Judgments of April 2014

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3126 OF 2008

(Against the order dated 22.04.2008 in Appeal No.155/2007 of the State Commission,
Maharashtra)
HDFC BANK LTD. HAVING ITS OFFICE AT: JAJU ARCADE TARA BHAI PARK
KOLHAPUR, ALSO AT : NETRAPI APARTMENT BHANDARKAR INSTITUTE LAW
COLLEGE PUNE 4 (MAHARASHTRA)
THROUGH
ITS
AUTHORISED
REPRESENTATIVE
....... Petitioner
Versus
SHRI SUBODH GHANSHYAM PRABHU R/O 137, RUIKAR COLONY E WARD
KOLHAPUR (MAHARASHTRA)
...Respondent
BEFORE:
HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner:
Mr. Punit Bhalla, Advocate with Ms. Chetna Bhalla, Advocate
For the Respondent:
Mr. Randhir Jain, Advocate with Ms. Ruchika Jain, Advocate
Pronounced on : 1st April, 2014

ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
Present revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 (short, Act) praying for setting aside order dated 22.4.2008,
passed in (First Appeal No.155 of 2007) by Maharashtra State Consumer
Disputes Redressal Commission, Mumbai (short, State Commission).
2.
Respondent/complainant had filed a consumer complaint under section 12 of the
Act on the allegations that he is having business of hardware and steel in the Kolhapur
City. He is customer of Petitioner Bank/Opposite Party. It is stated that respondent is
having his loan share account with the Petitioner. Respondent had purchased shares of
many well-known companies and has opened the share Mortgage Account with the
Petitioner. Further, respondent had taken loan against the said shares from the
Petitioner. As per written instructions of the Petitioner, some of the shares have been
sold and have maintained the said account in a proper manner. It is also stated that
respondent has given the oral as well as written permission to the petitioner for selling
the shares from the said account. As per fluctuations of the price of the shares in the
share market and due to the same, if the overdraft facility limit is reduced from the
specific stage, then the shares of the said amount shall be sold out in the market or the
cash amount lying depositing in the said account. However, if respondent failed to
maintain the said account properly, then Petitioner has the right to sell the shares out
the amount of deficit in the said account. However, petitioner had no right to sell or
exchange any of the shares without the written permission of the respondent from the
said account.
3.
As there was sudden fall in the value of the shares and inspite of intimation,
respondent could not maintain his account properly. Therefore, petitioner sold the
shares to which respondent raised strong objection on the ground, that without proper
intimation and without waiting for seven days as per terms of the contract, Petitioner
sold the shares and thereby caused financial loss to him.
4.
It is further stated that shares of Hero Honda were sold for Rs.95,212/- and
shares of Glaxo Smithkline Pharmaceutical Ltd. were sold for Rs.59,820/- on 9.6.2004,
as there was shortfall in the account of the respondent. The respondent deposited
additional amount of Rs.20,000/- to make the account regular. This was in response to
the notice sent by the Petitioner on 17.5.2004. The petitioner sold the shares on
15.6.2004. The intimation by telegram was given to the respondent on 13.6.2004. In
fact, Petitioner sold the shares within two days from the telegraphic notice. As per the
contract, Petitioner was required to wait for seven days, but it did not wait for seven
days and sold the shares within two days from the date of service of telegraphic
notice. This is a serious deficiency on the part of the Petitioner. With these allegations,
respondent filed a complaint before District Consumer Disputes Redressal Forum,
Kolhapur (short, District Forum) with following prayers ;
(a) That the Opposite Party Bank has sold the shares from the
share account of the complainant and owned by him of the
Galaxo Smithkline Pharmaceuticals Ltd. and Tata Chemicals
Ltd. on 17.6.2004 and caused the loss and damage to the
complainant amounting to Rs.47,260/- be ordered to be paid by
the Opposite Party Bank to the complainant viz. Rs.47,260/together with interest on the same at the rate of 18% per annum,
being the loss caused to him.
(b) The amount of Rs.5,000/- also be ordered to be paid by the
Opposite Party Bank to the complainant towards the
compensation for mental tortures and loss ;
(c) The cost of the complaint amount to Rs.1,000/- be ordered to be
paid by the Opposite Party to the Complainant as he has been
compelled to file the same due to fault on their part in acting
illegally.
5.
The complaint was contested by the petitioner, who in its written statement took
the plea, that respondent had never run his account on regular basis. Respondent gave
proposal of Rs.20 lakh loan on share hypothecation to the petitioner. The loan amount
was sanctioned to the respondent on share market value. The respondent was well
aware of the condition to make payment in cash or deposit amount, if the amount was in
excess of the loan account of share market value. An agreement was reached between
the petitioner and respondent on 2.8.2004. It is further stated that during May, 2004,
price of hypothecated shares came down and the respondent had made use of total
amount of Rs.20,19,061.31, though he had the permissible limit of Rs.18,50,000/-.
Hence, the excess amount came to Rs.1,69,061.31, due to lowering price of
respondents shares. Therefore, vide letter dated 17.5.2004, it was intimated to the
respondent to regularize his account. Upon this, respondent only deposited a sum of
Rs.20,000/- by cheque. Hence, the petitioner sold out respondent hypothecated 200
shares of Hero Honda Company for Rs.95,212/- on 9.7.2004 as also sold out 100
shares of Glaxo Smithklean Pharmaceuticals Ltd. for Rs.59,820/- on 15.6.2004 and
proceeds of these shares deposited in the account of the respondent. In the
circumstances, the petitioner has not committed any default in rendering services.
6.
District Forum, vide their order dated 29.12.2006, allowed the complaint and
passed the following directions ;

(2) Respondents Bank is directed to pay the sum of Rs.46,260/- to
the complainant and interest be paid at 9% from 17.6.2004 till receipt
of final payment.
(3) The Respondents Bank is directed to pay Rs.500/- towards cost
of this complaint to the complainant.
7.
Aggrieved by the order of District Forum, Petitioner filed an appeal before the
State Commission, which dismissed the same.

Hence, the present revision.
8.
We have heard the learned counsel for the parties and gone through the record
as well as written submissions filed by the respondent.

9.
In support of its contentions, learned counsel for respondent has relied upon the
following judgments ;
(i) U.Bhikamchand K. & B.Nirmal Kumar Jain Vs. The Chief Manager,
HDFC Bank Ltd., (FA No.74 of 2007) decided by this Commission and
(ii) Unit Trust of India Vs. Sri Shankar Das, Civil Appeal No.7604 of
2002, decided by the Apex Court on 28.4.2009.
10.
The short question which arises for consideration in the present case is as to
whether respondent comes within the ambit of a consumer as defined under

the Consumer Protection Act, 1986 (for short as 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.
As per averments made in Para No.1 (C) of the complaint, it is manifestly clear
that respondent had been regularly trading in business of shares, which read as under ;
(C) That the complainant has opened the share account
No.1642100000471 with the opposite party No.1 Bank and the said
account has been maintained and kept in a proper manner since the
beginning. The complainant has withdrawn the amount credited to
the said account from time to time and as and when there is
deficiency, then the complainant has sold some of the shares and
credited the said amount in the said account. Further, if it is needed,
then the complainant has given the oral as well as written
permission to the opposite party Bank for selling the shares from the
said account. As per the fluctuations in the price of the shares in the
share market, and due to the same, if the overdraft facility limit is
reduced from the specific stage, then the shares of the said amount
shall be sold out in the market or the cash amount is being
deposited in the said account and maintain the said account. But
however, if the complainant has failed to maintain the said account
properly thereby maintaining the balance amount, then the opposite
party Bank has the right to sell the shares out the amount of deficit
in the said account. However, on maintaining the said account
properly keeping the balance in the said account, then the opposite
party Bank has no right to sell or exchange any of the shares
without the written permission of the complainant from the said

account.
13.
It is an admitted fact that respondent had availed over draft facility from the
petitioner for Rs.20 lakhs by mortgage of shares with the Petitioner Bank, as per Loan
Agreement-Cum-Guarantee. The respondent in his written submission filed before this
Commission has not specifically denied that the loan was not used for his business of
selling the hardware and steel or for trading in shares. Even in his complaint filed
before the District Forum, respondent has failed to mention the purpose of availing of
the loan of Rs.20 lakhs. In fact, the respondent has mentioned that he is having loan
share account with the petitioner and that the respondent has purchased shares of very
well-known companies. He has also admitted that he is in the business of selling the
hardware and steel. Nowhere in his complaint has he pleaded that the loan was taken
for any purpose other than commercial.
14.
Under such circumstances, the respondent would not be a consumer as per
Section 2 (1) (d) (ii) of the Act.

15.
Both the fora below did not deal with the point at all as to whether respondent is a
consumer or not. For the reasons stated above, the present revision petition is
allowed and the order passed by the fora below are set aside. Consequently, the
complaint filed by the respondent before the District Forum stands dismissed.
16.
No order as to cost.
..J
(V.B. GUPTA)
(PRESIDING MEMBER)
....
(REKHA GUPTA)
(MEMBER)
Sonia/

WITH (I.A. NO.2 OF 2011, FOR C/DELAY)
(Against the order dated 07.04.2011 in Complaint Case No.752/2011 of the State
Commission, Rajasthan)
1. Union of India Through Secretary Department of Posts Dak Bhawan, Sansard

Marg, New Delhi
2.
Assistant Post Master Hear Post Office, Sikar, District Sikar
3.
Head Post Master Head Post Office, Sikar, District Sikar
4.
Superintendent of Post Offices Sikar Postal Division, Sikar
5.
Chief Post Master General (Rajasthan Circle), Jaipur

....... Petitioners
Versus
Anjani Kumar Agarwal S/o Chiranji Lal Agarwal R/o Shyam Bhawan, Jaipur Road,
Sikar Presently, at Shiv Sagar, Assam
... Respondent
BEFORE:
For the Petitioner
Mr. Ruchir Mishra, Advocate
For the Petitioner
Mr. Amit Kumar Chawla, Advocate
Pronounced on :
1st April, 2014
ORDER
REKHA GUPTA
Revision Petition No.3947 of 2011 has been filed against the order dated
7.4.2011, passed by Rajasthan State Consumer Disputes Redressal Commission,
Jaipur (short, State Commission) in First Appeal No.752 of 2011.
2.
The brief facts of the case are that the respondent/complainant had filed the
present complaint against the petitioners/opposite parties for the fact that he had
opened a General Provident Fund account with the petitioners at Head Post
Office, Sikar on 15.5.1991 in the said account No.3300696.
3.
The respondent has stated in para 2 in his complaint that a total amount of
Rs.16,46,361/- had been deposited since the year 1991 till year 2008-2009 including
interest on the deposited amount. The petitioners, for the very first time, vide letter
dated 10.7.2008 bearing No.H-2/1R/08-09, called upon the respondent to deposit a sum
of Rs.2,99,744/- being excess interest paidagainst excess amount deposited over and
above the prescribed limit of deposit that can be made in the said account. For the
period from 1995-96 to 2006-07 the said amount come to Rs.1,34,774/-. Thereafter, the
petitioners illegally recovered a sum of Rs.2,99,744/- and the said fact came to the
knowledge of the respondent only in 2008. This act is illegal and amounts to deficiency
in service. The respondent in the year 1991 had opened the said account for the period
of 15 years and thereafter, extended the same for the duration of 5 years but no
objection was raised in this regard by the petitioners. After a period of 18 years, on no
basis, an illegal recovery had been made. The respondent became major in the year
2000 and since then, he has been operating his account No.300696. After the expiry of
the period of 15 years, he took necessary steps to have the said account extended for
another
years
on
18.5.2006
and
no
objection
was
raised
by
the
petitioners. Thereafter, after giving a legal notice, the respondent filed a complaint
before the District Consumer Disputes Redressal Forum, Sikar, Rajasthan (short,
District
Forum)
and
had
prayed
for
recovery
of
Rs.2,99,744/-
and
also compensation for mental harassment and financial loss with interest.
4.
The petitioners in their reply had stated that father of the respondent had opened
a PPF account No.300478 with Sikar Head Post Office on 15.4.1991 in his own name
and another PPF account No.300696 was opened in the name of his minor
son, Anjani Kumar. That this account was also operated by the father of the respondent
that till 14.11.2002, the maximum limit of deposit in the said two accounts was
Rs.60,000/- and thereafter, since 15.11.2002, the maximum limit was increased to
Rs.70,000/-. The respondent has deposited amount in excess of the said limit. That the
audit team of Post and Telegram Audit Office, Jaipur vide its audit report dated
29.2.2007 had objected to the said fact that and indicated that the excess interest of
Rs.2,29,744/- earned by the respondent against rules should be recovered and thus,
Head Post Master, Sikar, caused a notice dated 11.7.2008 to be issued to the
respondent. The respondent failed to deposit the said amount and therefore, in
compliance of the audit report, recovery of the said amount was made. The recovery
was made in compliance of clarification 8 to Rule 3 (1) of PPF Regulations,

1968. Though, Anjani Kumar had become major on 28.12.2000 but he did not make the
requisite application to allow him to operate the said account himself and thereafter, it
was only on 16.12.2006 that necessary application SB-3 was presented. It was on that
very day application in Form H to extend the duration of said account was presented but
it was dated as 15.5.2008 thus the application in Form H presented to extend the
duration for five years is not valid. Thus, they prayed that the present complaint is liable
to be dismissed.
5.
District Forum, vide their order dated 14.2.2011, allowed the complaint and
passed the following order ;

Thus, the present complaint filed by the complainant against the
respondent is allowed and the respondent is directed that the sum
of Rs.2,99,744/- recovered from the complainant Anjani Kumar
shall be deposited in the account of Anjani Kumar, within two
months and it shall be presumed that no such recovery was ever
made and also pay interest and bonus presuming that no such
recovery was made from the complainant. In view of the facts and
circumstances of the present case both the parties shall bear their
own costs.
6.
Aggrieved by the order of the District Forum, the petitioners filed an
appeal before the State Commission. Vide their order dated 7.4.2011, State
Commission, dismissed the appeal and passed the following order ;
In view of the facts and circumstances of the present case,
we do not find any reason to interfere with the order of the District
Forum and therefore, the present appeal is liable to be dismissed.
Thus, order dated 14.2.2011 passed by the District
Forum, Sikar in Consumer Complaint No.316/2010 is confirmed
and this appeal by the appellant is dismissed.
7.
Hence, the revision petition.
8.
We have heard learned counsel for the parties and gone through the record.
9.
Along with present revision petition, an application seeking condonation of delay
of 152 days has also been filed. The reasons given for the delay are as follows ;
3. That most of the records on the basis of which the present
revision petition is being preferred are in Hindi language. The
Applicant took time to have the said records translated and
thereafter
typed
in
English
for
the
perusal
of
the Honble Commission.
4. Further, the Applicant took time to get the necessary instructions

and also the legal opinion from the concerned higher authorities for
preferring the accompanying revision petition which took time.
10. It is well settled that Sufficient Cause for condoning the delay in each case is a
question of fact.
11.
It is seen in the application that the reasons given for delay are extremely vague
and general. No date of the impugned order has been mentioned and when it was
received. It does not give the number of days taken for translation and typing, or it give
the time taken for obtaining a legal opinion nor the names of the higher authorities from
whom necessary sanctions and legal opinion had to be taken.
12.
We are of the view that the petitioners have failed to give any proper justification
for the delay of 152 days. The petitioners have failed to give day to day justification with
dates as also Sufficient Cause for condoning the delay of 152 days.
13. 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.
14.
Honble 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.
15. Under these circumstances, no sufficient cause is made out for condoning the delay
of 152 days in filing the present petition. Accordingly, application for condonation of
delay is not maintainable. Consequently, the present revision petition being hopelessly
barred by limitation is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand
Only).
16. Cost of Rs.5,000/- (Rupees Five Thousand only) to be paid by way demand draft in
the name of the respondent and remaining cost of Rs.5,000/- (Rupees Five Thousand
only) to be deposited in the Consumer Legal Aid Account of this Commission, within
four weeks from today.
17. In case, petitioners fail to deposit the said cost within the prescribed period, then
they shall also be liable to pay interest @ 9% p.a., till realization.
17.
List on 9.5.2014 for compliance.
(V.B. GUPTA) PRESIDING MEMBER

......
(REKHA GUPTA) MEMBER
Sonia/

WITH (I.A. NO.1682 OF 2014, FOR STAY)
(Against the order dated 09.12.2013 in Complaint Case No.515/2013 of the State
Commission, UT, Chandigarh)
1. M/s Ganga Immigration & Education Services Pvt. Ltd. SCO No.13-14-15, Ist Floor,
Sector 34-A, Chandigarh
2. Shri Rajan Verma Authorized Signatory and MD of Ganga Immigration & Education
Services Pvt. Ltd. SCO No.13-14-15, Ist Floor, Sector 34-A, Chandigarh
....... Petitioners
Versus
1. Smt. Reena Pandey W/o Shri Rahul Pandey R/o H. No.443 A, Dashmesh Nagar,
Kharar, Mohali, SAS Nagar - 143301
2. Shri Rahul Pandey S/o Ashutosh Kumar Pandey R/o H. No.3158, Sector-40D,
Presently residing at Dashmesh Nagar, Kharar, Mohali, SAS Nagar -143301
... Respondents
BEFORE:
For the Petitioner
Mr. M.U. Khan, Advocate
Pronounced on : 1st April, 2014

ORDER
REKHA GUPTA
Revision Petition No. 1397 of 2014 has been filed against the order dated
9.12.2013,
passed
by
State
Consumer
Disputes Redressal Commission,
UT,
Chandigarh (short, State Commission) in First Appeal No.515 of 2013.

2.
The brief facts of the case are that the respondents/complainants entered into an
Agreement dated 18.10.2012. As per agreement, the processing fee will be 100%
refundable if work provided by petitioners/opposite parties is not to the satisfaction of
the respondents.
3.
The petitioners had given an assurance of salary of MR-1200 to 1500. The total
cost for work permit is Rs.1.5 lacs per member which includes the work permit for two
years with food, accommodation, insurance and air fare. That in the meantime,
respondents inquired from their sources that the petitioners are authorized by the
Ministry of Labour to provide permits.
4.
On 13th December, petitioners informed the respondents that their visa was
confirmed and their flight was book for 26.12.2012 for that they have to deposit the
balance
amount
with RajanVerma,
MD
of
the
firm. When
the
respondents
approached Rajan Verma, he stated that there were some difficulties in getting the work
permit so they would have to go on a tourist visa and same would be converted into
a work visa within 15 to 30 days by their employee Ms.Shradhya Dass, who will
accompany them to Malaysia. On the assurance given by Rajan Verma, they paid a
sum of Rs.90,000./- as part payment through cheque no.40887 dated 13.12.2012 drawn
on SBI, Sector 41, Branch, Chandigarh and the same was cleared by the petitioners
from their Bank and balance amount was to be paid at the time when the work permit
was provided by the petitioners.
5.
On 26.12.2012, they took a flight to Kuala Lumpur along with Ms. Shradhya and
two other male members. The tickets of Malaysia Airlines were provided by petitioners
and same were return ticket according to which the departure was from Delhi and the
arrival at Mumbai. The respondents had exchanged the money through Paul
Merchants. The respondent no.1 exchanged Rs.28,410/- into MR and the respondent
no.2 had exchanged Rs.28,281/-.
6.
The respondents when they reached Kuala Lumpur were asked by Ms. Shradhya,
who accompanied the respondents to pay Rs.50/- MR as room rent whereas the
accommodation was to be provided free of cost by petitioners. On 27.12.2012, she
introduced them to one Mr. Rahul Negi, who took their passport for getting the work
permits. They were roaming around the city with their luggage. In the evening they had
to stay in a room on the 5th floor with two other guys in the same room. It was very
embarrassing for both of them as they had been promised for separate accommodation.
On next day in the evening, they were put on work in a courier company in night
shift. The respondent no.1 was given a job of data entry operator and other two guys
along with respondent no.2 were forced to do labour work, whereas, it was promised by
the
petitioners
that
they
would
give
jobs
as
per
their
qualifications
and
experience. Moreover, all facilities like free accommodation, food, medical insurance
and overtime which was promised by the petitioners was given to them. Besides all
this, the respondents were forced to do labour work on a very cheap salary.
7.
When they asked for separate accommodation the agent told that they would
have to pay 700 MR for that. When they refused to work as labourers the agent asked
them to vacate the room immediately in the night. They had to stay in a hotel since that
night i.e. 27.12.2012 to 9.1.2013 in Jalan Sultan, 25 k.m. away from Shah Alam and
they spent 80 MR on taxi to reach that place. In the morning of 28th Dec. when they
asked Rajan Verma and Rahul Negi to give back their passports Ms. Shradhya warned
them that they cant go back to India and that they would have to work there whatsoever
be the conditions or job. Otherwise they would have to pay US Dollars 500 each. Then
they lodged a complaint with police. They had spent at least Rs.40,000/- there for
accommodation, food, as well as for transportation. The respondents had in all by now
had spent Rs.1,40,000/- i.e. amounts paid to the petitioners and Rs.40,000/- they spent
during their stay in Malaysia for accommodation, food as well as for transportation.
8.
The respondents then made up their mind to come back to India as their condition
was humiliating and miserable as their funds were insufficient and food accommodation
and transportation were very costly, but petitioners agents denied to give back their
passport so they should had to approached the Indian High Commission who issued
them emergency certificate dated 3.1.2013 on which they travelled back to Mumbai as
the return ticket was of Mumbai. The respondents on returning back to India
approached the petitioners to pay back their amount but he tried to make fool of the
respondents and delaying the matter on one other pretext, but on the other hand, he
continues to expand his business by giving advertisements in the HT classified dated
13.4.2013 for staff required.
9.
On the wrong and fake commitments of the petitioners, the respondents had to
leave their job which they were doing here in India and were still unemployed as such
the respondents had suffered a huge loss and also sold their jewelry and motor cycle to
settle abroad. The acts of omission and commission on the part of the petitioners
amounts to deficiency in service and unfair trade practice. The petitioners should have
put to exemplary cost so that they cannot exploit the conditions of the unemployed
youth.
10.
The petitioners in their written statement, have made the preliminary objections,
which reads as under ;
That there is no deficiency on the part of the petitioners. At the time of

agreement respondents agreed to perform the duties as assigned by their
employer. But when they reached Malaysia, they wanted officer/high rank jobs
and refused to perform the work as assigned by the employer and returned to
11.
India on their own. As per the agreement, Petitioners perform their part of
contract but respondents were negligent to perform their part of contract.
It was admitted that the respondents made payment of Rs.50,000/- to the
petitioners. From Rs.50,000/- petitioners spend more amount on Visa, airport
picking charges and rest of the amount processing fee.
The petitioners admitted that the respondents had entered into an agreement
dated 18.10.2012. There is no clause in the agreement vide which petitioners
assured 100% refund of amount in case they were unable to provide work to the
satisfaction of the respondents.
The petitioners admitted that the respondents paid a sum of Rs.90,000/- to
them. The amount of Rs.90,000/- was spend by them on the Air Tickets
purchased for the respondents. On the request of the respondent no.2,
petitioners converted the visa into tourist visa.
As per terms and conditions of the agreement, Petitioners were not bound to
provide the separate accommodation free of cost, food, medical insurance, over
time etc.
District Consumer Disputes Redressal Forum-I, UT, Chandigarh, vide their order
dated 25.10.2013 observed that ;

The copy of police report Annexure C-10 made by the
complainant No.2 with the police at Malaysia shows
that Mr.Rahul Negi had taken their passports and they were forced
to work in night shift in Kangaroo Couriers (P) Ltd. in Shah Alam for
one day. When they asked him to give their passports back he
intimidated them. Complainant No.2 also alleged that on
31.12.2012 Mr.Rahul Negi with that lady (Ms.Shradhya Dass) said
that they could not leave for their country and had to work there
according to their terms. He alleged that they were cheated
by Ms.Shradhya Dass and Mr.Rahul Negi. OPs have nowhere
mentioned in the written statement that they had no concern at all
with Mr.Rahul Negi and Ms.Shradhya Dass. In this view of the
matter, it is proved that Mr.Rahul Negi had taken the passports of
the complainants andMr.Rahul Negi was introduced to the
complainants by Ms.Shradhya Dass, who was the employee of the
OPs. Thus, these circumstances also point out towards unfair trade
practice and deficiency in service on the part of OPs.
Lastly, the copy of agreement Annexure C-3 also shows
that the terms mentioned therein are quite vague. The document
shows that even the name and designation of the officer of Ganga
Immigration & Education Services (P) Ltd. who affixed his signature
on it are not mentioned nor there are detailed terms and conditions
of the total amount and the services to be provided by the OPs. The
only condition mentioned is that the processing fee will be 100%
refundable except under the followingconditions :
If any one of your document found fake.
Refused to pursue after getting the confirmation from

employer.
In the instant case, it is nowhere the plea of the OPs that any
of the documents of the complainants was found fake. So far as the
second condition that the complainants refused to perform work
assigned by the employer, the OPs have not produced any such
documentary evidence that the complainants refused to perform the
work as assigned by the employer. They have not produced any
such evidence as to what sort of work was assigned to the
complainants in Malaysia, for which, the minimum salary was 1200
MR. As already mentioned, OPs also did not provide food,
accommodation, insurance and over time to the complainants. The
evidence on record shows that OPs gave a rosy picture of working
conditions in Malaysia to the complainants and gave false promises
of food, accommodation, insurance, over time and air fare and a
salary between 1200 to 1500 MR but they did not fulfill their
promise. Rather, the agent of the OPs took their passports and
intimidated them and they had to get emergency certificate from
Indian High Commission and to come back to Mumbai on the return
ticket. As the affidavit of the complainants shows the OPs made
wrong and fake commitments, due to which, they left their job and
they sold their jewelry and motor cycle to settle abroad. Though the
circumstances prima facie also point out fraud and cheating by the
OPs yet without going into those allegations (because the
allegations relating to fraud and cheating require detailed evidence),
we find that there is sufficient evidence of deficiency in service and
unfair trade practice on the part of OPs.
For the reasons recorded above, we find merit in the
complaint and the same is allowed. The OPs are directed :(i)
To make payment of an amount of Rs.1,40,000/paid by the complainants to them plus an amount

of Rs.40,000/- spent by them at Malaysia total
Rs.1,80,000/-.
(ii)
To make payment of an amount of Rs.50,000/- to

the complainants for harassment and mental
agony.
To make payment of an amount of Rs.11,000/- to
the complainants towards litigation expenses.
(iii)
The liability of the Ops shall be joint and several.
12.
Aggrieved by the order of the District Forum, petitioner filed an appeal before the
State Commission. The State Commission dismissed the appeal being devoid of merit
at the preliminary stage and in their order held as under ;
13. After giving our thoughtful consideration to the submissions

made by the Counsel for the Appellants/ Opposite Parties, and the
evidence, on record, we are of the considered opinion, that the
appeal is liable to be dismissed, at the preliminary stage, for the
reasons to be recorded hereinafter. It is evident from Annexure C-3
that processing fee was refundable except in case any of the
documents of the complainants were found to be fake or if the
complainants refused to pursue/perform work assigned after getting
confirmation from the employer. In the instant case, none of these
eventualities arose. Neither any document submitted by the
complainants was found to be fake nor did they refused to perform
work assigned by the employer for which minimum salary was 1200
MR. The payment of a sum of Rs.1,40,000/- by the
respondents/complainants is not disputed. The District Forum
in para 7 of its order held that some persons, on behalf of the
Opposite Parties, signed the receipts Annexure C-1 and C-2 and
agreement Annexure C-3, and non-production of affidavit of any
other official except Mr.Rajan Verma warranted an adverse
inference, against the Opposite Parties.
14.
The averments of respondents/complainants in para 4 of
the complaint about difficulty in obtaining work visa and assurance
by Mr.Rajan Verma that their employee Ms. Shradhya Dass will
accompany them to Malaysia, has not been denied by the
appellants/Opposite Parties in their written statement. Perusal of
Annexure R-1 produced in evidence by the appellants/Opposite
Parties fortifies the contention of the respondents/complainants that
there being difficulty in getting the work permit, they were sent on
tourist visa with the assurance that the same would be converted
into work visa within 15 to 30 days, upon which they
(respondents/complainants) were to make the remaining payment of
Rs.1,65,000/-. This commitment was not fulfilled by the appellants,
and as alleged by the complainants, Mr.Rahul Negi, who was
introduced
byMs.Shradhya Dass took
their
(complainants)
passports.
It
was
also
specifically
stated
by
the
respondents/complainants, in the complaint, that they had to stay in
a room with two other guys, which was very embarrassing, for them,
and, separate accommodation, as promised was not provided. It
was also specifically stated by the complainants, in the complaint,
that they were forced to do labour work and the facilities of free
accommodation, medical insurance and overtime, promised by the
Opposite Parties, were not provided. This averment of complainants
has remained un-rebutted by cogent evidence. In such a situation,
the respondents/ complainants apparently felt dissatisfied with the
service of the Opposite Parties and were mentally harassed. The
complainants were forced to lodge a complaint with the Police and
to seek the intervention of Indian High Commission to come back to
Mumbai on return ticket. One can imagine the plight of the persons,
who despite paying hard earned money, were not provided the
promised work and facilities and were kept in lurch at a place, which
was entirely a new and unknown to which they were not acquainted.
The sequence of events clearly indicates deficiency in rendering
service and indulgence into unfair trade practice by the Opposite
Parties.
15.
The District Forum correctly evaluated the evidence and
its order is just and correct. Undoubtedly, the appellants/opposite
parties were deficient in rendering service and indulged into unfair
trade practices.
16.
No other point, was urged, by the Counsel for the
appellants.
17.
The order passed by the District Forum, does not suffer
from any illegality or perversity, warranting the interference of this
Commission.
18.
For the reasons recorded above, the appeal, being devoid
of merit, must fail, and the same is dismissed, at the preliminary
stage, with no order as to costs. The order of the District Forum is
upheld.
13.
Hence, this revision petition.
14.
We have heard learned counsel for the petitioner and gone through the record.
15.
The main grounds for the revision are that ;

The learned State Commission has not legally exercised its
jurisdiction resulting in the passing of the impugned order dated
9.12.2013 which is liable to be set aside/quashed forthwith.
Grave miscarriage of justice is occasioned to the

appellant/revisionist as the result of the illegal order dated
9.12.2013.
That learned State Commission, Chandigarh in disallowing the

appeal of the appellant herein and upholding the order of the
District Consumer Forum, will fasten the liability on the revisionist
which was not due and recoverable from him against the fact and
the evidence on record, would the evidence ought to have been
appreciated by District Consumer Forum.
16.
It is indisputed fact that respondents had hired the services of the petitioners for
getting work permit for Malaysia for livelihood and betterment of life. They had entered
into an agreement dated 18.10.2012 and paid a total sum of Rs.90,000/- as part
payment on 13.12.2012. They were taken to Malaysia by Ms.Shradhya, an employee of
the petitioners. It is not understood as to why they were provided with the return tickets
with their departure from Delhi to Kuala Lumpur on 26.12.2012 and return from
Kuala Lumpur to Mumbai on 9.1.2013. The respondents had availed their services for
immigration and work permit to work in Malaysia . It is also apparent that the petitioners
compelled the respondents to agree to travel on tourist visa, with the assurance that it
would be converted into work visa within 15 to 30 days. This was a patently unfair trade
practice. It is also seen that the agreement reads as under ;
AGREEMENT
18TH OCTOBER, 2012
Received with thanks as retaining amount from MR. RAHUL PANDEY S/O
MR. A.K. PANDEY R/O 443 A, DASHMESH NAGAR KHARAR, MOHALI. MR.
RAHUL PANDEY and his wife MRS. REENA PANDEY rtained for Malaysia as
categorized in general pass.
The processing fee
following conditions ;
will
be
100%
refundable
except
under
1.
If any one of your document found fake.
2.
Refused to pursue after getting the confirmation from employer.
the
GANGA IMMIGRATION & EDUCATION SERVICES (P) LTD.

SCO NO. 13-14-15, SECTOR 34-A, CHANDIGARH
17.
It is extremely vague and general. It gives no indication as to the services to be
rendered by Ganga Immigration & Education Services P. Ltd. and the amounts to be
paid, the terms and conditions of the agreement. This is also an unfair trade
practice. We have no doubt that the petitioners have taken unfair advantage of the
respondents by indulging in unfair trade practices to collect money from the
unsuspecting respondents showing them dreams of much better job opportunities in
Malaysia and having collected their money abandoned them to their own devices after
taking their passports. They forced them to do labour work on very cheap salaries.
Petitioners promised them to give all other facilities like accommodation, food, medical
insurance etc. which they also denied them. So the petitioners are guilty not only of
unfair trade practice but also deficiency in service. The petitioners must have also
similarly duped other individuals with their misleading advertisements and glib
promises.
18.
Thus, no jurisdictional or legal error has been shown to us to call for interference
in the exercise of powers under Section 21 (b) of Act. Since, two Fora below have
given detailed and reasoned orders which do not call for any interference nor they suffer
from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus,
present petition is hereby, dismissed with costs of Rs.1,00,000/- (Rupees One Lakh
only).
19. Out of the above costs, Rs.25,000/- (Rupees Twenty Five Thousand only) each be
paid by way of demand draft in the name of respondent No.1 and 2 respectively. The
remaining cost of Rs.50,000/- (Rupees Fifty Thousand only) to be deposited in
the Consumer Legal Aid Account of this Commission, within four weeks from today. In
case, petitioners fail to deposit the said cost within the prescribed period, then they shall
also be liable to pay interest @ 9% p.a., till realization.
20.
....J
(V.B. GUPTA)
PRESIDING MEMBER
......
(REKHA GUPTA)
MEMBER
Sonia/

(From the order dated 30.09.2013 in First Appeal No. 322/2013 of the State Consumer
Disputes Redressal Commission, UT, CHANDIGARH )
WITH IA/1391/2014 (FOR CONDONATION OF DELAY)
Bhupender Singh Ghangas R/o. 92, Stoneylake Avenue Brampton Ontario, Canada At
present: R/o. H.No.1445, Sector 22-B, Chandigarh
Petitioner
Vs.
1. Make My Trip Pvt. Ltd. Tower-A, SP Infocity, 243, Udyog Vihar Phase-I, Gurgaon
122 016, Haryana
2. Make My Trip Pvt. Ltd. SCO 43-44, 1 st Floor, Sector-8 Madhya Marg, Chandigarh
160018
Respondents
BEFORE:
HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HONBLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner : Mr. Brijender Kaushik, Advocate
PRONOUNCED ON 1st APRIL, 2014

ORDER
JUSTICE J.M. MALIK
1.
Shri Bhupender Singh Ghangas, the complainant, in this case, is a permanent
resident of Canada. He wanted to visit Mauritius in the month of November,

2012. He approached the Office of Make My Trip Pvt. Ltd., Chandigarh, OP2,
and was informed that the cost of the package for Mauritius, including stay at 4-Star
Hotel, namely, Jalsa, would be Rs.71,999/-. The complainant deposited Rs.30,000/-, on
24.09.2012. The
complainant
did
not
get
any
call
from
OP2. He
approached OP2 on 27.09.2012. He was informed that there was no vacancy in

Jalsa Hotel and booking at other Hotels would be wee bit more costly. Ultimately,
Hotel Causarian was booked and the complainant had to cuff off Rs.8,000/- more for
the package of 6 nights and 7 days. The complainant did not receive any
information from
the
OPs and
made payment of
remaining
amount
of
Rs.50,000/-. The complainant was out of station for 10 days and he did not receive any
call from the OPs. The complainant came back on 14.10.2012 and contacted the
office of OP2, but on 21.10.2012, he was informed that his tour had been
postponed. The complainant was also informed that since the package was based
on twin-share basis, and the complainant was going alone, therefore, the OPs
could not find anybody to share the room with him. The complainant informed the
OPs that he was to go back to Canada in the month of January, and could
not travel on another date, other than on 04.11.2012.
2.
The complainant asked the OPs to refund his money, cancel his tour since they
were not in a position to give booking for 04.11.2012. His money was not refunded.
Thereafter, the complainant visited the website of the OPs to lodge this complaint but
there
it
appeared that the price
was fixed at Rs.68,999/-,
of the tour
whereas
he
had
package offered
been
charged
to
him
sum
of
Rs.80,000/- for the same package. Legal notice was served, but it did not ring the
bell. Thereafter,
the
complaint
was
lodged
with
the
prayer that the
amount of the complainant, in the sum of Rs.80,000/-, along with interest @ 18%
p.a.,
Rs.50,000/-
on
account
of
deficiency in
service and Rs.70,000/- as
compensation for causing mental harassment to the complainant, besides the costs of
the litigation, be granted.
3.
The defence set up by the OPs is that the complainant never gave his Canadian
address. Secondly, the complainant had booked the tour in his name and one,
Ms.Sonia Hooda, citizen of Canada. Subsequent correspondence was also affected
with regard to booking of both the persons. As per Passport of the complainant, he is
married
to
one
Ms.
Hooda.
It is explained that a tour confirmation
at Casuarina Hotel
in
Deepti, whereas
Superior Sea
he
wanted
to
travel
with
for
Ms.Sonia
04.11.2012
View Room was
confirmed vide mail
dated 29.09.2012, which was specifically eligible for honeymoon trip. The OPs had
informed the complainant about all the services that they would be rendering. First of all,
Hotel Jalsa was booked, but it was clearly mentioned that, that Hotel could be
changed. The
OPs
tried
to
contact
the
complainant
number
of
times but his phone was always switched off. The postponement of the tour was on
the request of the complainant. Ultimately, a mail was sent to the complainant with
regard to the programme on 25.10.2012 and 26.10.2012, vide Annexures R-8 and R9. The complainant himself requested the OPs for postponement of his tour from
04.11.2012
to
17.01.2013
as
he
had
to
attend
amarriage. It
is
stated
that the postponement of the trip entailed further expenses of Rs.15,000/- per
person. The complainant had yet to pay the package fee for his co-passenger. Legal
notice was replied, vide Annexure R-10.
4.
The District Forum partly allowed the complaint. It granted 50% of the
amount paid by the complainant, i.e., Rs.40,000/- and awarded costs of litigation in the
sum of Rs.5,000/-.
5.
The State Commission dismissed the First Appeal.
6.
We
have heard the
counsel
for the
petitioner/complainant
at
the
admission stage of this case. He vehemently argued that the OPs have taken the
complainant, for a ride. He contended that the complainant should be given the full
amount paid to the OPs.
7.
It is clear that the petitioner/complainant has not come to the Court with clean
hands. He tried to keep the relevant facts under a hat. The document on the record
clearly goes to show that he was to travel with Ms.Sonia Hooda. Copy of her Passport,
Ex.R-6 was proved on the record. Exs. R-7, R-8 & R-9 are the correspondence
exchanged between the parties. The reply to legal notice, Ex.R-10, runs as follows :2.
Further,
we
are
furnishing EMAIL
COMMUNICATION from our side to your clients email
account (stylord97@yahoo.co.in) in which we have given
tour confirmation for 04.11.2012 at the Casuarina Hotel in
Superior Sea View Room. This was done vide our mail
dated 29th September, 2012. Even in this mail, we have
written to him that he is eligible for HONEYMOON BONUS
as he had booked with us for two persons as a Honeymoon
trip!. This again, gives lie to your clients contention that he
booked with us as a single person.
3. That the fact is that your client called us on 16.10.2012 to
postpone his tour departure from 04.11.2012 to 13.01.2013
or 17.01.2013 as he claimed that there was a close
friends marriage that he had to attend in the first week of
November. Subsequently, we tried to get in touch over the
TWO mobile phone numbers given by your client, 08288999034, 099106-33151. During these days, we called
repeatedly on both the numbers but they were always
switched off. Since the mobile phones were switched off,
we sent email communication to your client on 25th October
and 26th October in which we asked him to confirm the
postponement of his trip to 17th January as per his
request. We mentioned in the mail that we are unable to

reach him on his mobilephone numbers and thus
are sending an email to him. That this email communication
will be furnished in full at the appropriate time as
evidence. It is our clear contention that the client switched
off his mobile phones on these days. And if your client
maintains that they werent switched off, we would like you
to furnish call logs for the same to substantiate the
authenticity of his claim.
8.
The District Forum was pleased to observe, as under :-
7. The total package details had been provided to

the complainant by the electronic communication, i.e., email
ID stylord97@yahoo.co.in, as histelephone number was
coming switched off. The complainant has averred that he
has not received any communication from the opposite
parties. But Annexure R-8 and R-9 are proof that he has
received the mails. Email dated 25.10.2012 (Annexure R-8)
reads as under :We are not able to reach you as both your mobile numbers
are switched off. We are at the verge of finalizing your
Mauritius trip date for Jan 17, 2013, with an additional cost of
INR 15000 per person. Please confirm that the same is
acceptable.
Thus, according to the opposite parties the complainant was

well aware of the situation of his package which he had
booked for himself and his friend.
9.
The OPs have placed on
record
Annexures
R-1
to
R-4,
the
booking
details of the reservation. The OPs wrote a letter to the complainant, the relevant
extract of which, runs as follows:As per our last mail, kindly confirm the postpone status of your Mauritius trip for Jan
17th, 2013. The package, hotel and inclusions stay the same. The additional cost for
postponing the trip is INR 15000 per person. Kindly revert till 01.30PM, today. In case,
we
dont
receive any response from your
side,
we
shall
go
ahead
and
confirm the trip for the new dates Jan 17 th 23rd Jan, 2013 with an additional cost of
INR 15000 per person.
10.
Annexure R-1, with booking date as 25.09.2012 is E-ticket, in respect of two
persons, for flight dated 04.11.2012, from Delhi to Mauritius in the name of Ms. Sonia
Hooda
and
Mr.Bhupender
Singh
Ghangas. These tickets were sent
to
the
complainant through e-mail. E-mail dated 25.10.2012, Annexure R-8, already detailed
above.
11.
This is clear that as per the terms and conditions of the package the entire
amount of Rs.80,000/- is liable to be forfeited. The fora have already taken a lenient
view in favour of the complainant. The revision petition is lame of strength and is,
therefore, dismissed. No order as to costs.
...
(J. M. MALIK, J)
PRESIDING MEMBER
.....
(DR. S. M. KANTIKAR)
MEMBER
dd/13

(From order dated 08.04.2013 in First Appeal No. 990 of 2012 of the Rajasthan State
Consumer Disputes Redressal Commission, Jaipur)
WITH I.A. No. 6866 OF 2013 ( Condonation of Delay)
Saroj Devi Agarwal R/o. Nana Sahib Ka Bada Bazariya Kothi, Dholpur Rajasthan
Petitioner
Versus
1. Manager, Sahara City Home Sahara Chamber, Tonk Phatak, Jaipur
2. Regional Manager Sahara City Home, Lokhandwala Kuwa Near Old Power House,
Alwar
3. Branch Manager Sahara India, Station Road, Dholpur
4. Managing Director, Sahara Prime City Ltd Sahara India Centre, 2, Kapoorthla
Complex Aliganj, Lucknow
Respondents
BEFORE:
For the Petitioner
: Mr. Pawan Kumar, Amicus Curiae

ORDER
JUSTICE J.M. MALIK
1.
There is a delay of 216 days in filing the First Appeal before the State
Commission. Amicus Curiae for the petitioner submits that as a matter of fact,
there was delay of few days only, in filing the First Appeal, before the State
Commission. As a matter of fact, the order of the District Forum, Dholpur, was
announced on 25.11.2011.
2.
We have perused the file requisitioned from the State Commission. The
petitioner has failed to file

delay filed before
the
copy of
State
the application for
Commission,
along
condonation
with
this
of
revision
petition. However, the delay was explained in para 3 of the application for condonation
of delay, filed before the State Commission, which runs as follows :-
3. That the respondents filed an appeal before this

Honble Commission against the
order
dated 25.11.2011 which was dismissed by the Honble

Commission
but
subsequently
the
respondents filed
an appeal before the Honble National Commission at Delhi
and when the appellant received the notices from the Honble
National Commission, in the month of June, 2012, then only,
the appellant came into the about the impugned order dated
25.11.2011, thereafter, the
appeal
approached
her
counsel and
applied
for certified
copy of the impugned order dated 25.11.2011 on 10.07.2012,
which was delivered to the appellant on 13.07.2012, thereafter,
the appellant approached her counsel here at Jaipur on
30.07.2012, who prepared the same on same day and same
is being submitted before this Honble Commission, on
31.07.2012, itself, without any further delay.
3.
If this version is taken to be as true, there is no delay in filing the First Appeal,
before the State Commission.
4.
We have also perused the certified copy of the judgment of the District Forum,
Dholpur. We have examined the rubber stamp affixed on the certified copy of the order
of the District Forum. It is surprising to note that it does not mention as to when
the free copy was furnished to the petitioner. It appears that the Registrar of the
District Forum is not working properly and there is dereliction of duty on his part. First of
all, the seal is not legible. Secondly, it does not mention, when the free copy was
given. The order was announced on 25.11.2011, but the copy was furnished on
13.07.2012, after about 8 months. The Registrar of the District forum has failed to
explain why there was delay of about 8 months. It appears that the Registrar of the
District Forum tried to help the respondent, out of way. Registrar, District Forum,
Dholpur, is directed to explain all these facts and submit the explanation within one
month, from the receipt of this order, which must be counter-signed by the
President of the District
Forum,
Dholpur. The
President
of the District Forum,
Dholpur must know how the Registry, under it, works. It casts a film of doubt over the
bonafides of the Registry. The Registry must make a proper enquiry and see to it that
proper stamp, showing when the free copy was handed over to the parties, must be
depicted.
5.
It is also surprising to note that the petitioner remained quiet and silent from
25.11.2011 to 13.07.2012. It was her duty to post herself of each date of hearing. This
shows negligence on the part of the petitioner.
6.
The First Appeal was decided on 08.04.2013 . However, there is delay of 21
days in filing
the
revision
petition. Warning
bells
should
have
rung,
but the petitioner, again, acted negligently and did not file the revision petition, within
time.
7.
Although, the petitioner is wee bit negligent, yet, in the interest of justice, we
find that delay is liable to be condoned, before the State Commission as

well as before this Commission, and we hereby condone the said delay.
8.
Now, we turn to the merits of this case. The order passed by the State
Commission, headed by Justice Ashok Parihar, is cryptic, as usual. However, we have

perused the file. The complainant, Smt.Saroj Devi Agrawal, booked a flat with the
Manager, Sahara City Home, OP1, and its employees, OPs 2, 3 & 4. She was
supposed to pay the total price of the flat, in the sum of Rs.17,15,000/-. The
complainant paid a sum of Rs. 2,57,250/- to the OPs. There is no dispute about the
same. A Lucky-draw
under Bumper
Silver
Scheme was taken
out for
all the
customers by the OPs, wherein the complainant got the lucky-draw Bumper in the
sum of Rs.5,00,000/- which was deposited by the complainant under the said plot in
Sahara City Home. Consequently, a sum of Rs.7,57,250/- was deposited. Thereafter,
the complainant could not deposit the remaining installments and her allotment was
cancelled. The complainant sent a legal notice and a reminder, but it did not ring
the bell. The amount already deposited by the petitioner was not given. She filed a
complaint for refund of Rs.2,57,250/-, compensation in the sum of Rs.2,00,000/-,
bumper draw amount of Rs.5,00,000/-, interest amount in the sum of Rs.40,000/-, notice
expenses in the sum of Rs.750/- and complaint expenses in the sum of
Rs.2,000/-, total amount, in the sum of Rs.10,00,000/-. The complaint was partly
allowed by the District Forum. It ordered that the OPs would pay an amount of
Rs.2,57,250/, with interest @ 18% p.a. from 15.08.2009, till payment of the amount,
besides Rs.2,000/- as compensation.
9.
The State Commission dismissed the appeal filed by the complainant, as barred
by time as well as on merits.

10.
We have heard the Amicus Curiae for the petitioner. He vehemently
argued that the petitioner is entitled to lucky-draw bumper offer of Rs.5,00,000/-. The
area of the flat allotted to him was increased from 927.01 sq.ft to 954.73 sq.ft. The
petitioner was ready to have that flat.
11.
Order of the District Forum clearly goes to show that the complainant was
informed about the increase in area of the flat and he was asked to deposit a sum of
Rs.17,67,000/-, instead of Rs.17,15,000/-. The information was given to the petitioner

vide
letter
dated
15.02.2010.
Reminder
letters
were
also
sent,
but
the
complainant did not deposit the said increased amount. Therefore, it appears that
the complainants allotment of flat was cancelled. The complainant himself has
placed on record, copy of the allotment letter dated 21.08.2009 of Unit in Sahara City
Homes, Jaipur, which is reproduced, as under :Sub : Allotment of Letter of Unit in Sahara City Homes,
Jaipur.
Dear Sir/Madam,
In terms of your application dated 20.10.2005, we are
pleased to allot you Unit NO.B9/601, Type 2 Bedroom on
Sixth Floor having Unit Area/Plot Area/Terrace Area 86.15
sq.mt./ N.A./ N.A. at Sahara City Homes, Jaipur.
Price of your unit is Rs.17,15,000/-. This price does not
include any other charges payable by you as per the terms
and conditions mentioned in the application form.
Please arrange to deposit the installments
(as mentioned in the payment plan sent to you earlier) on
the 1st day of the due month. For your convenience, we are
enclosing a fresh copy of the payment schedule. Kindly
note that in case the payment received on or after 16 th of due
month, interest @ 15% p.a., shall be charged on the
amount of default from the due date till the date of actual
payment. Further, in case of non-payment of the installment
amount, after a maximum of three reminders sent within a
period of 45 days, the allotment shall stand automatically
cancelled without any further intimation to you.
Possession of your unit is proposed to be handed
over within 38 months from the date of allotment, subject to
force majeure and the fulfillment of clauses as per the Terms
and Conditions mentioned in the Application Form.
This is also accompanied by another letter, dated 21.08.2009, under the caption
Registration of Booking for Unit in Sahara City Homes, Jaipur, and Payment Schedule,
wherein 61 installments were to be paid on the dates mentioned therein.
12.
There is another letter dated 02.06.2010 sent by the OPs. Its relevant extract
runs as follows :
We regret to inform you that in spite of our reminders dated
05.11.2009, 18.11.2009 and 04.12.2009, you have neither
cleared your dues nor replied to our reminders. As a

consequence
of this
and
as
already explained in
our above referred allotment letter that in case of nonpayment of installment amount,
the allotment stands automatically cancelled. Since you have
not paid your Eight last installments, management has
decided to cancel your booking due to your payment default.
13.
We
are
of
the
considered view that
since
the
petitioners
allotment of flat was cancelled, therefore, she is not entitled to lucky draw amount
of Rs.5,00,000/-. Both the fora below have given concurrent findings against the
petitioner. We see no merit in the submission made by the Amicus Curiae on behalf
of the petitioner. The petitioner has waddled out of the commitments made by her. She
should have deposited the amount. No receipt was shown that she paid the amounts
as per schedule, mentioned by the OPs. The revision petition is sans merit
and deserves dismissal, which, we hereby direct. No order as to costs.
...
(J. M. MALIK, J)
PRESIDING MEMBER
...
(DR.S. M. KANTIKAR)
MEMBER
dd/5

(From order dated 22.05.2013 in First Appeal No. 924 of 2012 of the Delhi State
Consumer Disputes Redressal Commission, Delhi)
WITHI.A. No. 5437 OF 2013 (Stay)
The New India Assurance Co. Ltd. 12/1, Asaf Ali Road, New Delhi Also at : DRO-I,
Jeevan Bharti Connaught Circus, New Delhi
Petitioner
Versus
Shri Rajesh Yadav R/o. H.No.335/1, Village Khandoda Tehsil Bawal, Rewari, Haryana
Also at : H.No.WZ-131, Saidpur Village Patel Nagar, New Delhi
Respondent
BEFORE:
For the Petitioner
: Mr. P. K. Seth, Advocate
For the Respondent : Mr. Ashwani Kumar Sharma, Advocate

PRONOUNCED ON 1ST APRIL, 2014
ORDER
JUSTICE J.M.MALIK
1.
Sh. Rajesh Yadav, the complainant, purchased a Tata Sumo Car from M/s.
Dhingra Motors Pvt. Ltd., for a total consideration of Rs.5,40,328/-. The said vehicle
was
given
temporary
registration
No.HR
99-DS-
9623. The said vehicle was financed with Tata Motors Finance Ltd., OP2, for a
total
sum
of
Rs.4,00,000/-.
The
complainant also obtained insurance from
New India Assurance Co. Ltd., the petitioner/OP1, for a sum of Rs.5,38,960/-. The
insurance policy commenced from 24.07.2009 to 23.07.2010. On 18.08.2009, the
vehicle was stolen by someone, when it was parked near the house of the
complainant, who lodged a complaint with the concerned Police Station, New
Delhi, on the same day. The complainant informed the OP, in writing, on
31.08.2009, with regard to the theft. The Police Station, Patel Nagar, New Delhi,
submitted its untraced report, on 09.09.2009, before the concerned Magistrate,
which was accepted by the learned Magistrate, on 23.02.2010.
2.
The
claim of
the complainant was repudiated
on
29.04.2010,
on twin grounds. The repudiation letter runs as follows:Sir,

In
the captioned claim,
on
examination
of
the
relevant
documents and the report of the investigator, it has been

revealed that at the time of alleged theft of the vehicle
Regn.No.HR-47 BT-0295, on 18.08.2009, the said vehicle
was being
brought from
Haryana
State
to
Delhi without valid permit. You are aware that your vehicle is a
transport vehicle and was not permitted to ply on the
road/public place, without a valid permit issued by the
concerned RTO. The vehicle was registered in the State of
Haryana and you are also a resident of Rewari, Haryana. Thus,
in plying the vehicle, without valid permit, particularly, from the
state of Haryana to Delhi, was not only the breach of the
policy condition but also in violation of the provision of Section
66(1) of the Motor Vehicle Act, 1988.
Therefore, had you not plied the vehicle from Haryana State to
Delhi, for want of valid Permit, the incident of theft at Delhi, as
you have stated, would not have occurred. Accordingly, your
insurance claim is not admissible and is repudiated.
3.
The
complainant filed
the
complaint
before
the
District Forum. The
District Forum allowed the complaint and directed the insurance company to pay a
sum of Rs.4,40,326/- @ 9% interest, from the date of claim, till its realization and
awarded a sum of Rs.1,50,000/- as compensation, for the harassment to the
complainant out of which, Rs.50,000/- was to be deducted from the salary
of the Divisional Manager, who had repudiated the claim.
4.
Aggrieved by this order, the insurance company filed First Appeal before the
State Commission, which dismissed the appeal.
5.
We have heard the counsel for the parties, at length. Learned counsel for the
respondent/complainant
has
drawn
towards the temporary registration certificatewhich
our
goes
attention
to
show
that the temporary registration
certificate
HR-99-DS-TEMP-9623,
was given to the complainant for one month only, from 24.07.2009 to 23.08.2009.
6.
The first question which falls for consideration is, whether, the complainant was
entitled to drive the vehicle from Haryana to Delhi without permit. The State
Commission observed that, whereas the temporary permit was issued from
24.07.2009 to 23.08.2009, but the same is valid only for Haryana, but the
complainant did not have permit for entering into Delhi State. The State Commission
was pleased to observe, in para 8 of its judgment, as under :On going through the record, we find that as per the
averment made in the complaint, the complainant has taken
a specific and categorical plea that the vehicle in question is
Tata Sumo No.HR-99-DS-9623 which was registered in his
name and the insurance policy was issued by the appellant
for a period from 24.07.2009 to 23.07.2010. It is very
surprising that in the written statement, the appellant/OP
No.1 has given a different vehicle bearing No.HR-47-BT0295, and has taken the plea that it is the transport
vehicle which was being plied without any valid permit from
Haryana to Delhi. Therefore, there is a violation of the
condition under section 66(1) of Motor Vehicle Act, 1988. In
support, the appellant/OP No.1, has filed the various
documents along with the written statement. Paper No.39
is a letter of intimation dated 31.08.2009 to the insurance
company, specifically mentioning that the vehicle was a
new one and the policy No. is 32010031090100200503
from 24.07.2009 to 23.07.2010. In this letter, addressed to
the insurance company, i.e., the appellant, vehicle, the
registration was not mentioned inasmuch as it was a new
vehicle. The type of the vehicle is the Tata Sumo, as
averred in the complaint. The appellant/OP No.1, has also
filed the insurance policy which paper is No.36, showing the
same policy No., as given herein above and in the column
of the
registration, it is stated
that it is a
new
vehicle. Obviously, the vehicle No., and for which the other
documents, have been filed by the appellant/ OP No.1, in
the written statement, is a different one, as HR-47-BT-0295.
It is also very surprising that in respect of this vehicle, the
appellant has filed the copy of the permit which is paper

No.38. The vehicle for which the entire particulars and the
defence has been taken by the insurance company, i.e., the
appellant,
is
not
an
issue. It
appears
that
the
insurance company, i.e., the appellant, has not filed any

papers in respect of the vehicle No.HR-99-DS-9623, as
herein above is mentioned, was issued.
It was further held :
We are constrained to hold that the District Forum has
rightly directed that out of the compensation awarded to
the complainant, an amount of Rs.50,000/- shall be
recovered from the salary of the Divisional Manager who
has signed the written statement with the closed eyes
and we must say that he does not deserve to be the
Divisional Manager of such a insurance company, which is
a public sector undertaking. Vehicle bearing No.HR-99-DS9623,
was
issued,
registered
which
and the insurance

is
policy was
not disputed by
the
insurance company, which was stolen and for which the

Police
submitted
the closer report and
it
was
also
accepted by the concerned Magistrate.
7.
It appears that both the fora below have not perused the papers,
properly. The information given to the insurance company assumes importance. In

the report dated 01.10.2009, filed by none, other than, Mr.Rajesh Yadav, the
complainant, himself, to the MLO Authority, mentions that his car No.HR-47-BT0295, was stolen, on 18.08.2009, when it was placed before Shadipur Depot,
Patel Nagar Police Station, New Delhi. It was mentioned that his vehicle HR-47-BT0295 should be traced. It
appears
registration number and had given

Rewari. The
complainant
has
that
this
also
he
number
put
on
had
to
record
got
the
the
the
MLO
permanent
and
National
RTO,
Crime
Records Bureau, Motor Vehicle Coordination System, where the number was
mentioned as HR-47BT0295. It was further mentioned that temporary registration
No., of Tata Sumo was HR-99 DS 9623, which was stolen on 18.08.2009. The
complainant also sent printed intimation letter to the New India Assurance Co.
Ltd., on 31.08.2009, wherein it was stated that his car had been stolen. He did not
mention
either
the
temporary
number
or
the
permanent
number. This information was given to the New India Assurance Co. Ltd.,
Azadpur, Delhi, on 05.11.2009, in which, it was also mentioned that the total claim
came to be Rs.5,12,000/-. This is signed by the complainant himself.
8.
It must be borne in mind that numbers HR-99-DS-9623 and HR-47-BT-0295
are of the same vehicle. The first one, is the Temporary Registration number and
the second one is the Permanent Registration Number. Perhaps, this fact has
escaped the notice of the fora below.
9.
Now, we advert to Section 66(1) of the Motor Vehicles Act, 1988, which runs
as follows:Chapter V
Control of Transport Vehicles
66. Necessity for permits :-- (1) No owner of a motor vehicle
shall use or permit the use of the vehicle as a transport
vehicle in any public place whether or not such vehicle is
actually carrying any passengers or goods save in
accordance with the conditions of a permit granted or
countersigned by a Regional or State Transport Authority or
any prescribed authority authorizing him the use of the
vehicle in that place in the manner in which the vehicle is
being used :
Provided that a stage carriage permit shall, subject to any
conditions that may be specified in the permit, authorize the
use of the vehicle as a contract carriage:
Provided further that a stage carriage permit may, subject to
any conditions that may be specified in the permit, authorize
the use of the vehicle as a goods carriage either when
carrying passengers or not;
Provided also that a goods carriage permit shall, subject to
any conditions that may be specified in the permit, authorize
the
holder to
use
the
vehicle for
the carriage of goods for or in connection with a trade or

business carried on by him.
10.
Counsel for the petitioner submitted
that
permit
and
the
temporary
registration number, are the same and there is no difference between the permit
and the temporary registration card.
11.
We find no force in this argument, in view of Section 66 (1) of
Motor Vehicles Act, 1988. The State Commission was also confused about it,
as stated above.
12.
It is surprising to note that without having a valid permit for Delhi, both the
fora below have

them. Having
allowed
the
permit for a
condition and its violation,
complaint,
particular
does
for
the
place,
not lead
reasons best known to

is
the
necessary
complainant to
have the compensation on non-standard basis. The complaint of the complainant

is liable to be dismissed on this score only.
13.
Again, there was a huge delay in informing about the theft to the insurance
company. The
theft took
place
on
18.08.2009,
was given to the insurance company, on 31.08.2009.
but
the
information
Delay in informing the
insurance company was fatal as it deprived the insurance company of its

legitimate right
to
enquire into the
alleged theft of vehicle and make
an
endeavor to recover the same. The Honble Apex Court in Oriental Insurance Co.
Ltd. Vs. Parvesh Chander Chadha Civil Appeal No.6739/2010, decided on
17.08.2010, dismissed the complaint, holding that in terms of the policy issued
by the insurance company, the insured was duty bound to inform about the theft of
the vehicle, immediately, after the incident. Delay in intimation deprives the
insurance company of its legitimate right to get enquiry conducted into the
alleged theft of vehicle and make an endeavor to recover the same that the
insurance company could not be settled with the liability to pay compensation to the
insured despite the fact that he had not complied with the terms of the policy.
14.
Similar view was taken by the Bench headed by Honble Mr.Justice Ashok
Bhan in case Mohammadali Liyakatali Pathan Vs. Reliance General Insurance Co.
Ltd., RP No.3183 of 2011, decided on 12.07.2012. In First Appeal No.321 of 2005,
New India Assurance Co. Ltd. Vs. Trilochan Jane, decided on 09.12.2009, the
Bench headed by Honble Mr.Justice Ashok Bhan, placed reliance on United India
Insurance Co. Ltd. Vs. M/s. Harchand Rai Chandan Lal, JT 2004 (8) SC 8, it was
held that the judgment of Honble Supreme Court in National Insurance Co. Ltd. Vs.
Nitin Khandelwal, (2008) 11 SCC 256, was not applicable.
15.
In view of the foregoing reasons, we accept the revision petition filed by
the insurance company, set aside the orders of the fora below in their entirety
and dismiss the complaint. No action is called for against the Divisional Manager,
New India Assurance Company Ltd.
...
(J. M. MALIK, J)
PRESIDING MEMBER
...
(DR. S. M. KANTIKAR)
MEMBER
Dd/15

(From order dated 18.11.2013 in First Appeal No. 1046 of 2008 of the Rajasthan State
Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at
Aurangabad)
WITH I.A. No. 366 OF 2014 ( For Stay)
Zakir Hussain Abdul Gaffar Deshmukh R/o. Bilalnagar, Silod, Tq. Sillod District
Aurangabad
Petitioner
Versus
1. Mazhuvanoor Rubber Products Mini
Thodupuzha, Idukki Dist. 685595 Kerala
Industrial
Estate,
Udambnnor
P.O.
2. Willison A. Mazhuvanoor (Died) Through LRs:

i) Jessy, W/o Willson Mazhuvanoor R/o. Mazhuvanoor House Udumbannoor Village
Thodupuzha, Tq. Idukki Dist., Kerala
ii) Ittirachan, S/o. Willson A. Mazvanoor R/o. Mazhuvanoor House Udumbannoor Village
iii) Kochouseph, S/o Willson A. Mazvanoor Through Jessy R/o. Mazhuvanoor House
Udumbannoor Village Thodupuzha, Tq. Idukki Dist., Kerala
3. Mary Abraham, W/o. Abraham R/o. Mazhuvanoor House Udumbannoor Village
Respondents
BEFORE:
For the Petitioner
: Mr. Shirish K. Deshpande, Advocate

ORDER
JUSTICE J.M. MALIK
1.
The complainant, Mr.Zakir Hussain Abdul Gaffar Deshmukh, runs business in the
name and style of M/s. Priya Rubber Industries. He is a manufacturer of slippers

(Hawai slippers). He used to order rubber sheets and rubber straps from the OPs, 1, 2
& 3, namely, Mazhuvanoor Rubber Products, Willison A. Mazhuvanoor (Died), through
LRs, and Mary Abraham, respectively, since the year 2002.
2.
On 06.03.2006, the OPs approached the complainant and asked him to
purchase some machineries for manufacturing slippers
so that
the
complainant may advance his business. The OPs supplied Quotation regarding price
of the machineries. The complainant approached the Central Bank of India and it
sanctioned a loan in the sum of Rs.10,35,000/- and issued five DDs in favour of the
OPs. The complainant paid another sum of Rs.3,45,000/- in cash and desired to
purchase the machineries worth Rs.13,80,000/-. The grievance of the complainant is
that the said machineries were not delivered to him. Those machineries were not
supplied. The complainant filed a complaint before the District Forum for delivery of
machineries or refund of price of machineries, Rs.13,80,000/- with interest @ 18% p.a.
and Rs.3,00,000/- for mental agony and costs.
3.
The OPs contended that they
are suppliers of rubber
sheets
only. They
supplied rubber sheets worth Rs.9,50,000/-. They had received an amount of

Rs.10,35,000/- and thereafter, they returned Rs.1,30,000/- to the complainant by
demand draft. It was alleged that the complainant had forged and fabricated some
documents as well as Quotation dated 06.03.2006.
4.
The District Forum allowed the complaint and directed the OP to refund Rs.
10,35,000/- with interest @ 9% p.a. from 02.05.2006 and also directed them to pay
Rs.5,000/- towards mental agony and Rs.1,000/- as costs, to the complainant.
5.
Aggrieved by the that order, the OPs filed First Appeal before the State
Commission which was accepted while dismissing the complaint.
6.
We have heard the counsel for the petitioner at the time of admission of this
case. He contended that the petitioner is a consumer. The OPs are defaulters and
there is deficiency of service.
7.
The
present case revolves
around
the
Quotation
dated
06.03.2006 for machineries. The complainant has filed a case against the OPs which
is registered as Crime No.256 at Karim Nagar Police Station against the
complainant, under Sections 406,417, 468, 471, 473 & 511 of IPC. Secondly, the OPs
transact the business of manufacturing rubber sheets and there is no evidence to show
that they are suppliers of machineries. The registration certificate of the Industrial
Unit run by OPs has also been produced on the record. The State Bank of India also
issued certificate certifying that the OPs Unit is engaged in manufacturing rubber
sheets and stripes only.
8.
It must be borne in mind that according to the complainant, he received the
Quotation from OPs on supply of machineries. Although, the said Quotation bore sales
tax number, registration number and contact number, yet, the said Quotation is in
printed form. The complainant did not mention the name of any person as to who, in
fact, had supplied the Quotation in person, to the complainant. The fact from where
the said Quotation found way to the hands of the complainant is an act which is
shrouded in mystery.
9.
The State Commission was pleased to observe, as under :While observing quotation, we find that alleged quotation
is dated 06.03.2006, there is rubber stamp with signature
of the appellants. The said stamp has marked on the left
side of the page i.e., also not in proper manner. The
alleged order sheet dated 07.07,2006 is also not properly
marked. It seems that both these documents are
fabricated and not genuine. On perusal of said
documents, it is seen that bill is prepared on 07.07.2006
while as per contention of complainant 5 DDs for purchase
of machinery were issued on 02.05.2006. It seems that
before placing order DDs were issued by the bank and
were forwarded by complainant to the appellants. This is
not believable. It is also seen that Central Bank of India
issued letter to the appellant asking them to supply
slipper manufacturing machineries to the complainant. In
our view, this is no established practice and procedure, we
failed to understand why the Central Bank of India took
interest in the matter of complainant while granting
loan. Action on the part of Central Bank of India is
uncalled for and unwarranted. Appellants produced
delivery receipt of the rubber sheets supplied in
consideration of Rs.9,05,000/-. Said rubber sheets were
received by the complainant. By letter dated 11.06.2006,
complainant admitted the delivery of rubber sheets. It is
also seen from the record that appellants refunded
remaining amount to the complainant as it was more than
the price of the goods supplied to the complainant.
10.
We find that the petitioner has no bone to pluck with the respondents/ OPs. The
case is without merit and, therefore, the revision petition is dismissed.
...
(J. M. MALIK, J)
PRESIDING MEMBER
...
(DR.S. M. KANTIKAR)
MEMBER
dd/5

CONSUMER COMPLAINT NO. 243 OF 2012
1.
Shri Gurdeep Singh Khurana R/o 3015, Setor-23, Gurgaon-122017 Acting for
himself and as the duly authorized Representative of 24 others namely,
2.
Mr. D. Naagaraju R/o 502 F Wingh, Vasant Sagar Saraswati Building Cooperative Housing Society, Opp. Thakur Cinema, Thakur Village, Kandivili (East)
Mumbai-400101
3.
Mr. Shatrunjaya S. Panwar & Mr. Surendra Singh Panwar R/o A53, DGS
Apartments, Plot No.6, Sector 22, Dwarka, New Delhi-110075
4.
Mr. Pankaj Gupta & Mr. B.R.Gupta R/o 186F, Pocket-I, Mayur Vihar Phase I,
Delhi-110091
5.
Mr. R.K. Kapil R/o B302 Aditya Mega City, Vaibhav Khand, Indirapuram,
Ghaziabad-201010
6.
Mr. Dheeraj Sharma R/o R160 Vani Vihar, Uttam Nagar, New Delhi.
7.
Mr. Sachin Kumar Saraswat & Mr. Sumit Saraswat R/o B-370, Sarita Vihar, New
Delhi-110076
8.
Mrs. Neelam Uchani & Mr. Sunil Kr. Uchani R/o 12, Popular Apartment, Sector 13,
Rohini, New Delhi
9.
Mr. B.K. Jauhari R/o 25 A,Pocket C, Siddharth Extension, New Delhi-110014
10. Mrs. Neelam Jain & Mr. Neeraj Jain R/o 2981, Kucha Neelkanth, DaryaGanj, New
Delhi-110002
11. Ms. Deepshikha Maheshwari R/o JG-39 Second floor near Krishna Mandir Malviya
Nagar, New Delhi-110017
12.
Mrs. Parminder Johar R/o House No. 94, Sector 16, Faridabad (Haryana)
13.
15.
Mr. Vikram Kundra R/o 223, Plot No. 2, Rama Apartment, Sector-18
Dwarka, New Delhi-110075
Mr. Sachin Thussu & Mrs. Shivani Thussu R/o AD 21, Mansarovar,
Plot No. 3, Sector No. 5, Dwarka, Delhi
Sudarshan Kumar R/o E-24, Vardaman Apartments, Mayur Vihar, Extn.-I, Delhi
16.
Mr. K.S. Swaminathan R/o B-132, Panchvati Apartments Vikas Puri, New Delhi-18
17.
Mr. Tapan Kumar R/o 73, Dena Apartments, Sector 13, Rohini, Delhi-85
14.
18. Mr. Astutosh Padru & Neerja Padru R/o B-4/79, (First Floor) Paschim Vihar, New
Delhi-63
19. Mr. Narender Kumar Sharma & Gayatri Sharma R/o 4-P-20, Talwandi, Kota
(Rajasthan)
20. Mr. Pritam Singh Rana R/o Bunglow No.1, Jildalgarh, Rajgarh, Chhattisgarh492001
21.
Ms. Deepali Gupta R/o A 2/64, Safdarjung Enclave, New Delhi
22.
Mr. Nishkam & Mrs. Roopali Gupta R/o A 2/64, Safdarjung Enclave,
New Delhi
23.
Ms. R. Uma Rani R/o J-188, Sector 41, Noid
24.
Mrs. Ranjna Grover C/o J-188, Sector 41, Noida, Uttar Pradesh
25.
Sudeep Saxena & Vandana Saxena R/o 1206, Udaygiri Apartments,

Kaushambi, Distt. Ghaziabad-201010
Complainants
Versus
M/s KST Infrastructure Ltd. Through its Director- Mr. Kuldeep Singh Tanwar D-13, First
Floor, JMD Regent Square, M.G.Road, Gurgaon (Haryana)-122009
Opposite Party
BEFORE:
For all the Complainants
For the Opp. Parties
: Mr. Shivram, Advocate

: Mr. Sanyam Saxena, Advocate
PRONOUNCED ON 1ST APRIL, 2014

ORDER
JUSTICE J.M. MALIK
1.
The Opposite Party has made a vain attempt to feather its own nest, i.e., it has
attempted to make profit for itself at the expenses of others. It is unfortunate that the
consumers have to repent to bark up the wrong tree, i.e., the Builder/Promoter. Its
attention is to lead the consumers up the Garden path, when it has no free and clear
title to the land in dispute.
2.
These complaints are filed by 25 complainants , detailed above. The present
complaints have been filed through Mr.Gurdeep Singh Khurana. The individual
authorizations by each of the complainant in favour of Mr.Gurdeep Singh Khurana,
have been annexed along with separate application. The complainants who are the exemployees of State Bank of India, formed the State bank Employees Housing Welfare
Organisation
(SBEHWO),
which
is
registered
body
under the
Societies Registration Act, and all the 25 complainants are the Members of the said
Society. Mr.T.N.Goel and Mr.A.K.Kapur are the President and Secretary of the above
said Society. SBEHWO was under the impression that Siddhi Vinayak Apartments,
located in Sector-88, Faridabad, Haryana, would be constructed by M/s. KST

Infrastructure Ltd., OP. It is alleged that the President and Secretary of the Association
are working hand in glove with the opposite party, therefore, the complaints were filed
by the Members of the Society, in their individual names.
3.
This is a
piece
of land measuring
8 acres
out of 49 acres
approximately. The complainants have paid a substantial amount to the OP. The
above said 49 acres of land was purchased by one, RPS Associates from some
private land
owners. It
appears that RPS
Associates entered
into
some
arrangements with its sister concern Group entity, RPS Infrastructure Ltd., which, in
turn, has entered into alleged Agreement to Sell with M/s. KST Infrastructure Ltd., and
has also executed a Special Power of Attorneydated 22.03.2007, in favour of the OP.
All these facts came to the knowledge of the complainants few days back because the
banks refused to grant loans to the disputed title of the land in question. The Special
Power
of Attorney dated
22.03.2007
is
expressly revocable and
some payment
disputes are going on between the OP-M/s. KST Infrastructure Ltd., and RPS
Infrastructure. The OP does not have any valid title, such as Sale Deed, to assert the
ownership over the said 8 acres of land.
4.
All the complainants under a genuine belief issued a cheque in favour of
SBEHWO and handed over the same to the President and Secretary, till the period of
early 2007, who, in turn, handed over the same to the OPs. The complainants have
paid 30-40% of the total sale price of their respective individual flats. In some cases, it
was
even beyond 50%. It
President and Secretary, kept the
is
alleged
complainants
that the
in
dark
and
office bearers,
entered
into
Memorandum of Understanding (MOU), dated 09.10.2008. Mr.Goel and Mr.Kapur, in

October,
2008,
revealed
that
being constructed by the OP. The complainants

the office bearers and paid the
complainants approached the State Bank
the
reposed
amount. Thereafter,
of
India for
obtaining
flats
faith
were
in
the
loans but they
refused to advance the loans as the OP did not have clear title to the property in
dispute. They found that the title of the OP was defective. The President and Secretary
obtained the consent of the complainants, while signing the MOU. It is alleged that
Mr.Goel and Mr.Kapur, while working in cahoots, with an intention to cheat
and defraud the complainants, entered into the said agreement. It is also averred that
some of the Members, including its office bearers, have been selectively allowed to
withdraw from the said project after knowing that there is a defect in the title. When
serious concerns were raised by the complainants, Mr.Goel sent a letter dated
21.01.2012 to the OP highlighting all these issues. The said letter was annexed with
this complaint as Annexure C-4. The OP responded to this letter vide reply dated
13.02.2012. They admitted that they have yet to take No Objection Certificate (NOC)
which was to be taken by the OP from RPS Infrastructure Ltd. Mr.Goel sent a
Circular dated 09.03.2012, which, instead of dealing with these issues, rather
exhorted the Members to make the payments of the dues, immediately. The said letter
was placed on record as Annexure C-6. Some of the complainants issued legal
notice dated 02.05.2012, which was placed on
record
as Annexure
C-
7. Mr.Goel and Mr.Kapur, sent a reply, jointly, on 18.07.2012,which was annexed as

Annexure C-8 with the complaint. The rejoinder notice was sent vide Annexure C-9.
5.
In the meantime, the complainants sought a legal opinion from Mr.S.L.Gupta,
Advocate on 27.01.2011, which was placed on record as Annexure C-10 and report
from Axis Bank as Annexure C-11, wherein it was stated that if the OP had the
clear, valid, free and marketable title, the Banks would sanction the loan. Legal
opinion of Mr.Subodh Kumar Singh, Advocate, was also placed on record as Annexure
C-12. Consequently, this complaint was filed before this Commission on 11.09.2012,
with the following prayers :a) allow this complaint by directing the Opposite Party to
refund to each of the complainant, the principal amount of
money paid by such complainant, along with interest @
18% p.a., calculated from the date of each installment;
b) Award compensation of Rs.10 lakhs for mental agony
and harassment caused to each complainant.
c) Award costs of litigation quantified at Rs.50,000/- to
each complainant;
d) Pass such other and further orders as may deem fit and
proper in the facts and circumstances of the case.
6.
The right
of OP to
file
the
written
statement was
forfeited
dated 06.08.2013, wherein, it was observed :The opposite party has refused to accept the notice on
05.11.2012. Consequently, it is deemed that the opposite party
has been served on 05.11.2012. Vide order dated 28.09.2012, it
was ordered that written statement be filed within four weeks but
the needful was not done. On 14.02.2013, Sh.R.S.Badhran,
appeared on behalf of the opposite party and stated that he has
vide
order
not received the paper book. He was directed to take the paper
book from the Registry and file the written version, within 8
weeks.
This is an admitted fact that paper book was furnished to him on
14.02.2013. Thereafter, four months have elapsed. Written
version has not been filed. No application for extension of time
to file the written version was moved. The opposite party has not
availed the benefit of Section 13 of the Consumer Protection Act,
1986. We hereby forfeit the right to file the written statement
under Section 13 of the Consumer Protection Act, 1986. This
view is supported by as Supreme Court authority reported in Dr.
J.J. Merchant Vs. Srinath Chaturvedi, III (2002) CPJ 8 (SC). This
is noteworthy that no reason has been given as to why the
written statement has not been filed. Even today, no application
has been moved for further adjournment of this case. The right to
file the written version is hereby forfeited.
The case is now fixed for 26.11.2013, for complainants evidence.
The interim order to continue.
7.
The order passed on 26.11.2013, on review petition, has attained finality, which
reads as under :Notice served by the complainants was refused by the

OP, in view of the arguments as per order dated
06.08.2013. Counsel for the OP stated that due to
negligence of the previous Counsel Mr. R.S. Badhran, the
written statement could not be filed in time. He informed
the OP after the expiry of time. This is no ground at all.
There is no provision for granting time in view of the
three Judges Bench authority reported in the case of Dr.
J. J. Merchant & Ors. Vs. Shrinath Chaturvedi III(2002
CPJ 8 (SC), wherein it was held :
.. From the aforesaid section, it is apparent that on
receipt of the complaint, the opposite party is required to
be given notice directing him to give his version of the
case within a period of 30 days or such extended period
not exceeding 15 days as may be granted by the District
Forum or the Commission. For having speedy trial, this
legislative mandate of not giving more than 45 days in
submitting the written statement or the version of the
case is required to be adhered to. If this is not adhered,
the legislative mandate of disposing of the cases within
three or five months would be defeated.
Therefore, the I.A. 7393/2013 is dismissed.
Second application has been moved under Section 26 for
dismissal of the complaint. It is made clear that the OP
has no right to lead the evidence but he is given liberty to

argue on the legal issues, which will be heard at the time
of final arguments.
8.
It is thus clear that in view of Dr.J.J.Merchant Vs.Srinath Chaturvedi (Supra) , the
OP cannot file the written version, after a long time. While following the law in the case of
Kailash Vs. Nanhku & Ors., Civil Appeal No.7000 of 2004, decided on 06.04.2005, we had
given it time to file the written version within 8 weeks, beyond the period of time, prescribed
under the CP Act, 1986. However, the needful was not done. Consequently, the ruling
mentioned in Kailash Vs. Nanhku (supra), is also of no help to the OP wherein it was
specifically held :
(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.
9.
The principal argument submitted by the counsel for the OP is that the
complainants are not consumers. There is no privity of contract between the
complainants and OP. Again, there is no relationship of consumer and service provider,
between
the
complainants
and
the
OP. The Society is the consumer, the
complainants have nothing to do with
the
above
said MOU
or
contract. The case should have been filed by the President and/or Secretary of the
Society. In their
absence, the
case
goes
in
a
tizzy. The
Society SBEHWO is not making timely payment to the OP as per the
agreed schedule and because the OP is informed, the complainants are not paying the
installments to the Society. OP has attached a true copy of the agreement to sell, dated
02.08.2006, which is annexed as P-1. On 10.03.2007, vide MOU, the
Society agreed to purchase FSI of around 1,52,460 sq.ft. from the OP at a cost
of Rs.11,20,58,100/- + EDC/IDC and other charges in the sum of Rs.2,14,96,860/-, as may
be payable to the Government and construction/maintenance charges in the sum of
Rs.15,000/- per Member/flat. According to the MOU, the entire payment was to be
made by 20.07.2007. The OP was to construct from Basement, Ground + 19
Floors. Copy of MOU has been placed on record as P-2. LIC was ready to advance
housing loans. OP, with the help of M/s.RPS Associates got the lien released over the
8 acres of land from Oriental Bank of Commerce making the entire site of 8 acres with
the OP encumbrance free, vide letter dated 06.07.2007, annexed as Annexure P-4. There
was global recession during the year 2007-08. The Society has deposited a sum of
Rs.4,45,58,100/-. There was threat of forfeiture of the said amount. The Society entered
into a MOU, dated 09.10.2008, requiring the OP to treat the amount of Rs.9,60,58,100/- as
an amount towards providing 111 dwelling units for the purpose of its Members. The
Society never made any complaint against the OP. The construction of the site continued
at slow pace till May, 2010 because the complainants did not make the payment of
installments. On 13.10.2010, till 18.10.2010, the OP received various complaints from the
Society to refund the amount. However, there was no privity of contract between the
complainants and the OP. The Developers Project was getting arrangements from LICHFL, Axis Bank, Dena Bank, etc., which applications are placed on record as Annexure P6.
10.
All these arguments are bereft of merit. The President and/or Secretary of the
Society are working cheek with jowl with the Promoters/Builders, otherwise, they would
have joined as complainants. Each of the complainant becomes a consumer, against
the OP. It is also interested to note that neither the President nor the Secretary have got
any interest in these apartments. They never applied for apartments with the OP.
11.
The complainants have placed on record Demand Letters sent by the OP to
various complainants. They also placed on record various receipts issued in their favour by
KST Infrastructure Ltd, OP. The Demand Letter dated 04.06.2010, Ex.C-14, was sent to
Mr.Gurdeep Singh Khurana. The receipt issued by KST Infrastructure Ltd. in favour of
SBEHWO, is also placed on record. Same is the position with Mr.D.Nagaraju, who was
allotted flat No.A-161 vide letter dated 07.10.2010, Ex.C-15, Mr.Shatrunjay S.
Panwar/Mr.Surendra Singh Panwar, vide Ex.C-16, Mr.Pankaj Gupta/Mr.B.R.Gupta, Ex.C17, Mr.R.K.Kapil, Ex.C-18, Mr.Dheeraj Sharma, Ex.C-19, Mr.Sachin Kumar Sarawat, Ex.C20, so on and so forth, till Ex.C-34. These notices were sent in the individual names
of the complainants. Though the Receipts were issued in the name of SBEHWO, it was
also clearly, specifically and unequivocally mentioned that the money was received from the
complainants, by name. Even if the office bearers of the Society turn hostile, it does not
mean that the Members cannot sue the Promoters/Builders. Each Member of the Society
has got the privity of contract. The OP cannot wriggle out of the liability by placing
namby pamby pleas.
12.
The learned Counsel for the OP vehemently argued that the OP is the owner of
the premises, in dispute. He has invited our attention towards the Special Power of
Attorney dated 22.03.2007. Its relevant para, runs as follows :WHEREAS the Executants are the Developers and have
entered into Collaboration Agreement with M/s. RPS
Associates, a partnership firm having its office A-193, First
Floor, Okhla Industrial Area, Phase-I, New Delhi 20, for
development and sale of area on land admeasuring about 28
acres (220 Kanal 06 Marla) situated in the Village Kheri Kalan
& Baselwa, forming a part of Sector 88, Tehsil & District,
Faridabad (Haryana), for its development.
..
AND the EXECUTANTS do hereby agree that all acts, deeds or
things lawfully done by the said Attorney or its authorized
employees under this Power of Attorney shall be construed as
acts, deeds, matters and things done by the Executants
and the Executants hereby undertake to confirm and ratify all
and whatsoever the said Attorney or its authorized employees
shall lawfully do or cause to be done by virtue of THIS
SPECIAL POWER OF ATTORNEY.
This S.P.A. is Revocable.
[EMPHASIS SUPPLIED].
13.
The
learned counsel for
the
OP
has
also
pointed
out
that
they
have
made arrangements for the complainants to get the loan from LIC-HFL and other
Financial Institutions.
14.
We find it extremely difficult to countenance this contention. It is crystal clear that
OP does not own this land, free and clear. The Special Power of Attorney is
revocable. Our attention was invited towards Ex.C-5, dated 13.02.2012, wherein the
authorized signatory for M/s. KST Infrastructure Ltd., unambiguously mentions :To sort out the problem of granting loan from SBI, as desired by
you, we have shown the original sale deeds in the office RPS
Infrastructure Pvt. Ltd., to your panel Advocate Ms.Kavita Yadav,
on 10th January, 2012 and hence, we hope your doubts regarding
title and problem of SBI loan is taken care of. However, you will
appreciate that granting or not granting loan is the discretion of
financial institution and we cannot be blamed for the
same. Your bank
has
taken
opinion
from
a
number of advocates but none has pointed out any defect in

the title. We understand that the latest advocate has suggested
that the bank may grant loan after taking a NOC from M/s. RPS
Infrastructure Pvt. Ltd., we can get the same from M/s. RPS if
that can facilitate sanction of loans. At your request, we had also
arranged a loan camp by 2 financial institutions, namely,
LIC Housing Finance and Axis Bank in the last meeting held at
YMCA, New Delhi, who were willing to grant loans.
15. Our attention was also drawn towards Annexure C-11, which bears the stamp of
Axis Bank Ltd. The project name is shown as Whispering Heights, Sector-88,
Faridabad. The second page of Annexure C-11 clearly shows that the status of this
project was on hold and the Builders name is mentioned as KST Infrastructure Pvt.
Ltd. It clearly means that no work is being done at the site Project.
16.
Our attention was also invited towards the MOU dated 09.10.2008 where it was
mentioned :A. The FIRST PARTY is the Special Power of Attorney holder
(vide Special Power of Attorney (SPA) dated 22 nd March, 2007,
regd. At Sl.No.221 in Book No.IV, Vol. No.89 on pages 293 to
304 with the Sub-Registrar Sikandarabad, Uttar Pradesh) of
land measuring eight acres out of 49.4 acres situated at Sector
88, Village Kheri Kalan & Baselwa Tehsil, District Faridabad,
Haryana, given by M/s. RPS Infrastructure Limited (RPS), the
General Power of Attorney Holder vide General Power of
Attorney (GPA) dated 18th August 2006 regd. At Sl.No.175 .
in Book No.4 . Vol. No.3 .. on pages 28 .. to 30 . W With
the Sub-Registrar Faridabad, Haryana and Joint Developer of
the aforesaid 49.4 acres of land with M/s. RPS Associates, the
title holders of the said land of 49.4 acres (hereinafter Owner).
E. The FIRST PARTY agreed to sell the said FSI to the

SECOND PARTY and the SECOND PARTY agreed to purchase
the said FSI vide Memorandum of Understanding dated
10.03.2007 (hereinafter Original MOU) for a consideration as
specified in the Original MOU.
H. Based on the above, it is agreed between the Parties by

means of this MOU that the FIRST PARTY shall build 111
dwelling units/flats on the said FSI situated within Vasundhra
Complex (Whispering Heights) exclusively for the members of
the SECOND PARTY in a separate block/tower named Sidhi
Vinayak Apartments and allot the said dwelling units/flats on the
recommendation of the SECOND PARTY to the members of the
SECOND PARTY on the terms and conditions set forth herein.
17. It is, thus, clear that OP does not have any free, clear and marketable title. The
naked truth is always better than best dressed lie. The OP wants to make bricks without
straw. Its statement that it is the owner of the property, is all wet. The Power of Attorney
is revocable. It does not go to scotch our doubts. The claim of the complainants is
genuine. They entertained a genuine apprehension that even assuming that the OP
constructs the flats in question, complete in all respects, even then, there are difficulties,
problems, complications and even confusions at the time of registration of flats in their
respective names, by which time, they would have paid up the entire sale consideration as
per their respective payment schedule. The RPS Infrastructure Ltd can revoke the Power
of Attorney, at any time. The skimble scamble explanation given by the OP does not go
to help the legal problem. These are the harsh realities of life which cannot be glossed
over. It is also difficult to fathom, why should anyone, take advantage of injustice from
someone because he is wee bit more powerful.
18.
The case of the complainants stands proved. They are asking for return of the
amount. The
rates
of
the
flats have
already been
increased by leaps and bounds. See the law laid down in K.A. Nagamani Vs.
Karnataka
Housing
Board,
Civil
Appeal
Nos.6730-6731
of
2012,
dated
19.09.2012 arising out of SLP (C ) No. 35226-35227 of 2011, the Honble Supreme
Court was pleased to hold :9. .. But in cases where monies are being simply returned
then, the party is suffering a loss inasmuch as he had
deposited the money in the hope of getting a flat/plot. He is
being deprived of that flat/plot. He has been deprived of the
benefit of escalation of the price of that flat/plot. Therefore,
the compensation in such cases would necessarily have to
be higher ...
It was further held that :26. For the reasons aforesaid, we allow the
appeals and pass the following order:i) The respondent is directed to pay the appellant
complainant, interest at the rate of 18% per annum on
Rs.2,67,750/- from the date of its respective deposit till the
date of realization with further direction to refund the amount

of Rs.3,937/-, to her, as directed by the Consumer Forum.
ii) The respondent is directed to pay the

appellant complainant further sum of Rs.50,000/- as
compensation for deficiency in service on their part.
iii) The respondent is also directed to pay the appellant
complainant, a sum of Rs.20,000/- towards cost of the
litigation incurred by her.
19.
The whole gamut of the facts and circumstances of the case leans towards the
side of the complainants. We, therefore, allow these complaints and direct M/s. KST
infrastructure Limited, OP, to refund to each of the complainant, the principal amount
of money deposited by each of the complainants, along with interest @ 18% p.a.,
calculated from the date of receipt of each installment.
20.
In this case, as many as 25 complainants are concerned. Each one had
suffered mental agony and harassment, for the last so many years. They have
incurred huge
amount
on
litigation. Keeping
in
view of these facts and circumstances, we hereby direct OP to pay to all the 25
complainants, a total compensation of Rs.10,00,000/- (to be shared in equal
proportion by all the complainants) towards litigation charges, harassment, mental
agony, despair, anguish, frustration, sadness, etc. The above said order be complied
with, within
90
days, from the date
of receipt of this
order. If the
compensation amount is not paid within 90 days, it will carry interest @ 18% p.a., till
realization.
...
(J. M. MALIK, J)
PRESIDING MEMBER
...
(DR.S. M. KANTIKAR)
MEMBER
dd/

(From the order dated 22.08.2013 in First Appeal No. 318/2013 of State Consumer
Disputes Redressal Commission, Haryana, Panchkula)
Smt. Vidya Devi R/o Village Lapra, Tehsil Jagadhri District Yamuna Nagar
Petitioner
Versus
1.
Dr. (Mrs.) Jatinder Chaddha, M.B.B.S, MD (Gynae), Chaddha Hospital,
Sarni Chowk, Model Town, Yamuna Nagar, District Yamuna Nagar
2.
United India Insurance Co. Ltd. Janpath, New Delhi- 110001

Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HONBLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
Mr. Kumar Mukesh, Advocate

ORDER
PER DR. S.M. KANTIKAR, MEMBER
1.
The Petitioner/Complainant, Vidya Devi,(hereinafter referred to as patient)

who was suffering from pain in abdomen approached Dr. (Mrs.) Jatinder Chaddha
(OP-1), on 25.01.2008, who, advised some medicines, but the Complainant got no
relief. Thereafter, on 26.01.2008, an operation was performed (Uterus) on
Complainant and she was sent home, on 05.02.2008. Again, after one week i.e. on
12.02.2008, the Complainant started getting pain in abdomen and was taken to the
hospital, in a serious condition. She was again operated and later discharged on
14.02.2008, with an advise to take medicines. But, again on 22.02.2008, she had
pain for which she consulted OP-1, who, prescribed medicines and assured her of
total relief but, there was no relief. Hence, OP-1 referred her to PGI, Chandigarh,
without giving any previous records. The doctors at PGI Chandigarh, informed the
patient that due to impropertreatment, operation was performed by OP-1. Due to
anticipated huge expenses at PGI, which, the Complainant couldnt afford it,
got discharged from PGI, Chandigarh, and was shifted to MAMC, Ambala.
The doctors there, informed
her
that
the
problem aggravated due
to
the negligence of OP-1. She was examined and thereafter sent to Dr. Chaturvedi
at Cancer Hospital, Gorakhpur. Dr. Chaturvedi opined that due to wrong treatment
by OP-1 there were chances of occurrence of Cancer. The husband of the
Complainant incurred an expenditure of Rs.12,00,000/- on her treatment. Hence,
alleging negligence and deficiency in service by OP-1, the Complainant filed a
complaint before the District Consumer Disputes Redressal Forum (in short,
District Forum).
2.
The District Forum, relying upon the Principles of medical negligence laid down
by Honble Supreme Court in case titled Kusum Sharma and Ors. Vs. Batra
Hospital & Medical Research Centre and Ors. , 2010 CTJ 241, dismissed the
complaint.
3.
First Appeal No.318/2013 was filed by Complainant before the State Consumer
Disputes Redressal Commission (in short, State Commission) which was also
dismissed.
4.
Aggrieved by the State Commissions impugned order, the Complainant filed

this revision.
5.
At the admission stage, we have heard the Counsel for the petitioner. Perused
the medical records on file and the evidence adduced before the fora below. The
OP-1, in her version, submitted :Pre-operative investigations and after a well discussed written consent
was taken, emergency D & C (Dilation and Curettage) evacuation was
performed.
The
evacuated
materials
(specimen)
showed Hydatidiform mole or Vesicular mole with no evidence
of choriocarcinoma in Lal Pathology Lab, which is a reputed Pathology
Centre. The patient was asked to come for a follow-up on 19.02.2008. But
the patient came on 18.02.2008. The patient was explained and
advised that check D & C will be done after reviewing the
Histopathological report and the patient was asked to come on
19.02.2008. The patient did not come on 19.02.2008 and again came to
the Respondent on 23.02.2008. Check D & C was performed. As per the
standard treatment, the risk scoring for cancer was done and the patient
was given prophylactic anticancer treatment. Also, this disease is followed
by regularly checking with a chemical calledBetaHCG in blood and when
the same was done on the patient on 23.02.2008, it was 32973 m/u/ml
and when the BetaHCG was done on 10.03.2008, it was 1069 m/u/ml,
which shows that the chemical BetaHCG reading decreased, meaning,
the disease responded well to the treatment. The patient and the patients
attendants were explained that since it is a dangerous disease, the patient
should have continuous follow-ups. The patient was referred to
PGI/AIIMS. During the patients discharge, the discharge ticket was given
to the patient and the patients attendants, which shows the detailed
investigation, diagnosis, treatment and blood transfusion given by the
Respondent to the patient.
6.
On perusal of medical records, it is clear that, Complainant has not produced

any admission card and was examined by Dr. A. K. Chaturvedi , on OPD basis, his
clinical findings are as ;
a) BetaHCG 1.6 m/u/ml- Normal
b) HPR- Endo-Normal
c) Diagnosis shows- Follow up C/O vesicular mole
d) Only treatment in PGI- Government hospital
In MAMC and at Dr. A. K. Chaturvedis Cancer Hospital, the patient never got
admitted. Therefore, the statement of complainant that he had spent about
Rs.10
Lakhs, as expenses is frivolous.

