only

one objection from one Shri Kashi Nath Saha. The “Scheme of Arrangement” was approved by

a majority of the shareholders in the meeting whereafter, the petitioner filed Company Petition

No. 374/2002 before the Hon’ble High Court of Judicature at Bombay for sanction of the said

Scheme. The High Court vide their order dated 06.06.2002 was pleased to make the petition

absolute in terms of prayers in the said petition. It has been observed in the said order of the

High Court dated 06.06.2002 that the Regional Director, Department of Company Affairs,

Maharashtra, Mumbai had some reservations, namely, that the Company could have availed of

the alternative relief available under section 77A and 198A of the Companies Act, 1956 to buy-

back the shares. However, the High Court did not find the observations as sustainable. It has

also been stated in this very order of the High Court that one Kashi Nath Saha addressed a letter

to the court contending that the relief should not be allowed, but the said Shri Saha was not

present before the court. The objections were rejected by the Hon’ble High Court.

6. The record date as per the Scheme was 26.07.2002, which was duly intimated to the stock

exchange on 26.06.2002 by an advertisement in the newspapers on 18.07.2002, giving details of

the record date and suspension of trading.

7. During the said period, another Company, M/s Sterlite Industries had also brought out a

similar Scheme, which was also sanctioned by the Hon’ble High Court of Judicature at Bombay.

8. In the meanwhile, the SEBI preferred an appeal to the Division Bench of the Hon’ble High

Court of Judicature at Bombay against the order dated 6.6.2002 giving sanction to such Scheme

on the ground that the sanction had been granted without following the procedure prescribed

under section 77(A) of the Companies Act, 1956 and SEBI Regulations for buy-back of the

shares by a listed public company. Further as per the Scheme, the silence of the shareholders

was to be treated as an offer. Unless there is positive assent of the shareholders to transfer his

shares, no transfer can be treated as valid. An appeal was also filed in the case of M/s Sterlite

Industies as well.

9. The Division Bench of the High Court in the case of Sterlite Industries dismissed the

appeal on 15.07.2002. Thereafter, appeal in the case of M/s Godrej Industries was also ordered

to be dismissed by orders dated 30.07.2002 of the High Court.

10. The SEBI preferred Special Leave Petition No. 16267 of 2002 before the Supreme Court

of India but the Supreme Court. The Hon’ble Court heard the matter as Civil Appeal No. 5438

of 2002, but refused to interfere in the orders passed by the High Court and disposed of the

appeals. The learned counsel argued that since the issues involved in the present case are

similar, it is clear that the Scheme made by the Godrej Industries Limited had the approval of the

Supreme Court as well.

11. Pursuant to the sanction of the Scheme, the Company sent Option forms to all equity

shareholders and thereafter, the shares belonging to those shareholders who did not respond,

were cancelled in accordance with the Scheme. Since the complainant did not exercise her option

to retain the shares, her shares were also cancelled and an account payee cheque of `810/- was

sent to the complainant, but she returned the same with a request to re-credit the shares in her

account.

12. Learned counsel pleaded that since the Record Date in this case was 26.07.2002, meaning

thereby that the options were to be received from the shareholders within 30 days, i.e., before

24.08.2002, the petitioner sent a letter to the complainant by registered post, dated 21.10.2002

saying that they could not accept her request for continuing as shareholder of the company,

because the shares had been purchased in accordance with the Scheme approved by the High

Court. Learned counsel stated that the complainant was very well aware about the contents of

the Scheme because public notice had been given about the Scheme. Moreover, the shares in

question, had already become extinct and hence, they could not be credited to the de-mat account

of the complainant in accordance with the order passed by the State Commission. The learned

counsel stated that there had been no deficiency in service on their part and hence, the petition

filed by them should be allowed. Learned counsel has also drawn attention to entry no. 31549

regarding postal dispatch of the letter of offer to the complainant vide ID No.

IN30051310165988.

13. In reply, learned counsel for the complainant/Ritu Bhargava stated that Option Form stated

to have been sent by the Company had never been received by them and hence, there was no

question of sending any intimation about retaining the shares to the Company. The learned

counsel has drawn attention to the observations of the District Forum in para 13 of their order

dated 04.09.2006 saying that the District Forum had simply presumed that the version of the OP

regarding sending of offer letter was true.

14. Learned counsel also referred to the observations of the State Commission that there was

no evidence of actual delivery of letter to the complainant from the OP Company. Referring to

the order passed by the Supreme Court of India on 22.2.2006, the learned counsel stated that the

Supreme Court had only observed that SEBI could raise their submissions in appropriate case

before appropriate forum and such forum could consider these questions in the light of legal

provisions. It could not be stated therefore that the Supreme Court had granted their approval to

the Scheme. The learned counsel further argued that holding of shares of a Company was

similar to possessing a property and the same could not be purchased by the Company in the

manner, stated by them. Moreover, it was obligatory on the Company to send the letter of offer

by registered post, but it was not done. Further, there was no public notice after the Scheme was

sanctioned. The learned counsel vehemently argued that there could not be any implied consent

for the buy-back and in support of his arguments, he referred to the following orders, passed by

Hon’ble Supreme Court:-

(a) “Samira Kohli versus Dr. Prabha Manchanda & Anr.” reported in [2008 (2) SCC 1]

(b) “Ghisa Lal versus Dhapu Bai & Ors.” reported in [2011 (2) SCC 298]

(c) “Bhagwan Das Goverdhan Das Kedia versus Girdharilal Parshottam Das & Co. and Ors.,

as reported in [AIR 1966 SC 543]”

(d) “Central National Bank versus United Industrial Bank” reported in [AIR 1954 SC 181]

(e) “P. John Chandy & Co. versus John. P. Thomas” reported in [2002 (5) SCC 90]

15. Learned counsel for the complainant further argued that as per section 4 & 5 of the

Depositories Act, 1996, when there was an agreement between depository and participant, the

complainant cannot be compelled to sell her shares, as there was a contractual relationship

between the parties.

16. Learned counsel for SEBI stated that the complainant was not a consumer, vis-a-vis, them

because there was no privity of contract between the complainant and SEBI. SEBI is a statutory

body playing the role of a regulator and hence, it is not providing service to the shareholders.

17. In reply, learned counsel for the OP Company stated that it was clear from the order of the

Supreme Court dated 22.02.2006 that the Company could go-ahead with the implementation of

the Scheme. The Company had, therefore, acted in accordance with provisions of the Scheme

and the procedure laid down in the Companies Act. At the present juncture, when the Scheme

had attained finality, it was not possible to upset any provisions of the said Scheme.

18. I have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before me.

19. The basic issue raised by the complainant, Ritu Bhargava, in this case revolves around the

proposition, whether she can be made to sell her shares to the Company without her

consent. The complainant has pleaded that it is a contractual relationship between her and the

Company and she cannot be compelled to sell her shares unless she wants to do so.

20. From the version given by the OP, M/s. Godrej Industries Limited and from the documents

produced on record, it is made out that the “Scheme of Arrangement” between the Company and

its shareholders, as framed by the Company, was duly approved in the General Body Meeting of

the shareholders of the Company and then approved by the High Court of Judicature at Bombay

vide their order dated 6.6.2002. A perusal of this ‘Scheme’ makes it clear that unless a

shareholder indicates by a written intimation within 30 days from the Record Date of his

intention to continue holding the equity shares, such equity shares shall be deemed to be

purchased by the Company and also transferred in their name as per clause 4.5 of the

Scheme. At the time of approval of the Scheme, objections were raised, saying that alternative

relief available under section 77(A) and 198(A) of the Companies Act, 1956 to buy-back the

shares should be followed, but the High Court did not find these observations sustainable. The

matter was considered by a Division Bench of the High Court in the case of “Sterlite Industries”

and it has been mentioned in the order passed by the Division Bench on 15.07.2002 that it was

pleaded before them on behalf of the SEBI and Central Government that unless there is a

positive assent of a shareholder to transfer his shares, no transfer can be treated as valid. Learned

counsels for the SEBI and Central Government pleaded before the High Court that clauses 4.1 to

4.8 of the Scheme treat the silence of the shareholders as an offer and this was violative of

section 108 of the Companies Act, the Depository Act, 1996, the SEBI (Depository and

Participants) Regulations Act, 1996 and the Bye-laws framed by NSDL under the Depositories

Act. The Scheme would also violate the SEBI (Disclosure and Investor Protection) Guidelines,

2000. It was pleaded, however, by the counsel for the Company that an arrangement under

section 391 of the Companies Act is essentially contractual in nature and unless there is illegality

or fraud involved in the Scheme, the Court cannot decline to sanction the Scheme. The Division

Bench in their order dated 15.07.2002 have listed the following points for their consideration:-“i) Whether the appeals filed by the Central Government and the

SEBI are maintainable in law?

ii) Whether the Company Court has power to grant reorganisation scheme under section 391 read with sections 100 to 104 empowering the company to buyback the shares from the shareholders or whether section 77A is the only mode to buyback the shares?

iii) Whether the scheme sanctioned by the company court is

contrary to any provisions of law or is unconscionable and unfair and against the interest of the shareholders?”

21. The Hon’ble High Court after consideration of the entire issue declined to entertain the

objections raised by the SEBI and the Central Government and dismissed their appeal, meaning

thereby that the order passed on 06.06.2002 by which the deemed or indicative consent was

permitted, was upheld. A similar order was passed on 30.07.2002 in the case of the present OP,

M/s. Godrej Industries Limited also. It is made out that the matter went to the Hon’ble Supreme

Court also by way of SLP filed by the SEBI, but vide their order dated 22.02.2006, no change

was made in the order passed by the High Court.

22. In view of the position narrated above, when the Scheme has been duly approved at the

level of Hon’ble High Court and the Hon’ble Apex Court, the right of the Company to take

action according to the provisions of the Scheme, cannot be challenged in the present revision

petition. It is held, therefore, that the Company was well within their rights to proceed in

accordance with the Scheme duly approved.

23. The other important issue is whether the Company took appropriate steps to inform the

shareholders about the Scheme, seeking their option for continuing to hold the shares or

not? The Company has taken the stand that theRecord Date of 26.07.2002 was decided by the

Board of Directors of the Company and duly intimated to the stock exchange on 26.06.2002 and

also by an advertisement in newspapers on 18.07.2002. A communication was issued to the

shareholders under “Certificate of Post”. In this regard, the OP Company has filed an affidavit

of Shri Suresh Gandhi, partner of the service agent, “Prompt Services, Mumbai,” together with

register of U.C.P. from which the relevant extract, evidencing proof of mailing has been

produced. It has been mentioned against serial number 31549 and ID No.IN30051310165988

that the option letters for buy-back were sent to Ritu Bhargava at her address in

Indore. However, the version taken by the complainant is that she never received the option

letter. In view of the documents produced on record by the Company, it is made out that they

sent option letters to all the shareholders and they have taken action in accordance with the

provisions of the Scheme as duly approved. The complainant is, therefore, not entitled to the

relief on the account that she could not exercise her option to retain the shares.

24. In view of the position explained above, it is held that the only relief that can be granted to

the complainant is the payment of the value of the shares as on Record Date. The Company

already made two attempts to make payment of `810/- to the complainant, but she refused to

accept the said amount. The Company is directed to make payment of `810/- (the value of 45

shares @18/- as per share) to the complainant again. As the said amount has been lying with the

company since the date from which the payment became due, it shall be appropriate that the

Company make payment of `810/- alongwith interest @12% p.a. from the date of payment of

first offer to the complainant, i.e., 12 September 2002.

25. With the above observations, the revision petition no. 718 of 2008, filed by Godrej

Industries Limited is allowed and the order passed by the State Commission is modified as stated

above. The revision petition filed by Ritu Bhargava, i.e., RP No. 2982 of 2008 is ordered to be

dismissed. There shall be no order as to costs.

Sd/-

(DR. B.C. GUPTA)

PRESIDING MEMBERRS/



(From the order dated 05.07.2012 in First Appeal No. 90/2012 of U.T. Chandigarh State Consumer Disputes Redressal Commission)

Mr. Aditya Kumar r/o Mohalla Kotla, Near P.W.D. Guest House, Town Gangoh, District Saharanpur (U.P.)

... Petitioner

Versus

M/s. Worldwide Immigration Consultancy Services Ltd., (WWICS Ltd.) Head Office at A-12, Industrial Area, Phase – 6, Mohali.

… Respondent

BEFORE



For the Petitioner Mr. Deepak Aggarwal, Advocate

For the Respondent Mr. Sunil Goyal, Advocate

PRONOUNCED ON : 23 rd JANUARY 2014 O R D E R


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

1986 against the impugned order dated 05.07.2012, passed by the Chandigarh State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 90/2012, “M/s

Worldwide Immigration Consultancy Services Ltd. versus Aditya Kumar”, vide which,

while accepting appeal, the order dated 12.12.2011, passed by the District Consumer Disputes

Redressal Forum-I, U.T. Chandigarh, allowing the consumer complaint, was set aside.

2. Brief facts of the case are that the petitioner/complainant, with an intention to settle

permanently in Canada as a skilled worker, approached the respondent/OP for availing himself

of their services, for helping him in the immigration process. He deposited a sum of `25000/-

with the OP for professional services and later on, paid 1400 canadian dollars and a sum of

`19,000/-. An agreement dated 13.06.2004 was also signed between the parties,detailing the

duties of the OP company and those of the client. It has been stated in the complaint that on

demand by the OP, the complainant submitted all requisite documents to them for assessing his

case for immigration. The OP forwarded the case of the complainant to the Canadian High

Commission at New Delhi vide their letter dated 27.08.2004, enclosing therewith various

documents required. This letter was sent under the signatures of Mr. Parvinder Sandhu, Senior

Director, WWICS Limited, Chandigarh. Simultaneously, the OP wrote to the complainant that

other documents like valid passports for applicant and his family and police clearance

certificates of applicant and his spouse were required within 30 days for sending the same to the

Canadian High Commission. The complainant was also advised to get some other documents

ready and to make arrangements for certain events as detailed in the said letter dated

27.08.2004. It was also stated in this letter that he should get International English Language

Tests Score (IELTS) certified with minimum 7 grades in each para to prove his English

proficiency within 90 days of the issue of the letter. The Canadian High Commission sent a

letter on 08.10.2004, acknowledging the receipt of the application for permanent residence in

Canada. Later on, the Canadian High Commission sent a letter dated 13.10.2008, asking for

some more documents. It is the case of the OP that the said letter was forwarded to the

complainant by registered post on 13.10.2008 itself. However, his application for immigration

was rejected on 02.06.2009 by the High Commission. The WWICS informed the complainant

by registered post on 09.07.2009, regarding rejection of the application for non-submission of

documents as asked for by the High Commission. The complainant filed the consumer

complaint before the District Forum on 29.09.2010, alleging deficiency in service, deceptive and

restrictive trade practice etc. against the OPs and demanded damages and compensation to the

tune of `5 lakh in addition to a refund of the sum of `25,000/-, 1400 canadian dollars and

`19,000/- deposited by him alongwith interest @24% p.a. The District Forum vide their order

passed on 12.12.2011, found the OP company deficient in service in providing proper service to

the complainant and directed them to refund a sum of `25,000/-, 1400 canadian dollars and a

further sum of `50,000/- as compensation for mental agony and harassment, apart from `10,000/-

as litigation cost. An appeal filed against this order before the State Commission was however,

accepted and the order of the District Forum was set aside. The present revision petition has

been made against this order of the State Commission.

