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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI
ORIGINAL PETITION NO. 51 OF 1999
M/s. Packer Sea Food (Pvt) Limited Through its Managing Director Shri C.P.Azariah Samuel Raj Having its registered office at College Road, Nagercoil-1, Kanyakumari District And having factory At 74/2 Kulasekarapuram Village, Vazukamparai, Agastheeswaram Taluk, Kanyakumari District
….Complainant
Versus
1. The Tamilnadu Industrial Investment Corporation Ltd., 27 Whites Road, Madras: 600014 2. The Branch Manager, Tamilnadu Industrial Investment Corporation Ltd, 37 Cape Road, Nagercoil- 629001
.....Opposite parties
BEFOREHON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER For the Complainant : Mr. M.L. Mahajan, Advocate For the Opposite parties : Mr. K.P. Toms, Advocate
PRONOUNCED ON:02.01.2013.ORDER
PER MR.VINAY KUMAR, MEMBER
M/S Packer Sea Food Private Limited has filed this complaint against the Tamil
Nadu Investment Corporation. The complaint arises from alleged delay in disbursal and
part non-disbursal of a loan of Rs.70 lakhs, sanctioned by the OPs to the Complainant
for setting up a marine products processing unit.
2. The case of the Complainant is that the loan was sanctioned on 20.10.1993 but
only Rs.15.3 lakhs had been disbursed till 18.3.1994. By the time the complaint was
filed, only Rs.44.83 lakhs had been released and remaining balance of Rs.25.17 lakhs
and subsidy were never released. This was inspite of the fact that the Principal, Govt.
College of Engineering, Tirunelveli, appointed by the OPs to evaluate the plant and
machinery, had reported that the building was worth Rs.41.58 lakhs, excluding cost of
the land.
3. The complaint petition gives details of alleged “dillydallying attitude” of the OPs,
which eventually forced him to write to the Complainant on 7.2.1996 stating that it was
left with no alternative but to seek funding facilities from another source. This letter
(Annexure P-49) stated:-
“Therefore this is to require you to release the documents that we have deposited with you as additional collateral security to enable us tohypothicate with other financiers. It is also noted that you yourself and the corporation alone shall be liable for losses, and other damages that we have incurred on account of “Dilly-dallying” tactics adopted by you for the past 1 ½ years in the disbursement to our project. Since our project is nearing completion we have been driven to this extreme step as you have been dragging the matter unnecessarly and purposely for reasons best known to yourself.”
4. According to the Complainant, the project has suffered delay of 2½ years due to
failure of the OPs to make timely and sufficient disbursal of the sanctioned loan. Even
after arrangements were made to raise necessary funding from another source, the
NOC was not released by the OPs. Therefore, the Complainant has sought the following
reliefs against the OPs, for loss caused by their negligence, delay and failure to provide
proper service—
“ (i) Interest on delayed completion Rs.25.74
(ii) Cost escalation Rs.95.99
(iii) interest arising out of non-release of sanctioned
amount by respondent Rs.2.97
(iv) interest loan on account of delayed claim of
subsidy amount Rs.1.94
(v) EB minimum charges payable for the delayed
Period Rs.13.50
(vi) mental agony suffered because of the aforesaid
causes Rs.10.00
(vii) loss of profit including contacting other persons
for arranging loans/lacs Rs.50.00”
5. During the course of these proceedings, the Commission identified six issues for
decision and directed on 6.9.2010 that—
“The complainant shall submit brief written arguments on the six issues, which are required to be decided in this complaint with reference to the evidence on each head and the quantum of claim on each head, copy of the same be furnished to the counsel for the opposite party within four weeks. Thereafter, counsel for the opposite party shall file item-wise reply on each issue and furnish a copy of the same to the counsel for the complainant within four weeks. Parties are at liberty to add issues to be decided”.
Accordingly, a brief written argument was filed by the Complainant on 9.11.2010. In
this, the following issues/heads are listed:-
“a. Interest on Rs.25 lack taken from private party.
b. Increase of cost or propitiate escalation cost.
c. Delay in release the subsidy by TIIC its actual cost/effect.
d. Minimum Electricity Charges (EB)
e. Business loss
f. Mental Agony”
6. Per contra, the case of the OPs is that it is a corporation set up by the
government of Tamil Nadu with branches all over the States and with the avowed
objective of “extending financial assistance to various entrepreneurs in the State
of Tamilnadu for development of industries in the State”. The loan to the Complainant
was sanctioned on 20.10.1993 with clear terms and conditions, which were accepted by
it on 17.1.1994. As per Clause 43 therein, collateral security for the loan was required to
be provided by the Complainant. Delay in this, led to delay in disbursal of loan. OPs
have further alleged that:-
a) The Complainant sought sanction for purchase of two generator sets and an
additional Plate Freezer from suppliers different from the ones originally purposed.
b) The procedure for payment required the advance amount to be paid to the supplier
through the opposite parties. Therefore, details were sought from the Complainant for
change of suppliers of generator sets and motors.
d) As per norms of disbursement release of loan amount for purchase of assets not
envisaged in the scheme, was not permissible. Such purchases could be made from
contingency. But, contingency itself could be utilized after implementation of the full
project. All equipments considered necessary for the project, should have been included
by the complainant in the original project itself.
e) Inspection of the factory building by the regional office of OPs revealed that the
Complainant had not purchased any machinery as per the bills submitted.
f) The machineries were erected in the factory premises by a fabricator, who was not
a supplier as per the sanctioned scheme.
g) Principal Government College of Engineering Tirunelveli had valued the building at
Rs.39,56,245/- and the machinery at Rs.21,60,000/-. The valuation of machinery here
was questioned by the OPs in their letter of 7.3.1994.
h) If the borrower requests for change of equipment suppliers, the OPs have to verify
the capacity, market reputation and comparative cost of the proposed supplier. In the
case of generator sets, the change of supplier was agreed by the OPs within a month,
but the supply could not be effected as the Complainant did not accept the condition of
payment after delivery of the generator sets.
i) When the Complainant asked for NOC to raise working capital from another
financier, there was an overdue of Rs 17 lakhs in his loan account. Therefore, the
Complainant was asked to clear the overdue for issue of the NOC.
j) Even after the loan account between the two parties was settled, the Marine
Products Export Development Authority, Govt. of India informed that invoices/bills and
receipts submitted by the Complainants to the OPs are fabricated and false.
7. We have carefully considered the pleadings and evidence brought on record
by the two sides and heard their counsels, Mr M L Mahajan for the complainant and Mr
K P Toms for the OPs. Mr Mahajan drew our attention to the sixteen page document
(signed by the lender/OPs on 28.10.1993) containing the details of sanction of this term
loan of Rs 70 lakhs (Annexure P-2). It projects total cost of the venture as Rs 155 lakhs,
to be funded in the following manner—
Loan from the OP Rs 70 Lakhs
Subsidy/State capital Rs 15 lakhs
Capital Rs 50 lakhs
Unsecured loans Rs 20 lakhs
The loan of 70 lakhs was sanctioned for construction of the factory building and
purchase of machinery required for the project. It was to be repaid in 24 instalments,
after a moratorium of 24 months from the date of the first disbursal. As per the terms, the
disbursal for civil works and equipment was to be made after inspection and valuation.
For this, a valuer was appointed by the OPs. Learned counsel pointed out that
the valuer (Government College of Engineering,Tirunnelveli) submitted reports to the
OPs, from time to time. Their reports from 3.11.1993 to 6.3.1994 (i.e. before the first
disbursal by the OPs) show that an investment of Rs 44.95 lakhs in land & building
and Rs 3.86 lakhs in machinery had already been made by the complainant.
8. Mr M L Mahajan, learned counsel for the complainant, argued that the total
amount released by the OPs was only Rs 44.83 lakhs. No release was made after
March 1995. Therefore, the balance of Rs 25.17 lakhs had to be raised from private
sources at very high rates of interest, to ensure completion of the project.
9. In reply, Mr K P Toms, learned counsel for the OPs filed additional written
arguments on 24.9.2012 with records of disbursement to show that as on 29.3.2005, in
all Rs 44.83 lakhs towards the term loan and Rs 9.51 lakhs towards subsidy had been
released to the complainant. Learned counsel argued that subsidy and the term
loan together constituted only 55% of the project cost. Therefore, the commitment of the
OPs was limited to funding 55% of the asset created under the project. The borrower
had created assets worth Rs 89.36 lakhs only. The OPs were required to release only
55% thereof i.e. Rs 49.15 lakhs. Accordingly, actual release fell short by Rs 4.32 lakhs
only which was retained by the OPs towards cost of the machinery supplied by M/S
Rank Engineering Works. In this context, Mr K P Toms referred to the written response
filed by the OP in this Commission on 17.5.1999. Para 23 therein states—
“With regard to paragraph 11 of the complaint, the statement issued by the banker for the account of M/s Rank Engineering Works did not a have any authenticity. M/s. Lakshmi Vilas Bank, Nagercoil said to have issued statement of account for the company M/s Rank Engineering Works which was having its factory and office at Chennai. The payments made to the said engineering company were sent to office at Chennai only. Therefore, the statement issued by a bank at Nagercoil caused suspicion on the genuiness of the statement. Besides this, the complainant reported to have paid Rs.21.60 lakhs but the said engineering company has received Rs.4 lakhs only. Further with regard to the allegation of demanding interest, it is stated that the complainant had to pay the interest accrued to the account and therefore, the second opposite party demanded the interest from the complainant.”
10. This claim, made on behalf of the OPs, was challenged by Mr Mahajan, counsel
for the complainant. He drew our attention to the report of 10.3.1995 submitted by
the valuer, Government College of Engineering, appointed by the OP/Tamil Nadu
Industrial Investment Corporation itself. The three items of equipment having, total value
of Rs 21.60, lakhs figure as the last three items in the report signed by two senior
lecturers of the Engineering Department of the College. When confronted with this piece
of evidence on record, learned counsel for the OPs very gracefully concede that he had
no answer for the same. It is therefore, clear that the OPs have not verified their facts
before filing the written response of 17.5.1999 and written arguments on 17.9.2012. At
this stage, we do not wish to make any further observation on this point.
11. The evidence brought on record shows that the first three disbursals were made in
March 1994. In September 1994 the complainant was informed that further disbursal of
the loan was decided by the OPs to be “withheld”. Thus, no release of loan or subsidy
was made until 29.3.1995. Rs 25.17 lakhs of loan and Rs 5.94 lakhs of subsidy i.e.
31.11 lakhs out of the commitment of Rs 85 lakhs, was never disbursed. The final
position is confirmed by the counsel for the OPs in the statement produced before us on
24.9.2012. The allegations of delay in disbursal and non-disbursal of the loan and
subsidy are to be seen in this factual background.