7.
We have referred to the medical texts and Standard books in Practice of

Obstetrics - Gynaecology, and Systemic Pathology. The Novaks Gynaecology (by
Jonathan
S. Berek)
describes
that
Ultrasonography
is
reliable
and
sensitive technique for diagnosis of complete molar pregnancy. After molar

evacuation, patients should be monitored with weekly determinations of B-submit
HCG levels, until these levels are normal, for 3 consecutive weeks, followed by
monthly determinations, until the levels are normal, for 6 consecutive weeks.
8.
Therefore, the patient was diagnosed by USG on 09.02.2008, as a

case of Hydatidform. Patient was advised to take injections, from 04.07.2008 to
11.07.2008, namely, methotrexate andfolinic acid and thereafter report back, on
12.07.2008 to PGI, after following the advise. This referral, made by OP-1, was well
within time. The complainant has not produced any expert evidence to show that
OP had given wrong treatment during the operation or at any time.
9.
In Bolam test (Bolam Vs. Frien Hospital Management Committee (1957)1 WLR
582, it was held that,
a doctor is not negligent if he is acting in accordance with standard practice
merely because there is a body of opinion who would take a contrary view.
In Jacob Mathew V State of Punjab & Anr, (2005) 6 SSC 1,III (2005) CPJ 9
(SC), it was concluded that
a professional may be held liable on one of two findings : either he was not
possessed of requisite skill which he professed to have possessed, or, he did not
exercise reasonable competence in given case, the skill which he did possess.
10.
On applying the above principles to the instant case, we have arrived at the
following conclusions. OP-1, Dr. Jatinder Chaddha, who is a qualified and
experienced Gynecologist, used her best professional skill and knowledge, and
took due care and caution to treat the complainant, who was suffering from
Vesicular Mole (Hydatidifrom mole). There was also proper referral to other medical
institutions. Hence, we do not find any negligence on the part of OP-1.
11.
The complainant has not approached the fora with clean hands; it is a frivolous
complaint which deserves penalty. But, considering the circumstances and the
disease from which she is suffering, we take a lenient view by not imposing any
penalty under section 26 of CP Act. Accordingly, we dismiss this revision. No order
as to costs.
...
(J. M. MALIK, J.)
PRESIDING MEMBER
...
(S. M. KANTIKAR)
MEMBER
Mss/5

(From the order dated 17.01.2013 in First Appeal No. 1039/2010 of State
Consumer Disputes Redressal Commission, Chandigarh)
Mangal Singh R/o Patti Mour, Dunda Pako Basti, Sehna, Tehsil and District Barnala
(Punjab)
Petitioner
Versus
1.
Life Insurance Corporation of India, Jeevan Deep Building, Sector-17-B,
Chandigarh Through its Manager (L & HPF)
2.
Life Insurance Corporation of India, Jiwan Prakash Building, Model Town Road,
Jalandhar Through Branch Manager
3.
21st Battalion, BSF, Prahari Nagar, P/O Araimale, District West Garohills, Tura
(Meghalaya) Pin- 794001
Respondents
BEFORE:
HONBLE DR. S.M. KANTIKAR, PRESIDING MEMBER
For the Petitioners
Ms. Swati Bhushan Sharma, Advocate
For the Respondent - 1 & :
Ms. Jaya Tomar, Advocate
For the Respondent No. 3 :
Nemo

ORDER
PER DR. S. M. KANTIKAR, MEMBER
1.
The Petitioner filed the present Revision Petition under Section 21 (b) of
the Consumer Protection Act, 1986 against the impugned order dated 17.01.2013 in
FA/1039/2010, passed by the State Consumer Disputes Redressal Commission (in
short, State Commission). The State Commission set aside the orders passed by
the District Consumer Disputes Redressal Forum (in short, District Forum) in
Complaint no. CC/33/2009.
2.
Facts in brief are that the complainant, Sh. Mangal Singh, a retired BSF
Constable, who, during his service, when posted at Kassowal, took a life insurance
policy, through his department from the OP-1, LIC of India, for a sum of Rs.2000/vide policy no. S23123746 dated 20.02.1970 for 15 years term. The policy was
to mature on 20.02.1985. His wife was nominated as nominee. The complainant
authorized the Commandant, 21st Battalion, BSF, HQ Dera Baba Nanak (OP-2) to
deduct the monthly premium from April 1970 and same be deposited with LIC- OP1. The said policy got matured on 20.02.1985, but nothing was paid to the
complainant. Therefore complainant wrote a letter to
OP-2, on 5.4.2009 and
another to OP-1, on 5.5.2009, but no avail. He approached the Ombudsman at

Chandigarh, Mr. K. M. Chaddha, who, on 6.8.2009, ordered the OP-1 to consider the
claim of complainant, even then complainant did not receive maturity amount.
Hence, the complainant filed a complaint before District Forum, Barnala on
14.9.2009, alleging deficiency in service by OP-1, for non-payment of the maturity
amount which caused mental tension and harassment.
3.
The District Forum, allowed the complaint and directed the LIC to make
payment of the maturity amount, along with the interest @ 9% per annum, from
the date of maturity, till payment and compensation of Rs.25,000/- and costs of
Rs.5,000/-.
4.
The OP-1 LIC, filed the first appeal before the State Commission, which partly
allowed the appeal and set aside the compensation of Rs.25,000/- on the ground
that interest and compensation cannot be awarded together.
5.
Heard counsel for both the parties. There is a delay of 98 days in filing this
Revision Petitions, which has been explained in the application for condonation of
delay, which runs as follows:
The Petitioner is a retired constable from the Border Security Force
and does not have the means to pursue his case. The Petitioner has a
very basic literacy in Punjabi and does not understand or comprehend
English or Hindi.
After the passing of the impugned order by the State Commission,
Punjab the Petitioner received on 30.01.2014 and since the Petitioner is
a poor villager who has retired from active service long back, he was
devoid of any financial means to engage a lawyer at Delhi. The Petitioner
wrote a letter to the Delhi Legal Services Authority for legal assistance.
The Petitioner was granted legal assistance, however, the letter of
appointment dated 22.03.2013 of the undersigned counsel as the legal aid
counsel was not received by the Petitioner. The Petitioner, thereafter
under the RTI Act, sought information from the DLSA and was informed
vide letter dated 05.06.2013 received on 11.06.2013, that the undersigned
was appointed as Legal Aid Counsel. The Petitioner sent a letter to the
undersigned Counsel in 12.06.2013 and since the undersigned counsel
was also out of town, during vacations, the Petitioner was told to contact
by the undersigned counsel on 24.06.2013, but since the Petitioner did
not have the entire file of the Appeal filed before the State Commission,
Punjab, the Petitioner was advised by the Counsel to contact the Counsel
at Chandigarh to get the entire file to enable the undersigned Counsel to
file the Revision
I accept the reasons as a genuine one and condone the delay of 98 days in
filing this revision.
6.
The Counsel for OP-1 (LIC) vehemently argued that the complainant took
policy, through the OP-2, in the year 1970, and the same matured on 20.02.1985,
but the complainant never enquired or bothered to know about the status of policy
for 24 years, therefore, the present complaint was filed after 24 years, which is
hopelessly time barred. The Counsel for OP-1 put reliance upon judgment of Honble
Supreme Court in SBI vs. M/s B.S. Agricultural Industries decided on 29.03.2009 in
Civil Appeal No. 2067 of 2002 on the point of limitation, under Section 24 (A) of the
Act. The Counsel for complainant argued that OP-LIC, have not produced any
record to show that the premium was not received from OP-2. Also, the LIC never
served any notice, either upon the complainant or the Commandant, BSF (OP-2), to
pay the premium, if the same was not paid. Therefore, LIC cannot take the plea that
the premium was not paid. The OP-1 neither informed about the maturity of the
policy nor sent the maturity amount to the complainant, till 24 years.
7.
After perusing the policy, the date of maturity and a letter of authorization
given by complainant for deduction of premium, clearly go to show that the cause
of action, still persists. It appears to be a mistake on the officials of OP-1, hence OP1, cannot shirk from its liability on the ground of limitation.
8.
It is rather surprising that the LIC, a major insurance company in India, having
assets in billions; dragged the poor complainant to the unwanted litigation. Even
after lapse of 25 years, LIC wants to repudiate claim, for a maturity amount, which is
justifiable. The complainant had to run from pillar to post, after his retirement.
Instead, it was an ethical obligation of LIC to extend a helping hand to a retired ExConstable of 21st Battalion BSF of India, who, with utmost good faith, on LIC, took a
policy for sum of Rs.2,000/- when he was on duty, in a sensitive area during the year
1970. It was the bounden duty of OP-1 to pay maturity amount in year 1985 itself. It
was just a meager amount of Rs.2,000/-. Therefore, in view of the decision by
Honble Supreme Courtin Gurgaon Gramin Bank vs. Smt. Khazani & ANR. [Civil
Appeal No. 6261 of 2012 @ Special Leave Petition (C) No. 8875/2010] by a bench
of Honble Justices K S Radhakrishnan and Dipak Misra, while expressing
disapproval at the tendency to drag every small matter, up to the Supreme Court.
The bench observed :"Unless serious questions of law of general importance arise for
consideration or a question which affects a large number of persons or the
stakes are very high, court's jurisdiction cannot be invoked for resolution of
small and trivial matters. We are really disturbed at the manner in which
those types of matters are being brought to courts, even at the level of the
Supreme Court."
Also, this Commission has taken similar view in several other petitions.
In the instant revision petition, the LIC has unnecessarily dragged the matter for
a meager maturity amount of Rs.2000/-, for more than two decades. It is absolutely
improper and unfair.
9.
Considering the complainants poor condition who sought Legal assistance

from Delhi Legal Services Authority, one cannot ignore his yeomen services to our
Nation as a BSF Constable. Therefore, he deserves sufficient compensation for his
suffering and for the deficiency in service due to conduct of OP-1
10.
Therefore, the OP-1 is liable. Accordingly, this Revision Petition is allowed by

setting aside the order passed by the State Commission. The entire order of the
District Forum is restored, with additional punitive cost of Rs.25,000/- to be paid to
the Petitioner/complainant. The LIC (OP-1) is directed to comply with this order
within 90 days; otherwise it will carry 9% interest p.a., till its realization.
...
(Dr. S. M. KANTIKAR)
PRESIDING MEMBER
Mss/11

Disputes Redressal Commission, Chandigarh)
1.
Apollo Munich Health Insurance Co. Ltd. 10th Floor, Tower-B, Building No. 10,
DLF Cyber City, Phase-II, Gurgaon, Haryana-122 002 through its Authorized Rep.
2.
Apollo Munich Health Insurance Co. Ltd. SCO No. 50-51, 4 th Floor, Sector-34-A
Chandigarh Through its Authorized Representative
Petitioners
Versus
1.
2.
Mrs. Kirti R/o H.No. 1801, Phase-7, Mohali-160062, Punjab

Family Health Plan Srinilaya-Cyber Spazia, Suite # 101, 102, 109 & 110,
Ground Floor, Road No. 2, Banjara Hills, Hyderabad Pin- 500034
Respondents
BEFORE:
For the Petitioner
Mr. Avinash Mohapatra, Advocate

ORDER
1.
The Petitioner filed the present Revision Petition under Section 21(b) of
the Consumer Protection Act 1986 against the order dated 28.11.2013 passed by
the State Consumer Disputes Redressal Commission, (in short, State Commission)
in FA/427/2013 whereby the State Commission allowed the Appeal filed by the
Respondent No. 1 /Complainant .
2.
Facts in brief relevant to dispose of this petition are ;

The
complainant
Mrs.
Kirti
was
advised
and surgery for symptoms of severe abdominal pain
diagnostic
and menstrual
tests
problems.
Accordingly, she underwent diagnostic Laparoscopy and Myomectomy at Ivy H

ospital.
As per policy conditions, prior to the admission a Cashless request was
sent to the Petitioner company -Apollo Munich Health Insurance Co. Ltd (the OP2). But, no avail came. Hence, the Complainant spent Rs.73,510/- on
her treatment and thereafter lodged a claim with the OPs for payment of the
said amount.
However,
OP No.
1 & 2 repudiated the claim on the ground
that said hospitalization is related to treatment of infertility (Primary
Infertility
since 1 years) which is excluded from policy under standard exclusion under
Section 6-e.
3.
Therefore, alleging deficiency in service by OPs, who did not provide cashless
facility, a complaint before the District Consumer Disputes Redressal Forum, (in
short, District Forum) was filed by the complainant. The District Forum dismissed
the complaint.
4.
Aggrieved by the order of District Forum, the complainant filed the first
appeal before the State Commission.
5.
The State Commission perused evidence, the medical records

and concluded that,
the OPs who repudiated the
claim
of Complainant are deficient in service, and held that, treatment for infertility,
was not excluded from coverage of insurance policy issued to the complainan
t.
The treatment taken
by Complainant was for fibroid uterus and not for Primary Sterility.
Hence, the State Commission allowed the appeal and directed the Petitioners/
OPs 1 and 2 to pay Rs.73,510/- as compensation, plus Rs.20,000/- towards
mental agony, along with Rs.10,000/- as costs to the complainant.
6.
Against, the impugned order of State Commission, the OP-1 and 2 filed this
revision.
7.
We have heard the Counsel for the petitioner.
He argued vehemently
and denied of any deficiency in service by OPs and that the repudiation was
correct,
as per the
terms
and
conditions
of policy under exclusion clause. We have perused the hospital records,

the policy and its terms and conditions.
8.
The counsel for the OP/Petitioners stated that as per Section 6(e) (ix) of the
Terms
and
Conditions
permanently excluded.
of
the
policy,
the treatment
He further contended that,
for
infertility,
was
the pre-authorization form
for cashless facility was received on 28.02.2012 for the treatment of

primary infertility, for 1
Fibroid Uterus
from
years with Provisional/Different Diagnosis of

Ivy
Super-Speciality
Health
estimated cost was Rs.85,000/-.
Care,
Mohali.
The
In the discharge summary,
it mentions the diagnosis, as a) Primary Infertility b) Fibroid Uterus; hence the

cashless
authorization was specifically denied by OPs, as the claim was not payable
9.
The evidence on record shows that the,

Policy,
complainant took a Mediclaim
from the OPs, since 2009 and thereafter,
yearly basis.
it was being renewed, on
The claim made by Complainant was during subsistence of
this policy period from 24.12.2011 to 23.12.2012.
The discharge summary
of IVY Hospital clearly mentioned as follows:

Diagnosis: A. Primary Infertility
B. Fibroid Uterus
Procedure:
A. Diagnostic Laparoscopy proceed myomectomy done under
3/12.
GA on 01/0
Findings: Large posterior - superior fibroid uterus (9x10 cm) present in the
post wall of uterus.
Clinical Summary: A 35 years old non-diabetic, normotensive female patient
presented with H/O heavy bleeding during menses and lower abdominal
pain, and inability to conceive after 1 years of marriage.
10.
No doubt the patient/complainant was diagnosed as a case of Primary

Infertility, but she was also diagnosed as having fundal fibroid. The Ivy Hospital
performed diagnostic laparoscopyand then myomectomy. This operation was
necessary to control her symptoms of heavy menstrual bleeding and her abdominal
pain.
We
are
of
the
considered
view
that,
removal
of
fibroid was an absolute necessity, for better health of patient. Fibroid is one of
the causes of infertility, but many patients, may conceive, even in presence of
fibroids. The analysis of the case reveals that the OP Company
rejected
claim
surgery
on
the
basis
that
the
primary
cause
for
the
the
was
Primary Infertility. Hence, the repudiation of claim by the OPs, under exclusion
clause Section 6(e)(ix) is just and arbitrary act.
11.
Yet, the insurance companies usually attribute a reason for an ailment

which would make it convenient for them to reject the claim. If a reason is at
tributed, the onus would lie
on the insurance company to medically
prove the correctness of its contention. The medical records, Ultrasound report
and Discharge Card show that the Insured was treated for fibroid, which was
presented
with
heavy menstrual
pain. She got admitted to the
hospital
bleeding and lower

due
to
abdominal
sickness
or
emergency health problems,

not for Primary infertility. Therefore, insurance companies cannot
just assume a reason, for an ailment, according to its own convenience, and /
or whims and fancies.
12. On the basis of forgoing discussion, we find no error or any illegality in the
order passed by the State Commission. We dismiss this revision petition with
a punitive costs of Rs.25,000/- which the Petitioners, will pay to Mrs. Kirti
within 90 days, from the receipt of this order, otherwise it will carry 9% interest,
till its realization .
...
(J. M. MALIK, J.)
PRESIDING MEMBER
...
(S. M. KANTIKAR)
MEMBER
Mss/9

(From the order dated 01.07.2013 in First Appeal No. 622/2012
Consumer Disputes Redressal Commission, Andhra Pradesh, Hyderabad)
of State
Appala Venkata Naga Durga Srinivas R/o Krishna Nagar Seethammapeta, Rajamundry
Andhra Pradesh
Petitioner
Versus
1.
The Manager, Payment Assistance Unit, SBI Cards & Payment Service Private
Ltd. P.O. Box No.-28, GPO New Delhi-110001
2.
The Manager, State Bank of India, Danavaipet, Rajahmundry Andhra Pradesh

Respondents
BEFORE:
For the Petitioner
Mr. D. Bharat Kumar, Advocate
For the Respondent No.-1 :
Mr. Suman Tripathi, Advocate
For the Respondent No. 2 :
With Mr. Pawan Kumar, Senior Manager (Legal)

Nemo

ORDER
1.
The present Revision Petition has been filed under Section 21 (b) of
the Consumer Protection Act, 1986 against the impugned order dated 01.07.2013 in
FA/622/2012 passed by the State Consumer Disputes Redressal Commission (in
short, State Commission), Hyderabad which dismissed the Appeal filed by the
Petitioner. The Appeal was preferred by the Petitioner as against the orders dated
08.05.2012 in Consumer Complaint No. CC/82/2010 before the District Consumer
Disputes Redressal Forum (in short, District Forum)
2.
Brief
facts:
The
complaint Appala
Venkata
Naga
Durga Srinivas, the
Complainant got a SBI Credit Card, from the OP which he noticed his name was
wrongly
mentioned as VND
Sappala
instead
of
Appala
Venkata
Naga
Durga Srinivas. As per advice of the OP Bank authorities, on 07.01.2007he

returned the credit card with a request to block it to avoid misuse. The OPs
informed him that the said credit card was blocked on 14.02.2007. Surprisingly, the
agent of the OP approached the Complainant and demanded to pay Rs.390/- as
settlement amount and the Complainant paid the same on 18.07.2007 vide receipt
no. 6985091. On 17.06.2010 he received a demand notice for amount with
statement The said act of OPs amounts to deficiency in service, the complainant
filed a complaint CC/82/2010 before the District Consumer Disputes Redressal
Forum, (in short, District Forum) seeking refund from OPs for Rs.390/- along with
Rs.25,000/- towards mental agony and Rs.5,000/- as costs .
3.
4.
The District Forum dismissed the complaint; subsequently the first appeal
filed by the complainant was also dismissed.
Aggrieved by the order of State Commission, the complainant preferred this
revision petition.
5.
We have heard the counsels of both the parties. Perused the documents,
bank statements.
6.
It is true that that the name of the Complainant is Appala Naga Venkata
Durga Srinivas and in the abbreviation it designs as VNDS Appala, but the OP
issued card as VND Sappala ; all the words are same except the alignment of
letter S by the side of letter A without any space. The complainant did not deny
that his surname is Appala. In our considered view, the complainant should not be
allowed to take undue benefit of such inadvertent small mistake. Normally, the
transaction takes place with card number of the Complainant and the description of
the name does not come in the way of operating the card. At this stage the
Complainant filed an additional document, the Temporary receipt No. 6985091 for
Rs.390/- collected by the agent of OP. This receipt do not specify the purpose of
collection of Rs.390/-. Even, the Complainant has not produced any cogent
evidence or a copy of letter by which he made a request to the OPs for cancellation
of the card. He has not produced postal A.D. The agent was not examined before
the District Forum.
7.
Further, the counsel for OP-1 brought our attention to the clause (6), subclause (a) of the terms and conditions state as follows:
The card holder may end the agreement at any point of time by writing to
SBICPSL or calling into the SBI card help line, and by cutting the card (s)
diagonally. All the cards including the add-on-cards will be terminated basis the
written request. Termination will be effective after payment of all amounts
outstanding on the card account. No annual, joining or renewal fee shall be
refunded on a prorate basis.
As per the said clause (a) of the terms and conditions, complainant did not cut
card diagonally, to avoid any transactions, still the card was in his possession might be
used for transactions. On 17.6.2010, the OP sent a letter for payment of dues to the
complainant along with SBI card statement clearly show total outstanding of
Rs.28,799.04. It appears that the Complainant want to shirk away from the overdue
payment, by carving such frivolous complaint. The arguments advanced on behalf of
Complainant/Petitioner are devoid of any merit; hence we dismiss this revision petition
and as per Section 26 of the Consumer Protection Act 1986, impose cost of Rs.2500/which is to be deposited in the Consumer Legal Aid Fund within 30 days, from the date
of receipt of this order, otherwise it will carry 9% interest, till its realization.
...
(J. M. MALIK, J.)
PRESIDING MEMBER
...
(S. M. KANTIKAR)
MEMBER
Mss/13

Disputes Redressal Commission, Haryana, Panchkula)
1.
Madaan Surgical & Maternity Hospital Advanced Laboratories X-ray & Ultrasound
Centre Model Town Panipat Through its proprietor, Dr. T.R. Madaan
2.
Dr. Sushma Madaan, MBBS, MD (PGI) Senior Pathologists, Madaan Surgical &
Maternity Hospital Advanced Laboratory X-ray And Ultrasound Centre, Model Town,
Panipat
Petitioners
Versus
1.
Smt. Santosh W/o Sh. Jag Mohan R/o Village Noorwala, District Panipat
2.
Madhumita Diagnostic Centre Near Gohana Chowk, G.T. Road, Panipat

Respondent
BEFORE:
For the Petitioners
Mr. Neeraj Jain, Senior Advocate

With Mr. Sandeep Kapoor, Advocate
And Ms. Y. Kapoor, Advocate
For the Respondent No. 1
Mr. Pramod Tyagi, Advocate

Mr. M. A. Tripathy, Advocate
Ex parte
st
PRONOUNCED ON 1 APRIL, 2014

ORDER
1.
The present Revision Petition being filed against the impugned order dated
17.05.2012 of the State Consumer Disputes Redressal Commission, (in short,
State Commission) Haryana, whereby the compensation awarded by District
Consumer Disputes Redressal Forum, (in short, District Forum), Sonepat was
upheld.
2.
In brief, the Complainant Smt. Santosh went to Madaan Surgical & Maternity
Hospital, the OP-1 and Dr. Sushma Madaan, the OP-2 did her Ultra-Sonography (in
short USG) on 17.08.2000. The OP-1 told the complainant that the child has died
and dried in the uterus. Thereafter, the Complainant went to Maharaja Agrasen
Hospital, who referred her to Madhumita Diagnostic Centre/ OP-3, for another USG.
On 18.08.2000, OP-3 performed USG and reported as no evidence of pregnancy,

no mass, no free fluid seen in pouch of Douglas, urinary bladderis normal. Thus,
alleging it a case of medical negligence and deficiency of service the Complainant
filed a complaint before District Forum.
3.
The District Forum held the OP-1 and 2 liable and ordered to pay jointly and
severally the sum of Rs.1,00,000/- to the complainant for negligent services as well
as for mental harassment, and the sum of Rs.2,000/- towards costs.
4.
Aggrieved by the order of the District Forum the OP 1 & 2 filed the First
appeal before the State Commission, it was dismissed.
5.
Against, the impugned order of State Commission, the OP-1 and 2 filed this
revision.
6.
We have heard the Counsels for the both parties, perused the medical
records on file and the evidence adduced before the fora below. The Counsel for
the petitioners denied anynegligence and any mistake in their USG report. He
argued
about
the
limitations
of
USG
study,
and
stressed
upon expert
evidence which was not produced by complainant in this case. The Counsel for the
complainant vehemently argued that the OP 2 has collected Rs.4,000/- but, no
receipt was issued , hence no proof as such.
7.
We have perused both the USG reports one reported by OP- 2 Dr. Sushma
Madan (Pathologist) and another by OP-3 Dr. Meeta Gupta (Radiologist). Relevant
portions of both reports are reproduced as follows:
Report from OP1 & 2 : Madaan Surgical & Maternity Hospital, Dated: 17.8.2000 is
as follows:
LOWER ABDOMEN ULTRA SOUND REPORT
A. Uterus and cervix are measuring together 13.2 cm.

B. Uterus is bulky and picture is suggestive of missed abortion.
C. There are different vibrate echoes.
D. Pt. .(illegible) a mass sign it may be bulky uterus or Rt. Ovarian cyst
i.
Suggested D&C.
Sd/Dr. Sushma Madaan
M.B.B.S., M.D. IPCU
ii.
Report from : OP-3 Madhumita Diagnostic Centre, Dated:18.2.2000 is as follows:
LOWER ABDOMEN U/S EXAMINATION

UTERUS IS NORMAL IN SIZE AND OUTLINE
ECHO PATTERN OF PARENCHYMA AS NORMAL
NO MASS LESION SEEN
NO EVIDENCE OF PREGNANCY SEEN
SIZE of uterus is 4.7 x 4.8 x 3.8 cm.
Thickening of Endometrium 8.6 mm
BOTH THE OVARIES ARE NORMAL
NO MASS OR INFLAMMATORY LESSION SEEN IN ADENEXA
BOTH SIDES.
No Free Fluid Seen in Pouch of Douglas
Urinary Bladder is Normal.
8.
We have given a thoughtful consideration to these submissions. It is clear that

the Petitioner is a senior Pathologist and running a Surgical and Maternity Nursing
Home. There is no evidence to say that whether she is competent and qualified to
perform and report the USG. In our opinion the said USG report appears to be
incomplete, having no details. Just writing Uterus and cervix are measuring together
13.2 cms appears is an unscientific way of reporting. Further, the patient was
advised for D & C. In contrast, the other USG report from Madhumita Diagnostic
Centre was reported by a qualified Radiologist Dr. Meeta Gupta, MD, which clearly
mentions about the size of uterus and thickness of the outline and other findings
which is standard way of reporting of USG lower abdomen.
9.
No doubt, both reports are divergent. We have to decide whether it is an error

of judgment? In our opinion It is Yes, because USG was reported by a Pathologist,
we are not convinced whether Pathologist possesses the reasonable Skill and
competence to do USG and report it. The report was issued on the basis of
experience and clinical findings. The USG was reported as suggestive of missed
abortion. There was no evidence of any live fetus in the uterus, the pregnancy
test was negative. The Complainant visited OP-1, for a case for treatment of mainly
Secondary Sterility.
10.
There are pitfalls and limitations in USG reporting, in this context we have
perused an opinion of one radiologist Dr. Shalaj Gupta (annexure P-7) which is
reproduced as follows:
OPINION REGARDING ULTRASOUND REPORTS
Ultrasound is an imaging study which is very commonly used in medical
practice. It is a very important investigative tool. However, it has some
limitations due to several variables in its performance. The report
significantly depends on the sinologists subjective interpretation of the
picture, converted from the returning ultrasound waves. There are
variations because of the artefacts, the sensitivity of the transducer,
direction of the transducer, window selected, experience of the operator
and the clinical correlation. Because of these and other factors, it is not
surprising to find bonafide differences of opinion of different sinologists in
a given ultrasound picture. Ultrasound is not a perfect depiction of scan

result and cannot be 100% conclusive.
Such differences of opinion are common in all professions including
medical profession and are more likely where the investigation in
interpreter/operator dependent.
11.
There are four basic elements to constitute a medical negligence/ malpractice

case. The four legal elements (4 Ds) must be proven by complainant to claim in a
medical negligence case.
(a) Duty - a professional duty owed to the patient;
(b) Deficiency / Breach of such Duty;
(c) Direct Causation- injury caused by the breach (Causa Causans)
(d) Resulting Damages.
Causation means that the medical professionals breach of the standard of
care caused or contributed to causing some harm to the patient. In this case on
hand, the Pathologist OP-1 is not a qualified Sonologist, but she has issued a USG
report on the basis of her experience and clinical findings. Subsequently, on next
day the Complainant took opinion from anotherSonologist OP-3, which was a normal
scan. There is as such no actual damage or any remote chance of damage. We
cannot rely upon the preponderance of probabilities to fix liability on the doctor,
unless there is any resultant injury due the negligent act of doctor.
12.
In medical negligence cases there is no presumption of or inference of

negligence merely because of an unfortunate result which might have occurred
despite the exercise of reasonable care. Under the law physicians are permitted a
broad range of judgment in their professional duties and physicians are not liable for
errors of judgment unless it's proven that an error of judgment was the result of
negligence A mere error of judgment occurs when a doctor makes a decision that
turns out to be wrong. But to determine whether an error is one of judgment or
whether it constitutes negligence it has been suggested that the court is to look at
whether the error is so egregious as to constitute negligence. It may be more
helpful to say that the question should be formulated as whether it was a judgmental
error
that
would
have
been
made
by
reasonably
competent
and
diligent practitioner
.
13.
When does the liability arise?

The liability of a doctor arises not when the patient has suffered any injury, but when
the injury has resulted due to the conduct of the doctor, which has fallen below that
of reasonable care. In other words, the doctor is not liable for every injury suffered
by a patient. He is liable for only those that are a consequence of a breach of his
duty. Hence, once the existence of a duty has been established, the Petitioner must
still prove the breach of duty and the causation. In case there is no breach or the
breach did not cause the damage, the doctor will not be liable. In order to show the
breach of duty, the burden on the petitioner would be to first show what is
considered as reasonable under those circumstances and then that the conduct of
the doctor was below this degree. It must be noted that it is not sufficient to prove a
breach, to merely show that there exists a body of opinion which goes against the
practice/conduct of the doctor.
14.
The complainant did not produce any expert evidence to establish any
negligence on the part of OP-1 The Hon'ble Supreme Court in the case of Dr.
Laxman Balkrishna vs. Dr. Triambak, AIR 1969, SC 128 similar view, which has been
further confirmed in the case of the Indian Medical Association vs. V. P. Santha. The
Apex Court and the National Commission has held that the skill of a medical
practitioner differs from doctor to doctor and it is an incumbent upon the
Complainant to prove that the doctor was negligent in the line of treatment that
resulted in the loss or damage.
15.
Therefore, entirety of the foregoing discussion we are of considered view that,

not to fix any liability upon OP-1. As, we find there was a breach of duty by OP-1
who is a Pathologist, performed USG which amounts to deficiency in service. It is a
breach of duty per se actionable. Therefore, Dr. Sushma (OP-1) deserves for
imposition of penalty; to stop such practices andto protect the prospective patients
who will approach her in future.
16.
It is quite apparent that, it is the failure of Regulatory bodies like MCI or the
Health enforcing agencies like DHO/DGHS should lay down certain guidelines to
protect the interest of Doctors and Patients also.
17.
Therefore, entirety of the our discussion, we direct the OP-1 to pay Rs.20,000/as a compensation to the Complainant within 90 days, otherwise it will carry interest
@ 9% p.a. till its realization. We grant liberty to the Complainant to seek redressal
from MCI or any appropriate Regulatory Body in this case, if so advised. There is no
order as to costs.
...
(J. M. MALIK, J.)
PRESIDING MEMBER
...
(S. M. KANTIKAR)
MEMBER
Mss/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
REVISION PETITION NO.4146 OF 2009

(Against order dated 02.06.2009 in First Appeal No.1320 of 2008 of Maharashtra State
Consumer Disputes Redressal Commission, Mumbai)
1. Shivaji Tukaram Dongale Aged 53 years, Occupation-Developer/Builder R/o 1526,

D Ward, Uttareshwar Peth, Distt. Kolhapur,State : Maharashtra.
2. Shri Subhash Yashwant Mane, Aged 45 years, Occupation-Developer/Builder, R/o
1523, D Ward, Uttareshwar Peth, Distt. Kolhapur(Maharashtra)
.. Petitioners
Versus
1. Shri Arun Dattatraya Wadekar (Bhaat)
2. Sou. Sheetal Arun Wadekar (Bhaat)
3. Shri Dattatraya Gangaram Wadekar (Bhaat)
All are residents
Maharashtra
of
33, Sadhana Apartment,
Dudhali, Distt.
Kolhapur,
State:
. Respondents
BEFORE
HONBLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HONBLE MRS. REKHA GUPTA, MEMBER
For the Petitioners
: Ms. Shital M. Podar, Advocate
For the Respondents : Mr. K.P.Sundar Rao, Advocate with A.Subhashini, Advocate
Pronounced on 1st April,2014

PER MR JUSTICE V.B.GUPTA, PRESIDING MEMBER
ORDER
In this revision petition, there is a challenge to order dated 2.6.2009, passed by
Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short,
State Commission)
2. Brief facts are that Petitioner No.2/Opposite Party No. 2 is the owner of property.
This property was taken for development by Petitioner No.1/Opposite Party No.1 where
he is constructing Dongale Apartments. Respondents/ Complainants had purchased

shops on the lower ground floor bearing nos.1 to 3 and basement bearing nos. B-1, B-2
and B-3 in this apartment.Petitioner No.1 is a builder/ developer. He had agreed
to sell ahospital area having area about 400 sq. ft. and shop no. 1 on the lower ground
floor having area 150 sq. ft. and basement no.1 having area of 752.24 sq. ft. as per
sanctioned plans respectively dated 10.5.2001 and 14.1.2000 to respondent no.1.
Similarly, respondent no.2 agreed to purchase basement no. 2 having area 853.88 sq.
ft. while respondent no.3 agreed to purchase basement no.3 having area 853.88 sq. ft.
from the petitioner no.2 as per their respective separate agreements dated 25.5.1999
and 23.3.1998. Entire construction of Dongale Apartment was
completed
on 30.4.2001. However, petitioner no.1 did not execute the deed of declaration as well
as
did
not
complete
the
work
of plastering,
doors, windows, flooring, colour painting, light
fitting, water
fitting,
and
water
connections as per specification. Therefore, respondents could not start their hospital at
the said place and in turn suffered loss in hospital business. It is further stated that
petitioner no. 2 received some flats and area from the builder as per the development
agreement. He separately agreed to sell from those areas basement no.2&3 and
basement no.1 to respondent no.1 as per separate agreements.
3. It is further alleged by the respondents that they have paid Rs.38,000/- more than
the agreed price to petitioner no.1,which is claimed back by them.
4. Petitioner
No.1
in
its written
statement has stated, that
the
complaint
is
for commercial purposes and as such same is not maintainable. Further, he is not a
necessary party in the complaint. Moreover, he had not executed any agreement in
respect of the complete property.
5. On the other hand, petitioner no.2 in its written statement took the plea, that he is
not a developer. Dispute, if any between the answering petitioner and the respondents
are to be sorted out under the Indian Contract Act. The present dispute is like a specific
performance and the same cannot be decided in these proceedings. Further, it is stated
that the answering petitioner had not constructed any construction in the property in
question and has no concern with the Dongale Apartments.
6. District Consumer Disputes Redressal Forum, Kolhapur(for short, District Forum)
partly allowed the claim of the respondents. It directed the respective respondents to
deposit their unpaid purchase price within the specified period. Thereafter, petitioners
were to execute the sale deeds and to hand over the possession of the property. It
further directed that if the amounts are not paid as directed, then petitioners right to
terminate the agreements/contracts remains undisturbed.
7. Aggrieved by the order of District Forum, respondents filed appeal before the State
Commission. The State Commission, vide its impugned order set aside the order of the
District Forum and remitted the matter back to the District Forum, for fresh hearing
according to the law.
8.
Being aggrieved, petitioners have filed this revision.
9. We have heard the learned counsel for the parties and gone through the record as
well as written arguments submitted by them.
10. As per petitioners defence, the dispute between the parties is for specific
performance of contract. Thus, the consumer complaint is not maintainable.
11. On the other hand, it has been contended by the learned counsel for the
respondents that State Commission had rightly remanded back the matter, to the
District Forum.
12. State Commission in the impugned order observed;
In the instant case at the first instance we find that Forum below did
not address to the important and relevant issues while arriving at
conclusion reflected in the impugned order. Firstly, they did not
consider the fact that respondent/opposite party no.2 is not the
Builder. As per development agreement respondent/opposite party
no.2 had received certain property as the original owner of the
property and thereafter, he sold it to the complainants and
therefore, question as to whether these transactions could be
covered under the consumer complaint since, complainants are not
consumers as far as these transactions are concerned ought to
have been addressed and answered. At the second instance,
respondents/opposite parties nos.1&2 are different legal entities
and respondent no.1 sold the property being the developer while
respondent/ opposite party no.2 effected resale the properties
being the owner. These transactions cannot be clubbed together
since they represent different causes of action; there is misjoinder
of parties and causes of action. Forum below ought to have asked
complainants to elect as to in respect of which consumer complaint
should be entertained and proceeded further. The appreciation of
evidence confined to the evidence led in the proceedings is not
properly done by the Forum below and the Forum below did not
address itself in a legal and objective manner to these aspects. All
this resulted in to miscarriage of justice. Therefore, we find it proper
to remand the case and thereafter, both the parties shall take
appropriate legal actions in the light of observations made, supra,
and then Forum below shall settle the dispute within their
empowerment as per the law.
13. The District Forum had erred on facts and in law by allowing the complaint in the
above manner and the State Commission did well in allowing the appeal and remanding
the matter back to the District Forum.
14.
We see no illegality, material irregularity, much less any jurisdictional error in the
impugned order passed by the State Commission, which warrants interference of this
Commission. Accordingly, the present revision petition stand dismissed.
15. No order as to cost.
..J
(V.B. GUPTA) PRESIDING MEMBR
(REKHA GUPTA)
MEMBER
SSB/

Disputes Redressal Commission, Rajasthan, Jaipur)
Suresh Chandra S/o Sh. Bardi C. Tiwari R/o Brahmano Ki Sareri, Tehsil Aasind District
Bhilwada, Rajasthan
Petitioner
Versus
1.
Dr. Kailash Kabra, Proprietor Krishna Hospital Devaria Balaji Road, Near Pvt.
Bus Stand Bhilwada
2.
Saleem Khan, Compounder, Krishna Hospital, Devaria Balaji Road, Near Pvt.
Bust Stand Bhilwada
3.
Gopal Nayak, Technician, Krishna Hospital, Devaria Balaji Road, Near Pvt. Bus
Stand Bhilwada
4.
Dr. Kamal Kishore C/o Krishna Hospital, Devaria Balaji Road, Near Pvt. Bus
Stand, Bhilwada
5.
Rajasthan Medical Council, Jaipur, Rajasthan
6. M/s Bajaj Alliance General Insurance Co. Ltd. G.E. Plaza, Airport Road, Poora,
Jaipur Office O.12-A, Ashok Marg, C Scheme, Jaipur, Rajasthan
Respondents
BEFORE:
For the Petitioner
Mr. Mrinmay Bhattmewara, Advocate
For the Respondent Nos.-1 to 4
Ex-Parte
For the Respondent No 5
Nemo
Ms. Suman Bagga, Advocate

ORDER
1.
The Petitioner preferred the present Revision Petition against the impugned
order of the State Consumer Disputes Redressal Commission (in short, State
Commission), Jaipur, Rajasthan, whereby the State Commission dismissed the
First Appeal No. 1298 of 2011 filed by the Petitioner and affirmed the order passed
by the District Consumer Disputes Redressal Forum (in short, District Forum),
Bhilwara, Rajasthan.
2.
The relevant facts in this revision petition are that, on 15.09.2006, the
complainant, Mr. Suresh Chandra, took his son Mangalam, aged 15 years (herein
referred as, a patient) for treatment ofkidney stone in Krishna Hospital, Bhilwada.
The Complainant deposited the fee of Rs.5,000/- and admitted his son. On that day,
OP-1, Dr. Kailash Kabra was not present and the Complainant was informed by the
subordinate staff and employee of OP-1, that he had gone out, for some work. The
stone was crushed into pieces the stones of 13 mm, prescribed medicines and
called for follow up and regular check-up. Thereupon, OP-1 advised the
Complainant to come to Bhilwada clinic, on 27.11.2006, along with all the papers of
treatment of his son. Sonography of his son was taken and OP-1 stated that it was
normal and assured the Complainant that his son would recover soon, but there
was no improvement in the condition of the patient. Thereafter, the patient was
taken to Kidney Line Health Care Hospital, Ahmedabad on, 8.1.2007, for treatment
and spent a sum of Rs.85,993/-. The Complainant alleged that OP-1 issued
misleading advertisements and conducted the operation of his son, in a haste
manner, by lithotripsy which amounts to gross medical negligence. Hence, filed a
complaint before the District Forum, and claimed a sum of Rs.10,00,000/- as
compensation, for mental agony and physical harassment and Rs.1,50,000/towards monetary loss.
3.
The District Forum partly allowed the complaint and held OP Nos. 1 to 4, liable
for medical negligence and awarded a lump-sum amount of Rs.1,11,000/-, on the
basis of contractual liability (Indemnity). The District Forum directed OP No.6, M/s
Bajaj Alliance General Insurance Co. Ltd., to pay the awarded amount of
Rs.1,11,000/- to the complainant.
4.
Aggrieved by the order of District Forum, the complainant filed First appeal before
the State Commission, on the ground that the compensation awarded by it is on
lesser side, and for not awarding any compensation for future prospects of his son,
who was a bright student.
5.
The State Commission, in a casual manner dismissed the appeal and passed a
non-speaking order. Hence, the Petitioner/Complainant filed this revision petition.
6.
We have heard the Counsel for the both parties, perused the medical records and
evidence placed on file. OPs -1 to 4 were proceeded ex-parte. We have
requisitioned the complete record of the District Forum to ascertain the details of
medical treatment, given to Mangalam (Patient). We have perused the treatment
details given by Dr. Kailash Kabra of Krishna Hospital, dated 15.09.2006, which
clearly mention that a stone of 13mm present in left Renal Pelvis was completely
broken by lithotripsy treatment. The ultrasound, report dated 27.11.2006 shows that
left kidney was mild hydro-nephrosis with internal echoes of 8 mm calculus in mid
pole and 5 mm in lower pole region and the impression given was, Left Pyonephrosis with Renal Calculi.
7.
Thereafter, complainant went to Kidney Line
Healthcare
, Ahmedabad and took further treatment for his son, from Dr. Shailesh Shah. The
Discharge Summary dated 11.01.2007, issued by Kidney Line Healthcare, Ahmedabad,
clearly mentions as under:H/O ESWL done at Krishna Hospital at Bhilwada (Dr. Kabra) for left
Renal Pelvis stone of 13mm X 10 mm (by Dr. Kabra) after that has again
pain so re-consulted at Krishna Hospital they advised medicines and
injection for that after doing Sonography which revealed pyonephrosis.
Under the heading of Past Operation/Medication :
ESSWWL Left side done in 15 September at Krishna Hospital, Bhilwada
without doing IVU.
Final Diagnosis
a) Post ESWL Obstruction with poorly functioning kidney complication
of ESWL as IVP is not done primarily.
b) Left upper ureteric with renal pelvis matrix stone.
c) Chronic follicular cystitis.
8.
Therefore, we are of considered view that, the District Forum rightly held Dr.
Kailash Kabra (OP-1) liable for medical negligence and awarded lump-sum
compensation for Rs.1,11,000/- which is to be paid by OP-6.The counsel for OP-6
has admitted to have issued the Professional Indemnity Insurance to OPs 1 to 4
that Krishna Hospital for Rs.10,00,000/- for the period from 19.02.2006 to
17.02.2007. He further stated that five claims have been registered during the said
period of the policy, and as such, the liability of the insurance company, under the
agreement, is limited only to the extent of a limited amount, and hence, the
Complainant is not at all entitled to the claim of Rs.1,50,000/-. The Counsel for OP6, further contended that in the light of the principles laid down by the Honble
Supreme Court in Dr. Jacob Mathew Vs. State of Punjab, CPJ 2005(111) SC, the
complaint is liable to be dismissed.
9.
This is a peculiar case. The Petitioner/Complainant is seeking for enhancement of

compensation, while OP-6, insurance company, wants to skip off the entire
quantum of liability, on the ground that Five claims have been registered, during the
said policy period.
10. We have given a thoughtful consideration on both the points. The complainants
son was a young and bright student; he lost his academic year for 11 th standard
because of negligence of OP Nos. 1-4. He further suffered pyonephrosis and renal
stones. The hospital records from Kidney line Centre, Ahmedabad clearly establish
that the
complainant visited Ahmedabad
for regular follow-up
treatment
investigations. Hence, we are of considered view that the compensation awarded

by District Forum is not just and proper. Accordingly, we enhance the total
compensation to a sum of Rs.4 lacs. Secondly, we are not convinced with the
arguments advanced by Counsel for OP-6 about restricted indemnity liability.
Though the Counsel on behalf of InsuranceCompany contended that, five claims
were registered against the said hospital/doctor, OP-6, has not produced any
cogent evidence to prove the same. We are not aware, whether, OP-6 has already
paid or is yet to pay the indemnified amount, in all the five claims? Therefore, we
fasten the entire liability of this case upon the Insurance Company to pay the
awarded amount.
11. Upon entirety of the forgoing discussion, we allow the revision petition. The OPs 14 are held liable for medical negligence. Consequently, the OPs 1-4 are covered
under ProfessionalIndemnity from the insurance company (OP-6). Therefore, the
OP-6 is directed to pay Rs.4 lacs to the complainant, within 90 days from the date
of receipt of this order, otherwise, it will carry interest @ 9% p.a., till its realization.
...
(J. M. MALIK, J.)
PRESIDING MEMBER
...
(S. M. KANTIKAR)
MEMBER
Mss/10
REVISION PETITION NO. 3165-3166 OF 2013

(From order dated 14.05.2013 in First Appeal No. 644 of 2008 of the Punjab State
The Oriental Insurance Co. Ltd. SCO 109-111 Sector 17-D, Chandigarh
Petitioner
Versus
1.
2.
Satpal Singh R/o Katcha Goniana Road Street No. 25 Muktsar, Dist. Muktsar
Punjab
Shri Ram Transport Finance Limited Tinkoni Chowk Goniana Road, Bhatinda
Through its: Managing Director
Respondents
BEFORE:
HONBLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER
For the Petitioner
: Ms. Neerja Sachdeva, Advocate
For the Respondent No.1
: Mr. Narendera , Advocate Mr. Deepak Jain, Advocate
For the Respondent No. 2 : Nemo

ORDER
1.
This revision petition has been filed against the order of State Commission which
dismissed the First Appeal No. 644 of 2008 filed by the Petitioner by affirming the
order
dated
23.04.2008
passed
by
the
District
and
his
Consumer
Disputes
Redressal Forum, (in short, District Forum).

2.
The facts in brief:

The
Complainant,
Sh.
Satpal
Singh
father,
Joginder
Singh
purchased a Eicher Truck Medium by paying a sum of Rs.7.67 lakhs, for his
livelihood. It was financed by M/s Shriram Finance limited, Bhatinda, OP-2 and was
insured with Oriental Insurance Co. Ltd, the Petitioner/OP-3. The financers obtained
signatures of the Complainant on 8 blank cheques of Punjab National Bank, towards
the payment of instalments. The vehicle was insured by OP-3, effective from
15.05.2006 to 14.06.2007, but no policy or terms and conditions, were supplied. The
Complainant paid Rs.77, 000/- in cash and paid each instalment in the sum of
Rs.18,272/- to the financer, in order to clear the finance amount. The said truck met
with an accident, on 01.09.2006, and Sh. Joginder Singh, father of complainant, died
on the spot and the vehicle was badly damaged. On the same day, a FIR was
registered at Police Station, Gandoj, Rajasthan. Intimation of the incident was given
to insurance company(OP-3) which OP-3 appointed, Sh. Kamlesh Barmera,
Surveyor & Loss Assessor, who conducted the sport survey and conveyed that
vehicle is totally damaged and not repairable, and that Insurance Company will have
to pay full insured amount. Complainant spent a sum of Rs.21,900/- towards hiring
charges to bring salvage of damaged vehicle. Thereafter, repeated attempts were
made for the claim of compensation for damaged vehicle and on account of death of
his father (driver), but OP turned a deaf ear. Hence, the complainant filed a
complaint, before the District Forum, Bhatinda, seeking direction to OP-1 to 3 to pay
Rs.7,30,000/- on account of vehicle loss, Rs.8,00,000/- on account of death of
Driver-his father, Joginder Singh, and Rs.2, 29,911/- towards other claims, under
different heads.
3. The District Forum, after hearing the Counsel for the parties and going through the
record, observed that Sh. Joginder Singh, who was driving the truck, was neither the
paid driverof Satpal Singh nor was he, his employee and so the insurance
company is not liable to indemnify, the Complainant on account of the death of his
father. It further observed that it was a case of total loss and the insured declared
value is payable and held OP Nos. 1 to 3 liable to pay the insured declared value
assessed at Rs.7,30,000/- along with interest @ 9% p.a. from 21.12.2006, till
payment. It also awarded a sum of Rs.2,511/- as fee paid to the surveyor, along with
costs of Rs.2,000/-. The complainant was directed to issue letter ofsubrogation in
favour of OP Nos.1 to 3 and to deliver the salvage to OP No. 3, within one month
from the receipt of copy of the order.
4. OPs shall pay Rs.7,30,000/- along with interest @ 9% p.a. from 21.12.2006,
till payment to Shri Ram Transport Finance Limited (OP-4/Respondent 2), which it
would adjust the amount in the loan account and excess, if any, shall be paid to the
complainant.
5.
Aggrieved by the impugned order dated 23.04.2008, the Petitioner/OP-1 filed first
appeal for setting aside of the order of District Forum , while the complainant filed
First appeal FA/131/2009 for enhancement of compensation.
6.
The State Commission dismissed both the appeals. Aggrieved by the order of
State Commission, the Petitioner/Insurance Co. filed this revision petition.
7.
We have heard the counsels of both the parties. The Counsel for the complainant
argued that, after the accident, FIR was registered and intimation was given to
insurance company (OP-3) and OP-3 appointed Sh. Kamlesh Barmera, Surveyor &
Loss Assessor, who conducted the sport survey and gave report (Ex.C-18). The
said report did not mention that the vehicle is repairable. But, the surveyor in his
affidavit Ex.R-18 deposed that the vehicle can be repaired and will be roadworthy,
after repairs. The Counsel for the Petitioner contended that the complainant is not a
consumer, as the truck was used for commercial purpose, by plying it for hire and
reward. The vehicle was not having valid registration,fitness certificate and route
permit, hence complainant has violated the terms and conditions of the policy. Also,
the personal accidental death claim is not maintainable, because Joginder Singh
cannot be termed as owner/driver, as per Indian Motor Tariff. He further argued that
the complainant has not co-operated with OP-3 and failed to submit the required
documents, inspite of repeated reminders. The complainant did not produce the
final survey report, hence the case was closed as No Claim. Therefore, there was
no deficiency of service by OP-3.
8.
We have perused the documents on file, the letters/correspondences exchanged

between the parties. It is an admitted fact that Truck bearing Registration No. RJ13-GA-1246 was insured by OPs, vide cover note no. 441941 effective from
15.06.2006 to 14.06.2007, subject to IMT (Indian Motor Tariff) Condition Nos. 37A,
21, 37, 5, besides other conditions. However, counsel for Petitioner submitted that
terms and conditions of the policy were supplied to the Complainant, after the
issuance of cover note. On the contrary, counsel for the Complainant argued that
only insurance cover note was supplied, and the policy, along with its terms and
conditions, was not issued to him.
9.
We are of considered view that, onus of proof lies upon OP Nos. 1 to 3 to prove
that policy, along with terms and conditions, was supplied to the Complainant. OPs
had not produced any cogent evidence in this regard. The Counsel for the
Petitioner drew our attention to the relevant portion of the cover note, which reads
as :- The insurance under this policy is subject to conditions, clauses, warranties,
exclusions, IMTs and OIC endorsements, mentioned herein above, which are
available on Companys website:www.orientalinsurance.org.in or on demand from
the policy issuing office.
10. Its a ridiculous attempt, made by the Counsel for the OP. It seems every
driver/insured is a computer savvy..!! It proves that OP-1, did not supply the terms
and conditions, with cover note. The Counsel for OP-1 argued that the intimation of
the accident was given to the company, after a delay of 19 days, but the Counsel
failed to produce any cogent evidence or document to prove this contention. Even,
the affidavit of Surveyor, appears to be an afterthought, improvement and just to
frustrate the claim. After the spot survey, the Insurance Company was supposed to
appoint a Surveyor and loss assessor for final survey, but it never appointed. OP-3
who, knowingly, wrote a letter (Ex.R-13) and sought information about the Surveyor,
who has conducted the final survey. Thereafter, petitioner/OP-3 concluded it, as no
claim, without any basis. This act of Petitioner, is arbitrary and is deficiency in
service. It amount to unfair trade practice.
11. Therefore, we dismiss this revision petition. No orders as to costs.
...
(J. M. MALIK, J.)
PRESIDING MEMBER
...
(S. M. KANTIKAR)
MEMBER
Mss/13
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

(From the order dated 14.11.2013 in First Appeal No. 1838/2010 of the
State Consumer Disputes Redressal Commission, Punjab, Chandigarh)
WITH IA/1701/2014 (STAY)
Jalandhar Improvement Trust Jalandhar Model Town Road, Near Hotel Skylark,
Jalandhar through its Chairman
Petitioner
Versus
Lakhwinder Singh Son of Sh. Ranjit Singh, Resident of H.No. 110, Gali No. 10, Guru
Nanak Pura, Jalandhar
Respondent
BEFORE:
For the Petitioner
: Mr. Shubham Bhalla, Advocate
Pronounced on 1st April 2014

ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
Sh. Lakhwinder Singh, the complainant filed a complaint against Jalandhar
Improvement Trust, as he had purchased Plot No. 439-B in 170 Acres Scheme known
as SuryaEnclave, Jalandhar. He paid the entire
consideration. The sale deed was executed in his favour on 03.06.2008 alongwith site
plan. Although, five years have elapsed, yet possession was not given to the
complainant by the OP. It is alleged that the petitioner is putting of the matter on one
pretext or the other. Thereafter, it transpired that the OP is affixing wrong number to
deliver the possession of the said plot, which is situated near Cremation Ground. The
grouse of the complainant is that that premises were never agreed to be sold and it
amounts to be deficiency in service. Complaint was filed that the possession of the
premises with geographical boundaries as mentioned in the sale deed, be issued in his
favour, rent in the sum of Rs. 50,000/- and costs of litigationin the sum of Rs. 11,000/was claimed. The case of the OP is that the complainant himself had refused to take
the possession of plot No. 493-B, Surya Enclave, Jalandhar. It is explained that due
to high tension lines of electricity passing over the plot of the complainant and due to
security reasons, which were never explained, the OP made some changes in the
layout plan. It was admitted that the layout plan was changed as per the new layout
plan. However,
the
petitioner
was
being
allotted
plot
No.
439-B. The
District Forum dismissed the complaint.

2.
Aggrieved by that order, the complainant filed an appeal before the State
Commission. The State Commission passed the following directions:9.During the proceedings of the appeal, the respondent/OP had
offered Plot No. 494-B land, counsel for the appellant/complainant has
expressed his willingness to take this plot, accordingly, the order passed by
the learned District Forum is set-aside and the direction is given to the OP to
execute the sale deed of the Plot No. 494-B in favour of the
complainant. Expenses for execution of the sale deed will be borne by the
complainant/appellant.
10. The parties are directed to complete the sale deed within a period
of one month from the date of receipt of the copy of the order passed by the
Commission and within a period of one month after execution of the sale
deed the possession of the above said plot will be delivered to the
complainant/appellant. The parties are directed to bear cost of the appeal.
3.
We have heard the counsel for the OP/petitioner, who has filed the present
Revision Petition. It is stated that they did not make any statement before the State
Commission. The order passed by the State Commission is the brainchild of the State
Commission itself. He contended that this order runs directly from the affidavit filed by
them. It is also submitted that this order was reserved for arguments on 01.11.2013 and
was
announced
on
14.11.2013. It
shows
that
this
statement
was
not
made extenously otherwise, this Commission could have dictated the order there and
then. We find force in his arguments, in a measure. If the judgment is delayed by 1314 days, it is the duty of the State Commission to reduce their pleadings into black and
white, there and then. The matter should not have been delayed for such a long
time. The State Commission should have passed the order on 01.11.2013 itself
because there was no dispute.
3.
Learned counsel for the petitioners arguments also however, this measure fact
does not impact the case materially.
4.
Learned counsel for the petitioner has also invited our attention towards Section
28 of the Punjab Improvement Act, which provides:(v)
the re-laying out of any land comprised in the scheme and the
redistribution of sites belonging to owners of property comprised in the

scheme. (vii) theprovision of open spaces in the interests of the residents of
any locality comprised the scheme or any adjoining locality and the
enlargement or alteration existing open spaces.
5.
Again Section 43 of the said Act empowers to alter the Scheme under the Act with
the prior approval of State Government. The alteration completed Under Section 43 is
of such nature as it does not obliterate the earlier scheme and entirely new scheme in
its place.
6.
All these arguments have left no impression upon us. In DCM Ltd. Vs. Om
Prakash Saini & Ors. In First Appeal No. 744 of 2006, the judgment rendered by the
Bench headed byJustice Ashok Bhan, it was held:Appellant filed the appeal and later on got it dismissed as withdrawn.
Application
No. 218/2012 has been filed seeking recall of the order dismissing the appeal as
withdrawn. Since the appeal had been withdrawn by the appellant voluntarily, no
ground for recall/restoring the appeal is made out. Dismissed.
8.
The Petition for Special Leave to Appeal was preferred before the Supreme
Court dated 01.02.2013. Same was withdrawn.

9.
We see no reason to discard judgment recorded by the State Commission. It
passed the order as per the settlement reached between the parties. It must be borne
in mind that the State Commissions are burdened with enough work. Even if, there was
delay of 12 days in announcing the judgment, the bonafide of the learned Court cannot
be doubted. The State Commission has to do a lot of work.
10.
Above all, the deficiency on the part of the petitioner is discernible from the facts
of this case. The petitioner was allotted the first plot bearing No. 439-B. The
boundaries of the said plot mentioned in the sale deed were as follows:East: Park, West: Plot No. 438-B, South: Road, North: Park and it was also
accompanied with the site plan.
11.
According to the O.P., the site plan was changed because there was firstly
high tension wires of the electricity passing over the plot of the applicant and there were
security reasons. Both these allegations have not been bolstered with any kind of
evidence. What were the security reasons, was never explained. On the contrary, it
appears that due to ulterior motive and to accommodate some V.I.P., the first plot in
question was replaced. It is difficult to fathom how the sale deed can be changed. The
petitioner was given the plot near the Cremation Ground. The veil of suspicion covers
the bonafide of the OP.
12.
During the arguments, we had enquired what is the status of plot No. 494-B so
that the interest of any party may not be affected. The learned counsel for the
petitioner, after seeking instructions from the authorities, explained that the plot was to
be auctioned, but due to stay, the status quo is being maintained. It is thus clear that no
third party interest has yet been created.
13.
One
is
bound
by
the
provisions
of
Law. Law
has
the
super
most
authority. Nobody can ignore the Law. However, when the Law is twisted in order to
accommodate some few persons,, there lies no rub to ignore such like Laws. The Law
has to be followed properly, and in good spirit. The Law should not be used in order to
deprive the rights of a person. For all these reasons, we dismiss the Revision
Petition. Order passed by the State Commission be complied with, within 90 days of
the receipt of this order otherwise, the petitioner will have to pay penalty in the sum
of Rs. 5,000/- per month, to the respondent, till the compliance of the order of the State
Commission.
...
(J. M. MALIK, J)
PRESIDING MEMBER
...
(S. M. KANTIKAR)
MEMBER
Jr/12

With I.A. No____of 2014 (For Stay)
(Against the order dated 30.12.2013 in Appeal No.1152/2013 of the State Commission,
Cuttack)
1. The Chief Post Master General, Odisha Circle, At/PO-PMG Square, Bhubaneswar,
Distt. Khrda
2. The Superintendent of Post Offices, Cuttack North Division, Cuttack, P.O. Buxi
Bazar Cuttack -01
3. Dy. Divisional Manager (PLI), O/O Chief PMG, Odisha Circle, At/PO DMG G.
Square, Bhubaneswar, Distt. Khrda
4. Post Master, Balichandapur Sub Post Office at Bali Chandrapur, district Jajpur
..Petitioners
Versus
Shri Pratap Chandra Parida S/o Late Mahindera Parida At/PO Bali Chandrapur, Jajpur
. Respondent
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
For the Petitioner (s) :Mr. Roshan Lal Goel, Advocate alongwith Mr. A.K. Ganguly,
Deputy Divisional Manager (PLI)
Pronounced on: 2nd April, 2014
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Petitioners/Opposite Parties have filed the present revision petition under Section
21(b) of Consumer Protection Act., 1986 (for short, Act) challenging the order dated
30.12.2013 passed by State Consumer Disputes Redressal Commission, Odisha,
Cuttack (for short, State Commission) in F.A. No. 375 of 2013.
2. Respondent/Complainant had filed a consumer complaint against the petitioners
before the District Consumer Disputes Redressal Forum, Cuttack (for short, District
Forum) on the ground that deficiency in service had been committed by the petitioners,
while asking for payment of differential premium amount at the time of payment of
maturity value under Postal Life Insurance Policy (PLI) which was taken by the
respondent. This amounts to unfair trade practice on the part of the petitioners.
3. The consumer complaint was contested by the petitioners stating that the maturity
value as admissible was paid to the insured and there has not been any violation of
the contract. However, there was some error in the calculation of the premium while
conversion of WLA policy to Endowment policy.
4. The District Forum allowed the complaint and held the petitioners guilty of deficiency
in service, negligence and unfair trade practice and directed;
i) The Opp. Parties are liable to pay Rs.2,42,000/- as the maturity value
including bonus plus terminal bonus to the complainant on the date of
maturity of the policy No.OR-46893-CS instead of Rs.1,86,335/-.
ii) Since the Opp. Parties have already paid Rs.1,86,335/- on 15.9.2012, we
direct them to pay the differential amount of Rs.56,265/- with interest @ 9%
per annum from 6.12.2011 uptil the date of payment.
iii) We further direct the Opp. Parties to pay interest @ 9% on Rs.1,86,335/from 6.12.11 to 15.9.12 i.e. for the delay in payment.
iv) The Opp. Parties are also directed to pay a compensation of Rs.5,000/for harassment and
mental
agony
to
the
complainant
with
cost
of litigation of Rs.2,000/-.
v) The loss if any, sustained by the Govt. of India for the negligence of all the
Opp. Parties shall be recovered from such officers proportionately from
their salary, as a deterrent measure so as to improve the work culture.
5. Aggrieved by the order of District Forum, petitioners filed first appeal before the
State Commission. Since there was delay of 92 days in filing of the appeal, an affidavit
seeking condonation of delay was filed before the State Commission.
6. The State Commission vide impugned order, declined to condone the delay holding
that there is no sufficient cause to condone the delay and consequently dismissed the
appeal.
7. Hence, the present petition.
8. We have heard learned counsel for the petitioners and have gone through the
record.
9. It has been contended by learned counsel for the petitioners that though there was
delay of 92 days in filing of the appeal before the State Commission, but the same has
occurred due to the official procedure and there was no intention on the part of the
petitioner to delay the matter.
10. In the grounds of revision, there is not an iota of any word, as to how there was
delay of 92 days in filing of the first appeal before the State Commission and how State
Commission has erred in not condoning the long delay of 92 days.
11. Relevant portions of the affidavit with regard to condonation of delay filed before the
State Commission is reproduced as under;
2) That in the case even the order was passed on 17.04.2013, but it was
received by the appellants on 29.04.2013 through the learned Central
Government Counsel Sri R.C. Swain, C.G.C.
3) That, soon after receipt of the copy of the order dtd. 17.04.2013, it is
necessary administrative approval of the competent authority i.e. the Chief
Post Master General, Odisha Circle, Bhubaneswar was sought for by the
undersigned for implementation of the order or otherwise vide letter
No.CR/CD-04/2012 dt.03.05.2013.
4) That, thereafter the case was examined in detail by the competent
authority and in course of examination the following records/information
was sought for from different section/offices vide Circle Office letter
No.LC/671-09/13 dtd. 15.05.2013 and L9/CD-82/13 dtd. 14.05.2013 is as
follows:(i) Legal opinion from Ministry of Law & Justice, Department of Legal
Matter, Kolkatta-1
(ii) Legal Opinion of Asstt. Solicitor General of India, O.H.C., Cuttack.
(iii) Copy of complaint case No.176/2012, copy of written version and
related other documents, if any.
5) That, the legal opinion from the Ministry of Law and Justice, Kolkata and
opinion of the ASGI, OHC, Cuttack were received at this end of
10.06.2013 and 16.06.2013 respectively. The required documents were
sent to the appropriate authority.
Finally, it has been considered and decided by the competent authority

to challenge the impugned order dtd. 17.04.2013 in the Hon'ble State
Commission for which draft copy of First Appeal was prepared on
consultation with the learned counsel for the Department and thereafter
sent to Circle office for necessary vetting vide letter dtd. 01.07.2013. The
vetted Appeal was received at this end 8.8.2013 and filed on 23.8.2013.
6. That, the Appellants most respectively submitted before this Hon'ble
Commission
with
folded
hand
to
condone
the
delay
be
its
jurisdiction.
12. As per petitioners own case, copy of the order passed by the District Forum was
received by the Central Governments counsel on 29.4.2013. Thereafter the matter was
examined in detail by the Competent Authority and after seeing the record and
information from different sections, the appeal was filed before the State Commission
only on 23..8.2013. Thus, it is manifestly clear that petitioners had taken about four
months for filing the appeal before the State Commission. Thus, the only ground for the
delay as per affidavit is with regard to the office procedure. If petitioners department
had taken about four months to file an appeal, then it has to blame itself for the
careless and negligence on the part of its officials.
13. Admittedly, there are concurrent findings given by both the fora below in favour of
the respondent. Thus, a valuable right has accrued in the favour of the respondent.
14. It is well settled that sufficient cause for condoning the delay in each case is a
question of fact.
15. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd.,
AIR Supreme Court 361, it has been observed;
It is, however, necessary to emphasize that even after sufficient
cause has been shown a party is not entitled to the condonation
of delay in question as a matter of right. The proof of a sufficient
cause is a discretionary jurisdiction vested in the Court by S.5. If
sufficient cause is not proved nothing further has to be done; the
application for condonation has to be dismissed on that ground
alone. If sufficient cause is shown then the Court has to enquire
whether in its discretion it should condone the delay. This aspect
of the matter naturally introduces the consideration of all relevant
facts and it is at this stage that diligence of the party or its bona
fides may fall for consideration; but the scope of the enquiry while
exercising the discretionary power after sufficient cause is shown
would naturally be limited only to such facts as the Court may

regard as relevant.
16. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been
observed:
We hold that in each and every case the Court has to examine
whether delay in filing the special appeal leave petitions stands
properly explained. This is the basic test which needs to be
applied. The true guide is whether the petitioner has acted with
reasonable diligence in the prosecution of his appeal/petition.
17. Honble Supreme Court after exhaustively considering the case law on the aspect of
condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat
Industrial Development Corporation reported in (2010) 5 SCC 459 as under;
We have considered the respective submissions. The law of
limitation is founded on
public policy
. The legislature does not prescribe limitation with the object of destroying the rights of
the parties but to ensure that they do not resort to dilatory tactics and seek remedy
without delay. The idea is that every legal remedy must be kept alive for a period fixed
by the legislature. To put it differently, the law of limitation prescribes a period within
which legal remedy can be availed for redress of the legal injury. At the same time, the
courts are bestowed with the power to condone the delay, if sufficient cause is shown
for not availing the remedy within the stipulated time.
The expression "sufficient cause" employed in Section 5 of the
Indian Limitation Act, 1963 and similar other statutes is elastic enough
to enable the courts to apply the law in a meaningful manner
which sub serves the ends of justice. Although, no hard and fast
rule can be laid down in dealing with the applications for condonation
of delay, this Court has justifiably advocated adoption of a liberal
approach in condoning the delay of short duration and
a stricter approach where the delay is inordinate - Collector,
Land Acquisition, Anantnag v. Mst. Katiji (1987)2 SCC 107, N.
Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and 10 Vedabai
v. Shantaram Baburao Patil (2001) 9 SCC 106.
18. Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development
Authority, IV (2011) CPJ 63 (SC) has observed ;
It is also apposite to observe that while deciding an application filed in
such cases for condonation of delay, the Court has to keep in mind that
the special period of limitation has been prescribed under the
Consumer Protection Act, 1986 for filing appeals and revisions in
consumer matters and the object of expeditious adjudication of the

consumer disputes will get defeated if this Court was to entertain
highly belated petitions filed against the orders of the consumer foras.
19. Lastly, Honble 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 timelimit 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
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.
20. Observations made by the Apex Court in the authoritative pronouncements

discussed above are fully attracted to the facts and circumstances of the case.
21. Thus, in our view, the discretion exercised by the State Commission in declining the
petitioners prayer for condonation of delay of 92 days, does not suffer from any legal
infirmity and the possibility of this Commission forming a different opinion in the matter
of condonation of delay cannot justify interference with the impugned order under
Section 21(b) of the Act.
22. Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to
the petitioners. Consequently, the present revision petition filed by the petitioners is
hereby dismissed in limini with cost of Rs.10,000/-(Rupees Ten Thousand only).
23. Petitioners are directed to deposit the cost by way of demand draft in the name of
Consumer Legal Aid Account, within four weeks from today.
24. In case, petitioner fails to deposit the cost within the prescribed period, then
they shall be liable to pay interest @ 9% p.a., till realization.
25. Pending application, if any stand disposed of.
26 List on 9.5.2014 for compliance.
.J
(V.B. GUPTA)
PRESIDING MEMBER
(REKHA GUPTA)
MEMBER
Sg.

REVISION PETITION No. 532 OF 2012
(Against order dated 02.12.2011 in First Appeal No.253 of 2011 of the State Consumer
Disputes Redressal Commission, West Bengal)
ICICI Bank Ltd. Through Branch Manager, 19, Synagogue Street, Brabourne Road,
Brabourne Road Branch, Kolkata-700001
..Petitioner
Versus
Sh. Rajendra Kumar Agarwal, S/o Sh. Hulash Chandra Agarwal, On behalf of, M/s
Akheychand Hulashchand, 40 A, Armenia, Street, 2 nd Floor, Kolkata-700001.
.... Respondent
BEFORE:
For the Petitioner : Mr. Rishi Kapoor, Advocate
Dated : 2nd April, 2014
ORDER
Being aggrieved by order dated 2.12.2011, passed by State Consumer Disputes
Redressal Commission, West Bengal(for short, State Commission), Petitioner/
Opposite Party has filed the present revision petition under Section 21(b) of
the Consumer Protection Act, 1986(for short, Act).
2. Brief facts are that Respondent/Complainant is a constituted
attorney
of Hulash Chand Agarwal(Karta), HUF and run the business under the name and style
as
M/s.
Akhechand
Hulaschand.
The
respondent
maintain
a Current
A/c.No.62760551306, in the name of Akhechand Hulaschand. The petitioner promised
to provide the respondent with high value cheque clearing facility along with other
facilities. The high value clearing facility is a system whereunder the cheque clearing
cycle completes on the same day and the customer depositing the cheque is permitted
to withdraw the proceeds next day morning. Respondent deposited a high value
cheque no.890623 for Rs.8,93,546/- drawn SBI on 06.07.209. It is stated that the said
high value cheque was cleared and the amount was credited on 07.7.2009. The
account balance on 07.7.2009 showed credit balance of Rs.13,21,678-61 and
respondent issued several cheques. However, some outward cheques were returned
dishonoured in respect of sufficient credit balance and one self-cheque for Rs.30,000/was also dishonoured on 07.07.2009 and 08.07.2009. Due to such dishonour of
cheques at the fault of the petitioner, the respondent suffered loss and damage in
respect of reputation and business. As soon as respondent came to know the fact of
dishonour of the cheque issued by him, he rushed to the Petitioner-Bank on 08.07.2009
at about 2. P.M. and requested it to generate a statement of accounts from 1 st July, to
8th July, 2009 and also sought explanation and the grounds of dishonour of the cheques.
Petitioners officials however, misbehaved with the respondent and refused to generate
and hand over the statement of accounts at around 4.25 p.m, which showed credit
balance of Rs.13,21,678-61 as on 07.07.2009. Respondent sent a complaint to the
petitioner on 16.07.2009. Thereafter, he sent another letter dated 25.08.2009, through
its Advocate. Thus, respondent in its Consumer Complaint has prayed for following
directions;
1. To pay Compensation amounting to Rs.4 lakh for compensation or damage

caused by the deficiency in service and for inconvenience, mental agony
and harassment and
2. litigation costs.
3.
Petitioner in its written statement had taken an objection that drawee bank is a
necessary party. However, it has admitted that respondent is having Current Account in
their bank. It is further stated that high value clearing zone was set up by the clearing
houses for facilitating fast realization of high value cheques, so that the customers can
get the credit on the same day. However, to qualify as a high value cheque, the cheque
should not merely be of a certain amount but it should be issued by a high value
clearance branch. The cheque in the question was issued by a branch which is not a
high value participating branch. The respondent had deposited the cheque for
Rs.8,93,546/- being No.890623 on 06.07.2009. The draweee bank was State Bank of
India, Rubi Park Branch. As the said branch was not a high value participating branch,
the cheque was lodged for clearance not on the same date, but the next day, i.e.
07.07.2009. On 07.07.2009, the State Bank of India informed the Reserve Bank of India
that due to system failure, it would not be able to process the returns. Hence, Reserve
Bank of India granted one day extension to the State Bank of India for return clearing.
All State Bank of Indias cheques were pending for clearance on 07.07.209 and the
clearing balance was available to all such customers on 08.07.2009 in the evening. It is
asserted that the cheque deposited by the respondent was not cleared on 07.07.209.
Although the amount of Rs.13,21,678-61 was reflected in the respondents account, but
the same could not have been withdrawn until and unless the same was cleared by the
Drawee Bank.
4. District Consumer Disputes Redressal Forum, Kolkata, Unit-II(for short, District
Forum) vide order dated 29.4.2011, held that State Bank of India, Rubi Park Branch is
not a necessary party. Further, after hearing the parties and considering the evidence, it
dismissed the complaint.
5. Being aggrieved, respondent filed an appeal before the State Commission which
allowed it, vide the impugned order.
6. Hence, this revision.
7. We have heard the learned counsel for the petitioner and gone through the record.
8. It has been contended by the learned counsel for the petitioner that for a cheque to
qualify as a high value cheque, the mere fact of it being above certain amount is not
enough and the same is required to be issued by a banking branch having high value
clearance. The said cheque was drawn on the State Bank of India, Rubi Park Branch,
which is not a high value clearance branch. Under these circumstances, there is no fault
on behalf of the Petitioners Bank. Therefore, the impugned order is liable to be set
aside.
9. State Commission, in its impugned order has observed;
The Statement of Account as filed by the complainant and marked as
Annexure P-1 to this memorandum of appeal which is also part of the
records the complainant case, has not been disputedby the respondent
Bank. It is clearly evident therefrom that the aforesaid amount of
Rs.8,93,546/-(Eight lacs ninety-three thousand five hundred forty-six) was
shown credited on 7th July, 2009. Before such credit the Account
Balance stood at Rs. 4.28,132.61 paisa(Rs.Four lacs twenty-eight thousand
one hundred thirty-two and sixty-one paisa). Even assuming that the
aforesaid high amount of Rs.8,93,546/-(Eight Lacs ninety-three thousand five
hundred forty-six) was not credited in favour of the Account Holder before
15:57 hrs., then also there was no occasion to dishonour the cheque
No.167142 of Rs.30,000/-(Thirty Thousand) which was allegedly presented at
11:37 a.m. on 7th July, 2009 particularly when the credit balance stood at
Rs.4,28,132.61 paisa(Rs. Four lacs twenty-eight thousand one hundred
thirty-two and sixty-one paisa) as aforesaid. Even if we go by the case made
out by the respondent Bank that the said self Cheque No.16142 for Rs.
30,000/-(Thirty thousand) was dishonoured at 11: 37 a.m, then also it cannot
be denied that in the morning of 7 th July 2009 there was a credit balance of
Rs.4,28,132/-(Four Lacs twenty-eight thousand one hundred thirty-two).
Therefore, there was also no occasion for dishonouring the Cheque
No.167136 drawn for Rs.3,27,146/-(Three lacs thirty-seven thousand one
hundred forty-six) which was presented on 7 th July, 2009. The above
statement of account clearly shows that the second Cheque No.161139 for
Rs.1,15,627(One Lac fifteen thousand six hundred twenty-seven) was
returned on 8th July 2009 for the reasons of insufficient fund. In any event, the
aforesaid high amount of Rs.8,93,546/-(Eight lacs ninety-three thousand five
hundred forty-six) having been credited as per the version of the respondent
Bank on 7th July 2009 at about 15: 57 hrs., the dishonouring of the said
Cheque No.161139 for Rs.1,15,627/-(One Lax fifteen thousand six hundred
twenty-seven) was absolutely gross deficiency of service by the respondent
Bank.
The Forum below has failed to scrutinize the Statement of Account as
produced by the complainant and not denied by the respondent Bank in its
proper perspective. The Statement of Account read with the letter dated
8th July 2009 issued by the respondent Bank has established beyond
reasonable doubt that the respondent Bank had acted with gross deficiency
in service by dishonouring all three aforesaid Cheques mentioned
hereinabove on the ground of insufficient fund.
The complainant has thus been able to establish gross deficiency in
service by the respondent Bank by dishonouring the said Cheque on the
ground as disclosed in the complaint case.
The finding made by the Forum below that the complainant Rajendra
Kumar Agarwal has failed to establish on the strength of any document that
he is running the business organization of M/s Akhechand Hulashchand as
the Karta of Hindu undivided family is also inconsequential. The
correspondences between the parties as disclosed in the above complaint
case reveal that said Rajendra Kumar Agarwal wrote letters in this regard on
behalf of M/s Akheychand Hulashchand which were replied to by the
respondent Bank without raising any question that he had no authority to
make such correspondences in respect of the transaction carried out on the
basis of the Cheques issued by the said business organization in relation to
the Account maintained by it. The respondent Bank has also not been able to
establish on the strength of any previous transaction and/or the
correspondences made between the parties that the complainant is a
stranger to the said business organization or the Account maintained by it.

The Consumer Protection Act 1986 provides for filing of a complaint on behalf
of the complainant and disposal of the same in a summary manner.
Considering the facts and circumstances of this case and more particularly in
the absence of any cogent material showing the complainant as stranger to
the aforesaid business organization and/or the Account maintained by it, we
are not inclined to entertain a technical point of such nature for the purpose of
dismissal of complaint particularly when the complainant must succeed on
the merits of the complaint case.
For the reasons as above we are of the view that the judgment and order
of the Forum below can not be sustained. The same is therefore set aside.
In view of the findings made hereinabove, it can not be disputed that the
complainant had suffered stress and mental anxiety because of the gross
deficiency in service by the respondent Bank in not honouring the Cheques
as above, even though it had sufficient balance in the aforesaid Account
when the respective Cheques were presented to the respondent Bank.
We therefore allow the complaint case and direct the respondent Bank to
pay a compensation of Rs.40,000(Forty thousand) to the complainant for
causing stress and mental agony to the complainant and Rs.10,000/-(Ten
thousand) by way of litigation cost. The respondent Bank will further reverse
the debits made twice for an amount of Rs.386/- on account of charges for
return of the Cheque Nos.167136 and 167139.
Both the aforesaid amount either shall be paid to the complainant directly
or credited in the aforesaid account No.627605251306 in the name of M/s
Akheychand Hulashchand by 31st December, 2011 in default of which the
same will carry an interest @ 9% per annum from the date till payment. The
appeal is thus allowed.
10. There is no dispute about this fact that, respondent was having a Current Account
with the Petitioners Bank. It is apparent from the above findings of the State
Commission, that the statement of account clearly shows that the second Cheque
No.161139 for Rs.1,15,627(One Lac fifteen thousand six hundred twenty-seven) was
returned on 8th July 2009 for the reasons of insufficient fund. In any event, amount of
Rs.8,93,546/-(Eight lacs ninety-three thousand five hundred forty-six) having been
credited as per the version of the respondent Bank on 7 th July 2009 at about 15: 57 hrs.,
the dishonouring of the Cheque No.161139 for Rs.1,15,627/-(One Lac fifteen thousand
six hundred twenty-seven) was absolutely gross deficiency of service by the Petitioners
Bank, as the respondent was having sufficient funds in his account at that time.
11. In view of the above evidence, we have no hesitation in holding that the order
passed by the State Commission is based on sound reasonings. No jurisdictional or
legal error has been shown to us, to call for interference in the exercise of powers under
Section 21(b) of the Act. Since, the State Commission has given detailed and reasoned
order, it does not call for any interference nor it suffer from any infirmity or erroneous
exercise of jurisdiction or material irregularity.
12. Thus, there is no merit in the present revision petition and same is hereby
dismissed in limini with cost of Rs.5,000/-(Rupees Five Thousand only).
13. Petitioner is directed to deposit cost of by way of demand draft, in the name of
Consumer Legal Aid Account of this Commission, within four weeks from today. In
case, petitioner fails to deposit the cost within the prescribed period, then it shall also be
liable to pay interest @ 9% p.a., till realization.
14. List on 09.05.2014 for compliance.
..J
(V.B. GUPTA)
PRESIDING MEMBR
(REKHA GUPTA)
MEMBER
SSB

(From order dated 27.02.2013 in First Appeal No. 931 of
Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)
2013 of
the
1. Rajubhai Tank, Director of Odhav Hari Developers Pvt. Ltd. Having address at:
At Odhavdham Apartment Office No. 1, Opp. Hotel Viram, Bankers Colony, Bhuj
(Gujarat)
2. Liladharbhai Dama Director of Odhav Hari Developers Pvt. Ltd. Having address at:
At Odhavdham Apartment Office No. 1, Opp. Hotel Viram, Bankers Colony, Bhuj
(Gujarat)
3. Rajesh B. Mehta, Agent of Proprietor of Odhav Hari Developers Pvt. Ltd. Having
address at : At Odhavdham Apartment Office No. 1, Opp. Hotel Viram, Bankers
Colony, Bhuj (Gujarat) Ahmedabad
Petitioners
Versus
1. Bindraben Bharatkumar Mavani (Minor) Through her Natural Guardian Nayanaben
Bharatkumar Mavani, Residing at Kansara Sheri, Tower Chawk, Amreli, Gujarat
2. Navinchandra Meghajibhai Rathod, Odhavdham Apartment Office No. 1, Opp.
Hotel Viram, Bankers Colony, Bhuj (Gujarat), Ahmedabad
Respondents
AND
REVISION PETITION NO. 2398 to 2401, 2408 to 2415 and 2422 to 2425 OF 2013
BEFORE:
For the Petitioner: Mr. Aruneshwar Gupta, Advocate with Mr.
Advocate Mr. Nikhil Singh, Advocate Ms. Anusha Bajpai, Advocate
For the Resp. No.1
: Mr. Shaktisinh Jadeja, (In person)
For other Resp.
: NEMO
Manish Raghav,
Pronounced : 2nd April, 2014

ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER (ORAL)
1.
This common order shall decide the above mentioned 17 revision petitions, which
entail the same question of law and facts. This revision petition was contested
by ShriShaktisinh Dilip Sinh Jadeja, who has produced the written statement of himself
and
two
other
consumers,
and Ramilaben JagdishbhaiJethi.
namely, Krishnaben Dinesh Sendhani (minor)
2.
All the respondents have been served but they did not appear.
3.
We have taken the facts from revision petition No. 2391 of 2013-Rajubhai Tank
& Ors vs. Bindraben Bharatkumar Mavani. Shri RajuBhai Tank, opposite party No. 1,
Director
ofOdhav Hari Developers
Pvt.
Limited, Liladharbhai Dama,
Director
of Odhav Hari Developers Pvt. Ltd., opposite party No. 2 and Rajesh B. Mehta, opposite
party No. 3 purchased land in the name of land developers. They used to purchase the
agricultural land and convert the said land into non-agricultural for residential
purpose. An advertisement was published to sell the plots measuring 125 sq. mtrs in 36
installments, per installment in the sum of Rs.800/-. They purchased the land in survey
No. 103-104-105 Bhuj.
4.
All the complainants became members of the land developers and paid 36
installments
as
per
the
scheme. Vide
letter
dated
17.6.2009,
the
present
complainant BindrabenBharatkumar Mavani was allotted plot No. 116 mentioned in the
non-agricultural plan and it was stated that an activity/procedure to convert the land into
non-agricultural is going on.
5.
The grouse of the complainants is that upon the elapse of the long period, sale
deeds were not executed. The opposite party launched a scheme in the year 2004 and
in the year 2009, the complainants had paid the entire consideration in installments to
the opponents. It was alleged that opponents were enjoying their money. Notices were
issued but they did not evoke any response.
6.
Consequently, the complainants filed separate complaints before the District
Forum against the opposite parties seeking relief that their sale deed should be
executed at the cost of the complainants and also sought relief to get compensation
of Rs. 1 lakh towards mental, physical harassment and Rs.1,00,000/- towards the loss,
Rs.5,000/- towards expenditure. The opposite party contested this case. The District
Forum in this case passed the following order:
Complaint of the complainant is hereby allowed. The opposite
party is directed to execute registered sale deed for the plot being
No. 116 as per conditions mentioned in the letter dated 17.06.2009
addressed to the complainant and produced vide mark 3/1
in favour of the complainant within three months and further
directing the opponent to give compensation of Rs.3000/- towards
mental, physical harassment and Rs.2,000/- towards expenditure of
present complaint.
Order is pronounced in the open court.
7.
Aggrieved by that order, the petitioners filed appeals before the State
Commission. The State Commission dismissed the appeal.
8.
Before coming to the submissions of the petitioners, it would be worthwhile to
discuss their defence succinctly. The Opposite Parties No. 2 & 3 were joined as party
respondents as per third person capacity and as such the complaint is not
maintainable. The case is barred by limitation. The application was moved by the
petitioners for granting permission to use the land for non-agricultural purposes. The
Collector
had
directed
to
make
payments
towards
premium
200/-
on
22.09.2008. The order was challenged before the Gujarat High Court which declared
that the agreement entered into between the consumers and the Ops was not
valid. There is no deficiency on the part of the Ops.
9.
Now we turn to the submissions made by the counsel for the petitioners. First of
all, he invited our attention towards the High Courts order wherein it was observed:If without permission under Section 43, the land could not have
been sold, the agreement if any reached by the petitioners with any
other person for transfer of land, such agreement is invalid, having
executed in violation of Section 43 of the Act and hence to be
ignored.
Further, it was mentioned:
44. Further, if the petitioners will not transfer the land as of today or
in future to another person at the costs as was prevailing 5 to 10
years back and for the purpose of stamp duty, they will pay stamp
duty as was prevailing at the time of sale, they cannot claim
determination of valuation as was prevailing at the time of sale. For
the said reason, the petitioners cannot take any advantage of the
judgments referred by them which are not applicable in the facts
and circumstances of the case in hand. We, therefore, hold that
the crucial date for determination of the premium is the date on
which the Collector grants such permission i.e. prospective date
and not retrospective date. For the same very reason, we hold that
the resolution dated 4.7.2008 is prospective and cover all the
pending cases, including the cases where assessment was made
by State or District Level Committee or any other authority, if the
matter is pending for permission by the Collector.
45. So far as the individual cases are concerned, we are not
dealing
with
or
discussing
the
individual
claim
as
their applications for permission are pending with the Collector and
will be guided by the finding as given by us and mentioned
hereinabove. We find no merit in any of the writ petitions and the

Letters Patent Appeals and, therefore, we dismiss all the writ
petitions,
Letters
Patent
Appeal
and
the
Civil
Applications. However, there shall be no orders as to costs.

10.
Counsel for the petitioners also submitted that out of 1500 Consumers, 1200
Consumers have already been refunded the amount. Few people could not pay the
amount. Only the complainants are left who do not agree to take the refund back.
11.
Our attention was invited towards the order passed by this Court. At the instance
of the petitioners, the said order dated 6.12.2003 is reproduced here as under:In
these
cases,
served. Adjournment
all
the
respondents
applications
have
have
been
been
moved
by Shri Shaktisinh D. Jadeja, Shri Dinesh Sendhani and ShriRamila

ben J. Jethi, respondents. They need to engage advocate to
conduct the cases. They state that they reside in Kutch, Gujarat,
which is far away and prays for a long date so that they can engage
lawyer.
In the interest of justice, the case is adjourned to 31.3.2014 for
reply and arguments.
We have perused the High Court judgment. Without prejudice, stay
is granted subject to deposit of Rs.20,000/- in each case. The
petitioner will deposit the entire amount with 9% interest with this
Commission within six weeks, failing which the stay shall stand
vacated.
The fate of that amount will be decided at the time of passing of the
final order. The registry is directed to keep that money in FDR.
Notice on the application for condonation of delay be also issued to
the respondents returnable on 31.3.2014.
The respondents have asked for long date. They have not
cared to give their phone number or the fax number. This is also
mentioned that this is consumer court. It appears that they are
trying to delay the case unnecessarily. No further adjournment
shall be granted. Registry is directed to send the information about
the next date of hearing through speed post to all the respondents.
12.
Learned counsel for the petitioners submits that this was the prima facie view of
this Commission and they are ready to pay the entire amount with interest @ 9%.
13.
During
the
course
of
arguments,
we
asked
the
respondent-
Sh. Shaktisinh Jadeja whether they would like to have refund of money with
interest. He insisted that they want plots only. He further pointed out that from 2004 to
2014 the rates of plots have gone up by leaps and bounds. He contended that the plot
of Rs. 25,000/- is not available even for Rs. 2,00,000/- He contended that they are
ruined due to this transaction.
14.
It must be borne in mind that both the Fora have given the concurrent
findings. The
judgment
filed
by
the Honble High
Court
rather
supports
the
complainants. In such like cases, consumers must have to repent to bark up at wrong
tree i.e. promoters/builders. For the following reasons, we find that the Revision
Petitions filed by the petitioners are sans merits and therefore, we dismiss the same.
15.
To top it all, the petitioners had given the advertisement to launch to sell the plots
on installments. It is difficult to fathom why did they give the advertisement without
getting the same as non-agricultural land for giving the plots there. The petitioners took
the complainants/consumers for a ride. Unless or until they were sure that the
complainants would get these plots free and clear, they should not have given the
advertisement. First of all, they gave the advertisement without the requisite sanction
from
the
Collector. They
obtained
almost
all
the
instalments
from
the
customers/consumers. They succeeded to lead the consumers up the garden path.

16.
By no stretch of imagination, it can be said that a situation has arisen, which
makes the situation out of control. It is crystal clear if the premium is paid, land would
become non-agricultural and there would not be any other opinion with regard to this
aspect. The petitioners should have anticipated at the time of acquiring this land in the
year 2004 or prior to that, what would be the condition/prevailing situation. They should
have made it clear in the allotment letter that this premium to the collector would have to
be paid by the consumers. The said condition was not shown to us. After keeping the
money of the people for 10 years, the Ops want to return the same, with interest @
9%. They have not shown the willingness that they want to pay the difference in the
rates prevailing in the year 2004 and 2014. The consumers cannot purchase a plot like
this, after the expiry of 10 years for a sum of Rs.2,00,000/- each. This is a chink in their
armour. Their action is below the belt. They are unfairly trying to treat their
consumers. The OPs have succeeded to feather its own nest i.e to make profits for
themselves at the expenses of others. The OPs should have taken the plunge after
getting free and clear title to land in dispute. It is also noteworthy that if the premium to
be paid to the Collector is reduced, will they return the money to the consumers? In
case the money is paid back to the consumers, the petitioners would sell it at a very
high rate. This is an unfair trade practice.
17.
Petitioners have also raised the question of limitation. The said objection was
rejected
out-rightly
by
following
the
judgment
of
Juliet
V. Kwardross Vs. Malatikumar and ors., reported in 2005 (2) CPR (NC.
18.
This is well settled that the cause of action is continuous and unless and until the
possession and sale deed are not executed. This Commission in the case
BhagyalaxmiConstruction versus Monoranjan Basal & Ors. in Revision Petition No. 668
of 2013 decided on 31st May 2013 observed:5. Coming to the issue of limitation, raised before the fora below on
behalf of RP/OP. The State Commission has agreed with the finding of
the District Forum that it was a case of continuing cause of action. The
question of the complaint being barred by limitation did not arise. From a
perusal of the records and from the arguments of the counsel for the
revision petitioner, I find that it is a case where existence of an agreement
between the parties for the purchase of a flat is not denied. Receipt of
consideration for the same is also not denied. I therefore, find myself in
agreement with the fora below that the cause of action had continued to
exist because neither the possession was delivered nor the conveyance
was executed in favour of the complainant.
The Supreme Court dismissed the SLP vide order passed in Petition(s) for
Special Leave to Appeal (Civil) No(s). 28910/2013 decided on 11.11.2013.
19.
The bizarre conduct of the OPs is difficult to fathom. Notice was served to them
but they did not care a fig. Ten years have elapsed but it cannot be said that consumers
will get plots during their life time. People are exasperated by senseless delay. The
OPs have played fast and loose with the consumers.
20.
Consequently, we dismiss the Revision Petitions with the direction to get the
agricultural land into non-agricultural land, meant for making the plots within 90 days
from the receipt of this order. Secondly, the petitioners are also directed to execute the
sale deeds within 180 days from the receipt of this order. Thirdly, if the needful is not
done, the petitioners will be liable to pay penalty in the sum of Rs. 10,000/- per
complainant/consumer for each month till the needful is done. Again, the Revision
Petitions are frivolous and vexatious, therefore the same are dismissed with costs of Rs.
10,000/- be paid by the OPs to each of the complainants Under Section 26 of the C.P.
Act within 90 days otherwise it will carry interest at the rate of 9% per annum till
realisation.
21.
It is also transpired that due to inadvertence, we could not order to pay the
litigation charges to the respondents. Only Mr. Shaktisinh Jadeja (In person) has come
to contest this case for two occasions on behalf of himself and two more complainants.
Each of them has filed the written reply. Consequently, Mr. Shaktisinh Jadeja would
get Rs. 15,000/- as litigation charges and other two consumers named above will
get Rs. 10,000/- each as litigation charges, which will be paid within 90 days from the
receipt of this order otherwise, it will carry interest @ 9% till realisation.
...
(J. M. MALIK, J)
PRESIDING MEMBER
...
(S. M. KANTIKAR)
MEMBER
Naresh/5

REVISION PETITION No. 4692 OF 2013
With
I.A. No.8115 of 2013 (For Condonation of Delay)
(Against order dated 13.08.2012 in First Appeal No.3140 of 2003 of the State Consumer
Disputes Redressal Commission, Uttar Pradesh)
Dr. Devi Prasad Pandey, Aged about 60 years, S/o Shri Ram Avadh Pandey, R/o Karm
Kuti, Hariwar Marg, Jagdishpur, Distt. Ballia
.... Petitioner
Versus
1. Rang Bihari Sinha R/o 205, Saketpuri, Bhigunpurna, Balia.
2. Prudential Capital Market Ltd. Tobacoo House, 192, Old Court House Corner,
Kolkatta, through, its Chairman
... Respondents
BEFORE:
For the Petitioner : Mr. Rajeev Kumar Singh, Advocate
Pronounced on: 3rd April,2014
ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
Present revision petition has been preferred against impugned order dated
13.08.2012,
passed
by Uttar
Pradesh,
State
Consumer
Disputes
Redressal
Commission, Lucknow(for short, State Commission)in Appeal No.3140 of 2003.