3. At the time of hearing, the learned counsel for the petitioner has drawn attention to the

grounds of revision petition and the contents of the consumer complaint, saying that the

petitioner made payment to the OPs as detailed above and also entered into two agreements with

them, regarding availing their services for helping him in getting immigration to Canada. In the

agreement dated 13.06.2004 between the complainant and WWICS, the duties of the Company

as well as client have been clearly laid down. The second agreement is a ‘contract of

engagement’ entered between the complainant and Global Strategic Business Consultancy,

Dubai, UAE, in which the details of services, charges to be paid and duties of the client have

been listed. It is stated that Mr. Parvinder Sandhu is a member of Canadian Society of

Immigration Consultants, having registration/Membership No. M-041642. The learned counsel

mentioned that there were basically three issues involved in the matter, namely:-

(i) Non-supply of documents to the OPs by complainant;

(ii) Not impleading Global Strategic Business Consultancy as a party;

and

(iii) Non-refund of amount of `19,000/- as this amount had been paid to

the Canadian High Commission.

4. Regarding the issue of non-submission of documents, the learned counsel stated that the

proof of proficiency in English Language had already been furnished to the OP, and the same

had been sent by them to the Canadian High Commission as Annexure – 4 with the letter dated

27.08.2004. It has been stated in their agreement dated 13.06.2004 with the WWICS, that the

candidate should have high proficiency in English and he should have cleared IELTS or any

other tests as laid down by the Immigration Authorities. It was, therefore, not necessary that

complainant should have cleared IELTS only. Further, the OPs have clearly stated in the letter

dated 27.08.2004 sent to the Canadian High Commission that the complainant had 67 units of

assessment, which are the minimum points required to qualify for immigration. This includes 16

points for knowledge of English language as well. The learned counsel has argued that if the

case of the complainant was not complete or any documents were required to be taken from him,

the OP could have pointed out the same to him, before sending the case to the High

Commission. It was clear, therefore, that there was clear deficiency in service on the part of the

OP. Regarding the letter dated 27.08.2004, stated to have been sent by the OP to the

complainant, the learned counsel stated that the said letter was never received by the

complainant. Further, the E-mail message received on 13.10.2008 from the High Commission,

asking for more documents and information, stated to have been sent by the OP to the

complainant was never received by him, as it was not sent on correct address. The learned

counsel stated that the permanent mailing address of the complainant is that of District

Saharanpur, U.P. The current mailing address at the time of filling the application form at

WWICS on 28.05.2004 was of Manimajra, Chandigarh, but it is not the address given in the

agreement. It was, therefore, the duty of the OP to send the letter received from the High

Commission after a gap of 4 ½ years to the permanent address, but it was not done.

5. Referring to the second issue about the non-impleading of Global Strategic Business

Consultancy as a party, the learned counsel stated that these two Companies belonged to the

same person and it was clear from record that Mr. Parvinder Sandhu was the main person,

handling the affairs of both the companies. There was therefore no need to make Global

Strategic Business Consultancy as a party.

6. Regarding the issue of non-refund of `19,000/- stated to have been paid to the Canadian

High Commission, learned counsel stated that the said amount should also be reimbursed to the

complainant.

7. In reply, the learned counsel for the respondent has drawn our attention to the order passed

by the State Commission, saying that, right from the very beginning and as per the agreement,

the complainant had been asked to submit the record/result of IELTS, but he never provided

them the IELTS score. It had been stated in clause 2(J) of the agreement between the

complainant and OP that high proficiency in English Language was required. It has also been

stated in the letter dated 13.10.2008 from the High Commission that IELTS language test should

be taken to prove proficiency in English language. The learned counsel stated that the

respondents had not indulged in any deficiency in service and that his case was rejected due to

non-submission of documents by him.

8. Referring to the non-impleadment of Global Strategic Business Consultancy, the learned

counsel stated that both the Companies were separate legal entities. One single person could be

a Director of more than one Company, but that does not mean that the second Company should

not be impleaded as a party.


arguments advanced before me.

10. As per the record, the agreements were signed by the petitioner with M/s Worldwide

Immigration Consultancy Services Ltd. (WWICS Ltd.) and Global Strategic Business

Consultancy on the same date, i.e., 13.06.2004. It is borne out from record that Mr. Parvinder

Sandhu, stated to be a member of the Canadian Society of Immigration Consultants (CSIC),

having registration/membership number M-041642, is actively handling both these Companies,

and it is under his signatures that the case for grant of the required visa was sent to the Canadian

High Commission, New Delhi on 27.08.2004. The client’s address for delivery has been

mentioned as, “Worldwide Immigration Consultancy Services Ltd., SCO 2415-16, Sector – 22

C, Chandigarh – 160022, India.” The duties of the Company as well as the duties of the client

have been mentioned in the said agreement. In nutshell, these Companies are providing services

for helping the prospective clients to obtain visa from the Canadian High Commission and for

that purpose, they are charging the requisite fees. It has been mentioned in the contract that the

Company shall be responsible for the preparation of the case for immigration, assist in the

completion of all required documents and supporting evidence, submission of case, handling all

visa correspondence and monitoring the case to ensure timely issuance of permanent visa.

11. In the present case, the material on record shows that the WWICS sent the case for the

grant of permanent visa to the petitioner on 27.08.2004. It has been stated in this letter dated

27.08.2004 that the proof of English language proficiency had been attached with this

application. Only the following documents are stated to have been not included with the

application:-

(i) Photocopy of passport of all applicants.

(ii) Police Clearance Certificate of PA and spouse,

(iii) Proof of funds.

12. Regarding the knowledge of English, it has been stated in the said letter that, “he has

studied in English medium throughout schools and college. He has done degree of Bachelor of

Arts with English as medium of Instruction. At his workplace, verbal and written

communication is done in English Language. Therefore, his proficiency in English language is

fluent.

Self-certification in English language and relevant certificates from colleges & current employer

are attached with Annexure-4 as per your CIC website specifications (www.cic.gc.ca). Mr.

Aditya Kumar is appearing for IELTS test and result would be forwarded at a later date.

http://www.cic.gc.ca/

13. In this very letter, it has been categorically stated that the summary of total units of

assessment in his case says that he has 67 points to his credit, based on his education, experience,

age and knowledge of English language. The minimum points required to qualify are also 67.

14. It has further been brought out from record that on the same date, i.e., 27.08.2004, when

the case was sent to the Canadian High Commission, the WWICS wrote a letter to the petitioner

Aditya Kumar, asking for documents, copies of passport and police clearance certificate, within

a period of 30 days. It has also been stated that he must get IELTS score certified with minimum

7 grades in each para. According to the petitioner, he never received the said letter. However,

even if the version of the OP is believed that they sent the said letter to the petitioner asking for

more documents, it is not understood as to why they forwarded the case for immigration visa to

the Canadian High Commission, if the documents were not complete. It was the duty of the

WWICS to ensure that all documentation was completed before sending the case to the Canadian

High Commission.

15. There is copy of another letter dated 8.10.04 placed on file, although it seems to be an

incomplete letter by which the Canadian High Commission is stated to have informed

the applicant that they had received his application and created a file number. The petitioner,

however, says that he never received this letter. Later on, after a period of good 4½ years, there

is an e-mail letter dated 13.10.2008, received by the WWICS from the Canadian High

Commission, saying that some more documents were required and advice has been given to take

the IELTS language test. The OP says that the said letter was sent to the petitioner at his

Chandigarh address, whereas the petitioner says he is ignorant about this letter. He used to

reside at his permanent address in District Shahranpur and the same address was quoted in the

agreement. Thereafter, vide another letter dated 2.06.2009, addressed to the petitioner c/o

WWICS, the Canadian High Commission rejected his visa application. The said letter was sent

by M/s WWICS to the petitioner by registered post at his Chandigarh address.

16. From the above facts on record, it is not clear as to what steps were being taken by the OP,

during all these years to have correspondence with the Canadian High Commission or to monitor

his case from time to time, or to advise the client, regarding the progress of the case. It is very

clear that after 27.08.2004, the OP have not taken any steps to monitor the fate of the visa

application. Even after the receipt of letter dated 13.10.2008, they do not seem to have taken any

effective steps to ensure that the requisite information was supplied to the Canadian High

Commission. The only step taken by the OP seems to be the issuance of letter dated 27.08.2004

to the Canadian High Commission and simultaneously, a letter to the client seeking more

documents. It is quite obvious that this is a case of clear-cut deficiency in service. When the OP

was acting on behalf of the client after charging the necessary fees, it was required to play a pro-

active role by taking up the matter with the High Commission for the grant of visa. It is obvious

that the OP failed to perform that role and hence, the District Forum has rightly held it to be

guilty of deficiency in service. In so far as the payment of `19,000/- by the petitioner to the OPs

for sending the same to the Canadian High Commission as visa processing fee is concerned, the

same has not been allowed by the District Forum in their order dated 12.12.2011. The petitioner

did not file any appeal challenging this part of the order by which the sum of `19,000/- was not

allowed to be refunded. There is no ground, therefore, to allow refund of this amount in the

present revision petition.

17. For the reasons stated in the preceding paragraphs, this revision petition is ordered to be

allowed and the order passed by the State Commission is set aside. The petitioner shall be

entitled to the refund of the amount of the compensation as ordered by the District Forum vide

their order dated 12.12.2011. There shall be no order as to costs.Sd/-

(DR. B.C. GUPTA)

PRESIDING MEMBERRS/


REVISION PETITION NO. 2052 OF 2009 WITH

(I.A. NO. OF 2009, FOR C/DELAY)

(Against the order dated 30.08.2007 in Appeal No.630/2005 of the State Commission, Punjab, Chandigarh)

Ludhiana Improvement Trust Through the Executive Officer Ludhiana (Punjab)

....... Petitioner

Versus

1. Harbhajan Singh

2. Hari Singh

3. Prem Singh

4. Kuldip Singh

All above sons of Joginder Singh S/o Pholo Singh All residents of Village – Sunet, Tehsi & District Ludhiana, Punjab

5. State of Punjab Through its Principal Secretary Local Self Govt., Civil Secretariat Sector-9, Chandigarh

…... Respondents

BEFORE:



For the Petitioner : Mr. Suresh C.Gupta, Advocate with

Mr. Harbans Singh, Sr. Assistant of the Trust

For the Respondent : Mr. S.S.Salar, Advocate

Pronounced on : 27 th January, 2014 ORDER

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

Present revision petition has been filed by the Petitioner/Opposite Party No.2 against the

order dated 30.8.2007, passed in First Appeal No.630 of 2005 by Punjab State Consumer

Disputes Redressal Commission, Chandigarh (short, “State Commission”).

2. Along with it, an application seeking condonation of delay has also been filed by the

petitioner. However, in the entire application, no period of delay has been mentioned at all.

3. Brief facts are that Respondents Nos.1 to 4/Complainants filed a consumer

complaint against the petitioner as well as Respondent No.5/Opposite Party No.1 seeking

direction to the petitioner and respondent No.5 to allot and handover plot measuring 411 sq.

yards in lieu of the acquired area measuring 454 sq. yards.

4. Petitioner as well as respondent No.5 contested the complaint.

5. District Consumer Disputes Redressal Forum, Ludhiana (short, “District Forum”) vide its

order dated 4.11.2004, dismissed the complaint.

6. Aggrieved by the order of the District Forum, respondent Nos.1 to 4 filed an appeal before

the State Commission, which allowed the same, vide its impugned order. It directed the

petitioner to pass an order of allotment of suitable plot of 400 sq. yards. to respondent Nos.1 to 4

under Kartar Singh Sarabha Nagar Scheme. In case, the plot is not available, respondents No.1

to 4 may be allotted a plot in another scheme which may have been framed by the petitioner.

7. Aggrieved by the order of the State Commission, petitioner has filed the present revision

petition.

8. Though, petitioner has not mentioned the period of delay. However, learned counsel for

petitioner has submitted that there is delay of 515 days in filing of the revision petition.

9. We have heard the learned counsel for the petitioner as well counsel for respondent Nos.1

to 4 on the application for condonation of delay.

10. Grounds on which condonation of delay has been sought read as under;

“2. That the final order in the above matter was reserved for 24.8.2007 and was decided/final order was passed on 30.8.2007, and as per the order/rules the same was to be communicated to the petitioner by the Registry of the State Commission, Punjab, free of cost, but however, the same was never received by the petitioner – trust.

3. That on 27.2.2009, official of the petitioners received the summons from the Hon’ble District Consumer Ludhiana, for the first time, in Execution Petition No.117/2008 and only then the petitioner came to know that the above matter had been decided by the Hon’ble State Commission, Punjab on 30.8.2007, itself.

4. That thereafter, the petitioner contacted his counsel Shri Pradeep Bhandari at Chandigarh to know about the case

and he informed that the orders of Hon’ble State Commission are sent directly to the parties and not to the counsel(s).

5. That on 4.3.2009, the office of the petitioner – Trust wrote a letter to the Government of Punjab for getting the sanction and approval of the name of advocate for filing appeal/revision before this Hon’ble Commission and the Government of Punjab, vide order dated 16.3.2009, sanctioned the name of the present counsel and the same was received by the office of the petitioner – Trust on 27.3.2009.

6. That thereafter the relevant case files/documents were collected from the office of Shri Pradeep Bhandari, Advocate at Chandigarh and the same was sent to the present counsel on 4.4.2009 for preparing/filing the appeal.

7. That the present counsel prepared/drafted the present petition and sent the same on 10.4.2009 for perusal and signature etc. to the office of the petitioner – Trust.