12. In the affidavit evidence filed on behalf of the OPs, delay is attributed mainly to the
decision of the complainant to purchase generator sets and Plate Freezer from suppliers
different from the ones ‘originally proposed’. The request was agreed by the OPs, in so
far as the generators were concerned. But, there is no explanation why no advance was
released in favour of the supplier. Nor is there an explanation why the condition of
supply before payment was imposed when, as admitted in the affidavit evidence of the
OPs, payment of advance to the suppliers was permissible, subject to the same being
routed through the OPs. More importantly, there is no explanation for the resultant
delay. Details in para 17 of the affidavit evidence of the complainant show that it was
over three months.
13. As noted earlier, the stoppage of further disbursals was communicated to the
complainant on 15.9.1994. This was preceded by inspection by the Regional Office of
the OPs. As per the affidavit evidence of the OPs, “The inspection revealed that the
complainant had not purchased any machinery as per the bills admitted.” However, the
letter of 15.9.1994 (produced on record as Annexure P-9), which is a cryptic
one para letter, gives no idea whatsoever of the reason for stoppage of further
disbursements. But, a reading the affidavit evidence of the OPs, filed on 7.5.2008
together with the objections filed by the complainant on 5.10.1999, gives a clear idea of
the underlying reason. As per the complainant, it preferred to buy the generators from
another supplier as it had quoted rates 20% lower than the one chosen by the OPs
(Para26). The OPs do not respond to the question of rate difference but admit that “On
16.3.1994 the complainant requested for change of machinery supplier from
M/s Mahanarayanee Investment and Trading Co.P. Ltd., Madurai to M/s Parry
Engineering and Exports Limited for the purchase of 2 Generator set for which the
second opposite party requested vide their letter dated 17.3.1994 the complainant to
submit the original proforma invoice so as to take a decision on change of supplier.
While it was so, on 29.3.94, the second opposite party issued a commitment letter to M/s
Air Power India Ltd. guaranteeing payment subject to conditions on supply of machinery.
A DD for Rs 6,13,000/- was forwarded to the said supplier as advance out of term
loan against subsidy eligibility................Also, in another letter dated 6.6.94, the
complainant reiterated the stand to purchase 2 Gensets from M/s Parry & Co., instead of
M/s Mahanarayanee Investments and Trading Co. P.Ltd.”(Para 15). This is a clear
admission that the OPs were in a hurry to procure the equipment, even before taking a
final view on the request of the complainant to change the supplier.
14. Following conclusions emerge from the detailed consideration above—
a. Report of the valuer shows that even before the first disbursal by the
OP, investment of Rs 44.95 lakhs in the building and Rs 3.86 lakhs in machinery
had been made by the complainant.
b. Most of the machinery and equipment have been procured subsequent to the
sanction of the loan by the OPs. Therefore, its value, as assessed by
thevaluer rose from 3.86 lakhs in November 1993 to 49.71 lakhs in March 1995.
c. The OPs disbursed part of the loan and subsidy but with long delays between
disbursals. Admittedly, Rs 25.17 lakhs of the term loan and Rs 5.49 lakhs of
subsidy remained undisbursed.
d. Delay in disbursal is sought to be explained on the ground that the purchased
machinery (though reflected in the evaluation report of 7.7.1994) was not found in
the factory during subsequent inspection by the OPs. But, it is also admitted
that Rs 16.88 lakhs were released in March 1995, based on the valuation report
of 10.3.1995. There is no explanation as to what happened in between to satisfy
the OPs that the ‘missing machinery’ was not physically missing. We are
therefore, of the view that the delay on this account cannot be treated as bona
fide conduct on the part of the OPs.
e. The logic of proportionate release (i.e. OP’s commitment of loan as 55% of the
project cost) is an unconvincing attempt to justify the delay. It has merely
remained an attempt to take the focus away from the inexplicable delay caused
by the conduct of the OPs. This delay was a negation of their own avowed
objective of extending financial assistance to entrepreneurs in Tamil Nadu for
development of industries in the State.
f. The delay in procurement of generator sets has not been objectively explained.
On the contrary, OPs’ own evidence shows that it was caused by their attempt to
procure it from a supplier of their choice (though, as revealed by the Complainant,
at a higher cost), against the requirement of the complainant. In this case too, the
delay cannot be called bona fide.
g. In so far as the time taken in release of ‘No Objection Certificate’ to the borrower
is concerned, we agree with the OPs that it could not have been issued before
clearance of the outstanding amount by the complainant.
15. The OPs have sought to rely upon the decision of H’ble Supreme Court of India
in Karnataka State Industrial Industrial Investment and Development Corpn. Ltd.,
(2005) 4 SCC 456. In this case, the respondent had taken a loan of Rs 116.30 lakhs
from the Karnataka State Industrial Investment and Development Corpn (KSIIDC) in
1991. The borrower committed defaults in repayment. Therefore, the KSIIDC took over
the unit in 1996 and sold it for Rs 171 lakhs in 1998 to a third party. The borrower filed a
writ petition in the High Court praying for declaring the sale null and void. The High
Court decided that borrower should be given an opportunity to make an offer to
purchase on the same terms as agreed by the KSIIDC with the buyer. The decision of
the learned single judge was challenged by the buyer in a writ appeal. The
Division Bench ordered the KSIIDC to re do the entire sale process and to give the
borrower an opportunity to bring a better offer. Hon’ble Supreme Court held that the
KSIIDC had acted in a bona fide manner and set aside the direction to it to redo the
entire sale process. Facts in the case before us are entirely different. Therefore, in our
view the case of the OP/Tamilnadu Industrial Investment Corporation gets no support
from this decision.
16. In the result, we hold that the complainant has fully succeeded in establishing that
the delay in disbursal of the term loan with subsidy as well as part non-release of the
same after March 1995, was without any justifiable cause. This failure to provide proper
service to their borrower, amounted to ‘deficiency of service’ on the part of the OPs,
within the meaning of Section 2(1)(g) of the Consumer Protection Act, 1986. We are
therefore of the view that the complainant is entitled to be compensated for the same.
17. The consequential cost of delay in disbursal and of non-disbursal itself, has been
quantified by the complainant, as directed by this Commission. As per written
submission of the complainant, the value of total assets had risen to Rs.203.84 lakhs in
May 1996 and Rs.274.39 lakhs by May 1997. We do not consider it necessary to go
into it. Because, whatever the actual growth of the Unit set up by the complainant, the
liability of the OPs in the context of the Consumer Complaint, will not travel beyond the
consequences of delay in disbursement of the total agreed quantum of loan and subsidy
as well as of non- disbursal of a part thereof.
18. The effect of this delay has been quantified by the Complainant in six heads, as
per the direction of this Commission, mentioned earlier in this order. Expectedly, it has
not been challenged by the OPs. Towards the non-released sums of loan and subsidy
interest, Rs.13.16 lakhs has been claimed at 36% per annum. We consider it proper to
limit it to 18%. Cost escalation for building and machinery, calculated at 12 and 10%
respectively, are considered reasonable and acceptable. This comes to Rs.11.75 lakhs.
Similarly, business loss at 10% for five months is considered reasonable and therefore
the claimed amount of Rs.6.45 lakhs is allowed. However, we do deem it proper to
allow the minimum electricity charge claimed by the Complainant, as it would have
been payable, in any case. Finally, there is no case for allowing further compensation
of Rs.25 lakhs claimed towards mental pain and agony, as interest on delay in releases
cost escalation as well as business loss have separately been allowed.
19. Accordingly, the total compensation payable under all admissible heads is rounded
off to Rs.25 lakhs. Cost of Rs one lakh is also awarded in favour of the
Complainant. The OP/Tamilnadu Industrial Investment Corporation Limited, is directed
to pay this amount of Rs.26 lakhs to the complainant, together with interest at 9% per
annum, from the date of the complaint. The entire amount shall be paid within a period
of three months, failing which the period of delay shall carry additional interest of 2% per
annum.
.…………………………(J. M. MALIK, J.)
PRESIDING MEMBER
…………………………. (VINA
Y KUMAR) MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO. 39 OF 2003
1. Sh. Mahesh Prasad Aggarwal S/o late Lala Har Prasad Aggarwal
2. Smt. Deepti Aggarwal Widow of late Rajeev Aggarwal
3. Kumari Manjari
4. Kumari Mayuri
5. Master Akshay
All minor daughters and son of late Rajeev Aggarwal (Through their mother Smt. Deepti Aggarwal, their next Friend and natural guardian) All R/o 39, Inner City, Ring Road, Agra – 1 (U.P.)
…Complainants
Versus
M/s. Kamayani Patients Care India Ltd. 672, Geeta Mandir NH 2 Guru Ka Taal, Secundera Agra – 282 07 (U.P.)
… Opp. Party
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Complainants : Mr. S.C. Singhal, Advocate With Ms. Mridul Chawla, AdvocateFor the Opp. Pary. : Mr. S.K. Sharma, Advocate with Mr.
J.P. Sharma, Mr. A. Poddar, Advocates PRONOUNCED ON 3 rd JANUARY, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
Complainants have filed complaint against the opposite party for recovery of
Rs.30.00 lakhs as compensation.
2. Brief facts of the complaint are that complainant no. 1 is father of deceased,
Rajeev Aggarwal, complainant no. 2 is wife of deceased Rajeev Aggarwal and
complainant nos 3 to 5 are minor daughters and son of deceased
Rajeev Aggarwal. Father Rajeev Aggarwal aged 41 years met with an accident while
he was proceeding towards Agra as his vehicle overturned and he sustained multiple
serious injuries and became unconscious. He was immediately taken to opposite party-
hospital at Secundra, Agra where he was admitted and Rs.1200/- were charged for C.T.
Scan of head, Rs.300/- for X-ray chest and wrist, Rs.600/- as OT charges, Rs.500/- as
emergency charges and Rs.500/- as Doctors examination fee. Rajeev Aggarwal was
plastered in left hand and he was discharged and was informed that he is alright. He
was not given documents of discharge. Rajeev Aggarwal was complaining of serious
headache and pain at back but no treatment regarding aforesaid pain was given
to Mr. Rajeev Aggarwal while he was in opposite party-hospital. Rajeev Aggarwal was
taken to the house, though, his legs and hands were not moving properly besides
suffering from severe pain in head and back. Elderly persons of his family advised to
shift Rajeev Aggarwal to good hospital in Delhi and for this purpose ambulance was
hired on 15.10.2001 and proceeded for Delhi but Rajeev Aggarwal collapsed after he
travelled about 20 kms on account of the injuries sustained by him in the
accident. Complainants contacted opposite party-hospital to supply entire medical
record but opposite party-hospital refused. From post mortem report it was revealed
that the deceased had fracture of left partial bone and there was evidence of
haematoma of left side of the brain and even the membranes were found
congested. 100 ml. free clotted blood was also found in the brain. Opposite party-
hospital neither operated nor advised operation and on account of negligence of
opposite party-doctors, Rajeev Aggarwal succumbed to death. The deceased,
Rajeev Aggarwal was tee-totaller having good health and earning about 3 lakhs per
annum and was also assessed to income tax. The deceased last assessed income was
Rs.3,35,332/-. There is longevity of life in the family of the deceased as his father about
75 years old is alive, hence, complainant may be awarded Rs.30 lakhs as
compensation along with 18% p.a interest.