2. Brief facts are that Respondent No.1/Complainant had invested sum of Rs.60,000/each, in two FDRs having purchased them from Petitioner as well as Respondent
No.2/Opposite Parties. Maturity dates of these FDRs was 12.3.1998 and 28.4.1998,
respectively. On maturity, when respondent no. 1 claimed the amount, the opposite
parties refused to pay the amount. Thus, alleging deficiency on the part of the petitioner
as well as respondent no. 1, a consumer complaint was filed before the District
consumer Disputes Redressal Forum, Balia, (for short, District Forum).
3. Before the District Forum, petitioner as well as respondent no.1, did not appear
despite service and were proceeded ex parte.
4. District Forum vide its order dated 4.5.2001, allowed the complaint.
5. Being aggrieved, petitioner alone filed Appeal (No.3140 of 2003) before the State
Commission.
6. Since, none appeared on behalf of the petitioner before the State Commission on
13.08.2012, its appeal was dismissed in default for non-prosecution, vide the impugned
order.
7. Now petitioner has filed the present revision challenging the impugned order.
Alongwith it, an application seeking condonation of delay of 1 year 2 months and 22
days has also been filed.
9. Main grounds on which condonation of delay has been sought, have been stated in
the affidavit filed by the petitioner, which read as under;
2. That initially Shri D.M. Shukla was the counsel for the revisionist before
the Honble State Commission, Lucknow who after 25.11.2003 never
informed the revisionist the exact position of the case. It is submitted
on being asked about the status of the case/ appeal he always
misrepresented.
Sometimes
wrong date was
informed
and
sometimes it was informed that presently he has no date but shortly
he would be let know the date and status of the case.
3. That when the revisionist had doubt in the mind he submitted the
application for inspection of the appeal, it was revealed that the
appeal has already been dismissed for default for non-prosecution of
the case.
4. That thereafter the appellant contacted Shri. R. K. Mishra, Advocate
for obtaining certified copy of order and for recall of order dated
13.08.2012.
5. That the application for certified copy of judgment and order dated
13.08.2012 was applied on 27.11.2013.
6. That the certified copy of judgment and order dated 13.08.2012 was
obtained on 27.11.2013.
7. That it is relevant to submit here that there was a procedure initiated by
the Honble Court that one who wants to argue the case he would
have to serve the notice prior to the date of listing, but none of the
parties served such type of notice upon either of the parties. Had this
procedure would have been adopted, then the instant appeal would
not have been dismissed.
8. That the revisionist-appellant was always kept in dark about the date
and status of the case.
10. As per the above grounds, the petitioner had shifted the entire burden upon its
earlier counsel, Mr.D.M. Shukla. There is nothing on record to show that petitioner had
taken any action against this Advocate due to whose fault, appeal was dismissed in
default. No legal notice etc. against the said advocate had seen the light of the day. It
has become very easy and convenient for a litigant to shift the entire blame on its
previous counsel. It is the duty of every litigant to post himself regarding each date of
hearing. It clearly shows that petitioner himself was negligent and inactive. It has
become a usual practice with the litigants, to put the entire blame on their counsel
without any rhyme and reason.
11. Petitioner has nowhere specifically stated as to on which date and how he got the
knowledge of passing of the impugned order, when as per petitioners own case his
counsel did not inform him about any date in the case. However, as per application for
condonation of delay it is petitioners case that he had doubt in mind, hence he
submitted an application for inspection of the appeal where it was revealed that appeal
had already been dismissed for non-prosecution in default. Thereafter, he applied for
certified copy of the impugned order on 27.11.2013.
12. This story put forward by the petitioner is totally concocted one, because as per
certified copy of the impugned order placed on record by the petitioner himself, the free
copy of the impugned order was supplied to him on 22.08.2012. Thus, there is a long
delay of more than 1 year and 2 months.
13. It is well settled that sufficient cause with regard to condonation of delay in each case,
is a question of fact.
14. Apex Court in, Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV
(2011)CPJ 63(SC) has held while deciding the application filed 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 the appeals and revisions which are high belated are entertained. Relevant
observations are as under;
prescribed under the Consumer Protection Act,1986 for filing
15. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has
been observed;
It is, however, necessary to emphasize that even after
sufficient cause has been shown a party is not entitled to the
condonation of delay in question as a matter of right. The proof
of a sufficient cause is a discretionary jurisdiction vested in the
Court by S.5. If sufficient cause is not proved nothing further
has to be done; the application for condonation has to be
dismissed on that ground alone. If sufficient cause is shown
then the Court has to enquire whether in its discretion it should
condone the delay. This aspect of the matter naturally
introduces the consideration of all relevant facts and it is at this
stage that diligence of the party or its bona fides may fall
for consideration; but the scope of the enquiry while exercising

the discretionary power after sufficient cause is shown would
naturally be limited only to such facts as the Court may regard
as relevant.
16. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, the Supreme
Court observed;
whether delay in filing the special appeal leave petitions
stands properly explained. This is the basic test which needs
to be applied. The true guide is whether the petitioner has
acted with reasonable diligence in the prosecution of his
appeal/petition.
17. It is well settled that Qui facit per alium facit per se, negligence of a litigants
agent is negligence of the litigant himself and is not sufficient cause for condoning
the delay. See M/s Chawala & Co. vs. Felicity Rodrigues, 1971 ACJ 92.
18. Thus, no sufficient grounds are made out for condoning the long delay of 1
year 2 months and 22 days. Even otherwise, record of this case speaks volume
about conduct of the petitioner who had chosen not to appear before the District
Forum and as such was rightly proceeded ex parte. Even thereafter, petitioner had
not become wiser. He had conducted the appeal before the State Commission also
in a very casual, careless and negligent manner. That is why, his appeal was
dismissed in default.
19. Be that as it may, even while filing the present revision petition, petitioner has
again acted in a negligent and careless manner. It appears that the only intention of
petitioner is just not to comply with the award passed by the District Forum and to
deprive the complainant, the fruits of award.
20. Hence, application for condonation of delay being not maintainable is hereby
dismissed. Consequently, the present petition being barred by limitation, stand
dismissed with cost of Rs.5,000/-(Rupees Five Thousand Only).
21. Petitioner is directed to deposit the cost by way of demand draft in the name of
Consumer Legal Aid Account within four weeks from today.
22. In case, petitioner fails to deposit the cost within the prescribed period, then he
shall also be liable to pay interest @ 9% p.a., till realization.
..J
(V.B. GUPTA) PRESIDING MEMBR
SSB.
(Against the order dated 15.04.2010 in Appeal
Commission, Maharashtra)
No.340/2009
of the
State
Ms. Seema Ganapati Kashi Flat No.3, Plot No.245, Ganesh Krupa Hingwala Cross
Lane, Ghatkopar(East) Mumbai 400077
....... Petitioner
1.
Versus
Silver Line Industries 1405, Maker Chamber, Nariman Point Mumbai 400021
2. Link Intime India Pvt. Ltd. (Previously known In Time Spectrum Registry Ltd. and
prior thereto that Spectrum Corporate Services Ltd.) Having its office at C13, Pannalal Silk Mills Compound, LBS Marg, Bhandup (West ), Mumbai 400078
... Respondents
BEFORE:
For the Petitioner
Nemo
For the Respondent
Nemo
Pronounced on : 4th April, 2014

ORDER
Above noted revision petitions have been filed by the Petitioner/Complainant
against common order dated 15.4.2010, passed in First Appeal Nos.340 & 344 of 2009
by Consumer Disputes Redressal Commission, Mumbai, Maharashtra State (short,
State Commission).
2.
Brief facts are that Petitioner in the year 1993, had purchased certain shares of
Respondent No.1/Opposite Party No.1 Company, she submitted the same to

Respondent No.2/Opposite Party No.2 for transfer in her name. In 1995, the shares
were transferred in the name of the petitioner and share certificates were dispatched to
her. It appears that share certificates were lost in transit. Thus, petitioner filed a
consumer complaint before the Consumer Grievances Redressal Forum, Central
Mumbai (short, District Forum) alleging deficiency on the part of the respondents.
3.
Respondents contested the complaint. In their written statement, respondents
took the plea, that shares have already been transferred in the name of the petitioner
and dispatched to her. It is further stated that respondents will issue duplicate certificate
in lieu of the same, provided Petitioner comply with the necessary formalities. It is also
stated that petitioner is not a Consumer under the Consumer Protection Act, 1986
(short, Act) and as such complaint is not maintainable.
4.
District Forum vide order dated 16.5.2008, allowed the complaint and directed the
respondents jointly and severally to pay the petitioner Rs.3 lakhs along with interest @
6% p.a. from 1.4.2000 till the date of payment. They were further directed jointly and
severally to pay dividend to the petitioner as declared along with 6% interest and also to
pay Rs.10,000/- as compensationfor mental agony and Rs.5,000/- as cost
5.
Not satisfied with the order of the District Forum, Petitioner filed an appeal
for enhancement before the State Commission, whereas, respondents filed an appeal
for setting aside the order of the District Forum.
6.
The State Commission vide its impugned order dated 15.4.2010, dismissed the
appeal of the petitioner. It however, allowed the appeal of the respondents and
consequently, dismissed the complaint.
7.
Now, petitioner has filed the present revision petition.
8.
We have gone through the record.
9.
On 31.3.2014, when petition came up for hearing before this Commission,
following order was passed ;

The matter was passed over.
On the second call also, none is present on behalf of the
petitioner.
As per the Registry, there is delay of 98 days in filing of the
revision petition.
On 28.11.2013, one Ms. Aparna Mattoo, Advocate appeared
on behalf of Ms. Kiran Suri, Advocate and stated that Ms. Kiran Suri,
arguing counsel for the petitioner has been designated as Senior
Counsel and has asked the petitioner to engage a new counsel, but
no intimation has been received from the petitioner.
Under these circumstances, notice was ordered to be issued
to the petitioner for 10.2.2014.
On
10.2.2014, Ms. Aparna Mattoo,
counsel
for petitioner
stated that she does not wish to engage a new lawyer.

This Commission had also received an
application dated
16.1.2014 sent by the petitioner through her G.P.Holder, stating that

petitioner does not want to engage a new counsel and matter may be
decided on merits.
Since, application was not signed by the petitioner, we gave

one more opportunity to the petitioner to argue her case, if so
desires.
Today, there is no appearance on behalf of the petitioner.
We have perused the record.
10.
Order reserved.
The State Commission in its order observed ;
What is interesting to note is that, that for a transaction
which has taken in 1993 and transfer has taken in 1995,
the complaint has been filed by the complainant on
30/03/1999 before District Consumer Forum South
Mumbai. It was transferred to the Central Mumbai District
Forum and thereafter, District Consumer Forum Central
Mumbai has decided the complaint. The transaction is
admittedly of 1993 and the complaint has been filed in
1999. The only ground for filing the said complaint at
such belated stage is stated in the complaint is as
follows:
When and Where the cause of action arose:
Cause of action arose at fort, Mumbai. Two
Hundred Shares of Silverline Industries transferred
after three years but even now certificates are not
received. Dividend on 200 shares not received for
1995, 1996 and 1997.
Rs.250 x 3 Rs.750 loss.
First date of cause of Action arise in Jan.
1999. This amounts to deficiency in service. Since,
then it was held by Supreme Court that the shares
holders are not consumers. I did not approach
Consumer Forum. Now it has been clarified in the
following cases:
1.
Chinar Export
Ltd.
V/s.
Om Prakash Sahani (1998) 17 SCL 23 421
DSCDRC:
2.
OP. Goyal V.Lakh Raj Malik II (1998) CP 5 204
(NCDCRC).
3.
Mandeep Singh V/s. Thapar Agro Mills Ltd.
The
earlier
judgement
of
the Supreme
Court has been clarified and I have come
to know the correct position in law only in
Feb.1989 when I purchased yearly Corporate
Law Digest and Referencer.
Therefore the limitation starts running only
from Feb. 1999.
Thus, limitation has been explained. What we find

is that, that after purchase of shares in 1993 immediately
on yearly basis the complaint was expected to get
dividend. Therefore his case that cause of action arisen
in 1999 is not correct. The cause of action has taken
place in 1993. Admittedly, the shares were transferred
within two years or three years therefore so far as nondelivery of the dividend is concerned, cause of action is
taken in the year 1995-1996. The complaint has been
filed in 1999. Complainant has admitted that law at then
existing that is on the date of cause of action was not
allowing him to file the complaint in District Consumer
Forum. He states that later on because of above referred
cases decided by the Apex Court and Honble National
Commission, it has been held that such complaint can be
entertained and therefore, he has filed the complaint.
Laying down subsequent law cannot be cause of action
and cannot be ground for condonation of delay. Therefore
what we find the complaint is hopelessly time barred and
the District Consumer Forum erred in passing the order in
favour of the original complainant. We may also make
reference
to
the
recent
judgment
of Honble Supreme Court passed in case of Economic
Transport Organization V/s. Charan Spinning Mills (P)
Ltd. and another, 2010 CTJ 361 (SUPREME COURT)
(CP) wherein it has been held that if the services are
availed for any commercial purpose, the person availing
the service will not be a Consumer. Consequently, a
complaint in such case will not be maintainable under the
Act. Hence, the following order:ORDER
1. A.No.344/09 is allowed.
2. A.no.340/2009 stands dismissed.
3. Impugned order passed by the District Forum is hereby
is set aside and in turn the complaint stands dismissed.
4. Registrar is hereby directed to return the amount to
the appellant which has been deposited them at the time
of filing of the appeal.
11.
It is an admitted fact that petitioner had purchased the shares in the year 1993
and complaint before the District Forum was filed only in the year 1999.
12.
Therefore, the short question which arise for consideration is as to whether the
complaint filed by the petitioner before the District Forum, was within the time or the
same is barred by limitation.
13.
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 subsection (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.
14. 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.
15.
Honble 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.
In para No.13, it has been held by the Honble 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.
Thus, on the face of it, the complaint filed by the petitioner is barred by limitation
and no application for condonation of delay has been filed by the petitioner. The
present revision petition is liable to be dismissed on this short ground alone.
17.
Even on merits, petitioner has no case since she is not a Consumer within the
meaning of Act. In this context, reference can be made to the judgment passed
by Honble Supreme Court in case of Morgan Stanley Mutual Fund Vs. Kartick Das,
(1994) 4 SCC 225.
18.
In view of the above discussion, we have no hesitation in holding that the order
passed by the State Commission is based on sound reasonings. No jurisdictional or

legal error has been shown to us, to call for interference in the exercise of powers under
Section 21 (b) of Act. Since, State Commission has given detailed and reasoned order,
it does not call for any interference nor it suffers from any infirmity or erroneous exercise
of jurisdiction or material irregularity.
19. Thus, there is no merit in the present petition and the same is hereby dismissed.
20. No order as to cost.
..J
(V.B. GUPTA)
(PRESIDING MEMBER)
....
(REKHA GUPTA)
(MEMBER)
Sonia/

WITH
(I.A. NO. 1 OF 2011, FOR C/DELAY)
(Against the order dated 26.10.2010 in Appeal No.434, 1887 & 1888/2004 of the State
Commission, Haryana, Panchkula)
Kranti Kumar Dhiman
S/o Shri Sunder Lal Dhiman
Jagadhri Road, Yamuna Nagar Haryana
R/o
B-1/1274, Kranti Niwas

....... Petitioner
Versus
Karam Chand Thapar & Brothers Ltd. M/s Karam Chand Thapar & Brothers
A, Rishya Mook Building Panchkuian Road Connaught Place New Delhi 110001
85-
... Respondent
BEFORE:
For the Petitioner
For the Respondent
Mr. A.S. Rana, Advocate for Mr. Vimal Khanna, Advocate

:
Mr. Rajesh Kr. Malhotra, Advocate

ORDER
REKHA GUPTA
Revision Petition No. 2635-2637 of 2011 has been filed against the order dated
26.10.2010,
passed
by
Haryana
State
Consumer
Disputes Redressal Commission, Panchkula(short, State Commission) in First Appeal

Nos.434, 1887 & 1888/2004.
2.
The brief facts of the case as per petitioner/complainant are that the petitioner
under the guardianship of his father Shri Sunder Lal Dhiman had purchased 75
preference and 51 original shares of the company Hindustan Electrical Corporation
Ltd., Thapar House, 25 Brabourne Road, Calcutta in 1941 for a sum of Rs.5,000/-. The
above said shares had been purchased by the petitioner Kranti Kumar Dhiman when
he
was
minor
therefore,
the
same
had
been
purchased
through
his guardian Shri Sunder Lal Dhiman.

3.
The petitioner came to know that Hindustan Electrical Corporation Ltd. merged in
Crompton Greaves Ltd. and the above shares are also lying with the respondent.
4.
The petitioner had earlier written letters to Hindustan General Electrical
Corporation Ltd. on 27.12.1977 regarding issuance of sale certificate to the petitioner

and in the reply of the said letter, the Hindustan General Electrical Corporation Ltd., vide
his letter reference No.Sec/134/DP/18/455 directed the petitioner to send the
documentary
proof
the Gazetted Officer
either
School
regarding
the
Leaving
Certificate
age
the
of
duly
petitioner
attested
or
any
from
other
document. The petitioner accordingly, send the copy of Matriculation certificate along
with the affidavit regarding proof of his age. The date of birth of the petitioner is
2.4.1941 and he had become Major at that time also for removal of guardianship
ofShri Sunder Lal Dhiman who
had
also
died.
The
death
certificate
of Shri Sunder Lal Dhiman from the Municipality, Yamuna Nagar had also been sent to
the respondent along with the above said documents. The petitioner had further written
to the respondent to surrender old share certificates which had been handed over to
Late Shri O.P. Verma, General Manager,Ballerpur Industry, Yamuna Nagar for putting
the exchange of the same with new share certificate, but he has since passed
away. The petitioner had also sent the Indemnity Bond on Non-Judicial stamp paper of
Rs.5/- along with specimen for the loss of old share certificate duly signed by the
respectable as surety to the Hindustan General Electrical Corporation Ltd. The
Hindustan General Electrical Corporation Ltd. did not send the same nor paid any
dividends or profit of the said shares for which the petitioner is legally entitled.
5.
The petitioner also wrote so many letters and the last letter was sent by
registered AD post on 24.1.1977 to the respondent regarding issuance of the share

certificate which has been received by it on 3.2.1997. But the respondent has not paid
any heed towards the petitioner. The petitioner due to the said illegal act of the
respondent has not only suffered economically but also tortured mentally.
6.
The petitioner is legally entitled to receive the due share certificate which has
been purchased in 1941 but the respondent has not given any information of the same
nor the same has been sent by the respondent to the petitioner. It is further submitted
that neither any profit of the shares have been sent to the petitioner even for the last 56
years nor any account has ever been rendered to the petitioner, as a result of which the
petitioner is suffering irreparable loss which is in crores of rupees.
7.
It was therefore, petitioner prayed that the grievances of the complaint may be
redressed by making an order against the respondent directing them to send the share
certificates along with dividend and profit to the petitioner and also to render the account
to him, in the interest of natural justice, equity and good conscience, and they further be
directed to pay compensation due to mental harassment to the petitioner.
8.
Respondent nos.1 and 2 (before the District Forum) in their written statement
stated that ;
- The petitioner has submitted that the 75 preference shares and 51 original
shares have been purchased by his father some time in the year 1951. The said shares
belong
to
Hindustan
General
Electrical
Corporation
Ltd.
under
M/s Karam,
Chand Thapar Brothers Ltd., Thapar House, 25, Brabourn Road, Calcutta.
9.
The petitioner instead of making M/s KCT Bros. Ltd., as a party to the
proceedings before the District Forum has wrongly entered the name of M/s Crompton
Greaves Ltd. and others, which is misconceive, baseless, wrong and misjoinder of
parties and as such, the name of the respondent nos.1 and 2 shall be deleted from the
cause title of the complaint filed before the District Forum.
10.
Respondent no.3, who was impleaded later in their preliminary objections raised
the issue that the complaint was hopelessly time barred and there was no relationship
of consumer and supplier between the petitioner and the answering respondent.
11.
District Consumer Disputes Redressal Forum, Yamuna Nagar at Jagadhri, vide
their order dated 22.1.2004, allowed the complaint and passed the following order ;
Accordingly, we allow the complaint of the complainant and
direct the respondent No.3 to send the share certificates along with
dividend and profit to the complainant as per the order of
the Honble High Court, Calcutta in the year 1958 which is clear
from Annexure C-22 vide letter dated 20.12.1967. It is made clear
that if the respondent No.3 is unable to send the share certificates
etc. along with dividend and profits etc. in that eventuality, the
respondent no.3 is directed to pay the purchased amount of shares
by the complainant Rs.5,000/- along with Rs.12% p.a. simple
interest from 1941 till the date of realization of payment. The
complainant has also suffered mental agony, harassment etc. So,
the respondent No.3 is also directed to pay a sum of Rs.2,000/- as
compensation to the complainant on account of mental agony,
harassment etc. The above said order be complied within one
month from the date of this order.
12.
Not satisfied with the order of the District Forum, petitioner filed an Appeal No.434
of 2004 against respondent No.3 (Karam Chand Thapar & Brothers Ltd.) and
respondent No.3 (Karam Chand Thapar & Brothers Ltd.) filed Appeal No.1887 & 1888
of 2004 before the State Commission. Vide their order dated 26.10.2010, State
Commission, accepted Appeal Nos.1887-1888 of 2004 filed by respondent No.3 and
dismissed the Appeal No.434 of 2004 filed by the petitioner as also dismissed the
complaint.
13.
State Commission in its order held as under ;

Undisputedly, the shares were purchased by the father of the
complainant in the year 1941. The date of birth of the complainant is
2.4.1941, as has been disclosed by him in para No.3 of the
complaint. Thus, the complainant had attained majority on 2.4.1959
when his age was 18 years. It is also the case of the complainant that
he had written letter on 27.12.1977 to the opposite party No.3 for
issuing the sale certificate in respect of the shares. The date of death
of his father has not been disclosed by the complainant in his
complaint. Thus, in view of the own admission of the complainant
firstly the cause of action had accrued to the complainant when the
shares were purchased in the year 1941, secondly when his father
expired (however, date of death not disclosed), thirdly when the
complainant attained the majority in the year 1959 and thereafter in
the year 1977 when the complainant had made a written request to
the opposite party No.3 for the first time for issuing the sale
certificate. It is not disputed that the Consumer Protection Act, 1986
came in existence and Consumer Fora were established in the State
of Haryana in the year 1989. The complainant could have filed
complaint before the Consumer Forum within two years from the date
of establishing the Consumer Fora in the State of Haryana but the
present complaint was filed on 25.03.2004. Ignorance of law as well
as the further correspondence, if any, between the parties cannot
extend the period of limitation. The District Consumer Forum has not
appreciated the legal position on record in its true perspective and
committed great error in entertaining the complaint and granting the
relief.
As the present complaint is hopelessly barred by limitation,
therefore,
in
view
of
the
law
laid
down
in Kandimalla Raghavaiah (Supra), and any observation made on
merit of this case would be an illegality and as such the impugned
order is not sustainable in the eyes of law.
As a sequel to our aforesaid discussions, appeals No.1887/2004
and No.1888/2004 filed by the opposite parties are accepted, the
impugned order is set aside and the complaint is dismissed.
Consequently, appeal No.434/2004 filed by the complainant is
dismissed.
14.
Hence, the revision petition.
15.
16.
Along with present revision petition, an application seeking condonation of delay
has also been filed. In the entire application, no period of delay has been mentioned.
However, as per office report, there is delay of 172 days in filing of the revision petition.
The reasons given for the delay are as follows ;
2. That the Revision Petition has been filed by the petitioner
against the impugned order/judgment dated 26.10.2010. It is
specifically stated that neither the petitioner nor his counsel ever
received the certified copy of the impugned order dated 26.10.2010
as endorsed by the Registry of the Honble State Commission on
any date much less 15.11.2010. It was only when the petitioner did
not receive any certified copy, the son of the petitioner made
enquiries and visited theHonble State Commission umpteen times
but was sent back on the ground that the order has not yet been
signed and it will be sent as and when the same would be
signed. However, when the petitioner did not receive the copy for a
long period of time, he contacted his advocate who then applied for
a duplicate copy which was received on 6.5.2011.
3. That it was thereafter that the petitioner applied for the certified
copy on 3.5.2011 and the same was delivered to him on 6.5.2011
and as such the petition is being filed within 90 days of the receipt of
the duplicate/certified copy of the petitioner.
4. That the petitioner respectfully submits that even if there is any
delay in filing the accompanied Revision Petition the same may
kindly be condoned as the petitioner is an old man of about 70
years of age and is suffering from various old age related diseases.
5. That the petitioner despite his best efforts could not obtain the
certified copy within time as he had to travel long distance from his
residence situated at Yamuna Nagar, Haryana to Panchkula and
due to his old age and ill-health he was prevented from travelling
frequently just to enquire about the non-issuance/non-dispatch of
the certified copy by the Honble State Commission which is to be
made available to the petitioner, without cost, compulsorily as per
rules.
17.
On repeated enquiries, the counsel could not say as to when and how the
knowledge of the impugned order came to them when it is stated that neither the
petitioner nor his counsel ever received the certified free copy of the impugned order
dated 26.10.2010. Neither has it been mentioned in the application. It is only
mentioned that the son of the petitioner visited the State Commission a number of times,
but he was sent back on the ground that the order has not yet been signed and it will be
sent as and when the same would be decided. He does not mention the exact number
of his visits to the State Commission and the date on which he visited there. The
application does not even mention the names of the officials with whom the enquiry was
made. The application only mentioned that petitioner applied for a certified copy on
3.5.2011 which is almost six months after the date of the impugned order.
18.
In the application, on the one hand, the petitioner sought condonation of delay
due to his old age and ill-health which prevented him from travelling frequently just to
enquire about the non-issuance/non-dispatch of the certified copy of the impugned order
and on the other hand, he has taken a contradictory plea that his son made enquiries
and visited the HonbleState Commission umpteen times.
19.
It is well settled that Sufficient Cause for condoning the delay in each case is a
question of fact.
20.
We are of the view that the petitioners have failed to give any proper justification
for the delay of 172 days. The petitioners have failed to give day to day justification with
dates as also Sufficient Cause for condoning the delay of 172 days.
21.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed;

cause has been shown a party is not entitled to the condonation of
delay in question as a matter of right. The proof of a sufficient cause
is a discretionary jurisdiction vested in the Court by S.5. If sufficient
cause is not proved nothing further has to be done; the application
for condonation has to be dismissed on that ground alone. If
sufficient cause is shown then the Court has to enquire whether in
its discretion it should condone the delay. This aspect of the matter
naturally introduces the consideration of all relevant facts and it is at
this stage that diligence of the party or its bona fides may fall for
consideration; but the scope of the enquiry while exercising the
discretionary power after sufficient cause is shown would naturally
be limited only to such facts as the Court may regard as relevant.
22.
In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Apex Court
has observed ;
23. Apex
Court
in
case Anshul Aggarwal Vs. New Okhla Industrial
Development
Authority, IV(2011) CPJ 63(SC) has observed ;

24. Under these circumstances, no sufficient cause is made out for condoning the delay
of 172 days in filing the present petition. Accordingly, application for condonation of
delay is not maintainable. Consequently, the present revision petition being hopelessly
barred by limitation is hereby dismissed with cost of Rs.5,000/- (Rupees Five Thousand
Only).
25. Cost of Rs.5,000/- to be deposited in the 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 he shall also be liable to pay interest @ 9% p.a.,
till realization.
26.
....J
(V.B. GUPTA)
PRESIDING MEMBER
......
(REKHA GUPTA)
MEMBER
Sonia/
National Consumer Disputes Redressal Commission New Delhi
Revision Petition no. 1263 of 2012

(Against the order dated 08.11.2011 in Appeal no. 17 of 2011 of the Tripura State
Consumer Disputes Redressal Commission, Agartala)
National Insurance Company Ltd. Through Assistant Manager Delhi Regional Office I
Jeevan Bharati Tower II, Level IV 124 Cannaught Circus New Delhi 110001
Petitioner
Versus
1. Smt Minati Das Wife of Late Shanti Ranjan Das
2. Smt Supsriya Das (Manik) Daughter of late Shanti Ranjan Das
3. Shri Sukanta Das Son of Late Shanti Ranjan Das
4. Smt Nihar Kana Das @ Nihar Bala Wife Late Manindra Kumar Das
All are residents of Nidaya P O Jatrapur, Sonamura West Tripura
5. Shri Uttam Kumar Nandi M/s Santi Gas Service Santirbazar, P S Santirbazar
Belonia, South Tripura District (Owner of Santi Gas Service)
Respondents
Before:
HONBLE MR JUSTICE V B GUPTA
HONBLE MRS REKHA GUPTA
For the Petitioner
PRESIDING MEMBER
MEMBER
Mr K K Bhat, Advocate
For the Respondent
Mr P K Roy, Advocate for R 1 to 5
Pronounced on 9th April 2014

ORDER
REKHA GUPTA
Revision Petition no. 1263 of 2012 has been filed under section 21 (B) of the
Consumer Protection Act, 1986 against the order dated 08.11.2011 passed by the
Tripura
State
Consumer
Disputes Redressal Commission, Agartala (the
State
Commission) in Appeal no. 17 of 2011.

2.
The brief facts of the case as per the complainants Shri Santi Ranjan Das, now
substituted by his legal heirs, i.e., respondents nos. 1 to 4 are that the respondent took
a domestic gas connection from respondent no. 5/ opposite party no. 1, i.e.,
M/s Santi Gas Service at Santir Bazar vide Consumer no. 7019 dated 06.03.2000. In
the said connection the respondent was provided two gas cylinders by respondent no.
5. After taking gas connection the respondent has been taking gas cylinder
continuously for the purpose of his domestic use from respondent no. 5.
3.
The respondent on 06.01.2003 took gas cylinder from OP no. 1 through spot
delivery by the staff of the OP no. 1. On 26.01.2003 at about 06.30 a m a fire incident
took place in the house premises of the respondent at Nadaya under Jatrapur police
station due to bursting of gas cylinder in which all domestic articles, valuable, furniture,
gold ornaments along with constructions were totally gutted. The respondent informed
the matter over telephone to the Fire Service Authority at Jatrapur Police Station.
4.
At about 07.35 a m the Fire Brigade authority came to the place of occurrence and
tried to protect all valuable articles and house from the fire but the fire brigade authority
failed to do so.
5.
Soon after the incident the respondent verbally informed the matter to OP no. 1/
respondent no. 5 but the OP did not take any action. On 24.04.2003, 10.05.2003 and
28.07.2003, the respondent informed the matter to respondent no. 5 through letter and
stated all the facts and claimed for compensation.
6.
By letter dated 05.05.2003, OP no. 1/ respondent no. 5, i.e., M/s Santi Gas Service
informed the respondent that all his LPG Gas has been insured with National Insurance
Company Ltd., Udaipur Branch, Tripura South, though, if any, damage will arise that
may be recovered from the said insurance company. OP no. 1 further submitted that he
will not be responsible for the said damage. So question of damage does not arise from
OP no. 1. OP no. 1 also further advised to communicate with the said insurance
company for compensation of the said damage.
7.
After repeated requests by the respondent, petitioner deputed a surveyor on behalf
of OP no. 1 and OP no. 2 Insurance Company and as per requirement the respondent
submitted all relevant documents to the surveyor and investigator over the matter.
8.
Petitioner did not give any compensation to the respondent hence this petition of
the respondent for getting proper and just loss of the damage property of your
respondent.
9.
The complainant for granting compensation of Rs.7 lakh only due to the loss
sustained which occurred due to bursting of the gas cylinder.

10.
OP
to
contested
the
case
before
the
District
Consumer
Disputes Redressal Forum, Agartala (the District Forum). As revealed in the order of
the District Forum:
OP no. 1 contested the claim by filing written statement inter alia stating that the
case was not maintainable as there was no consumer disputes and that the
disputes was of civil nature and should be tried by a civil court only. It was further
stated that OP had 8500 domestic gas consumers under his Agency namely,
M/s Santi Gas Service and also those domestic gas consumers were insured
with National Insurance Company Ltd., Udaipur Branch having policy no.
203001/2000320202 covering the period from 30.12.2002 to 29.12.2003 and so
liability to pay any compensation should be borne by the insurance company, i.e.,
OP nos. 2 and 3.
OP nos. 2 and 3 also contested the suit by filing written statement denying the
averments made in the company but did not deny the factum of insurance of gas
cylinders of M/s Santi Gas Agency with its consumers covering the risk on the
date of incident. It is further stated that the insurance company was not informed
immediately after the incident to facilitate an investigation on the spot about the
damages and therefore, it was not possible on the part of the insurance company
to ascertain the actual damage and therefore, insurance company cannot be
held responsible for making payment of any compensation. It is also stated that
no document was placed to the insurance company regarding damages
sustained by the complainants and hence, there was no deficiency of service on
the part of the insurance company and as such, the complaint should be
dismissed.
11. District Forum vide its order dated 07.01.2011 allowed the complaint and ordered
that the complainants are entitled to get Rs.2,00,000/- (Rupees two lakh only) as
compensation for the damage caused to their property and the OP nos. 2 and 3, i.e.,
the National Insurance Company Ltd., is to make payment of the compensation within
30 days from today failing which the amount shall carry interest @ 12% per annum from
the date of presentation of the petition, i.e., 10.12.2003.
12.
Aggrieved by the order of the District Forum the OP 2 before the District Forum
filed an appeal before the State Commission. The State Commission after hearing the
counsels for the parties and going through the records of the case concluded that:
The claim of the insurance company that the surveyor deputed by them could
not assess the loss sustained by the complainant respondents in the absence
of documents is not acceptable. As he was at the spot, the surveyor could have
conducted a field enquiry and assess the loss.
On the other hand, the complainant respondents did not produce any
documents in support of their claim that they had sustained a loss of
Rs.7,00,000/-. They did not mention if the properties destroyed were new
constructions/ freshly procured items. Therefore, it is presumed that the
properties destroyed by fire were a few years old. Therefore, the value of the
properties must have been depreciated by about 25% before the accident took
place. Therefore, the loss sustained by the complainant respondents can be
safely assessed at 75% of Rs.7,00,000 or Rs.5,25,000/-.
On the basis of the discussions made in the foregoing paragraphs we are of the
considered opinion that the National Insurance Company the appellant herein is
terribly deficient in service and they have harassed the complainant-respondents
for more than eight years during which the original complainant expired. The
insurance company also tried to deprive the complainant-respondents of the
rightful compensation by misinterpreting the conditions of the LPG Traders

Combined Policy.
Therefore, the National Insurance Company is liable to compensate for the loss
sustained by the complainant- respondent due to the fire accident caused by the
bursting of a gas cylinder and for the harassment mental agony inflicted upon
them.
13.
The State Commission thereafter ordered as under:

National Insurance Company shall pay a compensation of Rs.5,25,000/- for the
loss of property and Rs.1,00,000/- for the harassment and mental agony suffered
by the complainant respondent to the complainant respondents along with an
interest @ 9% per annum with effect from date of filing of the case in the District
Forum i.e., with effect from 10.12.2003. They shall also pay an amount of
Rs.10,000/- as cost to be deposited to the Legal Aid Account of this Commission.
All the aforesaid payments shall be made within a period of 30 days from today,
failing which, besides the other provisions of the Consumer Protection Act, 1986
for disobedience, all these documents shall carry interest @ 12% per annum with
effect from 31st day of this order till the date on which the actual payments are
made.
14.
Hence, the present revision petition.
15.
Along with the revision petition, the petitioner has filed two applications
seeking condonation of delay. In the first application for condonation of delay, the
number of days was not mentioned.
16.
Vide order dated 30.05.2012 it had been observed that in the entire application
for condonation of delay no period of delay has been mentioned. Counsel for the
petitioner thereafter sought time for filing fresh application mentioning the period of
delay, and the same was allowed.
17.
Hence, the counsel for the petitioner has filed the second application
for condonation of delay. As per the second application, the petitioner had asked for
condoning the delay of 45 days. The reasons given for the delay as per the first
application are as follows:
The petitioner herein is filing the present application for condonation of delay
in filing the accompanying revision petition. The counsel for the petitioner in
Tripura received certified copy of the impugned order towards the ends of
November 2011 and opined the petitioner that the impugned order be challenged
before the Commission. After receiving the opinion from the counsel, the regional
office of the petitioner company forwarded the case filed to their Delhi Office and
thereafter on 18.02.2012, the present counsel received the case file from the
Delhi Office of the petitioner company however, the documents like copy of
appeal and reply, if any, filed before the State Commission were not present in
the file for perusal. The petitioner company was instructed to arrange for the
complete documents, who in turn, approached its counsel in Tripura. The counsel
in Tripura provided a copy of the missing documents to the Delhi Office of the
petitioner and the same were received by the petitioner on 16.03.2012 and
thereafter the same were provided to the present counsel on 17.03.2012. Thus,
there has been delay of ____ days in filing this petition.
18.
As per the second application for condonation of delay are as follows:
Petitioner herein is filing the present application for condonation of delay in

filing the
accompanying revision petition. The counsel for the petitioner in
Tripura received certified copy of the impugned order towards the end of
November 2011 and opined the petitioner that the impugned order be challenged
before the Honble Commission. After receiving the opinion from the counsel, the
regional office of the petitioner company forwarded the case filed to their Delhi
Office and thereafter on 18.02.2012 the present counsel received the case filed
from the Delhi Office of the petitioner company however the documents like copy
of appeal and reply, if any, filed before the State Commission were not present in
the file for perusal. The petitioner company was instructed to arrange for the
complete documents, who in turn, approached its counsel in Tripura. The counsel
in Tripura provided a copy of the missing documents to the Delhi Office of the
petitioner and the same were received by the petitioner on 16.03.2012 and
thereafter the same were provided to the present counsel on 17.03.2012. Thus,
there has been delay of 45 days in filing this petition.
19.
We have heard the learned counsel for the parties and have also gone through
the records of the case carefully.

20.
It will be seen that both the applications do not mention the date on which when
the impugned order was received. As per the certified copy of the order, the same was
passed on 08.11.2011 and forwarded to Mr P Gautam, Advocate for the appellant. It will
also appear from the application that after receiving the opinion from the counsel that
the order should be challenged before the National Commission, Regional Office of the
petitioner Company forwarded the case to the Delhi Office and it was only on
18.02.2012 that the present counsel received the case file from the Delhi office. The
application do not mention when the case papers were received at the Delhi Office from
the office at Tripura. It is also apparent from the application that the office of the
petitioner company dealt the matter in a most careless and casual manner and
forwarded the case file without all the documentation required. There is no other reason
or justification given in both the application to explain the delay of 45 days in filing the
present revision petition.
21.
At the same time, it is also well settled that sufficient cause with regard
to condonation of delay in each case, is a question of fact.

22.
The Apex Court In Anshul Aggarwal v. New Okhla Industrial Development
Authority, IV (2011) CPJ 63 (SC), has laid down:

It is also apposite to observe that while deciding an application filed in such
cases for condonation of delay, the Court has to keep in mind that the special
period of limitation has been prescribed under the Consumer Protection Act,
1986 for filing appeals and revisions in consumer matters and the object of
expeditious adjudication of the consumer disputes will get defeated if this Court
was to entertain highly belated petitions filed against the orders of the
Consumer Foras.
23. In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal
2006), decided by the Apex Court on 08.07.2010 it was held:
no.
1166
of
The party should show that besides acting bonafide, it had taken all possible
steps within its power and control and had approached the Court without any
unnecessary delay. The test is whether or not a cause is sufficient to see whether
it could have been avoided by the party by the exercise of due care and
attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005].
24. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it
has been observed;

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
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.
25. Honble 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 thelandlosers 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
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
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.
26.
Accordingly, we find that there is no sufficient cause to condone the delay of 45
days in filing the present revision petition. The applications forcondonation of delay are
without any merit as well as having no legal basis and is not maintainable.
Consequently, the present revision petition being time barred by limitation and is
dismissed with cost of Rs.5,000/- (Rupees five thousand only).
27.
Petitioner is directed to deposit the cost by way of demand draft in the name of
Consumer Legal Aid Account of this Commission within four weeks from today. In case
the petitioner fails to deposit the said cost within the prescribed period, then it shall be
liable to pay interest @ 9% per annum till realisation.
List on 9th May, 2014 for compliance.
Sd/..
[ V B Gupta, J.]
Sd/..
[Rekha Gupta]
Satish
NEW DELHI

(From order dated 19.04.2012 in First Appeal No. 361 of 2011 of the U. P. State
Consumer Disputes Redressal Commission, Lucknow)
Meerut Development Authority, Meerut
Petitioner
Versus
1. Sh. Om Prakash Gupta, S/o. Lt. Sh. R.M.Gupta

2. Sh. Sunil Gupta, S/o. Sh. Om Prakash Gupta
Both R/o. Lalkurit, Bakri Mohalla Near Shaktidham Mandir, Meerut
Respondents
BEFORE:
For the Petitioner : Mr.Mahabir Singh, Sr. Advocate With Ms. Jyoti Saxena & Mr. M.
P. Shorawala, Advocates
For the Respondents : Mr. C. S. Gupta, Advocate
PRONOUNCED ON 11.04.2014
ORDER
JUSTICE J.M. MALIK
1.
Sh. Om Prakash Gupta and his son, Sh. Sunil Gupta, the complainants had
applied for allotment of plot admeasuring 600 sq.mts under the Industrial Estate
Scheme and deposited a sum of Rs.5,000/-, on 31.08.1987, with the Vice-Chairman,
Meerut Development Authority, OP. Thereafter, on enquiry, the complainants were
assured that the plot would be allotted in their favour. However, the complainants did
not hear from the OP, till 24.11.2005. The complainants sent a notice on 24.11.2005 to
the OP and enquired about the said plot. The OP sent a response vide its letter dated
20.12.2005, wherein it was replied that the said plot was not allotted in favour of any
person. The said Scheme was abandoned and the complainants were asked to
surrender the original receipt in the sum of Rs.5,000/-, deposited by them in the Office
of the OP, so that the amount could be refunded to them, as per rules. The
complainants filed a complaint with the District Forum. The District Forum partly
allowed the complaint. It was ordered, as under :Complaint of the complainants is allowed against the
Opposite Party. Opposite party is ordered that if OP has
allotted plot of land to any of the applicants, in any of the
Scheme, then, they allot plot in favour of complainants also
at previous rates. Opposite Party to pay interest also at the
rate
of
12
percent
on
the
amount deposited
by
complainant since the date of deposit till the date of

allotment, Rs.5,000/- as compensation and Rs.3,000/against cost of complaint to complainant, within the period
of one month from the date of order. Opposite Party to
ensure compliance of this order within the prescribed
period, otherwise, complainants would be free to initiate
proceedings under Section 25/27 of C.P.Act, 1986, against
Opposite Party.
2.
It is interesting to note that the complainants did not file any Appeal against the
said order. It, therefore, clearly means that the complainants had accepted the order
passed by the District Forum. It had attained finality, qua the complainants. However,
First Appeal was filed by the OP, before the State Commission. The State Commission
passed another order in favour of the complainants, when no appeal was filed by them.
The Bench presided over by Sh. Sayyed Ali Azhar Rizvi, passed the following order :Appeal is allowed partially. While amending the judgment
& order dated 13.01.2011 passed by the District Forum,
Meerut,
in
Complaint
Case
No.28/2006,
Meerut
Development Authority is ordered that they are supposed

to allot a plot in lieu of applied industrial plot (vacant)
available in above said Ganganagar Pallavpuram and
Shatabadi Nagar Schemes, within the period of two months
at the then prevailing old rates, inter alia, adjusting the
amount deposited by complainants earlier.
3.
The State Commission was not armed with such power, which the State
Commission,
went out of way and passed more favourable order in favour of the
complainants when the complainants had not even preferred any appeal.
4.
We have heard the counsel for the parties. The first submission made by the
counsel
for the petitioner/Opposite
Party
was
that
the
complaint filed
by the
complainants, is barred by limitation. In its written statement, the petitioner/OP

explained that the plot of the land could not be allotted to the applicants under the said
Scheme
for which
public
notice had been
issued in
newspapers
and having read the same, other registered applicants have accepted the refund
of the amount deposited with them,
as
per rules. He
contended that the
complainants never established contacts with the petitioner, after registration, but the
petitioner had published public notice in newspapers, about not allotting industrial
plot to them, and therefore, the same is clearly barred by time. He has cited the
authority reported in State Bank of India Vs. B.S.Agriculture Industries, (2009) 5 SCC
121.
5.
All these arguments are bereft of merit. The counsel for the petitioner vehemently
argued that there were some reasons which were not specified in the written
statement. He
further
submitted
that there could be several
reasons for
abandonment of the scheme. He, however, could not point out the reasons for
abandonment of this Scheme. He contended that public notice was published
in the newspapers. The said newspaper did not see the light of the day. There is not
even an iota of evidence that the said notice was sent to the complainants, in this
respect.
6.
The facts of the above said authority (State Bank of India) are different. This is a
continuous cause of action. In case, Raghava Estates Ltd. Vs.Vishnupuram Colony

Welfare Association & Anr., in RP No.3097 of 2012, decided by this Bench, on
04.09.2012, passed the following order :9. The
learned
State
Commission
brushed
aside
the
argument regarding delay in filing the complaint by placing

reliance on the judgment in B.Venu Madhav Vs. National
Consumer Disputes Redressal Commission, Represented by its
Registrar, New Delhi &Ors, in W.P.No.30394 of 2011, dated

18.01.2012, reported in CDJ 2012 APHC 421, wherein it was
held that when there is immovable property and the amenities
promised by the opposite party were not provided, the National
Commission held that it can be construed as continuing cause
of action and it cannot be said to be barred by time.
10. This discussion tips the scale in favour of the complainant
and, as such, the revision petition filed by the OP, is dismissed.
7.
SLP was filed against the said order before the Honble Apex Court. The Apex
Court in Civil Appeal No. 35805 of 2012, dismissed the same, vide its order dated
07.12.2012.
8.
The present case, stands on a better footing. Here, no effort was made to return
the money. The OP was withholding the money with ulterior motive. When others had
taken the money back, it was the bounden duty of the OP to refund the money back to
the complainants or send them a notice to get the refund of the above said money. The
action on the part of the OP, clearly goes to show that it acted in an arbitrary
manner. Consequently, we find that the complaint was filed within time.
9.
On the
other
hand, the counsel for
the
respondents/
complainants contended that it is a settled law that if the OP has got any vacant
plot, it should be handed over to the complainants, immediately. He has cited
an authority reported in HUDA Vs. Vijay Aggarwal, (2005) 9 SCC 446.
10.
This
argument
too,
mind that the complainants
is
devoid
have
of
merit. It
not
must
yet been
be
borne
allotted
in
the
plot. In Manjul Srivastava Vs. Government of Uttar Pradesh & Ors., (2008) 8 SCC
652, the Honble Apex Court was pleased to observe as under :22. In our view, a reading of this letter dated 10.02.1989,
and also the different clauses, as already indicated in the
brochure, we have no hesitation in agreeing with the
Commission that the appellant could not have acquired
any legal right for allotment of a plot until and unless she
could
be
found
to
be
successful
lots. Therefore, in our view, it was
in
an
the
draw
amount
of
for
reservation of Category D Plot, which, by no means, would
lead to the interference of registration by itself, guaranteeing

the allotment of a specific plot to the appellant.
11.
The complainants are not entitled to the plot as such. The OP is hereby
directed to refund the amount. The order of the District Forum is restored.
The complainants have failed to show that the OP has allotted plot of land to any of
the applicants under that Scheme. Consequently, the OP is entitled to refund the
allotment of a new plot. They are directed to pay a sum of Rs.5,000/- as compensation
and Rs.3,000/- as costs of the complaint, to the complainants, as directed by the
District Forum, within a period of 90 days, otherwise, it will have to pay a penalty in
the sum of Rs.1,000/- per day, till realization.
12.
Keeping in view of the facts and circumstances of the case, I am of the
considered view that a considerable period of time has elapsed from 31.08.1987 to
11.04.2014, i.e., almost 27 years. The OP has kept the money with them, all this
period. The prices of land have increased by leaps and bounds. It is difficult to fathom
why
did
the
OP pursue the matter
in
such
lackadaisical
manner. The
attitude of authorities adds a shocking dimension of the situation. The administration

should sensitise its officers to serve the public, rather than justify their dictatorial acts.
13.
Consequently, I award a compensation in the sum of Rs.1,00,000/- to the
complainants, in addition, for the harassment, anguish, anger, frustration and sadness,
suffered by them, which be paid by the Opposite Party, within 90 days of receipt of
this order, otherwise, it will carry interest @ 9% p.a, till realization.
...
(J. M. MALIK, J)
PRESIDING MEMBER
dd/1

(From the order dated 5.11.2012 in Appeal No.FA/160/2011 of the Delhi State
Kishore Prasad S/o Late Shri Damodar Parsad R/o House No.24/10, Lal Quarter, Hapur
Road, Ghaziabad-201001 (U.P.)
... Petitioner
Versus
LIC of India Branch Unit-331, 3 rd Floor, Rajindera Bhawan, Rajindera Place, New Delhi110008
..... Respondent
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HONBLE MR.SURESH CHANDRA, MEMBER
For the Petitioners
: In person
For the Respondent
: Mr. Pankul Nagpal, Advocate
PRONOUNCED ON 11th APRIL, 2014

ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
This revision is directed against the order of Delhi State Consumer Disputes
Redressal Commission in appeal No.FA/160/2011 whereby the State Commission
dismissed the appeal and confirmed the order of the District Forum.
2.
Briefly stated facts relevant for the disposal of this revision petition are that the
petitioner filed a consumer complaint before the Consumer Disputes Redressal Forum,
ISBT, Kashmiri Gate alleging that he obtained a life insurance policy for a sum of
Rs.20,000/- on 2.8.1986 through LIC agent. The term of the policy was 20 years and
monthly premium was Rs.158.60P. At the relevant time the petitioner was in service and
the premium was
being
paid
from his salary through his employer. The
petitioner/complainant opted for voluntary retirement and thereafter on his request the
mode of payment of premium was changed from monthly basis to half yearly basis. The
complainant surrendered the policy on 16.11.1993. According to him he has paid
premium till 2.8.2006 amounting to Rs.11,426/-. The respondent has failed to return that
money and this according to the petitioner amounts to deficiency in service. Hence, the
complaint.
3.
Respondent/opposite party in its written statement admitted the factum of
insurance policy and claimed that the policy was surrendered on 16.11.1993. Its
surrender value was Rs.5,528/- which was paid to the complainant but due to
inadvertence the entry regarding payment was not entered in the record. The
respondent also pleaded that the surrender value of the policy was Rs.5,528/- but due
to inadvertence in communication dated 18.7.2006 it was wrongly mentioned as
Rs.11,423/-. The respondent thus prays for dismissal of the complaint. The complainant
in his rejoinder reiterated the allegations made in the complaint and denied having
received the surrender value of the policy i.e. Rs.5,528/-.
4.
Learned District Forum on appraisal of the of the pleadings and the evidence
accepted the plea of the respondent that the surrender value of the insurance policy
was Rs.5,528/- and that the maturity value due to clerical error was wrongly mentioned
as Rs.11,423/- in the letter dated 18.7.2006. The District Forum, however, did not accept
the plea of the LIC that the surrender value of Rs.5,528/- has already been paid to the
complainant. District Forum, thus allowed the complaint and directed the respondent to
pay to the complainant a sum of Rs.5,528/- with 9% simple interest w.e.f. 16.11.1993
besides compensation of Rs.20,000/- and litigation charges Rs.5,000/-.
5.
Being aggrieved of the order of the District Forum, the petitioner preferred an
appeal and the State Commission vide the impugned order dismissed the appeal.
6.
The petitioner, who appeared in person, has contended that both the Foras below
have committed a grave error in failing to appreciate that once the respondent has
admitted that the maturity value of the insurance policy was Rs.11,423/-, the respondent
cannot be allowed to plead that the maturity value was Rs.5,528/-. Therefore, the
impugned order is liable to be set aside.
7.
We do not find merit in the above contention. The respondent, in the written
statement, has explained that the figure of Rs.11,423/- as maturity value is the result of
clerical error. Otherwise the maturity value, as per Rules, was Rs.5,528/-. Both the
Foras below have accepted the aforesaid explanation given by the respondent
Insurance Company. Otherwise also, in order to be doubly sure we called upon the
respondent to file an affidavit of a responsible officer in this regard. Pursuant to the
direction the respondent has filed affidavit of Shri Balihar Singh, Assistant Secretary
(Legal) of LIC alongwith the calculation sheet and surrender value table. On perusal of
the aforesaid affidavit and documents, it is evident that the surrender value of the
insurance policy at the relevant time was Rs.5,528/-. Therefore, the figure of maturity
value as Rs.11,423/- mentioned in the letter dated 18.7.2006 obviously is the result of
clerical error, benefit of which cannot be claimed by the complainant. Thus, in our
considered view the impugned orders cannot be faulted.
8.
The result of the above discussion is that the petitioner has failed to point out any
jurisdictional error or material irregularity in the impugned order which may call for
interference by this Commission in exercise of revisional jurisdiction.
9.
Revision petition is dismissed with no order as to cost.
...Sd/(AJIT BHARIHOKE, J.)

PRESIDING MEMBER
.Sd/-
(SURESH CHANDRA)
MEMBER
Raj/3

(From the order dated 30.11.2012 in F.A. No.1047/2012 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
Smt. Shakuntala W/o Late Sh. Rajinder R/o House No.323, Siraspur Delhi-110042
... PETITIONER
Versus
Life Insurance Corporation of India Branch No.317, Jeevan Bharti Building Sector15, Sonepat Harayana
RESPONDENT
BEFORE:
For the Petitioner
: Mr. P.S. Goindi, Advocate
For the Respondent
: Mr. U.C. Mittal, Advocate

ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
This revision is directed against the order of the State Consumer
Disputes Redressal Commission Haryana ( in short, the State Commission) dated
30.11.2012 in FA No. 1047/2012 whereby the State Commission Haryana allowed the
appeal against the order of the District Forum Sonepat and dismissed the complaint.
2.
Briefly stated facts relevant for the disposal of this revision petition are that
husband of the petitioner obtained life insurance policy of Rs.1,00,000/- from the
opposite party on 28.04.2004. Rajinder Singh, husband of the petitioner died on
07.11.2004. The insurance claim was filed in February 2010 on the plea that it could
not be filed earlier because the petitioner had no knowledge of the insurance
policy. The opposite party repudiated the claim. Claiming this to be deficiency in
service, the petitioner filed the consumer complaint.
3.
The respondent opposite party in his written statement justified the repudiation
of claim on three counts, firstly, that the complaint was barred by limitation as it was filed
seven years after the date of death of the insured, secondly the insured had failed to
pay the second instalment of the insurance premium which became due prior to the
death of insured on 28.10.2004 and thirdly on the ground that the insurance policy was
obtained by the insured by concealment of material fact regarding his having been
operated upon for removal of gall bladder in December 2003.
4.
Learned District Forum on consideration of material on record and the evidence
adduced by the parties allowed the complaint and granted relief to the petitioner as
under:
The complainant is only entitled to the claim amount of rupees one lac and the
request for the complainant for the grant of interest and compensation stands
rejected since the deceased LA had expired on 07.11.2004 and as per the
complainant herself, the fact of insurance policy in the name of
deceased Rajinder Singh had come into her knowledge in Feb
2010. Accordingly, it is directed to the respondent to make the payment
of Rs. One Lac only to the complainant.
With these observations, findings and directions, the present complaint
stands accepted partly.
5.
Being aggrieved of the order of the District Forum, the respondent opposite
party preferred an appeal. The State Commission on hearing the parties and perusal
of record, allowed the appeal and dismissed the complaint. Relevant observations of
the State Commission are reproduced thus:
It is not disputed that husband of the complainant had obtained insurance
policy for Rs.one lac on 28.04.2004. It is also not disputed that life assured had
died on 07.11.2004 and intimation was given to the OP on 12.03.2010. It is
also not disputed that husband of the complainant died on 07.11.2004 whereas
the complaint was filed by the complainant before the District Forum on
14.10.2011 i.e. after about six years and thus the complaint was not
maintainable as time prescribed under Section 24A of the Consumer Protection
Act, 1986 according to which complaint was to be filed was within two years
from the date of cause of action.
Reference may be made to case law cited as V.N.Shrikhande (Dr.)
Versus Anita Sena Fernandes 2011 CTJ 1 (supreme court) CP) wherein
the Honble Supreme Court has held that:
24-A(1) contains a negative legislative mandate against admission of a
complaint which has been filed after 2 years from the date of accrual of the
cause of action. In other words, the Consumer Forums do not have the
jurisdiction to entertain a complaint if the same is not filed within 2 years from
the date on which the cause of action has arisen. This power is required to be
exercised after giving opportunity of hearing to the complainant, who can
seek condonation of delay under Section 24-A(2) by showing that there was
sufficient cause for not filing the complaint within the period prescribed under
Section 24-A(1). If the complaint is per se barred by time and the complainant
does not seek condonation of delay under Section 24-A(2), the Consumer
Forums will have no option but to dismiss the same.
The present case is fully covered by V.N.Shrikhande (Dr.) Versus

Anita Sena Fernandes (supra) and as such the complaint filed by the
complainant deserved to be dismissed.
It is admitted case of parties that life assured obtained insurance policy
from the OP. The allegation of OP-appellant was that life assured was suffering
from pre-existing disease and did not disclose this fact while taking out the
policy. The claim was repudiated on the ground that the life assured was
suffering from pre-existing disease which he had not disclosed at the time of
proposal and thus the life assured has concealed material particular about his
health, thus the claim was rightly repudiated.
Thus, it has not been disputed that the life assured took put policy and
death occurred on 11.10.1996. The life assured did not disclose the above said
facts while taking out the policy. The perusal of proposal form shows life
assured had not disclosed about his operation of gall bladder in the proposal
form.
While dealing with the contention raised on behalf of the appellant, we
have to follow the observation made by the Honble National Commission in
case cited as KokilabenNarendrabhai Patel Vs. Life Insurance Corporation of
India 2010 CTJ 920 (CP) (NCDRC), which are reproduced under:Insurance-Deficiency in service Consumer Protection Act, 1986 Section 2(I)
(g)-Section 2(I) (o)-Insured died due to heart attack-His wife nominated to
receive the insured amount in the event of his premature death-Repudiation of
her claim-Allegedly correct answers not given by the deceased regarding his
health in the proposal form-Complaint by his wife allowed by the District ForumState Commission accepted the appeal and set aside the order passed by the
Forum-Hence, the present revision petition-Admittedly the insured suffered from
Enteric fever eleven months prior to the taking of the policy-Further, for getting it
treated, he even took leave for seventeen days-These two facts not disclosed
by him in the proposal form-Non-disclosure thereof was clearly a material fact
having a bearing on the risk involved-Repudiation of the claim fully justifiedView taken by the State Commission upheld-Revision Dismissed.
Another
observation
made
by Honble Supreme
Court
in
case
titled Satwant Kaur Sandhu Vs. New India Assurance Company Limited (2009)
8 SCC 316, holding as under:When information on a specific aspect is asked for in the proposal form, the
assured is under a solemn obligation to make a true and full disclosure of the
information on the subject which is within his knowledge. Obligation to disclose
extends only to facts which are known to the applicant and not to what he ought
to have known. Whether the information sought for is material for the purpose
of the policy is a matter not to be determined by the proposer.
It has further been held that a mediclaim policy is a non-life insurance policy
meant to assure the policy holder in respect of certain expenses pertaining to
injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance
falling in the category of contract uberrimae fidei, meaning a contract of utmost
good faith on the part of the assured. Thus, when an information on a specific
aspect is asked for in the proposal form, an assured is under a solemn
obligation to make a true and full disclosure of the information on the subject
which is within his knowledge. It is not for the proposer to determine whether
the information.
In para 29, the Honble Supreme Court has observed as under:Judged from any angle, we have no hesitation in coming to the conclusion
that the statement made by the insured in the proposal form as to the state of
his health was palpably untrue to his knowledge. There was clear suppression
of material facts in regard to the health of the insured and, therefore, the
respondent insurer was fully justified in repudiating the insurance contract. We
do not find any substance in the contention of learned counsel for the appellant
that reliance could not be placed on the certificate obtained by the respondent
from the hospital, where the insured was treated.
The case law cited (supra) above is fully applicable in this case.
The District Forum passed the impugned order by ignoring all these aspects
and as such the impugned order being an illegal one cannot be sustained.
6.
Learned counsel for the petitioner Mr.P.S.Goindi, Advocate has contended that
the impugned order of the State Commission is based upon incorrect appreciation of
facts and law. It is argued that the State Commission has committed a grave error in
coming to the conclusion that the insured obtained the insurance policy by concealing
the material fact regarding his earlier surgery from the respondent. Expanding on the
argument, learned counsel submitted that the State Commission failed to appreciate
that the signatures of the insured were obtained by the agent of the insurance company
on the blank proposal form which was filled in later. Therefore, the insured cannot be
held guilty of suppression of concealment of material facts and as such the judgments
referred to in the order of the State Commission are not applicable to the facts of the
case. It is further contended that State Commission has committed a grave error in
holding that the complaint is barred by limitation ignoring the fact that the petitioner was
not even aware of the insurance policy of her husband and as soon as she came to
know about the insurance policy in February 2010, she filed a consumer complaint.
7.
Learned Shri U.C.Mittal, Advocate for the respondent on the contrary has
argued in support of the impugned order and prays for dismissal of revision
petition. 8.
On perusal of record, we do not find merit in the contention of the
petitioner. On perusal of the copy of the proposal form submitted by the

insured Rajinder Singh for obtaining insurance, we find that there is a questionnaire
about the previous history of the insured in coloumn no.11. The insured was required to
furnish information as to whether the insured had ever been admitted to the hospital /
nursing home for general check-up, observation, treatment or operation. The insured in
response to the aforesaid question has answered in the negative. The proposal form is
dated
28.04.2004. As
per
the
Medical
Attendants
Certificate
issued
by Dr. O.P.Pathania, Professor of Surgery, Department of Surgery LHMC & Hospital

who
last
attended
the
insured,
the
insured
had
been
suffering
from
Cholecystectomy for the last 1 year prior to the date of his death and he has
undergone surgery for removal of gall bladder at Sunder Lal Jain Hospital in December
2003. Relevant portion of the aforesaid certificate is reproduced thus:
a. What was the exact cause of death?
(a) Obstruction, Jaundice

CSA 10 encephalopathy with DIC C
(Besides defing the disease or other Chandigarh
cause of death in such terms as you
consider appropriate kindly add the
distinctive technical name).
b. Was it ascertained by examination
after death or inferred from symptoms
and appearance during life
(b) Lap
c. How long had he been suffering from

this disease before his death
(c) 1 years. H/o Cholecystectomy
d. What were the symptoms of the

illness
(d) Open Surgical removal

of
Gall
bladder at Sunder Lal Jain Hospital
(2003 Dec.)
(e)
e. When were they first observed by the

deceased.
f. What was the date on which you were
first consulted during the illness
(f)
g. Did you attend him during the whole

of its course. If not, state during what
period?
(g) Yes.
9.
22.07.2004
From the above, it is clear that the insured had undergone surgery for removal
of his gall bladder in December 2003 prior to the submission of proposal

form in April 2004 and the aforesaid fact was concealed from the respondent insurance
company. The explanation of learned counsel for the petitioner that the insured signed
the blank proposal form which was later on filled in by the insurance agent is not
acceptable particularly when there is no cogent evidence to substantiate it. Thus, it is
clear case of concealment of material information regarding surgery by the
insured.
That being the case, in view the judgment of the Supreme Court in the matter
of Satwant Kaur Sandhu (supra) the State Commission was right in dismissing the
complaint filed by the petitioner. Otherwise also, it is admitted case of the parties that
the husband of the complainant died on 07.11.2004 but the consumer complaint was
filed after seven years. The petitioner has tried to explain this delay by making a bald
allegation that she had no knowledge about the insurance policy of her late husband
and this fact came to her knowledge in February 2010. We are not inclined to accept
this explanation particularly when the exact date on which the petitioner came to know
about insurance policy is not mentioned. Thus, the order of the State Commission even
on the point of limitation cannot be faulted.
10.
In view of the observation above, we find that the impugned order of the State
Commission is based upon the settled law. Therefore, we find no reason to interfere
with the order in exercise of revisional jurisdiction. Revision petition, is therefore,
dismissed.
.
(AJIT BHARIHOKE, J)
(PRESIDING MEMBER)
.
(SURESH CHANDRA)
MEMBER
Am

(Against the order dated 26.4.2012 in RP No.66/2011 of the State Commission,
Punjab, Chandigarh)
Pardeep Kumar Mehta, H. No.298/4, Milap Nagar, Hoshiarpur 146001.
. Petitioner
Versus
1.
K.C. Mahajan, Advocate Civil Court, Hoshiarpur (Punjab).
2.
Mrs. T.K. Mahajan, Advocate Civil Court, Hoshiarpur (Punjab)

. Respondents
BEFORE:
For the Petitioner : Mr. Pardeep Kumar Mehta,

Petitioner in person
For the Respondents: Mr. K.C. Mahajan, Respondent in person and also Authorized
Representative for Respondent No.2
Pronounced on: 15th April, 2014
ORDER
REKHA GUPTA
Petitioner/Complainant being aggrieved by order dated 26.4.2012 passed by State
Consumer Disputes Redressal Commission, Punjab, Chandigarh (for short, State
Commission) has filed the revision petition.
2. Petitioner
had
filed
an
application
before
the
District
Consumer
Disputes Redressal Forum, Ropar(for short, District Forum) for producing additional
evidence. The application of the petitioner was dismissed by the District Forum, vide
order dated 17.10.2011.
3. Aggrieved by the order of the District Forum, petitioner filed Revision Petition
No.66/2011, before the State Commission.
4. State Commission vide its impugned order, partly allowed the revision petition filed
by the petitioner.
5. Being not satisfied with the order of the State Commission, petitioner has filed the
present revision petition.
6. We have heard the petitioner as well as respondent no.1 and gone through the
record.
7. Relevant portions of application seeking permission to file additional evidence read
as under;
2.
That the respondent has filed similar affidavits in this forum in complaint
under section 340 Cr.P.C. and that the petitioner/ respondent has taken
certain objections against the affidavits of Advocate Mona Sahni,
K.C. Mahajan, Advocate, Advocate T.K. Mahajan on dated 6/10/2010.
3.
That the same Advocates have filed affidavits in the present complaint
with improved version to prove this fact. The applicant want to produce the
copy of that affidavits of the case under Section 340 Cr.P.C. which now
transfer to District Consumer Disputes Redressal Forum, Hoshiarpur on
dated 15.12.2010.
4.
That the aforesaid copy of the affidavit is very relevant to decide the
controversy of the party.
5.
That the applicant also want to produce other witness to prove the
aforesaid document and other documents.
It is therefore prayed that permission may kindly be granted to produce
additional evidence in the interest of justice.
8. In its entire application, petitioner had nowhere sought any permission to place on
record copy of any FIR.
9. The State Commission while partly allowing the revision petition, in its impugned
order observed;
The
petitioner
submits
that
he
only
wants
to produce additional evidence by way of affidavit of Mona Sahni,
Advocate, Sh.R.P.Dhri,
Advocate, Sh.Kuldeep Singh,
advocate
and Sh.Chaman Singh Bhatoa, Advocate. Copies of these affidavits have
been placed on file. Besides that he also want to file a copy of FIR No.23
dated 12.2.1997 registered in Police Station Haryana, copy of FIR No.74
dated 7.7.1997, Police Station Haryana, and copy of FIR No.77 dated
3.10.1998, Police Station City Hoshiarpur. He also wants to produce copy

of application filed by Surjit Singh against K.C.Mahajan and T.K.Mahajan,
Advocates in the Bar Council of India.
Submission of respondent No.1 was that there is no illegality in the
order dated 17.10.2011 passed by the learned District Forum, nor these
documents are relevant to the controversy involved in this petition. Hence it
was prayed that petition be dismissed with heavy costs.
Record has been perused. Submissions have been considered.
We do not find any relevancy of FIRs, which the petitioner wants to
produce by way of additional evidence in this case. However, he is at liberty
to produce the affidavits referred to above along with a copy of application,
which was filed by Surjit Singh against Sh.K.C.Mahajan in the Bar Council
of India.
In view of the discussed held above, this petition is partly accepted
and the impugned order dated 17.10.2011 is modified. Since it has caused
inconvenience to the respondents, therefore, the petitioner is burdened with
costs of Rs.2000/-. The costs shall be paid by the petitioner to the
respondents in the District Forum.
10. Thus, it is manifestly clear from the impugned order that the State Commission had
acceded to the request of the petitioner regarding the affidavits. Since, there was no
prayer in the application for filing of the copies of the FIR, the State Commission rightly
disallowed the same. It appears that the only motive of the petitioner in filing of the
present revision petition is just to harass the respondents in this case.
11. It is well settled that under section 21(b) of the Act, this Commission can interfere
with the order of the State Commission where such State Commission has exercised
jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has
acted in the exercise of its jurisdiction illegally or with material irregularity.
12. Thus, no jurisdiction or legal error has been shown to us to call for interference in the
exercise of power under section 21 (b) of the Act, nor the impugned order suffer from any
infirmity orrevisional exercise of jurisdiction.
13. Accordingly, the present revision petition being frivolous and having no legal basis
is hereby dismissed with cost of Rs.5,000/- (Rupees Five Thousand only. Petitioner is
directed to deposit the costs by way of demand draft in the name of respondent no.1,
within four weeks. In case, petitioner fails to deposit the cost within the prescribed
period, he shall be liable to pay interest @ 9% p.a., till realization.
14. However, aforesaid costs shall be paid to respondent no.1 only, after expiry of
period of appeal/revision, preferred, if any.
.J
(V.B. GUPTA)
PRESIDING MEMBER
(REKHA GUPTA)
MEMBER
Sonia/

With I.A. No. 5316 of 2013 (For Stay)
(Against the order dated 26.56.2013 in Appeal No.1487 of 2012 of the State
Commission, Karnataka)
Bajaj Finance Ltd. (Erstwhile Bajaj Auto Finance Ltd.) No.74, Sarakki Industrial Layout,
Near Mini Forest, J.P. Nagar, 3rd Phase, Bangalore 560008 And having its Head Office
at:- Bajaj Finance Ltd. C/o Bajaj Auto Ltd., Yamunanagar Old Material Gate, Old PuneMumbai Highway Akurdi, Pune 411035, Maharashtra Represented by its Chairman
Petitioner
Versus
Somesh N.K., No.28, 7th Main, 19th C Cross, BTM 2nd Stage, N.S. Palya, Bangalore
560076
.
Respondents
BEFORE:
For the Petitioner : Mr. M. Kumar Chaudhary, Advocate
Pronounced on: 16th April, 2014
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Petitioner/Opposite party has filed the present revision petition under Section 21(b)
of Consumer Protection Act, 1986 (for short, Act) against impugned order dated
26.6.2013, passed by Karnataka State Consumer Disputes Redressal Commission,
Bangalore (for short State Commission).
2. Brief facts are that Respondent/Complainant had filed a consumer complaint under
Section 12 of the Act before the III Additional Bangalore Urban District Consumer
Disputes Redressal Form, Bangalore (for short District Forum) stating that he had
taken a loan of Rs.24,000/- from the petitioner on 23.9.2008 for purchase of Bajaj
Pulsar Bike and had paid one monthly instalment. Thereafter, he could not pay further
amount
due
to
his
heath
problem.
It
is
alleged
that
on
23.4.2011, people of the petitioner forcibly seized the vehicle. Thereafter, respondent
met their officials and was told that he had to pay Rs.68,520/- and they were not ready
to give back the bike. It is further stated that respondent is not interested in having that
bike and wants to cancel the agreement with the petitioner. Further, respondent had
invested Rs.50,000/- in purchase of the vehicle and as such petitioner is liable to pay
Rs.52,170/- with interest @ 12% p.a.
3. Petitioner in its written statement took the plea that respondent had availed the
finance facility of Rs.26,040/- and amount was repayable in 12 monthly instalments of
Rs.2,170/-. Respondent paid only one instalment and did not pay the balance amount.
Later on, respondent approached the petitioner stating that due to his financial
constraints, he is not in a position to clear the balance amount and wanted to surrender
the hypothecated vehicle. Accordingly, he surrendered the vehicle on 26.4.2011.
4. It is further alleged that respondent also agreed for sale of the vehicle and for
adjustment of the sale proceeds to the loan account. Thereafter, petitioner issued letter
dated 12.5.2011 intimating the respondent about the amount due and asking him to pay
the same within 7 days, failing which the vehicle will be sold. Since, respondent did not
turn up nor did he pay the amount of Rs.70,170/- which was due as on 26.4.2011,
accordingly, petitioner sold the vehicle on 20.5.2011 for Rs.29,000/- and adjusted the
sale proceeds of the outstanding amount. After adjustment, sum of Rs.41,170/- is due
towards the respondent. Thus, there is no deficiency in service and complaint is liable
to be dismissed.
5. District Forum vide order dated 25.5.2012, allowed the complaint in part holding,
that there is deficiency in service on the part of the petitioner who was directed to pay a
sum of Rs.16,500/- to the respondent with interest @ 12% per annum from 20.5.2011
until actual payment.
6. Being aggrieved, petitioner filed an appeal before the State Commission, which
dismissed the same vide its impugned order.
8. It is contended by learned counsel for the petitioner that the vehicle in question was
surrendered by the respondent himself on 26.4.2011, since he has paid only
one instalment. Moreover, respondent was a defaulter and has violated the terms of
the agreement, as such both the fora below have committed error in allowing the
complaint and holding the petitioner, being guilty of deficiency in service.
9. The State Commission in its impugned order has observed;
It is an admitted fact that, the respondent has raised a loan to the extent
of
Rs.26.040/-
including
the
financial
charges
repayable
in
12
monthly instalments at Rs.2,170/-. But the respondent has paid only

one instalment. Therefore, the vehicle in question was forcibly seized.
According to the appellants/OPs, the complainant himself has surrendered
the vehicle as he could not pay the balance instalments. Since he has not
paid the outstanding loan amount as on the date of sale, the respondent
was due in a sum of Rs.70,170/, but it was sold only to the extent of
Rs.29,000/-. Therefore, the DF hold that, purchase of the vehicle by raising
loan by the respondent is a commercial transaction, the OPs are liable to
claim reasonable interest at the rate of 18% p.a. on the amount due and
calculated the interest on Rs.24,000/- from 23.09.2008 until the date of sale
that
is
20.5.2011.
The
vehicle
in
question
was
purchased
on
23,09.2008 and the same was sold in public auction on 20.05.2011 that is
nearly after three years. Taking into consideration the clause 11(a) in
respect of any delayed payments, direct the appellants to pay Rs.16,500/-.
In para -9 of the order, the DF has discussed about the total amount due by
the respondent and the amount adjusted towards sale proceeds of the
vehicle and also considering the interest payable by the respondent at 18%
p.a. in our opinion, the DF is right allowing the complaint filed by the
respondent/complainant. Therefore, we dont see any factual or legal
infirmity in the order under challenge passed by the DF.
10. The main defence of the petitioner before the District Forum as per its written
statement was that respondent had paid only one instalment and he is defaulter.
Moreover, respondent had surrendered the vehicle on its own by the surrender letter,
dated 26.4.2011.
11. During the course of arguments, we asked the learned counsel for petitioner to
show the surrender letter dated 26.4.2011. However, counsel for petitioner expressed
his inability to show the same. Learned counsel and stated that the same is not with the
petitioner.
12. When as per petitioners defence the respondent had surrendered the vehicle on its
own vide surrender letter dated 26.4.2011, then that surrender letter was a material
piece of evidence. However, petitioner for reasons best known to it, had failed to place
on record the material piece of evidence. In the absence of this material piece of
evidence, we have no option but to hold that the vehicle was forcibly seized by the
petitioner in this case, which is against the settled principles of law.
13. It is well settled that under section 21(b) of the Act, this Commission can interfere
with the order of the State Commission where such State Commission has exercised
jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has
acted in the exercise of its jurisdiction illegally or with material irregularity.
14. Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance
Company, 2011 (3) Scale 654 has observed;
Also, it is to be noted that the revisional powers of the
National Commission are derived from Section 21 (b) of the
Act, under which the said power can be exercised only if
there is some prima facie jurisdictional error appearing in
the impugned order, and only then, may the same be set
aside. In our considered opinion there was no jurisdictional
error or miscarriage of justice, which could have warranted
the National Commission to have taken a different view that
what was taken by the two Forums. The decision of the
National Commission rests not on the basis of some legal
principle that was ignored by the Courts below, but on a
different (and in our opinion, an erroneous) interpretation of
the same set of facts. This is not the manner in
which revisional powers should be invoked. In this view of
the matter, we are of the considered opinion that that the
jurisdiction conferred on the National Commission under
Section 21(b) of the Act has been transgressed. It was not
a case where such a view could have been taken, by
setting aside the concurrent finding of two fora.
15. In view of the concurrent findings of facts given by both the fora below, we have no
hesitation in holding that no jurisdiction or legal error has been shown to call for interference in
the exercise of power under section 21(b) of the Act. Hence, the present revision petition
stands dismissed.
16. No order as to costs.
.J
(V.B. GUPTA) PRESIDING MEMBER

Sg.

FIRST APPEAL NO. 640 of 2013
(Against the order dated 31.01.2013 in Complaint Case No.CC/10/131 of the State
Commission, Maharashtra, )
1. Mrs. Yasmin Ismail Kiranawala
2. Mr. Ismail Ibrahim Kiranawala
Having permanent address at 623, Raviwar Peth, Pune-411002 (Maharashtra)
At Present R/at: Deira, Dubai Through their duly constituted Power of Attorney holder:
Mr. Ibrahim Hyderali Kiranawala R/at: 623, Raviwar Peth, Pune-411002 (Maharashtra)
3. Mr. Ibrahim Hyderali Kiranawala
(Maharashtra)
R/at:
623,
Raviwar
Peth,
Pune
411002
.....Appellants
Versus
1. Pune District Central Co. Op. Bank Ltd Through its Chairman, Having its head office
at: Near Pune Station, Pune-411001 (Maharashtra)
2. Pune District Central Co.Op. Bank Ltd. Laxmi Road Branch, Through its Branch
Manager, Near City Post Office, Pune- 411002 (Maharashtra)
........Respondents
BEFORE
HONBLE MR. JUSTICE D. K. JAIN, PRESIDENT
HONBLE MRS. VINEETA RAI, MEMBER
HONBLE MR. VINAY KUMAR, MEMBER
For the Appellants

For the Respondents
:
:
Mr. Dnyanaraj Sant, Advocate

Mr. Vinay Navare, Advocate
PRONOUNCED ON: 16.4.2014

ORDER
PER MR. VINAY KUMAR, MEMBER
The facts, as seen from the record, are that the complainant had rented a safe
locker from OP/DCC Bank, Pune on 28.5.2005. On 9.8.2008 when the complainant
opened the locker it was found that all the gold ornaments kept therein were
missing. The matter was immediately taken up with the bank officials. FIR was also
lodged with the local police on 23.9.2008. Allegedly, some ornaments were not
mentioned in the report to the police due to the complainants being in shock and partly
due to inability to trace their bills. On a legal notice, from the complainants, the bank did
not accept its liability and hence a consumer complaint was filed before the
Maharashtra State Consumer Disputes Redressal Commission.
2.
The case of the complainants was that the same locker (No.1261) had earlier
been broken open prior to its allotment to the complainants. Allegedly, the bank did not
follow
the
laid
down
procedure
for
breaking
open
and
subsequent
re-
operationalisation of the locker. According to the complaint, the same old key was
issued to the complainants. Per contra, the case of the OP/bank was that the locker was
allotted to Ibrahim Hayder Ali Kiranawala with his son (complaint no.2) as joint holder
and operator of the locker. Later his daughter in-law (complainant no.1) was appointed
as their power of attorney holder with authority to operate the account and the locker on
behalf of the father and the son. As per the pleadings of the bank:In the present matter, as per the record of the Opponent Bank, the
Complainant No.1 has operated the locker as on 18/08/2007 and
9/8/2008. This fact clearly shows that lastly the said locker was opened as
on 09.08.2008 and prior to that as on 18.08.2007. On both days the said
locker was operated by the agent Smt.Yasmin Kiranawala. But on the last
occasion, after opening the locker, she tried to show that, she has kept n
number of golden ornaments in the locker and it is lost or theft. In this
respect, it is submitted that, Banks security system is very strong. There is
no any mark of break opening the said locker by anybody. Locker was
opened after operating the common key and key with the
Complainant. Therefore, it is never possible to open the lock of the locker
without the key of the customer. It is also pertinent to note that, while
depositing any items in the safe deposit locker or withdrawing any items
from the locker by the agent or account holder, only the agent of the
customer or customer himself shall be allowed to present in the locker
room. It is also pertinent to note that while operation of locker of any locker
holder is going on, the other customer or locker holder should not allow
entering in the locker room. Therefore, the Bank officer or any person of the
Bank cannot have any knowledge of what documents are kept in the
locker. Therefore, the Opponent Bank cannot have any knowledge whether
really the alleged documents were kept in the locker or not. Therefore, the
bank officers cannot be held responsible for any item deposited in the locker
or its withdrawal.
3.
The State Commission dismissed the complaint holding that the complainants
had failed to establish any deficiency in service on the part of the bank.
4.
We have carefully considered the records and heard learned counsel for the two
sides. A perusal of the impugned order shows that when the locker was opened on
9.8.2008 by complainant no.1 there was no evidence of any attempt to break it open by
anybody. Nor was the locker found in an open condition. Strangely, the complaint itself
is filed by Complainant no. 2, on behalf of all three and not by Complainant No.1. Even
the affidavit evidence in support of the consumer complaint, is filed by Complainant no.3
before the State Commission and not by Complainant no.1, who alone had visited the
bank and operated the locker on 9.8.2008.
5.
Further, from the complaint, it is noticed that the locker was taken on hire on
28.5.2005 and operated on several occasions, the last being on 9.8.2008. Allegedly,
loss of ornaments was reported to Pune Police immediately. However, it also states
the FIR was lodged on 23.9.2008 i.e. a month and half after the loss of ornaments was
allegedly noticed. There is no explanation of this crucial time gap between the two.
6.
The main ground urged in the complaint is that the same locker, before being
hired to the complainants, had been broken open by the bank. Thereafter the
prescribed procedure required of the bank was to change the lock and key before
allotting it to another customer. This was allegedly not done. The same old key of
locker no.1261 was given to the complainant. This is a matter directly considered by
the State Commission. As per evidence before the State Commission, the locker was
got opened by the bank/OP on 30.10.2001. Thereafter, the lock was replaced together
with a new key. This key was supplied to the complainant no. 3 when he hired the
locker on 28.5.2005. But, neither the memorandum of appeal nor the counsel for the
appellant have pointed to any evidence in support of their claim of old key being
supplied, which was submitted before but either ignored or misconstrued by the State
Commission.
7.
The revision petition also seeks to make an allegation that as per the information
of the complainant the prescribed procedure for breaking open of the locker had not
been followed. Once again neither the memorandum of appeal nor the appellant
counsel have explained how acts and events of 2001, pertaining to transactions of the
respondent/bank with another customer, become a matter of deficiency of service to the
appellants/complainants, who came into the picture nearly four years later, in 2005.
8.
We therefore fully endorse the view taken by the State Commission that there
was no nexus between the incident of 2001 and what allegedly had happened in 2008.
We also endorse the view of the State Commission that the complainants have failed to
establish that there was any deficiency of service on the part of the respondent/bank. In
the result, the appeal is held to be without any merit and is dismissed for the same
reason.
..Sd/-..
(D.K. JAIN, J.)
PRESIDENT
..Sd/-..
(VINEETA RAI)
MEMBER
..Sd/-..
(VINAY KUMAR)
MEMBER
s./-
NEW DELHI

(From the order dated 30.04.2013 in First Appeal No. FA/534/2012 of the State
Consumer Disputes Redressal Commission, West Bengal, Kolkata)
WITH IA/1356/2014 (CONDONATION OF DELAY)
Sudhangsu Bhusan Dutta 2/18, Naktala, Kolkata 700047

Petitioner
Versus
1.
The
Joint Managing Director
Mansukh Securities
306, Pratap Bhawan Bahadur Shah Zafar Marg, New Delhi
&
Finance
Ltd.
2. Mr. Biswarup Basu S/o. Sri. Anil Kumar Das R/o. 1/269, Naktala, P.S. Jadavpur
Kolkata 700047
3. Mrs. Bhaswati Basu W/o Mr.Biswarup Basu, R/o. 1/269, Naktala, P.S. Jadavpur,
Kolkata
Respondents
BEFORE:
For the Petitioner : Mr. Amitava Poddar, Advocate
PRONOUNCED ON 16.04.2014
ORDER
JUSTICE J.M. MALIK
1.
There is delay of 41 days in filing this revision petition. For the reasons
stated in the application for condonation of delay, the said delay is hereby condoned.
2.
The State Commission, while placing
reliance on Unit
Trust
of
India
Vs. Savitri Devi Agarwal, 2000-CPR-2-5, and Morgan Stanley Vs.Kartick Das, (1994)
4 SCC 225, dismissed the complaint of the petitioner on the ground that his case
pertains to shares and the consumer fora have got no jurisdiction to try his case.
3.
The
case
of Sudhansgsu Bhusan Dutta,
the
complainant/
petitioner
is
that he purchased some shares of Reliance Industries and other companies. At the
request of Mr.Biswarup Basu and Mrs. Bhaswati Basu, OP2, the complainant invested
his shares with the Joint Managing Director, Mansukh Securities and Finance Ltd.,
OP1, and in the process, handed over all his shares to OP1, with a direction to deposit
the
amounts
in
DMAT
account of the complainant for the purpose of
share
trading. OP2, instead of transferring the shares to the account of the complainant,
transferred the same to his wifes and his own account. Report was lodged with the
Police Station.
4.
District Forum allowed the complaint, but the learned State Commission, reversed
the same, as discussed above.

5.
We have heard the counsel for the petitioner. He contended that the petitioner is
not an investor and these are different kind of shares.

6.
However, it stands proved
that the
entire
case
revolves
around
the
shares. The petitioner himself has admitted that he is an investor. This Bench,
videorder dated 01.08.2012, in RP No.1179/2012, titled A.Asaithambi Vs. The
Company Secretary & Ors., placed reliance on paras 26,27, 33, 34 and 35 of Morgan
Stanley Mutual Fund Vs. Kartick Das (1994) 4 SCC 225, and dismissed the complaint.
7.
In
that case,
reliance
was
also
placed
on Som Nath Jain
Vs.
R.C. Goenka & Anr., reported in 1 (1994) CPJ 27 (NC), West Bengal State
Commission, in case Ramendra Nath Basu Vs. Sanjeev Kapoor & Anr., 1 (2009) CPJ
316 and Delhi State Commission in case Anand Prakash Vs. A.M. Johri & Ors., III
(2000) CPJ 291.
8.
Aggrieved by the judgment of this Bench (RP No.1179/2012) (supra) a Special
Leave to Appeal (Civil) No.36840 of 2013, titled A.Asaithambi Vs. The Company
Secretary & Ors, was filed before the Honble Supreme Court, which was dismissed.
9.
In another case reported in Ganapathi Parmeshwar Kashi & Anr. Vs. Bank of
India & Anr, in First Appeal No. 362 of 2011, decided on 21.08.2012, pertaining to DMAT
account, this Commission dismissed the same.
10.
Aggrieved by the said order a Special Leave to Appela (Civil) No.5401 of 2013,
titled Ganapathi Parmeshwar Kashi & Arn. Vs. Bank of India & Anr., was filed, wherein
the Honble Apex Court held as under :ii) The concurrent finding recorded by the State Consumer
Disputes Redressal Commission, Maharashtra and the
National Consumer Disputes Redressal Commission that
the petitioners cannot be treated as consumer within the
meaning of Section 2(d) of the Consumer Protection Act,
1986, is based on analysis of the pleadings filed by the
parties. The DMAT account was opened by the petitioners
purely for commercial transactions. Therefore, they were
rightly not treated as consumer so as to entitle them

toclaim compensation by filing complaint under the 1986
Act.
11.
The revision petition is lame of strength and therefore, the same is hereby
dismissed. No order as to costs.

...
(J. M. MALIK, J)
PRESIDING MEMBER
...
(DR.S. M. KANTIKAR)
MEMBER
Dd/
CONSUMER COMPLAINT NO. 224 OF 2010

MSTC Ltd. 225-C, Acharya Jagadish Chandra Bose Road Kolkata 700020 Also at :
Western Regional Office 607, Raheja Centre Nariman Point, Mumbai 400021
...
Complainant
Versus
Export Credit Guarantee Corporation of India Ltd. 1, Shakespeare Sarani, Kolkata
700071
Opp. Party
AND
CONSUMER COMPLAINT NO. 225 to 228 OF 2010, complaint no. 67 to 72 OF 2011,
CONSUMER COMPLAINT NO. 147 to 150 OF 2011, CONSUMER COMPLAINT
NO. 178 to 184 OF 2011, CONSUMER COMPLAINT NO. 192 and 193 OF 2011,
CONSUMER COMPLAINT NO. 203 to 208 OF 2011, CONSUMER COMPLAINT
NO. 217 to 220 OF 2011, CONSUMER COMPLAINT NO. 5 and 6 OF 2012
BEFORE
HONBLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HONBLE DR. S.M. KANTIKAR, PRESIDING MEMBER
For the Complainant in all cases : Mr. A. N. Haksar, Sr. Advocate &
Mr. Debal Kumar, Sr.
Advocate
With
Mr. Niloy Pyne, Mr.
P.
S. Sudheer,
Ms. Jhuma Bose & Ms. Chitra, Advocates
For the Opp. Party in all cases : Mr. Pradip Sancheti, Sr. Advocate With Mr.
Bharat Sangal,
Mr. Sachin Chandrana,
Ms. Srijana Lama, Ms.I. Abenla Aier,
&
Ms. Saumya Agarwal, Advocates
PRONOUNCED ON _16.04.2014
ORDER
JUSTICE J.M. MALIK
1.
One
of
the
benefits
Government Department can sue another
of
Democracy
Government
is
that,
one
Department. Non-
payment of court fee, attracts so many litigants to try their luck, under the Consumer
Protection Act, 1986. Can this Commission, arrogate to itself, those powers, which it
does not enjoy? A commission of summary jurisdiction cannot make the position
explicit to the half-backed case, in absence of solid and unflappable evidence.
2.
This common judgment shall decide 36 original complaints, detailed above.
These complaints are between the same parties. The questions of facts and law
are similar. The amounts of the gold and jewellery differ. We will decide the Case
No. 224 of 2010, connected with 35 other similar matters.
3.
Export Credit Guarantee Corporation of India (ECGC, in short), the Opposite
Party (hereinafter referred to as OP), was established by Government of India to

strengthen
the
export
promotion
drive
by
covering the
risk of exporting on
credit, which provides the range

of credit risk, insuring export, against loss of goods and services, including and
not
limited
to
protracted
default
by
the
foreign
buyers. The
complainant, MSTC Limited, is a Government of India Company, involved in trading

activities.
4.
Vide Resolution
No.2/2007-08, it
would transact the business

products on the
of
basis
was
export
of
of
resolved that
gems,
collection
the
complainant
gold, jewellery and other

without LC
on post-
shipment basis against coverage by OP. The complainant would be the exporter in
the transaction andAssociates would be engaged, who would be the suppliers as
well
as
the shippers
of the
gold, jewellery. Accordingly,
complainant entered into a Memorandum of Understanding (

Associates for the above said
the policy was Rs.
300crores. All
Banking channel to the Buyers Bank,
the
MOU) with all the
parties. The maximum liability provided in

the documents were sent
through
Overseas. The antecedents of the
Buyers were verified.
5.
The ECGC/OP issued an Export Turnover Policy, dated 29.08.2007, covering
transactions for the period 29.07.2007 to 31.08.2008, vide Annexure A. According to

the policy, the OP was to cover the risk of the complainant upto 90% of the
shipment value, which remained unrealized if a buyer fails to pay by reason of
any of the insured perils. Then, MSTC, exported the same to Overseas Buyers who
were approved by ECGC and each of whose credit limits were separately fixed
by ECGC after due diligence. Prior to such exports, MSTC took insurance from
ECGC that covered the risk of non-payment by Overseas Buyers after receipt of
goods by the buyers and acknowledgment thereof obtained from buyers without any
quantity/quality issues. Clause 8(i) of ECGC Policy, runs as follows :8. INSURED PERILS
(i) PROTRACTED DEFAULT

There is PROTRACTED DEFAULT when an
INSURED BUYER having accepted delivery of goods has
failed to pay to you any part of an INSURED DEBT relating to
such goods for a period of 120 days after the DUE DATE.
6.
On 24.04.2008, the
OP enhanced the
liability
in
respect of existing policy entered into between the parties from a sum
of Rs.300 crores to Rs.600 crores in respect of exports which were to be made
in
respect of all contracts entered into between the
complainant and the foreign buyers
for
the period 01.09.2008 to
31.08.2009, vide fresh agreement dated 01.09.2008. The amount of premium w

as also enhanced.
7.
Under the terms of the policy, in the event, a buyer willfully defaults or in
case of a protracted default, a
claim
prescribed format within two
is
to
years from
be made
in the
the due
date
of payment of the insured date. The

complainant submitted an application under Form
approval of the
credit limit
No.144 applying
in respect of foreign buyer, which,
for
an
in
the
instant case, is one, Noor Jahan General Trading LLC. The OP approved the
credit limit for a sum
of Rs.9.00 crores vide
B. Subsequently, OP enhanced the credit
Annexure
limit
of
Rs.20.00 crores and charged Rs.500/- for each such exercise. Prior to that, four
purchase
orders were issued
to Space Mercantile Co.
by
the
Pvt.
said
Noor Jahan General
Ltd., the
Trading
Associate
LLC
of the
complainant for supply of jewellery. Copies of the purchase orders were produce
d on the record, as Annexure
D. Copies of Bills
of Exchange and Invoices duly accepted by the foreign buyers have also been
produced as
Annexure
E. The buyers, however, failed to
make the payment within the prescribed period. It has admitted its liability vide
correspondence, Annexure F.
8.
In
the
meantime,
no
payment
was
respect of transactions with Noor Jahan General Trading LLC. The
made
OP
in
vide
its letter dated 08.12.2008 advised the complainant on the course of action to be
taken by it vide copy of letter, Annexure H. Ultimately, the complainant, on
31.03.2009,
lodged
its
contract with OP, which

Annexure
claim
for
recovery
of insured sum under the
was ultimately repudiated, on
K. During the arguments,
complainant explained that they
have
17.07.2010,
learned
filed
buyers. Their suits stand
vide letter-
counsel
suits
for
the
against the
35
decreed. Their execution petitions
are pending and they are likely to get money from the
buyers situated at UAE. It is mentioned in the complaint that efforts were made
with Indian Consulate in Dubai and Dubai Chamber of Commerce for the possibility
of amicable recovery of outstanding amounts. Full premium was paid in the sum
of Rs.2.70 crores, the minimum premium being Rs.2.40 crores covering a turnover
of
Rs.800.00 crores. The
total turnover under all insurance
policies
covering
the aforesaid period, came to be Rs.310.00 crores.
9.
of
The instant complaint was filed with the prayer to pay the complainant a sum
Rs.18,18,36,322/-, as the insured sum, as per
18% interest
from
31st March,
the
2009,
till
terms
of
the
realization,
policy;
rupees
One Crore compensation and rupees Ten Lakhs as costs of legal expenses. In the
remaining cases, similar prayer was made, with different insured sums.
DEFENCE OF OP:
10.
The
OP
has
listed
the
following defences in
its
written
statement. The complainant is not a consumer. It has a large business house

carrying
on business with
profit motive. The complainant claimed that it is an
Exporter. However, as per Financing Agreement, with other companies, the term
Associates, mentioned therein, is in fact, third-parties. As per the Financing
Agreement, the complainant was found to be only financing export transactions, which
facilitate exports and these fact were not brought to the notice of the OP, at the
time
of
issuance
of the insurance
policy. The complainant having executed financing agreements for this

only,
or material fact having bearing on
the
under the financing agreement, the complainant was
purpose
risk insured,
going to
as
perform the
obligations of an insured/exporter like, exercising due care and prudence in

granting
credit
to
an
overseas
Buyer, taking practical
prevent loss arising. As the terms of the

of insurance are governed by the provisions
measures to
contract
of statute,
disclosure of such material facts would render the policy repudiateable.
non-
11.
Again,
the complainant is not
complainant, disclosed itself as
an
Exporter. In
an
Exporter
jewelry and ornaments. However,
the year 2007, the
of
goods,
the
i.e.,
Purchase
Orders, Shipping Bills and Bills of Lading which were issued in the name of thirdparties,
Annexure-D, who
were
involved in an export transaction,

export preparation
responsible for all the
vis.,
of export documents,
obligations
procuring/manufacturing
dispatch
of goods
goods for
and
procuring of
export proceeds from overseas buyers. The complainant got the security to the
tune of 80% of the invoice value from the third-parties. The complainant was
charging interest from
of documents
to
the
the
due
post-shipment credit, from

date
of
the
date
payment, from the overseas
complainant was authorized to
not on
the
is
evident that the
overseas buyers laid upon the third-parties and
complainant. The
payment of shipment credit from
buyers. The
engage the post-
dated cheques deposited by the third-parties with them. It

risk of non-payment by the
of presentation
complainant, had the

the
third-parties
risk
and not
of nonfrom
the
overseas buyers. Consequently, the non-payment of post-shipment credit from the

third-parties was not an insurance peril, under the insurance cover, issued to the
complainant. Copy of the Financing Agreements were withheld. Liabilityof the case
rests upon the third-parties. The complainant itself has filed the complaints against
the overseas buyers, with whom the OP has no connection.
12.
In the Financing Agreement executed
between
the complainant and the
Space Mercantile Co. Pvt. Ltd., copy of which is annexed as Annexure-A. Clause 11
(d) of the Agreement is quoted, as follows :Clause 11 (d) : The THIRD PARTIES hereby declares and
undertakes that by virtue of this MOA, although MSTC has
been
officially declared as
the
EXPORTER but facts remain that
the
THIRD
PARTIES has negotiated and finalized the export order/s with
the overseas buyer and procured/ manufactured/supplied and
sent the materials to the overseas buyer. Thus, for obvious
reasons, the THIRD PARTIES shall remain responsible and
liable for all sorts of statutory obligations/penalty, if any, for nonreceipt or non-realisation of the designated foreign exchang
e against such export. It is clearly understood that MSTC is
no way liable for any such non-receipt or non-realisation of the

designated foreign exchange against such export.
13.
It was further objected that the complainant, while working in cahoots with
third-partis, has undertaken fraudulent transactions. Letter dated 22.03.2010 clearly

reveals that the
overseas
buyers
induced only to lend their names purportedly
by
the
were
representative
of
the supplier/third-parties of the complainant/the agent of the complainant /consultant

and thus on this ground, the overseas buyer disowned their liability towards thirdparties, copy of said letter is Annexure-B. It is averred that some buyers have
informed that their names were used by some other person, who promised to pay a
fixed
commission for the purpose. It is also
buyers from
surprising to note
that all the 36
UAE, covered under the policy, have defaulted at the
same time,
thereby creating default , amounting to Rs.448.81 crores. An inquiry by CBI is

pending against fraudulent transactions of the complainant. Vide
12.04.2010,
the
Ministry
of
directed the complainant to undertake necessary
letter
dated
Steel
steps
has
and comply with
the agreement with the OP.
14.
The
complainant was
to declare
in
particular
prescribed
format, the
Gross Invoice Value of total export turnover, for each of the declaration period,
specified in the Schedule. As per clause 11(b) of the policy, it was mandatory on
the behalf of the complainant to submit Declaration, giving full details of all the
shipments, but
it has
withheld
this
information
and
did
shipments worth
not
disclose
the
Rs.187 crores. The
complainant revealed that it had business with fourteen Overseas buyers, under
factoring, but had
obtained
credit
which resulted in over-exposure of the
limit/exposure
for
only
respective buyers. The
seven
OP
buyers,
did
not
take steps to minimize loss. The complainant failed to perform its obligations under
the policy as is evident from letters dated 05.01.2010, 11.01.2010 and 25.03.2010,
respectively. There was absence of good faith on the part of the complainant. As
per
the agreements, entered
between
the
Complainant
and
the
the complainant was to advance upto 80% of the
Associates,
foreign
bills representing exports, affected by third-parties. However, it so turned out that

the
complainant had
no
insurable
credit risk at
all, on
the
goods
that
were being reported, as exported. But the risk of loss was on the failure of thirdparties to repay the amounts that were being advanced by the complainant on the
security of their export bills.
15.
On 21.03.2009, the total claim of Rs.728.91 crores was made before OP, out of
which, the complainant has received Rs.275.00 crores from various buyers. The
balance amount was Rs.450.00 crores. The OP sent a number of letters during the
period, from 29.05.2009 to 17.07.2010 including a detailed letter on 14.05.2010, but it
did not ring the bell. The failure of the third-parties to repay the complainant was not
a
risk
insured under the policy
issued
to
the
complainant. Clauses
11
&
5 of the policy were not complied with. The credit limit regarding Noor Jahan Trading
LLC
was enhanced basing on the details furnished and representation
by the complainant
to
the
made
OP. It was Noor Jahan Trading LLC which issued
orders to its third-parties, M/s. Space Mercantile and Package Export Private Ltd.,
who were the actual exporter and the complainant was only a Financier in the
transaction. Several buyers disowned their liability. The payment was made to the
third-parties and not to
the
complainant. Vide
29.05.2009, the complainant admitted that no

for realization
prudent
of dues. As per Clause
of the policy, all the shipments were to be declared to
letter
dated
steps were
taken
11
the
OP, but the needful was not done.