8. That, however, from 15.4.2009 the Legal Superintendent of the petitioner – Trust proceeded on leave, and all the relevant papers remained in his custody.

9. That, in the meantime, on 2.4.2009, the official of the petitioner – Trust had applied for the certified copy of the impugned order which was prepared and delivered to them on 2.4.2009 itself.

10. That on 30.5.2009, a telephonic message from the office of present counsel was received by the petitioner – Trust that a draft revision petition namely Ludhiana Improvement Trust Vs. Harbhajan Singh & etc. was sent to the petitioner – Trust and same had not been received back till date so needful be done immediately. Acting upon this telephone message, official of the petitioner – Trust approached the present counsel for finalization of the revision petition. Accordingly, the present petition was redrafted and is being filed before this Hon’ble Court. However, during this process delay of ……days has occurred which in respectful submission of the petitioner is not intentional but bonafide due to the reasons mentioned above.”

11. Respondents Nos.1 to 4 in their reply to the application amongst other, have stated ;

“The order of the State Commission was received in the office of the Improvement Trust, Ludhiana on 15.10.2007 at Sr.No.2492. A copy of the receipt register duly supplied by the Improvement Trust, Ludhiana is attached as Annexure R-1. The order has been entrusted to the Law Officer against signatures. It may be mentioned that the impugned order was dispatched by the Hon’ble State Commission on 11.9.2007 vide Sr.No.2710 to the State of Punjab and 2711 to the Ludhiana Improvement Trust. Not only this, after the expiry of limitation, the answering respondent being power of attorney made an application to the Principal

Secretary for compliance of the order. This was duly received by the Principal Secretary. The comments were sought from the Improvement Trust, Ludhiana vide memo No.5/127/08-12/1 LG2/5403 dated 26.6.2008. This letter was also duly received by the Improvement Trust, Ludhiana. However, the Improvement Trust did not make any progress. A copy of the representation and the letter 26.6.2008 are attached as Annexures R-2 and R-3 respectively. When, the Improvement Trust did not take any action, an execution application was filed on 10.9.2008. The notice was received by the Trust on 10.10.2008. No appeal was filed either after receiving the order from the State Commission on 15.10.2007 nor after receiving the letter dated 26.6.2008. The appeal was not even filed after receipt of the execution notices under Section 27. In this way, the Improvement Trust never decided to file any revision for the reason that the case was covered by Shakuntla Devi’s case decided upto the Hon’ble Supreme Court of India. The deponent started receiving telephonic messages to get the plot allotted by meeting the Trust officials i.e. Executive Officer or the Superintendent. But the deponent always stated that there is no need to meet them as the execution application is pending and the plot is liable to be allotted without any consideration. On feeling offended, the present revision petition was got filed by the Executive Officer by mis-stating the facts that the order was not received in the office of the Trust.”

12. It is well settled that “Sufficient Cause” for condoning the delay in each case is a question

of fact.

13. The main ground on which condonation has been sought is that the impugned order was

never communicated to the petitioner. It was only for the first time that on 27.2.2009, official of

the Petitioner – Trust received the summon from the District Forum, Ludhiana in the execution

petition. Then, only petitioner got the knowledge that the matter has been decided by the State

Commission. Thereafter, steps were taken for filing the revision petition. Thus, the delay has

occurred due to the office procedure.

14. The Petitioner for reasons best to it has not placed on record the copy of the

summon purported to have been received from the District Forum in the execution proceeding,

which was a material piece of evidence.

15. Be that as it may, the respondent on other hand has placed on record, copy of the receipt

register maintained by the petitioner – Trust (Page 83 of the paper book). According to it, the

order of the State Commission was received by the petitioner on 15.10.2007, vide Sr.

No.2492. Thus, the defence taken by the petitioner that, it did not receive the copy of the

impugned order at all,stands completely demolished.

16. 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 forcondonation 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”, Apex Court has

observed ;

“We hold that in each and every case the Court has to examine whether

delay in filing the special appeal leave petitions stands properly

explained. This is the basic test which needs to be applied. The true

guide is whether the petitioner has acted with reasonable diligence in

the prosecution of his appeal/petition.”

18. Hon’ble Supreme Court in “Anshul Aggarwal vs. New Okhla Industrial Development

Authority, IV (2011) CPJ 63 (SC)” laid down that;

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

19. Lastly, 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.”

20. In view of the aforesaid discussion, we find no sufficient cause is made out for condoning

the long delay of 515 days in filing of the present petition.

21. 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).

22. Cost be deposited by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

23. List on 7.3.2014 for compliance.

…………………..………J

(V.B. GUPTA)

(PRESIDING MEMBER)

…………………...……….

(REKHA GUPTA)

(MEMBER)

Sonia/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3434 OF 2012(From the order dated 11.04.2012 in First Appeal No. A/11/978 of the State Commission, Maharashtra) National Insurance Company Ltd. Delhi Regional Office, 4th Floor, Jeevan Bharti Building, Tower II, Connaught Circus, New Delhi- 110001

...... Petitioner Versus Ajay Kumar Amichand Kheera, R/O Jaybhavani Road, Nashik Road, Nashik

........Respondent BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON’BLE MR. VINAY KUMAR, MEMBER For the Petitioner : Mr. K.K.Bhat, Advocate For the Respondent : Ms. Madhumita Bhattarcharjee, Advocate PRONOUNCED ON: 27th January, 2014

ORDER

PER MR. VINAY KUMAR, MEMBER

The National Insurance Company has filed this revision petition challenging concurrent

orders of the District Consumer Disputes Redressal Forum, Nasik and the Maharashtra State

Consumer Disputes Redressal Commission. Both fora have allowed the complaint

No.CC/09/220 filed by Shri Ajay Kumar Amichand Kherra.

2. The matter arose out of theft of a bus belonging to the Complainant on 22.6.2003 from

Udaipur. The case of the Complainant is that the driver and cleaner of the truck had stopped at

night for their meals at a dabha. The vehicle was parked near the national highway where

several other vehicles were also parked. When they returned after their meals from the dabha,

the bus was found to be missing. The driver lodged a complaint with the local police

at Surajpol police station Suljapur, Udaipur district and OP/Insurance Companywas informed by

the Complainant.

3. Eventually, on 22.10.2008 the claim of the Complainant under the policy was repudiated

by the Insurance Company on the ground that the driver had kept the keys in the parked vehicle

and left it unattended. This was treated as negligence on his part and violation of condition No.5

of the policy. As per this condition, the insured was required to take allreasonable steps

to safeguard the vehicle from loss or damage. Before the fora below, case of the OP/National

Insurance Company was that the terms and conditions of the policy of insurance are binding on

both parties. It was contended that repudiation of the claim for violation of the terms and

conditions of the policy did not constitute any deficiency of service.

4. We have carefully considered the records filed on behalf of two sides. Mr. K.K. Bhat,

Advocate has been heard on behalf of the revision petitioner/OP and

Ms. MadhumitaBhatacharya, Advocate on behalf of the respondent/Complainant. Both sides

were also given an opportunity to produce the case law in support of their respective claims.

5. As seen from the record, the OP appointed one M.A. Qureshi as Investigator in this

case. As per his report dated 30th January 2004, the driver and the cleaner of the vehicle had

parked the bus at a place on the Station Road, where most of the local tourist buses are usually

parked. When they returned after their dinner and visit to some travel agencies, the bus was

found to be missing. According to this report, the driver and the cleaner informed the local

police at about 10:00 PM on the night of the theft itself. The vehicle remained untraced for

seven months. Thereafter, the police filed an ‘untraced’ report, which was accepted by the Chief

Judicial Magistrate, Udaipur. The report of Shri Quresi also shows that, investigating from

all angles, he did not find, other than the statements of vehicle staff and the owner

themselves, even an iota or clue of evidence available. Evidently N.H.8 is a busy thoroughfare

on which thousands of buses pass by round the clock, moreover such Luxury tourist buses are

a common feature and until and unless there happens to occur any specific incidence, the

people residing near the roadside/route do not pay much heed to the passing vehicles”.

6. The OP/Insurance Company later appointed another investigator Shri V.V.Joshi. His

report of 20th March, 2006 is substantially on the same line as that of Shri Qureshi. He has

concluded that the claim of theft is true and correct and has recommended that it should be

admitted in accordance with the policy of the company.

7. Learned counsel for the revision petitioner argued that the petitioner was not liable to pay

the claim as the key of the vehicle was left within the vehicle which amounted to violation of

condition No.5 of the policy. This was mentioned by the driver and the cleaner in the statement

before the police on the same day. The FIR shows that the key, along with original papers of the

vehicle and some cash, were left in the cabin tool box of the bus. In our view this needs to be

seen together with the reports of the investigator appointed by the OP, mentioned above. It is

clearly reported therein that the vehicle was parked in a place where such transport buses and

tourist vehicles are normally parked on the station road. Thus, the case for violation of condition

no.5 is negated by the evidence led on behalf of the OP/Insurance Company itself.

8. Learned counsel for the revision petitioner also sought to rely upon the decision of this

Commission in Devender Kumar Vs. National Insurance Company, (RP No.3840/2011)

pronounced on 2.4.2012. The facts of this case stood on a very different footing. The

complaint before the District Forum was found to contain very significant omission of a fact

mentioned in the FIR. The driver of the dumper-truck had himself informed in the FIR that he

had left the key in the vehicle and that the cabin lock of the dumper was not in a working

condition. Equally strangely, the vehicle was stolen in the night when the driver had claimed to

be sleeping next to it. Therefore, the case of the petitioner cannot derive any support from the

decision relied upon by its counsel.

9. In the result, we do not find any merit in this revision petition. The impugned order does

not suffer from any illegality or material irregularity, which could justify intervention of this

Commission in exercise of power under Section 21 (b) of the Consumer Protection Act,

1986. The revision petition is therefore, dismissed with no order as to costs.…………..……… Sd/-………..J.(V.B. GUPTA)PRESIDING MEMBER

…..…………Sd/-….…….……(VINAY KUMAR)MEMBER S./-



(From the order dated 05.03.2010 in First Appeal No. 1019/2005 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

1. United India Insurance Co. Ltd. (A Subsidiary of General Insurance Corporation of India)

having its Registered Office at: 24, Whites Road, Madras – 600 024; AND Branch Office at: The Mall, Kapurthala

2. Senior Divisional Manager United India Insurance Co. Ltd. Divisional Office Jalandhar Both through Manager, United India Insurance Co. Ltd. Regional Office at 8th Floor,

Kanchenjunga Building 18, Barakhamba Road, New Delhi – 110001. …Petitioners/Opp. Parties (OP)

VersusShri Gurinder Singh Through LRs

(a) Mrs. Rajinder Kaur W/o Mr. Urmiljeet Singh

(b) Master Harpreet S/o Mr. Urmiljeet Singh Through his mother and Natural guardian Mrs. Rajinder Kaur R/o H. No. Vill. Bishan Pur Jattan, P.O. Lakhan Kalan, District Kapurthala

… Respondents/Complainants

BEFORE



For the Petitioner : Ms. Suman Bagga, Advocate

For the Respondents: Mr. Pawan Kumar Ray, Amicus Curiae

PRONOUNCED ON 27 th January , 2014

O R D E R


This revision petition has been filed by the petitioners against the order dated 05.03.2010

passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short,

‘the State Commission’) in Appeal No. 1019 of 2005 – United India Insurance Co. Ltd.

& Anr. Vs. Gurinder Singh by which, while dismissing appeal, order of District Forumallowing

complaint was upheld.

2. Brief facts of the case are that complainant’s/respondent’s vehicle PB-09-F-0426 was

insured by OP/petitioner. During subsistence of insurance policy, vehicle met with an accident

on 6.2.2004, which was driven by Surjit Singh, Complainant intimated to the OP and as per

advice of the OP, complainant got his vehicle repaired and spent Rs.1,10,918/-. Later on, OP

repudiated the claim on the ground that at the time of accident son of the complainant was

driving the vehicle without any driving licence. Alleging deficiency on the part of OP,

complainant filed complaint before District Forum. OP resisted complaint and submitted that at

the time of accident, vehicle was driven by Gundeep Singh son of the complainant who was not

possessing a valid driving licence and prayed for dismissal of complaint. Learned District

Forum after hearing both the parties, allowed complaint and directed OP to pay Rs.1,10,918/-

with 12% p.a. interest and further awarded cost of Rs.250/-. Appeal filed by the petitioner was

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


4. A perusal of record reveals that complainant/respondent Gurinder Singh died during the

pendency of appeal before the State Commission, but his LRs were not substituted as this fact

was not brought to the notice of the State Commission by the parties. On the same title this

revision petition was filed, but when notice was sent to the respondent, it was received back with

the postal remarks ‘Addressee died’ and after that petitioner moved an application for bringing

the LRs on record and his LRs were taken on record.

5. Learned Counsel for the petitioner submitted that inspite of bringing the fact on record that

at the time of accident the vehicle was driven by Gundeep Singh son of the complainant, without

any driving licence, 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.

6. It is not disputed that insured vehicle met with an accident during the subsistence of

insurance policy and complainant incurred expenses in repair of the vehicle. The core question

to be decided in this revision petition is who was driving the vehicle at the time of accident.

7. Complainant submitted in the complaint that at the time of accident, vehicle was driven

by Surjit Singh, whereas learned Counsel for the petitioner submitted that at the time of accident,

vehicle was driven by Gundeep Singh son of the complainant. OP in the written statement

specifically pleaded that at the time of accident Gundeep Singh was driving the vehicle who was

not possessing any valid driving licence. OP filed affidavit of Mr. R.K. Sharma, Asstt. Manager

in support of reply in which, it was stated that claim form filled by the complainant was Ex. R-

7. Perusal of Ex. R-7 clearly reveals that it was signed by complainant himself in which name of

the driver at the time of accident has been shown as GundeepSingh son

of Gurinder Singh. Investigator, National Detective & Consultancy Services also opined

that Gundeep Singh was driving the vehicle at the time of accident.

8. Learned State Commission observed in paragraph 14 as under:“The appellants tendered into evidence claim form Ex.R-7 to prove that in Column No. 3(a) of the Claim Form, the insured had mentioned the name of driver asMr. Gundeep Singh son of Gurinder Singh but in reply to the complaint, the appellants have not submitted/pleaded that claim form Ex. R-7 was ever submitted by the insured”.