3. opposite party-hospital filed written statement and submitted that deceased was
given first-aid treatment as outdoor patient at the hospital of opposite party. It was
admitted that C.T. scan of the head and X-ray of the chest was advised by the opposite
party-hospital and Rs.300/- were charged, Rs. 600/- were charged for operation theatre
and Rs.500/- were charged as fee of doctor. It was further admitted that first-aid
treatment by putting bandages on the wounds of the deceased was given. Duty doctor
of opposite party-hospital very vehemently advised the deceased to be admitted in the
hospital but this advice was not followed and was not admitted in the hospital. When
Rajeev Aggarwal was brought to the opposite party-hospital, he was accompanied by
his friends and after sometime his father and brother Dr. Rohit Aggarwal came there
and they were of the firm view that they did not want to admit Rajeev Aggarwal in
opposite party-hospital or take further treatment from the opposite party-
hospital. Dr. Rohit Aggarwal represented himself to be a doctor having his own nursing
home at his house where he wanted to treat the deceased. So, the deceased was not
admitted in opposite party-hospital, hence, question of discharge does not arise. The
deceased was not in a condition to be taken to Delhi rather should have been admitted
in opposite party-hospital for proper care and treatment. The deceased was brought to
the opposite party-hospital in the afternoon of 14.10.2001 and was taken away within an
hour by his brother Dr. Rohit Aggarwal, his father and other relatives. As the deceased
was not given proper care and treatment by his own relatives the deceased,
Rajeev Aggarwalexpired. It was denied that complainants contacted the opposite party-
hospital to supply medical record and opposite party-hospital refused to supply the said
medical record. The deceased’s earning, longevity of life and his last assessed income
was also denied. It was further submitted that no compensation is payable by opposite
party-hospital as there was no negligence or deficiency of service on the part of the
opposite party-hospital and prayed for dismissal of complaint.
4. Complainants filed replica and alleged that Duty Doctor of the opposite party-
hospital did not advise admission in the hospital and further alleged
that Dr. Rohit Aggarwal did not say that they do not want to admit the deceased or take
further treatment at the hospital. Deceased was neither properly treated nor CT Scan
was properly observed and deceased was negligently discharged, he was not taken
voluntarily from opposite party-hospital and further submitted that deceased expired on
account of negligence of opposite party-hospital.
5. Complainants filed affidavit of Mahesh Prasad Aggarwal (father)
and Dr. Rohit Aggarwal (Brother). Opposite party filed affidavit of Dr. Munishwar Gupta
(Managing Director of opposite party-hospital). Parties also filed documents in support
of their case.
6. Heard learned Counsel for the parties and perused record.
7. Learned Counsel for the complainant submitted that opposite party-hospital
discharged the deceased Rajeev Aggarwal negligently, though, deceased was not in a
position to move, hence, complainants may be awarded compensation. On the other
hand, learned Counsel for the opposite party submitted that deceased was never
admitted as indoor patient in opposite party-hospital, but was given first-aid and in spite
of advice of opposite party Duty Doctor, relatives of deceased took away the deceased
from opposite party-hospital in such circumstances, no deficiency on the part of
opposite party-hospital, hence, complaint may be dismissed.
8. It is an admitted case of the parties that deceased, Rajeev Aggarwal sustained
injuries on 14.10.2001 in an accident and was brought to opposite party-hospital by
some persons. It is also admitted that deceased Rajeev Aggarwal’s C.T. Scan and X-
ray of chest was done by opposite party-hospital after charging money and opposite
party-hospital also charged Rs.600/- as O.T. Charges and Rs.500/- as Doctor’s
examination fee. It is also admitted case of the parties that after putting plaster and
bandages on the left hand of the deceased, he was discharged/takenaway by his
relatives from opposite party-hospital.
9. Learned Counsel for the complainants vehemently argued that opposite party-
Duty Doctor committed negligence in discharging patient from the hospital and placed
reliance on Notification dated 11.3.2000 issued by Medical Council of India. He has
drawn our attention to para 1.3 of Chapter I (Code of Medical Ethics) according to which
every physician is required to maintain medical record pertaining to his indoor patient for
a period of 3 years. The important question in this case is whether the deceased,
Rajeev Aggarwal was indoor patient in the opposite party-hospital. Opposite party-
hospital has proved Annexure ‘E’ vide affidavit of Dr. Gupta which reveals that on
14.10.2001, 4 patients were admitted in opposite party-hospital and deceased was not
admitted in the opposite party-hospital as indoor patient. In these circumstances,
Notification dated 11.3.2000 issued by the Medical Council of India is not applicable to
the present case and opposite party-hospital was not required to maintain the medical
record of deceased Rajeev Aggarwal, as deceased was treated as outdoor patient and
after C.T. Scan, X-ray and giving first-aid, the deceased Rajeev Aggarwal was taken
away from opposite party-hospital by his family members and relatives.
10. Complainant Mahesh Prasad Aggarwal has mentioned in para 1 of his affidavit
that Rajeev Aggarwal died on 21.11.2001 which is not correct in the light of evidence of
other witness and documents which shows that Rajeev Aggarwal died on
15.10.2001. Complainant Mahesh Prasad Aggarwal and Dr. Rohit Aggarwal who is
brother of deceased have stated in their affidavit that deceased was not fit and on
reaching home he was very uncomfortable and his condition was deteriorating. His
sufferings were manifold and pain was unbearable and in such circumstances it was
decided to shift him to a good hospital in Delhi and accordingly the ambulance was
hired on 15.10.2001. This evidence reflects that after taking deceased
Rajeev Aggarwal from opposite party-hospital he was brought to his residence which is
not believable because when his legs and hands were not moving properly and was
suffering from severe pain in back and head, no person will take his kith and kin to his
home instead of shifting him to some hospital particularly when deceased’s
brother Dr. Rohit Aggarwal was running Usha Memorial Health Centre in the same city
having 24 hrs. facility for fracture and accident cases as reflected in photograph of
Annexure ‘A’, ‘B’ & ‘C’ which have been proved by opposite party’s evidence. In normal
course either Rajeev Aggarwal would have been brought
to Dr. Rohit Aggarwal’s hospital or admitted to some other hospital instead of bringing
him home as condition of Rajeev Aggarwal was deteriorating. Complainant’s witness
nowhere explained that after taking Rajeev Aggarwal to opposite party-hospital where
was he kept for another 24 hours or more before proceeding for Delhi. It was
obligatory on their part to lead evidence and prove that in last 24 hrs. proper care of the
deceased Rajeev Aggarwal was taken which they failed to do, rather they have
suppressed material facts about his treatment in last 24 hours.
11. Complainant’s witness simply say that after plaster, opposite party informed that
Rajeev Aggarwal is alright and fit and can be taken to home and he was
discharged. This statement has not been supported by any other independent witness,
though, as per complaint and written statement, Rajeev Aggarwal was brought to
opposite party-hospital just after accident by other persons and these two witnesses
reached opposite party-hospital after sometime. Both witnesses being interested in the
complaint cannot be believed unless supported by other independent witness,
particularly, when opposite party in the written statement specifically stated that Duty
Doctor of opposite party-hospital advised the deceased to be admitted in the hospital
but his advice was not followed and Rajeev Aggarwal was not admitted in the hospital.
Same fact has been proved by affidavit of opposite party witness. In such
circumstances, it cannot be believed that in spite of insistence by the deceased’s father
and brother, the deceased was not admitted in opposite party-hospital and was
discharged but this inference can be drawn that advise of opposite party-hospital was
discarded as deceased’s brother Dr. Rohit Aggarwal was having his own hospital in the
same city. He and his father insisted opposite party-hospital not to admit
Rajeev Aggarwal in the hospital and took away him for treatment either
in Dr. Rohit Aggarwal’s hospital or in some other hospital where
Rajeev Aggarwal’s condition deteriorated and ultimately died on next day.
12. Learned Counsel for the complainant has not alleged any deficiency in taking
C.T. Scan, X-ray and plaster of Rajeev Aggarwal’s left hand. In such circumstances,
neither any negligence nor any deficiency of service can be attributed on the part of
opposite party-hospital towards treatment of Rajeev Aggarwal and no compensation
can be awarded to the complainant on account of sad demise of the deceased
Rajeev Aggarwal on next day.
13. Learned Counsel for the complainant placed reliance on I (2006) CPJ 16 (NC)
– Dr. Shyam Kumar Vs. Rameshbhai Harmanbhai Kachhiya in which it was held that
if fees is paid towards receiving medical services by the complainant, the complainant
falls within the purview of consumer. There is no dispute on this legal aspect and
certainly in the present case complainants being legal heir of deceased, falls within the
purview of consumer as opposite party has charged fees for C.T. Scan, X-ray,
etc. Learned Counsel for the complainant also placed reliance on (2005) 6 SCC I
– Jacob Mathew Vs. State of Punjab and Anr . in which it was held that complainant
has to prove 3 constituents, namely; (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 casually connected with such breach and recognised by the law, has been
suffered by the complainant. It was further observed that if the claimant satisfies the
Court on the evidence that these three ingredients are made out, the defendant should
be held liable in negligence. We agree with the proposition of law laid down
by Hon’ble Apex Court but this citation does not help to the complainants in the present
case. Pleadings and evidence clearly proves that when Rajeev Aggarwal was brought
to Opposite party-hospital, C.T. Scan, X-ray, etc. were done immediately and his hand
was plastered and in such circumstances, it can be presumed that Opposite party-
hospital took care of the deceased, Rajeev Aggarwal. Complainant has failed to show
any negligence or deficiency in taking C.T. Scan, X-ray or plastering his hand. Leaned
Counsel for the complainant submitted that Opposite party-hospital discharged
Rajeev Aggarwal against the wishes of deceased, hence, Opposite party-hospital is
guilty of negligence as Opposite party-hospital failed to take standard of care required
under the law. This argument is devoid of force in the light of discussion made earlier
as we have come to the conclusion that Rajeev Aggarwal, the deceased was never
admitted as indoor patient in the Opposite party-hospital, rather Rajeev Aggarwal was
taken away by the complainant, Mahesh Prasad Aggarwal and deceased’s
brother Dr. Rohit Aggarwal and other relatives against the advice of Duty Doctor of
Opposite party-hospital and further supressed material facts about Rajeev’s treatment in
last 24 hours after he was taken away from Opposite party-hospital.