CBI CHARGE-SHEET
16.
The key controversy swirls around the question, Whether, this Commission
has the jurisdiction to entertain this case?. Before adverting to the oral/arguments
and written synopses, we would like to refer to CBI Charge-sheet, which overshadows
the rest.
17.
The CBI filed a charge-sheet against the complainant and others. Its
relevant para from the very start, runs as follows:CBI ACB Mumbai has registered case RC38(A)2010-Mum on
26.10.2010
on
the
basis
against Shri ShishirDharkar,
of
source
Ex-Director
of
information
M/s
Space
Mercantile Co. Pvt. Ltd. and Chairman of the Pen Cooperative

Urban Bank Ltd. (Pvt. Person), ShriVivek Champaklal Vaidya,
Managing Director of M/s Ushma Jewellery and Packaging
Exports Pvt. Ltd., Mrs. Gulraihna Omer, Ex. Director of M/s
Space Mercantile Co. Pvt. Ltd. and Director of Carats and
Ounces Co. Pvt. Ltd., Asif Sayeed Ali, Director of M/s Space
Mercantile Co. Pvt. Ltd. and Proprietor of M/s Dream Land
Constructions, Shri Radheshyam Bhomavat, CMD in M/s K.
A. MallePharmaceuticals
Director
of M/s
Ltd., Shri Rakesh Kumar Gupta,
Space
Mercantile
Co.
Pvt.
Ltd., Shri Rahul Bhomavat, Director of M/s Space Mercantile

Co. Pvt. Ltd., Mrs. Shanu Pramod Podar, Director of M/s.
K.A. Malle Pharmaceutical
Director
of
M/s
Joshi
Pvt.
Bullion
Ltd., Shri Jayesh Desai,

and
Gems Jewellery Pvt.
Ltd., Shri Vinod Motwani, President of M/s Bonito Impex Pvt.

Ltd., Shri D. K. Jain, Managing of M/s Apollo Trading and
unknown officials of MSTC and Pen Cooperative Urban Bank
Ltd. and M/s Ushma Jewelleryand Packaging Exports Pvt.
Ltd.,
M/s
Space
Mercantile
Co.
Pvt.
Ltd.,
M/s
KA Malle Pharmaceuticals Ltd., M/s Joshi Bullion & Gems Pvt.

Ltd., M/s Bond Gems Pvt. Ltd. and M/s Bonito Impex Pvt. Ltd.
for commission of offences U/s 120 B r/w 420, 467, 468 and
471 of IPC and Section 13(2) r/w 13(1)(d) of Prevention of
Corruption Act, 1988 on the allegation that the aforesaid
accused persons entered into a criminal conspiracy with the
unknown officials of the MSTC and Pen Urban Cooperative
Bank during the period 2007 and submitted fake documents
which were accepted by the officials of MSTC who released
80% of the invoice value, by discounting the export bills, as
advance to the exporters and caused loss to MSTC to the
tune of Rs.500 crores and thereby cheated MSTC.
18.
This charge-sheet, running into 47 pages, is supported by 59 witnesses and the
CBI has placed reliance on 1812 documents.

COMPLAINANTS SUBMISSIONS :
19.
Coming to the charge-sheet filed by CBI, it was argued by the counsel for the
complainant
that
there
was no
against the complainant. The appropriate court will
decide
evidence
the
correctness
or
otherwise of the charges in the charge-sheet, as was held by the Honble Apex
Court in Standard Chartered Bank Vs. Andhra Bank, 2006 (6) SCC 94. The charges
are
yet
to
be
proved. Consequently,
MSTC
does
propose
to
deal
with
the various allegations made in the charge-sheet. However, it is a fact that some
Overseas buyers had paid a sum of Rs.281 crores against exports made and later
defaults,
negates
any
allegation of fraud. Collusion and fraud
must be established from the inception and the payments made by the overseas
buyers negate any allegation of collusion. Again, the Special CBI at Mumbai
by its order dated
11.06.2012
has
criminalities regarding the transactions in
absolved
question
MSTC
and
the
Court
of
has,
any
inter
alia, held that the matters were of civil nature.
20.
It was further submitted that the OP has relied upon certain statements made by
certain witnesses under Section 161 of Cr.P.C. which are inadmissible in evidence.
The statements of Mr.R.K.Chaudhary, Mr.S.S.Chadha, Mr.R.K.Singh and Mr.D.K.Munda
, have not yet been duly proved. Consequently, the admission of this fact comes out
from
the
horses
mount
itself. They are the senior
officers of MSTC
itself. The counsel for the complainant argued that the oral evidence of the above
said senior officers, is yet to be recorded in the Court.
21.
Again,
it
is
settled law that
finding
of
facts
recorded by
civil court will not have any bearing so far as criminal case is concerned and vice
versa, as was held in Kishan Singh Vs.Gurpal Singh, 2010 (8) SCC 775. Moreover,
in Rajinder Singh Vs. State of U.P., 2007 (7) SCC 378, in para 11, it washeld :11. The learned Sessions Judge trying the case of coaccused Daya Singh seems to have been swayed by the
fact that the High Court had not only set aside the order
passed by the learned Sessions Judge under Section
319 Cr.P.C. by which the respondent No. 2 Kapil Dev Singh
was summoned to face trial but had also recorded a finding
in his favour that he was present in a meeting in Nagar
Nigam, Allahabad. Since we are setting aside the order of
the High Court, the aforesaid finding of the learned
Sessions Judge would automatically go and cannot stand.
22.
Our attention was invited towards the fact that, a statement made under section
161 of Cr.P.C. is not a substantive piece of evidence. The same can be used for the
purpose of contradicting thereof, in the manner laid down in the proviso, appended
with
Section
162
of Cr.PC. The counsel for
the
complainant has referred to another authority, reported in Pebam Ningol MIkol Dev
i Vs. State of Manipur & Ors., 2010 (9) SCC 618. The authority relied upon by
OP reported in Khatri & Ors.
Vs.
State
493, deals with an exceptional
case
of
of
Bihar, 1983 (2)
violation
of
Article
SCC
21
of
the Constitution of India. In that case, it was held that since the police report in
question was relevant under Section 35 of the Indian Evidence Act as a public
document, the report was admissible in evidence. That reasoning is not applicable
to
this
case. The statements recorded by the
witnesses
are
not
public
documents. The said evidence could be produced. The said statements could have
been proved before this Commission by producing the necessary witnesses to prove
the said evidence, but the ECGC, having not done so, the statements have
no evidentiary value in the proceedings.
23.
It was brought to our notice that for a considerable period of time, since the
commencement
of
exports
there
was
no
default by the
Overseas buyers and an amount Rs.281 crores was duly realized. There was no
default at all. During the Financial Year, 01.04.2007 to 31.03.2008, there was no
default on the part of any of the buyers and the MSTC successfully exported to the
extent of 260 crores and earned foreign
the subsequent Financial
exchange. However,
Year, towards the
third
quarter,
in
there
was a worldwide recession and there were a series of defaults from the very
same buyers who
had
earlier
buyers. It was submitted that
made
payments,
as
also
from
out of 36 buyers who defaulted, 28
other
had
successfully performed earlier and made full payments. However, the MSTC took all
necessary steps for recovery and stopped exports to the defaulters. All the
defaulters admitted their liabilities, and to pay, but failed to make payments citing
reasons of recession. It is also pointed out that recovery proceedings were filed in the
foreign court against the defaulting buyers and obtained decrees, against all the 36
foreign buyers coming under the ECGC policies.
24.
Moreover, MSTC is a canalizing agency as is known to the commercial
world. MSTC through Associates, idenfified buyers abroad. The buyers placed
Purchase
Orders,
in
the
name
various buyers. There was initially,
of
a
MSTC
first
who, exported the goods to the
sale/supply
to
the
MSTC
by
the
Associate. Invoice clearly mentions exporter MSTC Ltd and under the caption Buyer, if
other
than
Consignee
:-
Notify
(LLC), ZarooniBuilding, Near Family
buyers
Supermarket,
Noor Jahan General

Shop
Trading
No.4, Deira,
Dubai,
UAE, dated 14.01.2008. Thereafter, a second sale was made by MSTC to foreign
buyers. In practice, on receipt of confirmation that the buyers have accepted the
documents and goods, MSTC paid to the concerned suppliers, around 80% of the
value of the invoice, towards cost of goods supplied by the concerned suppliers, to be
adjusted against the sale price.
25.
The complainant has contested
the
case
on
merits,
tooth
and
nail. All these arguments are contained in the written submissions, but we are of the
considered
view
that
these
submissions
are
not
germane
to
the present
controversy. Those arguments must be raised before the Civil Court. Succinctly stated,
the complainant had submitted that it is an Exporter, there was protracted default by
the foreign buyers and that is why the claim was made. Various documents go to prove
that MSTC is an Exporter and not an Associate. All the necessary details were
furnished to the OP. There is no suppression of any fact. The proposal form did not
require any details of suppliers or Associates. MSTC was under no duty/obligation to
disclose any part of its dealings with its suppliers, whether, regarding payment or
shipment, or otherwise. The foreign buyers had made payments, admittedly, to the
extent of Rs.260 crores, which alone, makes it clear that MSTC has direct
recourse. The foreign courts have upheld the pleas of the complainant. No
violation of Clause 11(b) of the policy was made. The entire policy is to be read
holistically. It was not required that the factoring mode of transaction should be
disclosed. Again, there were two separate contracts, so on and so forth.
SUBMISSIONS MADE BY THE OP:
26.
It was alleged that a criminal conspiracy was held by Pen Bank, M/s. Space
Mercantile
and
M/s. Ushma Packaging
in
concert with others, including, three officers of
MSTC,
besides Shishir Dharkar and Jayesh Desai, to set off the Non-Performing Assets
(NPAs) of Associates
and others
and
regularize
it. This
was supported by the statements made

by Gaurang Tripathi, D.K.Jain, Pradeep Mhatredt, Samira Shaikh Safdar and so many
other officers. PrashantAbhyankar, was a clerk
made its Director,
according
to
of Ushma,
his
own
who
was
admission. D.K.
Jain was an acquaintance of Rahul Bhumavat, Director
of
Space and K.A. Malle Associates. He was made the Manager of Space and, later
on, was made the owner/44% shareholder of Apollo Trading LLC (Foreign Buyer),
as per the statement of Sh.D.K.Jain. The ARS Consultant was appointed by MSTC
against the procedure and fraudulently, with an intention to cheat, which is supported
by the
evidence
of
various witnesses. Again,
no
due
diligence, was taken,
despite MSTC entering into credit risk business for the first time, which fact is
supported by evidence.
27.
Credentials of Associate (Ushma) were not even verified despite report called
from the Bank. According to the charge-sheet, the purported foreign buyers accepted
investment on 2% commission. As per the statements made by the witnesses, the
foreign
buyers
were
put
up
and
relationship between foreign buyers and associates
was
not genuine. The

not disclosed
to
ECGC. Foreign buyers were not traceable. The MSTCs letter dated 17.02.2010 was
enclosed
with
the
Dubai
Chamber
of Commerces letter and ECGCs
reply. Noor Jahan Glamour Diamond & Jewellery, Halya General Trading, ASB 121
Hardware Trading, ECGCs inquiry and the Dubai Chamber of Commerces letter,
which runs as follows :Sub : Complaint against M/s. Glamour Diamond
& Jewellery LLC, Dubai.
With reference to your Mediation Request Form dated
27.11.2009 in relation to the above mentioned subject, we
regretfully inform you that in spite of our several attempts, we

could not trace the above mentioned respondents. We
advise you to seek other alternatives such as filing a case
against the respondents before
the competent court, if you have any justification for it.
Yours faithfully,
Sd/Jehad Abdulrazzaq Kazim
Director, Legal Services.
28.
The membership of M/s. Leo Diamonds LLC, was acknowledged vide order
dated 28.02.2010 to
letter posted by the
M/s.
Dubai
Noor Jahan, could not be traced

Chamber
of
Commerce
on
out vide
17.02.2010,
22.02.2010, 15.02.2010, 25.01.2010, 02.02.2010, so on and so forth, in respect

of the fact that other foreign buyers were also not traceable.
29.
It also transpired
that the
goods received by consignee, RMK
General
Trading, were owned and controlled by Jayesh Desai, who utilized/sold/diverted the
goods. He
melted
the
exported
market. He diverted the goods and the
gold/ jewellery, before selling, in open

funds
realized were
siphoned
off, in conspiracy with MSTC officials, as per the charge sheet.
30.
Again, there was collusion between the Associates as
well,
as per the
statements made by many witnesses. Memorandum of Agreement

16.08.2008, executed between
dated
MSTC and Associates, was not disclosed
before
issuance of ETP Policy. MoA shows that only nine point modalities were informed
by MSTC to ECGC. However, MoA contained various clauses
and terms, beyond the
nine
point modalities. The terms of MoA required express disclosure,
before the
issuance of the policy. ECGC learnt about existence of MoA between MSTC and
the Associates, for the first time, when Mr.Sanjay Singh of ECGC
visited the office
of Mr.R.K.Singh of
MSTC, in November,
of Associates, as per the statements made

complainant.
2008. There was role

by the officials of the
31.
According to the OP, there was fraud
goods. They have placed reliance on the
during the export of

statements
recorded
under
Section
161Cr.PC. MSTC was not an Exporter as per Hardware Bill, Airway Bill, Shipping
Bill, Exchange control declaration, invoice issued by Associates. Again, MSTC did
not declare all the shipments, which is an express term of the policy. The policy itself
prescribes that the policy is meant to cover all shipments that may be made by you,
except those specifically, excluded in Schedule-I of the policy, during the policy
period.
32.
There is fraud in
realization
of
sale
proceeds. In
some
cases,
the
foreign buyers were planning to directly pay the Associates, instead of to MSTC. An
account of telephone conversation dated 15.02.2010 between Miacomm General
Trading (Foreign buyer) and SCB reveals that Miacomm would pay the Associates
directly instead of MSTC. Funds of MSTC were diverted and credited in the account
of Associates with Pen Co-op. Bank. Again, the MSTC did not take effective
immediate steps for recovery
of
amount, particularly, against the Associates. In
respect of Fraud, in lodging claim, under the policy, i.e., 31.03.2009, till date, the
Invocation letter dated 31.07.2009 of MSTC, gave an undertaking that except as
already/disclosed, we
hold no sums, credits, security or indemnity against
this account and that we have no claim against our agents in respect of declared
risks assumed by them. The allegation of OP is that they did not disclose
full and complete facts including the securities
like
PDCs,
FDRs
and
Bank
Guarantees furnished by Associates. MSTC did not disclose the details of recoveries
already made by MSTC from the overseas buyers, to the tune of Rs.25.60 crores,
and in fact, made claim for full amount, without giving any credit.
33.
MSTC made a claim of 90% of invoice value, whereas, it had neither paid 90%
invoice value nor was it obliged to pay any amount over and above 80% of the
invoice value. It is conspicuously silent about the extent of payment, if any, made by
MSTC to its Associates. Even in the statement of MSTC from 21st to 23rd January,
2014, there is no disclosure, either of receipt of the amount of Rs.25.60 crores from
the overseas buyers or even the extent of finance disbursed by MSTC to the
Associates. MSTC did not conduct due diligence of foreign buyers or that of the
Associates. It
did
not
take
appropriate
steps
for
mitigation
of
losses.
Even after the defaults, the securities obtained by MSTC were not disclosed to ECGC,
as per the statement of Pradeep Mhatredt and Divya Shah.
FINDINGS:
34.
First of all, we advert to
the Bail Order. The Bail applications were moved by
Malay Sengupta,
Tapas Basu and Utpal Sarkar, the senior employees of MSTC, and the relevant paras,
of the Bail Order, 11.06.2012, are reproduced, as follows:29. Going by the prosecution version itself, it was the
responsibility of the exporters to find buyers who were
approved by ECGC; Exports were duly insured with
ECGC. As stated earlier, basic purpose for which MSTC has
been
created
is
promotion
of
exports. If
in
that respect and after due diligence, MSTC paid 80%
of the invoice value to the exports, no fault can be found with
it. Matter is already pending with National Consumer
Forum. Dispute is more of civil nature.
30. Basic allegations against the applicants
are
that they conspired with exporters. They accepted forged
documents.
Theymade undeserved payments to the
exporters and they have received kickbacks to the tune
of Rs.75 lacs,
Rs.25 lacs and
Rs.25lacs. When
the
payments itself were to the tune of Rs.480 crores, kickback
amounts of Rs.75 lacs,
25 lacs and
25 lacs seem
absurd. Moreover, since 2010, IO has not been able to
recover anything from these applicants. There is no
grievance that the applicants have pressurized the witnesses
or
have
not
co-operated
in
investigation. They were top level officers and must have
been taking policy decisions. They were required to deal with
whole of the business of the MSTC which covers not only
export of gold jewellery but also of export of other items. If
at all the applicants were actively involved in the present
transactions, it was for the IO to establish nexus. Moreover,
main beneficiaries have already been released on bail and
the present applicants have also suffered enough custody. In
fact, no prayer was made for interrogation of the accused
persons, while in custody. Therefore, if the applicants are
made to cooperate in investigation, in my opinion, they can be
released on bail.
Thereafter, they were granted the bail.
35.
The said bail order is not the final decision of the court. A prima facie view
has been taken by the CBI, because, as per its orders, all the three senior officers of
the MSTC had already undergone judicial custody for a considerable time. Other
accused persons were already granted bail. We find force in the observations, made
by the CBI Court, in a measure, that the matter is already pending with the
National Consumer Disputes RedressalCommission. Dispute is more of civil nature.
This is the prima facie view of the CBI Court. The matter is yet to be decided on
merits. This is not the acquittal order, in favour of the accused. Even if it is a matter
of civil nature, simplicitor, the complainant must knock at the doors of the civil court.
36.
The excuse given by the complainant that they have taken all the actions and
the foreign buyers are likely to pay back the decretal amount, is a feckless
argument. They have obtained decrees against them. However, the evidence on
record clearly goes to show that the foreign buyers are not traceable. The foreign
buyers have no previous record. Are those, fake companies?. They have been
certified by none else than the Dubai Chamber of Commerce. What is the use
of decrees, which cannot be executed?. This appears to be an eye wash. The
complainant has invented a device to pull the wool in the eyes of law and the
OP. The story propounded by the complainant does not just stack up.
37.
This must be borne in mind that in a summary procedure, this Commission is
not required to record the statements of the witnesses. The OP cannot be permitted
to produce a number of witnesses in the Dock. It is a duty cast on the Civil Court to
record the evidence exclusively and extensively. The position does not begin to
jell. Dallops of mystery surround this case. It would have been much better if all these
witnesses were examined by the Civil Court, as per law. It is too early to speak our
piece,
on
these
complicated
and
contentious
issues.
It
requires full probe by a competent court.

38.
There are statements of the witnesses recorded under Section 161 Cr.PC. This
Commission
cannot place reliance on this
kind
of
evidence.
They are yet to
be produced in the Court and their statements would be subject to the crossexamination. It is pertinent to know that cross examination of the witnesses is the lifeblood of our legal system. It is the only way, a Judge can decide whom to
trust and answer, during
cross-examination, which
may wreck ones case. It
is painfully apparent that it is impossible to gauge the real issue. This Commission
is unable to winnow truth from falsehood. This Commission can go into the
subject, only skin deep.
It cannot be said at this stage, at which way the wind will blow.
39.
The legal maxim, Ex dolo malo non oritur action (A right of action cannot arise
out of fraud), reads as under :

The word dolus, when
used
in
its
more
comprehensive sense, was understood by the Roman
jurists to include every intentional misrepresentation of
the truth made to induce another to perform an act, which
he would not else have undertaken, and a
marked distinction accordingly existed in the civil law
between dolus bonus and dolus malus:
the
former
signifying that degree of artifice or dexterity which a person
might lawfully employ to advance his own interest, in selfdefence against an
enemy
or for some
other
justifiable purpose; and the latter including every kind of
graft, guile or machination, intentionally employed for the
purpose of deception, cheating or circumvention. As to
the latter species of dolus (concerned), it was a
fundamental rule, to be observed by everyone in a judicial
position, that dolo malo pactum se non servaturum; and,
in our own law, it is a familiar principle that an action
brought upon a supposed contract, which is shown to have
arisen from fraud, may be successfully resisted.
40.
The facts of the case reported in Joshi Bullion Gem and Jewellery P. Ltd., Vs.
K.A. Malle Pharmaceuticals Ltd. & Ors., [2014] 182 Comp Cas555 (Bom) neatly
dovetail with the facts of the present case. The facts of the cited case are these.
The company claims that it is the victim of systematic fraud
perpetrated by a director of the petitioner, one Jayesh Desai, in
collusion with some officers of the Maharashtra State Trading
Corporation (MSTC) and of the Pen Co-operative Urban Bank
Limited (Pen Bank). The companys version is this : It claims
that in September, 2008, it started a business relationship with
MSTC. The business model or procedure was that the
company would purchase the gold jewelry locally. It would, in
turn, sell these goods to MSTC, in India. MSTC would then,
export the goods to buyers overseas, especially in UAE and
Kuwait. However, the transshipment of these goods was the
responsibility of the company. As a result, the company paid
all shipping expenses,
including insurance. All shipping
documents stood in the name of the company, on account of
MSTC. However, export invoices and bills of exchange were
in MSTCs name. MSTC directly negotiated these documents
with the foreign buyers banks. MSTC did business in a similar
manner with other entities as well, six in all. All these entities
were described as associates

of
MSTC. Two
of these entities were owned or controlled by Jayesh Desai,
the petitioners director. One of them is the petitioner
itself. Another is named Bond Gems P. Ltd. There are today
arbitration pending between MSTC and these associates.
It was further held :
The company contends that Jayesh Desai in fact melted down
the gold and sold it in the local markets in Dubai. The
allegation is that Jayesh Desai received the proceeds of this
illicit sale. The companys case is that the money due to MSTC
and therefore to the company, has thus been diverted
to Jayesh Desai or his group, including the petitioner.
Again, it further held :The courts jurisdiction under sections 433 and
434 of the Companies Act, 1956, is a summary jurisdiction. It
does not lend itself to the minute scrutiny and examination of
evidence that is possible in a regular civil proceeding.
The companys defence shows that its alleged liability to the
petitioner is very seriously disputed. It claims to have been
made the victim of a vast conspiracy and fraud. There is, in my
view, considerable merit in this. The petitioner itself is, through
one of its principal officers (Jayesh Desai), involved in these
murky and illicit transactions. This is not a simple case of
goods sold and delivered, their price unpaid without just
cause. This is a story, yet unraveling of tangled webs of fraud,
deceit, illegality, diversion of funds and exports. The
Government officials are involved. Criminal investigations
continue. It is impossible to hold that the company
has neglected to pay the petitioners claim without just cause.
If the company is correct in its submission, then it is very clearly
the victim of a very well thought out fraud and conspiracy.
41.
In view of this discussion, we have to come to the conclusion that
we cannot poach into
the
jurisdiction
of
the
civil
court
or
other
appropriate forum. Thus, all the 36 cases, go in a tizzy. The cases are dismissed,
with no order as to costs. However, liberty is granted to the complainant to approach
the civil court or any other forum, having the jurisdiction, to get redressal of its
grievances and can seek help on the limitation point, from the Honble Apex Courts
authority reported in Laxmi Engginering Works Vs. P.S.G. Industrial Institute, (1995) 3
SCC 583.
...
(J. M. MALIK,J.)
PRESIDING MEMBER
....
(DR.S.M. KANTIKAR)
MEMBER
dd/

(From the order dated 29.02.2012 in First Appeal No. 140 of 2009 of the Punjab State
Seema w/o late Mr. Rajesh Mehta, r/o House No. N.N. 8, Gopal Nagar, Jalandhar City
Petitioner-Complainant
Versus
1. The New India Assurance Co. Ltd. Divisional Office-III, 29, Atam Nagar, Dugri Road,
Ludhiana, Though its Sr. Divisional Manager
Respondent No. 1- OP-1
2. The New India Assurance Co. Ltd. Divisional Office-II, 361000, Guru Teg Bahadur
Nagar, Jalandhar- 144003 Through its Sr. Divisional Manager
Respondent No. 2- OP-2
BEFORE
HONBLE DR. B.C. GUPTA, PRESIDING MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner
Mr. Vikas Nagpal, Advocate
For the Respondent
Mr. Mohan Babu Agrawal, Advocate
PRONOUNCED ON :
16th
APRIL 2014
ORDER
PER DR. B.C. GUPTA, PRESIDING MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 against the impugned order dated 29.2.2012, passed by the
Punjab State Consumer Disputes Redressal Commission (for short the State
Commission) in First Appeal No. 140 of 2009, The New India Assurance Co. Ltd. &
Anr. vs. Mrs. Seema, vide which, while allowing the appeal, the order dated
11.12.2008, passed by the District Consumer Disputes Redressal Forum, Jalandhar, in
complaint no. 10 of 2008, allowing the said complaint, was set aside.
2.
Brief
facts
of
the
case
are
that
Rajesh
Mehta,
husband
of
complainant/petitioner had taken individual personal accident insurance policy from the
respondent/opposite party/insurance company, covering risk on his life for ` 1 lakh, on
his wife, Seema for ` 2 lakhs and on his two children for ` 50,000/- each. The proposal
form was filled by Rajesh Mehta on 22.12.2003. It has been stated that the said Rajesh
Mehta was found dead under mysterious circumstances near Chaheru bridge on
Jalandhar-Phagwara G.T. Road by a police patrolling party, for which FIR No. 32 dated
07.05.2003 was registered at Police Station Sadar, Phagwara and post-mortem
examination was also conducted. The inquest report conducted under section 174
Cr.P.C. revealed that cause of death was due to intake of alcohol and wound mark
(injury) was found on his dead body, as per the post-mortem report. The report from the
Chemical Examiner, Govt. of Punjab, Patiala revealed that aluminium phosphide was
detected in the liver, spleen and kidney of the deceased. In the sample of blood, taken
from the body of Rajesh Mehta, aluminium phosphide was found. The Insurance
company repudiated the claim vide their letter dated 21.05.2004, saying that the claim
was not payable under the terms and conditions of the policy as Rajesh Mehta was
under influence of intoxicating drugs, at the time of his death. The consumer complaint
in question was then filed before the District Forum, claiming payment of ` 1 lakh
alongwith interest @ 18% per annum and compensation of ` 50,000/- and ` 10,000/- for
cost of litigation. In their reply, before the District Forum, mention was made about
exception 5 in the conditions of insurance policy and it was stated that since the death
resulted, because of taking poisonous substance aluminium phosphide, the claim was
not covered by the insurance policy. However, the District Forum, after taking into
account, the evidence of the parties allowed the complaint and directed the
respondent/opposite party to pay insurance claim of ` 1 lakh alongwith interest @ 9%
from the date of final repudiation till realisation and ` 4,000/- as compensation, on
account of deficiency in service and ` 1,000/-, as cost of litigation. An appeal was filed
against this order before the State Commission, which was accepted and the order of
the District Forum was set aside. It is against this order that the present petition has
been made.
3.
At the time of hearing, the learned counsel has drawn attention to the written reply,
filed by the respondent/opposite party before the District Forum, saying that from the
said reply, it was clear that as per the post-mortem report, the cause of death was due
to intake of alcohol, whereas as per the report of Chemical Examiner, Aluminium
Phosphide was detected in various parts of the body of the deceased. The District
Forum had come to the right conclusion saying that the Insurance Company had not
been able to produce cogent and convincing evidence to establish death by
suicide. Since the mystery behind the death of the deceased had not been solved by
police investigation or by evidence produced by the Insurance Company, the claim was
payable. The learned counsel stated that in the impugned order, the State Commission
had not carried out a correct appreciation of the facts and circumstances on record.
4.
On the other hand, the learned counsel for the respondent stated that the case
was fully covered under exception 5 of the terms and conditions of the policy in
question. It had been clearly established from the report of Chemical Examiner that the
deceased had died after consuming poisonous substance and hence, it could not be
stated to be death by accident. The impugned order was in accordance with law and
should be upheld.
5.
I have examined the entire material on record and given a thoughtful consideration
to the arguments advanced before me.

6.
A perusal of the material on record makes it very clear that the report of Chemical
Examiner, Govt. of Punjab reveals that Aluminium Phosphide insecticide was found in
the stomach and parts of intestines of deceased. It is also stated in the report that
phosphine, a constituent of Aluminium Phosphide was found in the parts of liver, spleen,
kidney and sample of blood. The result of the report of Chemical Examiner to Govt. of
Punjab has been stated to be as follows- Aluminium Phosphide insecticides detected
in the contents of exhibit I. Phosphine, a constituent of aluminium phosphide detected
in the contents of exhibits II and III. No poison detected in the contents of exhibit IV.
7.
Exhibit I was a jar containing stomach and parts of intestine, exhibit II contained
parts of liver, spleen and half of each kidney, exhibit III contained sample of blood,
whereas exhibit IV had saturated solution of common salt.
8.
It is clear from the report of the Chemical Examiner that the deceased died due to
intake of Aluminium Phosphide, which is a poisonous substance. The report of the

post-mortem examination stated that cause of death will be known from the report of the
Chemical Examiner. The State Commission have, therefore, rightly concluded that it
was a clear-cut case of suicide, which bars the claim for insurance. We do not find any
reasons to differ with the well-reasoned findings of the State Commission. We do not
agree with the findings of the District Forum that the respondent/opposite party had
failed to prove any mental depression etc. of the deceased which could have led him to
commit suicide. A person can commit suicide even if he is not suffering from any
mental
depression
or
psychological
disorder. In
the
reply,
filed
by
the
respondent/opposite party, they stated that the complainant submitted the report of the
Chemical Examiner on 05.06.2007 despite writing letters to them on 22.12.2003 and
16.04.2004.
9.
From the above discussion, it is clear that there is no infirmity, illegality, irregularity
or jurisdictional error in the orders passed by the State Commission, which may merit
interference at the revisional stage. The petition is, therefore, without any force and the
same is ordered to be dismissed. The order passed by the State Commission is
confirmed
and
consequently,
the
consumer
dismissed. There shall be no order as to costs.

..
(DR. B.C. GUPTA)
PRESIDING MEMBER
PSM
complaint
in
question
stands

(From the order dated 31.07.2012 in First Appeal No. 250/2010 of H.P. State Consumer
Disputes Redressal Commission)
Smt. Sheela Devi w/o Late Sh. Bhagwan Dass, s/o Sh. Siri Ram r/o Village Bhagwala,
P.O. Kotla Power, Tehsil Anandpur Sahib, District Roop Nagar, Punjab
... Petitioner/Complainant
Versus
1.
Life Insurance Corporation of India, Having its branch office at Oriental First and
Second Floor, 86 Janpath New Delhi through its Branch Manager
2.
Life Insurance Corporation of India, Having its Block no. 14 15, SDA
Complex Kasumpti, Shimla through its Senior Divisional Manager
3.
Life Insurance Corporation of India, Having its branch office at Village Rabon,
P.O. Saproon, tehsil and District Solan, through its Branch Manager, Branch
Office Near Punjab National Bank, Ropar Road Nalagarh, District Solan, H.P.
Respondents/Opposite Parties
BEFORE
HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Petitioner
Mr. Ashok Mathur, Advocate
For the Respondents
Ms. Jaya Tomar, Advocate
PRONOUNCED ON : 16th APRIL 2014

ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 31.07.2012 passed by the Himachal Pradesh State Consumer Disputes
Redressal Commission (for short the State Commission) in FA No. 250/2010, Life
Insurance Corporation of India versus Smt. Sheela Devi by which while allowing the
appeal, order of District Forum allowing the complaint was set aside.
2.
Brief facts of the case are that complainant petitioners husband
deceased Bhagwan Das obtained insurance policy of `_1_lakh from opposite party
respondent on 07.11.2006. Assured left his house on 01.01.2008 on scooter for his
place of duty, where he was supposed to reach at 5.30 a.m. At 10.30 a.m., telephone
call was received from Shri Ram Swarup, President of the Union that deceased assured
had not reached to the office. Matter was reported to the Police and deceaseds
brother Jagtar Singh and some other residents of the village started search. Skid marks
of the scooter were found on the bank of canal and the packet of sweets which
deceased was carrying with him for distribution to his colleagues on account of
promotion was found lying near the skid marks. On 3.01.2008, dead body
of Bhagwan Das was taken out of the canal. Complainant lodged claim with the
opposite party which was repudiated by opposite party. Alleging deficiency in service
on the part of the opposite party, complainant filed complaint before the District
Forum. Opposite party resisted complaint and submitted that on account of nonpayment of premium due on 07.11.2007, policy had lapsed and further submitted that
amount deposited after lapse of policy after the expiry of 30 days grace period cannot
revive policy and prayed for dismissal of complaint. Learned District Forum after
hearing the parties allowed complaint and directed opposite party to pay money due
under
the
policy
with
interest
and
further
awarded
1500/-
as
litigation
expenses. Appeal filed by the opposite party was allowed by 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 the
record.
4.
Learned counsel for petitioner submitted that as premium deposited by deceased
was accepted by opposite party before his death, opposite party was liable to make
payment as per terms of the policy and learned District Forum rightly allowed the
complaint but the State Commission committed error in allowing the appeal hence
impugned order be set aside.
5.
On the other hand, learned counsel for respondent submitted that impugned
order passed by learned State Commission is in accordance with law and hence, the
revision petition be dismissed.
6.
It is not disputed that deceased Bhagwan Das obtained insurance policy from
opposite party on 07.11.2006 and premium due on 07.11.2007 was not paid. It is also
not disputed that payment of premium was made on 1.1.2008 at 12 noon. As per
clause 2 of the terms and conditions of policy, grace period of 30 days was allowed for
payment of yearly and half-yearly premium and if premium is not paid within the grace
period, the policy lapses. Admittedly, premium was not paid within 30 days from
07.11.2007 due date for payment of premium, and policy stood lapsed on
01.01.2008. As per condition 3, policy can be revived subject to payment of arrear of

premium with interest but LIC has right to accept or decline the revival of discontinued
policy and revival of discontinued policy shall be effective only after the same is
approved by the Corporation and specifically communicated to the life assured.
7.
In this case, learned counsel for the petitioner has not placed any document on
record to substantiate that revival of discontinued policy has been approved by

respondent and communicated to the life assured or petitioner. In such circumstances,
discontinued policy does not stand revived and petitioner is not entitled to receive
maturity amount.
8.
Learned counsel for the respondent further submitted that premium was
deposited on 1.1.2008 after the death of assured and in such circumstances, policy
could not have been revived. In support of his contention, he has placed reliance on
statement of deceaseds brother Jagtar Singh in which he has stated that his
brother Bhagwan Das
went
on
scooter
to
attend
his
duty
from
6 a.m. to 2 p.m. Bhagwan Das left house at 5:30 a.m. but at 10:30_a.m. received
telephone call from Ram Swarup, President of the union that Bhagwan Das did not
reach on duty. In his statement, he further admitted that near Nokia Bridge, there were
marks of tyres of scooter on the bank of canal and found sweets box near the slab of
the canal and his brother died due to fall in the canal. Dead body was also recovered
from the canal on 03.01.2008. In such circumstances, learned State Commission rightly
observed that deceased fell in the canal at about 5:30 a.m. on 01.01.2008 and in such
circumstances, premium amount could not have been deposited by him on 1.1.2008 at
12 noon and it seems that premium amount has been deposited by some other person
after the death of assured Bhagwan Das. As policy was not revived before death of
assured, learned State Commission rightly allowed the appeal and dismissed the
complaint.
9.
Learned counsel for the petitioner has drawn my attention towards post-mortem
report of the deceased in which it has been mentioned that death occurred between 36
hours to 7 days. Admittedly, post-mortem was conducted on 3.01.2008 at 4:00
p.m. Merely, because it has been mentioned in the post-mortem report that death
occurred between 36 hours to 7 days from the time of post-mortem, it cannot be inferred
that death occurred on 1.1.2008 after 12 noon. Had it been so, deceased must have
joined office at 6 a.m. and distributed sweets to his colleagues on account of his
promotion. No evidence has been led by petitioner to prove the facts that deceased
joined office on 1.1.2008 and in such circumstances, it can very well be inferred that
deceased while going to his office on scooter fell in the canal and died.
10.
I do not find any illegality, irregularity or jurisdictional error in the impugned order
and revision petition is liable to be dismissed.

11.
Consequently, revision petition filed by the petitioner is dismissed with no order as
to costs.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
RS/

(Against the order dated 15.07.2011 in
Commission, U.P.)
Appeal
No.1780/1995
of the
State
Dr. L.P. Kulshreshtha S/o A.S.Kulshresht R/o 24, Purani Idgah Colony Agra
....... Petitioner
Versus
Agra Development Authority Through its Vice-Chairman Jaipur House Agra
...Respondent
BEFORE:
For the Petitioner
Mr. Sanjeev Bahadur Srivastava, Advocate
For
the
Respondent
:
Mr. Abhindra Maheshwari, Advocate
Mr. Vishwajit Singh,
Advocate
with

ORDER
Petitioner/Complainant being aggrieved by order dated 15.7.2011, passed (in
First Appeal No.1780 of 1995) by Uttar Pradesh State Consumer Disputes Redressal
Commission, Lucknow (short, State Commission) has filed the present revision
petition under section 21(b) of the Consumer Protection Act, 1986 (short, Act)
2.
Brief facts of the case are that Petitioner had booked an HIG house in the
Church Road Housing Scheme of the Respondent/Opposite Party, by depositing a sum

of Rs.8,000/- on 31.8.1979, but respondent did not commence the said scheme in
time. Upon petitioners submitting an application to the Superintendent Property, he
was told that his registration for a High Income Group House on the Church Road was
existing with Registration No.1752/Bhawan/77, but respondent had not allotted him any
house till now. Since, respondent was allotting houses in the Indrapuram Housing
Scheme at that time, the petitioner submitted an application on 11.5.1988 with a request
to transfer his registration to the IndrapuramScheme, Agra, for which registration
amount was Rs.24,000/-. Therefore, he had deposited a further sum of Rs.17,000/- for
the purpose of transfer. Based on this, respondent informed him about allotment of
house No.10 in Indrapuram Scheme with registration No.17/Bhawan/HIG/77, vide its
letter dated 30.8.1989 and also advised him to deposit Rs.49,300/- towards
installment. In pursuance thereof, petitioner deposited a sum of Rs.49,300/- on
4.10.1989. Thereafter, he had deposited a sum of Rs.1,49,000/- including interest for
delayed payment on 30.11.1990 after obtaining loan from Andhra Bank.
3.
When petitioner visited the site of house No.10, it was found that respondent was
not constructing HIG House No.10. On petitioners lodging a complaint with the
respondent, he was allotted House No.9. As per terms of the respondent, the house
was to be allotted within one year, but it had not done so, whereas it was levying
interest @ 21% per annum for delayed payments. At the time of registration, price of
the house was fixed at Rs.2,74,000/-, but vide letter dated 20.2.1993 of the respondent,
the petitioner was informed that price has at that time become Rs.3,19,623/- and the
allottee should give his consent to the respondent for taking the house at the enhanced
rate. Petitioner had taken loan for payment of the installments on which he was
required to pay interest. Because of failure of the respondent in giving possession of
the house, petitioner had to stay in a rented house. Had he got the house in time, he
would not have been required to pay rent of Rs.1,500/- per month. Therefore, he had no
option but to inform the respondent, vide his letter dated 21.4.1993 that he did not
require the house and that his money be refunded along with interest @ 21%. The
respondent refunded a sum of Rs.2,16,200/- after deducting Rs.8,000/- towards 30% of
the registration money of Rs.25,000/- on 23.12.1993, due to which he has suffered a
loss
of
Rs.8,000/-
on
his
principal
amount. Thus,
petitioner
prayed
for
refund of Rs.4,17,037/- (the entire principal amount) with interest and Rs.50,000/towards mental torture and expenses incurred.
4.
In its written statement, respondent took the plea that due to sufficient land not
being available the Church Road Housing Scheme could not be started. Petitioner did
not give any application for allotment of a house in the Indrapuram Scheme, still he had
deposited the balance registration amount of Rs.17,000/- on 12.5.1989. No interest
was paid on the payments of Rs.49,300/- and Rs.1,49,400/- deposited by him
subsequently. For certain reasons House No.10 could not be constructed in
the Indrapuram Scheme. Therefore, he was allotted house No.9. Estimated price of the
house was informed as Rs.2,74,000/-. Vide letter dated 20.2.1993, petitioner was
informed the actual price of the house as Rs.3,19,623/- and was advised to deposit the
balance amount and take possession thereafter. The petitioner did not take possession
of the house, but demanded the money deposited by him. After deducting 30% of the
registration money as per rules, the balance amount of Rs.2,16,000/- was refunded to
the petitioner. Further, as petitioner did not deposit the installment in time, interest was
charged from him as per rules. The petitioner is not entitled for any other amount
nor he is entitled to receive any interest on the deposited amount. The complaint is not
maintainable and deserves to be dismissed.
5.
District Consumer Disputes Redressal Forum, Agra, vide order dated 5.9.1995,
allowed the complaint and passed the following directions;

The opposite party is directed that it shall pay to the complainant
simple interest @ 15% per annum on the deposited amounts of
Rs.8,000/-, Rs.17,000/-, Rs.49,300/- and Rs.1,49,400/- from the
respective dates of deposit, that is 31.8.1977, 12.5.1989,
4.10.1989 and 30.11.1990 upto 23.12.1993, within 30 days of this
judgment and pay interest on the said interest @ 18% per annum
with effect from 1.1.1994. The opposite party shall also pay a
compensation of Rs.10,000/- within the above period.
In case of non-compliance within time, the compensation of
Rs.10,000/- shall also be included in the payable amount and the
complainant shall be entitled to get interest @ 18% per annum
from the date of the judgment.
6.
Aggrieved by the order of the District Forum, respondent filed an appeal and the
same was allowed.

7.
Hence, this revision petition.
8.
9.
It has been contended by learned counsel for the petitioner that the State
Commission has completely failed to consider this aspect that respondent has
committed the deficiency in service coupled with unfair trade practice by harassing the
petitioner for about 16 years for no fault of the petitioner. Another contention is that the
petitioner has sought refund of the amount due to helplessness and not because of any
choice, since the respondent after taking substantial amount from the petitioner did not
construct the house.
10.
On the other hand, it has been contended by learned counsel for the respondent
that the petitioner itself has requested the respondent on 21.4.1993, for refund of the
money deposited by him and which was ultimately returned to the petitioner after
making necessary deductions as per rules in terms applicable to the Scheme developed
by the respondent.
11.
State Commission in its impugned order observed ;

On a perusal of paragraph-8 of the complaint filed by the
respondent/complainant before the District Forum, Agra, it appears
that the respondent/complainant, vide his letter dated 21.4.1993,
informed that he did not need the house, but wanted refund of the
money with interest @ 21% because the opposite party has
already charged interest @ 21% on the delayed payment from the
allottee. However, the opposite party/Department refunded him
Rs.2,16,200/- after deducting 30% from the registration money of

Rs.25,000/which
works
out
to
Rs.8,000/on
23.12.1993. Because of this complainant/respondent suffered a
loss of about Rs.8,000/- out of his principal amount and also lost
interest. It is the argument of the learned counsel for the
appellant/opposite party that in accordance with the rules and as
per the terms contained in the house allotment scheme, in case
any person himself wants to surrender the allotted house after
registration, then 30% of the registration money would be
deducted. It seems from paragraph-I of the appeal filed by the
Appellant/Opposite Party that on the basis of those rules and
terms, the Appellant/Opposite Party has deducted 30% of the
registration money of Rs.25,000/-, amounting to Rs.7,500/.
Besides, it has been argued by the Appellant/Opposite Party that
in case the registered owner himself wants to surrender the house,
then no interest would be payable on the deposited money in
terms of the said rules and terms and only on the basis of this that
the
Respondent/
Complainant
had
requested
the
Appellant/Opposite Party on 21.4.1993 for refund of the money
deposited by him and it has refunded a sum of Rs.2,16,200/-, after
making necessary deduction as per rules, on 23.12.1993. The
rules and terms applicable to the scheme developed by the
Appellant/Opposite Party are binding on both the parties and the
deduction at the stipulated rate of 30% of the registration money of
the Respondent/Complainant was done by the Appellant/ Opposite
Party under the said rules and terms, which being as per rules the
District Forum, Agra has no power to interfere with. Similarly, if the
Appellant/Opposite Party has not paid any interest on the
deposited money, the same has also been done by it as per the
said scheme and has not been paid under the rules and terms
because the said rules and terms are binding on both
parties. Therefore, the order passed by the District Forum, Agra
on 5.9.1995 directing to pay interest on the deposited money to the
complainant is also against the rules and terms. On the basis of
this, the judgment and order passed by the District Forum, Agra on
5.9.1995 is against law and in the opinion of this Commission,
deserves to be quashed.
12.
The short question which arise for consideration is as to whether petitioner is a
consumer as per provisions of the Act. Petitioner itself had sought for refund of the
amount, vide its letter dated 21.4.1993. It is also an admitted fact that in pursuance of
petitioners request for the refund of the amount, respondent refunded a sum of
Rs.2,16,200/- and the same was received by petitioner on 23.12.1993 without any
protest.
13.
Thus, when petitioner admittedly, had received the amount deposited by it with
the respondent unconditionally, then the petitioner ceases to be a consumer.
14. In Bhagwati Prasad Pawan Kumar Vs. Union of India (2006) 5 Supreme Court
Cases 311, Apex Court has observed;
18.Section 8 of the Contract Act provides for acceptance by
performing conditions of a proposal. In the instant case, the
Railway made an offer to the appellant laying down the conditions
that if the offer was not acceptable the cheque should be returned
forthwith, failing which it would be deemed that the appellant
accepted the offer in full and final satisfaction of its claim. This
was further clarified by providing that the retention of the cheque
and/or encashment thereof will automatically amount to
satisfaction in full and final settlement of the claim. Thus, if the
appellant
accepted
the cheques and encashed themwithout
anything more, it would amount to an acceptance of the offer
made in the letters of the Railways dated 74.1993. The offer
prescribed the mode of acceptance, and by conduct the appellant
must be held to have accepted the offer and, therefore, could not
make a claim later. However, if the appellant had
not encashed the cheques and
protested
to
the
Railways calling upon them to pay the balance amount, and
expressed its inability to accept the chequesremitted to it, the
controversy would have acquired a differed complexion. In that
event, in view of the express non-acceptance of the offer, the
appellant could not be presumed to have accepted the offer.
What, however is significant is that the protest and nonacceptance
must
be
conveyed
before
the cheques areencashed. If the cheques are encashed without
protest, then it must be held that the offer stood unequivocally
accepted. An offeree cannot be permitted to change his mind
after the unequivocal acceptance of the offer.
19. It is well settled that an offer may be accepted by conduct. But
conduct would only amount to acceptance if it is clear that
the offeree did the act with the intention (actual or apparent) of
accepting the offer. The decisions which we have noticed above
also proceed on this principle. Each case must rest on its own
facts. The courts must examine the evidence to find out whether
in the facts and circumstances of the case the conduct of the
offeree was such as amounted to an unequivocal acceptance of
the offer made. If the fact of the case disclose that there was no
reservation in signifying acceptance by conduct, it must follow that
the offer has been accepted by the conduct. On the other hand, if
the evidence discloses that the offeree had reservation in
accepting theoffer, his conduct may not amount to acceptance of
the offer in terms of Section 8 of the Contract Act.
15.
In the present case, there is nothing on record to show that petitioner was
compelled by the respondent at any stage to withdraw the amount deposited by him.
Interestingly, petitioner after having received the sum of Rs.2,16,200/- as early as on

23.12.1993, i.e. more than 21 years ago, had been enjoying the aforesaid amount since
then.
16.
Once petitioner has received the amount unconditionally and had also got the
cheque encashed, under these circumstances, petitioner ceases to be a Consumer as

per the Act. The privity of contract or relationship of consumer and service provider
between the parties if any, came to an end the moment petitioner accepted the refund
unconditionally and also got the cheque encashed.
17. Under section 21 (b) of the Act, this Commission can interfere with the order of
the State Commission where such State Commission has exercised jurisdiction not
vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the
exercise of its jurisdiction illegally or with material irregularity.
18.
There is nothing on record to show that the order passed by State
Commission is erroneous, or there is any illegality in the impugned order. The

present petition being without any legal basis is meritless and same is dismissed
with cost of Rs.5,,000/- (Rupees Five Thousand only).
19.
Petitioner is directed to deposit the costs by way of cross cheque for a sum of
Rs.5,000/- in the name of Consumer Legal Aid Account within four weeks from
today.
20.
In case, petitioner fails to deposit the said cost within the prescribed period,
he shall also be liable to pay interest @ 9% p.a., till realization.

21.
List the matter for compliance on 23.5.2014.
..J
(V.B. GUPTA)
(PRESIDING MEMBER)
....
(REKHA GUPTA)
(MEMBER)
sg/

(From the order dated 07.04.2008 in Appeal No. 1142/06 of the State Consumer
Disputes Redressal Commission, Delhi)
M/s. Nugas Technologies India Pvt. Ltd. A-21-22, G.T. Karnal Road Indl. Area Azadpur
Delhi 110033
Petitioner/ Opp. Party (OP)
Versus
The Principal Geeta Bal Bharti Varisht Madhyamic Vidyalaya Rajgarh Colony Delhi
110031
Respondent/Complainant

(From the order dated 07.04.2008 in Appeal No. 1146/06 of the State Consumer
Disputes Redressal Commission, Delhi)
M/s. Nugas Technologies India Pvt. Ltd. A-21-22, G.T. Karnal Road Indl. Area Azadpur
Delhi 110033
Petitioner/ Opp. Party (OP)
Versus
The General Secretary M/s. Hindu Shiksha Samiti Nyas Geeta Bal Bharti Campus
Shankara Nagar (Near Rajgarh Colony) Delhi 110031
BEFORE
HONBLE DR. B.C. GUPTA, MEMBER
For the Petitioners : Mr. Vipin Singhania, Advocate
For the Respondents :
Mr. Chaman Sharma, Advocate
PRONOUNCED ON 17th April, 2014

ORDER
Both these revision petitions arise out of the common order of State Commission;
hence, decided by common order.
These revision petitions have been filed by the petitioners against the order
dated 07.04.2008 passed by the State Consumer Disputes RedressalCommission,
Delhi
(in
short,
the
M/s. Nugas Technologies
State
Commission)
India
Pvt.
in
Appeal
Ltd.
No.
1142/2006
Vs.
The
Principal Geeta Bal BhartiVarisht Madhyamic Vidyalaya and in Appeal No. 1146/2006
M/s. Nugas Technologies India Pvt. Ltd. Vs. M/s. Hindu Shiksha Samiti Nyas by which,
while allowing appeal, order of District Forum dismissing complaint was set aside.
2.
Brief facts of the case are that complainants/respondents deposited a sum of
Rs.25,000/- for converting buses into CNG as booking amount with the Petitioners/OPs,
who was engaged in the business of converting buses into CNG out of which,
Rs.5,000/- was security amount and Rs.20,000/- was as advance money. From the
newspaper, complainant came to know that CNG fitted buses are not working properly;
so, complainants changed their mind and decided to purchase new buses fitted with
CNG kit from the Company itself and asked the OPs to refund the amount. As OPs did
not refund the amount, alleging deficiency on the part of OPs, complainants filed
complaints before District Forum. OPs contested and submitted that complainants do
not fall within the purview of consumer and amount deposited for CNG kit was nonrefundable and prayed for dismissal of complaint. Learned District Forum after hearing
both the parties, dismissed complaints against which, appeals filed by the complainants
were allowed by learned State Commission vide impugned order against which, these
revision petitions have been filed.
3.
Heard leaned Counsel for the parties and perused record.
4.
Learned Counsel for petitioners submitted that there was neither any deficiency in
the service, nor defects in the goods and amount paid as booking amount was nonrefundable and order passed by learned District Forum was in accordance with law, but
learned State Commission committed error in allowing appeal; hence, revision petitions
be allowed and impugned order be set aside. On the other hand, learned counsel for
the respondents submitted that order passed by learned State Commission is in
accordance with law; hence, revision petitions be dismissed.
5.
Perusal of record clearly reveals that complainants deposited Rs.25,000/- as
booking amount for CNG conversion of the vehicle. In the complaint, complainants have
mentioned that Rs.5,000/- was deposited as security amount and Rs.20,000/- as
advance amount which is contrary to the fact mentioned in the receipt and in such
circumstances, it cannot be believed that Rs.5,000/- were deposited as security amount

and Rs.20,000/- as advance money, but it can be inferred that total Rs.25,000/- were
deposited as booking amount for CNG conversion of the bus. As per note in the receipt
this booking amount was non-refundable. In such circumstances, if complainants
decided not to get their buses converted into CNG kit, they were apparently not entitled
to get refund of the aforesaid amount.
6.
Paragraph 7 of the impugned order on which basis appeal has been allowed runs
as under:
Any term of the contract which is unconscionable is
void abinitio and not actionable. No service provider can forfeit the
consideration received by it unless it has provided the service or
the consumer has availed the service and therefore the reference in
the booking receipt that this amount was not refundable was
unconscionable.
Perusal of aforesaid paragraph reveals that contract being unconscionable was
held abinitio void, which is contrary to law. This Commission in I (1996) CPJ 37 (NC)
Homoeopathic
Medical
College
and
Hospital,
Chandigarh Vs. Miss Gunita Virk observed as under:

We do not think it necessary to go into the question whether the
rule in the prospectus about the non-refund of fee is
unconscionable or not, in detail. Suffice it to say that FORA
constituted under the Consumer Protection Act have no jurisdiction
to declare any rule in the prospectus of any institution as
unconscionable or illegal. It is for the Civil Court to determine this
point. If a student/students apply for admission and deposit the
fees and later on do not want to join the course, then the seat/seats
so vacated will remain vacant throughout the academic year. In
such circumstances it will become very difficult for any institution to
run in a proper manner.
7.
In T.V. Sundaram Iyengar &
Sons
Ltd. Vs. Dr. Muthuswamy Duraiswamy & Anr. reported in II (2003) CPJ 176 (NC),
this Commission in paragraph 11 of the order observed as under:
11. xxx One thing has to be kept in mind and that is that we
cannot go against the terms of contract between the parties
unless of course, the terms are illegal and the contract
void. It has not been suggested before us that the terms and
conditions stipulated in the application form are in any way is
illegal. Some of the conditions may appeal to be
unreasonable but that would not make contract void or even
voidable xxx.
Perusal of aforesaid judgements clearly reveals that Consumer Fora has no jurisdiction
to go beyond the terms of the contract between the parties and cannot hold the
contract abinitio void,
being
unconscionable. As
amount
was
non-refundable,
petitioners have not committed any deficiency in not refunding amount when
respondents changed their mind and did not send their buses for fitting CNG kits in the
buses.
8.
Complainants deposited aforesaid amount with the OPs on 29.3.2001, whereas
complaints have been filed in December, 2004 meaning thereby, complaints have been
filed after 3 years 9 months, whereas as per provisions of Section 24A, C.P. Act,
complaint was to be filed within a period of 2 years. No application under Section 24-A
has been filed by the complainant before District forum and as complaint is time barred,
learned District Forum rightly dismissed the complaint and learned State Commission
committed error in allowing appeal and complaint.
9.
In the light of above discussion, we are of the view that complaint filed by the
complainant was time barred and OP has not committed any deficiency in not refunding
the amount as per terms and conditions of receipt and learned State Commission
committed error in allowing appeal and complaint and impugned order is liable to be set
aside.
10.
Consequently, revision petitions filed by the petitioners are allowed and impugned
order dated 07.04.2008 passed by learned State Commission in Appeal No. 1142/2006
M/s. Nugas Technologies
India Pvt. Ltd.
Vs.
The
Principal
Geeta
Bal
Bharti
Varisht Madhyamic Vidyalaya and in Appeal No. 1146/2006 M/s. Nugas Technologies
India Pvt. Ltd. Vs. M/s. Hindu Shiksha Samiti Nyas are set aside and order of District
Forum dismissing complaints are affirmed.
Sd/-
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

(From the order dated 19.11.2013 in Appeal No. 211 of 2013 of the H.P. State
Consumer Disputes Redressal Commission, Shimla)
With IA/1422/2014 IA/1423/2014 (Stay, Condonation of Delay)
Ramesh Chauhan S/o Sh. Rai Singh R/o Chauhan Cottage, Inder Nagar, Dhalli, Shimla
12.
Petitioner/Complainant
Versus
Sh. Mohinder Singh Kanwar S/o Sh. Bhawani Singh R/o Kanwar Niwas, Shiv Puri,
Dhalli, Shimal 12
Respondent/ Opp. Parties (OP)
BEFORE
For the Petitioner
Mr. Virender Tarun, Advocate

ORDER
This revision petition has been filed by the petitioner against the order dated
19.11.2013 passed by the H.P. State Consumer Disputes RedressalCommission,
Shimla (in short, the State Commission) in Appeal No. 211 of 2013
Ramesh Chauhan Vs. Mohinder Singh Kanwar by which, while dismissing appeal, order
of District Forum dismissing complaint was upheld.
2.
Brief facts of the case are that complainant/petitioner filed a civil suit in the Court
of Civil Judge at Shimla in the year 2006 and engaged OP/respondent as an Advocate
and paid Rs.10,000/- as fees. OP committed various acts of deficiency in service while
pursuing his suit and in such circumstances, complainant engaged another Counsel in
the year 2008. It was further alleged that OP tried to get the suit compromised without
his consent, did not place on record all the documents, did not appear in the Court and
refused to issue NOC for engaging another Counsel. Alleging deficiency on the part of
OP, complainant filed complaint before District forum. OP resisted complaint and
submitted that he was paid only Rs.500/- and when demanded balance fees,
complainant asked him to return the brief on false accusations. He denied all the
accusations and prayed for dismissal of complaint. Learned District Forum after hearing
both the parties dismissed complaint. Petitioner filed appeal before State Commission,
which was dismissed by learned State Commission vide impugned order against which,
this revision petition has been filed along with application for condonation of delay.
3.
Heard leaned Counsel for the petitioner at admission stage and perused record.
4.
As there is delay of only 8 days in filing revision petition, the delay is condoned for
the reasons mentioned in the application.

5.
Learned Counsel for the petitioner submitted that inspite of proof of deficiency on
the part of OP, learned District Forum committed error in dismissing complaint and
learned State Commission further committed error in dismissing appeal; hence, revision
petition be admitted.
6.
Perusal of learned State Commissions order clearly reveals that as per
authorization in the Power of Attorney respondent was authorized to compromise the

suit without consent of the petitioner and further observed that suit was not
compromised. As regards non submission of certain documents, learned State
Commission rightly observed that all the documents supplied by the complainant were
submitted by OP before the Court. As far appearance on 5.8.2008 is concerned,
complainant himself appeared before the Civil Judge and sought time for engaging a
new Counsel. In such circumstances, it was not obligatory on the part OP to appear
before Civil Judge on 5.8.2008.
7.
As far not granting NOC for engaging Counsel is concerned, learned State
Commission observed that new Counsel appeared on behalf of the complainant on

8.8.2008 which makes it abundantly clear that OP had no objection in engaging new
Counsel by the Complainant. As far taking brief of defendant of aforesaid Civil Suit in
another money suit, OP had every right to appear on behalf of defendant in another suit
after ceasing to be Advocate of the complainant and learned State Commission rightly
dismissed appeal.
8.
Petitioner has filed this revision petition without any basis just to waste time of this
Commission and with an intention to harass respondent. We deem it proper to dismiss

revision petition with cost.
9.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage with cost of Rs.5,000/- to be deposited by the petitioner within 4 weeks with the
Consumer Legal Aid account of this Commission by way of Demand Draft payable at
New Delhi.
10.
If petitioner fails to deposit the aforesaid cost within the prescribed period then the
District Forum, Shimla is directed to recover the cost from the petitioner in accordance
with provisions of law and send its compliance report within four weeks, thereafter.
.Sd/-
PRESIDING MEMBER
...Sd/-
( DR. B.C. GUPTA )
MEMBER
k

(From the order dated 28.03.2012 in Appeal No. 338/2012 of the Haryana State
Consumer Disputes Redressal Commission, Panchkula)
Smt. Resham Devi W/o Late Sh. Karam Chand Jain M/s. Vardhman Medical Hall,
Old Anaj Mandi, Gohana
Versus
1. The New India Assurance Co. Ltd. Through its Manager Above Eicher Tractor Agency
Delhi Rohtak Road, Bahadurgarh Distt. Jhajjar
2. National Federation of the Blind Administrative Office NFB Library and Braille Press,
Delhi Rohtak Road, Bahadurgarh
Respondents/Opp. Parties (OP)
BEFORE
For the Petitioner
:Mr. Ajay Jain, Advocate
For the Res. No.1
:Mr. Abhishek Kumar, Advocate
For the Res. No. 2
:NEMO/Ex-parte
ORDER
28.03.2012
passed
by
the
Haryana
State
Consumer
Disputes RedressalCommission, Panchkula (in short, the State Commission) in Appeal

No.338 of 2012 Smt. Resham Devi Vs. The New India Ass. Co. Ltd. & Anr. by which,
while dismissing appeal, order of District Forum allowing complaint partly was upheld.
2.
Brief facts of the case are that Karam Chand husband of complainant-petitioner
purchased 16 insurance policies from OP No. 1/Respondent No.1through OP No.

2/Respondent No. 2 for a sum of Rs.1,00,000/- each for a period of one year from
18.6.2002 to 17.6.2003 and benefits were payable as mentioned in paragraphs 3 of the
complaint. On 30.3.2003, Karam Chand fell down from stair case and sustained injuries
and was taken to Janta Charitable Hospital from where he was referred to
Maharaja Agrasain Hospital on 31.3.2003 and he expired on 2.4.2003. Claim was filed
by the complainant for the amount of 16 policies and Rs.50,000/- as expenses incurred
in treatment. OP has not paid amount so far. Alleging deficiency on the part of OP,
complainant filed complaint before District forum. OP No. 1 resisted complaint and
submitted that claim was not yet rejected and it was pre-mature complaint. It was
further submitted that one person could have been given only one policy and in such
circumstances, OP was liable only for Rs.1,00,000/- subject to accidental death and
genuine claim. It was further submitted that complaint was liable to be dismissed for
non-joinder of necessary parties. Also alleged that subsequent policies taken after first
policy are null and void and prayed for dismissal of complaint. .
OP No. 2 did not
appear before District Forum and was proceeded ex-parte. Learned District Forum after
hearing both the parties allowed complaint partly and directed OP No. 1 to pay
Rs.1,00,000/- along with 10% p.a. interest and also awarded Rs.2,000/- as litigation
expenses. 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 Respondent No. 2 even after service and he was
proceeded exparte.
4.
Heard learned Counsel for the petitioner and Respondent No.1 and perused
record.
5.
Learned Counsel for the petitioner submitted that as terms and conditions of the
policy were not supplied to the assured, complainant was entitled to claim benefit of all
the 16 polices and Learned District Forum committed error in allowing complaint only to
the extent of one policy 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 has not
placed on record original cover notes/policy issued by Respondent no. 1 and order
passed by learned State Commission is in accordance with law; hence, revision petition
be dismissed.
6.
It is admitted case of the complainant that complainants husband purchased 16
polices and as per allegations in the complaint, assured Karam Chand fell down from
stair case and sustained injuries and ultimately succumbed to death. Perusal of policies
placed on record issued by OP No. 2 clearly mentions salient features of Group J.P.A.
policy, which runs as under:
The Policy Grant Benefits enumerated hereunder if the Insured
person (s) sustain any bodily injury resulting solely and directly from
anaccident caused by external, violent and visible means, including
fire, drowning, snacks bite, hit by animals, rail, road and air
accidents etc.
7.
This feature clearly indicates that benefits under this policy are available only
when an accident is caused by external violent and visible means meaning thereby, he
must have died due to visible external injuries caused by someone violently, whereas in
the case in hand, injuries on account of which Karam Chand died, were not caused by
violent means by any third person, but he sustained injuries on account of fall from
stairs. Complainant has neither produced injury report, nor post-mortem report and in its
absence, it cannot be presumed that on account of external violent visible
injuries, Karam Chand died; so, apparently, claimant was not entitled to receive benefits
of any policy.
8.
Complainant has placed on record certificates of policies issued by OP No. 2 in
favour of Karam Chand. Complainant has not placed on record any cover notes issued
by OP No. 1 or issued by OP No. 2 in the name of OP no. 1 in favour
of Karam Chand. Complainant has not placed any receipts depositing amount of 16
policies with OP No. 1 and in absence of all these documents, no liability can be
fastened on OP No. 1. OP No. 1 has not challenged order allowing complaint partly
against him.
9.
Learned Counsel for the petitioner submitted that terms and conditions of policies
were not supplied to insured during his life time and in such circumstances, insured was
not bound by terms and conditions of the polices regarding issuance of only one policy
to one person. He placed reliance on (2000) 2 SCC 734 Modern Insulators Ltd.
Vs. Oriental Insurance Co. Ltd. in which it was held that it is the duty of the insurance
company and its agent to disclose all material facts in their knowledge to the insured.
We agree with the proposition of law laid down in aforesaid judgment, but this citation is
not applicable to the facts and circumstances of this case. Learned District Forum
observed in its order that terms and conditions of policy were made known to OP No. 2
through letters Ex. R-30, 31 and 32 well before purchasing of the policy by the life
assured. Complainant nowhere in the complaint has pleaded that terms and conditions
of the policy were not supplied to assured. In such circumstances, it cannot be

presumed that assured was not made aware of the terms and conditions of the policy by
OP No. 2 acting as an agent of OP No. 1. As per Section 227, Indian Contract Act, OP
No. 1 being principal is not bound by the acts of agent OP No. 2 when OP NO. 2
exceeded its authority in issuing 16 policies to the assured Karam Chand, whereas only
one policy could have been issued.
10.
We do not find any illegality, irregularity or jurisdictional error in the impugned
order and revision petition is liable to be dismissed.
11.
to costs.
Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

(From the order dated 27.09.2011 in First Appeal No. 2599 of 2006 of the Maharashtra
State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad)
Mr. Ismail Khan Amir Khan R/o- Chandani Chowk, At post Sawada Tal-Raver, And
District Jalgaon (Maharashtra)
National Insurance Co. Ltd.
District Jalgaon (Maharashtra)
Versus
Saibaba Market, IInd Floor,
At
post Jalgaon,
Respondent-Opposite Party
BEFORE:
HON'BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBER
HONBLE DR. B. C. GUPTA, MEMBER
For the Petitioner

For the Respondent
: Mr. Vikas Nautiyal, Advocate (Amicus Curiae)

: Mr. Yogesh Malhotra, Advocate
PRONOUNCED ON : 17th
ORDER
APRIL 2014
PER JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER

27.09.2011, passed by the State Commission in First Appeal No. 2599 of
2006, National Insurance Company Limited vs. Ismail Khan Amir Khan, vide which,
while allowing appeal partly, order of the District Forum allowing complaint was
modified.
2.
The brief facts of the case are that complainant/petitioner, owner of matador MH
19S 1758 was insured by opposite party/respondent for a period of one year from
28.01.2005 to 27.01.2006. On 26.06.2005, matador met with an accident and turned
down besides roads and smashed. Report was lodged with the police and intimation
was given to the opposite party. Opposite party appointed surveyor, who inspected
vehicle at the spot and assessed loss. Complainant submitted estimate given
by Ujjwal Auto Pvt. Ltd. for Rs. 5,61,098/- and submitted claim to the opposite
party. The opposite party did not settle claim. Alleging deficiency on the part of the
opposite party, complainant filed complaint before the District Forum. The opposite
party resisted complaint and submitted that complainant did not submit necessary
documents for assessing loss, so claim was not settled and prayed for dismissal of
complaint as premature. The District Forum, after hearing both the parties, allowed the
complaint and directed the opposite party to pay Rs. 4,50,000/- with interest and further
allowed Rs. 2,000/- for mental agony. The opposite party filed appeal and the State
Commission, vide impugned order, allowed appeal partly and reduced compensation
from
Rs. 4,50,000/- to Rs. 1,84,575/-, 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 on account of total loss of the
vehicle, the District Forum rightly allowed compensation, but the State Commission
committed error in reducing compensation, hence revision petition be allowed and
impugned order be set aside. On the other hand, learned counsel for the respondent
submitted that total loss was not pleaded in the complaint and order passed by the
State Commission is in accordance with law, hence revision petition be dismissed.
5.
It is not disputed that complainants vehicle was insured by opposite party and
vehicle met with an accident and damages were caused to the vehicle. As far total loss
of the vehicle is concerned, complainant has not pleaded in the complaint that it was the
case of total loss and in such circumstances, total loss of the vehicle can not be inferred
and the District Forum committed error in allowing Rs. 4,50,000/- on the basis of total
loss.
6.
Perusal of spot survey and surveyors report reveals some discrepancies. In the
spot survey, front axle beam has been shown as distorted, whereas in survey report
front axle beam is shown to have been unaffected. As per estimate Rs. 11,964/- has
been claimed for its repairs. In the same way in spot survey, both shock absorbers
have been shown to have smashed, but surveyor has disallowed shock absorbers
repair cost Rs. 2,769/-. In the same way, as per the spot survey, both side U clamps
and central bolts were twisted, but Rs. 74/- was disallowed. In spot survey, it has been
shown that steering wheel was bent, steering column was distorted, steering linkages
were pulled, but in surveyors report, Rs. 150 for steering gear box has been
disallowed. In the same way, in surveyors report some items mentioned at serial no. 40
to 45 have been kept open as vehicle was not dismantled, though surveyor has
mentioned that these items rather seems to be unaffected. Without opening vehicle and
these assembly items, surveyor rightly did not assess loss, but it can be presumed that
some loss must have been caused to these items. In such circumstances, it would be
appropriate to allow Rs. 50,000/- in addition to amount awarded by the State
Commission, which will meet expenses to be incurred on repairs and replacement of
parts, which have not been dismantled and surveyor have kept them open for
assessment.
7.
Learned counsel for the petitioner placed reliance on IV (2013) CPJ 116
(NC) Vir Singh Malik (Dr.) vs. Oriental Insurance Co. Ltd. and IV (2013) CPJ 154 (NC)
Vijay Singh Tomar vs. National Insurance Co. Ltd., but these citations have no
relevance with the facts of this case.
8.
In the light of above discussions, revision petition is partly allowed and order dated
27.09.2011, passed by the State Commission in appeal no. 2599/2006, National

Insurance Company Limited vs. Ismail Khan Amir Khan is partly modified and
respondent is directed to pay Rs. 50,000/- in addition to amount of Rs. 1,84,575/-,
awarded by the State Commission, as per surveyor report, with no order as to costs.
..J
(K. S. CHAUDHARI)
PRESIDING MEMBER
..
(DR. B.C. GUPTA)
MEMBER
PSM

(From the order dated 22.05.2008 in Appeal No. 1357/2007 of the Karnataka State
Consumer Disputes Redressal Commission, Bangalore)
The Commissioner, City Corporation, Belgaum, Karnataka
Petitioner/Opp. Party (OP)
Versus
Sri Namadev Krishna Hiremani R/o B-3/7, Telecom Staff Quarters, Mahantesh Nagar,
Belgaum, Karnataka
BEFORE
For the Petitioner
: Ms. Aparna Mattoo, Advocate
For the Respondent : Mr. Ashok Kumar Sharma, Advocate
PRONOUNCED ON 21st April, 2014
ORDER
22.05.2008 passed by the Karnataka State Consumer Disputes RedressalCommission,
Bangalore (in short, the State Commission) in Appeal No. 1357 of 2007 The
Commissioner, City Corporation Vs. Sri Namadev KrishnaHiremani by which, while
dismissing appeal, order of District Forum allowing complaint was upheld.
2.
Brief facts of the case are that complainant/respondent applied for a site
developed by OP/petitioner and deposited Rs.1,10,244/- by the end of 1999.Inspite of

several requests, possession of site was not given to the complainant. Alleging
deficiency
on
the
part
of
OP, complainant
filed
complaint
before
District
forum. OP/petitioner resisted complaint and submitted that site allotted to the
complainant was not approved by the Government of Karnataka vide letter dated
7.9.2004. Intimation was given to the complainant vide letter dated 27.9.2006. It was
further submitted that OP issued letter to receive refund of the amount and prayed for
dismissal of complaint. Learned District Forum after hearing both the parties allowed
complaint and directed OP to deliver possession of plot and execute sale deed and
further awarded Rs.2,000/- as compensation and Rs.1000/- as costs. Appeal filed by the
petitioner was dismissed by learned State Commission vide impugned order against
which, this revision petition has been filed along with application for condonation of
delay.
3.
Heard learned Counsel for the petitioner on application for condonation of delay
and perused record.

4.
Petitioner submitted in the application that against the order dated 22.5.2008, a
writ was filed before the Honble High Court of Karnataka and Honble High Court vide
order dated 30.5.2011 disposed of writ petition with liberty to approach National
Commission. It was further submitted that copy of the order was received on 28.6.2011
and opinion was sought from panel Advocates who opined to allot some alternate site.
Complainant declined to take alternate site in August, 2012 and after that opinion was
sought from the Office of the Advocate General on 17.9.2012 and this revision petition
was filed on 2.11.2012, hence, delay in filing revision petition be condoned.
5.
Learned Counsel for the petitioner submitted that as delay occurred due to filing
writ petition before the High Court and seeking opinion from penal Advocates, delay in
filing revision petition be condoned.
6.
Perusal of record reveals that in the application for condonation of delay it has not
been mentioned that how many days delay is to be condoned. As per office report, there
is delay of 1535 days in filing revision petition. As writ filed by the petitioner was
dismissed by Honble High Court of Karnataka vide order dated 30.5.2011, delay in filing
revision petition upto 30.5.2011 can be condoned. We do not find any satisfactory
explanation from 31.5.2011 to 2.11.2012, meaning thereby, there is no satisfactory
explanation for delay of 17 months. No document has been placed on record that
complainant was offered alternate site and he refused to take that site in August, 2012
and in such circumstances, it cannot be inferred that any alternative site was offered to
the complainant towhich he declined in August, 2012.
7.
As there is inordinate delay of 17 months, this delay cannot be condoned in the
light of the following judgment passed by the Honble Apex Court.

8.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed;

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
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.
9.
In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009
(2)
Scale
108, it
has been
observed:
10.
Honble Supreme Court after exhaustively considering the case law on the
aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd.

Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as
under;
We have considered the respective submissions. The
law of limitation is founded on public policy. The legislature
does not prescribe limitation with the object of destroying the
rights of the parties but to ensure that they do not resort
to dilatory tactics and seek remedy without delay. The idea
is that every legal remedy must be kept alive for a period
fixed by the legislature. To put it differently, the law of
limitation prescribes a period within which legal remedy can
be availed for redress of the legal injury. At the same time,
the courts are bestowed with the power to condone the
delay, if sufficient cause is shown for not availing the remedy
within the stipulated time.
11.
Honble Apex
Court
in
2012
(2)
CPC
(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.
12.
Honble Apex Court in (2012) 3 SCC 563 Post Master General & Ors. Vs. Living
Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government
department and further observed that condonation of delay is an exception and should
not be used as an anticipated benefit for the Government departments.
Thus, it becomes clear that there is no reasonable explanation at all for condonation of
inordinate delay of 17 months. In such circumstances, application forcondonation of
delay is to be dismissed.
13.
As application for condonation of delay has been dismissed, the revision petition
filed by the petitioner is dismissed as barred by limitation at admission stage with no

order as to costs.
Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

(From the order dated 22.07.2011 in Appeal No. 233/2009 of the A.P. State Consumer
Disputes Redressal Commission, Circuit Bench at Visakhapatnam)
Emani Sharada Devi W/o Sh. E.S.R. Sai R/o 201, Sector-10,H.B.Colony, Faridabad,
Haryana Rep by her Agent E.S.R. Sai S/o E.V. Sarma, R/o 201, Sector 10 H.B. Colony,
Faridabad Haryana
Versus
G.V.R. Murthy, Proprietor Gayatri Constructions,
Narasimha Nagar, Visakhapatnam
45-57-14/3,
Near Rythu Bazar,
Respondent/Opp. Party (OP)

BEFORE
For the Petitioner
: M. G.L.N. Murthy, Advocate
For the Respondent : Mr. K. Maruthi Rao, Advocate
ORDER
22.07.2011 passed by the A.P. State Consumer Disputes RedressalCommission, Circuit
Bench at Vishakhapatnam (in short, the State Commission) in Appeal No. 233 of 2009
Emani Sharada Devi Vs. G.V.R. Murthy by which, while dismissing appeal, order of
District Forum dismissing complaint was upheld.
2.
Brief facts of the case are that complainant/petitioner entered into an agreement
for purchase of apartment from OP/respondent and paid Rs.45,000/- on 7.1.2005 and
later on paid some more amount in installments totaling Rs.5,05,000/-. OP executed
agreement on 7.1.2005 representing himself as power of attorney holder of Mr. A.S.
Raja and further agreed to execute sale deed in respect of undivided share of land to
the extent of 35 sq. yds. and further agreed to deliver possession of apartment in May,
2005. Neither construction was completed nor sale deed was executed and OP
demanded Rs.1800/- per sq. ft .instead of agreed Rs.1035/- per sq. ft. Alleging
deficiency on the part of OP, complainant filed complaint before District Forum. OP
resisted complaint, denied execution of sale agreement and further submitted that
agreement dated 7.1.2005 was construction agreement. Complainant has neither
impleaded
A.S.
Raja,
nor
filed
sale
deed
and
prayed
for
dismissal
of
complaint. Learned District Forum after hearing both the parties dismissed complaint
and directed complainant to approach competent Civil Court. 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 finally at admission stage and perused
record.
4.
Learned Counsel for the petitioner submitted that inspite of proof of agreement
dated 7.1.2005 and payment of construction cost, learned District Forum committed
error in dismissing complaint and learned State Commission further committed error in
dismissing appeal; hence, revision petition be allowed and impugned order be set aside.
On the other hand, learned Counsel for the respondent submitted that order passed by
learned State Commission is in accordance with law; hence, revision petition be
dismissed.
5.
Perusal of record clearly reveals that agreement between the complainant and the
OP was executed for construction of apartment and it was not the agreement for sale of
flat. In this agreement, complainant pretended himself to be owner of the area
purchased from A.S. Raja as general power of attorney holder of Y. Krishna Rao who
was necessary party in the complaint. OP in his written statement denied execution of
agreement.
6.
Learned Counsel for the complainant submitted that amount deposited by him with
OP may be refunded but we do not find any such prayer in the complaint and in
absence of such prayer, no such order for refund of money could have been passed by
learned District Forum.
7.
Looking to the denial of the agreement for sale of flat and not impleading
necessary party, learned District Forum rightly dismissed complaint and directed
complainant to approach competent Civil Court for redressal of his grievances, we do
not find any illegality, irregularity or jurisdiction error in the impugned order and revision
petition is liable to be dismissed.
8.
Learned Counsel for the petitioner placed reliance on III (2008) CPJ 48 (SC)
Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. & Anr., but this citation is not
applicable to the facts and circumstances of this case. In the aforesaid judgment,
owner of the land filed complaint against developer, whereas in the present case
complainant has come with a case that OP entered into an agreement to sell flat.
9.
stage with no order as to costs.

Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

(From the order dated 27.11.2013 in Appeal No. 738/2011 of the U.P. State Consumer
Disputes Redressal Commission, Lucknow)
K.K. Chadha S/o Late Sh. V.R. Chadha R/o 122/5, Bhikaji Cama Place, R.K. Puram,
New Delhi -110066
Versus
U.P. Avas Evam Vikas Parishad Through Asst. Housing Commissioner, 16A/601-4,
Vasundhara Yojna Ghaziabad
Respondent/Opp. Party (OP)
BEFORE
For the Petitioner
:Mr. Nishit Agrawal, Advocate
ORDER
27.11.2013 passed by the U.P. State Consumer Disputes Redressal Commission,
Lucknow (in short, the State Commission) in Appeal No. 738 of 2011 U.P. Avas Evam
Vikas Parishad Vs. K.K. Chadha by which, while allowing appeal partly, order of District
Forum allowing complaint was modified.
2.
Brief facts of the case are that complainant/petitioner registered HIG house under
a scheme floated by the OP/respondent by paying Rs.7,000/- on 26.3.1982. Later on,

as per demands of OP, complainant deposited Rs. 8,000/- on 23.11.85 and Rs.35,000/on 21.8.1997 and new registration number was allotted to the complainant, but house
has not been allotted till date. Alleging deficiency on the part of OP, complainant filed
complaint before District Forum. OP resisted complaint and admitted payment but
submitted that all the registrations under the scheme were cancelled and complainant
was informed to get the refund of deposited amount and prayed for dismissal of
complaint. Learned District Forum after hearing both the parties allowed complaint and
directed OP to make payment of aforesaid deposited amount with 10% p.a. interest
from the date of deposit. Appeal filed by the OP was partly allowed by learned State
Commission vide impugned order and interest was reduced from 10% to 6% and it was
further observed that if the amount is not paid within two months, OP will pay interest @
10% p.a. against which, this revision petition has been filed.
3.
Heard learned Counsel for the petitioner at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that District Forum allowed 16% p.a.
interest and learned State Commission committed error in reducing it to 6% p.a.; hence,
revision petition be admitted.
5.
Perusal of record reveals that learned District Forum allowed 10% p.a. interest on
refund of deposited amount and order does not contain grant of 16% p.a. interest.
6.
No doubt, learned State Commission reduced rate of interest from 10% to 6%
p.a., but it further observed that if the amount is not paid within a period of two months,
OP will be liable to pay interest @ 10% p.a. Learned Counsel for the petitioner apprised
that so far deposited amount has not been refunded with interest and almost 4 months
have passed. As two months time granted by State Commission has lapsed, now the
petitioner will be entitled to get interest @ 10% p.a., revision petition has become
infructuous and liable to be dismissed on this count.
7.
stage as having become infructuous with no order as to costs.

Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

FIRST APPEAL NO. 605 OF 2012
(From the order dated 18.05.2012 in S.C. Case No. SC/4/O/2005 of the West Bengal
State Consumer Disputes Redressal Commission, Kolkata)
With IA/7144/2013 (Condonation of delay)
Kesoram Industries Ltd. 9/1, R.N. Mukherjee Road, Kolkata 700001

Appellant/Complainant
Versus
1. Allahabad Bank Red Cross Place Branch, 7, Red Cross Place,
Kolkata 700001
2. The Manager, Allahabad Bank Red Cross Place Branch, 7, Red Cross Place,
Kolkata 700001
3. The Chairman, Allahabad Bank Red Cross Place Branch, 7, Red Cross Place,
Kolkata 700001
Respondents/ Opp. Parties (OP)

(From the order dated 18.05.2012 in S.C. Case No. SC/5/O/2005 of the West Bengal
State Consumer Disputes Redressal Commission, Kolkata)
Kesoram Industries Ltd. 9/1, R.N. Mukherjee Road, Kolkata 700001

Versus
1. Allahabad Bank Red Cross Place Branch, 7, Red Cross Place,
Kolkata 700001
2. The Manager, Allahabad Bank Red Cross Place Branch, 7, Red Cross Place,
Kolkata 700001
3. The Chairman, Allahabad Bank Red Cross Place Branch, 7, Red Cross Place,
Kolkata 700001
Respondents/ Opp. Parties (OP)
BEFORE
For the Appellants in both the cases :
Advocates
For the Respondents in both the cases :
Ms. Asha G. Gutgutia & Mr. Rahul K. Singh,

Mr. Rajesh Kr. Gautam, Advocate
PRONOUNCED ON 22nd April, 2014

ORDER
These appeals have been filed by the appellants against the separate orders
dated
18.05.2012
passed
by
the
West
Bengal
State
Consumer
DisputesRedressal Commission, Kolkata (in short, the State Commission) in S.C. Case
No. SC/4/O/2005 and S.C. Case No. SC/5/O/2005 Kesoram Industries Ltd. Vs.
Allahabad Bank Ltd. by which, complaints were dismissed. As similar point arises in
both the appeals, both the appeals are decided by common order.
2.
Brief facts of the cases are that Complainant/appellant filed separate complaints
before the learned State Commission for seeking compensation of Rs.30,00,000/towards loss/ damage suffered by the complainant on account of adoption of unfair
practice by the OPs-respondents in making certain debit entries in the credit accounts of
the complainant and also alleged deficiency in service in not supplying relevant
documents/statements/unpaid overdue bills in respect of which, debit entries were
made by the OPs. OP/respondents resisted complaints and submitted that neither the
remittance nor the overdue bills were received from upcountry branch/other banks and
as per terms of agreement and relevant Regulations, the Banks were justified in making
debit entries in the cash credit accounts of the complainant to the extent the remittances
were not received. OPs denied any deficiency as well as unfair practice and submitted
that complaints are time barred and not maintainable and prayed for dismissal of
complaint. Learned State Commission dismissed both the complaints by the order
dated 28.11.2008 against which, appeals were filed by the complainant and this
Commission vide order dated 10.11.2012 allowed appeals and matters were remanded
back to the learned State Commission for deciding afresh in the light of
directions. Learned State Commission vide separate impugned orders again dismissed
complaint against which, these appeals have been filed along with application
for condonation of delay.
3.
Heard learned Counsel for the appellant and respondents and perused record.
4.
Appellant along with appeal has filed application for condonation of delay and
submitted that delay of 77-78 days in filing appeal may be condoned, which occurred on
account of consultation with the Advocate and authorized representative of the appellant
was busy in Board meeting and mandatory audit, etc. Respondent in reply submitted
that no sufficient cause has been made out for condoning delay; hence, application may
be dismissed.
5.
Appellant has filed affidavit in support of application and submitted that Counsel
for the appellant fell ill and due to fracture in his right leg could not draft pleadings for a
consideration time. Appellant has given date-wise explanation for condonation of
delay. It appears that delay occurred on account of consultation with the Advocate and
authorized representative of the appellant was busy in mandatory audit as well as in
Board meeting. As the matters are to be remanded back to the learned State
Commission as the State Commission has not disposed the complaints in the light of
this Commissions order dated 10.11.2010 and has not considered objections of
respondents regarding maintainability of complaints and limitation, I deem it appropriate
to condone the delay in filing appeal subject to cost. Hence, application
for condonation of delay is allowed and delay stands condoned subject to deposit of
Rs.10,000/- in each appeal with the Legal Aid Account of this Commission within 4
weeks, failing which, appeals shall stand dismissed as barred by limitation.
6.
On merits, learned Counsel for the appellant submitted that learned State
Commission has not decided complaints in the light of directions given by this
Commission; hence, appeals be allowed and matters be remanded back to the learned
State Commission to decide the complaints in accordance with the directions. On the
other hand, learned Counsel for the respondents submitted that appeals may be
dismissed and if the matters are to be remanded back, specific directions be also given
to the Learned State Commission to decide the issue of limitation and maintainability of
the complaints as per the objections of the respondents.
7.
This Commission while deciding both the appeals by order dated 10.11.2010
observed in paragraphs 9 and 10 of the order as under:

9. Having given our thoughtful consideration to the above
contentions, we are of the view that the complaints have not
received the kind of consideration which it deserved at the hands of
State Commission. It would appear that the State Commission has
not fully adverted to the pleadings of the opposite parties which
according to the complainant contain certain admissions of factual
position and has focused its entire attention to non-compliance of
certain formalities and based on the same has non-suited the
complainant.
10. In these circumstances, we consider it a fit case where the
complaints should be remitted back to the State Commission for
deciding the same afresh in accordance with law, after affording
due opportunities to the parties to make their submissions on all
possible aspects involved in the matter. If the State Commission
considers it necessary that the complainant should answer the
questionnaire served by the opposite parties, the complainants may
be allowed one opportunity to do that.
8.
Perusal of impugned order reveals that learned State Commission has not fully
adverted to the pleadings of the parties and has not considered objections of
respondents regarding limitation and maintainability of the complaints and has simply
referred judgments submitted by the respondents. Learned State Commission ought to

have decided complaints as per the directions given by this Commission and also
should have decided the question of limitation and maintainability of the complaints as
well as whether the complaints were maintainable as transactions were regarding cash
credit facility between the parties.
9.
In such circumstances, it would be appropriate to allow the appeals and remand
the matters back to the learned State Commission to decide the complaints afresh in
the light of directions given by this Commission vide order dated 10.11.2010.
10.
Consequently, appeals filed by the appellant are allowed and impugned order
dated18.05.2012 passed by the State Commission, in S.C. Case No.SC/4/O/2005 and

S.C. Case No. SC/5/O/2005 Kesoram Industries Ltd. Vs. Allahabad Bank Ltd. are set
aside and matters are remanded back to the learned State Commission in the light of
observations made by this Commission in the order dated 10.11.2010 and also consider
the question of limitation and maintainability of the complaints.
11.
Parties are directed to appear before the State Commission on 3.7.2014.
Sd/-
PRESIDING MEMBER
k

(From the order dated 14.02.13 in First Appeal No. FA/12/569 & FA/12/571 of
Chhattisgarh State Consumer Disputes Redressal Commission)
M/s L&T Finance Limited L&T House, N.M. Marg, Ballard Estate, Mumbai 400001 and
its Corporate Office at : The Metropolitan, 8 th Floor, C-25/26, E-Block, Bandra Kurla
Complex, Bandra (East), Mumbai 400051.
... Petitioner/OP
versus
1.
Chova Ram Sahu, s/o Kartik Ram Sahu Village Kherchetti Kal, Tehsil-Saja,
District Durg (C.G.)
2. Rajnandgaon Motor Engineering Works Traffic Tractor Dealer Rajnandgaon (C.G.)
3. Rajnandgaon Motor Engineering Works Branch Bemetara Road, Dhamta, District
Durg (C.G.).