Learned State Commission dismissed appeal on the count that petitioner has not

submitted/pleaded claim form Ex. R-7 in its reply. No doubt, it has not been specifically

mentioned in reply that complainant submitted claim form Ex. R-7, but it has specifically been

pleaded that at the time of accident Gundeep Singh was driving the vehicle and in the affidavit

filed in support of reply it was specifically pleaded that claim form Ex. R-7 was filled by the

complainant. Complainant nowhere has denied in his statement that Form Ex. R-7 does not bear

his signatures. Signatures of claim form Ex. R-7 tally with the signatures on affidavit filed by

the complainant. If the complainant himself has mentioned in the claim form that at the time of

accident Gundeep Singh was driving the vehicle then by no stretch of imagination it can be

presumed that at the time of accident vehicle was driven by Surjit Singh and learned State

Commission and learned District Forum committed error in holding that Surjit Singh was driving

the vehicle at the time of accident.

9. Admittedly, no driving licence of Gundeep Singh has been produced by the complainant

because Gundeep Singh was minor at the time of accident. As vehicle was driven by a minor

without holding any driving licence, petitioner is not liable to reimburse any damages to the

vehicle.

10. In the light of above discussion, we are of the view that 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.

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

5.3.2010 passed by learned State Commission in Appeal No.1019/05 – United India Insurance

Co. Ltd. Vs. Gurinder Singh and order of District Forum dated 23.6.2005 passed in Complaint

No. 242/04 – Gurinder Singh Vs. United India Ins. Co. Ltd. is set aside and complaint stands

dismissed with no order as to costs. ……………………………( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………………………

( DR. B.C. GUPTA )

MEMBERk



(From the order dated 16.05.2012 in First Appeal No. 1376/2010 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Shri Gurmit Singh S/o Shri Pritam Singh R/o L-186-C, Model Town, Karnal, Haryana


Versus1. Haryana Urban Development Authority Through its Chairman/Managing Director/ Administrator, Panchkula

2. The Estate Officer HUDA, Sector – 12 Karnal, Haryana


BEFORE



For the Petitioner : Mr. Nishant Rai Gel, Advocate

For the Respondent: Dr. Sudhir Bisla, Advocate


O R D E R



passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short,

‘the State Commission’) in Appeal No. 1376 of 2010 – HUDA & Anr. Vs. Gurmit Singh by

which, while allowing appeal partly, order of District Forum imposing penalty in the Execution

Petition was modified.

2. Brief facts of the case are that complainant/petitioner filed Complaint No.1270 of 2001

before District Forum and District Forum vide order dated 16.8.2004 allowed complaint

andfollowing directions were given: “A. The OPs shall charge simple interest at the rate of 10% p.a. from the complainant on the amount of instalments. If any instalment is not paid by the complainant within the stipulated period then OPs are entitled to simple interest at the rate of 18% p.a. instead of 10% p.a. on the amount of delayed instalments and not on the balance amount of price of the plot. B. That OPs are entitled to charge the amount on account of enhanced compensation along with simple interest at the rate of

mentioned in the notice of demand of enhanced compensation from the date of Issue of notice in this regard to the complainant.

C. That OP are entitled to extension fee from the complainant on account of non-raising of construction over the plot in question within the stipulated period as per rules. D. That OPs shall prepare a fresh statement of account in respect of the plot in question in the light of directions given in (A) to (C) above and shall serve the same to the complainant within 30 days of the receipt of copy of this order.

E. That there shall be no order as to costs.”

3. Complainant filed Execution Petition before District Forum and learned District Forum

observed that account statement was delivered after 3 to 4 years and excess interest charged was

also refunded after 4 to 5 years and in such circumstances observing violation of the order

imposed penalty of Rs.25,000/- on the OP. OP filed appeal before State Commission and learned

State Commission vide impugned order reduced penalty to Rs.1,000/- against which this revision

petition has been filed.

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

5. Learned Counsel for the petitioner submitted that leaned District Forum rightly imposed

penalty and learned State Commission without any cogent reason has reduced penalty; hence,

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

Counsel for the respondent submitted that order passed by learned State Commission is in

accordance with law; hence, revision petition be dismissed.

6. Learned State Commission rightly observed that grievance of the complainant was only to

the extent that statement of account as directed by District Forum was not submitted within the

stipulated period. Learned State Commission further observed that learned District Forum

observed in its order that statement of account submitted by OP was strictly in accordance with

law as per directions issued in the order, though, complainant disputed that statement. Learned

State Commission further observed that statement of account submitted by OP is not

incorrect. In such circumstances, learned State Commission has reduced penalty from

Rs.25,000/- to Rs.1,000/-.

7. Section 27 of the C.P. Act provides that fine exceeding Rs.10,000/- cannot be imposed

whereas learned District Forum imposed penalty of Rs.25,000/- which was contrary to

provisions of the Act. As per Section 27, penalty of less than Rs.2,000/- cannot be imposed but

learned State Commission vide impugned order has reduced penalty to Rs.1,000/- as there was

only delay in submitting statement of account. In normal course penalty should not have been

reduced below Rs.2,000/-, but looking to the facts and circumstances, we do not find it

appropriate to enhance amount of penalty as there was only delay in submission of statement of

account.

8. Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs. ……………………………( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………………………

( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 619 OF 2013 (From the order dated 25.10.2012 in First Appeal No. 900 of 2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

WITH IA/1086/2013 (STAY)

1. Unit Trust of India Through its Managing Director, Plot No. 3, Sector-11, Post Bag No. 22, CBD, Belapur, Navi Mumbai

2. Unit Trust of India Technology Services Ltd. Through Its Manager, Sector 17-B, Jeevan Prakash, Chandigarh

3. Unit Trust of India Through Shri Satish Manocha, Chief Representative, Model Town, Yamuna Nagar, Haryana

… Petitioners

VersusKamlesh Chhabra W/o Shri M. S. Chhabra, C/o Mr. Kishan Lal Rawal, 67/75, Thapar Colony, Yamuna Nagar Tehsil Jagadhri, Dist. Yamuna Nagar, Haryana

… Respondent

BEFORE:

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

For the Petitioner : Mr. Sanjeev Kumar, Advocate

For the Respondent : Mr. Niraj Gupta, Advocate

PRONOUNCED ON : 27 th JANUARY 2014 O R D E R

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

This Revision Petition has been filed by the petitioner against impugned order dated 25/10/2012, passed by the State Commission Haryana in First Appeal No. 900/2012, Unit Trust of India vs. Kamlesh Chhabra, by which while dismissing appeal, order of the District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent had taken unit of Rs. 32,000/- as per scheme called SCUP of Unit Trust of India having membership Certificate No. SC0040610000050 on 20.10.1999 through the opposite party No. 3 and was provided medical insurance cover, the premium of which was to be deducted from the policy of the complainant and as per details provided to her, seven installments were to be deducted. As per offered documents, a maximum sum of Rs. 5,625/- was to be deducted as premium for first four years and thereafter a maximum sum of Rs.

4,975/- for next three years. The complainant received his account statement dated 07.01.2008 in which she was stunned to note that the premium of October, 2006 was deducted @ 8655.11 and a sum of Rs. 13,274.30 as addition premium from 2001-2005, whereas a sum of Rs. 4,975/- was to be deducted from the account of complainant from October, 2005 but no intimation was given to her. Thus, the amount of Rs. 13,274.30 deducted on account of additional premium, was illegal. The opposite party had wrongly and illegally deducted a sum of Rs. 16,954.41 in excess from the account of the complainant and the balance amount ofRs. 12,578/- was not paid to the complainant. The annuity amount of Rs. 2,900/- per annum was to be paid by the opposite party to take care of complainant’s non-hospitalizationexpenses after attaining the age of 58 years but the opposite parties had not paid even a single penny to her.

3. In spite of notice, amount illegally deducted was not refunded, alleging deficiency on the part of the opposite parties-petitioners, complainant filed complaint before the District forum. Petitioner appeared and contested the complaint. In the written statement the opposite parties took the plea that the complaint had been filed alleging excess deduction of premium payment of Rs. 16,954.41, residual amount of Rs. 12,578/- and annuity amount of Rs. 2,900/- and prayed for refunding of Rs. 29,532.41 and annuity amount of Rs. 2,900/- from 15.11.2010 together with interest @ 24% till date of payment, which was beyond the scheme provision of SCUP and the claim for refund was imaginary. The complainant had resorted to file the complaint with false and non existent claims and the same was liable to be dismissed in toto and investor was entitled to receive the benefits as per the scheme provisions. The balance outstanding units as of 18.02.2008 was 350.897 and accordingly, the residual units had been redeemed @ Rs. 23.2257 per unit and the redemption cheque dated 22.02.2008 for Rs. 8,149.83 was dispatched to the complainant and the same stood paid on 04.03.2008. Denying any kind of deficiency of service and unfair trade practice, it was prayed that complaint merited dismissal.

4. The District Forum after hearing both the parties allowed complaint and directed the opposite parties to pay Rs. 12,578/- balance amount of the scheme plus Rs. 2,900/- per year annuity for the period from 20.10.2004 to 04.03.2008 with interest at the rate of 9% per annum and further awarded Rs. 3,300/- as litigation expenses. Appeal filed by the opposite parties was dismissed by the State Commission, vide impugned order against which this revision petition has been filed.

5. Heard learned counsel for the parties finally at admission stage and perused record.

6. Learned counsel for the petitioner submitted that the State Commission has dismissed the appeal on erroneous assumptions and has recorded wrong facts in the order, hence revision petition be allowed and impugned order be set aside and matter may be remanded back to the State Commission.

7. On the other hand, learned counsel for the respondent submitted that order passed by the State Commission is in accordance with law, hence revision petition be dismissed.

8. The State Commission, after recording observations of the District Forum, dismissed the appeal on the basis of following observations:-

“Having considered the facts and circumstances of the case and the observation made by the District Consumer Forum, as mentioned above, we are of the view that it is the appellant-opposite party who had closed the scheme without issuing prior notice to the complainant. Admittedly, the complainant had incurred the expenses of hospitalization for her medical treatment to the tune of Rs. 32,000/- at the age of 53 years and Rs. 20,800/- at the age of 61 years and thus, as per terms

and conditions of this scheme. Even otherwise, as per agreement executed between the parties the alleged policy cannot be terminated without issuing prior notice to the complainant. Since, the opposite parties failed to issue any notice to the complainant, therefore, they were bound to pay the abovesaid amount to the complainant. The District Consumer Forum after considering each and every aspect of the case has rightly accepted the complaint and issued directions to the opposite parties. Hence, finding no merit in this appeal, it is dismissed.”

9. Perusal of aforesaid observations clearly reveals that the State Commission dismissed the appeal on the assumptions that petitioner terminated scheme without issuing any prior notice to the complainant, whereas complainant has nowhere challenged termination of scheme in the complaint. Not only this, the State Commission observed that complaint incurred expenses of hospitalization to the tune of Rs. 32,000/- at the age of 53 years and Rs. 20,800/- at the age of 61 years. In such circumstances, complainant was entitled for aforesaid payment. We do not find any such claim in the complaint. Complainants, in the complaint prayed for refund of Rs. 29,532.41 and Rs. 2,900/- per annum from 15.11.2003 till its realization and has nowhere claimed refund of Rs. 32,000/- and Rs. 20,800/-. As order of the State Commission is based on erroneous assumptions and facts, impugned order is liable to set aside and matter is to be remanded back to the State Commission.

10. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 25.10.2012, passed by the State Commission in First Appeal No. 900/2012, Unit Trust of India & Ors. vs. Kamlesh Chhabra is set aside and matter is remanded back to the State Commission to decide it afresh on the basis of pleadings, after giving an opportunity of being heard to the parties.

11. Parties are directed to appear before the State Commission on 20.02.2014.

..……………………………

(K. S. CHAUDHARI)

PRESIDING MEMBER

..……………………………

(DR. B.C. GUPTA)

MEMBERPSM


(1) REVISION PETITION NO.2747 to 2750 OF 2011 (Against the order dated 15.11.2010 in Appeal Nos.2252 to 2255 of 2005 of the State Commission, Maharashtra)

Dattu Krishna Kadam Age-70 years, Occ. : Agriculturist At Post Vadshirge, Taluka – Madha Distt. Solapur, Maharashtra

....... Petitioner

Versus

1. Same Deutz – Fahr India Pvt. Ltd. (Formerly, Same Greaves Tractors Pvt. Ltd.) Having registered office at Plot No.72, SIPCOT Industrial Complex Ranipet – 632403, Tamilnadu 2. M/s Dhanashree Tractors (Through Prop. Shree Sanjay Mama Shinde) Temburni, Taluka – Madha, Distt. Solapaur Maharashtra

…... Respondents

AND others from Revision Petition number 2748 to 2750 of 2011

BEFORE:



For the Petitioner : Mr. Nitin R. Kalshetti, Advocate

For the Respondent No.1 : Mr. Rajeev K.Virmani,Sr. Advocate Ms. Rashmi Virmani, Mr.Ashish Kothari and Mr. Shreyansh Mardia, Advocates

For the Respondent No.2 : Already ex-parte

Pronounced on :27 th January,2014 ORDER

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

Above mentioned revision petitions are being disposed of by this common order

since Consumer Complaints (Nos.843,844 and 845 of 2003 and 38 of 2004) filed before the

District Consumer Disputes RedressalForum, Solapur(for short,‘District Forum’) were disposed

of by common order, dated 12.09.2005.

2. Brief facts are that Petitioners/Complainants purchased tractors from Respondent

No.2/Opposite Party no.3. The tractors were manufactured by M/s Same Greaves Tractors Pvt.

Ltd/Opposite Party No. 1(Now known as-Same Deutz — Fahr India Pvt. Ltd/Respondent No.1)

3. It is petitioners’ case that tractors were purchased during the period ranging from 11.1.2000

to 27.2.2001. It is alleged that there were certain technical defects during the period of

free services which were brought to the knowledge of the manufacturer as well as the dealer.

Moreover, spare parts were not made available during the warranty period. Since, the tractors

were not running properly after its purchase, complainants had incurred unnecessary repairing

expenses. Therefore, complaints were filed before the District Forum praying that

manufacturer/dealer be directed to get back the defective tractors and to refund the amount of the

tractors.

4. The manufacturer in its written statement took the plea that complaints filed against it are not

maintainable as per law, because at the time of filing of the complaints, no company with the

name of ‘Same Greaves Tractors Pvt. Ltd.’ was there. The complaints filed against wrong

person are liable to be dismissed. 5. The allegations with regard to the technical defects were

denied. Amongst others, it is stated that the complaints have been filed after lapse of two years.