14. Learned Counsel for the complainant also placed reliance on I (1997) CPJ 332
– Kanaiyalal Ramanlal Trivedi & Ors . Vs. Dr. Satyanarayan Vishwakarma & Anr . in
which it was held that in case of death due to medical negligence compensation can be
awarded as in fatal motor accidents. This citation does not help the complainant in
present case as complainant has failed to prove negligence or deficiency on the part
of Opposite party-hospital.
15. In the light of the above discussion, it becomes clear that Opposite party-
hospital was neither negligent nor deficient in providing services to the deceased,
Rajeev Aggarwal and complaint is liable to be dismissed.
16. Consequently, complaint filed by the complainants against Opposite party-
hospital is dismissed. Parties are directed to bear their own costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( SURESH CHANDRA)
MEMBERK
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 897 OF 2012.
( From order dated 19.01.2012 in FAIA 98 of 2012 in FASR 217 of 2012
of State Consumer Disputes Redressal Commission, Andhra Pradesh )
Shriram Transport Finance Co. Ltd. Represented by its Senior Recovery, Executive, D. No. 54-15-5, 2nd Floor, Dhoom Complex, Near Srinivasa Nagar, Bank Colony, Vijaywada.
…Petitioner
Versus
Syed Mahaboob Ali, S/o Syed Vali Basha, D. No. 19-13/3-20, Main Road, Near Habeed School, Old Rajharajeshwaripeta, Vijayawada, A. P.
….Respondent
(2) REVISION PETITION NO. 898 OF 2012.
( From order dated 19.01.2012 in FAIA 99 of 2012 In FASR 214 of 2012
of State Consumer Disputes Redressal Commission, Andhra Pradesh )
The Branch Manager Shriram Transport Finance Company Ltd. D. No. 54-15-5, 2nd Floor, Dhoom Complex, Near Srinivasa Nagar, Bank Colony, Vijaywada.
…Petitioner
Versus
Syed Ayesha D/o Syed Abdul Khader D. No. 19-13/3-20, Main Road, Near Habeed School, Old Rajharajeshwaripeta, Vijayawada, A. P.
….Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioners : Mr. Lenin Singh Hijam, Advocate
Pronounced on: 4 th January, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Above noted petitions have been filed by the petitioners being aggrieved by order
dated 19.1.2012 of State Consumer Disputes Redressal Commission, Andhra Pradesh (for
short, ‘State Commission’). As common question of law and facts are involved, these petitions
are being disposed of by this common order. .
2. Facts in brief are that respondents/complainants purchased TATA Ace Autos which
have been financed by the petitioners/OP, by hypothecating their vehicles. Petitioners seized
the vehicle without any intimation. Accordingly, respondents filed complaint before the District
Consumer Disputes Redressal Forum-II Vijayawada, (for short, ‘District Forum’).
3. Notices of the complaints were issued to the petitioners. Inspite of receiving the notice,
petitioners failed to contest the matter before the District Forum. Accordingly, District Forum,
vide its order dated 08.06.2011, allowed the complaints.
4. Aggrieved by the order of the District Forum, petitioners filed appeals before the State
Commission. Alongwith it, applications seeking condoning the delay of 168 days were also
filed. The State Commission, vide impugned order, dismissed the same.
5. Hence, the present revision.
6. I have heard the learned counsel for the petitioners who have also filed written
arguments in support of its case. .
7. Petitioners, as per its written arguments have challenged the order passed by the fora
below on merits. Regarding applications for condonation of delay, it has been simply
mentioned that small period of delay can be condoned under the Consumer Protection Act,
1986 (for short, ‘Act’) by imposing cost. In support, learned counsel has relied upon certain
judgments also.
8. State Commission in its impugned order observed;“2) The opposite party finance company preferred the appeal when it
was directed to return the vehicles on payment or certain amounts or pay Rs.1,28,900/- + Rs.72,000/- + Rs.57,800/- together with compensation of Rs. 5,000/- and costs of Rs.2,000/- and along with it above application to condone delay of 168 days in filing the appeal on the ground that on receipt of copy of order on 9.11.2011 it had contacted its counsel and on verification it came to know that no notice was served nor an opportunity was given. On that it had taken copy of the record from the Dist. Forum, and in the process delay of 168 days was caused. It also alleged that the
complainant sent the notice to its older address knowing full well that it has shifted its office.
6). When the delay was whopping 168 days without any explanation and
considering the fact the delay in preferring the appeal was not satisfactorily explained, it is a fit case where the petition is liable to dismissed, and consequently reject the appeal.
7). In a latest decision the Hon’ble supreme Court in Anshu Aggarwal Vs.
New Okhla Industrial Development Authority reported in IV (2011) CPJ 63 (SC) opined:
“ It is also opposite 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. With the above observations, the application for condonation of delay is rejected and the special leave petition is dismissed as barred by limitation”.
8) The parties seeking relief has to satisfy the court that he/she
has sufficient cause for not preferring the appeal within the time prescribed and the explanation has to cover the entire period of delay. A litigant cannot be permitted to take away a right which has accrued to his adversary by lapse of time. Proof of sufficient cause is a condition precedent for the exercise of discretion of jurisdiction vested in this Court under Section 15(a) of the Consumer Protection Act. The discretion conferred on this court is a judicial discretion and is exercised to advance justice and even if there is a strong cause for acceptance of the appeal that would not be a ground for condoning the delay. Consumer Protection Act provided for speedy redressal to consumer disputes. It follows that the delay cannot be allowed to occur in a routine way and sufficient cause should be made with specific reasons given supported by material; and that the discretion for entertaining the appeals filed beyond the period allowed will not be exercised in a light and routine manner.
9) We may also state herein that the respondent should not be denied the right accrued to him on expiry of limitation provided for to prefer an appeal. If he receives summons or notices after a lapse of time he may surprise and may not be able to comprehend as to when the litigation would come to an end. As was opined the explanation has to reasonable, plausible and believable. Mere explanation is not sufficient for condoning the delay in favour of applicant. It is does not satisfy the ingredients, and that it does not reflect ‘sufficient cause’ then the application should be dismissed. When consistently routine and rigmarole facts are pleaded without any justification or proof
condonation of delay cannot be made. We are of the opinion that the ground being routine and absolutely n o document whatsoever was filed to justify the delay, we are unable to entertain the application”.
9. It is basic principle of law that question of limitation should be decided at the threshold.
Without deciding the question of limitation, petition cannot be considered on merits.
10. Admittedly, petitioners were ex parte before the District Forum and as such no written
statement was filed. Under these circumstances, petitioners have no defence on merits.
Moreover, valuable rights have accrued in the favour of the respondents.
11. It is well settled that “sufficient cause” for condoning the delay in each case is a question of
fact.
12. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it
has been observed;
“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”
13. Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994
Punjab and Haryana 45, it has been laid down that;
“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”
14. 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.”
15. Hon’ble Supreme Court after exhaustively considering the case law on the
aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd.
Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as
under;
“We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.
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”.
16. Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has observed ;
“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras”.
17. Petitioners’ affidavit seeking condonation of delay, filed before the State
Commission, interalia states;
“ That the District Forum was pleased to dispatch the said orders on 23.06.2011 and the same was not served to our company and came
to know about the pendency of the litigation only when the complainant has sent the notice to the new address on 09.11.2011. I crave leave of this Hon’ble Commission to read the memorandum of grounds as part and parcel of this affidavit.
3. I submit that the said order was received by us on 9.11.2011. That after receiving the orders I have contacted my counsel and requested to obtain all the case papers and after verifying the same I came to know that no notice is served to us and with out giving us any opportunity the order is passed I immediately applied Original certified copy of the Order and other contacted papers from the court as such could not hand over the entire material papers including the original order copy to the Company Counsel for filing the Appeal in time.
4. I submit that I came to know about the legal proceedings on 09.11.2011 immediately all the relevant papers were sent to the counsel for filing appeal. During the process there is a delay______days in filing the Appeal. The delay in filing the Appeal is caused due to the above reason which neither will fall nor wanton it is just and necessary that this Hon’ble Commission may kindly condone the delay in interests of justice. I, therefore, pray that this Hon’ble State Commission may be pleased to condone the delay of________ days in filing the above Appeal otherwise the petitioner will suffer great damage irreparable loss which cannot be compensated in any manner”.
18. In entire affidavit, petitioner has nowhere stated as to how much days of delay was
there in filing the appeal before the State Commission. Be that as it may, as per affidavit
case of petitioner is that District Forum has dispatched the order on 23.06.2011 which
was not served to their Company. Petitioner came to know about the pendency of the
litigation only when respondent had sent the notice at the new address on 9.11.2011.
Affidavit further states that, petitioner thereafter contacted its counsel. No details have
been mentioned in the affidavit so as to show as to when, petitioner after getting the
copy of order on 9.11.2011, had sent the papers to its counsel. What is the name and
address of that counsel and on which date the appeal was made ready. The affidavit is
absolutely silent on these material facts.
19. Main plea taken by petitioner is that they had shifted to a new address and as
such they could not get the copy of order passed by the District Forum within time. This
plea is against the record
20. In the complaint (Page 41 of the paper-book) address of petitioner has been
mentioned as; “Shriram Transport Finance Company Ltd., Rep. by its Branch Manager, D. NO. 40-1-100, B.H.R. Plaza,
Benz Circle, Kanna Nagar, Vijayawada ”.
21. District Forum has also mentioned the same address in its order, dated
8.6.2011. Even in appeal memo filed by the petitioners before the State Commission,
same address has been mentioned. Appeal before the State Commission was filed in
January, 2012. Thus, as per petitioners’ own case, above mentioned was the address
of the petitioner in January, 2012 also. Thus, this plea that petitioner did not receive the
copy of order of District Forum and they came to know about the litigation only when
respondents had sent notice to their new address on 09.11.2011, is against the record.
22. There is nothing on record to show that petitioner did not get the copy of the order
at the address mentioned in the complaint. Interestingly, petitioners have not placed on
record the certified copy of the order of the District Forum, so as to show as to on which
date certified copy of order dated 8.6.2011 was prepared and on which date, the same
dispatched and at which address it was sent. In the absence of these relevant facts,
inference has to be drawn against the petitioner.
23. Since, no sufficient cause has been shown by the petitioner in its application
seeking condonation of delay, the State Commission was justified in not condoning the
delay. I do not find any ambiguity or legality in the impugned order passed by the State
Commission. Thus, there is no jurisdictional or legal error in the impugned order.
Hence, present revision petitions are accordingly dismissed with cost of Rs.10,000/-
(Rupees Ten Thousand Only) each.