(From the order dated 14.02.13 in First Appeal No. FA/12/569 & FA/12/571 of
Chhattisgarh State Consumer Disputes Redressal Commission)
1.
Rajnandgaon Motor Engineering Works Traffic Tractor Dealer Rajnandgaon (C.G.)
2.
Rajnandgaon Motor Engineering Works Branch Bemetara Road, Dhamta, District

Durg (C.G.).
... Petitioner/OP
versus
1.
Chova Ram Sahu, s/o Kartik Ram Sahu Village Kherchetti Kala, Tehsil-Saja,
District Durg (C.G.)
2. L& T Finance Ltd. Spanco House Plot No. 322, 322/1, B, Esa. Devsi Marg,
Devnagar, Mumbai 400088
Respondents/Complainants
BEFORE
IN RP NO. 1029 / 2013
For Petitioner(s)
Mr. Amit Bajaj, Advocate
For Respondent1
For Respondents2&3
NEMO
Mohd. Anis Ur Rehman, Advocate
IN RP NO. 2029 / 2013

For Petitioner(s)
Mohd. Anis Ur Rehman, Advocate
For Respondent1
For Respondent2
NEMO
Mr. Amit Bajaj, Advocate
PRONOUNCED ON : 22ND APRIL 2014

ORDER
PER DR. B.C. GUPTA, MEMBER
These two revision petitions have been filed under section 21(b) of the Consumer
Chhatisgarh State Consumer Disputes Redressal Commission (for short the State
Commission) in appeals No. FA/12/569, Rajnandgaon Motor Engineering Works & ors.
versus Chova Ram Sahu and FA/12/571, L&T Finance Limited versus Chova Ram
Sahu, vide which, while dismissing both the appeals, order dated 26.03.2011 passed
by the District Consumer Disputes Redressal Forum, allowing the consumer complaint
no. 112/2011, filed by the complainant/respondent no. 1 was upheld. This single order
shall dispose of both these revision petitions and a copy of the same will be placed on
each file.
2.
Brief facts of the case are that the complainant/respondent who is an agriculturist,
for the purpose of purchasing a tractor, contacted OP No. 2, Rajnandgaon Motor

Engineering Works, Dhamta, which is a branch of OP No. 1, Rajnandgaon Motor
Engineering Works, Rajnandgaon. The value of the tractor Tafe Massey Ferguson 7250
was stated to be `5,63,000/-. The tractor was delivered to the complainant by OP No. 2
after he paid a total sum of ` 3,13,000/- in three instalments of ` 10,000/-, ` 40,000/- and
` 2,63,000/-. He was assured by OP No. 2 to get finance for the balance amount of `
2,50,000/- from OP No. 3, L&T Finance Limited. The complainant was also told by OP
No. 2 that the amount deposited by him had been further deposited with OP No. 3 as
down payment/margin money and the receipt will be given by OP No. 3 only. The sale
letter and other documents would also be received through OP No. 3. On 14.01.2010,
he was called by OP No. 2 and his signatures were obtained on the finance
documents. At that time, the representative of OP No. 3 gave him documents for
margin money of ` 3,00,800/- and ` 2,50,000/-. As per these documents, the amount of
` 2,50,000/- was to be paid in 86 monthly instalments and the first instalment was to be
paid on 12.07.2010, but it was assured by OP No. 3 that the instalments will be
collected by a representative of their company from the house of the complainant. On
17.09.2010, a representative of the OP came to collect the first instalment, although the
instalment was due on 12.07.2010. At that time, a sum of ` 30,000/- was available with
the complainant which was received by the representative of OP No. 3 and a receipt
was issued. The said representative told him that the balance amount of ` 14,000/could be paid with the next instalment, due on 12.01.2011. It has been alleged that
before the second instalment became due on 12.01.2011, some 4 to 5 people from OP
No. 3, forcibly took away the tractor in the absence of the complainant on 05.01.2011,
i.e., one week before the due date. The complainant contacted OP No. 2, and he found
the tractor standing on their premises. The OP No.2 told him to deposit ` 2,50,000/- and
take away the tractor. The complainant sent a legal notice dated 12.02.2011,
demanding the vehicle back. However, the same was never returned to him, rather a
notice was sent by OP No. 3 dated 11.02.2011, demanding a sum of ` 51,216/- as due
on 09.02.2011. On telephonic enquiries with the OP No. 3, a sum of ` 90,000/- was
demanded from him. The complainant has also stated that he was made to provide 11
signed blank cheques no. 4341 4351 to OP No. 3 drawn on Bank of Baroda, Main
Road, Saja, although only 8 instalments were to be paid. The complainant filed the
consumer complaint in question, requesting for return of his tractor alongwith the
necessary documents, or in the alternative, to refund a sum of `_3,30,000/- with interest
@12% p.a. and damages of `500/- per day with effect from 5.01.2011 and ` 1 lakh as
compensation and `_10,000/- as litigation expenses.
3.
In their reply before the District Forum to the complaint, OP No. 3, L & T Finance
Limited denied the allegations levelled in the complaint and stated that the complainant
was being requested for payment of instalment since 12.07.2010 itself, which was the
due date for the said payment. However, the first instalment was only partly paid on
17.09.2010, when a sum of ` 30,000/- was given to representative of the company. It
has also been stated that the complainant had failed to follow the terms and conditions
of the agreement. OP No. 3 also denied the receipt of 11 blank cheques by them. They
also denied the allegations that the vehicle was repossessed by their representatives.
4.
In their reply to the complaint, filed before the District Forum, the OP No. 1 & 2,
admitted that the tractor was sold to the complainant for ` 5,63,380/- and the
complainant paid cash amounts of `10,000/-, ` 35,000/- and ` 2,34,610/- but the balance
amount of ` 2,83,770/- was to be taken from the complainant. They also stated that
they had deposited a sum of ` 50,000/- with OP No. 3, on the request of the
complainant.
5.
The District Forum vide their order dated 13.09.2012, decided the complaint in
favour of the complainants and stated that the OPs shall pay an amount of ` 3,43,000/jointly and severally, alongwith an interest @7% p.a. to the complainant from the date of
filing the complaint, i.e., 26.03.2011 till realisation, and also pay an amount of ` 1000/for mental harassment and another ` 1,000/- as cost of litigation. The District Forum
stated that the complainant had paid a sum of ` 3,13,000/- to the OPs and also a sum of
` 30,000/- as part payment of first instalment to OP No. 3 and hence, he was entitled to
receive a sum of ` 3,43,000/-. Two appeals were filed against this order before the
State Commission, one by the dealer Rajnandgaon Motor Engineering Works and
another by L&T Finance Limited and these were decided vide impugned order. The
State Commission upheld the order of the District Forum and dismissed both the
appeals. It is against this order that the present revision petition has been made.
6.
At the time of hearing before us, the learned counsel for petitioner/OP No. 3 in
revision petition no. 1029/2013 vehemently argued that they had never repossessed the
said vehicle, and that the vehicle was not with them. The complainant was required to
repay instalments of loan sanctioned by them for the purchase of tractor and the first
instalment of ` 44,000/- was due on 12.07.2010. However, the complainant had paid
only a sum of ` 30,000/- and that also on 17.09.2010. The petitioner / OP No. 3 had
filed an arbitration case against the complainant, which was decided in favour of the
petitioner. It was, therefore, wrong to say that the petitioner/OP No. 3 was liable to
make payment of the awarded sum to the complainant, jointly and severally alongwith
OP No. 1 & 2. The learned counsel stated that the factum of raising loan of ` 2.5 lakh
by the complainant and its repayments in 8 instalments, out of which the first instalment
was due on 12.07.2010, had been admitted by the complainant in the complaint
itself. In the legal notice sent by the petitioner/OP No. 3 to the complainant on
11.2.2011, similar facts had been stated and it was mentioned that on 09.02.2011, a
sum of ` 51,216/- was due against the complainant under the agreement between the
complainant and petitioner/OP-3. Referring to OP 1 & 2, learned counsel stated that
they were the dealers of the tractor, but the job of petitioner/OP 3 was to provide finance
only.
7.
The learned counsel for petitioner/OP 1 & 2 in RP No. 2129/2013 argued that the
complainant had not levelled any allegation against them regarding the repossession of
the vehicle. The vehicle was not at all with petitioner/OP No. 1 & 2. Referring to the
arbitration proceedings, the learned counsel stated that OP 1 & 2 had not been made
party in the said proceedings.
8.
On behalf of respondent no. 1, written submissions have been placed on record,
giving the factual position about the purchase of tractor and payment of money as
alleged in the complaint, it has been stated that the purchase price of the tractor was `
5,63,000/- including registration and insurance fees. The complainant had been asked
by OP 2 to pay a sum of ` 3,13,000/- and he was assured that the balance amount shall
be raised from OP 3. The tractor was delivered on payment of a sum of ` 3,13,000/- in
3 instalments of ` 10,000/-, ` 40,000/- and ` 2,63,000/- to OP 1 & 2. The complainant
was called to the office of OP 2 and the signatures of the complainant and his father
were obtained on certain papers. A document was also handed over to them, saying
that the margin money was stated to be ` 3,00,880/- and loan amount was ` 2.5 lakh,
payable in eight equal instalments of ` 44,000/- at six months intervals. The balance
amount of ` 12,120/- related to the insurance fee and registration fees. Eleven blank
signed cheques had been taken by OP 3 from the complainant, although only 8
instalments were to be paid. The complainant mentioned that although the vehicle was
delivered to him and money paid, but no document such as the sale letter, registration
certificate, warranty papers, insurance policy, loan sanction letter were handed over to
him. He had also been told by the OPs that the instalments of loan shall be personally
collected from him by a representative of OP 3. The complainant has stated that a
representative of OP 3 came to collect the first instalment of ` 44,000/- on 17.09.2010,
although due date for the same was 12.07.2010. At that time, the complainant had a
sum of ` 30,000/- in hand. The representative of OP 3 was asked to come after 23
days, but he asked him to pay only `_30,000/- and stated that the rest of the money
shall be collected on 12.01.2011, when the second instalment shall become
due. However, one week before the due date of the second instalment, i.e., on
05.01.2011, the representatives of OP-3 took away the vehicle in the absence of the
complainant and the male members of his family. The complainant rushed to OP-2 and
found the tractor parked there. He was told by OP-2 to take the tractor back, after
repaying the loan amount of ` 2,50,000/-. Thereafter, he received a notice dated 11.2.11
from OP-3, demanding a sum of ` 51,216/- as due on 09.02.11. The complainant sent
notice to OP-3 demanding the release of the vehicle or refund of ` 3,43,000/- alongwith
damages and cost. On the failure of the OPs to accede to his demand, the consumer
complaint in question was filed, which was allowed by the District Forum as stated
above. The order of the District Forum was then confirmed by the State Commission in
the appeal filed before them. The complainant/respondent-1 has further stated in his
arguments that OP-1 & OP-2 had categorically admitted in their reply and affidavit that
OP-3 had repossessed the vehicle. The complainant has alleged that there was nexus
between the OPs and hence the complainant was facing undue harassment at their
hands. The orders passed by the State Commission and District Forum should,
therefore, be upheld and the present revision petition should be dismissed.
9.
We have examined the entire material on record and given a thoughtful
consideration to the arguments advanced before us. It is admitted by the parties to the
litigation that the tractor was purchased by the complainant Chova Ram Sahu from OP1 & 2 M/s. Rajnandgaon Motors Engineering Works, for a sum of ` 5,63,000/-. It is also
admitted that a loan of ` 2.5 lakh was raised from OP-3, L&T Finance Limited. A sum of
` 30,000/- was collected as part payment of first instalment of loan on 17.09.2010 by the
representative of OP-3. As per the complainant, he was assured that the balance
amount of the first as well as the second instalment shall be collected on the next due
date, i.e., 12.01.2011. However, just one week before the due date of next instalment,
the vehicle was repossessed. It is interesting to observe that the OPs are shifting the
blame for repossession of the vehicle on each other. In the reply to the revision petition
filed by L&T Finance Limited on 08.10.2003. It has been categorically stated that the
vehicle had been repossessed by the other OPs, i.e., M/s.Rajnandgaon Motor
Engineering Works. On the other hand, OP-1 & 2 have taken the stand that the vehicle
was not repossessed by them. The complainant, however, says that he found the
vehicle parked at the premises of OP 1 & 2 and that he was asked to take the vehicle
back after making a payment of ` 2.5 lakh. The State Commission have also observed
that during the course of arguments before them, OP1&2 took the stand that the tractor
was repossessed by OP-3, whereas OP-3 stated that the tractor was repossessed by
OP 1&2. The State Commission have also observed that in the terms and conditions of
the loan offer letter, including the repayment schedule, it had nowhere been stated that
the financer was authorised to repossess the vehicle. The State Commission confirmed
the order of the District Forum, relying on this argument that the OPs had no authority to
repossess the vehicle. A similar view has already been taken by the National
Commission in First Appeal No. 64/2007, Magma Leasing Ltd. V/s Prasan Mohapatra
decided on 31.05.2011, saying that the repossession of the vehicle without any
justification and without any notice amounted to an act of arbitrariness and deficiency in
service. It may be stated that OP 1 & 2 have also admitted, having taken a sum of ` 2.8
lakh from the complainant, although his stand is that a sum of ` 3.13 lakh was paid to
them.
10.
It is very clear from the above factual position on record that the vehicle was
purchased by the complainant after raising a loan of ` 2.5 lakh from the financer and
after making the necessary payment to the dealers of the vehicle. The amount of first
instalment was also partly paid to the representative of the financer. Just a few days
before the second instalment became due, the vehicle was taken away from
him. Evidently, there was no authorisation to the OPs to repossess the vehicle, as per
the terms and conditions governing grant of loan to him. Moreover, the version of the
complainant is fully supported from the legal notice sent by OP 3 financer to him, in
which it has been stated that a sum of ` 51,216/- was due against him as on
09.02.2011. It is evident, therefore, that this is a case of deficiency in service and
harassment of the consumer at the hands of the OPs. We, therefore, find no justification
to interfere with the well-reasoned orders passed by the District Forum or the State
Commission, by which they have ordered the release of the amount of ` 3,43,000/- paid
by the complainant back to him alongwith an interest @7% p.a. and a meagre sum of `
1000/- each as compensation against mental harassment and litigation cost. The
present revision petitions are, therefore, ordered to be dismissed and the orders passed
by the State Commission and District Forum are upheld. 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 06.12.2011 in First Appeal No. 1162/2010 of Haryana State
Consumer Disputes Redressal Commission)
1. The Managing Director, Army Welfare Housing Organisation (AWHO), Kashmir
House, Rajaji Marg, New Delhi 110011.
2. Col. Satish Kumar (Retd.) Project Director, Army Welfare Housing Organisation
(AWHO), Sector 20, Panchkula (Haryana)
... Petitioners/OPs
Versus
Raj Kumar Dhingra s/o Shri Lal Chand Dhingra House No. 397, Sector 47, Gurgaon122001 (Haryana)
BEFORE
For the Petitioner(s)
Mr. A.K. Tewari, Advocate
For the Respondent
In person
PRONOUNCED ON : 22nd APRIL 2014

ORDER
Haryana State Consumer Disputes Redressal Commission (for short the State
Commission) in FA No. 1162/2010, Managing Director, Army Welfare Housing
Organisation (AWHO) versus Raj Kumar Dhingra vide which, while dismissing appeal,
the order dated 14.06.2010, passed by the District Consumer Disputes Redressal
Forum, Panchkula, allowing the consumer complaint no. 224/2009, was upheld.
2.
Brief facts of the case are that the petitioner/OP is an organisation registered as a
society under the Societies Registration Act, 1860 and its job is to provide dwelling units
(for short DU) to the serving and retired Army Personnel as well as their widows all
over the country on no profit no loss basis. It has been stated that the organisation
does not get any grant from the Central Government or from the Indian Army for
managing its activities. The complainant Raj Kumar Dhingra is a retired subedar from
the Indian Army and he applied for an economy apartment in the annual registration
scheme for getting a DU at Sandeep Vihar, Sector 20, Panchkula on 06.06.2004 by

paying
sum
of
90,500/-. He
was
allotted
registration
no.
EJC/EA/98248/AR/PKL/2004 on 15.06.2004. The cost of the economy apartment was

quoted as ` 12,87,000/-. On receipt of the application, the seniority was to be
determined on the basis of date of bank draft towards payment of registration
fees. Further, according to Rule 58(B) I of the allocation of DUs, 3% DUs in each type
were to be reserved for Army personnel who had either retired within 6 months from the
date of application or those expected to retire within one year from the date of
application. In addition, 3% DUs were reserved for widows. The complainant was
placed at Sl. No. 15 in the list. On 24.10.2005, he was given an option to change his
registration from sector 20, Panchkula to sector 27 Panchkula. It has been stated in the
complaint that on 1.09.2006, one Brig. G.S. Sisodia with registration no. 104727 was
placed at serial no. 1, Lt. Col H R Saini with registration no. 96060 was placed at serial
no. 2, and Major Nagyal with registration no. 98011 was placed at serial no. 3, whereas
the complainant was put at Sl. No. 4. After a couple of months, the complainant was
placed at Serial No. 2, but Brig Sisodia remained at serial no. 1. However, when the
attention of AWHO authorities was drawn to these facts on 21.05.2007, the complainant
was
wait-listed
told
registrant
that
now,
because
he
Brig
Sisodia
was
had
seniormost
since
withdrawn
his
registration. The complainant has alleged that some allotments were made which were
not in accordance with the procedure prescribed. He even had tele-conversation with
the Managing Director of the Organisation and other officers, but in vain. The
complainant then filed the consumer complaint in question dated 20.07.2009 before the
District Forum. In their reply before the District Forum, the petitioners/OP 1 & 2 stated
that after registration on 10.06.2004, the complainant was allotted seniority no. 723 as
per draw of lots held on 09.07.2004. However, the availability for economy
apartments/DUs was only 348. Since the complainant could not be allotted a DU in
sector 20 Scheme, he was given the option to change over to Sector 27 Scheme
alongwith other wait-listed registrants, but the complainant declined to opt for the
same. The petitioners/OPs admitted in their reply that as per the computerised draw,
Brig G.S. Sisodia had been assigned seniority no. 999, Lt. Col. H.R. Saini seniority no.
708, Major Nagyal seniority no. 719 and the complainant Raj Kumar Dhingra, seniority
no. 723. After adjustment of various applicants, the complainant was placed at serial
no. 1 in the said list, but the DU could not be allotted to him due to non-availability in
that scheme.
3.
The District Forum after taking into account the evidence of the parties, directed
the OPs to allot a flat/economy apartment to the complainant in sector 20 or sector 27,
Panchkula or in Sector 114, Mohali within a period of 6 months. The operative portion
of the order of the District Forum in this regard is as follows:With the above said detailed observations and record placed
on file grave deficiency in service on the part of OPs is clearly
established and we hold the same with the following directions
to the OPs to comply the same within a period of six months
from the receipt of this order:-
4.
i)
To allot the flat/Economy apartment to the complainant

within a period of six months in Sandeep Vihar, Sec-20 or
Sec-27, Panchkula failing which the complainant will be
allotted an apartment in their housing project in Sec-114
(Mohali) as per his registration at the same price as well
as on the same terms and conditions as detailed in (Ex.
C-1).
ii)
It is also made clear that complainant will retain his lien as

per his present waitlist seniority on any vacancy that may
arise
in
Sandeep
Vihar Sec-20
or Sec-27
Panchkula. Also that in case the complainant exercises
his right case of vacancy in sec-20/27 he will have to give
up flat allotted to him in sec-114 Mohali.
iii)
To pay Rs.2000/- as compensation for harassment

suffered by the complainant.
An appeal was filed against the order of the District Forum before the State
Commission, which was decided on 06.12.2011, vide which the order passed by the
District Forum was upheld. It has been observed in the order of the State Commission
as follows:10. It is not the case of OPs-appellants that there were
number of registrants with the same date bank draft. How and
under what circumstances the draw was held and under
whose supervision the draw was held has not explained by the
Ops/appellants. Though rules do not prescribe for any
computerized draw, however, even if for the sake of
arguments, it is presumed that draw was held, the Ops have
not disclosed the date of draw, the officer under whose
supervision draw was held, what was the manner of draw
etc. One of the registrants against whom there is a grievance
by the complainant, that Brig. Sisodia who was not even a
member of the scheme till 21.08.2004 while the complainant
had applied and got himself registered in 6.6.2004 and draw
was held on 9.7.2004, was shown high up on the seniority list.
5.
It has further been observed in the order of the State Commission as follows:12. However, surprisingly the OPs vide letter dated
29.06.2009 Ex.C-9 have informed the complainant that out of
556 Dwelling Units situated in Sector 20, Panchkula, all the

dwelling units have been handed over except one, for which
documentary formalities are awaited from the allottee. When
the allotment was made in July 2004, admission by the OPs in
June, 2009 vide their letter Ex.C-9, that one of the allottees of
Dwelling Units has still not been handed over possession for
want of formalities, which as per rule 52 reproduced above
was required to be made upto within 120 days, failing which it
leads to termination of the registration, the non-occupation till
June 2009 again shows that everything was not being done
fairly at the end of OP. Even as against the quota reserved for
widows, the same has also been in excess of quota.
13. Though the organisation was created for the welfare of
serving/retired defence personnel and was expected to act in a
transparent manner, however, the manner in which allotment
have been made by adopting to a system of fixing security
arbitrarily and in violation of allotment rules, presumably with a
view to accommodate their own favourites, everything does
not appear to have been done in a transparent manner. If
enquired into deeply, this may again turn out to be another
scam like Adarsh Society at Bombay. The grievance of the
complainant was not even redressed by Director Marketing,
who happens to be an Army Officer Col. Joy. K. and Managing
Director, Major General S. Narasimhan.
6.
The petitioners as well as respondent have filed their written submissions in
proceedings before this Commission. The oral arguments of the parties were also
heard.
7.
It was stated by the learned counsel for the petitioner at the time of arguments
that the AWHO does not get any grant from the Government and works on no profit no
loss basis. The order of the District Forum duly confirmed by the State Commission by
which the petitioner have been directed to allot an apartment in their house project in
Sector 114 Mohali (in case an apartment at sector 20 or sector 27 was not available) at
the same price and on the same terms and conditions, could not be implemented by
them because the prices at Mohali were much more than those at Panchkula in the
scheme for which the complainant had registered himself. They had explained all the
facts regarding the registration, the determination of seniority and allotment of DUs in
their rejoinder to the reply to the respondent to the revision petition. The petition should,
therefore, be allowed and the consumer complaint be dismissed because there was no
deficiency in service or negligence on the part of the petitioner.
8.
In reply, the respondent/complainant, who argued his case in person stated that
the petitioners had indulged in unfair trade practice while making allotments of DUs in
question and even the persons who were placed later in the seniority list had been
allotted the flats and he had been left out by unfair means. The orders passed by the
lower consumer fora were, therefore, in accordance with law and should be sustained.
9.
consideration to the arguments advanced before us. The petitioners have taken the
main argument that they are a welfare organisation and working on no profit no loss
basis and their projects are developed on self-finance basis from the contribution made
by the allottees towards the cost of DUs and any amenities in the project. As per their
version, the complainant continued to be at wait list no. 1 till the completion of the
project and hence, it had not been possible to allot the DU to him. It has been observed
by the State Commission, however, in their order that it was not clear how and under
what circumstances, the draw of lots was held and under whose supervision such draw
was held. The State Commission also observed that the petitioners had indulged in
fixing seniority arbitrarily and in violation of allotment rules permissible with a view to
accommodate their own favourites. According to the State Commission, there was an
absence of transparency in the whole affair.
10.
From the facts on record, the most glaring example supporting the allegation that
there has been an absence of transparency on the part of the petitioners is the case of
Brig G.S. Sisodia. As per the own version of the petitioners, Brig G.S. Sisodia had been
assigned seniority no. 999, whereas the complainant had been given seniority no. 723
in the list drawn by the petitioner. The date of demand draft submitted by Brig G.S.
Sisodia is 19.10.2005, whereas the date of demand draft in the case of complainant is
06.06.2004. It has not been explained anywhere by the petitioners how Brig. Sisodia
acquired better seniority than the complainant in the list for allotment of such units. In
their reply to the complaint filed in the shape of an affidavit before the District Forum,
Col. K. Joy, Director Marketing (AWHO) stated that the application for deluxe apartment
was received from Brig Sisodia on 24.10.2005. The officer later on shifted his
registration for economy apartment and was then transferred to Dwarka, Delhi and
finally he withdrew his registration. The petitioner/OP have not been thus able to clarify
the manner of determination of seniority and hence, the observations of the State
Commission about lack of transparency and arbitrariness, appear to be correct. From
the material on record, one gets the impression that the petitioner have made the
seniority list in accordance with the ranks of serving officers in the Indian Army, and not
as per rules and regulations governing allotment of such flats/DUs.
11.
The complainant has also alleged that the allotment made by the petitioner to the
widows is also not in accordance with the rules. It is to be verified whether the widows
of the Army personnel were given allotments in accordance with the scheme and
whether they had applied within the prescribed time of two years from the demise of
their husband as laid down in the rules.
12.
In view of the position described above and looking at the entire factual matrix of
the case, it would be appropriate that the entire record concerning the registration,
determination of seniority and allotment of these DUs is called by the State Commission
from the office of the petitioner and then scrutinised to determine whether there has
been irregularity in not accommodating the complainant in the allotment of these
flats/DUs. With these observations, this revision petition is allowed and the matter is
remanded back to the State Commission with the direction that they should call for the
entire record from AWHO and carry out the necessary scrutiny in the presence of the
parties and then determine whether there had been any injustice done to the
complainant on the part of the petitioner/OP. The parties have been directed to appear
before the State Commission on 24.07.2014. There shall be no order as to costs.
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/

(From the order dated 16.11.2012 in First Appeal No. 503/2011 of A.P. State Consumer
1. M/s Country Club (India) Ltd., Corporate Office, Silver Oak, Pent House, 8-2-703,
Amrutha Villey, Road No. 12, Banjara Hills, Hyderabad. Represented by its
Managing Director Sri Y. Rajeev Reddy
2. M/s. Country Club, Silver Oak, Pent House, 8-2-703, Amrutha Villey, Road No. 12,
Banjara Hills, Hyderabad. Represented by its Managing Director
3. Sri Y. Rajeev Reddy Chairman & Managing Director M/s. Country Club (India) Ltd.,
r/o H. No. 6-3-1219, Begumpet, Hyderabad
4. M/s. Amrutha Estate, Road No. 12, Banjara Hills, Hyderabad. Rep. by its Managing
Director
5. Mrs. Y. Manjula Reddy, Promotor : M/s Country Club (India) Ltd. Silver Oak, Pent
House, 8-2-703, Banjara Hills, Hyderabad.
6. Sri. Y. Siddartha Reddy, Promotor : M/s Country Club (India) Ltd. Silver Oak, Pent
7. Sri. Y. Varun Reddy, Promotor : M/s Country Club (India) Ltd. Silver Oak, Pent
8. Mrs. Y. Nikhil Reddy, Promotor : M/s Country Club (India) Ltd. Silver Oak, Pent
... Petitioners/OPs
Versus
Mr. Nirmal Kumar Pandey, s/o Mr. S.B. Pandey, r/o Plot No. 21, Lakshmi Enclave, D.
No. 3-6-158/5, Near Krupa Anand Hall Maredpally, Secunderabad
BEFORE
Mr. Praveen Mahajan, Advocate
For the Respondent
Mr. Rajiv Dalal, Advocate

Mr. Sanjeev Kumar Sharma, AR

ORDER
Protection Act, 1986 against the impugned order dated 16.11.2012 passed by the
Andhra Pradesh State Consumer Disputes Redressal Commission (for short the State
Commission) in FA No. 503/2011, Country Club India Limited & Ors. versus Nirmal
Kumar Pandey, vide which, while dismissing the appeal, the order dated 10.01.2011 in
consumer complaint no. 508/2009, passed by the District Consumer Disputes
Redressal Forum-II, Hyderabad, allowing the said complaint, was upheld.
2.
Brief facts of the case are that the petitioner No. 3/OP No. 3 Sri Y. Rajeev Reddy
is the Chairman and Managing Director of M/s. Country Club (India) Limited,
Hyderabad, Petitioner No. 1. Petitioner No. 2, M/s Country Club is a division of Country
Club (India) Limited. Petitioner No. 5 to 8 are the promotors of the Country Club (India)
Limited, whereas petitioner no. 4 M/s Amrutha Estate, is a partnership firm having
registered office at Hyderabad. The complainant/respondent Nirmal Kumar Pandey
filed the consumer complaint No. 335/2007 before the District Forum, Hyderabad on
10.04.2007 against the petitioners in which it was alleged that the OPs/Petitioners had
formulated a scheme for the sale of certain properties near Yadagirigutta and various
other places in the State of Andha Pradesh and the said sale of the property was linked
to membership of the Country Club. The petitioners activity was being carried in the
name of Country Club or M/s Amrutha Real Estate. In December 2005, the OPs
through their agents, approached the complainant with a brochure, offering sale of plots
in a venture called, Country Kuteeram Ventures at Yadagirigutta, Nalagonda
District. The salient features of the proposed lay-out were explained to the
complainants and it was stated that free membership in their Club will also be conferred
upon the purchase of plots in the said properties. The complainant purchased three
plots no. 328, 329 and 330, admeasuring 150 sq. yards each in the said venture,
Country Kuteeram Refresh, situated at Ramajipet Village, Yadagiri Mandal, Nalagonda
District. The entire sale consideration for the three plots was paid through credit cards
in December 2005 itself. The OPs also stipulated that complainant should deposit `
10,000/- as development / betterment charges, including the registration and
maintenance charges for three years to be paid at the time of registration of plots. It
was assured through letter dated 03.01.2006 from the OPs that the registration shall be
commenced soon. However, despite contacting various officials of the OPs, no action
was taken for registering and delivering the possession of the said plots. The
complainant demanded a sum of ` 20 lakh by way of damages and compensation
including the sale consideration paid by the complainant together with interest @24%
p.a. from the date of the complaint from the OP through the consumer complaint no.
335/2007. Before making the complaint, a legal notice dated 04.12.2006 was also
issued to the OPs. However, on 06.06.2007, the complainant and OP 1 & 2 entered
into a Memo of Understanding (M.O.U.) dated 06.06.2007, vide which the OPs agreed
to register four plots, i.e., 2305, 2306, 2307 and 2308, admeasuring 150 sq. yard each,
situated at Yashwantpur Village, Jangaon Mandal, Warrangal District in lieu of previous
three plots, i.e., 328, 329 and 330. The OPs also paid a sum of ` 1.20 lakh to the
complainants. It was specifically agreed in this MOU dated 06.06.2007 that the project
will be completed and the four plots will be registered within 18 months from
04.05.2007. The complainant also agreed to pay ` 10,000/- for each plot towards
development charges and for registration of plots. The OPs agreed to pay a sum of ` 12
lakh being liquidated damages in case of default in executing the sale-deed as per the
MOU. The complainant then withdrew the consumer complaint no. 335/2007 from the
District Forum. However, the OPs failed to start any development activity in the area
and also did not collect ` 10,000/- as development charges from the complainant. The
complainant then filed another consumer complaint no. 508/2009 dated 23.04.2009
which is the subject matter of the present litigation between the parties.
3.
It has been stated in this complaint that the OPs should be directed to register
four plots 2305, 2306, 2307 and 2308, each admeasuring 150 sq. yard in favour of the
complainant or, alternatively, to pay a sum of ` 12 lakh being the liquidated damages in
terms of MOU dated 06.06.2007, and also to award damages of `_5 lakh for deficiency
in service. In their reply to the complaint, OPs stated that OP No. 1 had established
Clubs in various cities of India and as a membership drive, OP No. 1 published a
scheme inviting the general public to become members in OP No. 1 Club by paying
membership fee and to avail services created by OP No. 1. In the said process, OP No.
1 evolved a scheme to allot land free of cost to each person who intended to become
member of OP No. 1 as incentive. The allotment of plot was never a sale and the
question of collecting sale consideration does not arise. The complainant did not pay `
10,000/- for each plot and further, due to various hurdles faced by the OPs in availing
permission from the local bodies, registration of plots could not be done. The District
Forum after hearing the parties directed the OPs to complete the entire venture named
as Golf Village and also register four plots in the name of the complainants by
collecting an amount of ` 10,000/- per plot or in the alternative, to pay a sum of ` 12 lakh
to the complainants in terms of MOU dated 06.06.2007. The District Forum also
awarded a compensation of ` 25,000/- and litigation cost of ` 5,000/- to the
complainant. An appeal was preferred by the OPs before the State Commission
against this order which was dismissed by impugned order. It is against this order that
the present petition has been made.
4.
At the time of hearing before us, the learned counsel for the petitioners gave a
brief narration about the facts of the case, saying that the earlier complaint no. 335/2007
had been withdrawn by the respondent/complainant, as the matter was settled between
the parties and a MOU dated 06.06.2007 was entered. The second complaint on the
same issue was not maintainable before the Consumer Fora. Moreover, the
complainant is stated to have purchased four plots from the OP and hence he does not
fall within the definition of consumer as the transaction in question is clearly a
commercial one. Learned counsel has drawn our attention to the orders passed by this
Commission in Chilukuri Adarsh versus Ess Ess Vee Construction [as reported in III
(2012) CPJ 315 (NC)] saying that when a consumer has booked more than one unit of
residential premises, it means the booking of said premises for commercial purpose,
and hence the complainant is not a consumer. The learned counsel also referred to
order passed by this Commission in Raj Kumar versus M. G. Motors & Anr. [as
reported in III (2012) CPJ 693 (NC)], saying that the order passed by the Consumer
Fora below was nullity, as they had no jurisdiction to deal with the matter.
5.
In reply, the learned counsel for the complainant stated that the OPs have clearly
shown deficiency in service towards him because they had not even acquired the title of
the property which they wanted to sell to him. He has drawn our attention to the
prospectus issued by the OPs for their scheme, Country Kuteeram. The complainant
had booked three plots after being allured by the Scheme floated by the OPs. Later on,
when they failed to execute the sale-deed, he filed consumer complaint no. 335/2007
and also started criminal proceedings against the OPs, following which they entered into
a MOU with him, and also agreed to give him four plots instead of three. Learned
counsel stated that in their brochure, OPs have described very attractive features for the
project but in reality, no development had taken place at the site. The complainant just
wanted compensation as per terms and conditions of the MOU and he did not want any
plot at this stage. The learned counsel has drawn our attention to the orders passed by
the Honble Apex Court in National Seeds Corporation Ltd. versus M. Madhusudhan
Reddy & Anr. [(2012) 2 SCC 506] saying that the consumer fora had jurisdiction to take
cognisance of the case, as they provided an additional remedy to take care of such
cases as per section 3 of the Consumer Protection Act, 1986.
6.
Learned counsel for the petitioner stated that they had already acquired the land
in question and they were ready to have the registered deeds affected in favour of the
complainant. The land could be given to them on as is where is basis, although they
had not paid the development charges so far.
7.
consideration to the arguments advanced before us. The factual matrix of this case
brings out very clearly that the opposite parties 1 & 4, M/s. Country club (India)
Limited and M/s. Amrutha Estate are engaged in the business of purchasing and selling
the land sites in question in the name of developing country clubs. They have even
published the necessary brochures to allure the prospective customers, copies of which
are on record, as for example, the brochure regarding the scheme, Country Kuteeram
has listed the propelling features of the project as follows:Wonderful landscaping amidst beauty of nature.
Favorite destination for weekend freak outs.
Pleasant place that sooths the senses.
Non-pollutant zone.
Immediate appreciation on investment and no lock-in period.
Running Water Pipelines
Sewer Lines
Fully Developed Landscape
..
Foot path with Curb Stones
Club House
8.
The complainant had booked three plots of 150 sq. yard each 328, 329 and 330
in the said scheme of the OPs in the first instance. However, when the OPs failed to
transfer the said properties, the first complaint was filed and there were also criminal
proceedings between the parties. There was mutual settlement between the parties, as
a result of which the consumer complaint was withdrawn and a memorandum of
understanding was signed on 06.06.2007, according to which 4 plots with numbers
2305, 2306, 2307 and 2308, admeasuring 150 sq. yard each, were to be given to the
complainant at some different place in a different scheme in lieu of 3 plots proposed to
be given earlier. The development charges of `_10,000/- were to be paid for each plot
and the registered deeds were to be executed within 18 months. It has also been
stated that if the OPs failed to transfer the said plots, the complainant shall be entitled to
get ` 12 lakh as damages. When the OPs failed to honour the commitment made in the
MOU dated 06.06.2007, the instant consumer complaint was filed on 23.04.2009. The
relief demanded in this complaint is as follows:Direct the opposite parties to complete the entire venture
named as Golf village and register Plot Nos. 2305, 2306,
2307 and 2308 each totalling to 150 sq. yards totally
admeasuring 600 sq. yards in Sy. No. 103, 107 and 108P
situated at Yeswanthapur Village, Janagaon Mandal, Warangal
District under the name and style of Country club India Ltd., at
Golf (v) in favour of complainant or alternatively to pay a sum
of Rs.12,00,000/- being the liquidated damages in terms of the
Memorandum of Understanding dated 06.06.2007.
9.
The District Forum after taking into account the evidence filed by the parties
allowed relief to the complainant as follows:Point No.3:- In the result, the complaint of the complainant is
allowed in part and we direct the opposite parties to complete
the entire venture named as Golf Village and register plot
Nos. 2305,2306,2307 and 2308 each totaling to 150Sq.yards
totally admeasuring 600Sq.yards in Survey Nos. 103,107 and
108P situated at Yeswanthapur Village, Janagaon Mandal,
Warangal District under the name and style of Country Club
India Ltd., at Golf Village in favour of the complainant by
collecting Rs.10,000/-(Rupees ten thousand only) per each
plot within two months from the date of receipt of this order.
OR
Alternatively the opposite parties are directed to pay a sum of
Rs.12,00,000/-(Rupees twelve lakhs only) being the liquidated
damages in terms of the Memorandum of Understanding dated
06-06-2007. The complainant is also entitled to the
compensation of Rs.25,000/-(Rupees twenty five thousand
only) as against Rs.5,00,000/-(Rupees five lakhs only) claimed
and costs of Rs.5,000/- (Rupees five thousand only). Time for
compliance: Two months from the date of receipt of this order.
10.
It is clear from the order passed by the District Forum that they have provided
two alternatives to the OPs either to get the plots registered by collecting the
development charges or to return a sum of ` 12 lakh to them. This order was upheld by
the State Commission vide impugned order dated 16.11.2012.
11.
Based on the entire facts and circumstances of the case, we fail to find any
illegality, infirmity or jurisdictional error in the said order. During the course of
arguments before us, the learned counsel for the petitioner stated that they were ready
to execute the required registered deeds. It is, therefore, not understood as to why they
have challenged the orders passed by the State Commission and District Forum by way
of revision petition, rather than taking steps to implement the orders passed by the State
Commission and District Forum. Moreover, it is a settled legal proposition that the scope
of revision petition is limited and interference should be called for only when there is a
patent jurisdictional error. In the present case, we do not find any justification that the
petitioners should not implement the orders passed by the Fora below. The revision
petition is, therefore, ordered to be dismissed and the orders passed by the Fora below
are upheld. There shall be no order as to costs.
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/

(From the order dated 14.09.2007 in CC No. C-85/1998 of Delhi State Consumer
1. United India Insurance Co. Ltd. having Registered & Head office at 24, Whites
Road, Chennai 600014. through Chairman & Managing Director
2. United India Insurance Co. Ltd. having Branch Office No. 1 at 2/27, Sarai Julena,
Okhla Road, Opp. Hotel Sofital Surya, New Delhi 110025. through Branch
Manager
... Appellants/OPs
Versus
M/s Manik Bhai Jewellers, 5, Karan Place, behind Hotel Sofital Surya New Friends
Colony, New Delhi 110065. through Proprietor
BEFORE
For the Appellant
Mr. A.K. De, Advocate
For the Respondent
Mr. Shivinder Chopra, Advocate

ORDER
This appeal has been filed under section 19 of the Consumer Protection Act,
1986 against the impugned order dated 14.09.2007, passed by the Delhi State
Consumer Disputes Redressal Commission (for short the State Commission) in
Consumer Complaint No. C-85/98, M/s. Manik Bhai Jewellers versus United India
Insurance Co. Ltd. & Anr. vide which, the said consumer complaint was allowed and
the OP was directed to pay a sum of ` 5,93,933/-, being the cost of lost jewellery and
also to pay a sum of ` 50,000/- as compensation for mental harassment, including the
cost of litigation.
2.
Brief facts of the case are that the respondent/complainant had obtained from the
appellant/OP
Insurance
Company
Jewellers
Block
Policy
No.
041201/46/45/11/261/96-97 commencing at midnight on 30.10.1996 and ending at

midnight on 30.10.1997 against a premium of ` 15,488/-. It has been stated in the
complaint that on 15.02.97 at about 8 PM, when Mr. Lalit, an employee of the
complainant was keeping a briefcase containing jewellery in the dickey of the car, two
persons snatched the bag containing jewellery from him and escaped at gun-point. An
FIR was lodged at Srinivaspuri Police Station. A detailed statement of articles lost in
theft was handed over to the OP within 14 days of the theft, stating the estimate of
actual value of the articles lost. However, the claim was repudiated by the Insurance
Company vide letter dated 06.01.98 on the ground that the loss had occurred outside
the insured shop premises and beyond business hours while the jewellery was in
transit. The loss was not covered under the terms and conditions of the
Policy. Moreover, the jewellery was not kept in safe at the time of theft. The
complainant stated that the theft occurred during the usual course of business when the
bag containing the jewellery was being taken to show the same to the customers for
sale. At the time of theft, the jewellery was in the custody of the complainant and his
employees. The insurance policy had been obtained to cover the accidental loss of
jewellery/ property. The complainant stated that a sum of ` 5,93,933/- should be
remitted to him and a compensation for deficiency in service should also be given.
3.
In their reply to the complaint filed by the OPs before the State Commission, it
was stated that the claim of the claimant was not covered under the terms and
conditions of the policy because the complainants were supposed to maintain a burglary
proof safe, if the value of the jewellery exceeded ` 2 lakh at any time. However, the
complainants did not maintain such burglary proof safe to secure the jewellery items
after business hours. There was, therefore, negligence on the part of the
complainant. Moreover, the jewellery in transit had not been insured at all by the
complainant and hence, the Company was not liable for loss that occurred during the
transit period. The State Commission, after taking into account the evidence of the
parties, allowed the complaint saying that a sum of ` 5,93,933/- being the cost of the
jewellery shall be payable by the OPs to the complainant and a further sum of ` 50,000/shall be payable as lump sum compensation, which included the cost of litigation. The
State Commission stated that repudiation of the claim by the OPs was not justified for
the following reasons:(i) That at the time of theft the jewellery was being handled by
the employee of the complainant. The complainant
himself and other employees of the insured-complainant
were accompanying him.
(ii) The purpose of carrying the jewellery was to show it to the
customer for sale.
(iii) The business hours of sale of jewellery depend upon the

convenience of the prospective customers.
(iv) When the employee or the representative of the complainant
are dealing with jewellery it cannot be reasonably
expected to be kept in safe at all times.
(v) The jewellery was not in transit but in the hand/custody of
the employee of the complainant at the time of theft and
in usual course of business of the complainant. The
reason is simple because he was in front direction from
where the robbers came. It was not a ground for
rejection of claim as it was pure and simple accident.
(vi) The two thieves who snatched the packet and one more
accomplice were arrested by the police and they admitted
that they had committed the robbery on their own.
(vii) That the vehicle was not unattended. It was just across the
road and Rakesh Makkar as well as four other
employees were there and therefore proviso of clauses 4
and 5 of the Insurance Policy was not invokable.
4.
At the time of hearing before us, the learned counsel for the appellant first
explained the delay in filing the appeal, saying that a certified copy of the order dated
14.09.2007, passed by the State Commission was dispatched by them on 15.10.2007
and the same was received in their office on 26.10.07. Thereafter, some time was
spent in obtaining approval of the competent authority and movement of the papers
between different offices and hence, a delay of 36 days occurred in filing the said
appeal,
which
should
be
condoned. In
reply,
learned
counsel
for
the
respondent/complainant stated that there was no evidence to say that the certified copy
of the order was received by the appellant on 26.10.2007; hence there was a delay of
47 days in filing the appeal. The reasons given that the delay occurred due to
movement of files from office to office do not justify the condonation of delay.
5.
On merits, the learned counsel for the appellant has drawn our attention to the
copy of the insurance policy in question, saying that the loss/theft of jewellery during
transit was not covered under the terms and conditions of the Policy. Moreover, it has
been clearly provided in the policy that any item(s) whose value was more than ` 2 lakh
were required to be kept in a burglary proof safe after business hours, but it was not
done. Moreover, in order to justify the claim, burglary should have been committed
inside the premises of the shop and hence, the claim was not payable. It has been
made clear by the appellants in their repudiation letter that the complainants had given
two versions about the theft one version says that the robbery took place at the shop
at the gunpoint whereas, the other version says that the theft took place when a bag
containing jewellery was being kept in the dickey of the car. The learned counsel further
argued that the definition of business hours as given by the State Commission that the
business hours depended upon the convenience of the prospective customer was too
elastic and should not be accepted. The theft should have occurred during the normal
business hours to justify the claim.
6.
In reply, the learned counsel for the respondent/complainant stated that at the
time of theft, the said jewellery was in the custody of an employee of the
complainant. The claim for theft during transit was fully covered as per Section-II of the
Insurance Policy under which the insurance cover was upto ` 6 lakh. The learned
counsel further argued that in this business, the deals are made many a time, outside
the business hours and hence, it was not possible to keep the jewellery in safe vault all
the time. The learned counsel pointed out that the State Commission had passed a
well-reasoned order and allowed the claim of the complainant after thorough analysis of
the facts and circumstances on record and hence, the order of the State Commission
should be sustained. In their written submissions, the complainant/respondent have
also taken the same line of argument, saying that the claim was validly covered in
Section II of Schedule B of the Policy, because this section covers the burglary for
property carried outside the premises of business to the extent of ` 6 lakh.
7.
consideration to the arguments advanced before us. There is a delay of 36 days in

filing the present appeal as admitted by the appellant himself. They have stated that the
delay occurred because of obtaining approvals from the competent authority and
movement of papers between different offices. In view of the position explained in the
application for condonation of delay and as stated during the course of arguments, the
delay in filing the present appeal is ordered to be condoned.
8.
A perusal of the insurance policy in question reveals that Section I of Schedule
B of the said policy states that the property insured in display window shall be covered
upto ` 15 lakh and the property insured in locked safe shall be covered upto ` 10
lakh besides cash and currency notes upto ` 2 lakh. Section-II of the said schedule B
states as follows:Section II
Limit for any one loss

(a) Property Insured whilst in the
custody of the Insured is
partners or his employees. Rs. 6,00,000/(b) Property Insured excluding
cash and currency notes
whilst in the custody
Rs. 2,00,000/of persons not in regular employment
of the Insured such as brokers or
cutters or goldsmiths.
(I) WARRANTED THAT IF STOCK WITH ANY ONE
PERSON SPECIFIED IN SECTION II OF THE SCHEDULE
EXCEEDS Rs. 2 LAKHS IT SHALL BE SECURED IN A
BURGLAR PROOF SAFE AFTER BUSINESS HOURS AT ALL
TIMES.
(II) WARRANTED THAT THE SUM INSURED UNDER THIS
SECTION UNDER THIS SECTION SHOULD NOT EXCEED
THE GROSS SUM INSURED UNDER SECTION I.
9.
It is made out from a plain reading of Section II of Schedule B that amounts of `
6 lakh and ` 2 lakh have been separately provided in Section II in addition to the
amounts of ` 15 lakh and ` 10 lakh as stated in Section I of the Policy which relate to the
Insurance on the premises of the shop. It can be safely presumed, therefore, that
Section II of the Policy deals with the insurance cover for the loss occurring outside the
premises of the shop. It is quite evident that at the time of theft, the jewellery/property in
question was in custody of the employees of the complainant and this fact has not been
denied anywhere. It has also been stated that the purpose of carrying jewellery was to
show it to the customers for sale. The State Commission have also observed that the
two thieves and one more accomplice were arrested by the Police and they admitted
that they had committed the robbery on their own. Moreover, the vehicle was not
unattended as one Rakesh Makkar who lodged the FIR and four other employees were
there when the robbery took place. We, therefore, find no justification to interfere in the
well-reasoned order passed by the State Commission that the claim of the complainant
was covered under the terms and conditions of the Policy. It is true that it has been
stated that stocks worth more than ` 2 lakh should be secured in a burglary proof safe
after business hours at all times but in the present case, the State Commission have
rightly observed that the jewellery cannot be reasonably accepted to be kept in safe at
all times when the employees or representatives of the complainant were dealing with
or handling jewellery.
10.
Based on the discussion above, we do not find any illegality or infirmity in the
orders passed by the State Commission. There is, therefore, no merit in the present
appeal and the same deserves to be dismissed and we order accordingly. There shall
be no order as to costs.
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/

(From the order dated 01.11.2007 in First Appeal No. 2129/2004 of U.P. State
New Okhla Industrial Development Authority, Main Administrative Block, Sector 6,
NOIDA 201301. through its CEO
.... Petitioners/OP
versus
Prakash Chandra Shukla r/o 11036, Subhas Park, Naveen Shahdara, Delhi 110032.

(From the order dated 01.11.2007 in First Appeal No. 1906/2004 of U.P. State
Prakash Chandra Shukla r/o 11036, Subhas Park, Naveen Shahdara, Delhi 110032.
versus
New Okhla Industrial Development Authority, Main Administrative Block, Sector 6,
NOIDA 201301. through its CEO.
Respondent/OP
BEFORE
For the Complainant
Mr. P.C. Shukla, In person
For the OP
Mr. Ravindra Kumar, Advocate
PRONOUNCED ON : 22ND APRIL 2014

ORDER
These two revision petitions have been filed under section 21(b) of the Consumer
Protection Act, 1986 against the impugned order dated 01.11.2007, passed by the Uttar
Pradesh State Consumer Disputes Redressal Commission (for short the State
Commission) in Appeal No. 2129/2004, New Okhla Industrial Development Authority
(NOIDA) versus Prakash Chandra Shukla and Appeal No. 1906/2004, Prakash
Chandra Shukla versus NOIDA, vide which, appeal No. 2129/2004 filed by NOIDA was
dismissed, whereas appeal No. 1906/2004 filed by Prakash Chandra Shukla was
allowed. These two appeals had been filed against the order dated 03.09.2004, passed
by the District Consumer Disputes Redressal Forum, Gautam Budha Nagar (U.P.), vide
which the complaint of Prakash Chandra Shukla was partly allowed and it was ordered
that the OP / NOIDA shall pay interest @12% p.a. to the complainant for the period
07.06.2000 till 09.07.2001 on the amount of ` 60,000/- deposited by the
complainant. Vide impugned order, the State Commission observed that NOIDA had
received the entire amount of ` 23,48,819/- about 4 years prior to the last date of
payment and hence, their demand for penal interest was not justified.
2.
Brief facts of the case are that the complainant Prakash Chandra Shukla applied
for allotment of a residential plot in residential plot scheme 2000 (I) floated by the OP /
NOIDA and deposited a sum of ` 60,000/- vide demand draft, bearing number 075187
dated 07.06.2000, alongwith application form no. 02693, that was deposited with the
Union Bank of India at Ansari Road Branch, New Delhi. On 01.08.2000, the OP
informed the general public through an advertisement in the press that the draw of lots
under the above scheme was likely to be held in the month of August 2000. They also
invited options for allotment of residential flats in their new scheme, by unsuccessful
applicants of the earlier scheme. The complainant, who remained unsuccessful in the
said draw of lots, gave his option for consideration in the new scheme. Vide allotment
letter dated 09.07.2001, the OP made provisional allotment of flat in sector 61 under the
new scheme. The cost of the flat was fixed at ` 17.5 lakh and the complainant was
asked to deposit ` 4,85,000/- by 08.08.2001 and the balance amount of `_12,05,000/was stated to be recoverable in 16 half-yearly instalments of `_1,31,870/- each and
hence, the total amount demanded by the OP was ` 26,54,072/-. The complainant
wrote to OP for exemption from the payment of interest and additional price, but his
demand was rejected by the OP. The consumer complaint in question was then made
with the prayer that physical possession of the flat in sector 61, NOIDA should be
handed-over to the complainant without any enhancement in prices and without
charging any interest from 09.08.2001. It was also stated that the OP should be
directed to pay interest @20% p.a. on ` 60,000/- with effect from 07.06.2000 till the date
of handing over the actual possession of the flat. In addition, OP should pay a sum of `
20,000/- till the date of filing the complaint and further ` 4,000/- per month for the delay
in handing over the physical possession of the flat. A sum of `_20,000/- as
compensation for mental agony and `_10,000/- as cost of litigation was also demanded.
3.
In their reply to the complaint filed by the NOIDA before the District Forum, it was
stated that interest was being charged from the allottee as per the prescribed
rules. The complainant could have deposited the entire amount of the flat with allotment
money and thus, he could have escaped the liability of paying the interest. The
question of possession could be raised only after the deposit of the allotment
money. Moreover, the process of handing over the possession was started in March
2003, and hence there was no delay in handing over the possession. The District
Forum vide their order dated 03.09.2004, directed the OP to pay interest @12% p.a. on
` 60,000/- from 07.06.2000 till 09.07.2001 and in this way, the District Forum by
implication, rejected the demand of the complainant for not realising the additional price
alongwith penal interest. Two appeals were filed against the order of the District Forum
before the State Commission one by the complainant and the other by the OP /
NOIDA. During the pendency of the appeal before the State Commission, the
complainant deposited a total sum of ` 23,48,819/- with the OP and hence the dispute
remained regarding the penal rate of interest. The State Commission vide impugned
order, dismissed the appeal of OP / NOIDA, but allowed the appeal filed by the
complainant, saying that after the deposit of ` 23,48,819/- as lump sum amount, there
was no justification for demand of penal interest. It is against this order that the present
petitions have been made by both the parties.
4.
At the time of hearing before us, it was contended by the learned counsel for
NOIDA that the registration of plot made by the complainant in the earlier scheme had
been transferred to the new scheme for allotment of flats, following the option received
from the complainant. There was no requirement for the complainant to send any
formal application under the new scheme, but he was definitely governed by the terms
and conditions of the new scheme. The learned counsel for the complainant has drawn
our attention to the interim order dated 07.11.2005, passed by the State Commission,
by which it has been directed that the entire cost of the flat alongwith interest @9% p.a.
with effect from 08.08.2001 shall be paid within one month from the date of the said
order, i.e., 07.11.2005. Further, within 15 days of receiving the payment, NOIDA will
hand over the physical possession of the flat to the complainant. The question of actual
interest or any other interest shall be determined at the time of final hearing of the two
appeals. The learned counsel argued that there was no provision in the relevant
brochure for payment of any interest on the initial deposit of ` 60,000/-.
5.
The learned counsel for the respondent has drawn our attention to copy of the
advertisement given by NOIDA on 07.02.2001, vide which, the last date for submission
of application forms under the Housing Scheme Code 200 2001 (H) GI has been
extended to 28.02.2001, and it has been stated that the applicants who had given
option for allotment of flat under residential plot scheme 2000 (1) need not
apply. Allotment letter dated 09.07.2001 was then sent to him by NOIDA, saying that if
the allotment money of ` 4,85,000/- was not paid by him, the allotment of flat would be
cancelled, followed by forfeiture of 1% of total cost of flat. Learned counsel further
stated that copy of the brochure for residential plot scheme 2000 (1) was never filed
before the District Forum. Moreover, the conditions specified in the said brochure were
applicable to allotments under reserved category only and should not be imposed upon
the complainant. The learned counsel stated that the impugned order was in
accordance with law and should be upheld.
6.
consideration to the arguments advanced before us. In revision petition no. 1153/2018,
filed by the complainant, it has been prayed that the excess amount paid by the
complainant to the OP in the form of penal interest, amounting to ` 6,63,003/- alongwith
interest @20% p.a. compounded half-yearly with effect from 09.12.2005, should be
allowed to them, in addition to various other amounts as compensation against mental
harassment/agony etc. On the other hand, OP / NOIDA, have made the prayer in their
revision petition no. 118 of 2008 that the OP should be allowed to charge full value of
the flat in question alongwith interest. The OP had suffered a loss of ` 9,61,716/towards interest for the delay in making payment of allotment money and the
instalments that had fallen due, till the time the complainant deposited the money.
7.
The District Forum vide their order dated 03.09.2004 partly allowed the complaint
and stated that the OP will pay interest @12% p.a. to the complainant for the period
from 07.06.2000 till 09.07.2001 on the amount of ` 60,000/-, deposited by the
complainant. The District Forum also directed that the complainant could obtain
possession of the flat after payment of dues to the OP as per the terms and
conditions. During the proceedings before the State Commission, an order dated
07.11.2005 was passed, vide which it was directed that the complainant shall deposit
the entire cost of the flat alongwith interest @9% p.a. from the date on which the
allotment money was payable, i.e., 08.08.2001. On receiving the said payment, the
NOIDA will hand over the physical possession of the flat no. 30B, Block E-15, Sector 61,
NOIDA. It was also directed by the State Commission vide this order that the actual
interest, penal interest or any other interest, which according to NOIDA was payable by
the complainant shall be determined at the final hearing of the two appeals. While
passing the impugned order dated 1.11.2007, the State Commission observed that the
complainant had deposited the entire amount of ` 23,48,819/- as one lump sum amount
on 09.12.2005 and hence, the OP / NOIDA received the entire amount about 4 years
prior to the last date of payment. The State Commission held that the demand made by
OP/NOIDA for penal interest was not justified, as payment of huge amount of
`_23,48,819/- had been made in lump sum. The State Commission also observed that
the allotment letter in which the terms and conditions of the allotment as well as
payment of price of the flat were clearly stipulated, was totally silent on the issue of
interest.
8.
The entire factual matrix of the case makes it very clear that the complainant was
given a chance by OP/NOIDA to opt for allotment of flat in sector 61, NOIDA in the new
scheme, in case, he remained unsuccessful in the draw of lots for a plot in the
Residential Scheme 2000 (1). The complainant himself gave his option for
consideration for allotment of flat in the new scheme. Since he remained unsuccessful
in the draw of lots in the earlier scheme, the OP decided to allot him a flat in the new
scheme. It is quite clear that since he himself opted for allotment of flat in the new
scheme, he was bound by the terms and conditions concerning the price of the flat and
payment of interest on the amount collected as per the terms and conditions of the
allotment of flat. In pursuance of the order dated 07.11.2005, the complainant has
already deposited full amount of the flat alongwith interest @9% p.a. from the date of
allotment, as per the directions issued by the State Commission. The order dated
07.11.2005 has not been challenged by either party, as made out from record and
hence, the said order has attained finality. Moreover, we agree with the observations of
the State Commission that in the allotment letter, there was no mention about charging
of interest/penal interest etc. from an allottee.
9.
Based on the above discussion, we do not find any ground for interference in the
well-reasoned order passed by the State Commission, which has been passed after
carrying out an in-depth analysis of the facts and circumstances of the case on
record. Both the revision petitions are, therefore, ordered to be dismissed and the
impugned order passed by the State Commission dated 1.11.2007 is upheld. There
shall be no order as to costs.
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/

(From the order dated 22.01.2009 in Consumer Complaint No. 07/2008 of the State
Consumer Disputes Redressal Commission, U.T., Chandigarh)
The Chandigarh Housing Board, through its Chairman, 8, Jan Marg, Sector-9,
Chandigarh
... Appellant-Opposite Party
Versus
Mrs. Anju Bhanot w/o Lt. Col. Sandeep Bhanot House No. 875, Sector-9, Panchkula,
Haryana
Respondent-Complainant
BEFORE
For the Appellant
Ms. Harvinder Kaur, Advocate
For the Respondent
NEMO
PRONOUNCED ON : 23rd
ORDER
APRIL 2014

This first appeal has been filed under section 19 of the Consumer Protection Act,
1986 against the impugned order dated 22.01.2009, passed by the State Consumer
Disputes Redressal Commission, U.T. Chandigarh (hereinafter referred as the State
Commission) in Consumer Complaint No. 07/2008, Mrs. Anju Bhanot vs. The
Chandigarh Housing Board vide which the said complaint was partly allowed with cost
of ` 5,000/- and the appellant/opposite party was directed to pay interest on the excess
amount paid by the complainant at the rate at which a nationalised bank pays interest
on a fixed deposit. It was, further, directed to pay a sum of ` 25,000/- as compensation
for mental tension and agony.
2.
Briefly stated, the facts of the case are that the appellant/opposite party, The
Chandigarh Housing Board, allotted a commercial booth bearing no. 26, Sector-48,
Chandigarh for a sum of ` 21,50,000/- vide allotment letter dated 21.02.2003
to Gagan Singh son of Ami Chand and the physical possession of the booth was also
handed over on 26.02.2003. The complainant/respondent is the General Power of
Attorney (GPA) holder of the allottee Gagan Singh, and the said document showing her
to be GPA, is dated 07.07.2003. The booth was allotted by auction on 99 years lease
hold basis. A sum of ` 5,37,500/- was paid by Gagan Singh as 25% of the total
premium of ` 21,50,000/- alongwith ground rent amounting to ` 77,571/- for the period
29.11.1994 to 28.11.2003. As per the terms and conditions contained in the letter of
allotment, the balance 75% of the amount of premium could be paid in full within 30
days of the issue of allotment letter, or in the alternative, the said amount could be paid
in 3 yearly instalments, alongwith interest of 18% per annum. The due date of payment
of these 3 instalments of ` 7,41,627/- each has been mentioned as 15.01.2004,
15.01.2005 and 15.01.2006 respectively. The dates up to which the payment of such
instalments could be made have been mentioned as 10.02.2004, 10.02.2005 and
10.02.2006 respectively. In addition the ground rent amounting to ` 8,619/- per annum
is payable on 28th December of every year for the first 33 years. For the next period of
33 years, the corresponding amount of ground rent is ` 12,928/- per annum and for the
last
33
years,
the
payable
amount
shall
be
` 17,238/- per annum. The consumer complaint in question has been filed
by Mrs. Anju Bhanot, who is the GPA holder of the allottee. As per the version given in
the complaint, the complainant continued to make payment of the balance amount to
the appellant/opposite party alongwith interest. The complainant has alleged that vide
their letters dated 31.07.2003 and 04.08.2003, they sought details of the pending
payments from the appellant/opposite party, but the appellant/opposite party never
replied to said letters. The husband of the complainant visited the office of the opposite
party and he used to deposit various amounts as per information received from the
officials of the opposite party. Vide letter dated 17.01.2006, the complainants husband
expressed his desire to clear all the pending dues and sought the details from the
opposite party. He paid a personal visit to the account section of the opposite party on
19.01.2006, when he was told that a sum of only ` 59,413/- including ground rent was
due against the booth. The said amount was deposited by him on very next date i.e.
20.01.2006. According to the complainant, full and final payment had been made to the
opposite party. On 19.02.2008, they wrote to the opposite party to issue a no dues
certificate regarding the said property, but they were shocked to receive a demand of `
5,63,482/- from the opposite party against the said booth. The complainant, alleging
harassment and high-handedness on the part of the opposite party, filed the consumer
complaint in question, requesting that the opposite party should be directed to issue no
dues certificate and asked to withdraw the demand of ` 5,63,482/-. In addition,

damages of ` 10 lakhs should be awarded against the opposite party for their unfair
trade practice and ` 5 lakhs should be given as compensation for mental harassment
etc. in addition to refund of ` 10,000/- charged as ground rent for the period prior to the
date of allotment and ` 25,000/- as cost of litigation.
3.
In
their
written
statement,
filed
before
the
State
Commission,
the
appellant/opposite party stated that the said booth had been purchased for commercial
purpose and hence, the complainant does not fall within the definition of
consumer. Moreover, since the dispute was regarding payment of ` 5,63,482/-, the
jurisdiction to hear the complaint was with the District Forum. The opposite party also
took the stand that all terms and conditions for payment of lease money and ground rent
etc. were clearly mentioned in the allotment letter, issued in favour of Gagan Singh and
hence, no further details were required to be given by the opposite party to the GPA
holder. The complainant had failed to make payment in accordance with the schedule
mentioned in the allotment letter and hence, they were liable to pay the balance amount
of lease money alongwith interest till date and hence, the figure of ` 5,63,482/- had been
arrived at.
4.
The State Commission, after hearing the parties, allowed the complaint vide
impugned order and observed that the complainant had paid a sum of ` 11.40 lakhs on
08.08.2003,
whereas
the
first
instalment
of
7,41,627.00/-
was
due
on
15.01.2004. They had also made payment of some more amount before the due date
and hence, the opposite party had received excess amount from the complainant,
although the instalments continued to contain the element of 18% interest. The
complainant made the last payment of ` 59,417.00/- on 23.01.2006. After accounting
for all amounts paid by the complainant, the net payable amount as on 23.01.2006 by
the complainant was ` 3,52,964.00/-. The OP had calculated interest for the period,
23.01.2006 to 31.03.2008 as ` 1,85,437.00. The State Commission concluded that
since the complainant had deposited certain sums in advance of the due date, it was
obligatory on the part of the opposite party to return the excess amount paid, or to pay
interest on the said amount. The State Commission directed that the opposite party
should pay interest at bank FDR rates to the complainant on the excess amount and
also to pay `25,000/- as compensation for mental agony and ` 5,000/- as costs. It is
against this order that the present petition has been made. A notice of the appeal was
sent to the respondent for appearance. The respondent did put in appearance on some
of the hearings, but later absented herself. The last notice was sent to the respondent
on 26.12.2013 for hearing on 24.02.2014. However, the respondent did not appear
despite service. The arguments of the learned counsel for appellant were heard on that
day.
5.
It has been argued by the learned counsel for the appellant that the said booth
was allotted in the name of Gagan Singh, who paid the initial amount of 25%. However,
the schedule for payment of balance 75% amount, as contained in the letter of
allotment, was not followed. The learned counsel stated that Gagan Singh had
executed a general power of attorney in favour of the complainant, but he never sought
any permission from the opposite party for doing the same. The name of the
complainant is nowhere in the record and whatever amounts were deposited by her,
had gone to the account of Gagan Singh only. The learned counsel argued that since
this booth was purchased in auction, the complainant could not be termed as a
consumer, as per the judgment given by the Honble Apex Court in the case, U.T.
Chandigarh Administration & Anr. vs. Amarjeet Singh & Ors. as reported in II (2009)
CPJ 1 (SC). The learned counsel stated that the booth had been purchased for
commercial purpose and hence, this complaint was not maintainable on both grounds,
that the complainant being a GPA holder, and also having the booth for commercial
purpose, does not qualify to be called a consumer. The learned counsel also argued
that the pecuniary jurisdiction to hear the said complaint was with the District Forum and
they had taken this objection in reply to the complaint filed before the State
Commission.
6.
consideration to the arguments advanced before us.
7.
There is a delay of 33 days in filing the present appeal. It has been stated in the
memo of appeal that copy of the impugned order dated 22.01.2009 was received by the
appellant on 13.02.2009, although it was dispatched on 02.02.2009. The matter was
then examined in their office and the requisite legal opinion was also taken. The delay
in filing the appeal took place due to official formalities and was not intentional. In view
of the position explained by the appellant in the memo of appeal, the delay of 33 days in
filing this appeal is ordered to be condoned.
8.
Further, the State Commission vide operative portion of the impugned order have
stated as follows:18. Hence, in view of discussion above, complaint is partly

accepted with costs of Rs. 5,000/- and OP is directed to pay interest at
the rate at which a nationalized bank is liable to pay on the fixed deposit
amount, on the excess amount paid by the complainant and further to
pay Rs. 25,000/- as compensation for mental tension and agony. The
aforesaid amounts be paid within two months, failing which it would carry
interest @ 9% p.a. till payment from the date of filing of complaint.
9.
The State Commission observed in their order that the first instalment for the
balance 75% amount amounting to ` 7,41,627/- was due on 15.01.2004, but the
complainant had made payment of ` 11.40 lakhs on 08.08.2003. They made further
payment of ` 1 lakh on 10.02.2004 and ` 1,72,500/- on 12.04.2004 and then ` 2 lakhs on
26.07.2005. However, after the adjustment of third instalment due on 15.01.2006 and
after
receiving
the
payment
of
` 59,417/- on 23.01.2006, the balance amount payable by the complainant as on

23.01.2006 was ` 3,52,964/-. Since the said amount was not paid by the complainant,
the opposite party asked for the payment of the same alongwith interest of
18%, beyond the period from 23.01.2006 onwards. The State Commission observed
that since excess amount had been received by the appellant/opposite party before time
and kept lying with them, it was obligatory on their part to pay interest on the excess
amount at FDR rates, allowed by any nationalised bank.
10.
On perusal of the entire record of the case, we find that in the allotment letter,
issued by the appellant/opposite party on 21.02.2003, the position regarding the

payment of balance amount alongwith interest, has been very clearly mentioned and the
due dates as well as the last dates of payment of instalments, have also been clearly
specified. The
complainant,
who
is
the
G.P.A.
holder
of
the
original allottee Gagan Singh, is supposed to be in the knowledge of the contents of the
allotment letter. The complainant has stated in the complaint that despite writing letters
to the opposite party and paying personal visits, the exact position was not informed to
her. However, this version of the complainant can not be believed, because the entire
position is clearly stated in the allotment letter itself. The complainant had also stated
that when her husband visited the office of the opposite party on 19.01.2006, he was
told that an amount of ` 59,413/- only as ground rent was due for payment. Although,
the opposite party have denied this version in their reply, saying that they could not
have stated so, because the third instalment payable before 10.02.2006 was still to be
paid. However, in the strict sense of word, it is clear that the said third instalment was to
be paid by 10.02.2006 and hence, the information given to the complainant was not
incorrect, as on 19.01.2006, only the ground rent arrears were payable. It is evident
from these facts that there has not been any deficiency in service or unfair trade
practice on the part of the opposite party, rather the complainant has failed to make
payment, as per the schedule given in the allotment letter.
11.
In so far as the payment of FDR interest on excess payment, as allowed by the
State Commission is concerned, we fail to agree with the conclusion arrived at by the
State Commission. In case, an allottee chooses to make payment in the office before
time, it is not practical for an organisation like the appellant/opposite party to invest the
excess amount in the FDR, or to pay interest on the same. It was the duty of the
complainant herself to be vigilant about the quantum and time of the payments to the
opposite party. We, therefore, hold that the State Commission have taken an erroneous
view of the whole situation in allowing the complainant and the payment of FDR interest
on the excess amount paid by them to the opposite party.
12.
It is further observed that the allottee of the booth is Gagan Singh and possession
of the same was also delivered to him. The complaint in question could have been filed
by Gagan Singh only, whereas the complaint is filed by the complainant as G.P.A holder,
which is not permissible in law.
13.
In view of the position explained above, this appeal is ordered to be accepted and
the order, passed by the State Commission is set aside, holding that the allegation of
deficiency in service or unfair trade practice against the appellant/opposite party does
not
stand proved. Consequently, the consumer complaint in question is ordered to be

dismissed, with no order as to costs.
..
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..
(DR. B.C. GUPTA)
MEMBER
PSM

(From the order dated 30.04.2008 in First Appeal No. 2053 of 2006 of the M.P. State
Consumer Disputes Redressal Commission, Bhopal)
Smt. Rohini Morghode w/o Shri Krishna Morghode r/o Morghode House, Saat Bhai Ki
Gonth, Laxmigunj Lashkar, Gwalior
Versus
1. Dr. A. V. Sapre Sumati Memorial Hospital Pichhadi Dyodhi, Lashkar, Gwalior, (M.P.)
Respondent-1/OP-1
2. Sumati Memorial Hospital Surgical & Orthopaedic Nursing Home through the
Manager Pichhadi Dyodhi, Lashkar, Gwalior, (M.P.)
Respondent-2/OP-2
BEFORE

For the Petitioner
: Mr. Avneesh Garg, Advocate with

Petitioner in person
For the Respondent
: Mr. Nikhil Singla, Advocate with

Respondent in person
PRONOUNCED ON :
23rd
APRIL 2014
ORDER
Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal (hereinafter
referred
as
the
State
Commission)
in
First
Appeal
No. 2053/2006, Smt. Rohini Morghode versus Dr. A. V. Sapre & Anr., vide which, while
dismissing appeal, the order passed by the District Consumer Disputes Redressal
Forum,
Gwalior
dated
02.09.2006,
dismissing
consumer
complaint
no. 265/2004, was upheld.

2.
Briefly stated, the facts of the case are that the petitioner/complainant Smt. Rohini
Morghode met with an accident on 29.07.2003, while going to her office on a

moped. She consulted Dr. A. V. Sapre, the respondent/opposite party, who diagnosed it
as fracture of right femoral neck. The complainant was operated upon by the
respondent/opposite party on 31.07.2003, during which, nailing was done. She was
discharged from the hospital on 12.08.2003. It was revealed later on, from an x-ray that
the nail fixed during operation on 31.07.2003 had shifted and the bone did not
unite. Another operation was done on 04.10.2003 by the same doctor, wherein the nail
was placed in position, alongwith the hip screw to support and prevent the nail to
displace again. It has been stated that the procedure done by the respondent/opposite
party is called SP-Nail fixation. It has been alleged that despite second surgery, the
fracture could not be united and the complainant experienced continuous pain. The
complainant
was
then
operated
upon
third
time
by
Dr. Jinsiwale of Indore on 31.01.2004, whereupon the complainant recovered and joined
her duty on 16.03.2004. Later on, the complainant consulted one Dr. Y. C. Pande,
MBBS, D. Ortho (Bombay) and after examination of the concerned reports and
documents, he gave the opinion that the respondent/opposite party had been negligent
in performing the said procedure upon the complainant. The complainant alleged that
she had to incur an expenditure of ` 1,23,000/- on the operation carried upon her by Dr.
Jinsiwale, including boarding and lodging expenses etc. She filed the consumer
complaint in question, seeking compensation of ` 3 lakhs alongwith 12% interest from
the respondent/opposite party.
3.
The opposite party contested the complaint, saying that there had been no
negligence on their part and whatever procedure was done upon her, was in
accordance with established medical practice. The opposite party stated that they had
explained to the attending person, accompanying the patient, that the chances of
getting the bone united in such kind of fractures, were quite less, because of improper
circulation of blood in the bones in that area. The opposite party also advised that there
had to be bed rest and minimum movement by the patient, so that the bone could unite
properly. The opposite party no. 1 also stated that when he visited the house of the
complainant, she found her walking with the help of a walker, which was a kind of
negligence on her part. The main reason for non-union was that she did not follow the
instructions and advice given to her. The opposite parties also stated that the
complainant had consulted one Dr. Sameer Gupta, Orthopaedic Surgeon, Gajraja
Medical College, Gwalior. Dr. Sameer Gupta has stated that the screw of SP Nail had
been fixed properly. There was, therefore, no negligence on the part of the opposite
parties.
4.
The District Forum, after taking into account the evidence of the parties, dismissed
the complaint, saying that the allegation of negligence against the opposite parties was
not proved. An appeal was filed against this order before the State Commission, which
was decided vide impugned order and was ordered to be dismissed. It is against this
order that the present petition has been made.
5.
At the time of arguments before us, the learned counsel for the petitioner stated
that the two operations carried out by Dr. A. V. Sapre, respondent/opposite party no. 1
were done by SP Nail technique, which was an old and obsolete technology. The
learned counsel stated that this technique, called Smith Peterson Nail (SP Nail), was
discovered many years back, but over a period of time, modern techniques had taken
its place and hence, it was the duty of the operating doctor to have updated his
knowledge and to have followed one of the modern techniques. The learned counsel
argued that the very fact that the third operation carried out by Dr. Jinsiwale was
successful, makes it amply clear that there had been negligence in performing the
earlier two operations. It was clear from the version of the respondent/opposite party
that the first nail fixed on 31.07.2003 had shifted from its position. Despite that, when
the procedure was done second time, the screw was inserted in the same hole and
hence, the second operation was also not successful. The learned counsel has drawn
our attention to the opinion of Dr. Y. C. Pande, who is an Orthopaedic Surgeon, saying
that this was a case of improper surgery, which resulted in the non-union of the
fractured bone. Learned counsel also referred to the answers to the questions, given in
the questionnaire provided to Dr. Y. C. Pande. The learned counsel argued that the
District Forum and the State Commission should have given proper weightage to the
report of the expert, but it was not done. The learned counsel also produced copies of
medical literature on record and stated that there had been negligence on the part of the
opposite parties, as SP Nail had not been supplemented by additional fixation of plates
etc. which led to the failure of the procedure done.
6.
The learned counsel for the respondent, however, stated that there had been no
negligence on the part of the opposite parties in performing surgery upon the
complainant. In fact, the problem arose only, because she did not follow the medical
advice and was keen on resuming her walk, as early as possible. Referring to the
medical literature produced by the complainant, the learned counsel says that the SP
Nail operation was still being performed the world over, rather it has been stated in the
literature produced by the complainant that the best method of treatment in such cases
remains controversial and will vary from one hospital to another. The SP Nailing
technique has not been declared obsolete or out-dated by any medical literature, rather
it was still being widely used. In reply to the arguments of the complainant regarding
fixation of fracture with plates etc., the learned counsel stated that in this kind of fracture
involving head of femur, the plate could not be inserted. In the light of these facts, the
orders passed by the consumer fora below, were in accordance with law and should be
upheld.
7.
We have examined the material on record and given a thoughtful consideration to
the arguments advanced before us. The basic issue involved in the present case is
whether the opposite party/doctor failed to update his knowledge about modern
techniques and whether he has shown any negligence in treating the complainant, while
performing surgery upon her two times. The case of the complainant is that the doctor
should have updated his knowledge and used one of the modern techniques for
treatment of the patient. However, it has not been proved anywhere from the medical
literature placed on record that SP Nailing technique has become obsolete, or is not
being
used
elsewhere. The
respondent,
Dr. A. V. Sapre, has the qualification, Masters in Surgery (MS) and he acquired this
degree in the year 1973. Evidently, he is a qualified doctor and well-equipped to handle
such cases. Even if, it is proved that he failed to update his knowledge about the
modern techniques in the field, the broad question that arises for consideration is,
whether this amounts to negligence or deficiency in service for failure to update his
knowledge.
8.
The State Commission in their order have referred to the famous BOLAM test in
handling similar cases in which medical negligence is alleged. It was observed by their
lordships in the case,Bolam vs. Friern Hospital Management Committee as reported in
(1957) 2 All ER 118, as follows:-
The test is the standard of the ordinary skilled man exercising and
professing to have that special skill. A man need not possess the highest
expert skill at the risk of being found negligent. It is well established law
that it is sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular art that in the case of a
medical man, negligence means failure to act in accordance with the
standards of reasonably competent medical men at the time. This is a
perfectly accurate statement as long as it is remembered that there may
be more than one or more perfectly proper standards; and if a medical
man confirms with one of those proper standards then he is not
negligent.
9.
As stated above and as held by various courts in a catena of judgments, the
standard of an ordinary skilled man is expected from a medical person handling such
cases. The concerned doctor may not be in a position to apply or follow the best
possible technique, but if he is able to follow the standard method of an ordinary skilled
man, he can not be accused of being negligent in the performance of his duty. The
District Forum and the State Commission have extensively quoted from the medical
literature on the subject and came out with the conclusion that the charge of medical
negligence against the OP doctor is not proved. In the literature produced by the
complainant also, it is nowhere mentioned that SP Nailing technique has been
discarded, or it is not being used elsewhere. It has been stated, however, that the best
method of treatment remains controversial and shall vary from one hospital to another.
10.
The petitioner/complainant have produced on record the expert opinion of Dr. Y. C.
Pande, which states that it was a case of improper surgery. The said doctor has the
qualification D. Ortho, which is Diploma in Orthopaedics. On the other hand, the
respondent/opposite party has a Masters degree in surgery, meaning thereby that he is
better qualified and supposed to have better knowledge about the technical aspects of
the subject.
11.
In the light of discussion above, we do not find that the allegations of medical
negligence against the doctor have been proved by any material on record. There is
nothing to substantiate that there has been any malafide act, negligence or ignorance
on the part of the doctor. The orders passed by the State Commission and the District
Forum, therefore, do not suffer from any illegality, irregularity or jurisdictional error, by
any standard. The present revision petition is, therefore, ordered to be dismissed and
the orders passed by the consumer fora below are upheld. There shall be no order as
to costs.
..
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..
(DR. B.C. GUPTA)
MEMBER
PSM

(From the order dated 04.02.2008 in First Appeal No. 1428/2007 of Karnataka State
Nagaraj T.V. s/o Ramaiah T.V. No. 27, Ward 8, 2nd Main, Ramamurthynagar Bangalore
560016.
versus
The Branch Manager, Life Insurance Corporation of India P.B. No. 9, Jeevan Jyothi
Bangalore Mysore Road, Maddur 571428 Mandya District
Respondent/OP
BEFORE
For the Petitioner
NEMO
For the Respondent
Mr. Mohinder Singh, Advocate
PRONOUNCED ON : 23rd APRIL 2014

ORDER
Protection Act, 1986 against the impugned order dated 04.02.2008 passed by the
Karnataka State Consumer Disputes Redressal Commission (for short the State
Commission)
in
FA No. 1428/2007, The Branch Manager, Life Insurance Corporation of India

(hereinafter referred to as LIC) versus Nagaraj T.V. vide which while allowing the
appeal, the order dated 06.06.2007 in consumer complaint no. 22/2007, passed by the
District Consumer Disputes Redressal Forum, Mandya, allowing the said complaint,
was set aside, and the complaint was ordered to be dismissed.
2.
Brief
facts
of
the
case
are
that
the
petitioner/complainant
obtained Jeevan Dhara Policy, bearing no. 623015283 for a sum of `_1,20,000/- from
the LIC, with date of maturity as 19.10.2006. The complainant contended that he was
entitled to ` 4,800/- as monthly instalment of annuity from the date of maturity, whereas
the OP was paying him a monthly instalment of ` 1200/- only. He also contended that in
addition to the sum assured un7der the policy, he is entitled to receive 1% of the
enhanced amount and also entitled for the bonus declared by the LIC / OP. Despite
taking up the matter with the zonal office of the OP and the Insurance Ombudsman, he
failed to get proper relief. The LIC took the stand that as per the circular/instructions
issued by them, the complainant was entitled to receive 1% of the Gross Insurance
Value Element (GIVE) and, therefore, the monthly instalment of Annuity was fixed at `
1200/-. The OP contended that they had already paid ` 3600/- as one-time payment
under the policy, in view of the instructions contained in the circular. They further
contended that the LIC had not declared any Bonus under the Jeevan Dhara Policy and
hence, the complainant was not entitled to any bonus under the said policy. The
complainant, on the other hand, took the plea that GIVE amount was enhanced by `
2,496/- as per the terms and conditions of the policy with deferred participation in
profit. The petitioner was eligible for bonus at two stages the first stage at the end of
the deferred period as addition to the GIVE amount and proportionately increasing the
annuity, and the second stage as addition to GIVE amount, payable on death. The
District Forum vide their order dated 06.06.2007, allowed the complaint and directed the
LIC to add bonus as admissible to any other annuity policy for 15 years, to the GIVE
amount and to enhance the annuity at 1% of the enhanced GIVE amount and also
directed to pay ` 5000/- as litigation cost. Aggrieved by this order of the District Forum,
the LIC preferred an appeal before the State Commission, which was allowed as per the
impugned order and the order of the District Forum was set aside and the consumer
complaint was dismissed. The State Commission upheld the version of the LIC that no
bonus had been declared under the Jeevan Dhara policy issued in favour of the
complainant and hence, the OP was not bound to pay bonus to the complainant. It is
against this order that the present petition has come up.
3.
The petitioner put in personal appearance during some hearings before the
Commission, but after hearing on 06.02.2013, he absented himself on subsequent

dates, i.e., 13.08.2013, 23.09.2013, 16.12.2013, 25.02.2014 and 13.03.2014. A notice
was sent to him in the interest of justice but despite the service of the notice, neither the
petitioner, nor his counsel appeared. The arguments of both the parties had been heard
on 06.02.2013 and the arguments were again heard from the respondent on
13.03.2014.
4.
During arguments on 06.02.2013, the petitioner stated in person that under the
terms and conditions of the policy, the LIC was supposed to declare bonus as
guaranteed maturity addition. The LIC was paying him ` 1200/- per month, whereas
they were supposed to pay ` 1248/- per month. On 06.12.2013, the respondent LIC
was directed to explain, on what basis ` 3600/- had been given to the petitioner and
place copies of the factor and further appraise whether respondent had made
endorsement of `_1,24,800/- on the top of the policy, as was reflected in the copies of
the documents. On 13.03.2014, the learned counsel for the LIC categorically stated
that the endorsement of ` 1,20,000/- + ` 4800 = ` 1,24,800/- as reflected on the copy of
the policy had not been made by them. In fact, the LIC had not declared any bonus
under the Jeevan Dharapolicy, although they had declared bonus under other schemes
including new Jeevan Dhara I plan. They were, therefore, justified in not giving the
additional amount to the petitioner as demanded by him. The learned counsel has
drawn our attention to the order passed by the State Commission, saying that the State
Commission vide impugned order, had made a correct appreciation of the facts on
record and accepted the version of the respondent that they had not declared bonus
under the Jeevan Dhara Policy and hence, the District Forum was not justified to direct
that additional amount should be paid to the complainant.
5.
consideration to the arguments advanced before us. In so far as endorsement of `

1,24,800/- on the copy of the policy produced on record is concerned, LIC has denied
that any endorsement was made by them to this effect on the policy. From the material
on record, it is not proved anywhere that there was an addition of ` 4,800/- to the policy
amount of ` 1,20,000/- making it a total of ` 1,24,800/-. Further, the learned counsel for
the LIC produced a document dated 20.12.2006 at the time of arguments, which says
that the valuation of the corporation business as on 31.03.2006 had been completed
and the bonus declared in different policies had been mentioned in that
document. Under the Jeevan Dhara Policy, no bonus had been declared. It has been
admitted by the LIC that a one-time payment of ` 3600/- as Guaranteed Maturity
Addition (GMA) had been paid to the complainant.
6.
In view of the facts stated above, there does not seem to be any merit in this
revision petition which may require interference in the well-reasoned orders passed by
the State Commission. It is held, therefore, that the impugned order does not suffer
from any illegality, infirmity, irregularity or jurisdictional error and the same is
confirmed. This revision petition is ordered to be dismissed with no order as to costs.
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/

(From the order dated 09.08.2007 in First Appeal No. A-476/2003 of Delhi State
Oriental Insurance Co. Ltd. through its Manager, Regd. Office Oriental House, A
25/27, Asaf Ali Road, New Delhi
... Petitioner
Versus
Baby Simran Kaur d/o Sh. Nirmal Jeet Singh 77 A, Opposite Mental Hospital
Dilshad Garden Delhi 110095.
Respondent
BEFORE
For the Petitioner
Mr. Abhishek Kumar, Advocate
For the Respondent
Mr. Saleem Akhtar, Advocate

ORDER
Protection Act, 1986 against the impugned order dated 09.08.2007, passed by the Delhi
State Consumer Disputes Redressal Commission (for short the State Commission) in
FA No. A-476/2003, Baby Simran Kaur versus Oriental Insurance Co. Ltd., vide which,
while allowing the appeal, the order dated 24.03.2003, passed by the District Consumer
Disputes Redressal Forum, dismissing the consumer complaint in question, was set
aside.
2.
Brief
facts
of
the
case
are
that
the
complainant/respondent
Baby Simran Kaur daughter of Nirmal Jeet Singh, was a minor and she filed the
complaint in question through her father for reimbursement of the expenses incurred on
her treatment availed against medi-claim policy, obtained in her favour and other
members
of
the
family
for
the
period
from
16.06.99
to
15.07.2000. Baby Simran Kaur was admitted in the hospital on 10.09.99 for operation
of Lumber Spine. A total sum of `1,46,520/- was spent on the treatment, alongwith
other expenses and a claim was lodged for reimbursement with the OP Insurance
Company. However, the claim was repudiated by the OP on the ground that the
claimant had a pre-existing congenital disease, which was not disclosed, while taking
the policy in question. The claim of the complainant is based on the opinion
of Dr. RajendraPrasad, Surgeon, Apollo Hospital who stated that the disease for which
the appellant was operated upon, was not congenital. The Insurance Company
renewed the mediclaim policy for the next year, without settling her claim. The
complainant / respondent filed the consumer complaint in question before the District
Forum, requesting for a sum of `1,46,350/- to be paid for treatment/medicines/operation,
`20,000/- for sundry expenses and `50,000/- as compensation for harassment,
alongwith interest. The OP took the stand before the District Forum that the
complainant was guilty of withholding material information, as she had been already
suffering from a congenital disease. The claim received from the complainant was
referred to the panel doctor, Dr. Prem Nath, who stated that the patient was first seen on
28.08.90 in Apollo Hospital for enuresis urgency and was having dribbling
inconvenience since birth with fever and swelling of lower back. The claim was
repudiated on the basis of affidavit filed by Dr. Pran Nath. The District Forum dismissed
the complaint in question, saying that the claim had been rightly repudiated by the OP
as the complainant was suffering from that disease since birth. An appeal was filed
against the order of the District Forum before the State Commission, which was allowed
vide impugned order dated 09.08.2007 and it was directed that payment of `1,46,520/should be made to the complainant alongwith `5,000/- as compensation for mental
harassment and cost of litigation. It was observed by the State Commission that as per
the opinion of experts of Apollo hospital, the complainant was not suffering from a
congenital disease, but even if it was so, there was no question of concealment made
by the policy-holder. It is against this order that the present petition has been made.
3.
At the time of arguments before us, learned counsel for the petitioner stated that
they had filed an application for taking additional documents on record and the same
should be allowed. These documents included a copy of bill for registration fee of `50/issued by the Indraprastha Apollo Hospital in the name of Baby Simran Kaur, a copy of
cover-note of the file dated 07.07.99, issued by the Department of Neurology, Apollo
Hospital, a copy of repudiation letter dated 3.3.2000, sent by the OP to father
of Simran Kaur and a copy of the claim form, filed before the Insurance Company. It
was also stated that the discharge summary and prescription issued by the Apollo
Hospital were already on record. Learned counsel for respondent stated that these
documents were not authenticated and no parentage of Simran Kaur had been stated in
the additional documents filed. However, he admitted that the prescription issued by the
Apollo Hospital vide ID No. 99039747 dated 20.08.99 related to Simran Kaur only. After
considering the arguments of the learned counsels, the application for additional
documents was ordered to be taken on record.
4.
In his main arguments, the learned counsel for the petitioner, insurance company
has drawn our attention to the discharge summary issued by the Apollo Hospital which
is signed by Dr. Rajendra Prasad, Sr. Consultant Neurosurgery. It has been stated in
the said document as follows:History: Patient complaint of pain in (R) lower limb and
incontinence of urine. After various investigations it was found
that incontinence of urine is due to neurogenic bladder. MRI
scan was done which shows lipomyelomeningocele with
tethering of cord.
5.
It is further stated in the discharge summary as follows:Course

in
Hospital:
Patient
was
seen
by Dr. Rajesh Ahlawat (Urologist) who has advised antibiotics
according to C/S report. Dr. P.K. Gupta (Paediatrician) has
seen her and given clearance for surgery. Operation was
done
untethering
of
cord
by Dr. R.
Prasad
& Dr. C.M. Malhotra. After operation patient was stable
except repear Hb was 9.9 so one unit of packed cells was
transfused. Patient was kept flat for 3 days with indwelling
catheter and antibiotics.
6.
The learned counsel then referred to the report made by their own panel
doctor, Dr. Pran Nath in which, it has been stated that the patient was having symptoms
of illness since birth and hence, the claim in question was not payable. In reply to the
query that the policy in question was taken in July 1999, whereas the hospital record
pertained to August / September 1999, the learned counsel replied that since it was a
case of congenital disease, the same should have been disclosed before taking the
policy. The District Forum had rightly dismissed the complaint based on the documents
produced before them. However, the State Commission had erroneously observed that
it was not a case of congenital disease.
7.
Learned counsel for the respondent stated that the main issue to be considered in
the present case is whether the insured had prior knowledge of the disease before
taking policy. He argued that the discharge summary issued by the Apollo Hospital, (as
reproduced above) indicates that the problem was detected only after the MRI scan was
done. Learned counsel has drawn our attention to Judgement given by this
Commission in Trilok Chand Khanna versus United India Insurance Co. as reported in
[I (2012) CPJ 84 (NC)] saying that the onus to prove that the petitioner/complainant was
suffering from a pre-existing disease, was on the respondent Insurance Company,
which had not produced any credible documentary evidence / expert medical opinion in
support of the case. In this very order, another order passed by the National
Commission in National Insurance Co. Limited versus Raj Narayan [I (2008) CPJ 501
(NC)] has been quoted, in which it has been stated that a patient may be suffering from
certain disease, but he may be totally unaware of the symptoms of the disease and
hence, he cannot be allowed to suffer by non-payment of claim. Learned counsel
stated that the order passed by the State Commission was in accordance with law as
the insurer was not aware of the disease before taking the policy.
8.
In reply, the learned counsel for the petitioner has drawn our attention to
exclusion clause 4.3 of the Insurance Policy, in which it has been stated as follows:During the first year of the operation of the policy the
expenses on treatment of diseases such as Cataract Benign
Prostatic Hperthrophy,
Hysterectomy
for Menorrahagia orFibromyoma,
hernia,
hydrocele,
Congenital
Internal
Disease. Fistula
in
anus,
Piles, Sinusits and related disorders are not payable. If these
diseases are pre-existing at the time of proposal they will not
be covered even during subsequent period of renewal too.
9.
consideration to the arguments advanced before us.