As such the same are not maintainable and are barred by limitation.

6. District Forum, vide order dated 12.09.2005 allowed the complaints and directed the

respondents to pay the costs of the tractors to the respective complainants.

7. The order of the District Forum was challenged by Respondent No.1 before the State

Consumer Disputes Redressal Commission, Maharashtra (for short ‘State Commission’) which

vide its impugned order dated 15.11.2010, allowed the Appeals and dismissed all the consumer

complaints.

8. Being aggrieved by the order of the State Commission, Petitioners have filed these revision

petitions.

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

10. Petitioners in their entire complaints have nowhere stated as to when the cause of action

arose against the respondents.

11. Petitioners have admittedly purchased the tractors during the period ranging from 11.1.2000

to 27.2.2001. Whereas consumer complaints have been filed in the year 2004. Thus, on the face

of it, consumer complaints filed before the District Forum were barred by limitation and no

application under Section 24-A of the Consumer Protection Act 1986(for short, ‘Act’) was filed

before the District Forum.

12. State Commission in its impugned order has observed as under;

“Admittedly, each one of the complainants had availed service of free servicing as much as six in numbers and also allowed to pass the respective warrantee period based upon total operational hours. If there was any manufacturing defect as alleged, then the tractors would not have run even for this period of warrantee. It is for the complainants to establish their grievances, namely, there is manufacturing defect in the tractors and as such allowing to sell those tractors is unfair trade practice and the other grievance referring to deficiency in service for not supplying the spare parts to repair those tractors when required. Complainants in all the consumer complaints miserably failed to establish the same.

Furthermore, loss of business which the complainants’ calculated on the basis that they could not use the tractors for transporting sugarcane and for allied purposes i.e. for using the tractor for transportation purpose and loss of business accordingly. Referring to the circular dated 23/09/1998 of Deputy Transport Commissioner, Maharashtra State, Mumbai, supra, it could be seen that the registration of these tractors was under ‘non-transport’ category and not for any transport. Therefore, any compensation claimed on account of loss of business cannot be allowed. Furthermore, compensation is claimed by each one of the consumers/complainants for loss occurred due to expenditure on driver employed on those tractors. Thus, the tractors were not run by the complainants in each consumer complaints, on their own. The circumstances disclosed that these tractors were purchased under the self-employment scheme for transportation of sugarcane i.e. for commercial purposes and in absence of any pleadings covering the circumstances (of exception) relating to Section 2(1)(d)(ii) of the Act, each complainant will not fall within the definition of ‘consumer’ under the Act and as such also these disputes cannot be termed as ‘consumer disputes’. The impugned order is also vitiated on this count.

The Consumer Fora wrongly presumed the cause of action as continuous one and thus, arrived at wrong conclusion on the point of limitation. Cause of action arose soon after purchase of the respective tractors as far as manufacturing defects are concerned. No dates of specific event as well as whether the tractors could not be repaired for want of spare parts are mentioned.

For the reasons stated above, we find that the impugned order which is common order in all the consumer complaints cannot be supported with and holding accordingly, we pass the following order :-

-: ORDER :-

Appeal Nos. 2252 to 2255/ 2005 are allowed. The impugned order dated 12/09/2005 is set aside and in the result, the consumer complaint Nos. 843/2003, 844/2003,845/2003 & 38/2004 stand dismissed”.

13. It is well settled principle of law that any relief can be claimed under the Consumer

Protection Act, 1986 (for short as ‘Act’) within two years from the date on which the cause of

action accrues.

14. Section 24-A of the Act deals with this situation which is reproduced as under ;“ 24-A. Limitation period :-(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.(2) Notwithstanding anything contained in sub-section (1) a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay”.

15. The above provision is clearly peremptory in nature requiring the Consumer Fora to see at

the time of entertaining the complaint, whether it has been filed within the stipulated period of

two years from the date of cause of action.

16. Hon’ble Apex Court in case of Kandimalla Raghavaiah & Co. versus National Insurance

Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made

in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009

(4) SC 191, as under;

“12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held:

“8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and

give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

In para No.13, it has been held by the Hon’ble Supreme Court ;

“The term “cause of action” is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as “bundle of facts”., which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, “cause of action” means the cause of action for which the suit is brought.“Cause of action” is cause of action which gives occasion for and forms the foundation of the suit. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out”.

17. The Apex Court in State Bank of India v. B.S. Agricultural Industries, II (2009) CPJ 29

(SC) SLT 793 = (2009) 5 SSC 121, held as under ;

“ 12. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet the Consumer Forum decided the complaint on merits, the Forum would be committing an illegality and therefore, the aggrieved party would be entitled to have such order set aside”.

18. On the point of recurring cause of action reference may be made to the observation made by

the Hon’ble Supreme Court in Raja Ram Maize Products etc. Vs. Industrial Court of M.P. and

Other, AIR 2001 SUPREME COURT 1676, wherein it has been held ;

“10. The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar MaharajSansthan, AIR 1959 S.C. 798 it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded

that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all. The question of demanding to allow to do work even on refusal does not stand to reason”.

19. Thus on the face of it, complaints filed before the District Forum were barred by limitation

and no applications for condonation of delay had been filed on behalf of the Petitioners. Under

these circumstances, we find that there is no ambiguity and infirmity in the impugned order

passed by the State Commission in allowing the Appeals of the respondents and dismissing all

the consumer complaints filed by the Petitioners before the District Forum.

20. Accordingly, we dismiss all the above noted revision petitions. Consequently, all the

complaints filed by the Petitioners before the District Forum stand dismissed.

21. Parties shall bear their own cost.

.......…………………J

( V. B. GUPTA)

PRESIDING MEMBER

.....…………………

(REKHA GUPTA)

MEMBER

SSB/


REVISION PETITION NO. 2607 to 2609 OF 2013

(Against the order dated 16.04.2013 in Appeal No.358/2012 of the Rajasthan State Consumer Disputes Redressal Commission)

Agriculture Insurance Co. of India Ltd. Sandhi Upasana Towers, Fourth Floor C-98, C-Scheme, Subhash Marg Near Ahinsa Circle Jaipur Through its Head Office at 13th Floor, Ambadeep Building 14, K.G. Marg, Connaught Place New Delhi-110001

… Petitioner

Versus

1. Kishan Lal S/o Shri Jagan Nath Caste Gujjar, Village Gaurasya Ka Kherha Tehsil Hindoli, District Bundi Rajasthan

2. Agent Sanjay Sharma Caste Brahmin R/o Vigyan Nagar-III, Kota Rajasthan

… Respondents

AND REVISION PETITION NO. 2608 & 2609 OF 2013

BEFORE:

HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For Petitioner : Mr. Sanjiv Sharma, Advocate

For Respondents : Mr. Kishan Lal, Mr. Sauji Lal and Mr. Ramesh, Respondents in person

Pronounced on 28 th January, 2014

ORDER

PER VINEETA RAI, MEMBER

1. Revision Petitions No. 2607 of 2013, 2608 of 2013 and 2609 of 2013 have been filed by

the Agriculture Insurance Company of India Limited, Petitioner herein and Opposite Party

before the Rajasthan State Consumer Disputes Redressal Commission (for short “the State

Commission”), being aggrieved by the order of the State Commission, which had allowed the

complaints filed by the respondents of deficiency in service against it. Since the facts and

the parties are common/similar in respect of all these revision petitions arising and out of the

same consumer dispute, it is proposed to dispose them of through a single order by taking the

facts from Revision Petition No. 2607 of 2013.

2. FACTS :

In his complaint before the District Forum, Respondent had contended that on

5th February, 2009 he had taken an insurance cover for Rs.1,35,000/- from the

Petitioner/Insurance Company in respect of the wheat crops cultivated by him in his agricultural

land in Tehsil Hindoli, District Bundi, Rajasthan. Unfortunately, because of severe

thunderstorm accompanied by hailstones on 21st March, 2009 during the validity period of the

insurance cover, his entire wheat crop got destroyed because of which he suffered heavy

losses. He, therefore, filed a claim seeking payment of the insured amount with the

petitioner/Insurance Company, to which despite repeated reminders there was no response. The

respondent, therefore, filed a complaint before the District Forum on grounds of deficiency in

service and requested that the Petitioner/Insurance Company be directed to pay him

Rs.1,35,000/- towards loss of crops covered under the insurance cover, Rs.5000/- for mental

agony and Rs.5000/- as cost of litigation.

3. On being served, Petitioner/Insurance Company while admitting that the Respondent had

taken an insurance policy from it in respect of his Rabi crop for the year 2008-09 under the

Weather Based Crop Insurance Scheme denied that there was any deficiency in service on their

part. It was stated that the claim which was received through their authorized and licensed

broker, namely Shridhar Insurance Broker (Pvt.) Ltd. was rightly repudiated since under the said

insurance scheme the crops were insured only against damage caused due to increase in average

temperatures and excess rainfall and not on account of hailstones. In this connection, it was

further contended that “zero mm” rainfall was recorded on the date when the crops were

destroyed.

4. The District Forum, after hearing the parties and on the basis of evidence produced before

it, allowed the complaint by observing as follows :“In the present complaint, the contention of the complainant is that his crop was destroyed due to falling of hailstones and, therefore, the compensation of the insured crop was to be paid. While refuting the said contention, it is contended by the insurance company that loss was not liable to be paid on the basis of falling of hailstones, but from perusal of Para No.12 of the notification it is revealed that as per appendix-4, for covered risk of crop during the insurance period, district wise and crop wise compensation was to be calculated on the basis of applicable weather parameters of increase in average temperature, short or excess rainfall, humidity etc. From this it is revealed that the insured crop was

covered for the risk of excess rain, humidity, increase or decrease in temperature etc. Opposite Party insurance company has stated that falling of hailstones is not included in the risk but this fact is not mentioned in the notification issued by the State Government, but the risk caused due to excess rainfall, humidity etc. is covered for insurance. In such circumstances, the claim for the abovesaid amount is not liable to be rejected by the Opposite Party insurance company.”

The District Forum directed the Petitioner/Insurance Company to pay to the respondent the

amount for which the crops were insured within a period of three months alongwith Rs.1000/-

towards mental agony and Rs.1000/- as cost of litigation.

5. Being aggrieved, Petitioner/Insurance Company filed an appeal before the State

Commission, which upheld the order of the District Forum by observing as under :“The Ld. District Forum has passed the order after detailed deliberation of the entire facts and evidences of the complaint. Hence, we find no justification to re-examine the entire facts and evidences of the complaint. In view of the facts and circumstances of the present case, we do not find any error in the Order dated 20.01.2012 passed by the Ld. District Forum, Bundi in Complaint No. 32/2010. Since the Ld. District Forum has granted proper relief to the complainant after correctly applying its mind on the facts brought on record the same calls for no interference. Therefore, there appears no merit in the present Appeal.”

Hence, the present revision petition in which Petitioner/Insurance Company has requested

for setting aside of the order of the State Commission on merits, as also on the ground that

instead of applying its mind, the State Commission has passed a non-speaking order summarily

rejecting their appeal.

6. Counsel for the Petitioner/Insurance Company and Respondents in person are present and

made oral submissions.

7. Counsel for the petitioner/Insurance Company, while admitting that the respondent had

taken an insurance policy in respect of his Rabi crop, has contended that as per the notification of

the Rajasthan State Government issued under the Weather Based Crop Insurance Scheme, only

two risks, namely, increase in temperature and excessive rainfall, were covered and the risk of

falling hailstones was not included in the said notification. It is well settled that the provisions of

an insurance policy have to be strictly construed as per its wording and, therefore, the District

Forum erred in presuming that the falling of hailstones amounted to excessive rainfall. On the

other hand, there is documentary evidence from the Weather Station, NCMSL, Hindoli that there

was no excess rainfall recorded on the date when the crops were destroyed. Further, the State

Commission as a Court of fact as also the Court of first appeal instead of applying its mind and

reanalyzing the facts and evidence of the case, as submitted in the appeal by the

Petitioner/Insurance Company, merely disposed of the same in a cryptic and unsatisfactory

manner through a non-speaking order without even discussing the grounds of appeal, as was

required from a Court of first appeal.

8. Respondents, who were present in person, reiterated that since the crops were destroyed

due to falling hailstones which like excessive rainfall is an adverse weather condition the Fora

below had rightly concluded that keeping in view the objectives and provisions of the Weather

Based Crop Insurance Scheme the claim was wrongly repudiated.

9. We have carefully considered the submissions made by learned Counsel for the

Petitioner/Insurance Company and the Respondents as also the evidence on record.

10. At the outset, we note that the State Commission has disposed of these Appeals through a

non-speaking order although Hon’ble Supreme Court in a number of judgments, including

in S.N. Mukherjee Vs. Union of India [(1990) 4 SCC 594] as also in M/s Kranti Associates

Pvt. Ltd. & Anr. Vs. Masood Ahmed Khan & Ors. [(2010) 9 SCC 496], has ruled that all

judicial and quasi-judicial authorities are required to pass speaking orders since this would inter

alia enable higher courts to effectively exercise appellate or supervisory powers, introduce clarity

in its decision and minimize the chances of arbitrariness in decision making. Although these

judgments had been brought to the notice of the State Commission, we note with regret and

dismay that the State Commission continues to pass non-speaking orders. Therefore, instead of

remanding the case back to the State Commission, we propose to dispose of the same by taking

into account the evidence and concurrent findings of the Fora below.