24. Petitioners are directed to deposit the total cost of Rs. 20,000/- (Rupees Twenty
Thousand only) by way of demand draft in the name of “Consumer Legal Aid
Account” of this Commission, within four weeks from today.
25. In case, petitioners fail to deposit the aforesaid costs within the prescribed period,
then they shall also be liable to pay interest @ 9% p.a., till realization.
26. List on 15th February, 2013 for compliance
……………………………...J
(V.B. GUPTA)
PRESIDING MEMBERSSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1660 OF 2011 (From the order dated 13.04.2011 in Appeal No.610/08 of the Rajasthan State
Consumer Disputes Redressal Commission, Jaipur)
Abhikram, Through its Partner Mr. Nimish Patel, Amrit-Lila Bungalow, Off Nagari Hospital Road, Near Gujarat College, Ahmedabad – 380 006
… Petitioner/OP
Versus
Hotel Himmatgarh Palace, through Col. Mansingh Managing Director, Thar Hotel (P) Ltd., Jaisalmer – 345 001
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioner : Mr. Shivram, Advocate
For the Respondent : Mr. Bharat Bhushan, Advocate
PRONOUNCED ON 8 th January , 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed against the order dated 13.4.2011 passed by
the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, ‘the
State Commission’) in Appeal No. 610/08 – Hotel Himmatgarh Palace Vs. Abhikram by
which order of District Forum dismissing complaint was set aside and appeal was partly
allowed and respondent/petitioner was directed to pay Rs.2,65,300/- along with 9% p.a.
interest to the complainant.
2. Brief facts of the case are that respondent/complainant hired architectural and
structural consultancy of the petitioner/OP for renovation and extension of
the Himmatgarh Palace Hotel complex at Jaisalmer. This service was to be provided in
two stages, namely; conceptual stage and schematic stage. Complainant paid a sum of
Rs.5,30,600/- as consultancy fee to the opposite party but as conceptual design was not
complete, complainant filed complaint for refund of fee along with compensation and
cost of litigation. OP/respondent filed written statement and submitted that complainant
is not a consumer as defined in the Consumer Protection Act, hence, complaint may be
dismissed. Further, it was alleged that complaint has been filed with the illegal motive
to get the work completed without paying fees and took many other objections regarding
jurisdiction, etc. Learned District Forum vide its order dated 4.3.2008 dismissed the
complaint holding that complaint does not fall within the purview of consumer against
which State Commission vide impugned order partly allowed the complaint. Hence, this
revision petition has been filed.
3. Heard learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioner submitted that complainant/respondent does
not fall within the purview of consumer and learned State Commission has committed
error in allowing complaint partly as the purpose of availing services of the petitioner
was for commercial purposes, hence, petition may be allowed and order of the State
Commission may be set aside. On the other hand, learned Counsel for the respondent
submitted that order passed by the learned State Commission is in accordance with law
as complainant after retirement from military services tried to develop his palace for his
livelihood, hence, the petition may be dismissed.
5. As per averment of the complaint, complainant is
Hotel Himmatgarh Palace. Nowhere it has been mentioned in the complaint that its
Director, Man Singh is running this Palace for earning his livelihood by means of self-
employment. Perusal of paragraph 10 of the District Forum order reveals that about 80
rooms were to be developed in complainant’s hotel. Memo of appeal filed before the
learned State Commission also reveals that complainant, Himmatgarh Palace is branch
of Thar Hotels (P) Ltd. which is registered under Company’s Act. Thus, it becomes very
clear that complainant, Himmatgarh Palace is branch of Thar Hotels (P) Ltd. and about
80 rooms were to be developed in this hotel and for this purpose architectural services
were taken from the petitioner/OP.
6. Learned Counsel for the petitioner has rightly argued that developing 80 rooms
for hotel purposes cannot come within the purview of earning livelihood by means of
self-employment. Learned Counsel for the respondent has simply argued that hotel
was to be developed for self-employment which argument cannot be accepted because,
firstly, no averment has been made in the complaint that services were availed for
earning livelihood by means of self-employment and secondly complainant being
branch of Thar Hotels (P) Ltd.,Jaisalmer, this business cannot come within the purview
of business for earning livelihood by means of self-employment. In such
circumstances, complainant/respondent does not fall within the purview of consumer
under Section 2 (d) of the C.P. Act. Complaint was not maintainable before District
Forum and learned District Forum has not committed any error in dismissing complaint,
though, on other grounds and learned State Commission has committed error in partly
allowing the complaint and petition is liable to be accepted.
7. Consequently, the revision petition filed by the petitioner against the respondent
is allowed and impugned order dated 13.4.2011 passed by the learned State
Commission is set aside and complaint is dismissed. Complainant/respondent may
initiate appropriate proceedings for recovery of fees, etc. before any other Forum/Civil
Court. Parties to bear their own cost. ..……………Sd/-……………
( V.B. GUPTA, J)
PRESIDING MEMBER
..……………Sd/-………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI
REVISION PETITION NO. 2270 OF 2011
[Against the order dated 01.04.2011 in Appeal No. 389/2010 of theState Consumer Disputes Redressal Commission, U.T. Chandigarh]
M/s Worldwide Immigration Consultancy Services Ltd. Through its Authorized Representative Shri Rajiv Bajaj SCO No. 2415-16, Sector 22-C Chandigarh
… Petitioner
Versus 1. M/s Reliance General Insurance Co. Ltd. (Anil Dhirubhai Ambani Group) Through its Chairman SCO No. 212-213, First Floor, Sector-34 Chandigarh 2. M/s Reliance General Insurance Co. Ltd. (Anil Dhirubhai Ambani Group) Through its General Manager SCO No. 212-213, First Floor, Sector-34 Chandigarh 3. M/s Reliance General Insurance Co. Ltd.Through Rajesh Sharma, Sr. Manager SCO No. 212-213, First Floor, Sector-34 Chandigarh
… Respondents BEFORE: HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE MR. SURESH CHANDRA, MEMBER For the Petitioner : Mr. Sunil Goyal, Advocate Mr. Sujit K. Singh, Advocate For the Respondents : Mr. Navneet Kumar, Advocate Pronounced on : 9 th JANUARY, 2013
O R D E R
PER SURESH CHANDRA, MEMBER
This revision petition has been filed under Section 21(b) of the Consumer
Protection Act, 1986 against the order dated 01.04.2011 passed by the State Consumer
Disputes Redressal Commission, U.T. Chandigarh (‘State Commission’ for short), by
which the State Commission dismissed the appeal filed by the petitioner. The petitioner
had through his appeal before the State Commission challenged the order dated
31.08.2010 passed by the District Consumer Disputes Redressal Forum-II, U.T.
Chandigarh (‘District Forum’ for short) in Complaint Case No. 1456 of 2009, by which
the District Forum had dismissed the complaint of the petitioner. The orders of the
District Forum and the State Commission are placed on record.
2. Briefly stated, the facts of the case are that the petitioner/complainant had
purchased a vehicle BMW X Series X5 3.0 D from M/s Krishna Automobiles,
Chandigarh vide invoice dated 29.07.2008 for an amount of Rs.57,95,000/-. This
vehicle was insured with M/s Reliance General Insurance Co. Ltd., who are the
respondents/opposite parties, vide Private Car Policy valid for the period 27.07.2008 till
midnight 28.07.2009. The Insured Declared Value (IDV) of the vehicle was
Rs.55,05,250/-. On 18.12.2008, the vehicle met with an accident at Chandigarh and
suffered extensive damage, about which an FIR was lodged with the police station and
accident was also reported to the office of the respondents/opposite parties. On
30.12.2008, the said vehicle was inspected by one Shri Kailash Chandra, Surveyor and
Loss Assessor, who assessed the loss and prepared an estimate for repairs. As per the
report of the surveyor, the damage to the vehicle was assessed at Rs.41,95,457/-.
According to the petitioner/complainant, the repairs of the said vehicle had crossed 75%
of the IDV and hence the vehicle was to be declared as total loss as per terms of the
policy. However, the respondents/opposite parties refused to declare the said vehicle
as total loss case and insisted on getting the repairs of the vehicle done. Later on, it
appears that another surveyor, namely, Engineer Vinod Kumar Sharma, independently
surveyed the vehicle on 12.02.2009 and vide his report dated 12.02.2009 assessed the
loss at Rs.41,56,839/-. This surveyor also remarked that it would not be much
economical to get the vehicle repaired as after the major repairs, the vehicle would not
come to its original position. It is the case of the petitioner/complainant that despite the
later survey report and his repeated requests, the respondents/opposite parties kept on
delaying the settlement of the claim and paid only Rs.22,99,000/- to the
petitioner/complainant as claim amount and additional sum of Rs.20,00,000/- was
received on sale of the salvage to a third party with the help of the respondents/opposite
parties. As such, according to the petitioner/complainant, the total amount paid to the
petitioner/complainant was Rs.42,99,000/- i.e. 78.08% of the IDV, which is more than
75% of the IDV and, hence, it should have been treated as the case of total loss but
since the respondents/opposite parties declined to do so, alleging deficiency in service
on their part, the petitioner lodged a complaint before the District Forum, which, as
stated above, the District Forum dismissed. The appeal filed against this order also
came to be dismissed by the State Commission vide its impugned order and in these
circumstances the petitioner/complainant has come to the National Commission through
the present revision petition.
3. We have heard Mr. Sunil Goyal, Advocate for the petitioner/complainant and Mr.
Navneet Kumar, Advocate for the respondents/opposite parties and perused the
record. 4. The broad facts of the case are more or less not under dispute. The only question,
which has arisen for our consideration in this case, is as to whether the plea of the
petitioner/complainant to treat the claim of the petitioner/complainant as a total loss in
the light of the report of the second surveyor, Engineer Vinod Kumar Sharma, who was
not appointed by the Insurance Company, should be accepted in spite of the
petitioner/complainant having accepted the payment of Rs.22,99,000/- as full and final
settlement from the respondents/opposite parties. Both the Fora below have rejected
the case of the petitioner/complainant while dismissing the complaint. The State
Commission while dismissing the appeal of the petitioner/complainant and upholding
the order of the District Forum has recorded the following observations in support of the
impugned order :-
“10. The learned counsel for the OPs i.e. M/s Reliance General Insurance Company Limited has argued that the complainant has been compensated fully by the OPs. As per the terms and conditions, an IRDA approved surveyor was deputed to assess the loss. As per the report of the surveyor (Annexure R-2), the cash loss value was assessed at Rs.22,99,000/-. As per this report, the vehicle was very much repairable and was not a case of total loss within the meaning of the policy and for this reason, the OPs requested the complainant to get the vehicle repaired. Since the complainant was no(t) interested to get his vehicle repaired, therefore, the complainant has opted to settle the claim at cash loss basis and the OPs have settled the claim of the complainant after receiving the unconditional and free consent of the complainant for opting the cash loss and not choosing it to get the vehicle repaired. Hence, as per the request and consent of the complainant, the cash loss settlement was agreed upon, and the value of the claim was assessed at Rs.22,99,000/-. This was less than 75% of the IDV, which was duly accepted by the complainant in full and final settlement of the claim. Further the complainant has also received a sum of Rs.20 lacs as a salvage value, hence the complainant in total has received a sum of Rs.42,99,000/-. It is further argued that the report of Vinod Kumar Sharma, Surveyor is not admissible as this surveyor is not authorized surveyor of the OPs. It is next argued that the complainant has been fully compensated, hence prayed that the appeal filed by the complainant may kindly be dismissed with the heavy costs.