10.
The exclusion clause 4.3 of the Insurance Policy as reproduced above, based on
which the District Forum dismissed the consumer complaint, mentions about,
Congenital Internal disease. As per the report made byDr. Pran Nath, the panel
Doctor of the Insurance Company, It is not only a case of internal congenital but
external also as well as pre-existing in nature; considering this the claim is not
admissible. The discharge summary made by the Apollo Hospital says that the patient
had
incontinence
of
urine
due
to
neurogenic
bladder. The
MRI
showed lipomyelomeningocele with tethering of cord. In the treatment done in this

hospital, operation was done for untethering of cord. From the documents concerning
the treatment of the complainant in the Apollo hospital, it is made out that the
complainant had a congenital problem. It is, however, to be determined whether this
problem could be described as congenital internal disease or it is an external
disease. The State Commission have observed in their order that there was no material
on record to show that the complainant had ever been hospitalised for the disease in
question or was ever operated upon for the disease in the near proximity of obtaining
the insurance policy or even a year or two before obtaining the policy. The State
Commission have also observed that until and unless, a person is hospitalised or
undergoes operation for a particular disease, he does not know the medical terminology
of the disease, he had been treated for. The State Commission, therefore, held that it
was not a case of suppression of a pre-existing disease.
11.
The reference to medical literature on the subject as contained in the Research
Paper, Surgical Treatment for lipomyelomeningocele in children, Sheng-Li Huang, Wei

Shi, Li-Gen Zhang, World J Pediatr,Vol 6 No. 4 November 15, 2010 would show that,
Lipomyelomeningocele (LMM) is a closed neural tube defect or a subcutaneous mass,
which occurs approximately once in every 4000 births. The mass occurs when a fatty
mass protrudes posteriorly beyond the bony cavity of the intervertebral space with
meningeal
covering. A
the lumbosarcral region,
subcutaneous lipoma is
usually
at
the
midline,
typically
but
present
occasionally
in
placed
eccentrically. The lesion is not exposed to air and there is no drainage of cerebral
spinal fluid. Children with LMM may develop progressive neurological deterioration
characterized by varying degrees of lower extremity paralysis, decreased sensation and
neurogenic bowel and bladder.
12.
The research paper quoted above shows that children suffering from LMM suffer
from protrusion of a fatty mass in posterior region, but the issue is whether it can be
stated that this type of condition is an internal disease. The report given
by Dr. Pran Nath, the panel Doctor of the Company says that there was external
swelling in sacral region since birth. However, he concludes that it is a case of internal
congenital and external also, as well as pre-existing in nature. It appears that the report
of the panel Doctor is confusing on the issue of internal versus external. It may be
stated here that if a person is suffering from something like a defect in the heart-valve
since birth, abberant pancreas, ectopic pancreas or any other ailment in the internal
organs of the body, it could be termed as an internal congenital disease. In the present
case, reference to the medical literature quoted above indicates that the condition may
be more befitting to be called a congenital external disease. The exclusion clause in the
insurance policy is not attracted, therefore, in the present case.
13.
We, therefore, observe that the State Commission has rightly come to the
conclusion that there was no element of suppression of material facts or

misrepresentation of any kind on the part of the policy holder. We, therefore, find no
irregularity, illegality or jurisdictional error in the order passed by the State Commission
and the same is upheld. The revision petition is ordered to be dismissed. There shall
be no order as to costs.
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/

(From the order dated 12.06.2012 in First Appeal No. 1403/2009 of Haryana State
Abdul Rehman,
Haryana.
s/o Jumme Khan,
r/o Village Sonkh
tehsil Nuh District Mewat Nuh
... Petitioner/complainant
Versus
Oriental Insurance Co. Ltd. through its local office its Regional Manager, Old Railway
Road, Gurgaon.
Respondent/OP
BEFORE
Mr. S.A. Rajput, Advocate

ORDER
Haryana State Consumer Disputes Redressal Commission (for short the State
Commission) in FA No. 1403/2009, Oriental Insurance Co. Ltd. versus Abdul Rehman
vide which, while accepting appeal, the order dated 11.08.2009 passed by the District
Consumer Disputes Redressal Forum, Gurgaon, allowing the consumer complaint No.
186/2007 was set aside and the said consumer complaint was ordered to be
dismissed.
2.
Brief facts of the case are that the petitioner/complainant got his vehicle Tata 1613
SE, bearing registration No. HR 55 B 8969, insured with the respondent/OP Insurance
Company for the period from 14.06.2004 to 13.06.2005. it has been stated that the said
vehicle got stolen on 09.06.2005 during the subsistence of the policy. An FIR No. 144
dated 8.11.2005 was lodged with the local police and an intimation was given to the
Insurance Company also. However, when the Insurance Company failed to settle the
claim, the consumer complaint in question was filed before the District Forum,
requesting for payment of compensation/damages amounting to ` 8.25 lakh plus ` 15
lakh as compensation for mental harassment. The respondent/OP took the stand,
however, that the said complaint was not maintainable as the FIR was got registered
about five months after the date of alleged incident. Moreover, intimation about the theft
was never given to the Insurance Company. The District Forum vide their order dated
11.08.2009 allowed the complaint and directed the respondent/OP to pay a sum of ` 8.5
lakh to the complainant alongwith interest @9% p.a. from the date of filing the complaint
till realisation. However, an appeal filed against this order before the State Commission
was allowed vide impugned order dated 12.06.12, vide which the said complaint was
ordered to be dismissed. It is against this order that the present petition has been
made.
3.
At the time of admission hearing before us, learned counsel for the petitioner has
drawn our attention to a copy of letter dated 09.06.2005 addressed to the local Station
House Officer (SHO) of the Police Station, saying that intimation about the theft had
been given immediately to the Police after the incident took place. However, the Police
took an abnormal time of about 5 months in registering the FIR for which the
petitioner/complainant could not be held liable. The learned counsel further stated that
intimation about the alleged theft was orally given to the Insurance Company. The
complainant approached the OP many times, but they intentionally harassed the
complainant and did not satisfy his insurance claim.
4.
After the conclusion of the hearing, learned counsel of the petitioner submitted I.A.
No. 1725/2014 in the office on 14.03.2014, enclosing therewith a letter dated

18.05.2007 for appointing the surveyor by the respondent, Insurance Company. It has
been stated in the I.A. that a copy of the same had been served upon the Opposite
Party.
5.
consideration to the arguments advanced before us. It has been clearly admitted by the
petitioner during the course of arguments before us that written intimation about the
alleged incident of theft was not given by the petitioner/complainant to the Insurance
Company. It is clear, therefore, that the complainant has violated the terms and
conditions of the Insurance Policy and the State Commission rightly observed the same
in the impugned order. Moreover, the FIR in question, has been registered after a
period of five months after the alleged incident. A copy of the said FIR has been placed
on record. It has been mentioned in the FIR that information was received in the Police
Station on 08.11.2005 at 9:10 AM. On the copy of the application dated 09.06.2005
filed by the complainant, there is acknowledgement given by one Virender Kumar on
behalf of the Police on 09.06.2005, but in the absence of any credible evidence, it
cannot be believed that Police was informed immediately after the occurrence of alleged
incident. The State Commission has rightly relied upon the orders passed by the
National Commission in FA No. 321/2005 New India Assurance Company Limited
versus Trilochan Jane decided on 09.12.2009, in which the matter was reported to the
Police after 2 days and intimation was given to the Insurance Company after 9 days and
this delay was found fatal to the case of the claimant. The learned State Commission
has also placed reliance on the judgement of the Apex Court in Suraj Mal
Ram Niwas Oil Mills (P) Ltd. versus United India Insurance Co. Ltd. and another [as
reported in 2011 CTJ 11 (SC) (CP)] saying that the terms and conditions of the
Insurance Policy have to be strictly followed.
6.
Based on the discussion above, we do not find merit in this petition and the same
deserves to be dismissed at admission stage itself. We do not find any illegality,

irregularity or jurisdictional error in the orders passed by the State Commission. The
said order is, therefore, upheld and the present revision petition is ordered to be
dismissed with no order as to costs.
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/

(From the order dated 27.12.2013 in CC No. 26/2013 of Andhra Pradesh State
K. J. Deepak Reddy s/o K. Ashok Reddy, r/o flat no. 101, Plot No. 4, Venkatadri Nivas,
Nandamuri Nagar, Hydernagar, Hyderabad, A.P. 500085.
... Appellant/complainant
versus
1.
P. Vasantha w/o P. Venkata Ramana, Managing Partner, M/s. V.R. Realtors, Flat
No. 402, Swapna Nivas, MIG II, 715, Opp. Lane to BSNL Office, Road No. 3,
KPHB Colony, Kukatpally, Hyderabad, A.P. 500085.
2.
Sri P. Venkata Ramana Managing Partner, M/s. V.R. Realtors, Flat No. 402,
Swapna Nivas, MIG II, 715, Opp. Lane to BSNL Office, Road No. 3, KPHB
Colony, Kukatpally, Hyderabad, A.P. 500085.
3.
Sri K. Narayana Swamy r/o House No. 15-29-530, EWS Quarters, Road No. 3,
KPHB Colony, Kukatpally, Hyderabad A.P. 500085.
Respondent(s)/OPs
BEFORE
For the Appellant(s)
Mr. K. Ashok Reddy, Advocate

ORDER
This first appeal has been filed under section 19 of the Consumer Protection Act,
1986 against the impugned order dated 27.12.2013, passed by the Andhra Pradesh
Consumer Complaint No. 26/2013, K.J. Deepak Reddy versus P. Vasantha & Ors. vide
which the said consumer complaint was partly allowed. The complainant has filed the
present appeal requesting for passing the award as prayed for in the consumer
complaint.
2.
Brief facts of the case are that the appellant/complainant K.G. Deepak Reddy
filed the consumer complaint in question, saying that the OPs had published an
advertisement in the newspapers for the sale of flats in the newly-constructed
apartments at Hyderabad, following which he entered into an agreement for purchase of
flat, measuring 1380 sq. ft. for a consideration of ` 37 lakh and that, he paid a sum of ` 3
lakh as initial advance for the purpose. The respondents/OPs 1 & 2 are wife and
husband and the respondent 3 / OP 3 is their relative and business associate in their
real estate business. The entire transaction of sale was divided into two parts one for
agreement of sale for ` 21,02,000/- and the other was work order for the value of `
15,98,000/-, making a total of ` 37 lakh as sale consideration. The complainant,
alongwith his mother, obtained a housing loan of ` 30 lakh with interest @ 10.7% p.a.
from LIC Housing Finance Corporation Limited. The OPs executed a regular sale-deed
in favour of the complainant on 28.04.2012. The complainant incurred an expenditure
of ` 2 lakh for execution of registered sale-deed and spent ` 3 lakh for the wood work
and hence, he spent a total sum of ` 42 lakh for buying the said flat. It has been alleged
by the complainant that he was given an impression by the OPs that the entire
apartment building was regularised under the Building Penalisation Scheme (BPS), but
he found later on, that there was neither BPS regularisation nor the building had been
constructed as per the norms and regularisation of Greater Hyderabad Municipal
Corporation (GHMC). The complainants alleged that it was an unauthorised
construction and a clear-cut case of cheating and unfair trade practice, amounting to
deficiency in service on the part of the OPs. The complainant filed the consumer
complaint in question with the following prayer:Therefore it is prayed that the Honble Commission may be
pleased to pass an award and judgement in favour of the
complainant and directing the opposite parties jointly and
severally to:
a)
Get the Occupancy Certificate from the GHMC and hand

over the same to complainant
or
Pay the sum of `37,20,000/ (Rupees Thirty Seven Lakh
and Twenty Thousand only), the amount which is at stake
and uncertain because of non-regularisation of the flat
(apartment) under the BPS.
3.
b)
Pay a sum of ` 10,00,000/- (Rupees Ten lakh only)

towards the compensation for mental agony caused by
the deficiency of service of OPs.
c)
Pay the costs of this complaint.
d)
Pass such other and further orders as the Honble

Commission may deem fit and proper in the
circumstances of this complaint.
In their reply before the State Commission, the OPs stated that they never
published any advertisement in the newspapers. They stated that they never cheated
the complainant. In fact, a regularised plan was obtained by the vendors of the OPs,
from whom, they purchased the said property in June 2011, to develop the unfinished
building. The complainant had verified the facts before entering into an agreement with
them. The State Commission after taking into account the evidence of the parties,
passed the impugned order, the operative part of which reads as follows:In the result, the complaint is partly allowed, directing the
opposite parties 1 to 3 to refund an amount of Rs.37 lakhs
received by them towards sale consideration of the subject flat
to the complainant together with interest @ 10.70% P.A.. from
the dates of respective payments till realization by the Ops
together with a sum of Rs.1,50,000/- spent towards stamp
duty, registration charges and other incidental charges by the
complainant for registration of the sale deed and also a sum of
Rs.1,50,000/- towards wood work got done by him in the
subject flat and the complainant has to re-convey the title of
the subject flat duly in favour of the Ops by executing
necessary registered document by getting released the subject
Flat from the LIC Housing Finance Limited, so also, costs of
Rs.10,000/-. Ops have to deposit the amount to be paid to the
complainant described supra in this Commission and on such
deposit, the complainant has to execute conveyance deed as
ordered in favour of the Ops and then withdraw the amount so
deposited. Time for compliance four weeks from the date of
receipt of this order. Alternatively, it is further ordered that if
complainant wants to get the said construction regularized
under relevant scheme there is no need to follow the above
order by both of them and the Ops have to reimburse
necessary charges legally to be paid by the complainant to the
concerned and cooperate him by subscribing their signatures
on necessary applications etc.
4.
At the time of hearing before us, the learned counsel for the appellant /
complainant stated that the relief as asked for in the complaint should have been
provided to the appellant/complainant. He stressed that it was the duty of the OPs to
obtain necessary occupancy certificate from the concerned authorities and hand over
the same to the complainant. The complainant had been put to a lot of mental
harassment on account of the fact that the necessary occupancy certificate was not
obtained from the GHMC.
5.
consideration to the arguments advanced before us. A perusal of the consumer

complaint in question reveals that the complainant requested for a direction to the OPs
to get occupancy certificate from the GHMC, OR, in the alternative to pay a sum of `
37.20 lakh to him alongwith ` 10 lakh as compensation for deficiency in service / mental
agony and the cost of the complaint. The State Commission vide impugned order, have
allowed refund of an amount of ` 37 lakh received as sale consideration of the flat,
alongwith interest @ 10.70 p.a. from the date of the payment till realisation. The State
Commission have also allowed the sum of ` 1.5 lakh towards stamp duty, registration
charges etc. and also ` 1.5 lakh for the wood work got done by the complainant. The
State Commission have also stated that if the complainant wanted to get the said
construction regularised, the OPs shall have to reimburse the necessary charges,
legally to be paid by the complainant and also cooperate with him by submitting the
necessary documents etc.
6.
It is made out from the order passed by the State Commission that they have
already allowed relief to the appellant / complainant by ordering refund of the sale
consideration of ` 37 lakh, alongwith `_1.5 lakh as registration charges etc. and ` 1.5
lakh for the wood work got done by the complainant. The State Commission have also
ordered payment of interest @10.7% p.a., the amount being charged by the financer. It
is worthwhile to observe that the State Commission have also given an alternative vide
impugned order that if the complainant wanted to get the matter regularised, he may do
so and the OPs shall have to cooperate with him in submitting the necessary
documents and reimbursing the legal expenditure incurred in getting the matter
regularised. The order of the State Commission has been made by carrying out a
rational analysis of the facts and circumstances on record, and the relief asked for in the
complaint has been provided to a substantial and reasonable extent. We do not find
any illegality, infirmity or jurisdictional error in the said order and there is no need to
make any modification in the said order. The appeal is, therefore, ordered to be
dismissed at admission stage and the orders passed by the State Commission
upheld. There shall be no order as to costs.
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/

FIRST APPEAL NO.19 of 2009
(From the order dated 31.10.2008 in Complaint No.110/0/2000
West Bengal State Consumer Disputes Redressal Commission.)
of
the
1. Dr. Baidya Nath Chakraborty, Consultant of Institute of Reproductive Medicine DD18/5/1,Salt Lake City, Kolkata 700064
2. Dr. Manju Chakraborty W/o Dr. Baidyanath Chakraborty Doctor-in-Charge of
Institute of Reproductive Medicine DD-18/5/1, Salt Lake City, Kolkata 700064 And
Doctor-in-Charge of M/s Merryland Nursing Home No. P-46, C.I.T. Road, Kolkata
700014.
3. Institute of Reproductive Medicine DD-18/5/1, Salt Lake City, Kolkata 700064.
..Appellants
Vs.
1. Shri Chandi Bhattacharjee,S/o Late Sachindranath Bhattacharjee, R/o, Premises
No. 17/1, Ekdalia Road, Kolkata 700019
Contesting Respondent
2. Merryland Nursing Home No. P-46, C.I.T. Road, Kolkata 700014.
3. The Peerless Hospital & B.K. Roy Research Centre, 360, Panchasayar, Kolkata
700001.
..Proforma Respondents
BEFORE: HONBLE MR. JUSTICE D.K. JAIN, PRESIDENT
For the Appellant
For Respondent No.1 :
:
Mr. S.K. Ghosh and
Mrs. Rupali Ghosh, Advocates
In person.
ORDER
(Pronounced on 24 day of April, 2014)
D.K. JAIN, J. PRESIDENT
This appeal under Section 19 of the Consumer Protection Act, 1986 (for short
the Act), has been preferred by the Consultant (Appellant No. 1), the doctor-incharge (Appellant No. 2) and the Institute of Reproductive Medicine, Kolkata
(Appellant
No. 3), questioning the correctness and legality of order dated 31.10.2008 passed by
the State Consumer Disputes Redressal Commission, West Bengal (for short the
State Commission) in Complaint No. 110/0/2000. By the impugned order, the State
Commission has, inter alia, directed Appellants No. 1 and 2 to pay to the Complainant a
sum of `1.5 lakhs and `1 lakh respectively as compensation with costs, etc., on account
of medical negligence on their part in treating and taking care of his wife and their
preterm baby, who died within few hours of his birth.
2.
The salient facts, as narrated in the Complaint, are that after two miscarriages, the
Complainant and his wife decided to consult Appellant No. 1, Dr. Baidya Nath
Chakraborty, considered to be a specialist in reproductive medicine. The doctor
examined the lady on 17.01.1996 and 11.04.1996 and prescribed certain medicines,
whereafter she conceived the third time. On one of the visits to Appellant No. 3 Institute,
on 22.01.1997, a consent form for treatment at the Institute was got signed from the
Complainant and his wife. On 10.02.1997, when his wife felt discomfort, she was taken
to the Institute where she was advised to get admitted in one Merryland Nursing Home,
Opposite Party No. 4 in the complaint and Respondent No.2 in this Appeal, as it was
stated that the deliveries of all patients under the treatment of Appellant No.1 were
performed at the said Nursing Home, managed by Appellant No 2; certain medicines
were prescribed by the doctor and she was discharged. Again on 04.03.1997, for the
same discomfort, when she was in her 28 th week of pregnancy, she had to be admitted
to the same Nursing Home. She was attended to by the same doctor who had attended
on her on the earlier occasion. While she remained admitted in the said Nursing Home,
neither Appellant No. 1 nor Appellant No. 2 visited her. On 08.03.1997, i.e. after four
days of her admission, from 12.30 p.m. to 7.30 p.m., while she was trembling and was
in great pain still despite repeated requests, Appellant No. 1 did not examine her as he
was stated to be busy in a seminar. It was around 9.30 p.m., that Appellant No. 2, wife
of Appellant No.1, performed the preterm delivery in the absence of any Neonatologist.
Since there was no arrangement for neonatal care in the Nursing Home for a preterm
infant, at Complainants request, the Nursing Home staff contacted one Dr. Amit Roy, a
Neonatologist, who advised them to shift the baby to the Peerless Hospital and B.K.
Roy Research Centre, Respondent No. 3 in this appeal. The baby was shifted to the
said hospital in a taxi and admitted around at 2.10 a.m. on 09.03.1997. However, he
expired the same morning at 8.55 a.m.
3.
Alleging gross negligence on the part of the Appellants, the Complainant filed
complaint under Section 17 of the Act, praying for compensation of `10 lakhs for the
death of the baby and for loss of mental balance of his wife because of excessive
shock, mental and physical pain/torture on account of death of the child.
4.
The complaint was contested by the Appellants as also by the Nursing Home. A
common written statement was filed by Appellants No. 1 to 3. The Nursing Home and
Peerless Hospital filed their separate objections. All the allegations of medical
negligence either in diagnosis, prescription of medicines or inadequate attention by the
Nursing Home were denied. It was stated that when Complainants wife experienced
labour pain on 08.03.1997, Appellant No. 2 had herself conducted the delivery, which
was normal; she had herself contacted the Neonatologist at the Peerless Hospital and
arranged for shifting of the infant to the said hospital. It was also stated that the
exigency for shifting of the baby to the Peerless Hospital had been duly explained to the
Complainant and his wife on their very first visit and they had given their consent to
such arrangement by voluntarily signing the consent form. However, as the baby was
preterm and chances of his survival were dim, the Neonatologist at the Peerless
Hospital could not save him despite best efforts.
5.
On appraisal of the documents and the evidence led by the parties on affidavits
and interrogatories, the State Commission has come to the conclusion that the
Complainant and his wife wanted to be treated exclusively by Appellant No. 1 and had
been consulting him from time to time but at the crucial time, he did not turn up to attend
to his patient, despite his being in Kolkata attending some seminar; he did not bother to
examine her either on 04.08.1997 or on 08.03.1997; on 08.03.1997 the delivery was
performed by Appellant No. 2, even though Appellant No. 1 had taken upon himself the
responsibility for diagnosis and treatment of wife of the Complainant as she was a high
risk patient; he did not make himself available for treating her during emergency;
despite being a high risk patient(case of preterm labour), the delivery procedure was
performed at a Nursing Home where neonatal facilities were not available; after the
birth of the premature baby, no proper arrangement was made for shifting him to the
Peerless Hospital, and the baby was carried in a Taxi exposing him to increased risk to
life. Thus, holding Appellants No. 1 and 2 to be negligent in treatment of the mother and
proper care of her preterm baby, the State Commission has directed them to pay to the
Complainant the aforesaid amounts with a further direction that if the said amounts are
not paid within two months from the date of the order, interest @ 10% p.a. shall be
payable thereon for the entire period of default. Hence the present appeal.
6.
We have heard Mr. Sanjay Kumar Ghosh, Learned Counsel for the Appellants.
The Complainant, appeared in person and supported the impugned order.
7.
Ld. Counsel for the Appellants submitted that the order of the State Commission is
erroneous inasmuch as a finding of medical negligence has been recorded without
there being any expert medical opinion, suggesting or proving such negligence on the
part of the Appellants. It was pleaded that merely because Appellant No. 1 was not
present at the time of delivery, which could not be pre-scheduled and was undertaken
on emergency basis, it cannot be held that he was medically negligent. It was asserted
that
best
possible
treatment
was
provided
by
Appellant
No.
2, a senior gynecologist and a member of the team of
doctors working under direct supervision and guidance of Appellant No. 1. It was
argued that when the wife of the Complainant was admitted in the Nursing Home, he
was duly informed that the said Nursing Home did not have neonatal facilities and,
therefore, in case of any need the preterm baby may have to be shifted to another
Hospital having such facilities. The Complainant having consented to the arrangement
and voluntarily signed the consent form, the State Commission erred in holding
Appellants No. 1 & 2 grossly negligent for not admitting the patient in a hospital where
neonatal facilities were available. The Complainant, on the other hand, while supporting
the decision of the State Commission pleaded that in the light of the observations and
findings of the State Commission, in fact the compensation awarded deserves to be
enhanced.
8.
The principal question for consideration is as to whether there was any medical
negligence, and/or deficiency in service on the part of Appellants No. 1 & 2, both at the
pre-delivery and post-delivery stages in the treatment of Complainants wife and in
providing neonatal facilities to the preterm infant?
9.
Generally speaking, Negligence is the omission to do what the law requires, or
the failure to do anything in a manner prescribed by law. It is the act which can be
treated as negligence without any proof as to the surrounding circumstances, because it
is contrary to the dictates of ordinary prudence. Negligence is strictly nonfeasance and
not malfeasance. (See: Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee & Ors. and
Kunal Saha (Dr.) Vs. Dr. Sukumar Mukherjee & Ors. (2009) 9 SCC 221.)
10. The term negligence defies any precise meaning. Eminent jurists and leading
Judgments on the point have assigned various meanings to the said term. In the Law
of Torts, Ratanlal & Dhirajlal (26 th Ed., 2010) at page 474, Justice G.P. Singh,
summarized the concept of negligence as follows:-
Negligence is the breach of a duty caused by the omission to do

something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs would do, or doing
something which a prudent and reasonable man would not do. Actionable
negligence consists in the neglect of the use of ordinary care or skill
towards a person to whom the defendant owes the duty of observing
ordinary care and skill, by which neglect the plaintiff has suffered injury to
his person or property. According to Winfield, negligence as a tort is the
breach of a legal duty to take care which results in damage, undesired by
the
defendant
to
the
plaintiff. The
definition
involves
three constituents ofnegligence: (1) A legal duty to exercise due care on
the part of the party complained of towards the party
complaining the formers conduct within the scope of the duty; (2) Breach
of the said duty; and (3) consequential damage.
11. Halsburys Laws of England (Fifth Ed. Vol. 78) states the nature of negligence
liability as under:Negligence is a specific tort and in any given circumstances is the failure
to exercise that care which the circumstances demand. What amounts to
negligence depends on the facts of each particular case. It may consist in
omitting to do something which ought to be done or in doing something
which ought to be done either in a different manner or not at all.
12. The law of negligence applies to doctors, as it applies to other professionals like
lawyers, architects, etc., as they are required to perform the task assigned to them with
the requisite skill and expertise possessed by them for performing that task. Any
reasonable man entering into a profession which requires a particular level of learning
to be called a professional of that branch, impliedly assures the person dealing with him
that the skill which he professes to possess shall be exercised with reasonable degree
of care and caution.
13. In Bolam V. Friern Hospital Management Committee (1957) 2 All ER 118 (QBD),
oft-quoted as Bolam test, generally accepted as a true enunciation of the meaning of
the expression negligence by the medical practitioners, McNair J. said:
In
the
ordinary
case
which
does
not
any special skill, negligence in law means this: Some
involve
failure to do some act which a reasonable man in the circumstances would

do, or doing some act which a reasonable man in the circumstances
would not do; and if that failure or doing of that act results in injury, then
there is a cause of action. How do you test whether this act or failure is
negligent? In an ordinary case it is generally said, that you judge that by
the action of the man in the street. He is the ordinary man. In one case it
has been said that you judge it by the conduct of the man on the top of
a Clapham
omnibus. He is the ordinary man. But where you get a situation which
involves the use of some special skill or competence, then the test as to
whether there has been negligence or not is not the test of the man on the
top of a Clapham omnibus. Because he has not got this special skill. The
test is the standard of the ordinary skilled man exercising and professing
to have that special skill. A man need not possess the highest expert skill
at the risk of being found negligent. It is well-established law that it is
sufficient if he exercises the ordinary skill of an ordinary competent man

exercising that particular art. (Emphasis supplied).
14. In Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1, a three Judge Bench
of the Supreme Court, discussed the law of negligence under Tort Law, in
extenso. Chief Justice R.C. Lahoti, speaking for the Bench observed that negligence
becomes actionable on account of injury resulting from the act of omission amounting to
negligence attributable to the person sued. It was held that essential components of
negligence, as recognized, are three: duty, breach and resulting damage, that is to
say:
(1) the existence of a duty to take care, which is owed by the defendant to
the complainant;
(2) the failure to attain that standard of care, prescribed by the law,
thereby committing a breach of such duty; and
(3) damage, which is both causally connected with such breach and
recognized by the law, has been suffered by the complainant.
If the claimant satisfies the court on the evidence that these three
ingredients are made out, the defendant should be held liable in
negligence.
Observing that the test for determining medical negligence as laid down in Bolam
case (supra) holds good in its applicability in India, the Honble Court inter-alia, came to
the following conclusions:(i)
Negligence is the breach of a duty caused by omission to do

something which a reasonable man guided by those considerations
which ordinarily regulate the conduct of human affairs would do, or
doing something which a prudent and reasonable man would not
do.
(ii)
A simple lack of care, an error of judgment or an accident, is not

proof of negligence on the part of a medical professional. So long
as a doctor follows a practice acceptable to the medical profession
of that day, he cannot be held liable for negligence merely because
a better alternative course or method of treatment was also
available or simply because a more skilled doctor would not have
chosen to follow or resort to that practice or procedure which the
accused followed.
(iii)
A professional may be held liable for negligence on one of the two

findings: either he was not possessed of the requisite skill which he
professed to have possessed, or, he did not exercise, with
reasonable competence in the given case, the skill, which he did
possess. The standard to be applied for judging, whether the
person charged has been negligent or not, would be that of an
ordinary competent person exercising ordinary skill in that

profession.
15. In so far as the duties which a doctor owes to his patient are concerned, in Dr.
Laxman Balkrishna Joshi V. Dr. Trimbak Bapu Godbole (1969) 1 SCR 206: AIR 1969 SC
128 the Supreme Court, dealing with a case under the Fatal Accidents Act, 1855,
observed that a person (doctor) who holds himself out ready to give medical advice and
treatment impliedly undertakes that: (i) he is possessed of skill and knowledge for that
purpose; (ii) when consulted by a person, such a person owes a duty of care in deciding
whether to undertake the case; (iii) a duty of care in deciding what treatment to give;
and (iv) a duty of care in the administration of that treatment. A breach of any of these
duties would give a right to the patient of action for negligence against the doctor. (Also
see: Indian Medical Association Vs. V.P. Shantha & Ors. (1995) 6 SCC 651; Kusum
Sharma Vs. Batra Hospital (2010) 3 SCC 480.
16. It is therefore, trite that a doctor cannot be held negligent if he has acted with
normal care, in accordance with a recognized practice accepted as proper by a
responsible body of medical men, skilled in that particular field, even though there may
be body of opinion that takes a contrary view. Nevertheless, if a doctor professes that
he is a specialist, possessing some special skills to deal with a particular ailment or
condition, he is expected to exercise a higher degree of care than a general practitioner,
whose conduct is to be judged on a different parameter. A specialists duty to observe
due care has to be equivalent to that of a similar specialist possessing the requisite skill
in that particular branch of medicine. To put it pithily, the conduct of a general
practitioner is to be judged on the touchstone of the conduct of a general practitioner,
whereas the conduct of a professed specialist has to be at par, if not better, with the
conduct of a similarly skilled specialist. Thus, a specialist has to exercise a higher
degree of care than a generalist. Further, even amongst specialists if one specialist
claims that he is better skilled as compared to others in the same field, the general
perception and expectation in the mind of the patient would be of a better and higher
degree of treatment and care as compared to other specialists. This expectation
imposes a greater degree of care upon such a super specialist.
17. In the present case, it is not in dispute that the Complainant and his wife had
consulted Appellant No. 1 for their problem of recurring miscarriages, as a specialist for
treatment of couples with problems of infertility and recurrent pregnancy wastage; the
lady was under treatment of Appellant No. 1 and in fact, on his advice, on 22.11.1996
she was admitted in Appellant No. 3 Institute and on 24.11.1996 Shirodkars stitch was
performed by Appellant No. 2 and she was discharged on 27.11.1996 and she was
again examined by Appellant No. 1 on 22.01.1997, who advised proluton depot, a
progesterone, considered to be beneficial in reducing the risk of preterm delivery. On
this date, a consent form was also got signed from the Complainant and his wife. In so
far as the eventful period from 10.02.1997 to 08.03.1997 is concerned, the stand of the
Appellants, in their common Written Statement was as follows:
(m) When on February 10, 1997 the wife of the complainant/petitioner felt
some discomfort she went to the Institute of Reproductive
Medicine. As most of the doctors there, including the opposite
party no. 1, were away attending a medical conference at Science
City, the duty nurse advised the complainant/petitioner to admit his
wife into Merryland Nursing Home, where she was looked after by
Dr. Nirmal Das till the opposite party no. 2 arrived and took charge
of the patient. After the pain had subsided she was discharged
and was advised by the opposite party no. 2 to continue the
medicines prescribed by the opposite party no. 1 up to the next

check-up date i.e. up to March 12, 1997.
(n)
On March 4, 1997 the complainant/petitioners wife again

experienced
some
discomfort
and
got herself admitted to Merryland Nursing
Home. As the opposite party no. 1 was not available and the
opposite party no. 2 was attending to her other patients at the
clinic, the abovementioned Dr. Nirmal Das attended to the
patient. He had a discussion with the opposite party no. 2 before
prescribing Duvadilan to delay labour by a few hours. The
opposite party no. 2 arrived soon and by that time the wife of the
complainant/petitioner was feeling well.
(o)
On March 8, 1997 when the complainant/petitioners wife

experienced labour pain the opposite party no. 2 herself
conducted the delivery of the baby. She contacted the
neonatologist at the Peerless Hospital and arranged for the
transfer of the baby to the said hospital. The need for such
transfer to Peerless Hospital had been told to the
complainant/petitioner and his wife at their first antenatal visit and
they readily consented to such arrangement and voluntarily signed
the consent from. However as the baby was premature the
chances of survival were limited and in spite of all his efforts, Dr.
Amit Roy, the neonatologist at Peerless Hospital could not save
the baby.
(p)
The opposite party no. 2, whose qualifications and experiences will

show that Dr. Baidyanath Chakroborty had rightly entrusted her
with his responsibilities in his absence, continued to attend to the
wife of complainant/petitioner till she was discharged on March 13,
1997. The opposite party no. 2 is an M.B.B.S., D.G.O., M.D. and
has been working as Senior clinical consultant, Institute of
Reproductive
Medicine at HB/36/A/3, Sector-III, Salt Lake,
Calcutta
-64. She has to her credit twenty scientific papers as first and coauthor published in different national and international
journals.
18. It is manifest from the above, that Appellant No. 1 did hold out that he specialized
in treatment of couples with problems of infertility and recurrent pregnancy wastage and
his Institute, Appellant No. 3, had become a pioneer in this filed in the Eastern part of
India. It was claimed that they were training students and offering treatment facilities
in Reproductive Medicines. In other
words, it was represented that in eastern region he and the Institute was providing best
treatment to the patients suffering from the said problems. Undoubtedly, such claims do
raise legitimate expectation in the mind of the patient that he or she would get best
possible treatment and care from such a doctor/institute professing such claims. It can
reasonably be inferred that in the instant case, having already suffered two
miscarriages, the Complainant and his wife consulted Appellant No. 1 with the hope that
being a specialist, they would get best possible treatment and care from the Appellants.
19. It needs little emphasis that ante natal care is an extremely important and integral
part of medical care. In the present case, in his cross-examination, Appellant No. 1,
admitted that: Complaints wife was a high risk patient; on 10.02.1997 she
was attended to only by a junior Doctor viz. Dr. Pratima Dasgupta as he and
his other doctors were attending a Conference in the Science City Auditorium; although
the presence of a Neonatologist is essential at the time of pre-mature delivery but at
the time of delivery of Complainants wife, a Neonatologist was not present because the
delivery was not preplanned. He, however, did not remember whether he had ever
visited Merryland Nursing Home during the period from 04.03.1997 to 13.03.1997, when
Complaints
wife
was
admitted
there. We are of the opinion
that
the
Appellants, particularly
Appellant No. 1, had failed to provide to the Complainant and his wife the requisite ante
natal care, which they were required to provide. It is clear that neither on 10.02.1997
nor during the critical period between 04.03.1997 to 08.03.1997, when she was in
labour, Appellant No. 1 visited the patient even once as he was stated to be busy in
Seminar in the city. Further, it is also hard to believe that during her admission in
Merryland Nursing Home of which, Appellant No.2 was also Doctor-in-charge, the
doctors attending on her could not anticipate a preterm delivery. It is evident from the
statement of Appellant No. 1, that Dr. Pratima Dasgupta, an MBBS was acting on the
instructions of Appellant No. 1. In his statement, he admitted that Dr. Pratima Dasgupta
and Dr. Manju Chakraborty, MD, Appellant No. 2, who had performed preterm delivery,
were part of his team and thus, fully aware that Complainants wife was a high risk
patient, yet they did not make necessary preparations for a preterm delivery (28 week
gestation) and preterm infant.
20. In Dewhursts Textbook of Obstetrics & Gynaecology, Prof. Phillip Bennett has
opined that rates of neonatal morbidity and mortality are higher in babies transferred ex
utero to neonatal intensive care units when compared to those born in the tertiary
referral centre. Every effort should therefore be made to transfer a woman to an
obstetric unit linked to a neonatal intensive care unit prior to a preterm
delivery. Admittedly, no neonatal facilities were available in Merryland Nursing Home,
where preterm delivery was conducted. Even a Neonatologist was not available at the
time of the delivery and the baby was shifted to Peerless Hospital in a Taxi and not in an
ambulance and that too after more than 2 hours of his birth. We are of the opinion that
in the instant case, Appellants No.1 & 2 failed to provide the degree of care expected of
a specialist. The three ingredients of negligence as enunciated in Jacob Mathew
(supra) are established and, therefore, the Appellants are clearly guilty of medical
negligence.
21. The next question arising for consideration is whether the Appellants can put forth
as defence, the consent form signed by the Complainant and his wife on 22.01.1997, to
cover up negligence on their part in failing to provide adequate treatment and care to
Complainants wife, and their preterm baby, as expected of a specialist in that field?
22. There has always been a debate on the nature and extent of information that is
required to be disclosed by a doctor to secure a valid and informed consent from a
patient. Here in India, as against stringent standards regarding disclosure of
information to the patient, now being adopted in some countries, the Bolam test, as the
measure of doctors duty to disclose information about the potential consequences and
risks of proposed medical treatment is being applied.
23. In Samira Kohli Vs. Dr. Prabha Manchanda & Anr. (2008) 2 SCC 1, while
explaining the principle with regard to patients consent, a three Judge Bench of the
Supreme Court observed that:
Consent in the context of a doctor-patient relationship, means the grant of
permission by the patient for an act to be carried out by the doctor, such
as a diagnostic, surgical or therapeutic procedure. Consent can be
implied in some circumstances from the action of the patient. For
example, when a patient enters a dentists clinic and sits in the dental
chair, his consent is implied for examination, diagnosis and
consultation. Except where consent can be clearly and obviously implied,
there should be express consent. There is, however, a significant
difference in the nature of express consent of the patient, known as real
consent in UK and as informed consent in America. In UK, the
elements of consent are defined with reference to the patient and a
consent is considered to be valid and real when (i) the patient gives it
voluntarily without any coercion; (ii) the patient has the capacity and
competence to give consent; and (iii) the patient has the minimum of
adequate level of information about the nature of the procedure to which
he is consenting to. On the other hand, the concept of informed consent
developed by American courts, while retaining the basic requirements of
consent, shifts the emphasis on the doctors duty to disclose the
necessary information to the patient to secure his consent. Informed
consent is defined in Tabers Cyclopedic Medical Dictionary thus:-
Consent that is given by a person after receipt of the following

information: the nature and purpose of the proposed procedure or
treatment; the expected
outcome and the likelihood of success; the risks; the alternatives to the
procedure
and
supporting
information regarding those alternatives; and the
effect of no treatment or procedure, including the effect on the prognosis
and the material risks associated with no treatment. Also included are
instructions concerning what should be done if the procedure turns out to
be harmful or unsuccessful.
Referring to several Indian and foreign decisions on the point, and preferring the
concept of real consent evolved in Bolam Case (supra), the Honble Court, inter-alia,
summarized the principles relating to consent, as follows:
(i) A doctor has to seek and secure the consent of the patient before
commencing a treatment (the term treatment includes surgery
also). The consent so obtained should be real and valid, which
means that: the patient should have the capacity and competence to
consent; his consent should be voluntary; and his consent should be
on the basis of adequate information concerning the nature of the
treatment procedure, so that he knows what he is consenting to.
(ii) The adequate information to be furnished by the doctor (or a

member of his team) who treats the patient, should enable the
patient to make a
balanced judgment as to whether he should submit himself to the
particular treatment or not. This means that the doctor should
disclose (a) nature and procedure of the treatment and its purpose,
benefits and effect; (b) alternatives, if any, available; (c) an outline of
the substantial risks; and (d) adverse consequences of refusing
treatment. But there is no need to explain remote or theoretical risks
involved, which may frighten or confuse a patient and result in
refusal of consent for the necessary treatment.
Similarly, there is no need to explain the remote or theoretical risks
of refusal to take treatment which may persuade a patient to undergo
a fanciful or unnecessary treatment. A balance should be achieved
between the need for disclosing necessary and adequate information
and at the same time avoid the possibility of the patient being
deterred from agreeing to a necessary treatment or offering to
undergo an unnecessary treatment.
24. It has thus been held that consent of the patient has to be on the basis of
adequate information concerning the nature of the treatment procedure, so that he
knows what he is consenting to. Adequate information should enable the patient to
make a balanced judgment as to whether he should submit himself to the particular
treatment or not, and it would include disclosure of information regarding alternatives, if
any available.
25. Bearing in mind the afore-noted broad principles, we advert to the facts at hand.
The consent form on which the signatures of the Complainant and his wife,
consenting to the treatment at Appellant No. 3 Institute, even in the absence of
antenatal monitoring facilities and neonatal care at Merryland Nursing Home, where
Appellant No. 3s patients were confined for delivery, were obtained, is extracted below:
We would be happy to enroll you in our clinic at Institute of Reproductive
Medicine. We would like to bring to your notice the facilities which we
have during treatment including our limitations. In spite of all this if you
feel you want to avail our treatment we will feel delighted to accept you.
Maternal aspects:-
Observation and treatment either at Instiutute of Reproductive Medicine or

Merryland Nursing Home with its existing facility.
Confinement:-
At Merryland Nursing Home. Sophisticated antenatal monitoring facilities

are not regularly available.
If such is mandatory shifting of patient to Bellevue Clinic is necessary.
For the New Born:-
Grade-I care is necessary for problem of infection, prematurity, severe

jaundice etc. requiring intensive care the limitations are obvious at
Merryland Nursing Home. In such cases babies have to be sent to
centres with more sophisticated neonatal set up.
Finally the patients we deal with are all very high risk complicated cases,
including the neonates. Even with our limitations we will give the best
efforts for the
patients. In spite of this catastrophies can occur as does happen even in
the best centres. Such obvious facts have to be realised and
accepted. Enlighting you with all these, we would then ask for your
approval and acceptance of our treatment.
We after fully understanding the implication of the contents of this consent

form hereby agree to accept the necessary investigations and treatment.
(Emphasis supplied).
26. It is true that the consent form did disclose to the Complainant and his wife that
neither at the Appellant Institute nor at Merryland Nursing Home, sophisticated
antenatal monitoring facilities were available and that for the new born, particularly
preterm, Grade I care, was lacking in Merryland Nursing Home. We wonder whether in
the first place the Complainant and his wife, a high risk patient, could appreciate
the consequences and substantial risks of non-availability of neonatal facilities in the
event of preterm delivery. Nevertheless, assuming that on 22.01.1997, when the
consent was obtained, Appellants No. 1 and 2 did not anticipate a preterm delivery
necessitating a sophisticated antenatal monitoring system and neonatal intensive care
unit, we are unable to fathom any reason why on her admission in Merryland Nursing
Home on 04.03.1997, in labour with 28 weeks gestation, the Complainant was not
advised to shift his wife to a Hospital which had neonatal intensive care unit. In the
Written Statement, there is no indication as to whether such an advice was rendered or
that patients condition did not permit her removal to another hospital. Under these
circumstances, we are of the opinion that the consent procured by the Appellants does
not absolve them from their obligation to render due care to the Complainants wife and
their preterm baby, and therefore, it cannot be used as a defence for their negligence.
27. In the final analysis, we are in complete agreement with the State Commission
that Appellants No. 1 & 2 were negligent in respect of treatment and care of the wife of
the Complainant and their preterm baby. The appeal is bereft of any merit and is
dismissed accordingly. The prayer for enhancement of Compensation is also
rejected. If the compensation and interest as awarded by the State Commission has
not been paid so far, the same shall be paid within four weeks of the date of receipt of a
copy of this order, failing which, the Appellants will be liable to pay interest @ 12% p.a.
on the entire decretal amount, including interest as awarded in the impugned order,
from 31.10.2008 i.e. date of the impugned order, till realization. On payment of full
amount in satisfaction of this order, the amount deposited by the Appellants with the
State Commission in terms of order dated 02.03.2009 shall be refunded to them along
with interest accrued, if any. The Complainant shall also be entitled to costs quantified
at `50,000/-.
.
(D.K. JAIN, J.)
PRESIDENT
(VINEETA RAI)
MEMBER
ar

REVISION PETITION NO.1184 of 2014
(From the Order dated 05.09.2012 in Appeal No. 1241/2007 of the State Consumer
Disputes Redressal Commission, UP)
1. Union of India through Secretary, Ministry of Telecommunication, New Delhi.
2. Superintendent of Post Offices, Deoria Division, Deoria.
: Petitioners.
Vs.
Krishna Kumar Mani Tiwari S/o Ram Sunder Mani Tiwari, retired Up Dakpal
r/o Deoria Ram Nath, PS Kotwali, District Deoria.
: Respondent
For the Petitioner
Dr. Uday Veer Singh, Advocate.
ORDER
(Pronounced on 24 day of April, 2014)
D.K. JAIN, J. PRESIDENT
This Revision Petition under Section 21(b) of the Consumer Protection Act,
1986 (for short the Act) has been preferred by the Union of India through Secretary,
Ministry of Telecommunication, New Delhi and the Superintendent of Post
Offices, Deoria Division, Deoria, challenging the order, dated 05.09.2012, passed by
the UP State Consumer Disputes Redressal Commission, Lucknow (for short the
State Commission) in Appeal No. 1241 of 2007, whereby the Appeal has been
dismissed in default on account of non-appearance of their Counsel at the time of
hearing. In Appeal before the State Commission, the Petitioners had questioned the
legality
of
order
dated
25.04.2007
passed
by
the
District
Consumer
Disputes Redressal Forum, Deoria (for short the District Forum) in Complaint No.
549 of 2006, inter alia, directing the Petitioners to pay to the Complainant, a sum
of `10,000/- withheld by them along with a sum of`70,000/- towards interest, etc.
2.
Shorn of unnecessary details, the material facts giving rise to the present
Revision Petition are that while working as Assistant Cashier, Deoria Division Head
Office, disciplinary proceedings were initiated against the Complainant for alleged
negligence on his part in not sealing the bag in which, an amount of`15,000/- was to
be sent to another sub post office. For the said lapse a penalty of `10,000/- was
imposed on him vide order dated 15.02.1990. The said amount was recovered from
him on 04.11.1992. However, the said order was quashed by the Central
Administrative Tribunal Allahabad Bench, by order dated 07.06.1996. Although the
said order was accepted by the Petitioners, yet the said amount of `10,000/recovered from him on 04.11.1992, by virtue of penaltyorder dated 15.02.1990, was
not refunded. The Complainant superannuated on 31.01.2006. Even at the time of
settlement of his dues on retirement, the aforesaid amount was not refunded to
him. Having failed in all his attempts to get back the said amount, alleging
deficiency in service on the part of the Petitioners, the Complainant filed the
aforesaid Complaint.
3.
The Petitioners resisted the Complaint on the ground that : (i) the Complaint
under the Act was not maintainable as he was not a Consumer, (ii) having kept
quiet for over ten years the Complaint was barred by limitation and (iii) the Complaint
was defective as the Director, Postal Services was not impleaded as a party.
However, the written statement filed on their behalf was silent in so far as the claim
for refund of the said amount was concerned. On consideration of the pleadings and
evidence on record, the District Forum accepted the Complaint and directed the
Petitioners to pay to the Complainant the aforesaid amounts, along with a sum
of `10,000/- as compensation for mental and physical agony and `2,000/- as litigation
expenses. The Petitioners appeal having been dismissed, they are before us in this
Revision Petition.
4.
The main ground on which the orders of the fora below are sought to be
challenged is that in view of the decision of the Honble Supreme Court

inJagmittar Sain Bhagat & Ors. Vs. Director, Health Services, Haryana & Ors. (2013)
10 SCC 136, holding that a government servant cannot raise any dispute regarding
his service conditions or for payment of gratuity or GPF or any of his retiral benefits
before any of the Forums constituted under the Act, the District Forum committed a
serious error of law in entertaining the Complaint and in issuing the afore-noted
directions.
5.
Before considering the afore-noted issue, it would be necessary to dispose of
the application filed by the Petitioners for condonation of delay of 324 days in filing
the Revision Petition. In the supporting affidavit filed with the application, the
explanation furnished for the delay is as under:3. That the Divisional Office vide its letter dated 10.04.2013 informed the
Regional Office, Gorakhpur about the dismissal of appeal for non prosecution
of parties. The copy of the said letter was also sent to Addl. Central Govt.
Counsel at Lucknow for making efforts in respect of restoration of aforesaid
order.
4.
That as per information given by the then counsel, after vetting of
affidavit in support of application for recalling the order dated 05.09.2012, the
application for recall was preferred before the Honble State Commission. In
the mean time, the complainant/ respondent initiated the execution
proceeding and a counsel was contacted who advised to comply with the
orders of learned D.C.F. dated 25.04.2007 passed in Consumer Case No.
549 of 2006. To avoid any adverse situation, the revisionists complied with
the order and submitted a cheque of `82,000/- in DCF, Deoria on
25.06.2013. Thereafter, Tehsildar, Deoria again sent the recovery order
of `8,200/- which was also deposited by the revisionists through cheque No.
729240 dated 11.07.2013. The amount has not till date, been released
in favour of Respondent.
5.
That simultaneously, the deponent was approaching the then counsel
at Lucknow to get decided the recall application of order dated 05.09.2012
in favour of revisionists so that amount deposited in execution case may be
recovered from the respondent. The counsel was written on 26.09.2013 and
15.10.2013 but no response was ever given by him. However, in spite of
several efforts, the outcome of said recall application is not known
norapprised by the then counsel.
6.
That the Post Master General again apprised vide letter dated
15.10.2013 about the status of execution case as well as compliance of
original order of the DCF to satisfy the recovery issued by Tehsildar, Deoria.
7.
That the P.M.G., Gorakhpur permitted the deponent to change the
advocate in the State Commission, Lucknow and therefore another counsel
was engaged to get decided alleged recall application who in turn advised
vide letter dated 08.11.2013 that the State Commission does not have power
to recall its own order and as such the recall application is not maintainable.
8.
That the said opinion was sent to the Regional Office vide letter dated
09.11.2013 and 11.11.2013 for further instructions. The Regional Office vide
its letter dated 13.12.2013 instructed to update latest status of case to
forward the same to the Head of U.P. Circle. The deponent again vide letter
dated 12.12.2013 replied to the Regional Office. In turn, the Regional Office
summoned the competent officer of the Division who was well acquainted
with the case.
9.
That the Regional Office vide its letter dated 28.01.2014 directed the
deponent to file revision petition before the Honble NCDRC challenging the
order of the State Commission.
6.
It is trite that the idea underlying the concept of limitation is that every remedy
should remain alive only till the expiry of the period fixed by the legislature. At the
same time, courts are bestowed with the power to condone the delay provided
sufficient cause is shown by the applicant for not availing the remedy within the
prescribed period of limitation. (See: Oriental Aroma Chemical Industries Ltd. Vs.
Gujarat Industrial Development Corporation & Anr. (2010) 5 SCC 459. However,
what colour the expression sufficient cause would get, depends on the factual
matrix of a given case. It is equally well settled that the expression sufficient cause
should be construed liberally so as to advance substantial justice. The principle to
be kept in view while dealing with prayer forcondonation of delay was succinctly
stated by the Supreme Court in N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC
123 in the following words:Rules of limitation are not meant to destroy the rights of parties. They are
meant to see that parties do not resort to dilatory tactics, but seek their
remedy promptly. The object of providing a legal remedy is to repair the
damage caused by reason of legal injury. The law of limitation
fixes a lifespan for such legal remedy for the redress of the legal injury so
suffered. Time is precious and wasted time would never revisit. During the
efflux of time, newer causes would sprout up necessitating newer persons to
seek legal remedy by approaching the courts. So a lifespan must be fixed for
each remedy. Unending period for launching the remedy may lead to
unending uncertainty and consequential anarchy. The law of limitation is thus
founded on public policy. It is enshrined in the maxim interest reipublicae up
sit finis litium (it is for general welfare that a period be put to litigation). Rules
of limitation are not meant to destroy the rights of the parties. They are
meant to see that parties do not resort to dilatory tactics but seek their
remedy promptly. The idea is that every legal remedy must be kept alive for
a legislatively fixed period of time.
7.
Recently in Postmaster General & Ors. Vs. Living Media India Limited
& Anr. (2012) 3 SCC 563, while declining to condone a delay of 427 days in filing
Special Leave Petition by the Postal Department, the Supreme Court has observed
as under:-
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 bona fide effort, there is
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 the government departments. The law shelters
everyone under the same light and should not be swirled for the benefit of a
few.
8.
In Anshul Aggarwal Vs. New Okhla Industrial Development Authority (2011) 14
SCC 578, while declining to condone a delay of 233 days in filing appeal against an
order passed by this Commission, the Honble Supreme Court has observed that
while deciding the application filed for condonation of delay, the Court has to keep in
mind that the special period of limitation has been prescribed under the Act for filing
appeals and revisions in consumer matters and the object of expeditious
adjudication of the consumer disputes will get defeated if the highly belated appeals
and revisions are entertained.
9.
Bearing in mind these broad principles, we are of the opinion that the
Petitioners have failed to make out sufficient cause for condonation of inordinate
delay of 324 days. In the application, there is no indication as to how the Petitioners
gained knowledge of the impugned order dated 05.09.2012. However, assuming, as
pleaded, the order was brought to the notice of the Divisional Officer in the first week
of March 2013, yet the said office took more than a month to forward the same to the
Regional Officer at Gorakhpur. Furthermore, it is not stated as to when the
application for recall of order dated 05.09.2012 was filed, although in view of the
decision
of
the
Supreme
Court
in Rajeev Hitendra Pathak &
Ors. Vs. Achyut Kashinath Karekar & Anr. (2011) 9 SCC 541, delivered as far back
as August 2011, there was no point in filing such an application by the Petitioners
who had the benefit of advice of senior law officers. It clearly shows a totally casual
and indifferent attitude of the officials of the Petitioners in prosecuting the case. We
are not satisfied with the explanation, extracted above, and therefore, we decline to
condone the delay.
10.
We are conscious of the fact that in the light of the ratio of the decision of the
Supreme Court in Jagmittar Sains case (supra), strictly speaking, the Complaint
under the Act was perhaps not maintainable but having regard to the quantum of the
amount involved and the conduct of the Petitioners in not refunding an amount
of `10,000/- to the Complainant since June 1996, when the penalty levied on him
was quashed by the Central Administrative Tribunal, it would be travesty of justice to
relegate the Complainant to approach an appropriate forum for refund of a sum
of `10,000/- from the Petitioners, who have taken a year to challenge the order of the
State Commission and almost 7 years in questioning the correctness of order
passed by the District Forum, more so when in the written statement filed before the
District Forum, the Petitioners had not contested the Complaint on the merits of the
claim.
11.
Therefore, having regard to the peculiar facts and circumstances of the case
we are of the opinion that this is not a fit case for exercise of our revisionary
jurisdiction. The Revision Petition is dismissed accordingly.
.. (D.K. JAIN, J.)
PRESIDENT
................
(VINEETA RAI)
MEMBER
AR/*

FIRST APPEAL NO. 251 of 2008
(Against the order dated 17.4.2008 in Complaint Case No.C-108/2001 of the State
Commission, Delhi)
1. Rajiv Gandhi Cancer Institute And Research Centre Sector-V, Rohini, New Delhi
Through its Medial Superintendent Dr. Sunil Kr. Khetarpal
2. Dr. Y.P. Bhatia (former) C.E.O., Rajiv Gandhi Cancer Institute and Research Centre
Sector-V, Rohini, New Delhi
3. Dr. K.K. Pandey (former) Consultant Surgical Oncology Rajiv Gandhi Cancer Institute
And Research Centre Sector-V, Rohini, New Delhi
.....Appellants
Versus
Lt. Col(Reted.) Zile Singh Dahiya S/o Shri Devi Singh R/O 213/22, Vikas Nagar, Rohtak
124001 Haryana
........Respondent
BEFORE
HONBLE MR. JUSTICE D. K. JAIN, PRESIDENT
For the Appellants
For the Respondent :
person.
Ms. Karuna Nundy, Advocate, Ms. Mansi Bajaj, Advocate

Dr. R. Sekhon
Dr. Sushil Kr. Gupta, Amicus curiae with the respondent in
PRONOUNCED ON: 24/4/2014

ORDER
PER MR. VINAY KUMAR, MEMBER
The Rajiv Gandhi Cancer Institute & Research Centre (for short, the Cancer
Institute) has filed this appeal challenging the award of Delhi State Consumer
Disputes RedressalCommission
in
complaint
Case
No.C-108/2001. The
State
Commission has allowed the complaint and awarded a lump sum compensation of Rs.5
lakhs in favour of the Complainant.
2.
The matter relates to the treatment of Mrs. Krishna Kumari, wife of the
complainant, for cancer of the cervix. The disease was diagnosed in August 1999 and
the patient succumbed to it in February, 2001. The complaint petition filed on 20.4.2001,
traverses the events and developments between the surgery at OP-1 on 22.10.1999
and the patentsdeath on 6.2.2001.The case of the complainant was that his wife
underwent radiation therapy at PGI MS Rohtak during August-September 1999. It was
followed by RADICAL HYSTERECTOMY at OP-1/ Cancer Institute on 22.10.1999. As
per the complaint petition, OP-3 decided to rush through this without proper tests. Also,
there was negligence and deficiency in the manner this operation was performed, as a
result of which metastasis developed within a period of ten months. Allegedly, the
intervening short period of less than a year, indicated that the cancer would not have
resurfaced, if the surgery had been done meticulously and carefully.
3.
It is further alleged that, the FNAC (Fine Needle Aspiration Cytology) report of
16.10.2000 indicated growth of the secondaries of cancer but Dr. A.K. Chaturvedi (who
conducted the test) and Dr. K.K. Pandey categorically declined to accept the presence
of
malignancy.
Later,
when
the
concerned
slides
were
got
reviewed
at Indraprashta Apollo Hospital, New Delhi on 04.12.2000, Squamous Cell Carcinoma

was confirmed. Similarly, the bone scanning report prepared at OP-1 clearly gave the
findings of metastasis. This too was rejected by Dr. K.K. Pandey. When the same
reports were sent to Dr. S.H. Advani of Tata Memorial Hospital, Mumbai, he confirmed
metastasis of cancer.
4.
Per contra, the OPs had contended that on 16.10.2000 a CT guided FNAC was
done at OP-1. The report was inconclusive and found only necrotic material. OP-3
also advised the patient to undergo Kidney Function Test, Liver Function Test, Bones
Scan Whole Body, Colour Doppler Test and CT Scan of Whole Abdomen. As per the
written submission of OPs before the State Commission, no secondaries had developed
till 16.10.2000. However, the patient was again brought on 30.10.2000. Scintigraphy of
the whole body was done, which was suggestive of bone metastasis involving left SI
joint. Allegedly, it was only suggestive, not confirmatory, as other reports seen at OP-1
were negative. The deceased was therefore advised to continue with the drugs which
she was taking for relief from backache. After 30.10.2000, the patient did not report to
the Cancer Institute till 14.12.2000.
5.
On the allegation that when the slides of FNAC done at OP-1 on 16.10.2000 were
later reviewed at Indraprashtra Apollo Hospital, cancer was confirmed, the Written
Submission states that:On 14-12-2000, the opposite party no.3 was informed that two
slides tested on the deceased has been reported as positive. The opposite
party no.3 advised another opinion on the slide from the outside and if found
positive, the deceased was advised to go for Chemotherapy. Thus the
allegations of the Complainant that the Opposite Party refused to give any
treatment, is false, frivolous and baseless.
6.
On consideration of the pleadings and evidence of the two sides, the State
Commission arrived at the following findings:(I)
After the radio therapy treatment the deceased was totally cured.
OP/hospital was approached for second opinion. But, the OP/hospital without
any test or investigation, except CT Scan, conducted Radical Hysterectomy

operation, which was not required at all.
(II)
The Radical Hysterectomy operation was not carried out properly. This
caused metastasis later on.
(III)
Even when the FNAC test showed positive for malignancy and Bones Scan
showed metastasis the patient was not provided the required treatment for
cancer cure.
(IV)
The above lapses resulting in the death of the patient amount to medical
negligence.
7.
In the appeal before us, the Cancer Institute has been represented
by Ms. Karuna Nundy and Ms. Mansi Bajaj, Advocates. Respondent/Complainant has
personally conducted his own case. However, during the course of arguments, the
Complainant
made
an
oral
request
for
assistance
of
counsel. Therefore, Dr. Sushil Kumar Gupta, Advocate (also a qualified doctor) was
appointed as Amicus Curiae. Both sides have been heard at considerable length and
the records carefully perused.
8.
The principal grounds of challenge to the impugned order are against the findings
reached by the State Commission in para 13 thereof. As per the appeal memorandum,
no evidence or opinion of any medical expert was led before the State Commission in
support of the finding that the surgery was not properly performed and that it later
caused metastasis. It is further contended that there is no evidence to show that proper
treatment was not provided. On the contrary evidence on record, shows that the patient
did not report for the three monthly follow up as advised at the time of her
discharge. The case of the appellant is that the allegations of medical negligence have
to be proved. Negligence cannot be assumed.
9.
On the question whether Radical Hysterectomy was required or not, learned
counsel for the appellants/OPs referred to the reports on record which showed that the
treating physician at PGI Rohtak had diagnosed a growth of 3 cm x 2cm which, in
biopsy was confirmed as moderately differentiated carcinoma. After radiation therapy
from 16.8.1999 to 2.10.1999, the same doctor had found palpable growth, on
examination per speculum, of 1cm x 1cm. This indicated that the tumour was Radio
resistant and not fit for further radio therapy. Considering the gap of over five weeks
since completion of radio therapy, the OPs decided to perform radical hysterectomy on
the patient without any further delay.
10.
We find that the State Commission has referred to the CT scan and histo-
pathological reports, which noted that no tumour tissue was seen and there was no
residual evidence of malignancy. Evidently, this refers to post- hysterectomy report of

25.10.1999. This being subsequent to the date of surgery, cannot be the basis for the
conclusion reached by the State Commission that need for Radical Hysterectomy itself
was not there. In this behalf, learned counsel for the appellant drew our attention to the
report of 5thOctober from PGIMS Rohtak. It refers to completion of radio therapy on
10.9.1999 and notes that the patient was fit for surgery six weeks after completion of
radio therapy. It also contains an advice to the patient to report in for it on
29.10.1999. Learned counsel argued that it was in this background that the patient was
admitted to the Cancer Institute on 21.10.1999, as a case of post-RT carcinoma. In our
view this also needs to be seen together with the findings, both at PGI Rohtak and the
Cancer Institute, which refer to a radio resistant growth of 1cm x 1cm, five weeks after
the Radio therapy. In this background, we find no substance in the bland assertion in
the complaint before the State Commission that a number of experts have opined that a
minimum period of three months after radiation should have been given before
hysterectomy. We therefore, are of the view that the finding of the State Commission
that the Radical Hysterectomy itself was not required, is contrary to the record and
evidence led before it, Therefore, it cannot be sustained.
11.
The State Commission has also held that that Radical Hysterectomy was not
done properly and it caused metastasis later. The complaint petition states
that matastatic cancer diagnosed later was of the same type which was diagnosed
earlier.
It
was
therefore
contended
that
this
would
show
that Dr. K.K. Pandey respondent No.3 did not carry out the operation properly and left
the cancerous/potentially cancerous tissues inside, which later on spread to other
parts of the body. Learned Amicus Curiae also argued that had OP-3 taken care to
remove all lymph nodes, metastasis would not have developed within eleven months of
the surgery at OP-1.
12.
Counsel for the appellant forcefully argued that this finding is not based on any
specific evidence before the State Commission. She also sought permission to take
assistance ofDr. (Mrs) Sekhon to explain the medical processes and concepts
concerned with this finding of the State Commission. Considering that this Commission
had provided the other side with the assistance of a medico-legal expert as Amicus
Curiae, the request was agreed. Dr Sekhon explained that metastasis is the process
by which malignant disease spreads to distant parts of the body and also to secondary
tumours resulting from this process. Metastases are also known as secondaries and
their spread occurs through bloodstreams, lymphatic system and across the body
cavities. Lymph is the fluid which circulates in the Lymphatic Vessels of the body.
Lymph Capilliaries,
called lymphatics,
run
throughout
the
body,
passing
through Lymphatic Glands. Swellings which occur at various points in the Lymphatic
System are called Lymph Nodes. They are a part of the immunity response system of
the body. They become enlarged when the area of body which they drain is the site of
infection. Occasionally, they are the site of primary or metastatic malignant disease.
13.
It was explained that the case of the patient, Mrs Krishna Kumari, was one of
cancer of the cervix. Therefore, Radical Hysterectomy was the only right surgical
option. Learned counsel for the appellant explained the import and relevance of this
procedure with the help of medical literature on Radical Hysterectomy
RADICAL HYSTERECTOMY. The standard surgical treatment for stages IB
and IIA cervical carcinomas is radical (type III) hysterectomy and bilateral pelvic lymph
node dissection. This procedure involves en bloc removal of the uterus, cervix,
and paracervical, parametrial, and paravaginal tissues to the pelvic sidewalls bilaterally,
taking as much of the uterosacral ligaments as possible (see Fig. 35.2-4). The uterine
vessels are ligated at their origin, and the proximal one third of the vagina
and paracolpos are resected. For women younger than 40 to 45 years, the ovaries
usually are not removed. If intraoperative findings suggest a need for postoperative
pelvic irradiation, the ovaries may be transposed out of the pelvis. ( Annexure-3,
Principles and Practice of Oncology, 5th Edition)
She also referred to the following steps, detailed in the DISCHARGE SUMMARY of OP1, which were taken in this surgery of 22.10.1999, with reference to the medical
literature on Radical Hysterectomy
Steps:
Rt round ligament transfixed & cut
Infundibulo pelvic ligament isolated
Rt ureter isolated and ligated over umbilical tape
Rt ovarian vessels doubly ligated transfixed & cut.
All fat fascia and tissue from ex iliac vessels removed dissection taken
superiorly upto the bifurcation of iliac vessels.
Internal iliac vessels exposed
-Obliterated umbilical vessel ligated and cut
-Obturator fossa opened up
-Obturator artery dissected out
-Obturator nerve dissected out
-All the fat fascia and tissue from obturator fossa taken out
Ureter exposed upto the insertion into the bladder after ligating uterine artery crossing it
Similar dissection carried out on Lt. Side the parametrium and the obtrurator fossa
tissue were more adhered to underlying structures on Ltd. side
Uterovesical fascia cut & bladder pushed forward.
-Both uterosacral ligated & cut
Para rectal space opened up
-Paravaginal tissue transfixed
-Vagina opened up at upper 2/3rd and lower 1/3rd junction
-Uterus with vagina removed.
-Vagina sutured over a T-tube
-Para aortic lympoh node sampling done
-Retroperitonization done
-Abdomen closed in layers.
14.
Further, our attention was drawn to the contents of the post-surgery
HISTOPATHOLOGY AND CYTOLOGY INVESTIGATION REPORT of 25.10.1999. It is

based on analysis of samples drawn on 23.10.1999 i.e. a day after the Radical
Hysterectomy. This report clearly records the following findings
Sections from cervix(A,B)shows acanthosis of surface squamous epithelium with areas
of thinning up epithelium and mild to moderate dysplasia. No residual evidence of
malignancy. Section from endometrium and myometrium shows atrophic glands.
Section from both ovaries shows normal morphology. Parametrium, vaginal cut margin
and all the lymphnodes are free of tumour tissues.
OPINION1. DIAGNOSED
RADIOTHERAPY). MILD
CASE
TO
OF
CARCINOMA
MODERATE
CERVIX
DYSPLASIA
(POST
CERVIX. ALL
THE LYMPHNODES SENT SEPARATELY ARE FREE OF TUMOUR TISSUE.

2. LOW PROLIFERATION ENDOMETRIUM.
3. NORMAL MORPHOLOGY BOTH OVARIES.
(Emphasis supplied)
15.
On comparison of the steps taken in the surgery, as detailed above, with medical
literature
on
what
should
constitute
Radical
Hysterectomy
and
with post
surgery Histopathology and Cytology report of 25.10.1999, we find that the surgery was
complete. No expert evidence to the contrary was led in this behalf by the complainant
before the State Commission, nor before us, to point out how exactly the surgery,
performed on 22.10.1999 was found to be incomplete. The allegation of the complainant
and finding of the State Commission do not refer to any medical evidence of the exact
area
and
nature
of
deficiency
in
surgery. The
fact
that
nearly
one
year
later secondaries were found to have developed in another part of the patients body, is
not proof in itself that Radical Hysterectomy was inadequately or negligently performed.
The allegation therefore, remains, at best, an unsubstantiated assumption. More so, as
the patient had chosen not to report to the OP hospital for an inordinately long period of
one year, after the surgery. We therefore, hold that this finding of the State Commission
also cannot be sustained.
16.
It is extremely pertinent to observe here that while discharging the patient on
28.10.1999,
the
Cancer
Institute
had
clearly
noted
in
the
DISCHARGE
SUMMARY Patient is being discharged with advice to be on a 3 monthly follow up for

this year and 6 monthly thereafter. Admittedly, in clear violation of this advice, the
patient was next brought to OP-1 Hospital only on 16.10.2000 i.e. a whole year after
discharge
from
the
Cancer
Institute.
On
direct
query
by
the
Bench,
Respondent/Complainant admitted that in the above background, failure of the patient

to report to the Cancer Institute between October 1999 and October 2000 was in direct
violation of the medical advice. It is not for this Commission to assess the medical
consequences of this lapse on the part of the patient. But, it is clear that the results of
the tests done at the Army Hospital in September-October 2000, led to the patient being
brought back to the Cancer Institute on 16.10. 2000.
17.
In September-October 2000, the patient had undergone the following tests at the
Army Hospital
a.
CT Scan of abdomen and pelvic region , on 20.9.2000;
b.
Ultra sound of abdomen, on 21.9.2000 and;
c.
MRI Lumbosacral Spine, on 5.10.2000.
18.
It is alleged in the complaint petition that as per the above reports, the cancer was
resurfacing.
Also,
that
the
patient
was having typical pain
in
left tibial bone,
left sacroillacregion & left lumbar area which also pointed towards matastasis. Allegedly,
these were brought to the notice of OP-3 but not accepted by him as evidence of return
of the cancer. On this point, the affidavit evidence of OP-1 accepts that review of CT
Scan
done
outside
revealed small
retroperitoneal lymphnodes and
early
bilateral Hydronepherosis. But, claims that tissue planes were effaced possibly due to
the radiation effect. Learned Amicus Curiae argued that this was the stage when
treatment should have been commenced by the OPs. In response, counsel for the
Appellants/OPs referred to medical literature on clinical gynaecologic oncology and
argued that at this stage the patient would have been least responsive to chemo
therapy. This argument runs counter to the fact that a little later, the treating doctors at
the Cancer Institute did consider the option of chemo therapy in December 2000.
However, on this issue, OP-3, Dr K K Pandey has taken a different stand. It is stated in
his affidavit of evidence that in the MRI and CT Scan no lymphadenopathy was reported
in the pelvic areas, though it was mentioned in the USG report. CT Scan and MRI are
far more sensitive modalities to detect lymphnodes than USG. Therefore, the OP
doctors and hospital went by MRI and CT Scan which had not reported any lymph
nodes in the pelvic area.
19.
Lymphadenopathy is medical description of the condition of swelling of lymph
glands. It may be due to spread of malignancy. In our view, the import and consequence
of this stand of OP-3 need to be considered in the light of the developments of the next
two months, and not in isolation. The uncontroverted fact remains that on 21.9.2000,
one of the three reports mentioned above, had reported lymph nodes in the pelvic area.
20.
The next test done at the Cancer Institute/OP-1 was CT guided FNAC test-
Retroperitoneal Lymph Nodes, performed on 16.10.2000. Its report of the same date
was as follows:ASPIRATION MATERIAL:
Received 4 slides and 2 ml of fluid
MICROSCOPIC EXAM : Both slides and fluid show necrotic material with RBC. No
viable malignant cells seen.
IMPRESSION : NECROTIC MATERIAL
C-1 No diagnosis (Too few cells, inadequate material).
C-2 No evidence of malignancy (Cytologically benign cells, adequate material
C-3 Atypical, probably benign (Cytological features of both benign and atypical
cells). Biopsy is advised.
C-4 Suspicion of malignancy (Cells almost certainly malignant but due to small number
and/ or suboptimally processed cells details, caution is indicated). Biopsy is advised.
C-5 Malignant cells, definitive cytological evidence of malignancy on a representative
cell sample.
21.
Significantly, in this report, while recoding their IMPRESSIONS, the three
signatory doctors have tick-marked C1 option which reads, No diagnosis (Too few cells,
inadequate material). Dr K K Pandey/OP-3 too says in his affidavit that the report was
inconclusive and no diagnosis was possible. But, at this stage we find no explanation
why the matter was allowed to rest with an inconclusive report when the USG report
had already given a finding, a month earlier, about existence of retro peritoneal lymph
nodes. There is no evidence of a repeat FNAC at Cancer Institute. Even in otherwise
detailed affidavits of evidence filed by the OPs before the State Commission, no attempt
has been made to explain why a repeat FNAC was not done. Confronted with a direct
query from the Bench on this point, learned counsel for the appellants merely argued
that only necrotic material was found and the FNAC report carried no evidence of
malignancy. In our view, this argument needs to be rejected at the threshold itself.
22.
Clinical notes of the Cancer Institute together with relevant investigation reports
and evidence of parties, clearly bring out the following picture

a.
In the affidavit evidence of OP-1 a very categorical claim has been made viz.
that The deceased had no secondaries till 16.10.2000. We have found no
explanation for it. Such a claim could not have arisen before FNAC report was seen
by the OPs. Nor could it be based on the report which admittedly, was inconclusive.
b.
On 27.10.2000 the question of repeat FNAC was raised before Dr K K Pandey/OP3. He referred the matter to Dr Chaturvedi. Evidently, the matter did not reach any
decision.
c.
On 30.10.2000 WHOLE BODY BONE SCINTIGRAPHY was done at the Cancer

Institute. Its report says, Findings are suggestive of bone metastasis involving left
S.I. joint in the given clinical context. Counsel for the appellants/OPs emphasised
that this report was only suggestive of metastasis and not conclusive. As per OP3, this was discussed with Dr Chaudhry, Chief of Nuclear Medicine, who opined that
it did not confirm malignancy. Thus, even after FNAC on 16.10.2000 and whole
body Scintigraphy on 30.10.2000, OPs had, what they emphatically call, only
suggestive and not confirmed finding of malignancy, with no decision about the next
course of action.
d.
However, it is also an admitted fact that two of the four slides prepared with the
FNAC test of 16.10.2000 at the Cancer Institute, were got reviewed by the
complainant at the Apollo Hospital. The resultant report of 4.12.2000 confirmed
malignancy. The full report reads
MICROSCOPIC DESCRIPTION
pleomorphic cells
with
nuclei alongwith ghost
Smears contain singly dispersed
opaque
cells
cytoplasm
and
and
amorphous
against.. a background of red blood cells.

COMMENT (S)
deeply
*-POSITIVE FOR MALIGNANT CELLS.
stained
necrotic
irregular
material
SQUAMOUS
CELL
CARCINOMA
CONSISTENT
WITH
METASTASES FROM KNOWN PRIMARY IN UTERINE CERVIX.

e.
This report was discussed by OP-3 with Dr Bhatia on 14.12.2000. It was decided
to have another opinion on the same slide and start chemo therapy, if found
positive. But there is nothing to show when such further opinion was taken and with
what outcome.
f.
Independently, the complainant had also consulted Dr S H Advani, Chief of

Medical Oncology at Tata Memorial Hospital, Mumbai. The affidavit of OP3/Dr Pandey itself refers to the opinion of Dr Advani about the recommended line of
treatment being symptomatic and supportive only. But, what OP-3 does not
mention is that the same letter of Dr Advani also called it a case of carcinoma of
cervix with metastatic disease.
23.
The question that eventually arises is whether the resultant failure to reach a
timely and clear diagnosis, with consequent failure to commence the requisite
treatment, amounted to medical negligence or deficiency of service or not. The State
Commission has held it to be a case of medical negligence. Section 2(1)(g) of the
Consumer Protection Act, 1986, defines deficiency as-deficiency means any fault, imperfection, shortcoming or
inadequacy in the quality, nature and manner of performance which is
required to be maintained by or under any law for the time being in force or
has been undertaken to be performed by a person in pursuance of a
contract or otherwise in relation to any service.
24.
On the subject of medical negligence Honble Supreme Court of India has laid
down the law in the following landmark decisions. In Jacob Mathew Vs. State of Punjab,
(2005) 6 SCC 1, The Apex Court has summed it up in eight conclusions or principles.
1. Negligence is the breach of a duty caused by omission to do
something which a reasonable man guided by those considerations
which ordinarily regulate the conduct of human affairs would do, or doing
something which a prudent and reasonable man would not do.
Negligence becomes actionable on account of injury resulting from the
act or omission amounting to negligence attributable to the person sued.
The essential components of negligence are three: duty, breach and
resulting damage.
2. Negligence in the context of medical profession necessarily
calls for a treatment with a difference. To infer rashness or negligence
on the part of a professional, in particular a doctor, additional
considerations apply. A case of occupational negligence is different from
one of professional negligence. A simple lack of care, an error of
judgment or an accident, is not proof of negligence on the part of a
medical professional. So long as a doctor follows a practice acceptable
to the medical profession of that day, he cannot be held liable for
negligence merely because a better alternative course or method of
treatment was also available or simply because a more skilled doctor
would not have chosen to follow or resort to that practice or procedure

which the accused followed. When it comes to the failure of taking
precautions what has to be seen is whether those precautions were
taken which the ordinary experience of men has found to be sufficient; a
failure to use special or extraordinary precautions which might have
prevented the particular happening cannot be the standard for judging
the alleged negligence. So also, the standard of care, while assessing
the practice as adopted, is judged in the light of knowledge available at
the time of the incident, and not at the date of trial.
3. A professional may be held liable for negligence on one of the
two findings: either he was not possessed of the requisite skill which he
professed to have possessed, or, he did not exercise, with reasonable
competence in the given case, the skill which he did possess. The
standard to be applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent person
exercising ordinary skill in that profession. It is not possible for every
professional to possess the highest level of expertise or skills in that
branch which he practices. A highly skilled professional may be
possessed of better qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional proceeded
against on indictment of negligence.
4. The test for determining medical negligence as laid down
in Bolams case [1957] 1 W.L.R. 582, 586 holds good in its applicability in
India.
5. The jurisprudential concept of negligence differs in civil and
criminal law. What may be begligence in civil law my not necessarily be
negligence in criminal law. For negligence to amount to an offence, the
element of mens rea must be shown to exist. For an act to amount to
criminal negligence, the degree of negligence should be much higher i.e.
gross or of a very high degree. Negligence which is neither gross nor of
a higher degree may provide a ground for action in civil law but cannot
form the basis for prosecution.
6. The word gross has not been used in Section 304A of IPC, yet
it is settled that in criminal law negligence or recklessness, to be so held,
must be of such a high degree as to be gross. The expression rash or
negligent act as occurring in Section 304A of the IPC has to be read as
qualified by the word grossly.
7. To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did something or failed to
do something which in the given facts and circumstances no medical
professional in his ordinary senses and prudence would have done or
failed to do. The hazard taken by the accused doctor should be of such
a nature that the injury which resulted was most likely imminent.
8. Res ipsa loquitur is only a rule of evidence and operates in the
domain of civil law specially in cases of torts and helps in determining the
onus of proof in actions relating to negligence. It cannot be pressed in
service for determining per se the liability for negligence within the
domain of criminal law. Res ipsa loquitur has, if at all, a limited
application in trial on a charge of criminal negligence.
The then Chief Justice R C Lahoti, speaking for the three Judge Bench observed that
the three essential components of medical negligence are
i.
existence of a duty to take care owed by the defendants to the

complainant;
ii.
failure to attain that standard of care, thereby committing a breach of such

duty; and
iii.
damage resulting from, and recognised by the law, from such breach.
If the court is satisfied, on evidence, that these three elements exist, the defendant
should be held liable in negligence.
25..
In Martin F DSouza Vs. Mohd. Ishfaq (2009) 3 SCC 1, the above principles for
determination of negligence by a medical practitioner were reaffirmed by Honble Apex

Court. However, the court sounded a caution about the difficulty which arises in
application of the above general principles to specific cases. (para 25) It reiterated that
a medical practitioner would be liable only where his conduct fell below that of the
standard of a reasonably competent practitioner in his field (para 34).
In this judgment the Apex Court has also gone over some of the decision in the past to
bring out how the general principles of medical negligence have been applied to
particular cases. One of the decisions discussed is in Consumer Protection
Council Vs. Dr. M. Sundaram (1998) 2 CPJ 3 (NC), Its facts were very similar to those
of the case before us. The patient was admitted to a nursing home where she was
diagnosed to be a case of Hodgkins Lymphoma. She was referred to another doctor
who was an ENT specialist, who after examination opined that no lymph glands were
seen. A sample of her bone marrow was sent to an oncologist who opined that the
picture does not fit with Hodgkins disease but the patient had megaloblastic anaemia in
the bone marrow. Subsequently, she was discharged from the nursing home and was
advised to visit CMC, Vellore for treatment. The patient consulted another doctor who
diagnosed the same as renal failure. The complainant alleged that the first doctor failed
and neglected to refer the matter to a cancer specialist but wrongly diagnosed the
ailment of the patient as Hodgkins lymphoma and had unnecessarily administered
injection of Endoxan and because of the toxicity of that drug the kidney cells of the
patient got destroyed resulting in renal failure for which she had to undergo kidney
transplantation which led to her death.
26.
The National Commission agreed with the State Commission and held that there
was no negligence on the part of the doctor who had consulted a pathologist, and in the
light of discussion with him and on inspection of some more slides of bone marrow
specimens which also revealed the same finding, namely, existence of deposits of
Hodgkins
lymphoma,
had
proceeded
to
administer
the
patient
injections
of Endoxan. The Apex Court has observed that, Any prudent consultant physician
would not delay the commencement of chemotherapy where repeated examination of

the bone marrow slides had yielded the report that the Hodgkins deposits were
present. Endoxan is a drug of choice in the treatment of Hodgkins lymphoma and there
was no negligence on the part of the doctor.
27. The ratio decidendi of this decision applies in full vigour to the facts of the case
before us. Significantly, the return of the patient to the appellants/OPs on 16.10.2000,
was in the following background
a.
The diagnosis in 1999 had been one of cancer of the cervix.
b.
The follow up surgery itself was performed by the appellants/OPs in 1999.
c.
The reports of tests done in September-October 2000 in the Army Hospital had
consistently and unequivocally pointed towards a conclusion that the disease had
returned.
Yet, the OPs chose to consider every test result as merely indicative/suggestive of
metastasis, needing further evaluation. There is no explanation why. Significantly, the
same reports allowed the Army Hospital, the Apollo Hospital and the Tata Memorial
Hospital, Mumbai to reach a finding of metastasis, independently of each other. At this
stage, it could not be the case of anybody that time was not of the essence. But, the
urgency is not reflected in the manner the case of late Krishna Kumari was handled by
the OPs. There is no explanation why the patient was not immediately admitted when
she arrived on 16.10.2000. Thereafter, till the end of another two months the Cancer
Institute had made no final diagnosis and therefore, had not commenced any
treatment. The conduct of the appellants/OPs clearly falls below the standard of an
ordinary competent person exercising ordinary skill in that profession. In our view, the
three ingredients of negligence as detailed in para 24 above, are established.
Therefore, considered in the light of the law as discussed above, it becomes a clear
case of medical negligence as well as deficiency of service. Therefore, we find
ourselves in full agreement with the finding of the State Commission that the failure to
provide proper diagnosis and treatment to the patient amounted to medical negligence.
28. What is more unfortunate in this case is that this delay in diagnosis and resultant
delay in treatment have happened at Rajiv Gandhi Cancer Institute and Research
Centre, a premier institution of great repute. The Memorandum of Appeal itself claims
The Appellant No. 1 Hospital is a premier Cancer Hospital of India
specialising in treatment of Cancer ranging from Surgery, Radio Therapy,
Chemotherapy and various diagnostic tests etc. It is in fact the first hospital
to institute a multi speciality management system for cancer patients with
a highly qualified and well resourced team of pathologists, medical
oncologists and surgeons, among others, immediately available for
consultation, as and when required.
It is not unreasonable to expect that such an institution shall subject itself to

appropriately higher standards of professional competence and care. It goes without
saying that when a person decides to be treated in such an institution, it is with the
expectation of higher quality of treatment and care. In fact, the status of a hospital
carries an implied assurance that the quality of diagnostic, clinical, surgical, paramedical and all other services offered by it, would be commensurate with its status and
reputation. Appellant-1 (Rajiv Gandhi Cancer Institute & Research Centre, New Delhi)
held out such an assurance in its own claim, noted above. At this point, it is relevant to
mention here that in Balram Prasad & Ors. Vs. KunalSaha, (2014) 1 SCC 384, a
landmark decision pronounced on 24.10.2013, Honble Supreme Court has enhanced
the quantum of compensation observing, inter alia, that the National Commission had
not taken into consideration the status of treating doctors and of the hospital. In this
view of the matter, we do not consider it appropriate to reduce the quantum of
compensation as awarded by the State Commission, although we disagree with the
findings of the State Commission in so far as they relate to the Radical Hysterectomy
performed on late Krishna Kumari at OP-1/Cancer Institute in 1999.
29.
Before parting with this case we deem it necessary to thankfully acknowledge the
professional assistance received by the Commission from Dr (Mrs) Sekhon and Dr S K

Gupta.
30. In view of the details considered above, the appeal is partially allowed. The
findings of the State Commission, to the extent they relate to the surgery performed at
Appellant-1/Hospital in 1999, are set aside. The rest of the impugned order of the State
Consumer Disputes Redressal Commission, Delhi in Complaint Case No.108/2001 is
confirmed. No orders as to costs.
Sd/-.
(D.K. JAIN, J.) PRESIDENT
Sd/-.
(VINEETA RAI) MEMBER
Sd/-.
(VINAY KUMAR) MEMBER
S./-

(Against the order dated 06.03.2007 in Complaint No.48/SC/2004 of the Uttar Pradesh
State Consumer Disputes Redressal Commission)
1. M/s Singhal Maternity and Medical Centre E-155, Sector-20, Noida Uttar Pradesh
2. Dr. Pratibha Singhal M/s Singhal Maternity and Medical Centre E-155, Sector-20,
Noida Uttar Pradesh
Appellants
Versus
1. Master Nishant Verma S/o Mr. Bijendra Singh Verma Through his next
friend Shri Bijendra Singh Verma S/o Mr. Om Prakash Verma
2. Mr. Bijendra Singh Verma S/o Mr. Om Prakash Verma
3. Mrs. Renu Verma W/o Mr. Bijendra Singh Verma All residents of N-130, Sector-25
Noida, Uttar Pradesh
4. National Insurance Co. Ltd.
5. Dr. R.K. Singhal E-155, Sector-20, Noida Uttar Pradesh
Respondents
FIRST APPEAL NO. 223, 391 OF 2007

(Against the order dated 06.03.2007 in Complaint No.48/SC/2004 of the Uttar Pradesh
State Consumer Disputes Redressal Commission)
BEFORE:
HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Master Nishant Verma & Ors.: Mr. Bijender Singh Verma, In person
For the Medical Centre & Ors.
: Mr. R.M. Aggarwal, Advocate
For the Insurance Co.
: Mr. R.C. Mishra, Advocate with
Dr. Meera Agarwal
Pronounced on 24th April, 2014
ORDER
PER VINEETA RAI
1.
First Appeals No. 217 of 2007, 223 of 2007 and 391 of 2007 have been filed by
M/s Singhal Maternity and Medical Centre & others, Master Nishant Verma & others and
National Insurance Co. Ltd. respectively against order dated 6 th March, 2007 of the U.P.
State Consumer Disputes Redressal Commission (for short the State Commission)
passed in Complaint No. 48 of 2004. The State Commission vide the impugned order
had partly allowed the complaint of medical negligence and deficiency in service filed on
behalf
of
Master Nishant Verma by
his
parents
and
awarded
damages
and
compensation to the tune of Rs.17,00,000/- (i.e. Rs.15,00,000/- to be paid by National

Insurance Co. Ltd. and Rs.2,00,000/- by M/s Singhal Maternity and Medical Centre
& Dr.Pratibha Singhal). Since the facts and the parties arecommon/similar in respect of
all these first appeals arising out of the same consumer dispute, it is proposed to
dispose them of through a single order by taking the facts from First Appeal No. 223 of
2007. The parties will be referred to in the manner in which they were referred to in the
complaint i.e. Master Nishant Verma as Complainant No.1, Mr. Bijendra Singh Verma as
Complainant No.2, Mrs. Renu Verma as Complainant No.3, M/s Singhal Maternity and
Medical Centre as Opposite Party No.1, Dr. Pratibha Singhal as Opposite Party No.2,
Dr. R.K. Singhal as Opposite Party No.3 and National Insurance Company Ltd. as
Opposite Party No.4/Insurance Company.
2.
FACTS :
It was contended by Shri Bijendra Singh Verma (Complainant No.2), father and
guardian of Master Nishant Verma (minor), Complainant No.1, that he had taken his
pregnant wife Smt. Renu Verma (Complainant No.3) to M/s Singhal Maternity and
Medical Centre (Opposite Party No.1) for ante-natal care and delivery under Opposite
Party No.2/Dr. Pratibha Singhal (Gynecologist), who alongwith her husband Opposite
Party No.3/Dr. R.K. Singhal (an Anesthesiologist), who owned and ran the Medical
Centre/Opposite Party No.1. After tests, Complainants No. 2 and 3 were informed that
a normal delivery was expected. On 16th August, 2002 Complainant No.3 was admitted
for delivery and consent of Complainant No.2 was taken for any emergency
surgery. After the delivery on 16th August, 2002, Opposite Party No.2/Doctor informed
Complainant No.2 that she had faced extreme difficulty in conducting a normal delivery
due to the excessive weight of the baby and also since the shoulder did not expel
normally, it became necessary to use forceps to complete the delivery. In the process of
extracting the baby with forceps, the nerves of his upper right limb appeared to have got
damaged causing paralysis and his head had also been injured and heavily pulped on
both sides. His neck and shoulder had also turned blue due to bleeding under the
skin. Complainant No.2 thereafter got Complainant No.1 examined by various eminent
Neurologists and specialists, including at the All India Institute of Medical Sciences, who
confirmed that during the course of delivery all the five nerves of Complainant No.1,
namely
C5,
C6,
C7,
C8
and
T1
had
got
totally
damaged
due
to
paralysis/rupture. Despite surgeries conducted in France and subsequently in the USA

and other treatments, Complainant No.1 continues to suffer from various disabilities.
This occurred because of the medical negligence and deficiency in service on the part
of Opposite Parties at all stages of the medical treatment starting from the ante natal
checks to neo natal care. Complainants confined their claim of compensation to
Rs.1,00,00,000/- with interest @ 24% per annum although the actual compensation
justified would be over Rs.2,00,00,000/-.
3.
On being served, Opposite Party No.2/Doctor filed a counter affidavit on behalf of
all Opposite Parties No. 1 to 3 and denied any medical negligence or deficiency in
service on their part. Being highly qualified professionals and running a well-equipped
specialized medical centre providing gynecological and maternity services, Opposite
Parties No. 2 and 3 denied that the necessary ante natal tests were not
conducted. These as also the three ultrasonography tests confirmed that there were no
complications or adverse findings pertaining to either the health of Complainant No.3 or
the
progress
in
the
growth
of
the
fetus,
including
the
possibility
of
its
beingmacrosomic i.e. over 4.5 kg. Progression of labour was also smooth to begin with
until the 2nd stage when the heartbeat of the fetus dipped drastically, which is indicative
of compression of the umbilical cord causing lack of supply of oxygen to the fetus brain,
Outlet forceps delivery was, therefore, performed with due care and professionalism to
avoid possible death of the fetus. After delivery of the head, shoulder impaction
occurred because of poor maternal effort on the part of Complainant No.3 leading to
shoulder dystocia and known complication, namely, brachial plexus injury. It is
medically well established that both these are unpredictable events and can occur
despite perfect obstetrical management, as in the instant case. On detecting this
condition,
Opposite
Party
No.2
usingMcRoberts maneuver, widening
acted
as
per
standard
of episiotomy and
applying
protocols
supra
by
pubic
pressure. Following delivery, both Complainant No.1 and Complainant No.3 received
the best possible medical care and attention from a number of specialists, including a
Pediatrician and a Neurologist. Under the circumstances, the complaint of medical

negligence and deficiency in service is not maintainable and deserves to be dismissed.
4.
The National Insurance Company Ltd., Opposite Party No.4, while confirming that
under the insurance cover taken by Opposite Parties No. 1 to 3, the legal liability, which
professionals may incur due to error or omission while rendering service, is covered and
which Insurance Company would be liable to indemnify as per the terms and conditions
of the policy, also stated that as per the evidence on record, there did not appear to be
any medical negligence or deficiency in service.
5.
The State Commission, after hearing the parties and on the basis of evidence
produced before it, including the medical literature cited by both the parties, and after
taking
into
account
what
constitutes
medical
negligence,
as
ruled
by
the Honble Supreme Court in its celebrated decision in Jacob Mathew Vs. State of
Punjab and Anr. [(2005) 6 SCC 1], concluded that although Opposite Party No.2/Doctor
had reasonable competence and skill she did not exercise this skill and competence in
the medical treatment of Complainants No. 1 and 3 starting from the ante natal
checks. The relevant findings of the State Commission are reproduced:
We conclude that the use of forceps with excessive force and
excessive traction caused injury to the head, avulsion of head
of humerus and blue scar on the chest. The pitiable condition of the child,
who was on the verge of mutilation, suggests that the forceps were not
used according to prescribed norms. The above discussion also
concludes that the summary and recommendation of Acog practice
bulletin and other studies mentioned above rebuts Henry Lerners
suggestions. We also conclude that the maneuver prescribed in literature,
and the medical science was not used and applied by
Dr.Pratibha Singhal. Not only this, she has not made proper
documentation and the discharge card only mentions supra pubic
pressure applied and episiotomy widened but no important and necessary
maneuvers as has been repeatedly suggested in medical literature
mentioned above were applied by the doctor nor there is any
documentation. Dr. Singhals mentioning is also untrue when she avers in
the affidavit that McRoberts maneuvers were used. This does not find in
discharge card nor any documentation. We are also concluding that the
complainants contention about the stature and physic of the mother is
more near to the truth, which suggests that prescribed several
investigations to ascertain pelvic condition etc. of the mother were not
carried out. The contention is also true that the baby was certainly
overweight in Indian condition and its birth weight was nearly 4.5 kg and
caesarean section should have been more appropriate as has been
suggested by Indian academics, which is apparent from the literature
mentioned earlier. It is also concluded that even if forceps were used for
direct vaginal delivery it was not used according to prescribed norms and
it was used with excessive force and faulty technique and without proper
application of indication which has caused severe fetal injuries. Excessive
traction or traction with excessive force also caused severe fetal
injuries. Another deficiency is also clear. The opposite party appears to

suggest that due to compression of umbilical cord the resultant lack of
oxygen supply to the brain prompted the doctor for outlet forcep delivery
to prevent death of Baby Nishant. This is a poor examination of the
circumstances. Had the doctor taken proper care to examine and
investigate movement, the rotation, position of the umbilical cord etc. then
by caesarean section she should have prevented the misery.
The State Commission, therefore, partly allowed the complaint and ordered
as under :
the complainants will be paid as damages and compensation
of Rs 17 lacs (Rs 15 lacs from National Insurance Company Ltd. in terms
of policy andRs 2 lacs from Dr. Pratibha Singhal) for the deficiency in
service caused by Opposite Parties No. 1 and 2. The payment will be
made within two months from the date of receipt of copy of this judgment,
failing which they will also be liable for 12% per annum interest on the
above amount.
6.
Being aggrieved by the order of the State Commission, the present appeals have
been filed by all the three parties; by Opposite Parties No. 1 and 2 for setting aside the
order of the State Commission and Complainants against the lesser compensation of
Rs.17 Lakhs awarded as against Rs.1 Crore sought by them.
7.
Learned Counsel for Opposite Parties No. 1 to 3 Shri R.M. Aggarwal and
Complainant No.2 in person made detailed oral submissions. Learned Counsel for
Opposite Party No.4/Insurance Company in his brief submissions essentially reiterated
the stand as taken before the State Commission.
ORAL SUBMISSIONS BY LEARNED COUNSEL FOR OPs 1 & 2
8.
While denying that there was any medical negligence or deficiency in service as
ruled by the State Commission, Counsel for Opposite Parties No. 1 and 2 highlighted
the following aspects in respect of the case :(i)
Ante natal care

All the required ante natal tests were conducted on Complainant No.3 as also
admitted
by
Complainant
No.2
in
his
complaint
before
the
State
Commission. Elaborating on the results of the three ultrasounds conducted as part of

ante natal checks and which are the best available indicators of a fetuss expected birth
weight, Counsel for the Opposite Parties stated that as per the last ultrasound
conducted on 24th July, 2002 the estimated birth weight of the fetus was 2.7 kg. It is
medically well accepted that 25 grams per day are added to the body weight of the fetus
at this stage and calculating the expected birth weight accordingly at the time of birth
the baby was expected to weigh 3.4 kg. (at the rate of 25 grams per day x 23
days). Even after taking the 10 to 15% margin of error either way in calculating the
exact birth weight, the weight of Complainant No.1 at birth would still be less than 4
kg. In fact, the actual weight recorded was 3.9 kg. and as per medical literature on the
subject both in India and in the developed world (USA etc.) only a baby that weighs
more than 4.5 kg. can be termed as macrosomic. The State Commission erred in
concluding that the actual birth weight of the baby was 4.4 kg. by solely relying on a
recording made by the Pediatrician (Dr. Bina Keith) on the fifth day after delivery that the
birth weight of the baby was 4.00 kg. and since there is loss of weight in the first week
following
delivery,
the
baby
at
birth
actually
weighed
4.4
kg. and not
3.9
kg. Dr. Bina Keith in her affidavit had confirmed that the weight at birth was 3.9
kg. and had attributed the variations recorded in the weight of Complainant No.1,
including at her clinic and other hospitals i.e. Batra and Kailash Hospitals and All India
Institute of Medical Sciences, because of minor variations in the different weighing
machines used.
(ii)
During delivery
Opposite Parties took the correct decision to opt for a normal delivery since there
were no clinical or other medical conditions to indicate the necessity of a cesarean

section e.g. suspected fetal compromise, placental disorder and maternal, medical and
physiologic conditions (since the ante natal checks did not indicate any such
abnormality). The progress of labour had been meticulously recorded on a half hourly
basis by Opposite Party No.2 herself. A perusal of the same would confirm that
everything was normal till the second stage of labour when the heartbeat of the baby
dipped drastically indicating compression of the umbilical cord causing lack of supply of
oxygen to the brain. Therefore, in the interest of saving the life of Complainant No.1, an
outlet forceps delivery had to be performed and it was during this process that impaction
of shoulder occurred leading to shoulder dystocia. In such cases what happens is that
after the babys head has emerged, the neck suddenly retracts back against the
mothers perineum causing the babys cheeks to puff out. Counsel for the OPs cited
extensively from medical literature, including Williams*, to prove that in most of the
cases shoulder dystocia cannot be predicted or prevented because there are no
accurate methods and it can occur in both normal weight as also large weight
babies. Further, a team of medical experts from Maulana Azad Medical College
appointed on the directions of this Commission had opined that from a perusal of the
records of the three ultrasound tests done on Complainant No.3 at 8 th, 21st and
37th weeks of gestation there was normal progress of the pregnancy with no evidence
of macrosomia.
*Source : Extracted from Williams Obstetrics 21st Edition
(iii)
Steps taken when shoulder dystocia was diagnosed

When shoulder dystocia was noticed, the standard protocol/procedure to deal
with such cases was undertaken. The State Commission wrongly concluded that
the McRoberts maneuver was not used merely because it was not specifically
mentioned in the discharge certificate. Counsel for the Opposite Parties highlighted that
outlet forceps had to be used not because of shoulder dystocia but because the fetal
heartbeat was decreasing drastically and the use of forceps was, thus, wholly
unconnected with either the weight of the baby or with the brachial plexus
injury (emphasis provided), which was caused because of shoulder dystocia, and not
because there was any negligence on the part of the Opposite Parties in conducting the
outlet forceps delivery. Complainants contention that vacuum suction apparatus would
have been a safer method in an emergency situation is not correct as also opined by Dr.
D.C. Dutta in his textbook (Textbook of Obstetrics), wherein it has been stated that the
use of forceps far outweigh the use of ventouse i.e. vacuum delivery since forceps
operation can quickly expedite delivery in case of fetal distress whereas ventouse will
be unsuitable as it takes a longer time. Further, the chances of Cephalhaematoma and
failure rate in forceps delivery is also less compared to ventouse.
(iv)
Care of Complainant No.1 after delivery

As per the medical evidence on record, the baby after birth was quickly
resuscitated with an ambu bag OT and suction and was medically examined by
Dr. BinaKeith (the Pediatrician) who diagnosed the baby with Erbs Palsy caused by
brachial plexus injury on the right shoulder and prescribed medicines and treatment for
the same straightaway. Even though there was no need to consult a Neurosurgeon, by
way of abundant caution it was Dr. Bina Keith who recommended that a Neurosurgeon
be also consulted. Dr. Bina Keith in her affidavit also stated that there was no clinical
evidence at the time of birth to suspect avulsed head of thehumerous bone and other
stated injuries.
Thus, it is clear from the above facts that there was no medical negligence or
deficiency in the treatment of Complainants No. 1 and 3 and the appeal filed by the
Opposite Parties No. 1 to 3 may be allowed.
ORAL SUBMISSIONS MADE BY COMPLAINANT NO. 2
9.
Complainant No.2 challenged the above submissions of Opposite Parties No. 1 to
3 and stated that the State Commission had rightly concluded that there was clearly
medical negligence and deficiency in service in the treatment of both Complainants No.
1 and 3 as is evident from the following :
(i)
Incomplete ante natal checks/care

During ante natal checks, pelvic assessment of Complainant No.3 was never
conducted and important physiological indicators, including obesity, short stature etc.,
were neither recorded nor taken into account. Further, the required medical/clinical
tests, including for blood sugar, were not conducted and, therefore, there were no
findings of the same in the Complainant No.3s ante natal care. Even the gestational
diabetes test in the last trimester, which is a very important indicator for the prediction of
a macrosomic baby was not conducted. The ultrasound was also not correctly
interpreted and there was a large difference of 26.1% between the estimated fetal
weight and the actual weight at birth. Most importantly, the ultrasound results were not
clinically
correlated
with
other
parameters,
including
proper
abdominal
examination/pelvic assessment of Complainant No.3. If this correlation had been done,

the obvious error in the ultrasound findings would have been detected because by
carefully examining the dimensions of the abdomen even a nurse/midwife can correctly
assess whether the baby is large sized or normal and a more accurate weight of the
fetus would have been known. If all the above ante natal tests had been conducted,
any diligent medical professional would not have ruled out conducting the delivery
through a cesarean section in fact it would have been the safest and, therefore, the
only option.
(ii)
During delivery
Complainant No.2 challenged the hand-written documentation of the delivery

process purportedly recorded during delivery since it was unusual for the doctor
conducting a difficult delivery to simultaneously write these reports herself. It was
further contended that as per medical literature, use of forceps was a wrong decision
and Vacuum Suction Apparatus is a much safer and better option. The specific
advantages of ventouse over forceps have been convincingly enumerated in Munro
Kerrs well-known book Operative Obstetrics, wherein among the various advantages
it has been stated that lesser traction force is needed and it is more comfortable with
minimal risk to the mother and the baby.
After shoulder dystocia was noted, McRoberts maneuver was not used and,
therefore, no mention of it had been made in the discharge certificate or in the notes
purportedly recorded during delivery. Complainant No.2 also produced medical
literature to point out that shoulder dystocia can occur because of improper use of
forceps during birth if the forceps are gripped too tightly and there is application of
excessive lateral traction being applied to the babys neck so as to free the shoulder. In
fact, lateral traction only serves to push the babys head towards either of his shoulder
and these get stuck thereby causing shoulder dystocia instead of helping it along
(reference http://EzineArticles.com/620664). It was obvious that following shoulder
dystocia, the forceps were used with unnecessary excessive force because there is no
other plausible explanation to explain the extensive brachial plexus injury, breaking all
the five nerves of the upper right limb and damage to the face and head. It was also
stated that when confronted with serious problems during delivery, an emergency
cesarean section could not be conducted since the operation theater was not kept
readily prepared for conducting surgeries, which is clearly a deficiency in service.
(iii)
After delivery
Even after delivery, due care was not taken and the Neurosurgeon was brought in
only on the third day to examine Complainant No.1 and that too at Complainants
insistence. Because of the callous and indifferent attitude of Opposite Parties No. 1 to
3, Complainant No.1 had to be taken for treatment and further check-ups to a number of
hospitals
immediately
after
discharge
from
Opposite
Party
No.1/Medical
Centre. Complainant No.2 emphasized that treatment for various injuries and
disabilities is continuing and despite continuous treatment, including surgeries, 60%
permanent physical impairment persists. Keeping in view these facts, a compensation
of Rs.1,00,00,000/- was the minimum required and had, therefore, been prayed
for. Unfortunately, the State Commission awarded a meager compensation of only
Rs.17,00,000. Thus, there is a strong case for enhancement of compensation to
Rs.1,00,00,000/-.
FINDINGS
10.
We have given careful consideration to the verbal submissions made by the
parties/their counsel and have also gone through the voluminous records in evidence,
including the medical literature on the subject.
11.
What constitutes medical negligence based on the touchstone of the Bolams test
[Bolam Vs. Friern Hospital Management Committee (1957) 1 WLR 582]is well settled
through a number of judgments of the Honble Supreme Court, including in Jacob
Mathew Vs. State of Punjab & Anr. (supra) and Indian Medical Association Vs.
V.P. Shantha and Ors. [(1995) 6 SCC 651]. Gleaned from these judgments, the issues
pertaining to what constitutes medical negligence, inter alia, are (i) Whether the doctor
in question possessed the medical skills expected of an ordinary skilled practitioner in
the field at that point of time; and (ii) Whether the doctor adopted the practice (of clinical
observation diagnosis including diagnostic tests and treatment) in the case that would
be adopted by such a doctor of ordinary skill in accord with (at least) one of the
responsible bodies of opinion of professional practitioners in the field. In this
connection, the Honble Supreme Court in Jacob Mathew (supra) elaborating on the
degree of skill and care required of a medical practitioner quoted Halsburys Laws of
England (4th Edn., Vol.30, para35), as follows:
35. The practitioner must bring to his task a reasonable degree of
skill and knowledge, and must exercise a reasonable degree of
care. Neither the very highest nor a very low degree of care and
competence, judged in the light of the particular circumstances of each
case, is what the law requires, and a person is not liable in negligence
because someone else of greater skill and knowledge would have
prescribed different treatment or operation in a different way;
In the present case, the allegations of medical negligence have, therefore, been
examined in the light of the above enunciated principles as cited by the HonbleApex
Court in their various judgments.
ANTE NATAL CARE
It is well acknowledged that ante natal checks are an extremely important and
integral part of medical care during pregnancy because these help in identifying,
assessing and consequently reducing the risks to both the mother and the fetus. Ante
natal checks in most countries are conducted by not only doctors but also trained
paramedical professionals, which include Auxiliary Nurse Midwives (ANMs) and staff
nurses. In India paramedical staff like ANMs, Lady Health Visitors (LHVs) and staff
nurses have been trained as a part of their profession about the standard protocol of
checks which have to be conducted/advised when a pregnant woman visits a health
facility. These include the following:
recording medical history of the mother, including her height and weight
(with the weight to be taken and recorded during each ante natal visit);
full blood examination, including tests for blood group, hemoglobin (to
check for anemia), Hepatitis-B, blood sugar etc.;
ultrasound tests;
tests to check for gestational diabetes in the third trimester; and
Leopolds maneuver in the third trimester to determine the size,

consistency, shape and mobility of the fetus through palpating the
womans upper abdomen with both hands*.
*Source: 1. Guidelines for Antenatal Care and Skilled Attendance at Birth by

ANMs/LHVs/SNs by National Rural Health Mission, Govt. of India;
2. Antenatal Checks and Tests National Health Services, UK extracted
from Google
12.
In the instant case, from the documents of the ante natal checks on record, we
find that the medical history as also the height and weight of Complainant No.3 were not
recorded. Further, though various blood tests, including for blood sugar, were
prescribed, the findings of the blood sugar tests are not recorded in the ante natal
documents. On a specific query by us, OP-2 stated that tests were conducted and
found normal but the reports were not placed in the medical records of Complainant
No.3 since these had been taken away by Complainant No.2. This fact was denied by
Complainant No.2. Even if what OP-2 states is correct and the blood sugar results were
normal, it was necessary to have recorded the relevant finding for ready
reference/monitoring in the ante natal sheet of Complainant No.3. There is also no
record/evidence that the test for gestational diabetes was prescribed and conducted in
the third trimester and also whether weight gain, if any, was noted. As per medical
literature on the subject*, these are extremely important tests since gestational diabetes
and abnormal weight gain are associated with macrosomia, apart from being
independent risk factors for new natal birth trauma. Multiple studies have also
demonstrated that shoulder dystocia as also brachial plexus injury is 5 times as frequent
in women detected with diabetes mellitus during pregnancy.
*Source :
(i) Acker DB, Sachs BP, Friedman EA. Risk factors for shoulder
dystocia. Obstet Gynecol 1985;66:762-8; (ii) Langer O, Berkus MK, Huff
RW, Summueloff A. Shoulder dystocia: Should the fetus weighing 4000
grams be delivered by cesarean section? Am J Obstet Gynecol 1991;
165:831-7).
Failure to conduct all the required ante natal tests, not keeping a record of the
same and thus not having for ready reference the important physiological and clinical
parameters assumes significance in the present case in view of Complainant No.2s
contention (backed by documentary evidence) that Complainant No.3 had gestational
diabetes during her second pregnancy and that further she was of short stature and had
become obese.
Opposite Parties No. 1 to 3 have relied on the ultrasound tests to prove that there
was no evidence of the fetus being large in weight since the findings of the ultrasound
were also confirmed by a team of specialists appointed by this Commission
from Maulana Azad Medical College. However, it is well accepted that ultrasound tests
by themselves are not the most accurate method of estimating the birth weight of the
fetus. According to the American College of Obstetricians and Gynecologists (ACOG)
Practice Bulletin on Macrosomia, the three methods of identifying a fetus with a weight
of over 4000 grams are ultrasonography tests and clinical and maternal health status of
the pregnant woman and correlating the information from all three sources to get a
reasonably reliable estimate of the fetal weight. Clearly, as per evidence on record, this
correlation
was
not done because all the required
antenatal
checks,
including
those pertaining to weight gain etc., were not conducted/noted. Therefore, keeping in
view these facts, even if we accept Opposite Parties contention that Complainant
No.1 weighed 3.9 kg. at birth, it needs to be noted that Dr.D.C.Dutta in his well-known
Textbook of Obstetrics as also Suneet P. Chauhan, MD, William A. Grobman, MD,
Robert A. Gherman, MD and others in their review article Suspicion and treatment of
the macrosomic fetus published in the American Journal of Obstetrics and Gynecology
(2005) 193, 332-46 have taken the view that a macrosomic baby is one who weighs
4000 grams and more. In the instant case, Complainant No.1 was only technically
not macrosomic, being just 1 gram short of 4000 grams.
We also have no doubt in our minds that there was a clear nexus between the
failure to conduct the required ante natal tests and the unfortunate repercussions which
occurred subsequently. In this connection, it may be noted that Opposite Parties had
stated that a cesarean section was not considered necessary because none of the
conditions (including adverse maternal, physiological and clinical conditions) were
present to warrant the same. However, if all the tests, including the test for gestational
diabetes, and keeping a record of the weight gain etc. had been done and thereafter the
ultrasound findings correlated with the maternal, clinical and physiological conditions, it
is possible that conducting a cesarean section would not have been so categorically
ruled out by Opposite Party No.2.
13.
Taking the above facts in their totality while applying the principles of what
constitutes medical negligence as cited in para-11 of this order, it is clear that so far as
the ante natal care checks are concerned, even though Opposite Parties No. 2 and 3
were well qualified doctors, they did not exercise the reasonable degree of care and
skill that was required in the instant case both in terms of conducting the ante natal
checks and the diagnosis thereof. These were basic and necessary tests, which even
paramedical staff have been trained to advice/conduct. Thus, it is clear that Opposite
Party No.2 did not adopt the practice of clinical observation and diagnosis including
diagnostic tests in the case that would have been adopted by a doctor, leave alone a
specialist, and, therefore, she is clearly guilty of medical negligence.
DELIVERY & POST DELIVERY CARE
14.
Other allegations of Complainant No.2 pertain to deficiency in service and
medical negligence during delivery and in the post natal care wherein the following
specific allegations were made:
(i)
Wrong decision to use forceps instead of vacuum suction

apparatus;
(ii)
Excessive and unnecessary use of forceps during delivery,

causing extensive brachial plexus and other injuries;
(iii)
Not
using
the McRoberts maneuver
when
confronted
with
shoulder dystocia during delivery;