11. It is not in dispute that the Respondents had insured their crops under the Government of

India’s Weather Based Crop Insurance Scheme as implemented by the Government of Rajasthan

in 27 districts vide their notification dated 11th November, 2008. It is also a fact that although the

loss to the insured wheat crops of the Respondents occurred during the validity of the insurance

policy, the claim was repudiated by the Petitioner/Insurance Company on the ground that the

crops were destroyed because of hailstones, which is not one of the covered risks as per the

notification of the Rajasthan Government pertaining to the Scheme. In this connection, we have

gone through the notification of the Government of India in respect of the Weather Based Crop

Insurance Scheme as also the notification of the Rajasthan Government. We note that the main

objective of the Government of India Scheme is to mitigate the hardships of the insured farmers

against likelihood of financial loss on account of anticipated crop loss resulting from incidents of

adverse conditions of weather parameters like unseasonal rainfall, frost, heat (temperature)

etc. The notification of the Rajasthan Government also reiterates this objective. Further, in para

12 of the notification it is clearly stated that the risks covered would be for weather related

parameters like “increase in temperature, decrease in temperature, excess rainfall, humidity

etc.”. Though the destruction of crops due to hailstones may not be specifically mentioned, it is

also not excluded under the Scheme since the risks stated are illustrative and not comprehensive,

as clearly indicated by the addition of the word “etc.” while listing out various adverse weather

conditions. As stated earlier, the main objective of the Scheme is to protect the farmer/insured’s

crops against adverse weather conditions. Under these circumstances, we are unable to

comprehend how the Petitioner/Insurance Company concluded that hailstones, which is clearly

an adverse weather condition, is not a covered risk. If such misguided and narrow interpretations

of the Scheme are taken by the implementers of this important and beneficial Scheme, then its

very objective and purpose will be defeated. Hailstones is admittedly an adverse weather

condition and can often cause even more damage than excessive rainfall, increase in temperature,

humidity etc. In the instant case, we are of the view that the Petitioner/Insurance Company

unnecessarily harassed the Respondents by rejecting their bonafide claims. Under the

circumstances, we have no option but to dismiss the present revision petitions and to uphold the

order of the Fora below.

12. To sum up, Revision Petitions No. 2607 of 2013, 2608 of 2013 and 2609 of 2013 filed by

the Petitioner/Insurance Company are dismissed. The Petitioner/Insurance Company is hereby

directed to comply with the orders of the Fora below within a period of three months and pay

each of the Respondents the amount so calculated against their claims besides Rs.1000/- towards

mental agony and Rs.1000/- as litigation expenses.

Registry is directed to send a copy of this order to the State Commission.

Sd/- (D. K. JAIN, J.) PRESIDENT

Sd/- (VINEETA RAI) MEMBER

Sd/- (VINAY KUMAR) MEMBER

Mukesh



(From the order dated 05.05.2008 in First Appeal No. 1278/2003 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

Jaswinder Singh S/o Gurmukh Singh Zimidar R/o of Village Enna Khera, Tehsil Malout, District Muktsar

…Petitioner/ComplainantVersus

1. M/s. Punjab Pesticides and Seeds, Shop No. 54-A, New Grain Market, Malout, Tehsil Malout, Distt. Muktsar, Through Sh. Rakesh Kumar

2. Agrimass Chemical Ltd. H.Z.M.I.D.C. Industrial Area Taloja, Distt. Rajgarh – 410208 (M.P.)

3. Vam Organic Chemical Ltd. Bhartia Gramin Gajrola, District Jotica Phulla Nagar–244223


BEFORE



For the Petitioner : Mr. M. Padhi, Advocate For Mr. S.S. Mishra, Advocate

For the Respondent No.1 : Mr. Rohit Kapoor, Advocate

For the Respondent No.2 : NEMO

For the Respondent No.3: Mr. Manan Batra, Advocate


O R D E R



passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short,

‘the State Commission’) in Appeal No. 1278 of 2003 – Jaswinder Singh Vs. M/s. Punjab

Pesticides & Seeds & Ors. by which, while dismissing appeal of the petitioner and allowing

appeal of respondent, order of District Forum allowing complaint was set aside.

2. Brief facts of the case are that Complainant/Petitioner had sown paddy crop in

32 killas of land. He purchased pesticides and fertilizers from OP No. 1/Respondent No. 1

which were manufactured by OP No. 2&3/Respondent No. 2&3 and he was suggested by OP

No. 1 that if he sprays carbonic fertilizer by mixing Ram Ban with Power

Plus, Agrianilo,Anilophos 30% herbicide then the yield of paddy crop will be much more and

the crops will not be affected by any insects etc. Believing the representation made by

respondent No. 1, the petitioner purchased these insecticides, weedicides and bio-chemicals from

the shop of respondent No. 1 on 13.6.2002 for an amount of Rs.780/-, on 15.6.2002 for an

amount of Rs.4,370/- and on 19.6.2002 for an amount of Rs.3,950/- for which bills were issued

by respondent no. 1. The payment was made to respondent No. 1by the petitioner through

M/s.Bhullar Brothers who were his Commission Agents. It was further pleaded that as advised

by respondent No. 1, the petitioner mixed both these chemicals with fertilizer and sprayed the

same in the paddy crop sown in 32 killas of land. He was shocked to find out that after few days

the paddy crop started withering and was completely damaged. The petitioner lodged

the complaint against respondent No. 1 with the Assistant Plant Protection Officer who along

with the Agriculture Officer inspected the spot and submitted his report. It was

furtheralleged that respondent No. 2 & 3 who were manufacturers of

pesticides/fertilizers were liable. Alleging deficiency on the part of OPs, complainant filed

complaint before District Forum. OP No. 1 filed written statement and submitted that

respondent no. 1 was the dealer and he sold goods in a sealed form and he was not responsible

and manufacturers alone were responsible; hence, complaint be dismissed. OP No. 2 admitted

manufacturing of the product and further submitted that his product was to be preserved under

propertemperature away from the sunshine. It was further submitted that Anilophos was to be

spread in the field, but petitioner had mixed Anilophos with two fertilizers and spread in the field

which was not permitted. OP No. 3 filed written statement and submitted that products

manufactured by OP No. 3 were to be preserved under proper temperature which was to be

spread alone without mixing. It was further submitted that crop of the appellant had withered

due to bad quality of soil water and for want of rainy water and prayed for dismissal of

complaint. Learned District Forum after hearing both the parties allowed complaint against OP

No. 1 and 3 and directed them to pay Rs.3,20,000/- on account of loss of crop and Rs.27,000/-

which was paid by the complainant to the Gram Panchayat village Enna Khera as ‘Theka”,

Rs.9,100/- cost of product and Rs.15,000/- as compensation for mental harassment and complaint

was dismissed against OP No. 2. Complainant as well as OP filed appeals before State

Commission and learned State Commission vide impugned order dismissed appeal filed by the

complainant, but allowed appeal filed by OPs and set aside order of District Forum and

complaint was dismissed against which, this revision petition has been filed.

3. None appeared for Respondent No. 2 even after service.

4. Heard learned Counsel for the petitioner and Respondent No. 1 & 3 and perused record.

5. Learned Counsel for the petitioner submitted that due to spray of product of Respondent

No. 3, crop of petitioner was damaged. This argument is apparently devoid of force as on the

complaint of petitioner Agriculture Development Officer went to the house of petitioner and on

an inquiry, a lady from house told that due to bad underground water and in absence of

rains, Chana crop was not on the site; hence, she cannot say whether crop was damaged

by Ramban or not. He further submitted in his report that near the field of petitioner, other field

of Chana crop was drying due to underground water and scarcity of water and in absence of

rainy water.

6. Learned State Commission rightly observed in paragraphs 18 & 19 as under:“18. Once the appellant had filed an application on 19.7.2002 to the Assistant Plant Protection Officer and had invited him for spot inspection at least he should have kept the paddy crop un-ploughed for inspection purposes. Within three days the Agriculture Development Officer on the instructions of the Assistant Plant Protection Officer visited the spot and he was told that the crops were already ploughed. Therefore, the Agriculture Development Officer could not find out if the paddy crop of the appellant had been damaged because of the use of Ramban fertilizer as was alleged by the appellant in the application dated 19.7.2002 or because of the bad quality of sub-soil water and because of shortage of rainy water as was told to the Agriculture Development Officer by the wife of the appellant or because of the use of mixture of Ramban. Power Plus, Agrianilo etc as is the version of the appellant in this complaint. This factor also goes against the appellant. 19. The Agriculture Development Officer has reported that the owners of adjoining fields had also reported that their crops were also damaged because of the bad quality of sub soil water and for want of rainy water. If the crops of the adjoining fields had withered for this reason it becomes unbelievable if the paddy crops of the appellant had not withered for the same reason which was responsible for damaging the crops of the adjoining fields. Moreover, the appellant himself contradicted his version contained in the application dated 19.7.2002 and has introduced a new version in the complaint. Therefore, it makes more probable that the paddy crop of the appellant was also damaged because of bad quality of sub soil water and for want of rainy water. It appears that the appellant has made out two different stories at two different times to claim compensation.”

7. Learned State Commission rightly observed in paragraphs 22,23 & 25 as under:

22. The original complaint of the appellant was that use of Ramban fertilizer had damaged the crops of the appellant but sample of Ramban was not sent to any laboratory. Even otherwise, in the present complaint the appellant had alleged that on the advice of respondent No. 1 he had mixed the weedicides with the fertilizer and then had used the mixture on his paddy crop which damaged his crops. It means, therefore, that even Ramban was mixed with the other weedicides/fertilizer. If the appellant had sent the samples of power plus and agrianilo then he should have sent the sample of Ramban fertilizer to the Lab. so that the quality of Ramban could also have been analysed and assessed. There is also no report on the file if the mixing of these weedicides with the fertilizers could have damaged the paddy crops. 23. In other words, neither Ramban fertilizer has been got tested by the appellant against which he had complained originally nor he had got tested the mixture of all these chemicals if these were liable to damage his crop. 25. So far as the analysis report of fertilizer sample of Power Plus (Ex. C-13) is concerned the respondents had taken the plea in the written statement that these sealedpackets were required to be kept in particular temperature and were to be kept away from sunshine failing which these were likely to lose its strength. There is no evidence on the file if these instructions of respondent No. 2 were followed either by respondent No. 1 or by the appellant himself before sending the sample to the chemical laboratory. Moreover, the appellant has admitted in his cross-examination that he had kept the weedicides/fertilizers in his room. The light was entering the room where he had placed the insecticides/fertilizers. Therefore, it might be possible that because the power plus and agrianilo were not kept in proper temperature away from the sunshine which reduced the strength of these insecticides/weedicides/fertilizers.”

8. Petitioner has not led any evidence to prove the fact that sample from

insecticides/fertilizers purchased by the petitioner from the respondents was sent for analysis by

District Forum. Learned Counsel for the respondent submitted that as the drug purchased by the

petitioner had already been spread in the fields, petitioner purchased another drug and had sent

for analysis through District Forum. Respondent cannot be held responsible for any loss on the

basis laboratory report of the drug which was purchased by petitioner from the respondents, later

on, which was not part of insecticides/fertilizers sprayed in the field.

9. In the light of above discussion, we do not find any infirmity, illegality or jurisdictional

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

10. Consequently, revision petition filed by the petitioner against the respondents is dismissed

with no order as to costs.

……………………………( K.S. CHAUDHARI, J) PRESIDING MEMBER

..……………………………


k



(From the order dated 09.08.2012 in First Appeal No. 3808/2011 of Karnataka State Consumer Disputes Redressal Commission)

Smt. Devamma, w/o late Kempaiah Hallikere Village, Kasaba Hobli, Maddur Taluk, Mandya District Karnataka State

... Petitioner

Versus

Branch Manager, Life Insurance Corporation Maddur Branch Mandya District Karnataka

… Respondent(s)

BEFORE




For the Petitioner(s) Mr. Mahaling M. Pandarge, Advocate

(Amicus Curiae)




1986 against the impugned order dated 09.08.2012, passed by the Karnataka State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 3808/2011,

“Devamma versus Sr. Divisional Manager, LIC of India & Ors.” vide which while dismissing

appeal, the order dated 24.10.2011, passed by the District Consumer Disputes Redressal Forum,

Mandya, dismissing the consumer complaint no. 71/2011 was upheld.

2. Brief facts of the case are that the husband of the complainant Smt. Devamma, during his

life time, took two life insurance policies from Life Insurance Corporation (hereinafter referred

to as “LIC”) of `50,000/- each as per policy number 724020986 and 720799225. The

complainant/petitioner was nominated as his nominee in both the policies. The policy

holder Kempaiah died on 06.07.2009. The complainant/petitioner claimed the

insurance amount from the respondent LIC by furnishing the relevant documents. The

LIC settled the claim with respect to policy number 720799225, but refused to pay claim for the

other policy on the ground that the policy holder had suppressed material information at the time

of obtaining the policy. It was stated that Shri Kempaiah was suffering from cancer, but he did

not disclose this information while obtaining the policy, although he was under treatment for the

said disease at the time of taking the policy. The consumer complaint was filed by the

petitioner/complainant before the District Forum, saying that the policy amount of `50,000/-

should be paid to her along with bonus and interest. In addition, a compensation of `1 lakh

should be paid towards mental agony, pain and financial loss etc. and also the cost of litigation

should be paid. The District Forum vide their order dated 24.10.2011, dismissed the complaint,

saying that the policy holder had suppressed material information about the disease before taking

the policy. An appeal filed against this order before the State Commission was also dismissed

vide impugned order dated 09.08.2012. It is against this order that the present petition has been

made.

3. Along with revision petition, a letter was sent by the petitioner requesting for grant

of legal aid as he belongs to below poverty line category. Mr. Mahaling M. Pandarge, Advocate

was appointed amicus curiae in the case to assist the court.

4. Learned amicus curiae at the time of hearing before us, stated that the LIC had allowed

claim for one of the policies. The petitioner should, therefore, be paid claim for the second

policy as well or as requested, the premiumdeposited with the LIC, should at least be refunded to

her with reasonable interest.

5. We have examined the entire material on record and given a thoughtful consideration to

the arguments advanced before us. As made out from records, the policy number 724020986

commenced with effect from 28.11.2007, and the husband of the petitioner died on 6.07.2009,

i.e., after a period of 1 year 7 months and 8 days after taking the policy. As per the investigation

conducted by LIC, it was revealed that the deceased was a patient of cancer and he took

treatment at Mandya Institute of Medical Sciences, Mandya under registration number 407/07

dated 20.11.2007. In support of this version, the OP got examined Dr. T. Ranganath from the

Mandya Medical Science Society Cancer Centre who produced record before the court from

where it was revealed that Shri Kempaiah was admitted on 20.11.2007 in the said hospital for

treatment. Regular treatment was also given to him w.e.f. 28.11.2007. It has been made out,

however, that while filling proposal form, the insured did not give correct answers to various

questions contained in the proposal form. Some of the questions and their answers given by the

policy holder are reproduced as follows:-“Q. No. 11 (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) Are you suffering from or have you ever suffered from Diabetes, Tuberculosis, high Blood Pressure, Low Blood Pressure, Cancer, Epilepsy, Hernia, Hydrocele, Leprosy, or any other disease? No (i) What has been your usual state of health?Good Q. No. 15 – Have you understood in full, the term and conditions of the plan you propose to take? Yes”

6. It is clear from the answers given by the policy holder in the proposal form that he

concealed material information from the insurance company before taking the policy in

question. It is also clear from record that medical examination of the policy-holder was not got

conducted by the LIC.