11. After going through the facts of the case, even we are of the opinion that the report of the surveyor Sh. Vinod Kumar Sharma, placed on record by the complainant is only an estimate for the repair of the vehicle. Moreover, this report of Sh. Vinod Kumar Sharma, Surveyor is of no value because he was not appointed as a surveyor by the insurance company for settlement of the claim. The report of the authorized surveyor i.e. Sh. Kailash Chandra, who was duly appointed, has been placed on record by the OPs, Annexure R-2 wherein the net claim amount has been shown as Rs.22.99 lacs, which was duly
accepted by the complainant as full and final settlement. It is also clear that the complainant has also received a sum of Rs.20 lacs as salvage and in this respect, a discharge voucher was duly signed by the complainant. It is an admitted fact that the complainant has issued a consent letter dated 3.7.2009. No doubt, later on the complainant has also filed an applicated dated 12.8.2009, for withdrawal of the above said consent letter dated 3.7.2009 with regard to full and final settlement. In our opinion, in the absence of any cogent evidence, the reasons given for withdrawal of the consent letter is meaningless. Moreover, the OPs have immediately released the claim amount to the complainant after receiving the consent letter, which was duly received by the complainant without any protest. As, in the present case, the OPs have already settled the claim of the complainant as per the surveyor report. Therefore, there is no deficiency in service or unfair trade practice on the part of OPs and the learned District Forum has rightly dismissed the complaint. Therefore, we are of the view that the appeal filed by the complainant against the order passed by the learned District Forum is liable to be dismissed as devoid of merit.
5. We agree with the view taken by the State Commission in the matter. Besides the
fact that the second surveyor was not appointed by the Insurance Company, admittedly
the petitioner/complainant had accepted the net claim amount of Rs.22,99,000/- in full
and final settlement of his claim and issued a consent letter dated 03.07.2009. In the
absence of any fraud, misrepresentation, undue influence or coercion being used by the
Insurance Company to make the petitioner/complainant to sign the discharge voucher,
the claim now made by the petitioner/complainant cannot be accepted. In the given
facts and circumstances, the three cases, namely, United India Insurance v. Ajmer Singh Cotton & General Mills & Ors. [II (1999) CPJ 10 (SC)]; Amir Ali A. Mukadam v. United India Insurance Co. Ltd. [IV (2007) CPJ 234 (NC)]; and National Insurance Co. Ltd. v. Boghara Polyfab Private Limited [(2009) 1 SCC 267] cited and relied on
by learned counsel for the petitioner/complainant would not provide any comfort to the
petitioner/complainant since each case has to be decided on its own merits in the light
of the given circumstances.
6. Keeping in view the facts and circumstances of this case, we do not see any
reason which would justify our interference with the impugned order. The revision
petition, therefore, stands dismissed but with no order as to costs.
……………Sd/-……………….
(K.S. CHAUDHARI, J.)PRESIDING MEMBER
…………Sd/-………………… (SURESH CHANDRA)
MEMBER Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.4073 OF 2012(From the order dated 16.07.2012 in First Appeal No.166/2012 of the Kerala State
Consumer Disputes Redressal Commission, Thiruvananthapuram)
MR. SANKARANKUTTY P. PORAKKATT HOUSE, THALAVANIKKARA P.O. THALORE-680 306, THRISSUR DISTRICT, KERALA STATE.
...... PETITIONER
Versus
THE DEVELOPMENT OFFICER RUBBER BOARD REGIONAL OFFICE ANAPPARA, RAMAVARMAPURAM P.O., THRISSUR DISTRICT, KERALA STATE PINCODE: 680 631,
....... RESPONDENT
BEFORE:
HON’BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBERHON'BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner : In person
PRONOUNCED ON: January, 2013
ORDER
PER SURESH CHANDRA, MEMBER
This revision petition challenges order dated 16.07.2012 passed by the Kerala
State Consumer Disputes Redressal Commission, Thiruvananthapuram (‘the State
Commission’ for short) by which the State Commission dismissed the appeal filed by
the petitioner.
2. The factual matrix of this case are that the petitioner-complainant purchased 190
rubber stems from the respondent-opposite party on 31.07.1991 for Rs.617.50 on a
subsidized rate. According to the petitioner, the stems did not grow and the petitioner
lost everything in the process. Since the petitioner was not familiar with the rubber
plantation, he could not understand the quality of the rubber stems supplied to him by
the respondent. Out of the 190 stems, very few had sprouted but those few also did not
grow. This was brought to the notice of the Field Officer as well as the Development
Officer of the Rubber Board. However, in spite of information of the damage suffered by
the petitioner, the respondent Board did not return the expenses incurred by the
petitioner for the rubber stems in question and hence the petitioner filed a complaint
claiming the cost of the rubber stems with interest @ 15% and Rs.500/- as
compensation.
3. On notice, the respondent-OP contested the complaint. It was submitted by the
OP that as per his own admission, the petitioner was not familiar with the cultivation of
the rubber and was ignorant about it. It was submitted that except the petitioner, the
other 27 rubber farmers who had taken the rubber stems, there was no complaint from
them. Regarding the allegation that the rubber stems were not of good quality, it was
contended that the complaint in question was lodged only after one year and no expert
inspected his cultivation or any report was filed by him regarding cultivation. It was also
submitted by the OP that the petitioner being ignorant about the rubber plantation, he
did not take proper care of the purchased stems and they were not planted in the pits
having necessary depth and size. It was also stated by the OP that the pits were
waterlogged and hence the stems did not sprout. Denying any deficiency on its part,
the respondent prayed for dismissal of the complaint. The District Forum vide its order
dated 02.11.2011 in Complaint No.247/1993 partly allowed the complaint by directing
the respondent to return Rs.617.50 to the petitioner and to pay Rs.2,000/- as
compensation along with costs of Rs.300/- within one month from the date of the
order. Not satisfied with the order of the District Forum, the petitioner carried the matter
to the State Commission by filing an appeal for additional compensation. As stated
above, First Appeal of the petitioner was dismissed by the State Commission vide its
impugned order which is now under challenge through the present revision petition.
4. We have heard the petitioner who has appeared in person.
5. It is to be noted that initially the complaint was filed by the petitioner on
19.04.1993 before the District Forum claiming the cost of rubber stems (which was
Rs.617.50) with interest @ 15% and Rs.500/- as compensation. However, later on
when in the first round of litigation before the State Commission the matter was
remanded by the State Commission for fresh disposal after giving opportunity to both
the parties to adduce evidence on the disputed issue whether the stems supplied were
defective, the petitioner filed an amendment application dated 07.08.2008 for amending
the complaint for loss of production of Rs.49,549.50. On remand, though the
amendment application was allowed by the District Forum, a compensation only of
Rs.2,000/- besides the return of the cost of the rubber stems amounting to Rs.617.50
along with litigation cost of Rs.300/- were allowed by the order dated 02.11.2011 by the
District Forum (as indicated above). We find that the State Commission while upholding
the said order of the District Forum and dismissing the appeal of the petitioner has
recorded the following reasons in support of the impugned order:-
“7. The counsel for the respondent submitted that the rubber stems were given to the farmers at Government subsidized rate by the Rubber Board. The plants were of good quality and it does not carry any warranty for the plants as the growth of the plants differ due to the cultivation and climatic conditions. He also submitted that the growth of the plants depends on natural situation and also based on the proper nursing of the plant. The facts being so, it is not proper for the Forum below to fasten any liability on the opposite party, who are only a mediator. It is also argued that the Forum below ought to have dismissed the complaint in limine as the complaint is not sustainable. Submitting that there is absolutely no deficiency in service on the part of the opposite parties, the learned counsel argued that the complainant was not a traditional rubber planter and in his complaint itself he conceded that he was unaware of the plantation of the rubber stems. It is also pointed out that he approached the opposite party 3 months after planting the stems and by that time the sprouts were damaged. Further the respondent was provided with 190 plants in subsidized rate again in the next year. The additional claim made by the complainant was only after the case was remanded from the State Commission to adduce evidence for the opposite party. The amendment petition was filed only after 7 years. The counsel submitted that the additional claim has no legal stand at the stage of remand as the claim was barred by limitation and there cannot be any claim on the ground that the petitioner planted Koodathai in the same place. The additional claim is only an imaginary loss of production which is not supported with any substantiating evidence. There is no case for the appellant that he had produced any expert opinion regarding the loss of rubber stems.
8. On an appreciation of the arguments advanced by the appellant and the learned counsel for the respondent and also on going through the records we are of the view that the appellant/complainant could not substantiate proper evidence to show the loss of production that would have incurred in the rubber plantation for the 1 year. Merely giving the details in the publication and the market value could not be considered as the criteria for the assessment of loss of production of the rubber stems that would have grown and had assured yield in the future. The absence of any scientific
criteria for the assessment of loss of production, we are not in a position to consider the claim of the compensation to the complainant. As there is no appeal preferred by the opposite party/respondent we are not disturbing the order passed by the Forum below and uphold the order.
In the result, appeal is dismissed. Parties are to suffer their respective costs.”
6. We agree with the view taken by the State Commission and in the given facts and
circumstances, we do not see any reason to interfere with the order of the State
Commission. Consequently, the revision petition stands dismissed at the threshold with
no order as to costs.
Sd/-
……………….……………
(AJIT BHARIHOKE J.)
PRESIDING MEMBER
Sd/-
……………….……………
(SURESH CHANDRA)
bs MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI
FIRST APPEAL NO. 665 OF 2007
(Against the order dated 13.09.2007 in Complaint Case No. 80/2000(Hry)/RBT No.