(iv)
Not having the operation theatre ready and equipped to deal with
an emergency cesarean section; and
(v)
15.
Lack of medical care to Complainant No.1 born after delivery.
Regarding the first allegation about the wrong decision to use forceps instead of
vacuum suction apparatus, from the medical literature on the subject, we note that both
procedures i.e. forceps delivery and vacuum suction apparatus delivery have their pros
and cons and, under the circumstances, the decision of which procedure to adopt is
best left to the professional judgment of the doctor conducting the delivery. In this
connection, it would be relevant to cite the judgment of theHonble Supreme Court
in Achutrao Haribhau Khodwa Vs. State of Maharashtra [(1996) 2 SCC 634], which
states in support as follows:
44. in the very nature of medical profession, skills differ from doctor
to doctor and more than one alternative course of treatment is available,
all admissible. Negligence cannot be attributed to a doctor so long as he
is performing his duties to the best of his ability and with due care and
caution. Merely because the doctor chooses one course of action in
preference to the other one available, he would not be liable if the course
of action chosen by him was acceptable to the medical profession.
In the instant case, Opposite Party No.2, who was a qualified doctor, looking at
all the facts, took a professional decision to opt for a forceps delivery and under the
circumstances, respectfully following the judgment of the Honble Supreme Court, which
is relevant in this case, we conclude that there was no medical negligence or deficiency
in service in Opposite Party No.2s taking a decision to conduct a forceps delivery.
16.
Complainant No.2 has attributed the large number of injuries of Complainant No.1
to the wrong and excessive use of force while using the forceps. Opposite Parties in
their defence have cited medical literature*, which states that injuries like brachial
plexus and avulsed head of humerous are unfortunate but common fetal complications
of shoulder dystocia and are not related to wrong use of forceps. Further, the injuries to
the head, including cephalhaematoma, occurred during the use of forceps and do not
have long term effects. Dr. Bina Keith, the Pediatrician, who was present during delivery,
in her affidavit has stated in unequivocal terms that the forceps were skillfully used and
there was no wrong or excessive use of the same. These are plausible explanations
and we are, thus, unable to conclude that the injuries occurred because of wrong or
excessive use of force while using the forceps.
*Source :
Royal College of Obstetricians & Gynaecologists Article on Shoulder
Dystocia
- www.rcog.org.uk/womens-health/clinical-guidance/shoulderdystocia-green-top-42
17.
Additionally, Complainant No.2 alleged that shoulder dystocia was not properly
handled since one of the most important interventions namely McRoberts maneuver
was not used as is evident from the fact that it was not stated in the discharge certificate
or any other documents and was added as an afterthought in the counter affidavit of the
OPs filed before this Commission. The State Commission had also reached a similar
conclusion. On a specific query from us, OP-2 stated that it was not mentioned in the
discharge certificate by oversight and in fact suprapubic pressure admittedly applied is
necessarily to be done in conjunction with the McRoberts maneuver, implying thereby
that both procedures are interlinked. However, as per medical literature on the subject*,
these are two separate procedures. The McRoberts maneuver alone is believed to
relieve
more
than
40%
of
shoulder dystocias and
when
combined
with suprapubic pressure relieves more than 50% of shoulder dystocias. If indeed in this
case McRoberts maneuver had been used, there was no reason for not recording the
same, particularly in the copious notes purportedly written by OP-2 during the course of
delivery, wherein the other two procedures, namely, suprapubic pressure and
episiotomy were
mentioned in these documents as also in the discharge
certificate. We, therefore, find force in Complainants contention that by not using the
single most effective procedure i.e. McRoberts maneuver, shoulder dystocia was not
adequately handled.
*Source :
Article on Shoulder Dystocia by Elizabeth G. Baxley, M.D.,
University of South Carolina School of Medicine, Columbia and
Robert W. Gobbo, M.D., University of California at Davis Family
Practice
Network,
Merced,
California
(www.aafp.org/afp/2004/0401/p1707.html)
18.
Regarding the deficiency in service alleged by Complainants in not having the
operation theatre readily available for an emergency surgery since Opposite Party No.2
had admitted to them that it would require 45 minutes for preparing the same, Opposite
Party No.2 while denying the statement has further pointed out that once fetal distress
had occurred after the head had crowned during the second stage of labour,
conducting a cesarean section was not at all a consideration since even a minor delay
would be fatal for Complainant No.1. We accept this explanation, which is also
supported by medical literature* on the subject.
19.
In respect of the medical care of Complainant No.1 after delivery, from the
evidence on record we are unable to conclude that there was any medical negligence or
deficiency in service on the part of Opposite Parties. Dr. Bina Keith, a Pediatrician, was
present during the delivery and despite fetal distress during delivery, Complainant No.1
was quickly resuscitated and the vital parameters were stabilized. On medical
examination, Dr. Keith detected that this was a case of brachial plexus injury
or Erbs palsy and she immediately started preliminary medical treatment for the same.
A Neurologist was consulted within two days who confirmed the line of treatment, which
had been initiated.
*Source : Extracted from the article What is fetal distress? - www.fitpregnancy.com
20.
To sum up, so far as First Appeals No.217 of 2007 and 391 of 2007 filed by
Opposite Parties No. 1 & 2 and Opposite Party No.4/Insurance Company respectively
are concerned, we agree with the order of the State Commission that there was medical
negligence on the part of Opposite Parties No. 1 & 2 in not conducting the required and
important ante natal tests as per the standard protocols, which had unfortunate
repercussions, and also in failing to use McRoberts maneuver in handling shoulder
dystocia. However, we are unable to conclude as discussed in the foregoing paragraphs
that there was any medical negligence or deficiency in service on the part of Opposite
Party No.2 while using forceps and in the medical care and treatment of Complainant
No.1. Accordingly, the above first appeals are dismissed and the order of the State
Commission is upheld with the above mentioned modification.
First Appeal No. 223 of 2007
21.
Complainants in their First Appeal No.223 of 2007 have sought enhanced
compensation of Rs.1 Crore alongwith 24% interest on the ground that Rs.17 Lakhs
awarded by the State Commission does not even cover the medical treatment
undertaken so far, leave alone the continuing and future treatment as also adequate
compensation for mental agony and loss of income of Complainant No.2 and future loss
of income to Complainant No.1 since several professions will be blocked for him
because
of
his
various
disabilities. We
have
carefully
considered
these
submissions. We find that the State Commission has taken note of all the above
aspects
and
given
detailed
reasons
while
awarding
compensation
of
Rs.17,00,000/-. We specifically asked Complainant No.2 whether any additional

interventions, including surgery, had been undertaken on Complainant No.1 after the
order of the State Commission and he stated (as stated in his written submissions) that
one more surgery had been done on 15 th June, 2011 wherein two tendon transfers and
one muscle procedure had been conducted. However, no proof of the expenditure
incurred on the same has been filed before us. On another query by us whether
Complainant No.1 attends a regular school for normal children, Complainant No.2
replied in the affirmative, which indicates that the physical injuries at the time of delivery
have fortunately not impacted on his IQ and general mental development. Keeping
these facts in view and because we have found Opposite Parties No. 1 and 2 guilty of
medical negligence on lesser counts than concluded by the State Commission, we are
not inclined to interfere with the order of the State Commission, awarding compensation
of Rs.17,00,000/-, and confirm the same. First Appeal No. 223 of 2007 is accordingly
dismissed. No costs.
Sd/(D. K. JAIN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Sd/(VINAY KUMAR)
MEMBER
Mukesh

Commission Panchkula)
National Insurance Co. Ltd. Through its Authorized Signatory Arun Tikku, Deputy
Manager, SCO No.337 340 Sector 35B, Chandigarh
... Petitioners
Versus
Jai Bhagwan S/o Shri Desh Raj R/o Village Khanpur, Tehsil Narwana, District Jind,
Haryana
..... Respondent
BEFORE:
For the Petitioner
: Ms. Nanita Sharma, Advocate
For the Respondent
: Mr. Jasbir S. Malik, Advocate
PRONOUNCED ON : 25th APRIL, 2014

ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
This revision is directed against the order dated 4.8.2012 of the Haryana State
Consumer Disputes Redressal Commission (for short, The State Commission)
Chandigarh whereby the State Commission dismissed the appeal of the petitioner
insurance company against the order of the District Forum Jind.
2.
Briefly stated, facts relevant for the disposal of this revision petition are that
Rajesh Jaglan S/o Gulab Singh was registered owner of Car No.HR32 C 8787. He got
the car insured with the opposite party vide policy No.250410310961 valid from
29.12.2009 to 28.12.2010. After obtaining the insurance policy, Rajesh Jaglan sold the
car to the respondent/complainant and registration was transferred in his name on
11.8.2010. The car met with an accident on 24.8.2010 resulting in damage.
Respondent/complainant filed the insurance claim. A surveyor was appointed who
inspected the car and assessed the monetary value of the car to the tune of
Rs.1,85,007/-. The insurance claim, however, was repudiated by the petitioner. This led
to the filing of the consumer complaint.
3.
The petitioner/opposite parties resisted the complaint. In the written statement
they accepted that car was insured in the name of earlier owner Rajesh Jaglan. It met
with an accident resulting in damage and that as per the surveyor, net loss was to the
tune of Rs.1,85,007/-. It was claimed that since the respondent/complainant did not get
the insurance transferred in his name, the claim was rightly repudiated.
4.
Learned District Forum on perusal of the pleadings and evidence led by the
parties concluded that the repudiation of claim by the petitioner amounted to deficiency
in service. Thus, District Forum allowed the complaint and directed as under:
Resultantly, the complaint is allowed and the opposite
parties are directed to pay a sum of Rs.1,85,007/- as loss
assessed by surveyor appointed by the insurance company within
a period of 30 days from the date of this order, failing which simple
interest @ 9% p.a. will be paid by the opposite parties to the
complainant from the date of this complaint till its realization. No
order as to costs. Copies of the order be supplied to the parties
under the rule.
5.
The petitioner insurance company being aggrieved of the order of the District
Forum preferred an appeal. The State Commission, however, confirmed the order of the
District Forum and dismissed the appeal.
6.
Mr. Nanita Sharma, Advocate for the petitioner has contended that the impugned
orders of the fora below are not sustainable as the orders have been passed in utter
disregard of section 157 of the Motor Vehicles Act and the law laid down by the
Supreme Court. Learned counsel further contended that the petitioner is a subsequent
purchaser of the vehicle who did not get the insurance policy transferred in his
name. As such there being no privity of contract between the parties, the petitioner
insurance company was justified in repudiating the claim. In support of her
contention, learned counsel for the petitioner has drawn our attention to section 157 of
the Motor Vehicles Act, 1988 as also GR 17 of the Indian Motor Tariff Regulations. The
petitioner has also relied upon the judgment of the Supreme Court in the matter
of Complete Insulations (P) Ltd. Vs. New India Assurance Co. Ltd. 1996 (1) SCC 221.
7.
Learned counsel for the respondent on the contrary has taken us through
section 157 (2) of the Motor Vehicles Act and submitted that the aforesaid provision
gives 14 days time to the transferee of a vehicle to get the insurance transferred in his
name. In the instant case, the accident took place on 13 th day after the transfer of
registration. Therefore, there was no justification for repudiation of claim by the
petitioner opposite party.
8.
In order to appreciate the contention of the parties, it would be useful to have a
look on Section 157 of the Motor Vehicles Act, 1988 which reads as under: Transfer of Certificate of Insurance: (1) Where a person in whose
favour the certificate of insurance has been issued in accordance
with the provisions of this Chapter transfers to another person the
ownership of the motor vehicle in respect of which such insurance
was taken together with the policy of insurance relating thereto, the
certificate of insurance and the policy described in the certificate
shall be deemed to have been transferred in favour of the person to
whom the motor vehicle is transferred with effect from the date of
its transfer.
[Explanation.-For the removal of doubts, it is hereby declared that
such deemed transfer shall include transfer of rights and liabilities
of the said certificate of insurance and policy of insurance.]
(2) The transferee shall apply within fourteen days from the date of
transfer in the prescribed form to the insurer for making necessary
changes in regard to the fact of transfer in the certificate of
insurance and the policy described in the certificate in his favour
and the insurer shall make the necessary changes in the certificate
and the policy of insurance in regard to the transfer of insurance.
9.
Similar issue came up before the Supreme Court in the case of Complete
Insulation Pvt. Ltd. vs. New India Assurance Co. Ltd. (1996) 1 SCC 221 wherein it was
held:
Thus, the requirements of that chapter are in relation to third party
risks only and hence the fiction of Section 157 of the New Act must
be limited thereto. The certificate of insurance to be issued in the
prescribed form (See Form 51 prescribed under Rule 141 of the
Central Motor Vehicles Rules, 1989) must, therefore, relate to third
party risks. Since the provisions under the New Act and the Old Act
in this behalf are substantially the same in relation to liability in
regard to third parties, the National Consumer Disputes Redressal
Commission was right in the view it took based on the decision in
Kondaihs case because the transferee-insured could not be said to
be a third party qua the vehicle in question. It is only in respect of
third party risks that Section 157 of the New Act provides that the
certificate of insurance together with the policy of insurance
described therein "shall be deemed to have been transferred in
favour of the person to whom the motor vehicle is transferred". If
the policy of insurance covers other risks as well, e.g., damage
caused to the vehicle of the insured himself, that would be a matter

falling outside Chapter XI of the New Act and in the realm of
contract for which there must be an agreement between the insurer
and the transferee, the former undertaking to cover the risk or
damage to the vehicle. In the present case since there was no such
agreement and since the insurer had not transferred the policy of
insurance in relation thereto to the transferee, the insurer was not
liable to make good the damage to the vehicle. The view taken by
the National Commission is therefore correct.
10.
Similar view was taken by the Supreme Court in the case of Rikhi Ram & Anr.
Vs. Sukhrania & Ors. (2003) 3 SCC 97 and it was observed:
6.
On an analysis of Sections 94 and 95, we further find that there

are two third parties when a vehicle is transferred by the owner to a
purchaser. The purchaser is one of the third parties to the contract
and other third party is for whose benefit the vehicle was insured.
So far, the transferee who is the third party in the contract cannot
get any personal benefit under the policy unless there is a
compliance of the provisions of the Act. However, so far as third
party injured or victim is concerned, he can enforce liability
undertaken by the insurer.
7.
8.
11.
For the aforesaid reasons, the appeal, is allowed. We set aside the
order and judgment under challenge. It is hereby directed that the
insurer shall pay compensation to the victims within eight weeks
along with the interest @ 11% p.a. from the date of incident and it
will be open to the insurer to recover the said amount either from
the insured or from the transferee of the vehicle. However, there
shall be no order as to the costs.
From the above decision of the Supreme Court, it is clear that the insurance
company is not under obligation to indemnify the subsequent purchaser for the damage
caused to the vehicle unless the subsequent purchaser has got the insurance policy
transferred in his name. In the instant case as the insurance policy was not transferred
in the name of the respondent complainant, the petitioner was justified in repudiating the
claim.
12.
Learned counsel for the respondent has contended that the above noted
judgments of the Supreme Court are not applicable to the facts of this case. It is
submitted that the foras below were right in holding the petitioner deficient in service
because there was no justification on the part of the petitioner to repudiate the claim on
the ground that the respondent complainant had not got the insurance policy transferred
in his name particularly when 14 days time given under section 157 (2) of the Motor
Vehicles Act, 1988 for applying for transfer of insurance had not expired on the date on
which the accident took place.
13.
The arguments of the respondent complainant appears to be attractive in the
first blush. The argument, however, is without any merit. GR 17 of the Indian Motor
Tariff Regulations deals with the transfer of insurance policy in case of sale of the
vehicle by the original insured owner. GR 17 reads as under:
GR.17. Transfers
On transfer of ownership, the Liability Only cover,
either under a Liability Only policy or under a Package policy,
is deemed to have been transferred in favour of the person to
whom the motor vehicle is transferred with effect from the
date of transfer.
The transferee shall apply within fourteen days from
the date of transfer in writing under recorded delivery to the
insurer who has insured the vehicle, with the details of the
registration of the vehicle, the date of transfer of the vehicle,
the previous owner of the vehicle and the number and date of
the insurance policy so that the insurer may make the
necessary changes in his record and issue fresh Certificate
of Insurance.
In case of Package Policies, transfer of the Own
Damage section of the policy in favour of the
transferee, shall be made by the insurer only on receipt of a
specific request from the transferee along with consent of the
transferor. If the transferee is not entitled to the benefit of the
No Claim Bonus (NCB) shown on the policy, or is entitled to a
lesser percentage of NCB than that existing in the policy,
recovery of the difference between the transferees
entitlement, if any, and that shown on the policy shall be
made before effecting the transfer.
A fresh Proposal Form duly completed is to be
obtained from the transferee in respect of both Liability Only
and Package Policies.
Transfer of Package Policy in the name of the transferee
can be done only on getting acceptable evidence of sale
and a fresh proposal form duly filled and signed. The old
Certificate of Insurance for the vehicle, is required to be
surrendered and a fee of Rs.50/- is to be collected for issue
of fresh Certificate in the name of the transferee. If for any
reason, the old Certificate of Insurance cannot be
surrendered, a proper declaration to that effect is to be
taken from the transferee before a new Certificate of
Insurance is issued.
14.
On conjoint reading of section 157 (2) of the Motor Vehicles Act and GR 17 of
the Motor Tariff Regulations, it is clear that in the case of package insurance policy, the
transfer of Own Damage section of the policy in favour of transferee shall be done by
the insurance company in case specific request in writing is made by the transferee of
vehicle within 14 days from the date of transfer of ownership. Undisputedly, in the
instant case, accident took place before the expiry of period of 14 days for applying for
transfer of insurance as provided under section 157 (2) of the Motor Vehicles Act and
GR 17 of the Motor Tariff Regulations. Therefore, the question which needs answer is
whether in such a situation dehors transfer of policy in his name, the respondent
complainant is entitled to the benefit under the insurance contract between the
petitioner insurance company and the previous owner? The answer to the above
question is in-built in GR 17 of the Indian Motor Tariff Regulations. The said rule
provides that the transfer of Own Damage section of the insurance policy shall be
made in favour of the transferee only on specific request from the transferee alongwith
consent of the transferor. Thus, it is evident that the transfer of the insurable interest
under the Own Damage package section of the policy, can be done only with the
consent of the transferor.
15.
It is pertinent to note that original owner was not made party to the
complaint. The case of the complainant as set up in para 2 of the complaint is that after
the transfer of registration in his name, he went to the office of the petitioner OP No.1 for
transfer of insurance policy in his name but officials of OP No.1 did not do the needful.
There is no evidence to support this contention. As per rule GR 17, the transferee of
the vehicle is required to apply for transfer of insurance policy in writing and that too
alongwith consent of the previous owner of the vehicle. The complainant has neither
produced any evidence to prove that he applied for insurance in writing nor he has
produced any evidence to show that the previous owner gave his consent for transfer of
insurance policy in his name. In absence of any evidence to this effect, the finding of
State Commission that the complainant had moved an application for transfer of
insurance policy in his name but the complainant company had failed to transfer the
policy, is not sustainable. Even if the accident took place before the expiry of 14 days
period from the date of transfer of ownership, the respondent complainant could
easily have applied for transfer of ownership with requisite consent of transferor within
the requisite period despite of the accident because the insurance cover under the
policy still existed. There is nothing on record to suggest that the consent of the
previous owner was submitted alongwith the claim form. Therefore, the petitioner
insurance company was well within its right to repudiate the claim on the ground that
there was no privity of contract between the insurance company and the complainant.
Both
the
foras
below
have
allowed
the
complaint
in
utter
disregard
of
above noted facts and section 157 (2) of Motor Vehicles Act, 1988, GR 17 of Indian
Motor Tariff Regulations as also the law down by the Supreme Court. Therefore, the
impugned orders are not sustainable.
16.
We accordingly accept the revision petition, set aside the impugned orders and
dismiss the complaint.
...Sd/(AJIT BHARIHOKE, J.)

PRESIDING MEMBER
..Sd/-.
(SURESH CHANDRA)
MEMBER
Am

(Against the order dated 02.08.2012 in First Appeal No. 140/2007 of the State
Commission Haryana, Panchkula)
1. The Divisional Manager Divisional Office LIC of India Yamuna Nagar Haryana
Through Shri Balihar Singh Assistant Secretary (Legal Cell) Central Office, LIC of India
H-39, Connaught Place, New Delhi - 110001
........ Petitioner
Vs.
1. Smt. Mamta Rani w/o Late Shiv Kumar s/o Late Ramji Lal r/o village Chintpur P.O.
Lalhari Kalan, Tehsil Chhachhrauli District Yamuna Nagar
2. Miss Sonam d/o late Sh. Shiv Kumar r/o village Chintpur P.O.Lalhari Kalan, Tehsil
Chhachhrauli District Yamuna Nagar
......... Respondents
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
For the Petitioner
Mr. Mohinder Singh, Advocate
For the Respondent
Ex parte

ORDER
This revision is directed against the order of the State Commission Haryana in
First Appeal No. 140 of 2007 whereby the State Commission dismissed the appeal
preferred by the petitioner and confirmed the order of the District Forum Yamuna Nagar,
operative part of the order of the District Forum reads as under:
We allow the complaint of the complainants and direct the respondents to
release the amount under the policy No.172116131 in favour of complainant
no.1 alongwith bonus alongwith accident benefit and release the amount of
policy No.172116080 in favour of complainant no.2 alongwith bonus alongwith
accident benefits and pay interest on the amount at the rate of 12% per annum
after three months of the death of insured and Rs.10,000/- as compensation for
causing mental agony, harassment and litigation expenses.
2.
Notice of the appeal was sent to the respondents, namely, the widow and
daughter of the deceased insured. The respondents despite of service of notice

through registered AD post, preferred not to appear. They were, therefore, proceeded
ex parte.
3.
Learned Shri Mohinder Singh, Advocate for the petitioner has submitted that
foras below have committed a grave error in granting accident benefit to the respondent
against the terms and conditions of the insurance policy. Expanding on the argument,
learned counsel for the petitioner has contended that as per clause 10.2 of the
insurance policy, accident benefit is payable only if the life assured suffers permanent
disability or death as a consequence of an accident. It is contended that foras below
have failed to appreciate that the insured died not because of accident but due to heart
attack and that the respondents have not even claimed accident benefit in their
complaint.
4.
We find merit in the contention of the petitioner. On perusal of the copies of the
insurance policies placed on record, we find that the terms and conditions of both the
insurance policies are similar. Clause 10.02 of the insurance policy deals with accident
benefit cover. Relevant portion of the aforesaid clause is reproduced thus:
Accident Benefit : If accident benefit has been opted for and while 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 before the policy anniversary of 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 of the Life Assured : (i) to pay in monthly instalments spread

over 10 years an additional sum equal to the sum assured under this
policy if the policy becomes a claim before the expiry of the said period
of 10 years, the disability benefit instalments have not been due will be
paid along with the claim (ii) to waive the payment of future premiums.
The maximum aggregate limit of assurance on the same life to
which benefit (i) and (ii) above apply shall not in any case exceed
Rs.50.00 lacs taking all existing policies of the life assured and under
individual as well as group schemes including policies with in-built
accident benefit taken with Life insuance Corporation of India and other
insurance companies, if there be more policies than one and if the total
assurance exceeds Rs.50 lacs, the benefits shall apply to the first Rs.50
lacs sum assured in order of the date of policies issued.
The waiver of all premium shall extinguish all options under this
policy except as to such assurance if any, as exceeds the maximum
aggregate limit of Rs.50,00,000/- and which may have been kept in
force by continued payment of premiums and the benefits covered by
(b) of this clause.
(b) Death of the Life Assured : to pay an additional sum equal to the
sum assured under this policy if the life assured shall sustain any bodily
injury resulting solely and directly from the accident caused by outward,
violent and visible means and such injury shall within 180 days of its
occurrence solely, directly and independently of all other causes result
in the death of the life assured. However, such additional sum payable
in respect of this policy shall not in any even exceeds Rs.50 lacs taking
all existing policies of the life assured and under individual as well as
group schemes including policies with in-built accident benefit taken
with Life Insurance Corporation of India and other insurance

companies.
5.
On reading of the above, it is clear that in case of death of life assured, the
additional accident benefit equal to the sum assured is payable only if the life assured
dies because of any bodily injury resulting solely and directly from an accident by
outward, violent and visible means. In the instant case, as per the record, the life
assured died on 01.07.2002 due to heart attack. There is no evidence on record to
indicate that the life assured died because of some injury suffered in an accident. Thus,
the foras below have committed a material illegality in awarding the accident benefit to
the respondents against the terms and conditions of the insurance contract. As such,
the order of the fora below regarding grant of accident benefit cannot be sustained.
6.
In view of the above, we allow the revision petition and direct the petitioner to
release to the respondents a sum of Rs.1,50,000/- assured under the respective

policies with the accrued bonus alongwith 12% interest on the aforesaid amount after
three months of the death of the insured besides Rs.10,000/- as compensation for
mental agony, harassment and litigation expenses. The impugned order is modified to
the aforesaid extent.
.Sd/(AJIT BHARIHOKE, J)
(PRESIDING MEMBER)
Sd/(SURESH CHANDRA)
MEMBER
Am/

(Against the order dated 27.09.2013 in First Appeal No. 434/2012 of the State
Commission Andhra Pradesh, Hyderabad)
M/s Yeturu Biotech Ltd. Represented by its Managing Director 1714, A.C Guards
Hyderabad 500004 Andhra Pradesh
........ Petitioner
Vs.
1. National Insurance Company Limited Represented by its Branch Manager No. 703 &
704-7th Floor Moughal Court, Basheerbagh Hyderabad 500029 Andhra Pradesh
2. M/s National Insurance Company Ltd. Represented by its Chief Manager Regd.
Office No.3, Middleton Street Post Box No. 9229 Kolkata 700071, West Bengal
......... Respondents
BEFORE:
For the Petitioner
Mr. Nikhil Swami, Advocate

ORDER
This revision is directed against the order of the State Commission dated
27.09.2013 in FA No. 434/2012 whereby the State Commission allowed the appeal and
dismissed the complaint of the petitioner as barred by limitation.
2.
Briefly stated facts relevant for the disposal of the revision petition are that the
petitioner complainant is in the business of manufacture of Biotech products. For that

purpose, the complainant procured flexi tubes from M/s Printo Tech Global Limited,
Noida II, U.P. and consigned the said goods to M/s Sarvotham Care Limited
197/1, Qutubullapur, Jeedimetla,
Hyderabad
through
M/s
New
Bharat
Golden Road Carriers. The consignment was insured with the respondent insurance
company for a sum of Rs.3,07,197/-. It is claimed by the complainant that during transit
the consignment got damaged. The claim in this regard was submitted which was not
settled by the respondent opposite party. Claiming this to be deficiency in service, a
consumer complaint was filed before the District Forum.
3.
The respondent in his written statement besides denying the allegations made in
the complaint took the plea that complaint was barred by limitation for the reason that it
was filed on 01.11.2011, five years after the date on which the insured consignment was
allegedly damaged.
4.
The District Forum Hyderabad on consideration of the pleadings and the
evidence led by the parties, allowed the complaint and directed the respondent opposite
party to pay a sum of Rs.3,07,197/- alongwith 9% interest thereon w.e.f. 01.11.2006 till
the date of payment besides cost of Rs.2000/-.
5.
Feeling aggrieved of the order of the District Forum, the respondent insurance
company preferred an appeal. The State Commission on consideration of record came

to the conclusion that consumer complaint was barred by limitation and dismissed the
complaint. Relevant observations of the State Commission are reproduced thus:
The main contention of the appellants/opposite parties in the case is that
the complaint is not filed within the limitation period provided by Sec.24-A
of the C.P.Act and that no prior permission of the Districti Forum has been
taken by the complainant seeking condonation of delay for the delayed
period as enshrined in the proviso of Sec.24-A of Consumer Protection
Act. Therefore, the District Forum erroneously allowed the complaint. The
District Forum ought to have dismissed the complaint.
On the other hand, the contention of the respondent/complainant is that
he came to know about the rejection of the claim on 01.02.2011, when the
IRDA had informed him about the said fact of rejection of the claim. The
complaint is filed in 2011 itself and therefore the complaint has been filed
within two years from the date of knowledge of rejection of the claim and
hence, it is not barred by limitation. As such, the District Forum rightly held
that the complaint is filed within two years period of limitation from the
date of knowledge of the rejection of the claim and that the complaint is
not barred by limitation.
It is an undisputed fact that the claim of the respondent/complainant is
repudiated vide surveyor report dt.22.10.2006. It is the case of the
appellants/opposite parties that a copy of the surveyors report containing
repudiation of claim was handed over to the respondent/complainant
immediately in the year 2006. The respondent/complainant denied to have
received the surveyors report. The appellants/opposite parties has not
filed any proof that they have handed over the copy of the surveyors
report. However, the respondent/complainant himself got filed the
surveyors report and got it marked as Ex.A3 along with his other
documents. Ex.A3 does not contain the seal or stamp of IRDA office or
signature or sign of the official of IRDA, to conclude that the IRDA officials
handed over Ex.A3 to the respondent/complainant in 2011.
The respondent/complainant filed Ex.A12 covering letter, enclosing the
letter written by IRDA to him on 17.3.2008. As seen from Ex.A12 letter, on
the complaint made by the respondent/complainant, the IRDA directed the
respondent/complainant on 17.3.2008 to approach the proper Forum for
adjudication of his claim, as his claim is repudiated based on the survey
report. But, even after receiving the letter dt.17.03.2008 of IRDA, the
respondent/complainant choose to remain silent up till 19.11.2011, on
which date the respondent/complainant got filed the complaint. From
Ex.A12 letter it is evident that the respondent/complainant had knowledge
of repudiation even from 17.03.2008 i.e. the date of letter enclosed to
Ex.A12 letter. It is therefore obvious that the complaint is not filed by
respondent/complainant within two years either from the date of the
surveyors report i.e. 22.10.2006 or from the date of the letter enclosed to
Ex.A12 i.e. 17.3.2008. The District Forum has not considered Ex.A12
letter.
Section 24 of the Consumer Protection Act provides for a period of two
years within which complaint has to be filed and in the event the complaint
is not filed within the prescribed period, Consumer Forum cannot entertain
the complaint. If the complaint is filed beyond the period of limitation, the
complainant is required to file an application seeking condonation of delay
in filing the complaint and if the Consumer Forum satisfied with the cause
for the delay in filing the complaint, it would condone the delay and admit
the complaint.
The cause of action is dealt with in detail by the Supreme Court
in Kandimalla Raghavaiah and Co. vs. National Insurance Company Ltd.
and another reported in 2009 CTJ 951 (SC) . In para 13 of the judgement
it has been held as under:
The term cause of action is neither defined in the Act nor in the Code of
the Civil Procedure 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 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.
Admittedly the complainant has not filed any application to condone the
delay in filing the complaint as provided under proviso to Sec.24-A
of C.P.Act.
For the above said facts and circumstances, we hold that the complaint is
barred by limitation and as such, the complaint is liable to be dismissed.
Consequently, the impugned order of the District Forum is liable to be set
aside.
6.
Learned counsel for the petitioner has contended that the impugned order of the
State Commission is not sustainable as the State Commission has failed to appreciate
that the petitioner came to know about the repudiation of his claim only from the letter
dated 01.02.2011 addressed to him by IRDA alongwith copy of letter dated 16.05.2008
was annexed wherein it was mentioned that the claim of the petitioner has already been
repudiated. It is submitted that the State Commission failed to appreciate that the
petitioner was neither supplied with the copy of the Surveyor Report recommending no
liability on the part of the insurance company nor he was served with the repudiation
letter. The State Commission also failed to appreciate that letter dated 16.05.2008 was
not received by the petitioner. Learned counsel has thus urged that cause of action to
file consumer complaint arose when the petitioner came to know about the repudiation
of his claim and if the period of limitation is computed w.e.f. the date of knowledge i.e.
01.02.2011, the complaint was filed well within the prescribed period of limitation of two
years provided under section 24A of the Consumer Protection Act, 1986 ( in short, the
Act).
7.
Section 21 (b) of the Act provides for the revisional jurisdiction of the National
Commission which reads as under:

21. Jurisdiction of the National Commission : (b) to call for the records and pass
appropriate orders in any consumer dispute which is pending before or has been
decided by any State Commission where it appears to the National Commission
that such State Commission has exercised a jurisdiction not vested in it by law,
or has failed to exercise a jurisdiction so vested, or has acted in the exercise of
its jurisdiction illegally or with material irregularity.
8.
On reading of the above, it is clear that revisional powers of the National
Commission are very limited and those can be exercised only if there is a jurisdictional
error or material irregularity in the order of the fora below.
9.
Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s. United India
Insurance Co. Ltd. 2011 (3) Scale 654 has observed :

Also it is to be noted that the revisional powers of the National
Commission are derived from Section 21(b) of the Act, under which the
said power can be exercised only if there is some prima facie jurisdictional
error appearing in the impugned order, and only then, may the same be
set aside. In our considered opinion there was no jurisdictional error or
miscarriage of justice, which could have warranted the National
Commission to have taken a different view than what was taken by the
two Forums. The decision of the National Commission rests not on the
basis of some legal principle that was ignored by the Courts below, but on
a different (and in our opinion, an erroneous) interpretation of the same
set of facts. This is not the manner in which revisionalpowers should be
invoked. In this view of the matter, we are of the considered opinion that
the jurisdiction conferred on the National Commission under Section 21(b)
of the Act has been transgressed. It was not a case where such a view
could have been taken by setting aside the concurrent findings of
two fora.
10.
On perusal of the impugned order, particularly the relevant portion reproduced
above, we do not find any jurisdictional error or material irregularity in the finding of the
State Commission. The impugned order is well reasoned and based upon the thorough
analysis of the facts. The contentions raised by the petitioner before us have been
dealt by the State Commission in appropriate manner. Thus, we do not find any reason
to take a different view and interfere with the impugned order in exercise of
the revisional jurisdiction.
11.
In view of the above discussion, revision petition is dismissed with no order as to
costs.
.
(AJIT BHARIHOKE, J)
(PRESIDING MEMBER)
(SURESH CHANDRA)
MEMBER
Am/

(Against the order dated 10.04.2013 in First Appeal No. A/05/744 of the State
Commission Maharashtra, Mumbai)
1. Life Insurance Corporation of India Through its Kohapur Branch, Jeevan Jyoti
Building Opp Stadium Sangli, Maharashtra
2. Life Insurance Corporation of India Opp. Goagate College Ratnagiri, District
Ratnagiri 415612 Through its Western Zonal Office, Yogakshema Jeevan Bima Marg,
Mumbai-40002
........ Petitioners
(Petitioners No.1 & 2 Acting through Assistant Secretary (Legal), LIC of India, C.O.
(legal) Cell, Delhi, H-39, Ist Floor, New Asiatic Building Connaught Circus, New Delhi 110001
Vs.
Anand Rao Ramchandra Salunke Peth Region, Kavlapur, Taj Miraj District Sangli
......... Respondent
BEFORE:
For the Petitioner
Mr. U.C.Mittal, Advocate
For the Respondent
Mrs. (Dr.) Vidya C. Wakale, Advocate
PRONOUNCED ON : 28 TH APRIL, 2014

ORDER
1.
This revision is directed against the order of the State Commission Maharashtra
dated 10.04.2013. The main controversy in the revision petition is in regard to the
surrender value of the policy payable to the insured before the maturity period is over.
2.
Briefly stated facts relevant for the disposal of the revision petition are that the
respondent complainant obtained insurance policy with sum assured of 75000/- on

11.11.1993 with date of maturity 11.11.2018. The respondent failed to pay the
insurance premium from August 2002 onwards resulting in the lapse of the policy. The
complainant had taken a loan against the policy. The complainant applied for release of
surrender value of the policy as he was not in a position to pay the arrears of premium
for revival of the policy. The petitioner insurance company assessed the surrender
value and offered to pay a sum of Rs.2268/- to the respondent complainant after
adjusting the amount of loan due from the complainant. The complainant did not accept
the offer because while computing the surrender value, bonus amount of Rs.37800/-
was not taken into account. Claiming this to be deficiency in service, the respondent
filed a consumer complaint.
3.
The petitioner in its written statement admitted issue of insurance policy in
favour of the complainants. According to the petitioner, the complainant stopped

payment of the premium w.e.f. August 2001 and applied for the surrender value under
the policy. Accordingly, the surrender value was calculated and after deducting the loan
of Rs.15,000/- which was taken by the petitioner against the policy as also the thereon,
offered the balance Rs.2268/- to the respondent which was not accepted by the
complainant.
4.
The District Forum on consideration of the pleadings and evidence on record,
allowed the complaint and ordered thus:

1. The respondent shall pay to the complainant the amount of Rs.29888/(Rupees Twenty Nine Thousand Eight Hundred Eighty Eight only) with interest
@ 9% p.a. from the date of filing of the complaint (21.07.2004).
2. The respondent shall pay to the complainant the costs of Rs.1000/(Rupees one thousand only)
3. The respondent shall comply with the order within 30 days of the receipt of
the true copy of this judgment.
5.
Feeling aggrieved of the order of the District Forum, the petitioner preferred an
appeal. The State Commission Maharshtra Mumbai, however, dismissed the appeal.
6.
Mr. U.C.Mittal, Advocate, counsel for the petitioner insurance company has
contended that the impugned orders of the fora below are unsustainable as the orders
have been passed on wrong interpretation of condition no.7 of the insurance policy
which deals with the guaranteed surrender value. It is submitted that since the status of
the subject policy was lapsed as on the date of request of the complaint, the surrender
value was calculated in term of condition no.7 of the policy as 30% of sum of premium
paid by the respondent excluding the premium for one year plus the bonus declared
from year to year till the date on which the policy lapsed and after adjusting the dues
against the loan taken by the complainant, balance Rs.2268/- was offered to the
complainant.
7.
Learned counsel for the opposite party on the contrary has argued in support of
the impugned orders. She has contended that till date, there is no policy or guideline to
compute the paid up / surrender value of a lapsed policy. If we go by condition no.7 of
the insurance policy, then the guaranteed surrender value has to be 30% of the amount
of premiums paid excluding one year premium plus the accrued bonus declared from
year to year. It is argued that the insurance company was not justified in offering
payment of 30% of the accumulated bonus against the expressed terms of the
insurance policy. Thus, learned counsel for the respondent has urged us to dismiss the
complaint.
8.
We have considered the respective submissions. The precise question which
needs determination is that while computing the surrender value of the insurance policy
before the maturity date, can the insurance company reduce the amount of the cash
value of declared bonus to 30%?.
9.
Similar question came up for determination before the five member Bench of this
Commission in the matter of Branch Manager, LIC of India & Anr. Vs. A. Paulraj II (1996)
CPJ 69 (NC), wherein the larger Bench of this Commission took the view that while
computing surrender value of a lapsed policy, the cash value of the accrued bonus
cannot be the same if the payment is made before the maturity of the policy. Relevant
observations of the larger Bench are reproduced thus:
We have heard the Counsel for the LIC at length. Neither the
respondent nor his Counsel/authorised representative was present
when the case was taken up for hearing. We have carefully perused
Condition No.7 which defines the guaranteed surrender value. This
Condition is as follows:
Guaranteed Surrender Value: This policy can be surrendered for
cash after the premiums have been paid for at least three years.
The minimum surrender value allowable under this policy is equal
to 30% of the total amount of the mentioned premiums paid
excluding premiums for the first year and all extra premiums and/or
additional premiums for accident benefit that may have been
paid. The cash value of any existing vested bonus additions will
also be allowed.
(Emphasis supplied)
The question for decision, therefore, is as regards the cash
value of any existing bonus additions. The contention of the insured
is that the cash value of the bonus should be the same as the
accrued bonus thereon even before the maturity of the policy. That
obviously is not the correct in terms of Condition No. 7. If the
intention was to pay the entire bonus accrued on the policy at any
given point of time before maturity, then the concept of cash value
would not have been incorporated in this condition for calculating
the guaranteed surrender value. The total amount of bonus is paid
on the maturity of the policy along with the final payment and till
then it remains with the LIC which can utilise it for investment
purposes. If it has to pay the accrued bonus earlier than the final
payment, the Condition No. 7 introduces the concept of cash value
of the total accrued bonus upto that point to time, and the cash
value has been calculated according to the surrender value factor
which has been clearly indicated in the sheet showing calculation of
the surrender value of the policy. We, therefore, find that the State
Commission has erred in construing the cash value to be the same
as the accrued bonus even, when paid before the maturity. We,
therefore, accept this appeal and set aside the order of the State
Commission and District Forum and dismiss the complaint. We hold
that the surrender value as shown in the calculation sheet and for
which the cheque of Rs.2,927.40 was sent to the insured is correct.

There is no order as regards costs.
10.
We find no reason to differ with the view taken by the larger Bench. In view of
the above judgment, it is clear that the insurance company was right in applying the
formula of 30% of total amount viz-a-viz the accrued bonus while computing the
surrender value of the insurance policy. Therefore, we are of the view that the fora
below have committed a grave error in allowing the complaint of the respondent in utter
disregard of the judgment of the larger Bench in the case of Branch Manager, LIC of
India and Anr. Vs. A. Paulraj (supra). The impugned order, therefore, cannot be
sustained.
11.
In view of the above, the revision petition is allowed, impugned orders of the fora
below are set aside and the complaint is dismissed.
..
(AJIT BHARIHOKE, J)
(PRESIDING MEMBER)
.
(SURESH CHANDRA)
MEMBER
Am/

(From the order dated 05.03.2011 in Consumer Complaint No. 345 of 2000 of the
Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
With IA/7098/2013 (Placing Addl. Documents)
M/s. S.S. Builder and Contractors Shri Suhas Gangadhar Rahurkar D/12, Sankalpa,
4th Liberty Garden Road, Malad, Mumbai 400064 Maharashtra State
Appellant/Opp. Party (OP)
Versus
1. Mukund M. Sarang C/26, New Vinay Society, Opp. Vidyanagari, Kalina Santacruzz (
E), Mumbai 400018
2. Shri Vilas
Ganesh Bal
103,
A/1/7,
Best
View Yadhodhan,
General Vaidya Marg, Goregaon (W). Mumbai 400064
3. Shri Prakesh Yeshwant Sahasrabudhe C/26, New Vinay Terace Co-op. Society
Opp. Vidyanagari, Kalina, Santacurz (E), Mumbai 400098
Respondents/ Complainants
FIRST APPEAL NO. 203 to 207 OF 2011

BEFORE
For the Appellant:
Mr. Uday B. Wavikar, Advocate Mr. S.K. Sharma, Advocate
For the Respondent No.1: Mr. S.B. Prabhavalkar, Advocate

For the Respondent Nos. 2 & 3 :
NEMO

ORDER
These appeals have been filed by the appellant against the order dated
05.03.2011
passed
by
the
Maharashtra
State
Consumer
Disputes Redressal Commission, Mumbai (in short, the State Commission) in

Consumer Complaint No. 345 of 2000 Mukund M. Sarang & Ors. Vs. M/s. S.S.
Builder & Contractors Shri Suhas Gangadhar Rahurkar, Consumer Complaint No. 346
of
2000
Rohini P. Mether & Ors. Vs.
M/s.
S.S.
Contractors Shri Suhas Gangadhar Rahurkar, C.C.

- Deepa R. Malandhar Vs.
M/s.
Builder
No.
S.S.
&
347/2000
Builder
&
Contractors Shri Suhas Gangadhar Rahurkar, Consumer Complaint No. 227 of 2001
P.Y. Shahastrabudhe & Ors.
Vs.
M/s.
S.S.
Builder
&
S.S. Baing & Ors.
Vs.
M/s.
S.S.
Builder
Contractors Shri SuhasGangadhar Rahurkar and Consumer Complaint No.

2001
P.D. Modak & Ors.
Vs.
M/s.
S.S.
&
229
Builder
of
&
Contractors Shri Suhas Gangadhar Rahurkar by which, order dated 20.09.2010 passed
by learned State Commission was corrected.
All these appeals arise out of common
order of the State Commission and involve common question; hence, decided by single
order.
2.
Brief facts of the cases are that Complainants/respondents filed complaints before
learned State Commission with a prayer to refund money paid for purchase of flats
along with interest and damages. Learned State Commission vide order dated
20.9.2010 allowed complaints as under:
ORDER
COMPLAINT NO.345/2000
1. Complaint is partially allowed.
2. Opponent no.1 shall pay Rs.1,75,000/- to the complainant from 15/12/1998 till its
realization.
3. Prayer in respect of damages of Rs.5 lakhs is hereby rejected.
4. Opponent no.1 shall pay Rs.5000/- to the complainant by way of cost of
complaint.
5. Complaint is dismissed as against opponent nos.2&3.
6. Copies of the order be furnished to the parties.
realization.

complaint.
realization.
complaint.
COMPLAINT NO.227to229/2000
2. Opponent no.1 shall pay following amounts to the complainants from 05/12/1998
till its realization.
Mr. P.Y.Sahastrabudhe
Mrs. M.M.Patki
Sagar Terrace Co-op.Society
Rs.2,70,000/Rs.2,15,000/Rs.6,08,000/-

complaint.
3.
Later on, by impugned order dated 5.3.2011, corrections were made in the order
dated 20.9.2010 and interest part was added in the order against which, these appeals
have been filed.
4.
record.
5.
Learned Counsel for the appellants submitted that learned State Commission had
no power to review its order and in such circumstances, impugned order reviewing the
earlier order is contrary to law; hence, appeals be allowed and impugned order be set
aside. On the other hand, learned Counsel for the respondents submitted that
impugned order is not a review order, but only necessary corrections have been made
which were only typographical errors in the earlier order and further submitted that as
impugned order is a consent order appeals are not maintainable; hence, appeals be
dismissed.
6.
First question to be decided is whether impugned order amounts to review of the
order or not. Admittedly, final order dated 20.09.2010 does not contain directions for
payment of amount with interest, though; complainants were held entitled to interest @
18% p.a. By impugned order interest was inserted in the main order. Learned Counsel
for the appellants submits that it amounts to review, whereas learned Counsel for the
respondents submits that impugned order does not come within the purview of review,
but it was only a correction of typographical error.
7.
Addition of interest by impugned order in the amount awarded by order dated
20.9.2010, though; observed in paragraph 19 of the order dated 20.9.2010 that

complainants are entitled to interest cannot be termed as typographical mistake and
apparently it amounts to reviewing the earlier order. Honble Apex Court in (2011) 9
SCC 541 - Rajeev Hitendra Pathak and Others Vs. Achyut Kashinath Karekar and Anr.
has observed that District Forum and State Commission have not been given any power
of review its own order and in such circumstances, impugned order is liable to be set
aside. Even if impugned order is treated as order under Section 152 CPC, we are of
the view that learned State Commission had no power to rectify its mistakes under
Section 152 CPC and impugned order is liable to be set aside.
8.
Learned Counsel for the respondents submitted that as impugned order is a
consent order, no appeal lies against the consent order. In support of his contentions he
has placed reliance on decisions of this Commission rendered in R.P. No. 2885 of 2006
Ningappa Hanamanppa Kador Vs. Hindustan Motors Ltd., R.P. No. 1645 of 2008
State Bank of India Vs. Smt. Sita Devi and R.P. No. 3862 of 2010 M/s. Sunny
Brooks Vs. Aparajitha Bhandary& Anr. The aforesaid judgments are not applicable to
the facts and circumstances of the present case. In the aforesaid cases, matters were
disposed of on the basis of consent of the parties, whereas in the present case Counsel
for the OP merely submitted before State Commission that amendments suggested by
complainant is required which does not amount to consent for amendment in the order.
9.
Even if it is presumed that impugned order was consent order this order is liable to
be set aside as State Commission had no power to review its order and merely by
consent an authority cannot pass any order which that authority does not have power to
pass as jurisdiction to review its order has not been conferred on State Commission.
10.
Consequently, appeals filed by the appellants are allowed and impugned order
dated 5.3.2011 passed by learned State Commission in Consumer Complaint No. 345
of
2000
Mukund M. Sarang & Ors. Vs.
M/s.
S.S.
Builder
&
M/s.
S.S.
Builder
Contractors Shri Suhas Gangadhar Rahurkar, C.C.

- Deepa R. Malandhar Vs.
M/s.
&
No.
S.S.
347/2000
Builder
&
Vs.
M/s.
S.S.
Builder
&
S.S. Baing & Ors.
Vs.
M/s.
S.S.
Builder
Contractors Shri SuhasGangadhar Rahurkar and Consumer Complaint No.

2001
P.D. Modak & Ors.
Vs.
Contractors Shri Suhas Gangadhar Rahurkar are
M/s.
set
S.S.
aside
&
229
Builder
with
liberty
of
&
to
complainants/respondents to challenge the order dated 20.09.2010 in which interest

has not been allowed.
Sd/-
PRESIDING MEMBER
Sd/-
( DR. B.C. GUPTA)
MEMBER
k

(From the order dated 21.01.2014 in First Appeal No. 452 of 2012 of the State
Dr. (Mrs.) Prem Lata wife of Dr. Banarsi Das r/o- 2A/1, 2nd Floor, Ramesh Nagar, New
Delhi- 110015
Versus
North Delhi Power Limited (Now known as Tata Power Delhi Distribution Ltd.)
through its C.E.O. 33 KV Substation Building, Hudson Lines, Kingsway Camp, Delhi
Respondent-Opposite Party
BEFORE
For the Petitioner

PRONOUNCED ON :
:Dr. Banarsi Das, Advocate

29th APRIL 2014
ORDER
Protection Act, 1986 against the impugned order dated 21.01.2014, passed by the Delhi
First Appeal No. 452 of 2012, North Delhi Power Ltd. vs. Dr. Mrs. Premlata, vide
which, while partly allowing the appeal, the order passed by the District Consumer
Disputes Redressal Forum (North Delhi), in allowing execution petition in case no. 108
of 2009 was modified.
2.
Brief facts of the case are that there was an electricity connection,
bearing K.No. 33105031646, installed in the year 2007 at the premises in question, in
the name of M/s. R. K. Enterprises. The said premises was purchased by the present
petitioner/complainant. On 28.03.2008, the said electric connection was disconnected,
due to non-payment of outstanding dues, but the petitioner/complainant allegedly
restored the electric connection illegally. This fact came to the notice of the
respondent/opposite party, when their officers visited the premises in question to
ascertain the meter reading. It has been stated that they were not allowed to enter the
premises for removing the disconnected meter. The respondent/opposite party served a
notice under Section 163 of the Electricity Act upon the complainant/petitioner to allow
them to inspect the premises and remove the meter. However, the complainant filed the
consumer complaint in question, saying that the respondent/opposite party be ordered
to supply proper electrical/duplicate bill to the consumer cycle-wise, based on the
actual consumption of the electricity.
3.
During the pendency of the complaint before the District Forum, there was
settlement between the parties and on that basis, the complaint was disposed of by the
District Forum on 29.05.2009. An extract from the order dated 29.05.2009 is as
follows:Settlement has been arrived at between parties, acording to which OP had
stated that after removal of meter bearing K.No. 33105031646 and on taking
final reading of the meter, bill will be raised without any amount of illegal
restoration, if any, within a week and they shall provide new connection in the
name of complainant within 3 days after deposition of bill amount raised by
them and on completion of commercial formalities.
Counsel for complainant agrees to the terms of settlement offered by OP and
states that he has no other grievances and withdraws his complaint.
Accordingly, OPs are hereby directed to raise bill in respect of
above K.No. as per their settlement within a week and shall also abide by
their other part of statement made in the margin of this order sheet.
The complaint accordingly stands disposed off being fully satisfied and
withdrawn by the complainant. Copy of the order be given dasti to the
parties as per law and file be consigned to record room.
4.
The complainant filed an execution application before the District Forum under
Section 27 of the Consumer Protection Act for enforcement of order dated

29.05.2009. The respondent/opposite party submitted, before the District Forum, that
they had acted as per the letter and spirit of the settlement, as they had removed the
meter and took the final reading at the time of removal and had raised the final bill of `
37,908/-
and
handed
over
the
same
to
the
complainant
under
receipt alongwith complete details. The complainant had also paid the said amount
without any protest and a new connection had been provided in the name of the
complainant as per the settlement. However, the complainant raised the objection in
execution petition that proper bill had not been raised by the department. The
complainant stated that only a manual bill had been given, whereas a computerized bill
should have been sent. The District Forum, vide their order dated 22.05.2012, directed
the opposite party to raise a bill, in conformity with formal and substantial requirement
of bill, as mandated by Regulation 12 of DERC (Performance Standards-Metering and
Billing) Regulations 2002. The District Forum also directed that the Chief Executive
Officer of the opposite party should personally appear before them on the next date of
hearing. On an appeal, filed before the State Commission, the said order was modified
and it was stated that there was no need for the Chief Executive Officer to appear in
person before the District Forum. It was observed that the manual bill for ` 37,908/- had
already been submitted by the department. The State Commission directed the District
Forum to proceed further as per law in the execution case, on the basis of fresh
manually prepared bill filed before them. It is against this order that the present
petition has been made. It has been stated in the petition that in pursuance of order
dated21.01.2014, the District Forum had disposed of the execution application on
25.02.2014.
5.
At the time of hearing, the learned counsel for the petitioner stated that the
opposite party had not provided proper bill to them, which should have been a
computerized bill. They had only given them a handwritten bill and no details had been
provided in the said bill. The order of the State Commission should, therefore, be set
aside and the order of the District Forum should be upheld.
6.
I have examined the entire material on record and given a thoughtful consideration
to the arguments advanced before me.

7.
In pursuance of the settlement between the parties, the opposite party was
supposed to remove the previous meter, take the final reading of the meter and raise a
bill within a week. They were also asked to provide a new connection in the name of
the complainant within three days after deposit of the bill amount, on completion of the
required formalities. It has come on record that in pursuance to this order, the
necessary action has already been taken by the opposite party. The bill was raised,
which was duly paid by the complainant without any protest and a new connection was
also released in her favour. It is not understood, therefore, why the complainant filed
the execution application, before the District Forum, requesting for the issuance of a
computerized bill, when she had already made payment in question without any
protest. The opposite party have explained that because of permanent disconnection,
the bill could not be raised through their computerised system and hence, they prepared
the bill manually and an amount of ` 37,908/- was raised, based on the final reading in
the previous meter, and the same was paid without any protest.
8.
Based on the above factual position, there does not seem to be any illegality
committed on the part of the opposite party in not raising a computerized bill and giving
only a manual bill. The order passed by the State Commission, does not suffer from
any illegality or infirmity, which may require interference at the revisional stage. The
petition is, therefore, ordered to be dismissed at admission stage, with no order as to
costs.
..
(DR. B.C. GUPTA) PRESIDING MEMBER
PSM
Monu
NEW DELHI
FIRST APPEAL No. 692 of 2013

(From
the
order
dated
27.08.2013
of
the
Bihar
State
Disputes Redressal Commission, Patna in Complaint no. 12 of 2009)
Consumer
Bashisth Narayan Singh

Son of Late Bhikharee Singh
Village Woob, P O Bharoob
Appellant
P S Obra, District Aurabgabad

Bihar 824 124
Versus
Ram Sewak Prasad
The Contemporary Manager
Madhya Bihar Gramin Bank
Aranda
Respondent
Vaya Daudnagar
District Aurangabad
BEFORE:
HONBLE MR JUSTICE V B GUPTA
HONBLE MRS REKHA GUPTA
For the Petitioner
Pronounced on : 29th April 2014

ORDER
REKHA GUPTA
IN PERSON
PRESIDING MEMBER
MEMBER
First Appeal no. 692 of 2013 has been filed against the order dated 27.08.2013
in
Complaint
no.
12
of
2009
of
the
Bihar
State
Consumer
DisputesRedressal Commission, Patna (the State Commission).

2.
The brief facts of the case as per the petitioner/ complainant are that the petitioner
was having a saving fund account no. 2851 in the Bank of the respondent/ opposite
party since 2001.
3.
The petitioner had delivered a cheque no. 010317 for Rs.56,192/- drawn on State
Bank of India, Daudnagar, Aurangabad
(Bihar) which
was
received
by the
FCI Daudnagar, Aurangabad (Bihar) by selling fifty nine quintal fifteen kilograms of
paddy in the Savings Fund Account no. 2851 on 07.04.2009. Petitioner had already
deposited Rs.25,622/- at the time of the delivery of the cheque no. 010317 in which the
petitioner withdrew Rs.16,000/- up to 25.05.2009 from the Saving Fund Account no.
2851 but when the petitioner demanded in cash Rs.64,000/- by cheque no. 015924 from
the respondent on 26.05.2009 to farm his land of twelve acres, the respondent has
returned the same by writing on the cheque no. 015924 that the amount was not
available in the account up to 26.05.2009 and in so much, the respondent has not given
any information up to date as to availability of Rs.64,000/- to the petitioner, as a result of
which, the petitioner suffered loss of Rs.20,65,814/- because the petitioner has leased
the complete farming in lack of money as a result of misappropriation of the respondent.
4.
Petitioner has prayed that the State Commission may allow compensation of
Rs.20,65,814/- with interest herewith adequate costs by the respondent.

5.
Respondent/ opposite party in their written statement before the State Commission
have stated that the petitioners case was partly correct and partly in correct. It is stated
that till 26.05.2009 there was no available balance in petitioners Saving Account as was
sought to be withdrawn by him, which can be verified through records. Therefore, the
cheque produced by the petitioner to withdraw amount of Rs.64,000/- was rightly
returned to the petitioner with endorsement that amount is not available in account.
6.
It appears that the petitioner has tried his level best to make out a case for
deficiency in service on the part of the respondent. Though the fact is that the Madhya
Bihar Gramin Bank, Aranda is a rural Branch of the MBGB and the mode of sending the
cheques for collection of amount was through Special Messenger to the collecting
Branch, i.e., MBGB, Daudnagar. Due to scarcity of staff and as per the general practice
and for the safety of Negotiable Instruments, the cheque received between 14.03.2009
to 24.09.2009 were sent through reputed and credit worthy person on 25.04.2009 to the
collecting Branch. In this connection, it is relevant to state that the purpose behind
sending the cheque through special messenger was/ is to safe exchange of Negotiable
Instruments in between two branches. Not only this but it was being done in the interest
of customers too.
7.
The petitioners cheque which was deposited on 07.04.2009 was sent for collection
through special Messenger on 25.04.2009 along with other instrument to the

MBGB Daudnagar and after receipt of advice the amount was credited in his S F
Account on 27.05.2009. Therefore, there is, no latches or fault or alleged deficiency of
service on the part of the respondent.
8.
The Bihar State Consumer Disputes Redressal Commission, Patna (the State
Commission) vide order dated 27.08.2013 while allowing the complaint observed as
follows:
7.
From the aforesaid discussion and materials on the record, it is manifest
that despite presentation of cheque for collection by the complainant

SirBashistha Narayan Singh on 07.04.2009, the said cheque was sent for
collection by the OP branch on 25.04.2009 and that is not the solitary cheque
rather it also contained other cheques, which were submitted and collected by
the said Bank even earlier on 14.03.2009, that means such cheques, which were
collected on 14.03.2009 were also sent after 40 days for such collection. So, it is
a case of negligence and deficiency on the part of the service rendered by Bank
for which there cannot be any plausible excuse.
8.
In the facts and circumstances, we are convinced that the OP Bank was
deficient in rendering service, which is also in violation of the guidelines and

direction of the Reserve Bank of India being circulated from time to time.
9.
However, we make it clear that the amount of compensation to the tune of
Rs.20 lakh and odd is also inflated and exorbitant one for which there is no
justification of any count. So we are not inclined to consider this hypothetical
demand of compensation for assessing harassment and mental torture. Of
course, the complainant in the given situation is entitled for compensation but to
a reasonable amount.
10.
It would also be relevant to mention that had the complainant remained
vigilance and taken appropriate steps in time, he could have encashed his
money even on the next date, i.e., 27.05.2009. When such amount was credited
in his account but the complainant could also said to be negligent in presentation
of his cheque on 27.05.2009. The complainant in such situation would also be
held negligent when he failed to produce his pass book for updating his account
for the aforesaid amount with the Bank. In such situation, this case seems to
have been filed only for the purpose of realisation huge compensation without
any valid reason.
11.
In such situation, on consideration of everything on their entirety, we are
inclined to hold that the complainant can withdraw the amount so collected but at
the same time, we are inclined to award compensation for mental, physical
harassment to the tune of Rs.10,000/- which will meet the ends of justice. With
the aforesaid observation, this amount is awarded to be paid by Bank so that
such Bank should remain vigilant in future in respect of those customer also, who
did not lodge any claim but whose cheques for onwards collection remained
pending long in the Bank in transmission of such cheques to outline station.
9.
Dissatisfied by the order of the State Commission, the petitioner has filed the
present appeal for enhancement.

10.
The main grounds of the appeal are as under:
The State Commission had no legal jurisdiction to allow the compensation of

Rs.10,000/- with the observation for withdrawing the amount so collected except
the credit balance amount of Rs.9622/- in the account no. 2851 of the petitioner
where the petitioner was entitled to receive the compensation of Rs.41,31,628/as per the final order dated 27.08.2008 passed by the NCDRC in Consumer
Complaint no. 82 of 2006 and section 14 (1) (d) of the Consumer Protection
(Amendment) Act, 2002 on the complaint admitted under section 17 (1) (a) (i) of
the Consumer Protection (Amendment) act, 2002.
The State Commission did not completely consider on the order dated
30.11.2012 passed by the NCDRC, New Delhi in revision petition no. 3763 of
2012 and the application dated 26.12.2012 filed by the petitioner in consumer
complaint no. 12 of 2009 and the documents (evidence) annexed to the written
argument along with the complaint of the petitioner filed in consumer complaint
no. 12 of 2009.
11.
We have heard the petitioner in person and have carefully gone through the
records of the case.

12.
Petitioner has admitted that on 26.05.2009 the date on which he issued cheque
for Rs.64,000/- which was returned on the same day as the amount was not available in
his account, he had only a balance of Rs.9622/-. It was his case that they should have
at least paid him that amount. It is also an admitted fact that the cheque for Rs.56,192/was thereafter cleared and credited to his account on 27.05.2009. Petitioner admitted
that after 26.05.2009 when his cheque was returned he made no further enquiry with
the Bank. It was his case that the Bank should have informed him that the amount had
been credited to his account. We agree with the observation of the State Commission
that had the complainant remained vigilant and taken appropriate steps in time, he
could have encashed his money even on the next date, i.e., 27.05.2009. When such
amount was credited in his account but the complainant could also said to be negligent
in presentation of his cheque on 27.05.2009. The complainant in such situation would
also be held negligent when he failed to produce his pass book for updating his account
for the aforesaid amount with the Bank.
13.
The Bank has stated that it is a rural branch of Madhya Bihar Gramin Bank and
being a small branch due to scarcity of staff and to ensure safety of negotiable
instruments, the cheque received between 14.03.2009 to 24.04.2009 was sent through
reputed and credit worthy persons on 25.04.2009 to the collecting Branch.,
when complainants cheque was deposited on 07.04.2009 and was sent for collection
through special messenger on 25.04.2009 along with other instrument to the
MBGB Daudnagar and after receipt of advice, the amount was credited in his S F
Account on 27.05.2009.
14.
The State Commission in their order has concluded that this is not a solitary
cheque rather it also contained other cheques, which were submitted and collected by
the said Bank even earlier on 14.03.2009 that means cheques which was collected on
14.03.2009 were also sent after 40 days for such collection. So it is a case of
negligence and deficiency on the part of the service rendered by the Bank for which
there cannot be any plausible excuse.
15.
We feel at this point of time, when the Government is taking steps and initiatives
to promote financial inclusion of rural areas, the infrastructure provided for rural
branches has to be geared up to enable them to render more efficient service. It cannot
be accepted that due to lack of resources inordinate delays should take place in
banking functions. It is for the Government of India more specifically, the Department of
Financial Services and the banks concerned who have rural branches to take necessary
action to put a system in place where the customers are not inconvenienced by
inordinate delays. We also agree with the State Commission that the amount of
compensation as asked for is an highly inflated and exorbitant one for which there is no
justification on any count.
15.
Hence, we find that the impugned order of the State Commission is well-founded
and reasonable and hence, there is no reason for us to interfere with the said order. The
appeal is accordingly dismissed, with no order as to cost.
16. Copy of this order be also sent to the Chairman of the Madhya Bihar Gramin Bank
as well as the Secretary, Department of Financial Services, Ministry of Finance,
Government of India, New Delhi.
Sd/..
[ V B Gupta, J.]
Sd/..
[Rekha Gupta]
Satish

NEW DELHI
(From the order dated 22.1.2013 in M.A. No. MA/10/340 a/w A/10/653 of the
Maharashtra State
Consumer Disputes Redressal Commission, Mumbai)
With
IA/6873/2013 (For deletion of R-2)
New India Assurance Co. Ltd.
Unit No. 110900 EMCA House
1st St. Floor 289,
Shahad Bhagat Singh Road,
Fort, Mumbai 400 001
Through
Manager,
Regional Office 1,
Jeevan Bharti Building,
124, Connaught Circus,
New Delhi 110 001.
Petitioner/Opp. Party (OP)
Versus
1. M/s. Nakoda Trading Co.
Through Devilal Ratanlalji Chhajed,
H-202, 2nd Floor, Megnolia Heritage,
Nagar Amrut Shakti Chaandivali,
Mumbai 400 072.
2. A.S. Shaikh & Co.
Dewan Centre, Shop No. 75,
S.V. Road, Jogeshwari (W)
Mumbai 400 102
BEFORE
For the Petitioner
: Mr. Kishore Rawat, Advocate
For the Respondent No.1 : Mr. B.S. Sharma, Advocate
: Deleted.
ORDER
22.1.2013
passed
by
the
Maharashtra
State
Consumer
Disputes RedressalCommission, Mumbai (in short, the State Commission) in

M.A./10/340 a/w A/10/653 New India Assurance Co. Ltd Vs. M/s. Nakoda Trading Co.
& Anr. bywhich, application for condonation of delay was dismissed.
2.
Brief facts of the case are that complainants/respondents filed complaint before
District Forum and learned District Forum vide order dated 26.03.2010 allowed
complaint and directed OP to pay a sum of Rs.2,68,521/- along with 9% p.a. interest
and further awarded Rs.5,000/- as cost. OP filed appeal along with application
for condonation of 59 days delay and learned State Commission vide impugned order
dismissed application for condonation of delay against which, this revision petition has
been filed.
3.
record.
4.
Learned Counsel for the petitioner submitted that petitioner satisfactorily explained
delay in filing appeal; even then, learned State Commission committed error in
dismissing application for condonation of delay and dismissed appeal; hence, revision
petition be allowed and application for condonation of delay be allowed and impugned
order be set aside and matter may be remanded back to the learned State Commission
for deciding appeal on merits. On the other hand, learned Counsel for the respondents
submitted that order passed by learned State Commission is in accordance with law;
hence, revision petition be filed.
5.
Learned State Commission in its order referred paragraph 3 of the application
for condonation of delay and further observed that delay could have been avoided as
offices were backed with full automation assisted with computerization. No doubt, delay
could have been avoided by the petitioner in filing appeal, but as there was some delay
in issuing copy of the order and some delay occurred due to Advocate left for holidays
and, as there was delay of only 59 days in filing appeal, it would be appropriate to allow
the application for condonation of delay in the light of judgment of the Honble Apex
Court in (2005) 3 SCC 752 State of Nagaland Vs. Lipok AO and Ors. In the aforesaid
case delay of 57 days in filing appeal was condoned by the Honble Apex Court. In the
case in hand, as there was delay of 59 days, we deem it appropriate to condone the
delay.
6.
Learned Counsel for the respondents has placed reliance on the judgment of this
Commission
in
R.P.
No.
3013
of
2012
G.B.
Pant
Hospital
& Anr. Vs.Avtar Kishan & Anr. in which delay of 153 in filing revision petition was not
condoned. In the case in hand, there was delay of only 59 days, that too on account of
Advocates proceeding on holidays and late receipt of order by the Corporate Office, it
would be appropriate if appeal is decided on merits.
7.
order
Consequently, revision petition filed by the petitioner is allowed and impugned

dated
22.01.2013
passed
by
Learned
State
Commission
in
M.A./10/340 a/w A/10/653 New India Assurance Co. Ltd Vs. M/s. Nakoda Trading Co.
& Anr. is set aside subject to payment of Rs.10,000/- as cost to the respondent within a
period of 4 weeks and delay stands condoned. If the said payment of cost is not made
within the stipulated period, the revision petition shall stand dismissed. Learned State
Commission is directed to decide the appeal on merits after giving an opportunity of
being heard to both the parties.
8.
Parties are directed to appear before the learned State Commission on 4.7.2014.
Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

NEW DELHI
(From the order dated 23.06.2008 in Appeal No. 119/2008 of the Karnataka State
Consumer Disputes Redressal Commission, Bangalore)
1. Sri Vijay Karlekar, Proprietor,
M/s. New Keerthi Garments
Near Bharat Studio, M.G. Road, Kolar,
Karnataka
2. Smt. M.S. Pushpalatha
W/o K.V. Rajamani, R/at 5th Main Road,
Jayanagar, Kolar 563 101
Karnataka
Petitioners/Complainants
Versus
1. Karnataka State Financial Corporation
No.1/1, Thimmaiah Road,
Bangalore, Karnataka
By Managing Director
2. The Branch Manager
Karnataka State Financial Corporation
Kolar 563 101,
Karnataka
Respondents/Opp.Parties (OP)
BEFORE
For the Petitioners
: NEMO
For the Respondents
: Ms. Aparna Mattoo, Advocate
ORDER
This revision petition has been filed by the petitioners against the order dated
23.06.2008 passed by the Karnataka State Consumer Disputes Redressal Commission,
Bangalore (in short, the State Commission) in Appeal No. 119 of 2008 Sri Vijay
Karlekar & Anr. Vs. The Managing Director, K.S.F.C. & Anr. by which, while allowing
appeal partly, order of District Forum allowing complaint was modified.
2.
Brief facts of the case are that OP/respondent collected a sum of Rs.20,000/- and
Rs. 22,183/- from complainants/petitioners in excess of their liability and inspite of

request has not refunded the amount. It was further alleged that Rs.13,000/- payable
as subsidy by the Government was to be drawn by the OP and was to be adjusted
towards liability of the complainant, but OP has neither drawn subsidy nor adjusted
towards liability of the complainant. Alleging deficiency on the part of OP, complainants
filed complaint before District Forum. OP resisted complaint and submitted that cheque
of Rs.22,183/- was sent to the complainant, which was refused and Rs.20,000/- were
also returned by cheque dated 1.7.2004 which was also refused by the complainant and
prayed for dismissal of complaint. Learned District Forum after hearing both the parties
allowed complaint and directed OP to refund Rs.20,000/- + Rs.22,183/- along with
interest @15% p.a. which comes to Rs.24,000/- and further allowed Rs.40,000/- as
compensation on account of not disbursing subsidy of Rs.13,000/- and directed OP to
pay total Rs.1,06,183/- with 8% p.a. OP filed appeal before State Commission and
learned State Commission vide impugned order modified order of District Forum and
directed OP to pay Rs.20,000/- + Rs.22,183/- with 8% p.a. interest and further directed
OP to pay Rs.13,000/- with 6% p.a. against which, this revision petition has been filed.
3.
None appeared for the petitioners even after service.
4.
Heard learned Counsel for the respondents and perused record.
5.
Perusal of written statement filed by the OP reveals that OP refunded Rs.20,000/-
+ Rs. 22,183/- to the complainant, but amount was not accepted by the
complainant. Learned District Forum awarded 15% p.a. interest on this amount,
whereas learned State Commission has allowed 8% p.a. interest on this amount which
is
proper because complainant himself refused to accept this amount. Learned State
Commission rightly set aside compensation of Rs.40,000/- granted by District Forum

and rightly allowed 6% p.a. interest on Rs.13,000/- instead of compensation of
Rs.40,000/-. We do not find any illegality, irregularity or jurisdictional error in the
impugned order and revision petition is liable to be dismissed.
6.
Consequently, revision petition filed by the petitioners is dismissed with no order
as to costs.
Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

NEW DELHI
(From the order dated 29.10.2010 in Appeal No. 925/2008 of the A.P. State
Consumer Disputes Redressal Commission, Circuit Bench at Vijayawada)
Ch. N.V. Sriram
S/o H.S.V. Prasada Rao,
R/o D. No. 15/317, Machilipatnam,
Krishna District
(A.P.) 521 002.
Versus
The Branch Head,
Karvy Stock Broking Ltd.
Khojjillipet, Machilipatnam
Krishna Dt.
(A.P.) 521 001
Respondents/Opp.Party (OP)
BEFORE
For the Petitioner
: NEMO
For the Respondent : Mr. P.K. Seth, Advocate
ORDER
29.10.2010 passed by the A.P. State Consumer Disputes Redressal Commission,
Circuit Bench at Vijayawada (in short, the State Commission) in Appeal No. 925 of
2008 Karvy Stock Broking Ltd. Vs. Ch. N.V. Sriram 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 trading in shares
through the OP/respondent for the last two years preceding the date of the
complaint. By
8.11.2006,
complainant
had
43
MRF
shares
in
his
Demat
account. Inspite of repeated requests, shares were not transferred in complainants

Demat account. Alleging deficiency on the part of OP, complainant filed complaint
before District Forum. OP resisted complaint and submitted that due to clerical mistake,
MRF shares were transferred in complainants trading account and when mistake was
realized, OP intimated to the complainant and re-transferred 40 MRF shares to its
common pool account and denied any deficiency on the part of OP and prayed for
dismissal of complaint. Learned District Forum after hearing both the parties, allowed
complaint and directed OP to transfer 40 MRF shares and further directed to pay
Rs.5,000/- as compensation and Rs.1000/- as cost. Appeal filed by the OP was partly
allowed by learned State Commission vide impugned order and direction to transfer 40
MRF shares was set aside and rest of the order was upheld against which, this revision
petition has been filed.
3.
Petitioner did not appear even after service.
4.
Heard learned Counsel for the respondent and perused record.
5.
Learned State Commission rightly observed as under:

11.Buying and selling statement of complainants trading account
of the respondent issued by the Notational Stock Exchange would
show that the respondent had not purchased any MRF shares. The
appellant company had transferred back 43 (40) MRF shares from
the respondents account to its common pool account in four
transactions,11 shares on 16th October,2006 through settlement
number 2006196, 15 shares on 18 th October,2006 through
settlement number 2006198, 8 shares on 19 th October,2006
through settlement number 2006199,and 06 shares on
2nd November,2006 through settlement number 2006208.The failure
on the part of the appellant company to give reply ipso facto does
not entitle the respondent to the 40 MRF shares. The respondent
had failed to show that he had purchased the 40 MRF shares from
a certain company or issued instructions to the appellant company
to purchase the shares. Any transaction in this regard must be in
consonance with the statement of account of the respondent issued
by the National Stock Exchange. The respondent is not entitled to
the 40 MRF shares in question.
6.
Perusal of record makes it abundantly clear that complainant never purchased
MRF shares and by mistake shares were transferred from the common pool of OP to
complainants trading account and after intimation to the complainant, shares were retransferred by OP in its common pool account from complainants trading account.
7.
Complainant failed to lead any evidence to prove that he ever purchased MRF
shares which were transferred in his trading account. In such circumstances, we do not
find any illegality, irregularity or infirmity in the impugned order and revision petition is
liable to be dismissed.
8.
to costs.
Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

NEW DELHI
(From the order dated 20.09.2012 in Appeal No. 1103 of 2008 of the Haryana State
With
IA/7404/2013 (for directions)
Dr. Tilak Gupta
S/o Shri Baldev Raj Mahajan
R/o House No. B-6, Joshi Colony,
Mandawali Fazalpur,
Delhi 110 092
Petitioner/Opp.Party (OP)
Versus
1. Mrs. Kamlesh
W/o Shri Rambir
R/o Adarsh Colony, Palwal
District Faridabad, Haryana
2. Om Hospital
C/o Om Medical Centre Pvt. Ltd.
(formerly Diamond Hospital)
Delhi Mathura Road,
Palwal 121 102 (Haryana)
BEFORE
For the Petitioner : Mr. S.S. Lingwal, Advocate
For the Res. No. 1 : In person
For the Res. No. 2 : Mr. Mahender Khatri, Accounts Officer/AR
ORDER
20.09.2012
passed
by
the
Haryana
State
Consumer

No. 1103 of 2008 Dr. Tilak Gupta Vs. Mrs. Kamlesh & Anr. by which, appeal was
dismissed as barred by limitation.
2.
Brief facts of the case are that Complainant/Respondent No. 1 filed complaint
before District Forum alleging medical negligence on the part of OPs and learned
District Forum allowed complaint and directed OPs to pay Rs.1,50,000/- along with
interest and further awarded Rs.1,00,000/- on account of mental agony and Rs.10,000/on account of litigation expenses against which, petitioner/OP No. 2 filed appeal before
State Commission along with application forcondonation of delay and learned State
Commission vide impugned order dismissed application for condonation of delay and
also dismissed appeal on merits against which, this revision petition has been filed.
3.
Heard learned Counsel for the Petitioner and Respondent no. 1 in person and
Authorized Representative of Respondent No. 2 finally at admission stage and perused

record.
4.
Learned Counsel for the petitioner submitted that learned State Commission
committed error in dismissing appeal on the ground of limitation on wrong facts; hence,
revision petition be allowed and impugned order be set aside.
5.
Petitioner along with appeal filed application for condonation of delay in which it
was mentioned that petitioner left the job of OP No. 1 on 28.11.2002, whereas complaint
was instituted on 27.3.2003. It was further submitted that after decision of case certified
copy sent by District Forum at the address of OP No. 1 and OP hospital did not inform
petitioner regarding decision of the case and petitioner came to know only by receiving
notice of Execution Petition. He immediately applied for certified copy which was
delivered on 7.4.2008 and appeal was filed before the State Commission on 11.4.2008.
In such circumstances, delay of 835 days in filing appeal may be condoned. Learned
State Commission in its order while dismissing application for condonation of delay
observed as under:
There is delay of 823 days in filing the present appeal. It is well
settled principle of law that the delay cannot be condoned on the
ground of equity of generosity and the delay has to be condoned if
sufficient cause is shown by the appellant. In the present case the
appellant has taken the plea that after receiving the copy of the
impugned order the same was sent to the higher authorities for
seeking approval for filing the appeal before the State
Commission. The file has to pass through various channels and
during this entire official process delay of 823 days in filing the
present case has been occurred. In our view this is not a sufficient
cause to allow the application forcondonation of delay.
6.
It appears that learned State Commission has mentioned different facts which
were not pleaded in the application. Learned State Commission mentioned in its order
that after receiving copy of the order it was sent to higher authorities for seeking
approval for filing the appeal and file had to pass through various channels for which
823 days were taken, whereas in the application petitioner mentioned that he did not
receive copy of the order. Admittedly, in the complaint address of the petitioner has
been given as Diamond Hospital, but as per application he had left job of Diamond
hospital even before institution of complaint. In the affidavit filed before the District
Forum he has given his address of B-6, Joshi Colony, Mandawali Fazalpur, Delhi and
same address has been given by him in Memo of Appeal as well as in the application
for condoantion of delay. Thus, it becomes clear that on account of not receiving
certified copy of the order sent by District forum, delay occurred in filing appeal and in
such circumstances; learned State Commission ought to have condoned delay in filing
appeal.
7.
Learned State Commission in last paragraph of the order also observed that there
was deficiency on the part of OP and dismissed appeal on merits also. Learned State
Commission ought not to have considered merits when appeal was to be dismissed as
barred by limitation and in such circumstances, impugned order is liable to set aside and
matter is to be remanded back to the learned State Commission to decide the appeal
afresh on merits.
8.
Consequently, revision petition filed by the petitioner is allowed and impugned
order dated 20.9.2012 passed by learned State Commission in Appeal No. 1103/2008
Dr. Tilak Gupta Vs. Mrs. Kamlesh & Anr. is set aside and application for condonation of
delay filed by the petitioner is allowed and matter is remanded back to learned State
Commission to dispose of appeal on merits after giving an opportunity of being heard to
both the parties.
9.
Parties are directed to appear before the learned State Commission on 3.7.2014.
Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

NEW DELHI
Dilbag
S/o Sh. Raghubir Singh
R/o near M.D. School, Julana
Tehsil Julana, Distt. Jind
Versus
1. UHBVN
Through its SDO OP Sub Division,
UHBVN Julana, Distt. Jind.
2. UHBVN
Through its Executive Engineer,
Operation Sub Division, Jind,
Distt. Jind.
Respondents/Opp.Parties (OP)
BEFORE
For the Petitioner
: Mr. Dilbagh Singh, Advocate
ORDER
21.07.2011
passed
by
the
Haryana
State
Consumer

No. 1032 of 2010 UHBVNL & Anr. Vs. Dilbagh by which, while allowing appeal partly,
order of District Forum allowing complaint was modified.
2.
Brief facts of the case are that complainant/petitioner challenged the checking
report dated 2.3.2010 as well as notice dated 19.3.2010 by which, demand of

Rs.2,12,961/- (Rs.1,53,961/- on account of penalty and Rs.60,000/- on account of
compounding fee) has been made by the OP/respondent from the complainant in
respect of his electricity connection. OP contested complaint and submitted that
demand was raised on the basis of checking report dated 2.3.2010, which was prepared
in the presence of the complainant. As per checking report, complainant was found
using electricity for running a dairy and it was the case of unauthorized use of energy;
so, penalty and compounding fees was levied. Learned District Forum after hearing
both the parties, allowed complaint against which, appeal filed by the OP was partly
allowed by learned State Commission vide impugned order and compounding fee of
Rs.60,000/- for compounding the offence of theft was set aside against which, this
revision petition was filed.
3.
4.
Learned Counsel for the petitioner submitted that learned District Forum rightly
allowed complaint, but learned State Commission committed error in allowing appeal
partly; hence, revision petition be admitted.
5.
Checking report reveals as under:

i)
Checking
was
done
in
the
presence
of
the
complainant Shri Dilbagh who has affixed his left thumb impression
on the checking report in token of its correctness. He has also
acknowledged receipt of the copy of the checking report which is
duly signed by all the members of the checking team.
ii)
It was found that the complainant was having 5.900 KW
connected load against the sanctioned load of 1.700 KW.
iii)
The meter
of Dilbagh Dairy.
was
found
fixed
inside
the
premises
iv)
On checking the meter on load, the pulse was found to be
blinking and meter was found excessively slow.
v)
Some abnormal scratches were observed on the meter body.
vi)
Supply was disconnected and meter was got removed and it
was packed in a cardboard box duly paper sealed.
vii)
Meter be got checked from M&T Lab.
Thus, it becomes clear that it was the case covered under Section 126 to Section 135 of
Electricity Act, 2003 and as per judgment of the Apex Court in Civil Appeal No. 5466 of
2012 U.P. Power Corporation Ltd. & Ors. Vs. Anis Ahmad, the complaint was not
maintainable before Consumer Fora and petitioner was supposed to approach
for redressal of his grievance to the appropriate authority under Electricity Act. As
appeal has been partly allowed and respondent has not filed revision petition against
the impugned order, we do not interfere with the order of the State Commission to the
extent of setting aside demand of Rs.60,000/-, but, revision petition filed by the
petitioner challenging impugned order is not maintainable in the light of judgment of the
Apex Court and petitioner is given liberty to approach to the appropriate authority
for redressal of his grievance as per provisions of Indian Electricity Act.
6.
stage with liberty to approach to the appropriate authority for redressal of his
grievance. There shall be no order as to costs.
Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

NEW DELHI
(From the order dated 22.03.2013 in Appeal No.83/2011 of the Jharkhand State
Consumer Disputes Redressal Commission, Ranchi)
With
IA/1065/2014 (For placing addl. documents)
Lakhan Lal Keshari
S/o late Laxmi Kant Keshari
At Assam Access Road
P.O. P.S. & District Deoghar
Jharkhand 814 112
Versus
1. The Branch Manager
United India Insurance Co. Ltd.
Hotel Prabha Building,
Assam Access Road
Deogarh,
P.O. & District Deogharh 814 112
2. The Divisional Manager,
U.I.I. Co. Ltd.
Dr. Rajendra Prasad Road, Shahid Chowk,
Nr. Ghantaghar,
Bhagalpur 612 001
3. The Regional Manager,
U.I.I. Co. Ltd.
Chankya Tower, 3rd Floor,
Birchand Patel Marg, R-Block,
Patna 800 001
4. The Chairman cum Managing Director
U.I.I. Co. Ltd. Registered & Head Office 24,
Whites Road,
Chennai 600 014
Respondents/Opp. Parties (OP)
BEFORE
For the Petitioner
: Mr. Vikram Patralekh, Advocate
For the Respondents
: Mr. Naveen Kumar, Advocate
ORDER
22.3.2013 passed by the Jharkhand State Consumer Disputes RedressalCommission,
Ranchi (in short, the State Commission) in Appeal No. 83/2011 United India
Insurance Vs. Lakhan Lal Keshri by which, order of District Forum allowing complaint
was modified.
2.
Brief facts of the case are that complainant/petitioner jeep which was insured by
OP/respondents was robbed by miscreants on 7.9.2008 during the currency of

insurance policy. Matter was reported to the Police and to the OP and claim was
preferred before the OP, but OP repudiated the claim. Alleging deficiency on the part of
OP, complainant filed complaint before District Forum. OP resisted complaint and
submitted that vehicle was used for hire/reward against the terms and conditions of the
policy and prayed for dismissal of complaint. Learned District forum after hearing both
the parties allowed complaint and directed OP to pay Rs.3,52,250/- along with 8% p.a.
interest and further awarded Rs.10,.000/- as compensation. OP filed appeal before the
State Commission and learned State Commission vide impugned order modified order
of the District Forum and directed OP to pay 75% of the sum insured instead of full
amount and rest of the order was affirmed against which, this revision petition has been
filed.
3.
record.
4.
Learned Counsel for the petitioner submitted that inspite of the fact that there was
no evidence regarding use of vehicle for hire/reward, learned State Commission

committed error in reducing claim to 75%; hence, revision petition be allowed and
impugned order be set aside. On the other hand, learned Counsel for the respondents
submitted that order passed by learned State Commission is in accordance with law;
hence, revision petition be dismissed.
5.
Perusal of report lodged by driver with Police Station makes it clear that on
payment of Rs.1000/- by the passengers as fare the passengers were taken by the
driver of the insured vehicle to Deoghar and in the meanwhile, something was given to
him for eating by the passengers and on account of greediness, he could not drive
vehicle and stopped the vehicle which was taken away by the passengers. Thus, it
becomes clear that at the time of accident the vehicle was used for hire/reward and
learned State Commission has not committed any error in reducing the claim to 75% on
non-standard basis.
6.
order and revision petition is liable to be dismissed.

7.

Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

NEW DELHI
(From the order dated 21.11.2012 in Appeal No. 857/2011 of the Tamil Nadu State
Consumer Disputes Redressal Commission, Chennai)
Colonel C.P. Raghunandanan [Retd.]
S/o Sh. K. Govindan Nair
S-2, B-Block, Aroma Homes
Oxygen Gardens, Puranattukarai Post
Trichur District, Kerala
Versus
The Area Manager
Canteen Stores Department
Govt. of India, Ministry of Defence,
Fort St. George
Chennai 600 009
Respondent/Opp.Party (OP)
BEFORE
For the Petitioner
: Mr. Sunil Prakash Sharma, Advocate
For the Respondent : Ms. Sapna Chauhan, Advocate
ORDER
21.11.2012 passed by the Tamil Nadu State Consumer Disputes RedressalCommission,
Chennai (in short, the State Commission) in Appeal No. 857 of 2011 Colonel
C.P. Raghunandanan Vs. The Area Manager, Canteen Stores Department by which,
while allowing appeal partly, order of District Forum dismissing complaint was set aside
and OP was directed to pay Rs.25,000/- as compensation and Rs.3,000/- as cost.
2.
Brief facts of the case are that complainant/petitioner a retired Colonel from Indian
Army booked a TATA Indica DLS Car of Arizona Ocher colour through OP/respondent
and paid Rs.3,22,760/- on 26.03.2007 and car was to be delivered by M/s. VST Motors,
Chennai. Complainant subsequently settled at Trichurand in order to make effective
delivery of the car, issued cheques for the Tax, Registration charges, Insurance, etc. to
M/s. VST Motors on 11.5.2007. When the complainant went to M/s. VST Motors to take
delivery of the car, he found that the car was of silver colour and not of Arizona
Ocher colour for which the complainant had placed order. Complainant approached OP
for cancellation of the car and booking another car of Maruti Swift Diesel car by paying
additional amount, but OP refused to cancel earlier booked car, as car had already been
registered in the name of the complainant and once in two years fresh car can be
allotted by the OP. Alleging deficiency on the part of OP, complainant filed complaint
before District Forum. OP resisted complaint and submitted that they are not concerned
with the supply of car once purchase order was sent to the supplier M/s. VST Motors,
Chennai and further submitted that without impleading M/s. VST Motors, Chennai as a
party, complaint was not maintainable and prayed for dismissal of complaint. Learned
District forum after hearing both the parties dismissed complaint against which, appeal
filed by the petitioner was partly allowed by learned State Commission vide impugned
order against which, this revision petition has been filed.
3.
Learned Counsel for the petitioner submitted that as car of his choice was not
supplied by OP to the complainant, complainant was entitled to get refund of the

amount paid along with compensation and learned District Forum committed error in
dismissing complaint in toto and learned State Commission further committed error in
allowing appeal partly; hence, revision petition be allowed and impugned orders be set
aside and complaint be allowed. On the other hand, learned Counsel for the
respondent submitted that order passed by learned State Commission is in accordance
with law; hence, revision petition be dismissed.
4.
Admittedly, in the indent of purchase of 4-wheeler, complainant mentioned M/s.
VST Motors Ltd., Chennai as dealers name for collection of car and admittedly
complainant has not impleaded M/s. VST Motors Ltd., Chennai as OP in the complaint,
though, impleaded in the first complaint and deleted later on. Complaint was not
maintainable only against the OP as it could not have come on record what transpired
between the complainant and M/s. VST Motors Ltd. who delivered the car. Perusal of
indent
form
also
reveals
that Arizona
Ocher colour was
only
preference
of colour choice and nowhere it has been mentioned that other colour will not be
acceptable. In such circumstances, merely by filling preference colour, complainant
was not entitled to get registration of the car cancelled and get refund of the money.
5.
Perusal of record further reveals that complainant himself visited M/s. VST Motors
Ltd. and signed necessary papers and on the basis of those papers, car of
silver colour was registered in the name of complainant and in such circumstances, it
appears that complainant himself was negligent in accepting delivery of silver colour car
and once the car was registered in the name of the complainant, it could not have been
cancelled and on the basis of difference incolour, State Commission has not committed
any error in partly allowing appeal and directing OP to pay Rs.25,000/- as compensation
along with interest of Rs.3,000/- as cost. Complainant could not make out any case for
refund of the whole amount.
6.
order and revision petition is liable to be dismissed at admission stage.

7.

Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

NEW DELHI

With
IA/7098/2013
(Placing Addl. Documents)
M/s. S.S. Builder and Contractors
Shri Suhas Gangadhar Rahurkar
D/12, Sankalpa, 4th Liberty Garden Road,
Malad, Mumbai 400 064
Maharashtra State
Versus
1. Mukund M. Sarang
C/26, New Vinay Society,
Opp. Vidyanagari, Kalina
Santacruzz ( E),
Mumbai 400 018
2. Shri Vilas Ganesh Bal
103, A/1/7, Best View Yadhodhan,
General Vaidya Marg, Goregaon (W).
Mumbai 400 064
3. Shri Prakesh Yeshwant Sahasrabudhe
C/26, New Vinay Terace Co-op. Society
Opp. Vidyanagari, Kalina, Santacurz (E),
Mumbai 400 098
Maharashtra State
Versus
Rohini P. Mether
Santacruz ( E),
Mumbai 400 018
Mumbai 400 064
Mumbai 400 098
4.
Maharashtra State
Versus
7.
Deepa R. Malandhar
Santacruzz ( E),
Mumbai 400 018
Mumbai 400 064
Mumbai 400 098
Maharashtra State
Versus
1. Shri P.Y. Sahasrabudhe
Opp. Vidyanagari, Kalina, Santacurzz (E),
Mumbai 400 018
2. Mrs. M.M. Patki
3/30, Air India Colony,
Kalina, Santacurz (E),
Mumbai 400 098
3. Sagar Terace Co-Op. Society
Shri Prakesh Yeshwant Sahasrabudhe
Santacruz ( E),
Mumbai 400 098
Maharashtra State

Versus
1. S.S. Baing
Room No. 1, Kailash Singh Chawl,
Shradhahanand Ext. Road,
Vile Parle East,
Mumbai 400 057
2. T.S. Shikalgar
Kalpataru Society, Wahant Road Extn.,
Vile Parle East,
Mumbai 400 057
3. C.V. Shetty
John Pereira Chawl, J.V.K. Road,
Vile Parle East,
Mumbai 400 057
Maharashtra State

Versus
1. P.D. Modak
D/707, Royal Samart, S.V. Road,
Goregaon (W),
Mumbai 400 062
2. V.S. Sawarkar
2, Meghmalhar Society
Sahayog Mandir Road, Ghantali Area,
Naupada, Thane (W) 400 602
3. V. Kamat
E-1/401, Kalpita Enclave
Shar Road, Andheri (E ),
Mumbai 400 069
4. D.V. Shirolkar
C/2, Vrindar, Bank of India,
Co-operative Society, Koldangari,
Sahar Road, Andheri ( E),
Mumbai 400 069
5. K.K. Patankar
B/13/123, Sai Niketan,
Rajawadi, Vidyavihar (East)
Mumbai 400 077.
BEFORE

For the Appellant
Mr. Uday B. Wavikar, Advocate

Mr. S.K. Sharma, Advocate
For the Respondent No.1
For the Respondent Nos. 2 & 3 :
Mr. S.B. Prabhavalkar, Advocate

NEMO

ORDER
These appeals have been filed by the appellant against the

order dated
05.03.2011
passed
by
the
Maharashtra
State
Consumer
Disputes Redressal Commission, Mumbai (in short, the State Commission) in

Consumer Complaint No. 345 of 2000 Mukund M. Sarang & Ors. Vs. M/s. S.S.
Builder & Contractors Shri Suhas Gangadhar Rahurkar, Consumer Complaint No. 346
of
2000
M/s.
S.S.
Builder
&
Contractors Shri Suhas Gangadhar Rahurkar and Deepa R. Malandhar & Ors. Vs. M/s.
S.S. Builder & Contractors Shri Suhas Gangadhar Rahurkar, and Consumer Complaint
No.
227
of
2001
Vs.
M/s.
S.S.
Builder
&
ContractorsShri Suhas Gangadhar Rahurkar, Consumer Complaint No. 228 of 2001

S.S. Baing & Ors.
Vs.
M/s.
S.S.
Builder
Contractors Shri Suhas GangadharRahurkar and Consumer Complaint No.