7. It is an established legal proposition that the contract of insurance is a contract of utmost

good-faith. The doctrine of “Uberrina Fides” is fully applicable in this case. It was the duty of

the insured to give correct answers to the questions, in the absence of which an adverse inference

is likely to be drawn against him.

8. It has been stated in the complaint that Shri Kempaiah died on 06.07.2009 by committing

suicide because of some family problems. The insurance company, however, maintains that the

cause of death was cancer and not suicide. Even if the version of the complainant is believed

that death took place by suicide, the policy holder cannot be absolved of his responsibility to

provide correct information to the insurance company at the time of obtaining the policy in

question.

9. Further section 45 of the Insurance Act, 1938 is reproduced below:-“45. No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry calf two years from the date on which it was effected be called in question by an insurer on the ground that statement made in the proposal or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose: Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal.”

10. A plain reading of the above section shows that if a period of two years has passed after

obtaining the insurance policy, the policy cannot be called in question on the ground of

misstatement, unless the insurer shows that material facts had been suppressed with a fraudulent

motive. In the present case, the death occurred before the expiry of two years from the date of

commencement of policy. The insurance company was, therefore, well within its rights to

repudiate the claim upon discovery that correct information about the state of health of the

deceased was not given at the time of obtaining the policy.

11. Based on the discussion above, we do not find any legal infirmity, irregularity or

jurisdictional error in the orders passed by the State Commission and District Forum. The said

orders are, therefore, upheld and the present revision petition is ordered to be dismissed with no

order as to costs.Sd/-

(K.S. CHAUDHARI J.) PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA) MEMBER

RS/



(From the order dated 19.07.2012 in First Appeal No. 1838/2010 of Rajasthan State Consumer Disputes Redressal Commission)

Shree Hiralal Tel Udyog F-30, RIICO Brij Industrial Area Bharatpur Rajasthan – 321001

... Petitioner

Versus

1. United India Insurance Co. Ltd. Regional Office Sahara Chambers Tonk Road Jaipur, Rajasthan Also at: United India Insurance Co. Ltd Bharatpur, Divisional Office

2. M/s Radhey Radhey Road Lines (Transport Contractor & Tanker Suppliers) Nai Mandi Bharatpur – 321001 Rajasthan

… Respondent(s)

BEFORE



For the Petitioner(s) Mr. K.R. Panmei, Advocate

For the Respondent–1 Mr. V.S. Chopta, Advocate

For the Respondent–2 Mr. V.K. Anand, Advocate




1986 against the impugned order dated 19.07.2012, passed by the Rajasthan State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 1838/2010,

“United India Insurance Co. Ltd. & Ors. versus Shree Hiralal Tel Udyog & Ors.” vide which,

while allowing the appeal, the order dated 05.08.2010 passed by the District Consumer Disputes

Redressal Forum, Bharatpur, allowing the consumer complaint in question, was set aside.

2. Brief facts of the case are that the complainant/petitioner had taken a marine insurance

policy for the period from 15.03.2008 to 14.03.2009 for a sum of `2 crore for transportation of

their goods. The complainant used to send their goods to various parts of the country and take

transit risk cover for the same. On 06.04.2008, the complainant sent 152 quintals Mustard oil

through tanker no. WB41B6393 to M/s. Kanak Enterprises Kolkata, the value of the goods being

`9.29 lakh. However, the goods in question, never reached Kolkata and after a few days, the

empty tanker was found lying in a gorge at a place in District Hooghly in unclaimed

condition. It was alleged by the complainant that the said goods had been sold by the driver of

the tanker Munna Singh who fled away after abandoning the tanker.

3. On the other hand, it was contended by the OP Insurance Company that incident itself was

suspicious that information about the incident had been given to the Insurance Company after a

long delay, the complainant had not cooperated with the surveyor and also not produced the

necessary documents. The OP has also maintained that if any such incident had taken place, the

transport carrier only was responsible for the same. The complainant filed the consumer

complaint no. 289/2008 before the District Forum Bharatpur and the said forum allowed the

same and directed the insurance company to pay an amount of `9.29 lakh alongwith interest

@9% p.a. from the date of the filing of the complaint, i.e., 28.08.2008 till realisation and `2000/-

as cost of litigation. An appeal filed before the State Commission against the order of the

District Forum was, however, allowed vide impugned order. The State Commission, concluding

that the factum of theft had not been proved, set aside the order of the District Forum. It is

against this order that the present revision petition has been made.

4. At the time of hearing before us, the learned counsel for the petitioner/complainant stated

that the State Commission had erroneously observed that the necessary documents in support of

the version of the complainant had not been brought on record. In fact, the Complainant had

filed his own affidavit in support of the complaint, copy of the legal notice dated 2.08.2008,

invoice dated 06.04.2008, VAT form, bilty, Trade Tax Form and letter dated 28.08.2008 from

the Insurance Company, regarding the contract between supplier of goods and the receiver. The

said contract could be oral or in writing. The learned counsel for the petitioner/complainant

further stated that intimation about the incident had been given to the Insurance Company on the

same date. The facts have been elaborated in the affidavit filed by the complainant and it has

been made clear that the item was not delivered at its destination. The report of the Police, a

copy of which has been placed on record also makes it clear that the theft had been committed

and a case had been registered vide FIR No. 72/2008 under section 379/406 IPC and the

investigation was being carried out. The name of the driver Munna Singh has also been

mentioned in another FIR lodged with the Police in West Bengal at Police Station District

Hooghly vide FIR No. 29 dated 15.04.2008.

5. In the report of the surveyor also, it has been mentioned that the consignment never

reached M/s. Kanak Enterprises Kolkata. Further, the transporter had given a damage certificate

on 07.05.2008, saying that 152 quintal of mustard oil had been loaded in tanker WB41B/6393 for

M/s. Kanak Enterprises, Kolkata through bilty no. GR847. The said tanker had been stolen on

the way but later on, the empty tanker was found in unclaimed condition under Police Station

Dadpur for which an FIR had been registered with Police Station Dadpur by the owner of the

truck. The Transport Company also sent letter dated 28.11.2008 to the surveyor, confirming the

issuance of the damage certificate dated 07.05.2008 and also confirming the facts once again.

6. The learned counsel has further drawn attention to copy of bilty GR847, produced on

record in which the registration number of the truck has also been given. Further, a copy of VAT

form containing declaration for carrying goods outside the State by registered dealer and the

copy of waybill for transport of consignment of goods under the West Bengal VAT Rules 2005

has also been produced. The learned counsel pointed out that the surveyor appointed by the

Insurance Company had not visited Bharatpur to hold proper inquiry in the matter and this fact

had been admitted by the surveyor in the report submitted by him dated 24.09.2008. The

surveyor has mentioned that they had not visited Bharatpur to minimise the expenses and

suggested that the relevant records may be got verified from a local surveyor. It was clear from

all these facts that the complainant/petitioner had proved their case with all supporting

documents and hence, there was no ground for the State Commission to set aside the order of the

District Forum.

7. Learned counsel for the respondent, however, stated that the goods in question, are

reported to have been dispatched on 06.04.2008, but the whereabouts of the said truck and the

goods were not known till 15.04.2008. It was not clear how the petitioners suddenly realised on

15.04.2008 that the said consignment had been lost. The learned counsel further stated that this

case was a fraudulent one and even earlier, there had been a case involving the same parties

which was enquired into by the Central Bureau of Investigation (CBI). Learned counsel further

submitted that the vehicle in question did not belong to the transporter M/s. Radhey Radhey

Roadlines, who have been made a respondent in the complaint. Further, no cause of action has

arisen in Bharatpur and hence, the consumer complaint could not have been filed in that

District. Regarding the production of VAT form etc., the learned Counsel stated that merely

producing copies of VAT form, does not confirm that the goods had been dispatched

physically. In so far as the earlier case being investigated by the CBI is concerned, it has been

brought out that an officer of the Insurance Company was also involved in that case, but because

of his death the case had been closed. Learned counsel further stated that if the vehicle carrying

the goods in question had gone from Bharatpur to West Bengal, there should have been receipts

issued by the check-posts on the way, which could have established the movement of the vehicle,

but not even a single such receipt had been produced. The complainant has also given an evasive

reply before the surveyor. They have not impleaded the owner of the truck as a party and hence,

the complaint had been rightly dismissed by the State Commission saying that the case was

shrouded in suspicious circumstances.


arguments advanced before me. The petitioners have tried to explain that all necessary

documents concerning the dispatch of the said consignment of mustard oil to M/s. Kanak

Enterprises Kolkata and the non-receipt of the same by the consignee had been produced on

record. The District Forum reached the conclusion that the consignment had been stolen on the

way and hence, the Insurance Company was liable to compensate the petitioner for the

loss. However, the State Commission set aside the order of the District Forum, saying that there

was complete absence of evidence or affidavits to support the fact of theft of goods. This

observation of the State Commission is, however, not substantiated from the record because the

necessary affidavit and evidence has been filed by the petitioner before the District Forum. The

State Commission have also observed that the petitioner had not fully cooperated with the

investigator of the Insurance Company. There was no record or document about the

investigation made by the Kolkata Police. The State Commission have also observed that the

owner of the said truck belonged to West Bengal and hence, affidavit from the owner of the truck

or from M/s. Radhey Radhey Roadlines should have been filed. The State Commission have

also observed that the proof of movement of the truck could be known from the receipts issued

by check-posts on way from Bharatpur to West Bengal.

9. Based on the averments made by both the parties, it becomes clear that the core issue in

the present case involves the movement of a consignment of mustared oil from Bharatpur to

West Bengal and its non-receipt by the consignee in question, i.e., M/s. Kanak Enterprises. The

petitioner has tried to prove his case by producing copies of various documents and also

affidavits of the petitioner/complainant. The report made by the Bharatpur Police is on

record. A copy of the FIR lodged with the West Bengal Police is also on record which mentions

the name of the driver as Munna Singh. It is, therefore, absolutely necessary that the matter

should be thrashed out in entirety by carrying out an analysis in depth of the facts and

circumstances on record. I agree with the observations of the State Commission that if the truck

has moved from Bharatpur to West Bengal, there could have been receipts issued by the check-

posts which came on the way. The State Commission should have asked the parties to produce

the required documents and further evidence, if any. In the interest of justice, it is absolutely

necessary that the matter should be examined in detail. The parties should be asked to produce

documents and then a firm conclusion should be arrived at bringing out clearly whether the theft

of the material in question is proved on record.

10. With these observations, I deem it necessary to set aside the order of the State Commission

and to remand the case to the State Commission with the direction that parties should be asked to

lead further evidence which should be analysed in depth by State Commission and a conclusion

should be reached, looking at the circumstances of the case in totality. The revision petition is,

therefore, accepted, the impugned order is set aside and the case is remanded to the State

Commission for further proceedings.

11. Parties are directed to appear before the State Commission on 15th April 2014.Sd/-

(DR. B.C. GUPTA)

PRESIDING MEMBERRS/



(From the order dated 13.02.2013 in First Appeal No. 154/2012 of Andhra Pradesh State Consumer Disputes Redressal Commission)

The Chairman Family Benefit Scheme Indian Medical Association AP State Branch IMA Buildings, Sultan Bazaar, Hyderabad

... Petitioner

Versus

Tadinada Usha Rani w/o late Dr. TVS Rama Krishna Flat No. 4, 4th Floor Surekha Paradise Chakirevupalem Machilipatnam Andhra Pradesh

… Respondent

BEFORE




For the Petitioner(s) Mr. K. Maruthi Rao, Advocate

Mrs. K. Radha, Advocate

For the Respondent Mr. P. Prabhakar, Advocate




1986 against the impugned order dated 13.02.2013, passed by the A.P. State

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

154/2012, “Chairman Family Benefit Scheme, Indian Medical Association

versus Tadinada Usha Rani” vide which while dismissing the appeal, the order dated 18.01.2012

passed by the District Consumer Disputes Redressal Forum – I, Krishna, allowing the consumer

complaint, CC No. 31/2011 was upheld.

2. Brief facts of the case are that respondent/complainant Tadinada Usha Rani wife of late

Doctor T.V.S. Ramakrishna filed the consumer complaint in question, saying that her husband

was a life member of the Indian Medical Association, A.P. Branch. The said Association

introduced a Family Benefit Scheme for its members and Dr. Ramakrishna became a member of

the Scheme vide membership number M/1/0022/002252/92 in the year 1992 and nominated the

complainant as his nominee. The husband of the complainant regularly contributed to the

Scheme till March 2010. However, he fell seriously ill in March 2010 and was admitted in

several private hospitals for treatment and ultimately, he expired on 15.10.2010. The

complainant has stated that she was not aware of the terms of payment of the Scheme. However,

on 27.12.2010, while vacating the dispensary cum rental house, she found a letter dated

8.12.2010 from the Opposite Party supposed to be a reminder notice for bill no. 38 dated

1.09.2010, reminding for payment of `2,215/- towards instalments and late fees. The

complainant sent a letter on the very next date, i.e., 28.12.2010, bringing to the notice of the OP

about the sickness of her husband, the treatment taken and his death on 15.10.2010. The

complainant also remitted an amount of `2215/- by way of bank draft as per the bill. She

requested the OP to send her the claim form, but there was no response from them. On 1.3.2011,

the complainant received a bill in the name of her husband, directing him to pay `1,440/- stating

that this payment was due by 31.3.2011. The complainant sent reply to this letter on

26.03.2011. She also made payment of `1440/- as stated in the fresh bill and again requested the

OP to settle the claim. However, on 4.05.2011, the complainant was informed by the OP that her

husband had become defaulter for non-payment of the subscription on 1.09.2010 and his name

had been deleted from the list of Members of Scheme. The amounts of `2,215/- and `1,440/-

were also returned by the OP. The complainant/respondent then filed the consumer complaint in

question, before the District Forum. As per order dated 18.01.2012, the District Forum allowed

the complaint and directed the OP to pay a sum of `4,93,085/- with interest @9% p.a. from the

date of filing the complaint, i.e., 8.8.2011 till payment and also to pay cost of `2,000/- to the

complainant. The appeal filed before the State Commission against the order of the District

Forum was dismissed by the said Commission vide impugned order dated 13.02.2013. It is

against this order that the present petition has been made.