121/2007 of the State Consumer Disputes Redressal Commission, U.T. Chandigarh)
1. Branch Manager Life Insurance Corporation of India Branch 11U, Plot No. 8, Sector-11 Mathura Road, Faridabad
2. Senior Divisional Manager Life Insurance Corporation of India Divisional Office-II Jeevan Pragati, Plot No.6 District Centre, Laxmi Nagar Delhi Through Assistant Secretary Life Insurance Corporation of India Northern Zonal Office Jeevan Bharti, Connaught Circus New Delhi
… Appellants
Versus
Laxman Swaroop S/o Raja Ram C/o M/s Goel Electronics Main Bazaar Old Faridabad
… Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants : Mr. Ashok Kashyap, Advocate
For Respondent : Mr. Narender S. Yadav, Advocate with
Mr. A. Anandan, Advocate
Pronounced on 11 th January, 2013
ORDER
PER VINEETA RAI, MEMBER
1. This appeal has been filed by Life Insurance Corporation of India and another
(hereinafter referred to as appellants) being aggrieved by the order of the State
Consumer Disputes Redressal Commission, U.T. Chandigarh (hereinafter referred to as
State Commission), which had allowed the complaint of Shri
Laxman Swaroop (respondent-complainant herein).
FACTS : -
2. In his complaint before the State Commission respondent-complainant had
contended that his wife Smt. Sunita Devi (hereinafter referred to as the life assured) had
taken a life insurance policy for an assured sum of Rs.3 Lakhs with the maturity date of
07.11.2027. It was a double benefit accident policy and, therefore, as per the terms of
the policy in case of death of the life assured, respondent/complainant was to be paid
an additional sum equivalent to the sum assured under the policy, if the death was
caused solely and directly as a result of an accident. It was further contended that
before issuing the insurance policy, thorough enquiries about the health of the life
assured had been made by the appellant/Insurance Company and she was also
examined by its doctors and found to be in good health. On 15.01.1998 the life assured
fell down from the staircase in her own house and sustained serious and multiple
injuries, including head injuries. She was immediately taken to City Hospital and
Maternity Home, Fariabad, where from she was referred to Dr. Puneet Mittal,
Orthopedic Surgeon, Faridabad on the same day. She, however, died three days later
i.e. on 18.01.1998 due to the above serious injuries received by her as a result of her
falling down from the staircase. After the death of his wife, respondent/complainant
visited the office of the appellant-Insurance Company and informed it about the same
and being a nominee of the life assured filed the necessary claim supported by relevant
documents. However, even though all the required formalities were completed, the
appellant-Insurance Company repudiated the claim vide its letter dated 02.11.1998 by
leveling false allegations that the life assured was suffering from Koch’s Chest
(Tuberculosis) for over one year and she had consulted a medical practitioner for
treatment and this important material information was suppressed while taking the
insurance policy and, therefore, the appellant-Insurance Company was fully justified in
repudiating the claim. Being aggrieved by the repudiation of the claim both on account
of the death of his wife as also non-payment of the additional sum as per the double
benefit accident clause, respondent-complainant filed a complaint before the State
Commission alleging deficiency in service and requested that the appellant-Insurance
Company be directed to pay the claim amount of Rs.6 Lakhs under the life insurance
policy taken by the life assured Smt. Sunita Devi since it was a double benefit accident
policy along with interest @ 18% per annum from the date of her death till the date of
actual payment to the respondent-complainant and also Rs.1 Lakh as damages and
Rs.11,000/- as litigation cost.
3. Appellant-Insurance Company on being served filed written statement refuting
these charges. It was contended that the contract of insurance being one of
‘uberrima fides’ i.e. contract of utmost good faith, the life assured was legally bound to
disclose all material facts, including the status of her health, which she failed to do. On
the other hand, as per information available from the City Hospital And Maternity Home,
Faridabad dated 29.04.1997, it was clearly established that the life assured had been
admitted in that hospital for medical complaints, which included Koch’s Chest i.e.
Tuberculosis. Therefore, appellant-Insurance Company was fully justified in repudiating
this claim as per conditions of the insurance policy. Apart from this, it was further
submitted that her death was not caused because of any injuries that she sustained
when she fell down from the staircase, as contended by respondent-complainant,
because as per the medical records these injuries were of minor nature and could not
have caused her death. Therefore, the claim was rightly repudiated.
4. The State Commission after hearing both the parties and on the basis of evidence
filed before it allowed the complaint by concluding that the appellants-Insurance
Company has not been able to conclusively prove that the life assured was suffering
from Koch’s Chest (Tuberculosis) and that she had suppressed this material fact. The
State Commission also concluded that the terms and conditions of the policy were not
brought to the notice of the life assured and in the absence of doing so it cannot be held
that the policy was void and that the life assured had withheld certain material
information regarding her health. The State Commission, therefore, directed the
appellant-Insurance Company to pay the respondent-complainant Rs.6 Lakhs under the
insurance policy with interest @ 9% per annum after three months of the death of the
life assured i.e. 18.04.1998 till payment. Sum of Rs.5000/- was also awarded as
compensation. Being aggrieved by this order, this first appeal has been filed.
5. Learned counsel for both the parties made oral submissions.
6. Learned counsel for the appellant-Insurance Company stated that the State
Commission erred in not taking cognizance of the important documentary evidence filed
before it, namely, the admission file of the City Hospital and Maternity Home, Faridabad
dated 29.04.1997, wherein it was clearly stated that the life assured had been suffering
from Koch’s Chest (Tuberculosis) and was on ATT for over one year. This amounted to
suppression of material facts and by withholding this information, the contract based on
utmost good faith was clearly breached. Apart from this, from the medical report of
Dr. Puneet Mittal, the orthopedic surgeon, who treated the life assured after her fall, it is
clear that the injuries caused were to the phalanx, little finger and shoulder. There was
no mention of any serious injury, including head injury. She was given
syrup Crilinctus and was advised review after one week. Clearly, these injuries were
not serious enough to have caused her death. Under the circumstances, the claim
under the double benefit accident policy was justifiably repudiated.
7. Learned counsel for the respondent-complainant on the other hand stated that the
State Commission has rightly concluded that there was no credible evidence to confirm
that the life assured suffered from Tuberculosis and the admission file from the City
Hospital and Maternity Home, Faridabad could not be relied on since it did not have any
signatures and was not supported by any evidence or affidavit, in this respect. It was
again contended that admittedly the life assured had fallen accidentally on 15.01.1998
and died within three days of the same. Thus, there was clearly a nexus between her
accidental fall and her death and, therefore, there was no justification in the repudiation
of the claim under the double benefit accident policy.
8. We have heard learned counsel for the parties. We agree with the view taken by
the State Commission that the appellants-Insurance Company was not able to produce
any credible evidence to prove that the life assured was suffering from Koch’s Chest
disease prior to her having taken the insurance policy. Production of a document to this
effect does not amount to proving the same and in this case mere production of an
admission file, whose authenticity has not been verified/confirmed, is not adequate
proof of any pre-existing disease. However, we find force in the contention of the
appellant-Insurance Company that from the documentary evidence produced by the
respondent-complainant i.e. the medical report from Dr. Puneet Mittal, the orthopedic
surgeon, who treated the life assured after her fall, does not indicate any serious injury
which could have caused her death. There was no mention whatsoever of any
head injury nor was she advised hospitalization which could have been necessary had
she sustained any major injury. Only minor injuries to the phalanx, little finger and
shoulder were mentioned in the report and respondent-complainant has not been able
to produce any evidence including the post mortem report to support his statement that
his wife died because of a serious head injury.
9. Keeping in view the above facts, we are unable to uphold the order of the State
Commission directing the appellant-Insurance Company to pay the respondent-
complainant the entire amount of Rs.6 Lakhs under the double benefit accident policy
and set aside the same. However, since the life assured had admittedly died during the
validity of the policy, the respondent-complainant is entitled to Rs.3 Lakhs being the
amount for which the life was insured.
10. In view of these facts, appellant-Insurance Company is directed to pay the
respondent-complainant Rs.3 Lakhs with interest @ 9% per annum from the date of
repudiation of the claim till its payment as also litigation cost of Rs.5000/-.
11. The appeal stands disposed of in the above terms.
Sd/-(ASHOK BHAN, J.)
PRESIDENT
Sd/-
(VINEETA RAI)
MEMBER Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI
FIRST APPEAL NO. 196 OF 2011(From the order dated 20.12.2010 in CC No. C.C. No.03/24 of the Maharashtra State
Consumer Disputes Redressal Commission, Mumbai)
Shri Ashok Kumar Sharma Plot No.73,Sector 17, Koper Khairane, Navi Mumbai 400 709 Through Power of Attorney Holder of Shri Sanjiv H. Sharma, Plot No. 73, Sector 17, Koper Khairane, Navi Mumbai 400709
… Complainant/Appellant
Versus
Ghanshyam Hemadev Res. at Last Apartment, 8th floor, 11-G, Mehta Road, Opera House, Mumbai 400007
M/s. Megha Properties Developers Pvt. Ltd. C/335, Big Splash Turbhe Road, Vashi Sector 17, Navi Mumbai 400 705, Mahartashtra
… Opp. Parties/Respondents
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Appellant : Mr. Sunil K. Kalra & Mr. Vikram Gola, Advocates
For the Respondents: Ms. Surekha Raman, Advocate
PRONOUNCED ON 11 th January, 2013
O R D E R
MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by the complainant/Appellant against the impugned
order dated 20.12.2010 passed by the Maharashtra State Consumer
Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in C.C. No.
CC/03/24 – Ashok Kumar Sharma Vs. Ghanshyam Hemadev & Anr. by which complaint
was dismissed.
2. Brief facts of the case are that the complainant booked Shop No. 2 with the
opposite party and made payment of Rs.7,46,182/- from time to time, but still
possession has not been handed over to the complainant, hence, filed complaint for
directions to the opposite party to hand over peaceful and vacant possession of Shop
No. 2 or in the alternative another shop of the same size along with prayer for awarding
interest, compensation, cost, etc. Learned State Commission vide impugned order
dismissed the complaint on the ground that after termination of contract there exists no
relationship between the parties as the ‘consumer’ and ‘service provider’ and complaint
is also time barred.
3. Heard the learned Counsel for the parties and perused record.
4. Learned Counsel for the appellant argued that as occupancy certificate has been
issued in 2005, cause of action continued upto 2005 and complaint filed in 2003 is well
within limitation and learned State Commission has committed error in dismissing
complaint on the ground of limitation, hence, appeal may be accepted and order of
State Commission may be set aside. On the other hand, learned Counsel for the
respondent argued that contract stood cancelled vide letter dated 11.12.1998 and
further vide letter dated 14.12.1998 complainant asked for refund of deposited amount
along with interest, hence, complaint filed in 2003 is clearly time barred and learned
State Commission has not committed any error in dismissing complaint on the ground of
limitation.
4. Perusal of record reveals that complainant booked Shop No. 2 with the opposite
party and made some payment. Ex.‘A’ reveals that complainant always made payments
with delay and Rs.5,68,822/- remained outstanding against him upto 10.11.1998. It is
admitted case of the parties that opposite party issued last and final reminder in
December, 1998 and asked complainant to deposit outstanding amount before
5.12.1998. It was also mentioned in reminder that in case he fails to deposit the
outstanding amount, the allotment shall stand cancelled without any further notice.