2001
P.D. Modak & Ors.
Vs.
M/s.
S.S.
&
229
Builder
of
&
Contractors Shri Suhas Gangadhar Rahurkar by which, order dated 20.09.2010 passed
by learned State Commission was corrected.
All these appeals arise out of common
order of the State Commission and involve common question; hence, decided by single
order.
2.
Brief facts of the cases are that Complainants/respondents filed complaints before
learned State Commission with a prayer to refund money paid for purchase of flats
along with interest and damages. Learned State Commission vide order dated
20.9.2010 allowed complaints as under:
ORDER
realization.
complaint.
realization.
complaint.
realization.
complaint.
COMPLAINT NO.227to229/2000

2. Opponent no.1 shall pay following amounts to the complainants from 05/12/1998
till its realization.
Mr. P.Y.Sahastrabudhe
Mrs. M.M.Patki
Sagar Terrace Co-op.Society
Rs.2,70,000/Rs.2,15,000/Rs.6,08,000/-

complaint.
3.
Later on, by impugned order dated 5.3.2011, corrections were made in the order
dated 20.9.2010 and interest part was added in the order against which, these appeals
have been filed.
4.
record.
5.
Learned Counsel for the appellants submitted that learned State Commission had
no power to review its order and in such circumstances, impugned order reviewing the
earlier order is contrary to law; hence, appeals be allowed and impugned order be set
aside. On the other hand, learned Counsel for the respondents submitted that
impugned order is not a review order, but only necessary corrections have been made
which were only typographical errors in the earlier order and further submitted that as
impugned order is a consent order appeals are not maintainable; hence, appeals be
dismissed.
6.
First question to be decided is whether impugned order amounts to review of the
order or not. Admittedly, final order dated 20.09.2010 does not contain directions for
payment of amount with interest, though; complainants were held entitled to interest @
18% p.a. By impugned order interest was inserted in the main order. Learned Counsel
for the appellants submits that it amounts to review, whereas learned Counsel for the
respondents submits that impugned order does not come within the purview of review,
but it was only a correction of typographical error.
7.
Addition of interest by impugned order in the amount awarded by order dated
20.9.2010, though; observed in paragraph 19 of the order dated 20.9.2010 that

complainants are entitled to interest cannot be termed as typographical mistake and
apparently it amounts to reviewing the earlier order. Honble Apex Court in (2011) 9
SCC
541
- Rajeev Hitendra Pathak and
Others Vs. Achyut Kashinath Karekar and Anr. has observed that District Forum and
State Commission have not been given any power of review its own order and in such
circumstances, impugned order is liable to be set aside. Even if impugned order is
treated as order under Section 152 CPC, we are of the view that learned State
Commission had no power to rectify its mistakes under Section 152 CPC and impugned
order is liable to be set aside.
8.
Learned Counsel for the respondents submitted that as impugned order is a
consent order, no appeal lies against the consent order. In support of his contentions he
has placed reliance on decisions of this Commission rendered in R.P. No. 2885 of 2006
Ningappa Hanamanppa Kador Vs. Hindustan Motors Ltd., R.P. No. 1645 of 2008
State Bank of India Vs. Smt. Sita Devi and R.P. No. 3862 of 2010 M/s. Sunny
Brooks Vs. Aparajitha Bhandary& Anr. The aforesaid judgments are not applicable to
the facts and circumstances of the present case. In the aforesaid cases, matters were
disposed of on the basis of consent of the parties, whereas in the present case Counsel
for the OP merely submitted before State Commission that amendments suggested by
complainant is required which does not amount to consent for amendment in the order.
9.
Even if it is presumed that impugned order was consent order this order is liable to
be set aside as State Commission had no power to review its order and merely by
consent an authority cannot pass any order which that authority does not have power to
pass as jurisdiction to review its order has not been conferred on State Commission.
10.
Consequently, appeals filed by the appellants are allowed and impugned order
dated 5.3.2011 passed by learned State Commission in Consumer Complaint No. 345
of
2000
Mukund M. Sarang & Ors. Vs.
M/s.
S.S.
Builder
&
Rohini P. Meher & Ors. Vs.
M/s.
S.S.
Builder
&
Contractors Shri Suhas Gangadhar Rahurkar and Deepa R. Malandhar & Ors. Vs. M/s.
S.S.
Builder
&
Contractors Shri Suhas Gangadhar Rahurkar,
and Consumer Complaint No. 227 of 2001 P.Y. Shahastrabudhe & Ors. Vs. M/s. S.S.
Builder & ContractorsShri Suhas Gangadhar Rahurkar, Consumer Complaint No. 228
of
2001
S.S. Baing & Ors.
Vs.
M/s.
S.S.
Builder
Contractors Shri Suhas GangadharRahurkar and Consumer Complaint No.

2001
P.D. Modak & Ors.
Vs.
Contractors Shri Suhas Gangadhar Rahurkar are
M/s.
set
S.S.
aside
229
Builder
with
liberty
&
of
&
to
complainants/respondents to challenge the order dated 20.09.2010 in which interest

has not been allowed.
Sd/-
PRESIDING MEMBER
Sd/-
( DR. B.C. GUPTA)
MEMBER
k

NEW DELHI
of Orissa State Consumer Disputes Redressal Commission)
Sri Chakradhar Sahoo
s/o late Alekha Sahoo,
r/o Plot No. 568, Unit 9 (Flat),
Bayababa Math Lane, P.O. Bhaoi Nagar,
P.S. Sahid Nagar,
Bhubaneswar, District Khurda
Odisha
versus
1. Khetramohan Parida (Dead)
through its Legal heirs
A.
Smt. Tuna Kumari Parida

w/o Khetramohan Parida
B.
Kabindra Kumar Parida

s/o Khetramohan Parida
C.
Sachindra Sunder Parida

D.
Pranabesh Parida
E.
Swayam Parakash Parida

F.
Rabindra Ranjan Parida

G.
Omprakash Parida
All residents of Laxmi Bhandar

(Grocery Shop) Shop No. 1,
Plot No. 568, Unit 9 (Flat),
Bayababa Math Lane, P.O. Bhoi Nagar,
P.S. Sahid Nagar, Bhubaneswar,
District Khurda, Odisha
2. S.D.O. (Comm.) (Electrical)
Sub-Division No. III, BCDD-1,
CESU, near IMFA Park,
Bhubaneswar,
District Khurda
3. Jr. Manager (Elect.)
Unit 9 (Flat), Electrical Section
CESU BCDD- I, Bhubaneswar,
District Khurda.
Respondents/Opposite Parties
BEFORE

For the Petitioner
Mr. Soimyajit Pani, Advocate
For Respondent 1
Ms. Swati Bhushan Sharma, Advocate
For Respondent 2 & 3
NEMO

ORDER
Protection Act, 1986 against the impugned order dated 1.11.2012, passed by the Orissa
FA No. 23/2012, Sri Chakradhar Sahoo versus Khetramohan Parida, vide which, while
dismissing appeal, the order dated 27.12.2011, passed by the District Consumer
Disputes Redressal Forum, Khurda, dismissing the consumer complaint no. 526/2009,
was upheld.
2.
Brief facts of the case are that the petitioner/complainant Sri Chakradhar Sahoo
filed consumer complaint no. 526/2009, saying that he was the owner of a piece of land
in Khata No. 42, Mauza Bhubaneswar, Sahar Unit No. 9, Bhoi Nagar and a single storey
residential house had been constructed on the said property where the complainant was
residing with his family. He had been paying municipal taxes and land revenue
regularly. There was an electric connection provided by the Orissa State Electricity
Board (OSEB) vide consumer no. 11.1.81, corresponding to new account no. 01234186
for 1 KW in his name and he used to pay the electricity bill regularly. There was an
adjoining piece of waste land near the residential building, upon which, the complainant
had constructed three shop-rooms for business purposes for which a separate electric
connection under commercial category vide consumer no. 11.1.81/1, corresponding to
account no. 01375974 for 1 KW had been obtained and the complainant used to pay
the bills for that connection also. It is further stated in the complaint that OP 1 was a
tenant in shop room no. 1 on monthly rental basis. The son of OP 1 cultivated family
relations with the complainant and taking advantage of the same, gave a proposal to
purchase land and building of the complainant. The complainant got registered sale
deed no. 868 dated 18.01.2008, executed in favour of OP 1, although the possession of
land and building was not delivered to OP 1. Thereafter, since there was violation of the
contractual agreement between the parties, the complainant made a deed of
cancellation on 31.12.2008, vide registered document No. 19986. However, civil
litigation regarding the property in question was pending between the parties. The
complainant has alleged that when sale deed no. 868 dated 18.01.2008 was executed
between the parties, OP 1, made a representation to OP 2, who is officer of the
Electricity Board, requesting for change of electric connection from the name of the
complainant to the nominee of OP 1. The OP 2, without making an inquiry about the
physical status on the spot, changed the electric connection illegally in favour of OP 1
and thereafter, the electric bills were raised in the name of OP 1, although the payment
was still being made by the complainant. The complainant served legal notice upon OP
2 for change of consumer name, but it yielded no result. During this period, when the
electricity bill was not paid, the OP 3 at the behest of OP 2 disconnected the power
supply on 28.10.2009 without notice. The complainant approached OP 2 & 3 for
reconnection and deposited the outstanding dues and reconnection fee on 30.10.2009,
but the same was not restored due to the influence of OP 1. The complainant
requested for a direction to the OPs jointly and severally, not to disconnect the power
supply for both connections and also a direction for change of the name of the
consumer in his name and ` 75,000/- as compensation for mental harassment and `
20,000/- as cost of litigation. An application was also filed by the complainant on the
same day before the District Forum, requesting them that an interim order should be
made, directing the OPs to restore the power supply for both the connections. The
District Forum passed the order on 3.11.2009 itself, directing the OPs to restore the
power supply for both the connections and also directed the petitioner/complainant to
pay the electricity dues regularly.
3.
In the written reply filed by OP 1, it was stated that the allegations made in the
complaint were not correct. The registered deed had been executed for the property in
question, in his favour by the complainant himself and the possession had also been
delivered to him. The electric connection had, therefore, been rightly transferred in his
name, based on the registered sale-deed. The OP 2 & 3 also filed their written version
before the District Forum, saying that the complainant was not the owner of the land
where the power supply was being provided and hence, he was not a consumer. He
had already sold the property vide registered sale-deed No. 868 dated 08.01.2008,
which was presented before them by OP 1, alongwith a copy of record of rights and
based on that, the change of consumer name was considered. The complainant had no
legal status in the matter.
4.
The District Forum after taking into account the evidence of the parties, passed
order dated 27.12.2011, dismissing the consumer complaint, stating that OPs 2 & 3 had
discharged their statutory obligations in accordance with the provisions of statute and
rightly transferred the ownership. The District Forum have passed their order based on
regulation 13(10) and 103 of OERC (Condition of supply) Regulation 2004. An appeal
against this order filed before the State Commission was also dismissed vide order
dated 1.11.2012 by the State Commission. It is against this order that the present
petition has been made.
5.
During proceedings before this Commission, reply was filed on behalf of LRs of
respondent no. 1 saying that the petitioner/complainant had managed to get deed of
cancellation dated 31.12.2008, illegally and unlawfully without the signatures of the
vendees. In pursuance to the sale-deed dated 18.01.2008, the OP 1 made application
for getting the electric connection changed to their name and the said change was
made by the electricity department on 12.05.2008. The OP 2 & 3 had acted in
accordance with law. The suit regarding title was pending in the civil court.
6.
The petitioner/complainant filed his replica to the reply given by the respondent
no. 1 saying that despite cancellation of sale-deed, OP 2 & 3 had not taken any action
to cancel the electric connection in the name of OP 1. A notice had also not been
served on the petitioner before making any change.
7.
At the time of arguments, the learned counsel for the petitioner stated that
respondent no. 1 / OP 1 was his tenant and he did execute a sale-deed in his favour,
although only half of the consideration amount had been paid. The OP 1 had taken
advantage of the sale deed and got the electric connection transferred in his name. The
learned counsel stated that the matter was still pending adjudication by the Civil
Court. He further stated that he was making payments of the electricity bill in question,
although the connection was not in his name. The transfer of electric connection had
been made in favour of the OP 1, without following the rules and regulations. Even after
disconnection, the petitioner got the connection restored after obtaining orders of the
District Forum and on payment of the outstanding dues.
8.
The learned counsel for respondent no. 1 stated that the electric connection had
been changed in his favour by OP 2 & 3, based on registration deed 18.01.2008 in his
favour. The transfer was made effective with effect from 12.05.2008. The petitioner has
no authority to cancel the sale-deed unilaterally. The learned counsel stated that the
petitioner had filed the present proceedings with a view to obtain a favourable order,
which could be useful to him in proceedings pending before the Civil Court.
9.
I have examined the entire material on record and given a thoughtful
consideration to the arguments advanced before me. The admitted facts of the case
are that the petitioner/complainant was the owner of the property in question and he
executed the sale-deed dated 18.01.2008 in favour of OP 1. He has himself stated that
the said sale deed was executed, although only a part consideration had been paid by
OP 1. Later on, as per the version of the petitioner, the said sale deed was got
cancelled on 31.12.2008. It is also an admitted fact that civil litigation is pending
between the parties. A copy of the suit for declaration for setting aside the sale deed
dated 18.01.2008 has also been placed on record. It is clear from the prayer clause in
the said suit that the suit be decreed with a declaration that the registered sale deed no.
868 dated 18.01.2008 is null and void.
10.
It is clear from the above facts that the change in electric connection was made
by OP 2 & 3 on 12.05.2008, based on the sale-deed dated 18.01.2008 in favour of the

OP 1. The factum of cancellation of sale deed or its declaration as null & void, is
pending between the parties. In case, the said sale deed is declared null & void and the
prayer of the complainant is granted, the authorities of the Electricity Department can
change the connection in favour of the petitioner at that time. At the present stage, I do
not find that the orders passed by the State Commission or District Forum suffer from
any legal infirmity, irregularity or jurisdictional error on any ground. The present revision
petition is, therefore, devoid of any merit and the same is ordered to be dismissed and
the orders passed by the Consumer Fora below are upheld. There shall be no order as
to costs.
Sd/(DR. B.C. GUPTA)
PRESIDING MEMBER
RS/

NEW DELHI
of Punjab State Consumer Disputes Redressal Commission)
Sanjiv Kaushal,
President, Sri Sai Baba Jan Kalyan Society,
SCO No. 134, S.F. Baradari,
Patiala
presently residing at
House No. 10, Desi Mehmandari,
near Bus Stand Patiala
... Petitioner/Opposite Party
versus
Rajiv Sharma,
s/o Gouri Dyal Sharma,
r/o 292, Bhim Sain,
Kothe Dinanagar,
Tehsil and District
Gurdaspur
BEFORE
For the Petitioner
Mr. Rakesh Bhatia, Advocate
For the Respondent
NEMO

ORDER
Punjab State Consumer Disputes Redressal Commission (for short the State
Commission) in FA No. 192/2007, Sanjiv Kaushal versus Rajiv Sharma, vide which
while dismissing appeal, the order dated 01.08.2006, passed by the District Consumer
Disputes Redressal Forum, Gurdaspur, in consumer complaint no. 836/2004, allowing
the said complaint, was upheld.
2.
Brief facts of the case are that the respondent/complainant Rajiv Sharma filed the
complaint in question under section 12 of the Consumer Protection Act, 1986 (in short
the Act) for recovery of an amount of `_78,100/- from the petitioner. It was stated in the
complaint that the petitioner/OP is the President of a society, called the Shri Sai Baba
Jan Kalyan Society, and he published advertisements in The Hindustan Times on

13.12.2003, inviting the public to contribute a sum of ` 699/- to the Society. The
complainant deposited the said amount, after which he was allotted ID No.
0001775. The complainant enrolled 42 more members under the scheme and the
necessary amounts were deposited in respect of those persons as well and ID Nos.
were allotted to all these members. The petitioner/OP agreed to pay `_78,100/- to every
Member and also agreed to pay a sum of `_600/- within four to six months to every
member. A gift of either a dinner set or a hot-case or an electric iron was also planned
to be given to every member. However, on the failure of the OP to meet his
commitment, the complainant sent him a legal notice on 1.10.2004 through registered
post, but to no effect. The complainant then filed the consumer complaint in question,
before the District Forum Gurdaspur seeking directions to the OP to make payment of
`_78,100/-, as promised. The District Forum vide their order dated 01.08.2006, allowed
the complaint and directed the OP to make payment of `_78,100/- within a period of one
month, failing which the complainant shall be entitled to interest @9% p.a. An appeal
made against this order before the State Commission was dismissed vide impugned
order. It is against this order that the present petition has been made.
3.
Notice of the petition was sent to the respondent for appearance before this
Commission. However, he did not put in appearance at the time of admission

hearing. The petition was admitted on 04.10.2013. Another notice was sent to the
complainant/respondent
for
final
hearing,
in
response
to
which
the
complainant/respondent put an appearance in person on 27.01.2014, when the case

was adjourned for final hearing on 3.04.2014. However, the complainant did not put in
appearance at the time of final arguments.
4.
At the time of arguments, the learned counsel for the petitioner stated that the
jurisdiction to hear the consumer complaint was at Patiala, and not at Gurdaspur. The
orders passed by the District Forum, duly affirmed by the State Commission suffer from
the error of jurisdiction. Further, the complaint should have been filed against the
Society and not against the petitioner in person. The learned counsel stated that as
mentioned in the revision petition itself, the petitioner, alongwith six other persons had
formed the Shri Sai Baba Jan Kalyan Society that was registered under the Societies
Registration Act, 1860 at Patiala in the year 2003. The said Society had floated a
business associates scheme, under which a person desirous of enrolling himself as

member, was required to deposit one time lump sum amount of ` 699/- only with the
Society. In return, the Society was supposed to provide him a dinner set or hot-case or
electric iron etc. as per his choice. The applicants were encouraged to enrol more
members and were promised cash rewards upto ` 78,100/- per year for making others
to enrol new members. The learned counsel admitted that the said scheme did not last
for long, because the Society were losing funds due to the said scheme, and ultimately,
vide resolution dated 24.07.2004, the Society was dissolved and due intimation was
given to the Registrar of Firms and Societies. The premises where the Society was
functioning was returned to the landlord on 31.07.2004. The learned counsel stated
that the order passed by the District Forum was bad in the eyes of law, because the
petitioner was wrongly proceeded against exparte by the District Forum. The petitioner
came to know about the said order at the time of execution proceedings only. The
learned counsel further stated that payment of ` 600/- as commission had already been
made to the complainant and he showed certain documents to this effect at the time of
arguments. Although the complainant/respondent did not appear during hearing, but a
written version sent by him is on record. It has been stated therein that the orders
passed by the lower consumer fora were in accordance with law.
5.
consideration to the arguments advanced before me.

6.
The main ground taken by the petitioner in the grounds of appeal before the State
Commission, in the grounds of revision petition, as well as during arguments says that
he was not properly served by the District Forum, during proceedings before them and
hence, the order passed by the District Forum was bad in the eyes of law. It has been
stated that the address of the petitioner stated in the complaint is
SCO No. 134, S.F.,
Baradari, Patiala
In fact, the correct address was
SCO No. 134, First Floor,
Chhoti Baradari,
Patiala 147001.
7.
Further, the petitioner had vacated the said premises on 31.07.2004, whereas the
notice is stated to have been sent to him later on, and hence there was no question of
the notice being served at that address.
8.
In the order dated 01.08.2006, passed by the District Forum it has been stated as
follows:
Notice of the complaint was sent to the opposite party through
registered
A.D.
post. Neither
registered
cover
nor
acknowledgement was received back despite the lapse of
period of 30 days from the date of dispatch and it was
presumed to have been served upon the opposite party. None
had put in appearance on behalf of the opposite party and he
was proceeded against exparte vide order dated 26.04.2005.
9.
When an application was moved before the District Forum after the decision of
the case for setting aside the exparte order dated 26.04.2005, the District Forum again
observed that a period of 30 days had elapsed from the date of dispatch of registered
cover and hence, the notice was presumed to have been served on them.
10.
In this regard, it shall be worthwhile to refer to proviso to section 28A (3) of the
Consumer Protection Act, 1986, which says as follows:Provided that where the notice was properly addressed, pre-paid
and duly sent by registered post acknowledgment due, a
declaration referred to in this sub-section shall be made
notwithstanding the fact that the acknowledgment has been lost
or mislaid, or for any other reason, has not been received by the
District Forum, the State Commission or the National
Commission, as the case may be, within thirty days from the date
of issue of notice.
11.
A plain reading of the above provision indicates that a declaration about proper
service in the event of non-receipt of acknowledgement within thirty days, can be made
only, if notice had been properly addressed. In the present case, it is clear that the
petitioner had vacated the premises in question by the time, the notice was sent, and
hence, it cannot be stated that the notice was sent to correct address. The presumption
of service made by the District Forum that the registered notice was not received back
within 30 days from its dispatch, could not be validly made in this case, therefore.
12.
Further, the petitioner has stated that under the terms and conditions of the
scheme, a person enrolled as member, could be given an amount upto ` 78,100/-,

whereas the District Forum has allowed a sum of ` 78,100/- to the complainant, besides
a compensation of ` 20,000/-. The petitioner also pointed out during arguments that
certain payments etc. had been made to consumers, but this factor was not taken into
account by the District Forum and State Commission, while pronouncing their order.
13.
In view of the position explained above, this revision petition is allowed, the order
passed by the State Commission is set aside and the case is remanded to the State
Commission with the direction that they should hear the appeal again, give appropriate
opportunity to both the parties to produce documents relevant to the case and take a
decision afresh. The parties are directed to appear before the State Commission on
16.07.2014 for further proceedings.
Sd/(DR. B.C. GUPTA)
PRESIDING MEMBER
RS/

NEW DELHI
REVISION PETITION NO. 2125
WITH
OF 2013
(I.A. NO.3560 OF 2013, FOR STAY)

(Against the order dated 12.03.2013 in Appeal No. 389/2012
of the State Commission, West Bengal)
Sri Jayant Kumar
CEO, Representing
M/s Tamanna IT Solutions Pvt. Ltd.,
Having its office at 2, HO-CHI-MINH Sarani
(Near Tata Centre)
Police Station, Shakespeare Sarani,
Kolkata 700071
....... Petitioner
Versus
1. Sri Santanu Gangopadhyay
S/o S.M.Gangopadhyay of Nawpara
P.O. Kanaipur, Konnagar, District : Hooghly
PIN CODE NO. 712234
2.
Debobrota Munshi
S/o Kedar Nath Munshi,
Ghoshpara Road,
Uttarpara, Paltra, P.O. Bengal Enamel,
District : 24-PARGANAS (N)
PIN CODE 743122
3.
Bikash Das
S/o Dinesh Chandra Das Village & P.O.
Belenath, Police Station, Santipur,
District : Nadia
4.
Manager/Director, Representing
M/s Tamanna IT Solutions Pvt. Ltd.,
Having its office at 2, HO-CHI-MINH Sarani
Kolkata 700071
BEFORE:

... Respondents
For the Petitioner
Mr. Amit Sharma, Advocate
ORDER
In this revision petition filed under section 21(b) of the Consumer Protection Act,
1986 (short, Act) there is challenge to order dated 12.3.2013 passed in (First Appeal
No.389 of 2012) by West Bengal State Consumer Disputes Redressal Commission,
Kolkata (short, State Commission).
2.
Brief facts are that Respondent Nos.1 to 3/Complainants had filed consumer
complaint against Petitioner/Opposite Party No.1 and Respondent No.4/Opposite Party

No.2 for having not conducted the IT course properly and denial of placement of
service.
3.
Petitioner as well as respondent No.1 did not appear before the District
Consumer Disputes Redressal Forum, Unit-I, Kolkata (short, District Forum) inspite of
receipt of the notice. Accordingly, petitioner was proceeded ex-parte.
4.
District Forum, vide order dated 9.8.2011, allowed the complaint of respondents
Nos.1 to 3 and directed the petitioner and respondent no.4, to pay severally and/or
jointly to respondent nos.1 to 3 Rs.15,000/- as compensation for their harassment and
litigation cost of Rs.500/-.
5.
Aggrieved by the order of the District Forum, Petitioner filed an appeal, which was
dismissed by the State commission since there was delay of 312 days in preferring the
appeal.
6.
Now, petitioner has filed the present revision petition.
7.
We have heard the learned counsel for the petitioner and gone through the
record.
8.
It has been contended by learned counsel for the petitioner that petitioner did not
receive any notice from the District Forum. The petitioner came to know about the
passing of the order of the District Forum only when they received notice of the
execution case from the District Forum to appear before it on 20.6.2012. Further, there
was no intentional or delay on the part of the petitioner in filing of the appeal before the
State Commission. The delay ought to have been condoned by the State Commission
and it should not have dismissed the First Appeal on the technical ground of the delay.
9.
The relevant ground on which petitioner had sought condonation of delay of 312
days before the State Commission reads as under ;

5. Thereafter, when the appellant/your petitioners received the
notice of the execution case being No.6 of 2012 from the Calcutta
District Redressal Forum, Unit-I, Kolkata have been acquainted
with and/or about the case being No.44 of 201 filed by the
respondents/opposite parties before the Learned Calcutta
District Redressal Forum on 20.6.2012 and on the same date the
appellants appeared in the said execution case. From getting the
notice of the execution case filed by the respondents, the
appellants came to know that a suit has been filed against them
on 20.6.2012.
6. That the appellants further submit that after knowing the date
of the execution they went to meet with their lawyers and
engaged him, but unfortunately he was ill and he was under the
treatment of a Medical Practitioner. But inspite of his illness he
tried heart and soul to file this appeal before your Forum.
10.
The State Commission, while rejecting the application for condonation of delay in
its impugned order held ;

This order relates to the application for condonation of delay of
312 days in preferring the appeal filed by the appellants herein.
It has been stated in the petition for condonation of delay
that the appellants were not served with any notice before the
Learned District Forum in connection with CC 44 of 11 and an ex
parte order was passed against the appellants herein. After
receiving the notice of the execution case bearing no.6 of 2012,
the appellants appeared in the said execution case and came to
know that the complaint case was allowed ex parte against them.
After appearing in the execution case the appellants went to their
Learned Advocate and engaged him in the said case. But
unfortunately he was ill and under the treatment of a medical
practitioner and he tried heart and soul to file the instant appeal
before this Commission. There was no intentional laches or

lacuna on the part of the appellants for the delay in filing this
appeal.
The respondents opposed the petition for condonation of
delay.
We have heard the submission made by both sides and
perused the papers on record. It appears from the judgment of
the Learned District Forum that the OPs did not appear in spite of
the receipt of notice. As regards the alleged illness no medical
certificate was filed along with the application forcondonation of
delay. On the other hand, it has been stated in Para 6 of the
petition that the copy of the medical certificate will be attached at
the time of hearing. There is inordinate delay of 312 days in filing
this appeal and under the circumstances aforesaid, we find that
the appellants failed to show sufficient reasons explaining the
inordinate delay in filing the appeal. We are of the considered
view that there is no merit in the application for condonation of
delay and the same is liable to be rejected.
The application for condonation of delay is rejected.
Consequently, the appeal being time barred also stands
dismissed.
11.
Thus, as per petitioners case it got the knowledge of the order passed by the
District Forum only through the execution notice, directing them to appear before the
District Forum on 20.6.2012. However, as per copy of the execution notice received by
the petitioner, the same was issued on 17.4.2012 directing the petitioner to appear
before it on 7.5.2012. There is nothing on record to show that any such notice was
issued to the petitioner to appear before the District Forum on 20.6.2012. Under these
circumstances, petitioner has made false averments with regard to the actual date fixed
before the District Forum in execution proceedings.
12.
Further, the main ground on which condonation of delay was sought before the
State Commission was that the counsel engaged by the petitioner in the execution case
became ill and was under treatment of medical practitioner and thus, there was no
intentional delay on the part of part of the petitioner in filing the appeal before the State
Commission.
13.
the
State Commission, in this respect as noted above has observed that as regard
alleged
illness
no
for condonationof delay.
medical
certificate
was
filed alongwith the
application
14.
Even before this Commission, petitioner has not filed the medical certificate of the
previous counsel with regard to alleged illness.

15.
Apex Court in case Anshul Aggarwal Vs. New Okhla Industrial Development
Authority, IV (2011) CPJ 63(SC) has observed ;

16.
Under these circumstances, we hold that the State Commission rightly refused to
condone the long delay of 312 days and as such State Commission has not committed
any error and has rightly exercised its jurisdiction. It is apparent from the record that
petitioner has been conducting the present litigation from day one in a very casual and
careless manner. Before the District Forum, the petitioner was proceeded ex-parte and
thereafter it did not become wiser and filed the appeal along with application
seeking condonation of delay of 312 days. It appears that only motive of the petitioner is
not to comply with the award passed by the District Forum as early as in the year
2011. Thus, we do not find any merit in the revision petition and the same is without
any legal basis. Hence, we dismiss the petition with cost of Rs.10,000/- (Rupees Ten
Thousand only).
17. Petitioner is directed to deposit the cost by way of demand draft in the name of
Consumer Legal Aid Account of this Commission, within four weeks from today. In case,
petitioner fails to deposit the said cost within the prescribed period, then he shall also be
liable to pay interest @ 9% p.a., till realization.
18.
Application, if any also stands dismissed.

19.

..
J
(V.B. GUPTA)
(PRESIDING MEMBER)
....
(REKHA GUPTA)
(MEMBER)
Sonia/

NEW DELHI
(From the order dated 15.05.2012 in Appeal No. 1066 of 2008 of the Haryana State
New India Assurance Co. Ltd.

Branch Office
G.T. Road, Karnal
Through its Branch Manager
Petitioner/Opp.Party (OP)
Versus
1. Gulshan Bhatia S/o Sh. Puran Chand
R/o House No. G-15, Kisan Basti,
Nilokheri,
District Karnal
2. HDFC Bank Ltd.
Kunjpura Road,
Karnal
3. Malwa Automobiles,
G.T.R. Road,
Near Namastey Chowk,
Karnal
BEFORE
For the Petitioner : Mr. S. Ravi Kumar, Advocate
For the Res. No. 1 : Mr. Shubham Bhalla, Advocate
For the Res. No. 2 : Ms. Priyanka, Advocate
For the Res. No. 3 : Mr. S.R. Bansal, Advocate

ORDER
15.05.2012 passed by the Haryana State Consumer Disputes Redressal Commission,
Panchkula (in short, the State Commission) in Appeal No. 1066 of 2008 Gulshan
Bhatia Vs. New India Assurance Co. Ltd. & Ors. by which, while allowing appeal, order
of District Forum allowing complaint was modified and compensation was enhanced.
2.
Brief facts of the case are that complainant/respondent No. 1 got his Tata Indica
insured with OP NO. 1/petitioner for Rs.2,80,000/- for a period of one year commencing
from 18.10.2004 to 17.10.2005. Vehicle met with an accident on 13.6.2005 and
Surveyor
Sh.
Arvind
Koesis
appointed
by
OP
No.
conducted
spot
survey. Complainant got estimate of repair from OP No. 3, which was for
Rs.2,94,412.70. OP No. 1 appointed Shri R.S. Kohli as surveyor to assess final loss to
the car. OP No. 1 informed complainant that car was not repairable and he was asked
to settle the claim on total loss basis. It was further submitted that car was financed by
OP No. 2. As claim was not settled, complainant filed complaint before District Forum.
Alleging deficiency on the part of OPs OPs resisted complaint and OP No. 1 submitted
in written statement that Surveyor Shri R.S. Kohli assessed loss for Rs.75,811/- on
repair basis. Complainant did not complete formalities; hence, claim could not be settled
and prayed for dismissal of complaint. OP No. 2 admitted grant of loan and OP No. 3
submitted
that
rough
estimate
was
prepared
and
prayed
for
dismissal
of
complaint. Learned District Forum after hearing both the parties allowed complaint and
directed OP No. 1 to pay Rs.1,30,000/- against which, appeal filed by the complainant
was allowed by learned State Commission vide impugned order and learned State
Commission enhanced compensation from Rs.1,30,000/- to Rs.1,80,000/- against
which, this revision petition has been filed.
3.
Heard leaned Counsel for the parties and perused record.
4.
committed error in enhancing compensation as car had already run 1,16,000 Kms. on
the date of accident; hence, revision petition be allowed and impugned order be set
aside. On the other hand, learned Counsel for the Respondent No. 1 submitted that
order passed by learned State Commission is in accordance with law; hence, revision
petition be dismissed.
5.
Perusal of record clearly reveals that learned District forum allowed Rs.1,30,000/-
and learned State Commission enhanced compensation on the basis of a report dated
8.9.2006 given by Engineer J.K. Sharma. Learned Counsel for the Respondent No. 1
admitted that this report was not submitted in pursuance to directions of District Forum,
but complainant himself obtained this report. Perusal of report of Shri J.K. Sharma
reveals that Tata Indica insured by petitioner was of 2003 model and it was insured for
Rs.2,80,000/-. He has assessed Rs.2,50,000/- as market value of the car and after
deducting Rs.70,000/- as value of the salvage opined net loss of Rs.1,80,000/- as repair
estimate was Rs.2,47,100/-.
6.
District Forum allowed Rs.1,30,000/- as car had run 150 K.M. per day in last 14
months and learned State Commission allowed Rs. 1,80,000/- on the basis of
Surveyors report holding that report of surveyor cannot be brushed aside without
cogent reasons.
7.
We are of the opinion that as Tata Indica was of 2003 model and had run about
1,16,000 K.M. before accident, it would be appropriate to assess market value of the car
to be Rs.2,25,000/- instead of Rs.2,50,000/- assessed by Surveyor J.K. Sharma and
after deducting cost of salvage, loss can be presumed as Rs.1,55,000/instead of Rs.1,80,000/- assessed by Surveyor J.K. Sharma.
8.
Consequently, revision petition filed by the petitioner is partly allowed and
impugned order dated 15.5.2012 passed by learned State Commission in Appeal No.
1066 of 2008 Gulshan Bhatia Vs. New India Assurance Co. Ltd. & Ors. is partly
modified and loss is assessed to Rs.1,55,000/- instead of Rs.1,80,000/- and rest of the
order of District Forum is affirmed.
Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

NEW DELHI
(From the order dated 10.04.2013 in Revision Petition No. 23/2013 of the Orissa State
Consumer Disputes Redressal Commission, Cuttack)
With
IA/4199/2013
(Stay)
Pramod Kumar Mohapatra
S/o Chandrasekhar Mohapatra
At/Vill. Padmapada, P.O. Nagapur,
Via Gop, Distt. Puri.
Versus
State Bank of India
Chhitana Branch
At/PO Chhitana,
Balighai, Distt. Puri
Odisha
Represented by its Branch Manager
Respondent/Opp. Party
BEFORE
For the Petitioner : Mr. Mahaling Pandarge, Amicus Curiae
ORDER
10.04.2013 passed by the Orissa State Consumer Disputes RedressalCommission,
Cuttack (in short, the State Commission) in Revision Petition No. 23 of 2013 State
Bank of India Vs. Pramod Kumar Mohapatra by which, interim order passed by learned
District Forum was modified.
2.
Brief facts of the case are that complainant/petitioner after obtaining loan of
Rs.4,92,000/- from OP/respondent purchased tractor. This amount was to be paid in

18 half-yearly installments of Rs.27,333/-. The purchased tractor was hypothecated
with OP. Complainant failed to deposit installments even after notice and in such
circumstances, tractor was seized on 18.1.2013 by OP and the outstanding dues from
the complainant were Rs.5,83,073/- with interest upto30.11.2011. Learned District
Forum passed interim order and directed OP to release tractor and trolley within 7
days. OP filed revision petition against the order of District forum which was modified
by learned State Commission by impugned order against which, this revision petition
has been filed.
3.
4.
committed error in directing to release only tractor, whereas trolley was also seized and
further committed error in directing complainant to deposit Rs.80,000/- with the OP;
hence, revision petition be allowed and impugned order be set aside.
5.
Perusal of record reveals that only tractor was seized by OP and trolley was not
seized and apparently, District Forum committed error in directing OP to release tractor
along with trolley.
6.
Not only this, Counsel appearing for complainant fairly conceded before the State
Commission that District Forum ought to have asked the complainant to pay some
amount and he was not in a position to pay more than Rs.80,000/- at that
time. Learned State Commission directed complainant to pay amount of Rs.80,000/and to make payment of rest of the amount in installments and in such circumstances, it
can be said that the order passed by learned State Commission is in accordance with
law. By this order, the learned State Commission rather exercised discretion
in favour of the complainant by allowing him to make payment in installments; even
then, petitioner has filed this revision petition without any justification.
7.
order, which calls for any interference and revision petition is liable to be dismissed.
8.
stage with no order as to costs

Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

NEW DELHI
With
IA/2228/2014 (Condonation of Delay)
Jagwanti Nandal
W/o Sh. J.K. Nandal
R/o Village Bohar
Tehsil & Distt. Rohtak
Haryana
Versus
H.U.D.A.
Through its Administrator
Rohtak, Haryana
Respondent/Opp. Party
BEFORE
For the Petitioner : Mr. Rajat Rathee, Advocate
ORDER
25.04.2011
passed
by
the
Haryana
State
Consumer

No. 585 of 2009 HUDA Vs. Smt. Jagwanti Nandal by which, appeal filed by the OP
was allowed and order of District Forum allowing complaint was set aside.
2.
Brief facts of the case are that complainant filed complaint before District Forum
and learned District Forum while allowing complaint directed OP/respondent to refund
Rs.6,47,000/- to the complainant along with 9% p.a. interest. Appeal filed by the OP was
allowed by learned State Commission vide impugned order and complaint was
dismissed against which, this revision petition has been filed along with application
for condonation of delay of 980 days.
3.
Heard learned Counsel for the petitioner on application for condonation of delay.
4.
Learned Counsel for the petitioner submitted that delay occurred as family
members were in shock and could not arrange documents and engage Advocate;
hence, delay may be condoned.
5.
Paragraph 2 of the application for condonation of delay runs as under:

That it is humbly submitted that there is some delay in filing the
present Revision Petition as the counsel for the petitioner who
appeared before the Honble State Commission had not inform the
allowing of the first appeal of the petitioner and later on when the
petitioner inquired about his case, he found the same was allowed
on 25.04.2011. After the allowing of first appeal filed by the
respondent, petitioner, and family members were in shock and
could not arrange the documents and advocate to file the present
Revision Petition before this Honble Court. The delay caused in
filing this application is bonafide and deserves to be condoned.
6.
No reason has been mentioned in the application for condonation of delay except
the reason that family members were in shock and could not arrange documents and
engage Advocate for filing Revision Petition.
7.
There is no explanation at all for condonation of 959 days delay as per office
report and application for condonation of delay is liable to be dismissed on the basis of
judgment of Honble Apex Court and the National Commission in (1) (2010) 5 SCC 459
Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development
Corporation and Anr.; (2) (2012) 3 SCC 563 Office of The Chief Post Master General
and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State
Commission) Anshul Aggarwal Vs. New Okhla Industrial Development Authority.
8.
As application for condonation is liable to be dismissed, revision petition filed by
the petitioner being barred by limitation is bound to be dismissed.

9.

Sd/-
PRESIDING MEMBER
..Sd/-
( DR. B.C. GUPTA )
MEMBER
k

NEW DELHI
(From the order dated 06.06.2009 in Consumer Complaint No. 13 of 2007 of the M.P.
State Consumer Disputes Redressal Commission, Bhopal)
ICICI Bank
Through its Authorised Representative
Alankar Palace
11, M.P. Nagar, Zone-II,
Bhopal 462 011 (M.P.)
Appellant/Opp. Party
Versus
1. Naresh Kumar Jain
S/o Late Shri Harbans Lal Jain
R/o B-6, Alkapuri
Near Shakti Nagar,
Bhopal 462 024 (M.P.)
2. Regional Manager
Reserve Bank of India
R.B.I. Building,
Hoshangabad Road
Near Maida Mill
Bhopal 462 011 (M.P)

(From the order dated 06.06.2009 in Consumer Complaint No. 13 of 2007 of the M.P.
State Consumer Disputes Redressal Commission, Bhopal)
Naresh Kumar Jain
S/o Late Shri Harbans Lal Jain
R/o B-6, Alkapuri
Near Shakti Nagar,
Bhopal 462 024 (M.P.)
Versus
1. Branch Manager,
ICICI Bank
Alankar Palace
11, M.P. Nagar, Zone-II,
Bhopal 462 011 (M.P.)
2. Regional Manager
Reserve Bank of India
R.B.I. Building,
Hoshangabad Road
Near Maida Mill
Bhopal 462 011 (M.P)
3. Government of India
Through the Secretary/Addl. Secretary (Budget)
Ministry of Finance & Company Affairs,
North Block,
New Delhi 110 011.
Respondents/Opp. Parties
BEFORE
For the ICICI Bank

For the RBI
For the G.O.I.
:
:
:
For Naresh Kumar Jain
Mr. Samanuya D. Dwivedi, Advocate

Mr. Jaswinder Singh, Advocate
NEMO
:
In person and Advocate

ORDER

Both these appeals arise out of the single order of the State Commission; hence,
decided by common order. Appeal No. 318 of 2009 ICICI Bank Vs.Naresh Kumar
Jain has been filed by the appellant/Opposite Party and Appeal No. 485 of 2009
- Naresh Kumar
Jain
Vs.
ICICI
Bank
has
been
filed
by
the
appellant/complainant gainst the order dated 6.6.2009 passed by the M.P. State
Consumer
Disputes Redressal Commission,
Bangalore
(in
short,
the
State
Commission) in Consumer Complaint No. 13 of 2007 by which, while allowing

complaint partly, OP No. 1 was directed to pay interest on Rs. 20,80,000/- @ 12% p.a.
for 6 months against which, both the parties have filed these appeals.
2.
Brief facts of the case are that Complainants purchased Government of India
6.5% Saving Bonds (Non-taxable) cumulative from OP No. 1 worth Rs.20,80,000/- on

3.6.2004. Complainant approached OP No. 1 on 6.6.2008 for pre-mature encashment
of bonds after 3 years lock in period, but OP refused to redeem them on the ground that
the bonds are redeemable only after a minimum lock in period of 3 years. It was
further alleged that OP was unjustified in deducting Rs.40,919/- on account of premature redemption of bonds. Alleging deficiency on the part of OPs, complainant filed
complaint against the OP as OP No. 2 issued bonds on behalf of OP No. 3. OPs
resisted complaint and OP No. 1 submitted that complainant did not fall within purview
of consumer as OP No. 1 had not provided any service, but was only a
distributor/collecting agent for OP No. 2 and OP No. 1 appointed M/s. 3i-Infotech Ltd. as
their service provider for the aforesaid bonds. It was further submitted that on
receiving application from the complainant and on further verification by M/s. 3-iInfotech
Ltd. issued letter dated 7.7.2007 and returned the bonds to present after completion of
3 years and prayed for dismissal of complaint. OP No. 2 submitted that complainant
has not availed any service for consideration and prayed for dismissal of
complaint. Learned State Commission after hearing both the parties allowed complaint
partly as mentioned above against which, these appeals have been filed.
3.
Heard learned Counsel for the ICICI Bank, R.B.I. and complainant himself in
person who is also an Advocate and perused the record.

4.
Learned Counsel for the OP submitted that even though bonds were redeemable
after lock in period of 3 years, Learned State Commission committed error in allowing
12% p.a. interest for a period of 6 months; hence, appeal be allowed and impugned
order be set aside. On the other hand, learned complainant submitted that learned State
Commission committed error in not allowing compensation for the loss occurred due to
non-receipt of money in time. Hence, appeal be allowed and in addition to the relief
granted by the learned State Commission, compensation be also allowed.
5.
Condition No. 21 of Annexure A-1, Government of India non-taxable Saving Bond
runs as under:
21. Provision for Premature Encashment : After minimum lock in
period 3 years from the date of issue, an investor can
surrender the Bonds at any time after the 6 th half year but
redemption payment will be made on the following interest
payment cycle. Thus the effective date of premature
encashment will be 1st July and 1st January every
year. However, 50% of the interest due and payable for the
last six months of the holding period will be recovered in
such cases both in respect of cumulative and Noncumulative Bonds.
6.
This condition makes it clear that after 3 years Bond holder was entitled to
surrender the Bond, but redemption payment was to be made on the following interest
payment cycle meaning thereby, complainant who purchased Bonds on 3.6.2004 was
entitled to surrender for pre-mature payment after 3.6.2007, but was entitled to receive
proceeds only after 3.12.2017, the date on which next interest was payable. This has
also been clarified by R.B.I. in Circular dated 12.4.2006, which runs as under:
The effective date of premature encashment of Noncumulative bonds will be 1st July and 1st January every year
after completion of three years and for Cumulative bonds,
the notionally 7th half yearly interest payment due date (The
date can be any date and not necessarily 1 st July and
1st January). However, 50% of the interest due and payable
for the last six months of the holding period will be recovered
in such cases, both in respect of cumulative and noncumulative bonds. The bonds issued in March 2003 have
completed 3 years in March, 2006 and have become eligible
for premature encashment on July 1, 2006 (Non-cumulative)
and notionally with effect from September 24, 2006 onwards
in respect of Cumulative Bond i.e. 7 th half yearly interest due
date and so on.
7.
Payment so made to the complainant on 3.12.2007 was in accordance with the
terms and conditions of the issued Bonds.
8.
As far as deduction of interest on premature payment is concerned, the aforesaid
Condition No. 21 makes it clear that 50% of the interest due and payable for last 6
months to the holding period was to be recovered in case of pre-mature
encashment. OP No. 1 has not committed any error in deducting 50% of the interest for
next 6 months from the date of surrender of Bonds
9.
In the light of above discussion, it becomes clear that learned State Commission
committed error in allowing 12% p.a. interest on Rs.20,80,000/- for a period of 6

months and in such circumstances, Appeal No. 318/2009 filed by the OP/Appellant is to
be allowed.
10.
Complainant has filed Appeal No. 485 of 2009 for grant of compensation. As F.A.
No. 318 of 2009 has been allowed and complaint stands dismissed, aforesaid Appeal
No. 485 of 2009 becomes infructuous and complainant is not entitled to any
compensation.
11.
Consequently, Appeal No. 318 of 2009 ICICI Bank Vs. Naresh Kumar Jain
& Anr. filed by the appellant is allowed and impugned order dated 6.6.2009 passed by
learned State Commission in Complaint NO. 13 of 2007 is set aside and complaint
stands dismissed. Appeal No. 485 of 2009 Naresh Kumar Jain Vs. Branch Manager,
ICICI Bank filed by the complainant stands dismissed having become infructuous with
no order as to costs.
Sd/-
PRESIDING MEMBER
Sd/-
( DR. B.C. GUPTA)
MEMBER
k

NEW DELHI
(From the order dated 29.02.2008 in Complaint No.C-79/99 of the Delhi
State Consumer Disputes Redressal Commission.)
Karnataka Bank Ltd.,
Chandni Chowk,
Delhi 110006.
..Appellant
Vs.
1. Smt. Sheela Rani (deceased)
Through LR Ajay Aggarwal,
R/o D-153, Preet Vihar,
Delhi 110092.
2. Corporation Bank Centre,
Opposite Coffee Home,
Laxmi Nagar,
Delhi- 110092.
3. Shri Anil Kumar,
R/o A-73, Preet Vihar,
Delhi 110092.
AND
..Respondents

(From the order dated 29.02.2008 in Complaint No.C-79/99 of the Delhi
State Consumer Disputes Redressal Commission.)
Smt. Sheela Rani (deceased)
Through LR Ajay Aggarwal,
R/o D-153, Preet Vihar,
Delhi 110092.
..Appellant
Vs.
1. Corporation Bank Centre,
Opposite Coffee Home,
Laxmi Nagar,
Delhi- 110092.
2. Karnataka Bank Ltd.,
Chandni Chowk,
Delhi 110006.
3. Shri Anil Kumar,
R/o A-73, Preet Vihar,
Delhi 110092.
..Respondents

For Karnataka Bank Ltd.:-
Mr. S.N. Bhat, Advocate.
For LRs of the Complainant:For Corporation Bank:For Anil Kumar:-
Mr. Pramod Kumar Sharma,

Advocate.
Mr. Ajant Kumar, Advocate.
Mr. Anand V. Khatri, Advocate.
ORDER
(Pronounced on 30th day of April, 2014)
D.K. JAIN, J., PRESIDENT
These cross appeals under Section 19 of the Consumer Protection Act, 1986
(for short the Act) are directed against order dated 29.02.2008, passed by the State
Consumer Disputes Redressal Commission, Delhi (for short the State Commission) in
Complaint No. C-79/99. F.A No. 200 of 2008 has been filed by Karnataka Bank Ltd.,
arrayed as Opposite Party No. 2; and F.A No. 206 of 2008 is by the legal heirs of
Complainant in the said original Complaint. The other two Respondents in both the
Appeals are Corporation Bank Centre, Opposite Party No. 1 and one Anil Kumar,
Opposite Party No. 3 in the Complaint.
2.
Briefly stated, the material facts giving rise to these Appeals are that a cheque
dated 08.06.1998 in the sum of `8,99,571/- drawn on Corporation Bank by M/s Jawala
India (Pvt.) Ltd., in favour of the Complainant was allegedly deposited by the
Complainant with Karnataka Bank on 11.06.1998. Since the amount of the cheque was
not credited to her account, she wrote a letter dated 11.06.1998 to Karnataka Bank and
also requested the drawer company to ascertain the fate of the cheque. Enquiries
revealed that the cheque had been encashed by someone through a newly opened
account with the Corporation Bank. The said Anil Kumar was the introducer of the new
account. In response to the Complainants letters dated 16.06.1998 and 22.06.1998,
Karnataka Bank informed her that the cheque, purportedly drawn on Corporation Bank
and reportedly deposited with them for collection, had not been received in the
Bank. Thereafter, the Complainant, vide her letter dated 23.06.1998, requested the
Chief Vigilance Officer, Corporation Bank to depute some senior Inspector from the
Head Office to inquire into the matter and fix the responsibility of the Branch Officials,
whose poor supervision had (sic) landed the banks interest in jeopardy and restore the
amount of the cheque together with interest to her. It appears that on 15.06.1998, the
Complainant also lodged an FIR with the police station. On 23.06.1998, the drawer of
the cheque namely M/s Jawala India (Pvt.) Ltd. also lodged an FIR with regard to nonpayment of the cheque to the Complainant. Having failed to receive a posi
tive response to the legal
notices issued on her behalf, to both the Banks
as also to
the said Anil Kumar, alleging deficiency on the part of the Banks in connivance with said
Anil Kumar, the Complainant filed the Complaint in the State Commission inter
alia praying for direction to all the Respondents to pay the cheque amount along with
interest @ 24%, and compensation and damages amounting to `5,70,000/-.
3.
The Complaint was resisted by the Respondents as Opposite Parties. Apart from
raising preliminary objection about the maintainability of the Complaint on the ground
that: (i) the Complainant was not a consumer qua them as she had not hired their
services and (ii) the matter of alleged fraud required detailed evidence; it was pleaded
on behalf of the Corporation Bank that account of Smt. Shila Rani was opened in the
normal course, as per the banking norms and procedures and was introduced by Anil
Kumar as their old account holder. The stand of the Karnataka Bank was that the
cheque in question was never deposited with them for clearance and the pay-in-slip
relied upon by the Complainant as proof of deposit of the said cheque did not bear the
signatures of either the cashier or any other officer of the bank, which was the normal
practice at the relevant time. In his written version, Anil Kumar, while admitting that he
did introduce one Smt. Shila Rani and not Sheela Rani, when she was present in the
Bank with her husband, stated that he was neither aware if any cheque was deposited
in the newly opened account, nor of any withdrawals from the said account till the time
enquiries were made from him by the police. He also challenged the jurisdiction of the
State Commission to entertain the Complaint as the Metropolitan Magistrate, Delhi was
already seized of the matter.
4.
On consideration of the pleadings and the evidence adduced by the parties by
way of affidavits, the State Commission has come to the conclusion that deficiency in
service on the part of Karnataka Bank (OP-2), where the Complainant had allegedly
deposited the cheque or commission of fraud on their part was apparent; pendency of
Civil Suit by the drawer against Corporation Bank was not relevant and during the
pendency of the civil and criminal proceedings, the Complainant was entitled to seek
compensation for deficiency in service. Finally, the State Commission concluded as
follows:9. In our view the deficiency on the part of OP No. 2 is writ large as it
has not been able to show and prove as to how the cheque deposited with
it landed in OP No. 1 Bank. However role of OP No. 3 appears to be a
little doubtful and suspicious as to who he had introduced as he has not
come out with any explanation whether person namely Shila Rani was
known to him nor the particulars or address of Shila Rani.
10. So far as OP No. 1 is concerned, no material has been produced as

to the opening of account with it in connivance with the officials of OP No.
1 by OP No. 3 and the aforesaid Shila Rani.
11. In the given facts and circumstances of the case we hold OP No. 2
guilty for deficiency in service which in terms of section 2(1)(g) means any
fault, imperfection, shortcoming or inadequacy in the quality, nature and
manner of performance which is required to be maintained by or under
any law for the time being in force or has been undertaken to be
performed by a person in pursuance of a contract or otherwise in relation
to any service and direct it to make the payment of the cheque amounting
to `8,99,571/-.
12. As regards OP No. 1 it was negligent in clearing the self cheque

issued for such a big amount. In several cases we have taken a view that
any bank which clears cheque which is in the name of self and is of the
amount of more than a lac or say 2 or 3 lacs is expected to get in touch
with the person
who issues the cheque and confirm the value and whether the cheque of
this amount has been issued by him or not. Even if the bank is having a
valued customer still it is required to verify from the valued customer as to
the issuance of the cheque particularly when it is issued in the name of
self or is a bearer cheque as in ordinary course no man of prudence would
issue self or bearer cheque and hand over to its peon or clerk for
encashment particularly when the amount of cheque is running into lacs of
rupees. For this limited deficiency we direct the OP No. 1 to pay
compensation of `25,000/- as connivance or fraud or conspiracy of the
officials of OP No. 1 with Shila Rani and OP No. 3 has not been proved.
5.
The Karnataka Bank is aggrieved by the aforesaid directions and the Complainant
is dissatisfied because interest on the cheque amount has not been awarded. Hence,
these appeals. The Corporation Bank has, however, chosen not to challenge the order.
6.
I have heard Ld. Counsel for the parties and perused the pleadings and evidence
on record.
7.
It is manifest that for returning the finding to the effect that there was deficiency in
service on the part of Karnataka Bank, the State Commission has proceeded on the
premise that after deposit of cheque in their Branch for collection, it was taken back for
being deposited in a new account in the Corporation Bank (OP-1). Although, it is true
that the counterfoil of the pay-in-slip, placed on record, as a proof for deposit of the
cheque in question, bears the stamp of Karnakata Bank but in the written version the
receipt of such a cheque is categorically denied on the ground that the said pay-in-slip
does not bear signatures of any Branch Official. Therefore, the onus lay on the
Complainant to prove that the cheque was in fact deposited in the said Branch. Having
perused the evidence on record, I am of the view that the Complainant has failed to
discharge this onus. Mere averment in the Complaint, by itself, was not sufficient to
prove the factum of deposit of cheque for collection in Karnataka Bank. Even in the
Complaint there is no direct allegation of violation of any Rules and Regulations by
Karnataka Bank, one of the tests, though not conclusive, for deciding whether the Bank
was negligent. It is also pertinent to note that in all her letters and legal notices, the
allegation of the Complainant was that the Corporation Bank had failed to follow its
prescribed norms in permitting withdrawal of huge amounts from a newly opened
account. Similarly, in her legal notices to both the Banks, while threatening criminal
action and prosecution of the bank and its officials, the main allegation of the
Complainant was that the Corporation Bank and said Anil Kumar had connived to cheat
her. Again, in her letter dated 23.06.1998 addressed to the Chief Vigilance Officer of
Corporation Bank, alleging fraud of `8,90,000/-, the allegation was mainly against the
Corporation Bank. Significantly the suit, filed by the drawer, for recovery of the cheque
amount was only against the Corporation Bank and the said Anil Kumar. Karnataka
Bank was not arrayed as a party in the suit.
8.
In my opinion, therefore, mere production of counter-foil of pay-in-slip, bearing
rubber stamp of Karnataka Bank was not sufficient to prove that the cheque in question
was actually received by the Bank for collection. It would also be relevant to note that
according to the Complainant, the cheque was allegedly deposited in Karnakata Bank
by one Arun who was stated to be an employee of the Drawer Company, a suspicious
circumstance about the very nature of transaction between the Drawer and the Drawee
of the cheque in question. In light of the material on record, I find it difficult to hold that
there was deficiency in service on the part of Karnataka Bank and, therefore, Banks
Appeal must succeed. Having come to the said conclusion, there is no question of
award of any interest in favour of the Complainant on the cheque amount.
9.
Resultantly, the Appeal filed by Karnataka Bank (F.A No. 200 of 2008) is allowed
and the impugned order is set aside to that extent. Consequently, the Appeal filed by the
Complainant (F.A No. 206 of 2008) is dismissed. It goes without saying that since
Corporation Bank has not questioned the correctness of the order impugned in these
two appeals, there is no occasion to comment on any observation or direction by the
State Commission qua the said Bank.
10.
It is directed that the amount of Rs.8,99,571/-, stated to have been deposited by
the Karnataka Bank with this Commission, in compliance of order dated 14.05.2008,
and the Statutory amount of Rs.35,000/-, shall be refunded to them along with accrued
interest, if any.
12.
In the facts and circumstances of the case, there shall be no order as to costs.
.
(D.K. JAIN, J.)
PRESIDENT
Arun/yd

NEW DELHI
(From the order dated 20.05.13 in R.P. No. 54/2013
of Madhya Pradesh State Consumer Disputes Redressal Commission)
WITH
I.A. No. 5154/2013 (FOR STAY)
1.
DLM Enclave
46, Malviya Nagar,
2nd Floor,
Ram Laxmi Parisar
Bhopal
through Sh A K Dubey
2.
Sh A. K. Dubey
s/o Sh S N Dubey
46, Malviya Nagar,
2nd Floor,
Ram Laxmi Parisar,
Bhopal
... Petitioners/Opposite Parties
versus
Naresh Batham
HD 66, Abhiruchi Parisar,
Old Subhash Nagar
Bhopal
BEFORE
For the Petitioner
Mr. Prithu Garg, Advocate
For the Respondent
Mr. Ritesh Khare, Advocate

ORDER
Madhya Pradesh State Consumer Disputes Redressal Commission (for short the State
Commission) in RP No. 54/2013, DLM Enclave and Anr. vrsus Naresh Batham, vide
which the said petition against the order dated 30.04.2013, passed by the District
Consumer Disputes Redressal Forum, Bhopal in complaint no. 668/2012, was
dismissed.
2.
Brief facts of the case are that the complainant / respondent filed the consumer
complaint in question before the District Forum Bhopal, alleging that he entered into an
agreement dated 20.02.2000 with the petitioners/OPs according to which, he was to

purchase a plot for his own use from the petitioners/OPs at village Chhapari (Ratibar),
Tehsil Huzur, District Bhopal. Plot No. B-79, measuring 2000 sq. ft. @ ` 12/- per sq. ft
was allotted to him. As per the agreement, he was required to pay the registration fee
only at the time of execution of the registration deed. According to the complainant, he
was required to make payment of ` 24,000/- for the 2000 sq. ft. plot and ` 1000/- as
membership fee, in total ` 25,000/- to the petitioners/OPs. The complainant made
payment of this amount in full till 08.07.2003, but despite making payment, the OPs did
not take any action in getting the sale deed executed in his favour. The complainant
filed the consumer complaint in question, requesting for a direction to the
OPs/Petitioners to get the sale-deed registered in his favour or in the alternative, to
refund the cost of the flat @ ` 700/- per sq. ft., i.e., ` 14 lakh and ` 5 lakh as
compensation for harassment.
3.
In their written statement filed by the petitioners/OPs, it was contended that the
complaint was barred by limitation as per section 24A of the Consumer Protection Act,
1986, because it was made after a period of 12 years from the date of agreement and
after a period of 9 years from the date of last payment. Moreover, the relief in question,
could be allowed only by a civil court of competent jurisdiction. The petitioners also
denied that the price of the developed plot was ` 12 per sq. ft. In fact, ` 12 per sq. ft.
was the price of the undeveloped plot. The complainant was required to make
payments as per the payment schedule, failing which, the petitioner had the right to
increase the price of the plot. Moreover, the allotment was liable to be cancelled for
failure of the complainant to make payments in time. The petitioners/OPs also stated
that the price had been hiked to `30/- per sq. ft. and the complainant had been informed
accordingly.
4.
Before the District Forum, an application was made under section 24A of the
Consumer Protection Act, 1986, saying that the complaint should be dismissed on the
ground that it was time barred as per the section 24A of the Act. The District Forum
passed their order on this application on 30.04.2013, saying that it was a case of
continuing cause of action and hence, the consumer complaint was within the period of
limitation. The application of the petitioners was accordingly dismissed and the case
was adjourned for 16.05.2013. Against this order, the petitioners/OPs filed revision
petition before the State Commission and the State Commission vide their order passed
on 20.05.2013, dismissed the petition and upheld the view of the District Forum that it
was a case of continuing cause of action. It is against this order that the present
petition has been made.
5.
At the time of arguments before me, the learned counsel for the petitioners stated
that the allotment of plot in favour of the complainant had been cancelled by the
petitioners for his failure to deposit the amount in question and the money deposited
had also been forfeited. The learned counsel vehemently argued that the last
instalment was paid in the year 2003 and the agreement was made in the year 2000,
but the complaint in question had been made in October 2012 and hence, it was
hopelessly barred by limitation as per section 24A of the Act. The learned counsel
argued that even if it is believed that there was continuing cause of action, some
reasonable limit of time had to be observed for making such complaints. During the
intervening period, there had not been any application or representation on behalf of the
complainant. The learned counsel has drawn attention to the order of the Honble
Supreme Court in State Bank of India vs. M/s B.S. Agricultural Industries (I) [as
reported in JT 2009 (4) SC 191], in support of his arguments, stating that a consumer
complaint should not be admitted unless there was sufficient justification to condone the
delay as per section 24A of the Act. The learned counsel has also pointed out my
attention to the orders passed by the National Commission in K.S. Bhatia versus
Jeevan Hospital & Ors. [as reported in IV (2003) CPJ 9 (NC)] and the order of the
Honble Supreme Court in State of Orissa and ors. versus Md. Illiyas [as reported in
(2006) 1 SCC 275], and Kalyan Chandra Sarkar versus Rajesh Ranjan alias Pappu
Yadav [as reported in (2005) 2 SCC 42].
6.
In reply, the learned counsel for the complainant/respondent argued that the
District Forum and the State Commission had rightly observed that it was a case of
continuing cause of action and hence, section 24A of the Act was not applicable in the
present case. In accordance with the terms and conditions of the agreement, the
complainant had made full payment for the plot in question, but the petitioners had
failed to execute the registered saledeed for the reasons best known to them and
hence, they committed grave deficiency in service. Regarding the cancellation of plot,
the respondent stated that he had not received any intimation about cancellation or the
forfeiture of his money. The orders passed by the Fora below were, therefore, in
accordance with law and should be sustained. The learned counsel for respondent has
drawn attention to order dated 09.05.2012, passed by the Honble Supreme Court in CC
No. 8481/2012 Meerut Development Authority versus Mukesh Kumar Gupta and order
dated 18.02.2014, passed by this Commission in Revision Petition No. 1058/2014,
Ravi Developments Builder and Developers & Ors. versus Jayanthibhai V. Ranka.
7.
consideration to the arguments advanced before me. The admitted facts are that the
complainant and the petitioner entered into an agreement on 20.02.2000, a copy of
which is on record, in accordance with which, the complainant decided to purchase a
plot measuring 2000 sq. ft. in the real estate project, being developed by the petitioners
@ ` 12/- per sq. ft. Plot no. B-79 was allotted to the complainant and it has been clearly
stated in the agreement that the developer will not charge any other amount, except the
registration fees in future from the purchaser. It has also been stated that the developer
will provide the facilities of approach road to the plot, electricity, water and other
facilities. It has also been stated that the balance payment will be recovered according
to the rules of the Company and if regular payment is not made by the purchaser, the
rate (value) can be enhanced or the allotment can be cancelled. It is clear that in the
agreement itself, no schedule of payment has been given. It is also clear that the
complainant allottee was supposed to pay a sum of ` 25,000/- which he has already
paid till July 2003. It is, however, not made out anywhere as to why the registration
deed in question could not be executed between the parties. The petitioners have
taken the plea that the plot stood cancelled and the amount in question stood forfeited,
but there is no document on record to support their version.
8.
In view of the above facts, I do not find any legal infirmity, irregularity or
jurisdictional error in the order passed by the District Forum, duly affirmed by the State
Commission that this is a case of continuing cause of action, where the petitioners have
failed to explain the reasons for the non-execution of the saledeed, although they had
received full amount of the plot from the complainant. The provisions of section 24A
are, therefore, not applicable in the present case. In fact, the order passed by the
National Commission in Ravi Developments Builder and Developers & Ors. versus
Jayanthibhai V. Ranka (supra) is based on similar facts and it was observed by this
Commission that there was continuous cause of action, because the petitioners had not
handed over the possession, nor they had refunded the amount paid by the
complainant. In view of these facts, there is no merit in this revision petition and the
same is ordered to be dismissed and the orders passed by the Consumer Fora below
are confirmed. There shall be no order as to costs.
Sd/(DR. B.C. GUPTA)
PRESIDING MEMBER
RS/

NEW DELHI
of Madhya Pradesh State Consumer Disputes Redressal Commission)
Raja Beti,
w/o Late Shri Mahendra Singh,
r/o Suba Lal Ka Pura Pargana,
Muraina, M.P.
versus
Life Insurance Corporation of India,
through Branch Manager,
branch office Muraina,
near Hotel Radhika Palace,
State Bank of India, Drainage No. 2,
Gandhi Colony Road,
Morena, Madhya Pradesh
Respondent/OP
BEFORE
For the Petitioner
Ms. Swikriti Singhania, Advocate

Mr. Jaiveer Shergill, Advocate
Mr. Siddharth Singla, Advocate
For the Respondent
Mr. Pankul Nagpal, Advocate

ORDER
Madhya Pradesh State Consumer Disputes Redressal Commission (for short the State
Commission) in FA No. 1062/2010, Rajabeti versus Branch Manager, Life Insurance
Corporation of India (LIC), vide which the order dated 11.03.2010, passed by the
District Consumer Disputes Redressal Forum, Muraina (M.P.), dismissing the consumer
complaint in question, was confirmed.
2.
Briefly stated, the facts of the case are that the husband of petitioner/complainant
Raja Beti, Mahendra Singh got insurance policy from the LIC under Jeevan Anmol
Yojana Scheme for sum assured of ` 5 lakh through an agent and paid ` 2238/- as
premium on 28.06.2005 as first-six monthly instalment. Before issuing the policy, the
LIC got conducted medical examination of the insured Mahendra Singh through their
panel Doctor and then issued policy No. 202285636. The petitioner was appointed
nominee under the said policy. The said Mahendra Singh died on 30.07.2005 at his
village. An insurance claim was filed by petitioner and the requisite papers were
submitted, but the same was rejected vide letter dated 09.07.2008 by the LIC. The
petitioner filed the consumer complaint in question, following the repudiation of the
claim. In their written reply to the complaint before the District Forum, the LIC stated
that the insured had obtained the said policy in a fraudulent manner. He had concealed
information about his health condition before taking the policy. It was also alleged that it
was a case of impersonation, because some other person had been produced for
medical examination before the Doctor. The signatures of the insured on the proposal
form and the medical report were different. The District Forum after taking into account
the evidence of the parties dismissed the complaint and also stated that the
petitioner/complainant could seek remedy before a civil court of competent
jurisdiction. An appeal was filed by the petitioner-complainant against this order, which
was dismissed vide impugned order. It is against this order that the present petition has
been made.
3.
At the time of arguments, the learned counsel for the petitioner/complainant
stated that the claim had been wrongly repudiated by the OP/LIC saying that the
insured was suffering from a pre-existing disease. The learned counsel stated that
since the insured had been duly examined by a Doctor on behalf of the LIC, before
issuing the policy in question, the claim should not have been repudiated on this
ground. The LIC had not produced any evidence to show that the insured was suffering
from cancer. Regarding the impersonation factor, the learned counsel stated that the
handwriting experts produced by both parties had given conflicting reports. Further,
the Doctor who examined the insured had given a certificate on the proposal form that
the insured put his signatures in his presence and further, the answers given to various
questions at serial no. 10 onwards, had been correctly recorded. The policy had been
taken through Chander Pal, authorised agent and an affidavit had been given by the
said Chander Pal agent, saying that the medical report carries the signature of
Mahendra Singh only and he had identified Mahendra Singh before the said
Doctor. The said version cannot be belied by an affidavit filed by the Administrative
Officer (Legal) of the LIC. The learned counsel stated that there was no justification for
referring the matter to the civil court as held by the Consumer Fora below. The learned
counsel has drawn attention to an order passed by the Apex Court in Dr. J.J. Merchant
and others versus Shrinath Chaturvedi [as reported in (2002) 6 SCC 635], saying that it
was not proper to ask the parties to seek remedy in the civil court.
4.
In reply, the learned counsel for the respondent LIC stated that the main issue
involved in the present case related to impersonation made by the insured at the time
of medical examination by the panel doctor. Both the consumer foras below had given
concurrent findings that to go into the depth of the matter, the remedy should be to go to
a civil court of competent jurisdiction. He stated that the facts of the case Dr. J.J.
Merchant and others versus Shrinath Chaturvedi (supra), were not applicable in the
present case. The learned counsel has drawn attention to report of the hand-writing
expert, produced by the LIC, duly supported by an affidavit of an officer of the company
in which it had been stated that the signatures of Mahendra Singh on the medical report
did not tally with those on the proposal form. The impugned order was, therefore,
passed in accordance with law and should be sustained.
5.

6.
There are two important points involved in the present case, as to whether the
insured was suffering from a pre-existing disease and that he did not disclose the
factum of this disease before taking the insurance policy in question, AND whether
there was impersonation on the part of the insured by sending another person in his
place for medical examination before the Doctors. In so far as the point regarding
impersonation is concerned, the reports of two handwriting experts are on record, one
of which says that signatures on the proposal form and those on the medical report
belongs to the same person, whereas the report of other handwriting expert produced
by the LIC says that these signatures are of different persons. The agent of the LIC has
stated that he himself produced the insured before the Doctors for medical examination
and it was he who signed the papers. A perusal of the impugned order recorded by the
State Commission indicates that the State Commission has quoted the reports of two
handwriting experts and then simply stated that the appeal was being dismissed and the
order passed by the District Forum made absolute. The State Commission have not
given any reason whatsoever for having come to their conclusion. It was the duty of the
State Commission to analyse the facts and circumstances of the case and then pass
order, based on sound reasoning, but unfortunately, they have failed to do so. On this
point, the District Forum have also not carried out any discussion regarding the reports
of two handwriting experts, but simply jumped to the conclusion that the present dispute
should be decided by a competent civil court.
7.
In so far as, the non-disclosure of a pre-existing disease is concerned, there is no
material on record to believe that the insured was suffering from a pre-existing disease
and that he had knowledge about the same and he deliberately misstated the facts
while filling the proposal form. It was the duty of the District Forum and the State
Commission to examine this aspect thoroughly before coming to their conclusion.
8.
The petitioner has cited the order of the Honble Supreme Court in Dr. J.J.
Merchant and others versus Shrinath Chaturvedi (supra) in support of his argument
that the consumer fora were competent to take a decision in the matter and there was
no necessity to observe that the matter needed to be decided by a civil court of
competent jurisdiction. It has been observed by the Honble Apex Court in the said case
that the object and purpose of enacting the Consumer Protection Act, 1986 is to render
simple, inexpensive and speedy remedy to the consumers with complaints against
defective goods and deficient services. Their Lordships also observed that the National
Commission was headed by a retired Judge of the Apex Court and the State
Commission was required to be headed by a retired Judge of the High Court and hence,
they were competent to decide complicated issues of law or facts. The Honble Apex
Court observed that merely because it was mentioned that Commission or Fora was
required to have summary trial, it would hardly be a ground for directing the consumers
to approach the civil court.
9.
Respectfully following the judgement given by the Honble Apex Court in Dr. J.J.
Merchant and others versus Shrinath Chaturvedi (supra), it seems inappropriate in the
present case to have asked the parties to go to a competent civil court in the light of the
facts that the reports of two handwriting experts had already come on record. It was the
duty of the consumer fora to have examined these reports and in case, they found any
doubt, they could have referred the matter to a third independent handwriting expert to
give his opinion in the matter.
10.
Based on the discussion above, it is held that the orders passed by the State
Commission and the District Forum are not sustainable as they have been passed,
without carrying out proper appreciation of the facts and circumstances on record. The
orders passed by the State Commission and the District Forum are, therefore, set
aside. The present revision petition is allowed and case is remanded to the District
Forum with the direction that they should appoint an independent handwriting expert
and obtain his opinion, after which they should carry out an analysis of the entire factual
matrix of the case. The District Forum should also go into this question whether the
insured was suffering from any disease before taking of the policy and whether there
was a non-disclosure of the said disease while filing the proposal form. The parties
have been directed to appear before the District Consumer Disputes Redressal Forum,
Muraina (M.P.) on 6.08.2014 for further proceedings.
Sd/(DR. B.C. GUPTA)
PRESIDING MEMBER
RS/

NEW DELHI
(From the order dated 08.08.12 in First Appeal No. 265/2009 & 358/2010
of Jharkhand State Consumer Disputes Redressal Commission)
Parwati Devi
w/o late Ram Prasad Gupta,
r/o Parwati Bhandar,
Old BDO Office,
P.O. Bermo, District Bokaro,
Jharkhand 825102
through its authorised signatory
versus
Dr. Ramanand Jha,
Central Coal Fields Limited
Regional Hospital,
Dhori, P.O. Dhori,
P.S. Bermo, District Bokaro,
residing at quarter no. O/C-2,
Regional Colony Dhori,
P.O. Dhori, P.S. Bermo,
District Bokaro,
Jharkhand 825102.
Respondent/OP
BEFORE
For the Petitioner
Mr. Sushant Mahapatra, Advocate

with Mr. Aruni Poddar, Advocate
For the Respondent
Dr. M.C. Gupta, Advocate

Mr. Ritesh K. Pandey, Advocate
ORDER
Jharkhand State Consumer Disputes Redressal Commission (for short the State
Commission) in FA No. 265/2009, Parwati Devi versus Dr. Ramanand Jha and FA No.
358/2010, Dr. Ramanand Jha versus Smt. Parwati Devi, filed against the order dated
20.07.2009, passed by the District Consumer Disputes Redressal Forum, Bokaro,
allowing the consumer complaint no. 62/2008 and directing the payment of
compensation of `_12,000/- and litigation cost of ` 3000/- to the complainant by the
OP/Doctor. The State Commission vide impugned order dismissed the appeal filed by
the complainant, but allowed the appeal filed by the OP/Doctor and hence in the
process, the consumer complaint was ordered to be dismissed.
2.
Brief facts of the case are that the petitioner/complainant Parwati Devi is the
widow of Shri Ram Prasad Gupta, who was a patient of hypertension and diabetes
mellitus (DM) and was on regular treatment for the said disease. The said Ram Prasad
Gupta developed dyspnou with cough and mild chest pain on 15.04.2008, for which he
was admitted to Regional Hospital, Dhori under Central Coalfields Limited (C.C.L.)
where the OP Doctor R.N. Jha was on duty on 15.04.2008 at 3:30 AM. The said doctor
examined the patient and diagnosed DM with hypertension with acute Myocardial
Infarction with CCF. It has been stated that the Doctor gave injection streptokinase to
the patient, which led to Cerebral Haemorrhage. When the condition of the patient
worsened, he was referred to Bokaro General Hospital (BGH) on the same day at
8:30AM. The patient, however, died at BGH on 25.04.2008 at 3:00AM. It has been
alleged that the said doctor had indulged in medical negligence by giving injection
streptokinase, because the said injection can be given only by a specialist Doctor,
whereas the OP Doctor was holding a MBBS degree only. Further, the said hospital
was not properly equipped to deal with said kind of cases, as there was no provision for
CCU or CT scan in the said hospital. It is also alleged that the injection streptokinase is
given only when the blood pressure (B.P.) of the patient is less than 160/100; however,
in this case the BP was 210/130. The complainant filed the consumer complaint in
question, seeking direction to the OP/ Doctor to make payment of ` 10 lakh as
compensation and ` 6000/- as cost of treatment.
3.
In the written statement filed by the OP Doctor, it was stated that the said doctor
was a permanent employee of the Central Coalfields Limited (CCL) and like other
Doctors, he had to perform emergency duty as per the roaster issued by the
Hospital. When the husband of the complainant was admitted in the Hospital on
15.04.2008, he was on duty to handle the case in the emergency. The OP/Doctor
stated that before starting the treatment, he had advised the attendants of the patient to
shift him to the BGH, given his deteriorating condition. However, the said
attendants/relatives requested him to continue the treatment. The patient was then
admitted and on the basis of previous history, as disclosed by the patient and his son
and also on clinical examination, it was detected that the patient was suffering from
Mycordial Infarction with heart failure. The Doctor has stated that it was wrong to say
that streptokinase was administered when the BP was 210/130. The said medicine was
purchased from a chemist shop which opens only after 6:00 AM. The said medicine
was given when the BP was around 150/90. The Doctor has denied the allegations
levelled in the complaint, stating that he treated the patient to the best of his ability and
it was not necessary that the injection streptokinase could be given by a specialist
doctor only.
4.
The District Forum after taking into account the evidence of the parties, allowed
the complaint and directed payment of `_12,000/- as compensation and ` 3000/- as cost
of litigation by Doctor to the complainant. Two appeals were made against this order
one by the complainant Parwati Devi and the other by the OP, Dr. R.N. Jha. The State
Commission vide impugned order dismissed the appeal filed by the complainant, but
allowed the appeal filed by the OP Doctor, consequently, dismissing the consumer
complaint in question.
5.
It was stated by the learned counsel for the petitioner during hearing that injection
streptokinase is given when the BP of the patient is less than 160/100 mm of

Hg. However, in this case, the injection was administered at 3:30AM when the BP of
the patient was 210/130. It has been stated in the report given by Doctor Neeraj
Prasad, Department of Cardiology, Abdur Razzaque Ansari Memorial Weavers Hospital
Apollo Hospital group that streptokinase is a life-saving drug, which is given within two
hours of the onset of symptoms. It is given when the BP is less than 160/100 mm of
Hg. It has also been stated by Dr. Prasad that all qualified doctors and even trained
paramedics can give streptokinase. Learned counsel argued that the original record of
the Hospital had not been made available to them and there was over-writing/
manipulation in the record. The learned counsel stated that there was overwriting in the
medical prescription. As observed by Doctors of BGH, the patient had died due to
Cerebral Haemorrhage, which occurred due to the streptokinase injection given at high
BP.
6.
In reply, the learned counsel for respondent stated that the allegation of medical
negligence on the part of the OP/Doctor was not substantiated from the facts on
record. The medical negligence could be attributed only, if the diagnosis done by a
Doctor was wrong, or the plan of treatment was wrong or the treatment administered to
the patient was wrong in any manner. In the present case, none of these factors were
there and hence, the charge of medical negligence was not established. The order
passed by the State Commission was, therefore, in accordance with law. The learned
counsel also stated that the patient was under the supervision of a team of four Doctors,
when the said injection was given. Moreover, the onus to prove that it was a case of
medical negligence, was on the complainant. The patient had been shifted to the
B.G.H. within a period of 4 to 5 hours from admission in the CCL hospital. The OP had
advised shifting to that hospital, when the patient was brought before him, but the
relatives of the patient were not prepared to take him to BGH. The learned counsel
stated that the injection in question had been purchased around 6 AM from the Chemist
shop. The said shop opens for business around this time only. Referring to the
allegation of manipulation in the records etc., the learned counsel stated that relevant
record was always kept in the hospital. If the complainant is levelling any allegation
regarding forgery in record etc., they should have been impleaded the hospital as
necessary party.
7.
The learned counsel for the petitioner replied that as per the usual practice, the
medicine is given from the stock of the hospital and later on, the same is replenished
after making purchase from the chemist shop. The learned counsel further stated that
the allegation of making forgery in the record had not been controverted by the other
party. Moreover, the four doctors said to have been present during treatment belonged
to the same hospital.
8.

9.
From the facts on record, it is evident that the patient was in a serious condition
when he was brought to the CCL Hospital, Dori. It has been stated by the OP/Doctor in
the written statement filed before the District Forum that before starting treatment of the
patient, the OP/Doctor had advised to shift the patient to BGH for better
treatment. However, the attendants accompanying the patient insisted that the
treatment should be started at the CCL Hospital only. It is also admitted fact that within
a few hours of admission in the CCL Hospital, the patient was shifted to BGH, where he
died after ten days, i.e., 25.04.2008.
10.
The main allegation made against the OP/Doctor says that the injection
streptokinase was administered although the OP/Doctor was not qualified to do so and
moreover, the injection was given when the BP of the patient was very high and the
hospital was not equipped to deal with any emergency situation, following the
injection. In this regard, the information given by Dr. Neeraj Prasad, Department of
Cardiology, Abdur Razzaque Ansari Memorial Weavers Hospital, is quite material in
which Dr. Prasad has stated that streptokinase injection can be given by all qualified
MBBS doctors and also by trained paramedics. It is clear, therefore, that the OP Doctor
has not indulged in any negligence, just by giving the said injection. Further, there is an
affidavit on record given by four Doctors of the CCL Hospital, namely, Dr. S.C. Biswal,
Dr. A.K. Dubey, Dr. Arvind Kumar and Dr. K.R.R. Singh which says that the OP/Doctor,
Dr. Ramanand Jha consulted all of them and other doctors as per the system and
practice in their hospital and it was professionally, unanimously decided to inject
streptokinase for saving the life of the patient. They have also given a certificate to this
effect. It has also been stated by these Doctors that all of them motivated the patients
relatives to take the patient to BGH and only after that, the patient was shifted.
11.
In the light of the above facts, it is clear that the State Commission has carried out
a rational analysis of the facts and circumstances on record and came to the conclusion
that the allegation of medical negligence against the OP/Doctor was not proved. It is
made out from the facts stated above that the decision to inject streptokinase was taken
by a team of four doctors. It is also clear that at the initial stage itself, the relatives of
the patient were advised to take him to BGH, but they themselves decided not to do so.
12.
From the above discussion, it is clear that there is no irregularity, illegality or
jurisdictional error in the orders passed by the State Commission which may merit any
interference at the revisional stage. This petition is, therefore, ordered to be dismissed
and the order passed by the State Commission is upheld. There shall be no order as to
costs.
Sd/(DR. B.C. GUPTA)
PRESIDING MEMBER
RS/

NEW DELHI
of Kerala State Consumer Disputes Redressal Commission)
1. Sir Dorabji Tata Trust Aided Hospital
Chottanikkara,
Rep. by its Secretary Dr. S. Krishna Iyer.
2. Dr. Paul Chaley
Sir Dorabji Tata Trust Aided Hospital,
Chottanikkara.
3. Dr. S. Krishna Iyer
Chottanikkara.
... Petitioners/OPs
versus
Rajeswari, w/o late Hariharan
Puthukunnathu House,
Kadungammangalam,
Thiruvankulam P.O., Ernakulam
Kerala
BEFORE
For the Petitioner
Mr. Jogy Scaria, Advocate
For the Respondent
Mr. Nishe R. Shonker, Advocate

ORDER
Kerala State Consumer Disputes Redressal Commission (for short the State
Commission) in FA No. 279/2005, Sir Dorabji Tata Trust Aided Hospital Chottanikkara
versus Rajeswari, vide which, while partly allowing appeal, the order dated 10.01.2005,
passed by the District Consumer Disputes Redressal Forum, Ernakulam, allowing the
consumer complaint no. 294/2003 filed by the present respondent, was modified.
2.
Brief facts of the case are that the complainant/respondent is the widow of
deceased Hariharan who is stated to have died due to rat fever (leptospirosis) on
16.12.2002. It is stated in the complaint that Hariharan, 50 years old, had body pain
and fever on 10.12.2002, after he returned from work. He felt severe pain and high
fever on 13.12.2002, whereupon he was taken to the petitioner hospital and admitted as
inpatient. However, his physical condition deteriorated day by day. On 15.12.2012, the
complainant wanted discharge of the patient for admitting him in Amrita Institute of
Medical Science and Research Centre (AIMS). However, OP-4/Petitioner 3 told his
relatives that he did not find any reason to discharge the patient to be referred to Amrita
Hospital. On 16.12.2004, after testing urine, blood and spit at about 1:30 AM, OP4/Petitioner 3 informed the complainants relatives that Hariharan was suspected to be
infected by jaundice, for which there was no facility for treatment at their hospital. The
complainant got the patient discharged at about 1:00_PM and brought him to Amrita
Hospital around 2:00 PM on the same day. He was taken to the medical intensive care
unit of the hospital, where after various tests, the patient was detected to be inflicted by
rat fever (leptospirosis). His liver and kidney had been damaged irretrievably due to
non-treatment for rat fever, and the patient died that very day at 10.05 PM. The
complainant alleged that death could have been avoided, had the disease been
detected at the petitioner hospital and treated in time. She filed the consumer complaint
in question, requesting directions to the OPs to pay a sum of ` 5 lakh to the
complainant, alongwith the cost of litigation.
3.
In their written reply before the District Forum, the petitioner stated that the
patient was admitted in their hospital as a case of normal viral fever, as there was no
other complaint of any disease from the patient. It is also mentioned in the written
response that since there were some other cases of leptospirosis, the chances of rat
fever to this patient were also kept in mind. Doxycycline capsule 100mg was also
given. Further, the only test for determination of leptospirosis is by doing culture of
blood, taken from the body of the patient and it takes minimum 10 days for getting the
result of culture test. The patient was regularly attended to by the Doctors at the
hospital and hence, there was no negligence of any kind on their part.
4.
The District Forum, after taking into account the evidence of the parties before
them, allowed the complaint in question. The present petitioners, who are OPs 1, 2 & 4
in the complaint were directed to pay a sum of ` 2 lakh, jointly and severally, as
compensation to the complainant alongwith ` 2,000/- as cost. OP-3 Dr. Thanky was
discharged, saying that she was a paediatrician and had not treated the patient. OP 1,
2 & 4 filed appeal before the State Commission against the order of the District Forum
and the State Commission vide impugned order, modified the order of the District Forum
and reduced the amount of compensation from `_2_lakh to ` 1 lakh, while retaining the
cost of ` 2000/-. It is against this order that the present petition has been made.
5.
that the treatment of the patient had been done in accordance with the accepted
protocol and no negligence of any kind had been shown in the matter. The learned
counsel argued that for finding out whether the patient was suffering from leptospirosis
(rat fever), the blood culture test has to be done and it takes about 7 to 10 days for
getting report of the said test. The learned counsel has drawn our attention to the
statement of Dr. Ganapathy Rao from AIMS, Department of Medicine in which, he has
stated that the time of 7 to 8 days is required for diagnosis. The learned counsel stated
that there had been no malafide action on their part and hence, they should not be
required to pay any compensation to the complainant. In reply, the learned counsel for
respondent stated that there had been inordinate delay on the part of the petitioners to
refer the patient to other hospital, although they have admitted that they had no facility
to treat the patient suffering from leptospirosis (rat fever). It has been stated in their
written version before the State Commission that the possibility of suffering from rat
fever was kept in mind and some medicines were also given to the patient, which shows
it clearly that the petitioners were aware of the possibility that the patient could be
suffering from rat fever. The learned counsel stated that in the statement of Dr.
Ganapathy Rao, from AIMS, it has also been stated that diagnosis can be made within
24 hours, by applying the anti-body test. The learned counsel argued that the
petitioners had themselves admitted that they had no facilities to treat such a patient
and hence, they should have referred him to a better hospital. The order passed by the
State Commission was, therefore, in accordance with law.
6.

7.
The State Commission have observed in the impugned order as follows:8.

We find that the very admission by DW1 the 4th
opposite party doctor at opposite party hospital that they
suspected the deceased was having rat fever on the next
day of admission itself ie, on 14-1-02 considerably
strengthen the case of the complainant that there was lapse

on the part of opposite parties in not referring the diseased to
a higher centre. It is also admitted in the version that there
were reported cases of rat fever and that they treated the
deceased keeping in mind the above fact. We find that the
above statement is not sufficient to explain the delay the
referring the deceased to a higher centre. We find that there
is serious lapse on the part of the opposite parties in not
referring the deceased to a higher centre at the earliest. The
deceased was critical when he was admitted to the AIMS. It
is noted in the treatment records of AIMS that the
complainant was having Weils disease and acute renal
failure for which mortality rate is very high as noted in
Harrisons.
8.
It is clear from above that the Doctors at the petitioner hospital had not ruled out
the possibility that the patient might have been suffering from rat fever. The petitioners
have also admitted during the proceedings before the Consumer Fora that they did not
have proper facilities to treat the patients suffering from rat fever. They have, however,
taken the line of argument that the diagnosis for rat fever can only be made after blood
culture test which takes 7 to 10 days. This version of the petitioners, however, does not
get substantiated from the fact that the Doctors at the other hospital were able to
diagnose within a matter of hours that the patient was suffering from leptospirosis (rat
fever). It has come in the statement of Dr. Ganapathy Rao also that the diagnosis can
be made within 24 hours by antibody test.
9.
From the above facts, it is quite clear that the concurrent findings of the District
Forum and the State Commission by which they have held the petitioners liable for
medical negligence cannot be brushed aside, based on the material on record. The
State Commission, in their well-reasoned judgement decided to reduce the quantum of
compensation from ` 2 lakh to ` 1 lakh. I do not find any irregularity, illegality or
jurisdictional error in the said order passed by the State Commission. This revision
petition is, therefore, without any merit and it is ordered to be dismissed. The order
passed by the State Commission stands confirmed. There shall be no order as to
costs.
Sd/(DR. B.C. GUPTA)
PRESIDING MEMBER
RS/

NEW DELHI
of Kerala State Consumer Disputes Redressal Commission)
1. Sir Dorabji Tata Trust Aided Hospital
Chottanikkara,
Rep. by its Secretary Dr. S. Krishna Iyer.
2. Dr. Paul Chaley
Chottanikkara.
3. Dr. S. Krishna Iyer
Chottanikkara.
... Petitioners/OPs
versus
Rajeswari, w/o late Hariharan
Puthukunnathu House,
Kadungammangalam,
Thiruvankulam P.O., Ernakulam
Kerala
BEFORE
For the Petitioner
Mr. Jogy Scaria, Advocate
For the Respondent
Mr. Nishe R. Shonker, Advocate

ORDER
Kerala State Consumer Disputes Redressal Commission (for short the State
Commission) in FA No. 279/2005, Sir Dorabji Tata Trust Aided Hospital Chottanikkara
versus Rajeswari, vide which, while partly allowing appeal, the order dated 10.01.2005,
passed by the District Consumer Disputes Redressal Forum, Ernakulam, allowing the
consumer complaint no. 294/2003 filed by the present respondent, was modified.
2.
Brief facts of the case are that the complainant/respondent is the widow of
deceased Hariharan who is stated to have died due to rat fever (leptospirosis) on
16.12.2002. It is stated in the complaint that Hariharan, 50 years old, had body pain
and fever on 10.12.2002, after he returned from work. He felt severe pain and high
fever on 13.12.2002, whereupon he was taken to the petitioner hospital and admitted as
inpatient. However, his physical condition deteriorated day by day. On 15.12.2012, the
complainant wanted discharge of the patient for admitting him in Amrita Institute of
Medical Science and Research Centre (AIMS). However, OP-4/Petitioner 3 told his
relatives that he did not find any reason to discharge the patient to be referred to Amrita
Hospital. On 16.12.2004, after testing urine, blood and spit at about 1:30 AM, OP4/Petitioner 3 informed the complainants relatives that Hariharan was suspected to be
infected by jaundice, for which there was no facility for treatment at their hospital. The
complainant got the patient discharged at about 1:00_PM and brought him to Amrita
Hospital around 2:00 PM on the same day. He was taken to the medical intensive care
unit of the hospital, where after various tests, the patient was detected to be inflicted by
rat fever (leptospirosis). His liver and kidney had been damaged irretrievably due to
non-treatment for rat fever, and the patient died that very day at 10.05 PM. The
complainant alleged that death could have been avoided, had the disease been
detected at the petitioner hospital and treated in time. She filed the consumer complaint
in question, requesting directions to the OPs to pay a sum of ` 5 lakh to the
complainant, alongwith the cost of litigation.
3.
In their written reply before the District Forum, the petitioner stated that the
patient was admitted in their hospital as a case of normal viral fever, as there was no
other complaint of any disease from the patient. It is also mentioned in the written
response that since there were some other cases of leptospirosis, the chances of rat
fever to this patient were also kept in mind. Doxycycline capsule 100mg was also
given. Further, the only test for determination of leptospirosis is by doing culture of
blood, taken from the body of the patient and it takes minimum 10 days for getting the
result of culture test. The patient was regularly attended to by the Doctors at the
hospital and hence, there was no negligence of any kind on their part.
4.
The District Forum, after taking into account the evidence of the parties before
them, allowed the complaint in question. The present petitioners, who are OPs 1, 2 & 4
in the complaint were directed to pay a sum of ` 2 lakh, jointly and severally, as
compensation to the complainant alongwith ` 2,000/- as cost. OP-3 Dr. Thanky was
discharged, saying that she was a paediatrician and had not treated the patient. OP 1,
2 & 4 filed appeal before the State Commission against the order of the District Forum
and the State Commission vide impugned order, modified the order of the District Forum
and reduced the amount of compensation from `_2_lakh to ` 1 lakh, while retaining the
cost of ` 2000/-. It is against this order that the present petition has been made.
5.
that the treatment of the patient had been done in accordance with the accepted
protocol and no negligence of any kind had been shown in the matter. The learned
counsel argued that for finding out whether the patient was suffering from leptospirosis
(rat fever), the blood culture test has to be done and it takes about 7 to 10 days for
getting report of the said test. The learned counsel has drawn our attention to the
statement of Dr. Ganapathy Rao from AIMS, Department of Medicine in which, he has
stated that the time of 7 to 8 days is required for diagnosis. The learned counsel stated
that there had been no malafide action on their part and hence, they should not be
required to pay any compensation to the complainant. In reply, the learned counsel for
respondent stated that there had been inordinate delay on the part of the petitioners to
refer the patient to other hospital, although they have admitted that they had no facility
to treat the patient suffering from leptospirosis (rat fever). It has been stated in their
written version before the State Commission that the possibility of suffering from rat
fever was kept in mind and some medicines were also given to the patient, which shows
it clearly that the petitioners were aware of the possibility that the patient could be
suffering from rat fever. The learned counsel stated that in the statement of Dr.
Ganapathy Rao, from AIMS, it has also been stated that diagnosis can be made within
24 hours, by applying the anti-body test. The learned counsel argued that the
petitioners had themselves admitted that they had no facilities to treat such a patient
and hence, they should have referred him to a better hospital. The order passed by the
State Commission was, therefore, in accordance with law.
6.

7.
The State Commission have observed in the impugned order as follows:8.

We find that the very admission by DW1 the 4th
opposite party doctor at opposite party hospital that they
suspected the deceased was having rat fever on the next
day of admission itself ie, on 14-1-02 considerably
strengthen the case of the complainant that there was lapse

on the part of opposite parties in not referring the diseased to
a higher centre. It is also admitted in the version that there
were reported cases of rat fever and that they treated the
deceased keeping in mind the above fact. We find that the
above statement is not sufficient to explain the delay the
referring the deceased to a higher centre. We find that there
is serious lapse on the part of the opposite parties in not
referring the deceased to a higher centre at the earliest. The
deceased was critical when he was admitted to the AIMS. It
is noted in the treatment records of AIMS that the
complainant was having Weils disease and acute renal
failure for which mortality rate is very high as noted in
Harrisons.
8.
It is clear from above that the Doctors at the petitioner hospital had not ruled out
the possibility that the patient might have been suffering from rat fever. The petitioners
have also admitted during the proceedings before the Consumer Fora that they did not
have proper facilities to treat the patients suffering from rat fever. They have, however,
taken the line of argument that the diagnosis for rat fever can only be made after blood
culture test which takes 7 to 10 days. This version of the petitioners, however, does not
get substantiated from the fact that the Doctors at the other hospital were able to
diagnose within a matter of hours that the patient was suffering from leptospirosis (rat
fever). It has come in the statement of Dr. Ganapathy Rao also that the diagnosis can
be made within 24 hours by antibody test.
9.
From the above facts, it is quite clear that the concurrent findings of the District
Forum and the State Commission by which they have held the petitioners liable for
medical negligence cannot be brushed aside, based on the material on record. The
State Commission, in their well-reasoned judgement decided to reduce the quantum of
compensation from ` 2 lakh to ` 1 lakh. I do not find any irregularity, illegality or
jurisdictional error in the said order passed by the State Commission. This revision
petition is, therefore, without any merit and it is ordered to be dismissed. The order
passed by the State Commission stands confirmed. There shall be no order as to
costs.
Sd/(DR. B.C. GUPTA)
PRESIDING MEMBER
RS/

Judgments of April 2014

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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3126 OF 2008

Mr. Punit Bhalla, Advocate with Ms. Chetna Bhalla, Advocate

For the Respondent:

Mr. Randhir Jain, Advocate with Ms. Ruchika Jain, Advocate

Pronounced on : 1st April, 2014

Respondent/complainant had filed a consumer complaint under section 12 of the

passed the following directions ;

State Commission, which dismissed the same.

as well as written submissions filed by the respondent.

whether respondent comes within the ambit of a consumer as defined under

without the written permission of the complainant from the said

Under such circumstances, the respondent would not be a consumer as per

Section 2 (1) (d) (ii) of the Act.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3947 OF 2011

1. Union of India Through Secretary Department of Posts Dak Bhawan, Sansard

Assistant Post Master Hear Post Office, Sikar, District Sikar

Head Post Master Head Post Office, Sikar, District Sikar

Superintendent of Post Offices Sikar Postal Division, Sikar

Chief Post Master General (Rajasthan Circle), Jaipur

Mr. Ruchir Mishra, Advocate

For the Petitioner

Mr. Amit Kumar Chawla, Advocate

1st April, 2014

was made in compliance of clarification 8 to Rule 3 (1) of PPF Regulations,

passed the following order ;

Aggrieved by the order of the District Forum, the petitioners filed an

Hence, the revision petition.

Along with present revision petition, an application seeking condonation of delay

4. Further, the Applicant took time to get the necessary instructions

case Anshul Aggarwal Vs. New Okhla Industrial

Authority, IV(2011) CPJ 63(SC) has observed ;

wherever conferred upon it by the relevant statutes.

Pursuing stale claims and multiplicity of proceedings in

List on 9.5.2014 for compliance.

(V.B. GUPTA) PRESIDING MEMBER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1397 OF 2014

Mr. M.U. Khan, Advocate

Pronounced on : 1st April, 2014

Disputes Redressal Commission,

Chandigarh (short, State Commission) in First Appeal No.515 of 2013.

which reads as under ;

That there is no deficiency on the part of the petitioners. At the time of

dated 25.10.2013 observed that ;

Refused to pursue after getting the confirmation from

To make payment of an amount of Rs.1,40,000/paid by the complainants to them plus an amount

To make payment of an amount of Rs.50,000/- to

The liability of the Ops shall be joint and several.

13. After giving our thoughtful consideration to the submissions

Hence, this revision petition.

The main grounds for the revision are that ;

Grave miscarriage of justice is occasioned to the

That learned State Commission, Chandigarh in disallowing the

If any one of your document found fake.

Refused to pursue after getting the confirmation from employer.

GANGA IMMIGRATION & EDUCATION SERVICES (P) LTD.

It is extremely vague and general. It gives no indication as to the services to be

List on 9.5.2014 for compliance.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

For the Petitioner : Mr. Brijender Kaushik, Advocate

PRONOUNCED ON 1st APRIL, 2014

Shri Bhupender Singh Ghangas, the complainant, in this case, is a permanent