3. It has been stated in the complaint that under the Scheme, every member had to subscribe

`2100/- for every half year before the end of March and September every year. This version of

the complainant is, however, not correct, because as per the Constitution of this Family Benefit

Scheme, a contribution of `100/- has to be made by every member, each time towards Fraternity

Contribution, in the event of death of a member, which is paid to the nominee of the deceased

member. At the time of framing the Scheme, this amount was `50/- for every death, but it was

subsequently raised to `100/-. It has been provided that a demand letter is issued by the

Secretary of the Scheme on 1st March and 1st September on every year in which the demand for

contribution from individual members is raised, depending upon the number of deaths that have

taken place during the preceding six months. To elaborate, in the demand letter to be issued on

1st March, say 1.03.2012, the number of deaths that have taken place from 1.09.2011 to

28.02.2012 shall be taken into account. If 20 people have died during this period, the demand

shall be `2000/- from every living member, along with `40/- as administrative expenses, meaning

thereby that every member shall be asked to pay a sum of `2040/-. This sum is payable by

31st March or 30th September of the relevant period. However, if the money is not paid in time,

the members can still make the payment, alongwith a late fee of `25 per month. It is also

provided that if the contribution is not paid within six months of the demand so raised, the

membership will be terminated after issuing a notice under registered post. These provisions are

contained in clause X, para 2, which is reproduced as below:-“……………………………………………………………….. 2. If a member fails to pay his/her share of Fraternity Contribution

within 30 days of the demand by the Secretary, he/she shall be treated as a defaulter and he/she shall pay an extra amount of `25/- per month or part thereof as late fee. If a member does not clear he/she dues within 6 months after the demand by the Secretary, his/her membership will be terminated and his/her caution deposit forfeited after issuing a Notice under Registered Post Acknowledgement due.

………………………………………………………………”

4. It is clear from above that a member is free to deposit his contribution within a period of 6

months of the demand being raised, without his membership being terminated, although he shall

be treated as defaulter if the amount is not deposited within 30 days of the demand.

5. It has further been provided in the Constitution of the Scheme that a caution deposit of

`900/- has to be made by every member, which is refundable at the time of cessation of

membership. In the event of death of a member, the Fraternity Contribution to be paid to the

nominee of the deceased member is drawn from the caution deposit, and later on recouped after

raising demand from the living members on 1st March and 1st September every year as explained

above.

6. At the time of hearing before us, the learned counsel for the petitioner submitted that it

was an admitted case of the complainant that the payment of subscription which was due in

September 2010, had not been made by her husband in time and the same was paid after his

death by the complainant. In accordance with the terms and conditions governing the Scheme, a

defaulter Member can continue with scheme by paying the arrears according to rules. However,

payment made on behalf of dead member was not valid. In this case, since the payment had been

made after the death of the Member, it was not obligatory on the part of the petitioner to pay the

claim. Learned counsel for the respondent, while admitting that payment had been made after

the death of the Member stated that claim should be paid, as defaulter could make payment

within the grace period.

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

arguments advanced before us. It is made out from the facts on record that the Family Benefit

Scheme of the A.P. State Branch of the Indian Medical Association came into operation with

effect from 1.10.1990. A copy of the Constitution of the Scheme has been placed on record in

which details about the operation of the Scheme including enrolment fees, termination of

membership claim etc. have been given. A careful reading of the clause X, para 2 of the scheme,

as stated above, indicates that termination of Membership takes place only, if a member does not

clear his dues within six months after the demand raised by the Secretary and that also, after

issuing a notice under registered cover. In the present case, it is clear, therefore that had the

Member lived beyond 15.10.2010, he could have cleared his default by making payment

alongwith late fees. The contention raised by the petitioner that payment of a dead Member

cannot be accepted from his legal representatives etc. does not hold ground in view of the fact

that the default can be cleared by payment of subscription with late fees. The constitution of the

scheme nowhere provides that the payment cannot be accepted from the legal heirs of a dead

member. It is also clear that the deceased has been making regular payment of premium since

1992, but because of his sickness from March 2010 onwards, if he could not make the payment

of one subscription which was due in September 2010, in time, his family cannot be allowed to

suffer just for one default in making the payment and more so, when the provisions exists in the

Scheme for accepting the subscription with late fees. The Aims and Objectives of the Scheme

very clearly provide that the Scheme has been framed to provide immediate substantial financial

aid to the family of the Member of the Scheme on his/her demise. The said objectives shall be

absolutely defeated, if a view is taken that just for one default in making payment of subscription

and that also because of his sickness and consequential death, the membership stands terminated

and the family of deceased is not given the benefit of Fraternity Contribution. The Constitution

of the Scheme clearly provided that membership can be terminated only if the payment is not

made within six months of demand (with late fees) and that also, after giving a registered notice

to the beneficiary.

8. It is quite clear from the above that the State Commission and the District Forum have

made a correct appreciation of the facts and circumstances on record and came to the conclusion

that the opposite party was not justified in repudiating the claim filed by the family of the

deceased member on the ground that he could not make payment of the demanded amount of

`2,215/- through bill no. 38 dated 1.09.2010. This payment could very well be made within a

period of six months of the demand along with late fees and the membership could be terminated

only after giving registered notice to the Member. In the meantime, if the Member died on

15.10.2010, it shall be unjustified to deprive his family about the benefit of the Scheme towards

which the deceased contributed since 1992.

9. Based on the discussion above, it is held that the impugned order passed by the State

Commission and the order of the District Forum do not suffer from any illegality, irregularity or

jurisdictional error. The same are, therefore, upheld and the present revision petition is ordered

to be dismissed with no order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/




1. Ram Swaroop Agrawal s/o Late Chironji Lal Agrawal above Canara Bank, Daal Bazar, Lashkar, Gwalior, Madhya Pradesh

2.A. Mohanlal Agrawal s/o Ram Swaroop Agrawal Old Palasia, Indore Madhya Pradesh

B. Rakesh Agrawal s/o Ram Swaroop Agrawal

C. Mukesh Agrawal s/o Ram Swaroop Agrawal above Canara Bank, Daal Bazar, Lashkar, Gwalior, Madhya Pradesh

D. Sanjay Garg s/o Ram Swaroop Agrawal old Palasia, Indore Madhya Pradesh

... Petitioners

versus

The New India Assurance Co. Ltd. Division Office, Sachdeva Bhawan, MLB Road, Gwalior

… Respondent

BEFORE



For the Petitioner(s) Mr. Avneesh Garg, Advocate

For the Respondent Dr. Sushil Kr. Gupta, Advocate




1986 against the impugned order dated 03.11.2007, passed by the Madhya Pradesh State

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

1581/2006, “Ram Swaroop Agrawal & Anr. versus New India Assurance Co. Ltd. & Anr.” vide

which appeal against the order dated 10.07.2006, passed by the District Consumer Disputes

Redressal Forum, Gwalior, dismissing the consumer complaint no. 391/2004, was ordered to be

dismissed and the order of the District Forum was upheld.

2. In the revision petition, the New India Assurance Co. Ltd. was made as respondent no. 1

and M/s Paramount Health Services Private Limited, Bhopal was made as respondent no.

2. However, during the pendency of the revision petition, an application was moved for deletion

of respondent no. 2 from the array of parties. The said application was allowed and amended

memo of parties was taken on record.

3. The brief facts of the case are that petitioner no. 1 / complainant no. 1 and his wife

Shakuntala Devi Agrawal, obtained a mediclaim policy from the respondent Insurance

Company for the period from 31.12.2001 to 30.12.2002 for an amount of `2,00,000/-, which was

subsequently renewed for the period from 31.12.2002 to 30.12.2003 on payment of a premium of

`9,469/-. During the tenure of the policy, Smt. Shakuntala Devi suffered from ailment of

fever, abdominal and chest pain in the month of March 2003. She remained

under treatment with various hospitals including the Apollo Hospital. A claim of `1,24,682/-

was made under the mediclaim policy with respect to expenditure on treatment taken by Smt.

Shakuntala Devi from various hospitals. The said claim was, however, repudiated by the OPs on

the ground that Smt. Shakuntala Devi had been suffering from diabetes and hypertension for the

last 15 years. The consumer complaint in question, was then filed before the

District Forum. However, during the pendency of the case, Smt. Shakuntala Devi died and the

petitioners no. 2 (a to d) were impleaded as parties in her place. The District Forum after taking

into account the evidence submitted before them, dismissed the consumer complaint in

question. The State Commission vide impugned order also dismissed the appeal filed by the

petitioners/complainants. The present revision petition has been moved against this order.

4. At the time of hearing, the learned counsel for the petitioners/complainants stated that the

factum of suffering from diabetes and hypertension had been declared by the petitioners before

taking the policy in question to the Insurance Company and this fact has been stated in the order

of the District Forum as well. Referring to the repudiation letter sent by M/s. Paramount Health

Services Pvt. Ltd., the learned counsel says that the claim has been repudiated stating as

follows:-“As per Discharge Summary of Indraprastha Apollo Hospital, the patient Mrs. Shakuntala Devi Agrawal is a known case of Diabetes and Hypertension for the last 15 years and the disease for which she took the treatment is a complication of Diabetes &

Hypertension. Therefore, the disease was Pre-existing at the time of taking insurance policy and accordingly the claim is repudiated under condition no. 4.1 of the Policy.”

5. Referring to order passed by the Delhi High Court in “Hari Om Agrawal versus Oriental

Insurance Co. Ltd.” [as reported in AIR 2008 Delhi 29], the learned counsel stated that any

exclusion clause which runs counter to the desired objectives of the Policy is wrong. The

Hon’ble High Court has observed as follows in the said judgement:-“…………It is apparent that even if there were known diseases or conditions, which were disclosed and for which there was a likelihood of complications arising in the future, the insurer sought to distance itself from the liability. There is no dispute here that diabetes was a condition at the time of submission of proposal; so was hyper tension. In a sense these were “old ailments'”; the petitioner was advised to undergo ECG, which he did. The insurer accepted the proposal and issued the cover. One may ask, what then was the cover for. It is not an accident cover policy, or a life policy. Now, it is universally known that hypertension and diabetes can lead to a host of ailments, such as stroke, cardiac disease, renal failure, liver complications, etc. depending upon varied factors. That implies that there is probability of such ailments; equally they can arise in non-dibetics or those without hypertension. Unless the insurer spelt out with sufficient clairity, the purport of its clauses, or charged a higher premia, at the time of accepting the proposal, the insured would assume and perhaps, reasonably that later, unforeseen ailments would be covered. Thus, it would be apparent that giving a textual effect to Clause 4.1 would in most such cases render the mediclaim cover meaningless; the policy would be reduced to a contract with no content, in the event of the happening of the contingency. Therefore, I am of the opinion that Clause 4.1 cannot be allowed to override the insurer's primary liability; the “main purpose” rule would have to be pressed into service. This finding is reinforced in this case, as the insurer renewed the policy, in 2006, after the petitioner underwent the CABG procedure.”

6. The learned counsel has further drawn attention to the order passed by this Commission in

Revision Petition No. 2640 and 2641 of 2005 decided on 3.04.2006, “New India Assurance Co.

Ltd. versus Vasant Rao” in support of his argument. It has been observed in this order as

follows:-“…….He had not hidden the fact of his having undergone the bye-pass surgery in 1986 from the Insurance Company. If the Insurance Company knew that the heart disease would continue over a time, they ought to have sent the Respondent for a medical test at the time of issuing the insurance and should have clearly mentioned that heart disease is excluded from the policy. None of the above averments have been successfully controverted by the Petitioner, the Insurance Company. After a successful by-pass operation in 1986 it can no longer be said that this disease continues. Therefore, the repudiation is unjustified…”

7. Learned counsel maintained that the repudiation of claim was not in order based on the

view taken in the above two judgements. The learned counsel for the petitioner has also drawn

attention to the order passed by the Hon’ble Apex Court in “B.V. Nagaraju versus Oriental

Insurance Co. Ltd.” [as reported in (1996) 4 SCC 647] and the order passed in “Skandia

Insurance Co. Ltd. versus Kokilaben Chandravadan and others” [as reported in (1987) 2 SCC

654], pleading that the exclusion clause of the insurance policy must be interpreted in a way, so

as to serve the main purpose for which the policy had been issued.

8. On the other hand, learned counsel for the respondent insurance company has drawn

attention to a copy of the discharge summary issued by the Apollo Hospital, Delhi, saying that

Smt. Shakuntala Devi suffered from a number of diseases and not only the heart disease. The

treatment given by the said hospital mentions that she was given anti-hypertension drugs. The

order passed by the District Forum also makes it clear that the complainants had not been able to

prove that the disease for which the treatment was taken, were not related to hypertension or

diabetes and were related to fever, abdominal and chest pain only. It was, therefore, not possible

to say that the disease for which the treatment was taken was different from hypertension or

diabetes. The learned counsel argued that parties of a mediclaim policy is to cover the risk of

unforeseen circumstances only. The exclusion clause 4.1 makes it clear that any complications

arising from pre-existing diseases will be considered part of the pre-existing condition. Since

there were concurrent findings of the two lower courts, there was no justification for making any

change in the said orders at the stage of revision petition. The revision petition, therefore,

deserves to be dismissed.


arguments advanced before me. It is made out from record that the policy-holder Mrs.

Shakuntala Devi was a known case of diabetes, hypertension and the said fact had been declared

by the policy-holder at the time of obtaining the said policy. It is also clear that under the terms

and conditions of the policy, any claim with respect to the treatment of these diseases was not

payable to the complainants. The main ground taken by the complainant says that Smt.

Shakuntala Devi suffered from the ailments of fever, abdominal and chest pain and the

expenditure incurred by them on her treatment was on account of these diseases. However, the

material on record brings out that the discharge summary issued by the hospital says that she was

a known case of diabetes and hypertension for the last 15 years and treatment was given for

control of these diseases also. It has also been brought out by the State Commission that the

single vessel disease diagnosed and treated was a complication of diabetes mellitus with

hypertension. The complainants have not been able to prove that the treatment taken from the

hospitals was not related to hypertension or diabetes. The exclusion clause 4.1 makes it very

clear that the complications that have arisen from a pre-existing disease will be considered part

of the pre-existing condition.

10. Based on the discussion above, it is made out that there is no infirmity, irregularity,

illegality or jurisdictional error in the orders passed by the State Commission and the District

Forum which may merit any interference at the revisional stage. The revision petition is ordered

to be dismissed. The impugned order is, therefore, upheld with no order as to costs.Sd/-

(DR. B.C. GUPTA)

PRESIDING MEMBERRS/

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