Complainant vide letter dated 14.12.1998 requested the opposite party to refund
Rs.7,46,182/- with 24% p.a. interest within 15 days failing which the complainant shall
take appropriate proceedings. This notice was again replied by the opposite party vide
letter dated 9.1.1999 in which complainant was directed to make all outstanding
payments within 10 days failing which shop will finally stand cancelled without any
further reference. In reply to this letter again the complainant vide letter dated
19.2.1999 asked opposite party to comply with the directions mentioned in letter dated
14.12.1998. These documents reveal that complainant failed to make payment as
agreed between the parties and opposite party failed to construct and give possession
of shop to the complainants, allotment stood cancelled in December, 1998 which was
reaffirmed in January, 1999 and as the complaint was filed in 2003, it is clearly time
barred and learned State Commission has not committed any error in dismissing
complaint being time barred.
5. Learned Counsel for the appellant placed reliance on (2008) 7 SCC 585 – DLF Universal Ltd. Vs. Ekta Seth and Anr . in which allotment was cancelled due to non-
payment of money but the Apex Court in exercise of powers under Article 142 directed
the builder to return 50% of the forfeited amount to the allottee and further observed that
this direction may not be treated as precedent. This citation does not help to the
complainant at all on the ground of limitation. He also placed reliance on JT 2008 (10)
SC 34 – V.N. Bharat Vs. D.D.A. & Anr . in which allotment was restored as show cause
notice was never received by the allottee and DDA cancelled the allotment. This citation
also does not help to the complainant because in the case in hand complainant admits
receipt of notice given by opposite party and has prayed for refund of money with
interest but has not taken appropriate steps within time and in such circumstances
complaint being clearly barred by limitation has rightly been dismissed by the learned
State Commission.
6. Consequently, appeal filed by the appellant against the respondent is dismissed
with no order as to costs. Sd/-
..……………………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
Sd/-
..……………………………
( SURESH CHANDRA )
MEMBER k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI
REVISION PETITION NO.3990 OF 2011(From the order dated 5.10.2011 in First Appeal No.102/2010 of the
Andhra Pradesh State Consumer Disputes Redressal Commission, Circuit Bench at Tirupathi)
Mudivarthi Radha Krishna S/o Raghavender Rao D.No. 27-2-56, Balaji Nagar, Nellore
… Petitioner
Versus
The Branch Manager, Andhra Bank Plot No.15, Ward No.21, Balajinagar, Nellore Distt. Nellore
… Respondent BEFORE:
HON’BLE MR. K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner : Mr. C.P. Suresh, Advocate
PRONOUNCED ON: 13 TH JANUARY, 2013
ORDER
PER SURESH CHANDRA, MEMBER
This revision petition has been filed by the petitioner, who is the original
complainant, against the order dated 5.10.2011 passed by the Andhra Pradesh State
Consumer Disputes Redressal Commission, Circuit Bench Tirupathi (‘State
Commission’ for short) by which the State Commission allowed the appeal filed by the
respondent/opposite party challenging the order dated 20.11.2009 passed by the
District Consumer Disputes Redressal Forum, Nellore by which the District Forum had
partly allowed the complaint of the petitioner and directed the respondent to pay
Rs.50,000/- to the complainant alongwith interest @ 9% p.a. from the date of filing of
the complaint. Vide its impugned order the State Commission the State Commission set
aside the order of the District Forum and dismissed the complaint with cost computed at
Rs.2,000/- payable by the petitioner. It is in these circumstances, that the present
revision petition has been filed.
2. We have heard Mr. C.P. Suresh, Advocate appearing for the petitioner and
perused the record.
3. The only point for consideration before us in this case is as to whether the
respondent Bank committed any deficiency in service in the collection of
the cheque deposited by the petitioner with it. It is not under dispute that the petitioner
presented the cheque in question dated 20.6.2007 for Rs.50,000/- with the respondent
Bank on 17.12.2007. The cheque was valid upto 20.12.2007 and it was an
outstation cheque drawn on Allahabad Bank, Hyderabad. The State Commission while
reversing the finding of the District Forum held that if there was any delay, it was the
complainant who was guilty of delay in presentation of cheque just three days prior to
the expiry of the cheque. More so, when it was an outstation cheque, he ought to have
presented the same well in advance to enable the OP Bank to collect the amount. The
complainant cannot present the cheque at the 11th hour and then complain that there
was delay which would constitute deficiency in service. In addition to this, the State
Commission has also recorded the following reason in support of the impugned order: -“We may also state that the complaint for the reasons not
known did not implead Allahabad Bank, Himayatnagar, Hyderabad as a party which had returned the cheque on the ground that it was stale. Appellant could prove by irrefutable documentary evidence on the day when the complainant had presented the cheque it has sent on the very same day for collection of amount to Hyderabad. Subsequent events were not in the hands of appellant bank in order to find out nor any deficiency in service attributable to Allahabad Bank at Hyderabad. Importantly, he has suppressed the document which viz. , cheque return memo, obviously he was afraid that entire case falls two ground. Considering the circumstances, we are unable to fix liability on the appellant bank nor we can say that there was deficiency in service on its part. The complainant is guilty of his own acts by presenting the chequejust three days before expiry. We do not subscribe to the view expressed by the Distt. Forum in this regard.”
4. We agree with the view taken by the State Commission. Admittedly only three
days’ time was left before the expiry of the cheque which was an outstation cheque,
when it was presented by the petitioner before the respondent Bank. The petitioner
should have known that he himself was to be blamed for such extraordinary delay in
presentation of thischeque and as such he had subjected himself to grave risk and if the
validity period expired before the cheque could reach the payee bank which was at
Hyderabad, the petitioner himself is to be blamed for this delay. The respondent Bank
could not be held responsible for the same since it had dispatched the cheque well on
time after its presentation for collection. Regarding the non-joinder of the payee
Allahabad Bank, Hyderabad with a view to prove the allegation regarding the delay on
the part of the respondent Bank, learned counsel submitted that only an oral request
was made to this effect before the District Forum and as such it was not possible to
produce any formal order of the District Forum regarding refusal to accept such request.
We are not convinced with the explanation. The District Forum apparently did not
appreciate the factual position properly while holding the respondent Bank deficient in
service. In the circumstances, we do not find any reason to interfere with the impugned
order which is based on the undisputed facts and the correct legal position.
5. Consequently, the revision petition fails. There shall be no order as to cost.…………………………..
(K.S. CHAUDHARI)PRESIDING MEMBER
…………………………..(SURESH CHANDRA)
MEMBERRaj/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 274 OF 2012 (From the order dated 24.05.2011 in Appeal No.2341/08 of the U.P. State Consumer
Disputes Redressal Commission, Lucknow)
U.P. State Industrial Development Corporation (UPSIDC) Having its Head Office, A-1/4, Lakhanpur, Post Box No.105, Kanpur , U.P. Through its Project Officer, Tronica City Administrative Office, Sector B-3, Tronica City, Ghaziabad (U.P.)
… Petitioner/OP
Versus
Smt. Shyama Rani W/o Sh. Ajay Kumar, R/o 2205/4, Chuna Mandi, Paharganj, New Delhi
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioner : Mr. Rajesh Raina, Advocate
For the Respondent : Smt.Shyama Rani, In person
PRONOUNCED ON 14 th January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 24.5.2011 passed by the U.P. State Consumer
Disputes Redressal Commission, Lucknow (in short, ‘the State Commission’) in Appeal
No. 2341 of 2008 – Smt. Shyama Rani Vs. Uttar
Pradesh Rajya Audhyogik Vikas Nigam Ltd. by which order of District Forum was set
aside and complaint was allowed and petitioner/OP was directed to allot industrial plot
of 500 sq. mt. or smaller size to the complainant/OP.
2. Brief facts of the case are that complainant applied for an industrial plot
measuring 500 sq. mt. and deposited a sum of Rs.1,22,500/- as the price of the
industrial plot with petitioner/opposite party. Opposite party allotted plot of 600
sq. mt. instead of 500 sq. mt. and asked complainant to make payment of plot at
escalated rate i.e. at the rate of Rs.1150/- per sq. mt. instead of Rs.935/- per
sq. mt. Complainant requested opposite party vide letter dated 17.1.2001 that due to
financial problem plot of smaller size measuring 450 sq. mt.may be allotted otherwise
plot be treated as surrendered. Complainant again vide letter dated 19.2.2001
requested for allotment of plot measuring 450 sq. mt. otherwise cancel allotment and
refund money. In pursuance to the aforesaid letters, opposite party refunded money as
allotment of smaller size of industrial plot was not possible. Complainant again wrote a
letter in October, 2006 and submitted that smaller size of plot was available, but
intentionally complainant’s plot has been cancelled, hence, again requested to allot
either original plot of 600 sq. mt. or plot of 400 to 450 sq. mts. at current rate which
application was rejected vide letter dated 22.11.2006 by opposite party, hence,
complainant filed complaint before the District Forum. Opposite party filed written
statement and submitted that complainant is not covered under the Consumer
Protection Act and further submitted that as per request of the complainant allotment
has been withdrawn and money has been refunded, hence, complaint may be
dismissed. Learned District Forum vide its order dated 12.11.2008 dismissed complaint
against which this revision petition has been filed.
3. Heard learned Counsel for the petitioner and respondent in person and perused
record.
4. It is an admitted case that complainant applied for an industrial plot measuring
500 sq. mt and deposited money and opposite party allotted industrial plot measuring
600 sq. mt. This fact is not disputed that complainant vide letter dated 17.1.2001
requested for allotment of plot measuring 450 sq. mt. instead of 600 sq. mt. and in the
alternate requested for treating this allotment as surrendered. Again vide letter dated
19.1.2001 complainant requested for allotment of plot measuring 450 sq. mt. instead of
600 sq. mt and further requested that either industrial plot of 450 sq. mt. be allotted or
allotment of 600 sq. mt. plot be cancelled and money may be refunded and in
pursuance to this letter money has been refunded to complainant by opposite party on
5.3.2001.
5. Later on vide letter of October, 2006, complainant again requested for the
allotment of industrial plot of 600 sq. mt. or other plot of 400 to 450 sq. mt. at current
rate which was rejected by opposite party.
6. Learned Counsel for the petitioner submitted that as complainant had
surrendered the plot and money was refunded to him complainant does not fall within
the purview of consumer. He further argued that as the plot was industrial, complainant
does not fall within the purview of Consumer Protection Act and further submitted that
complaint is time barred as money was refunded in 2001 whereas complaint has been
filed in 2007 and in such circumstance, learned State Commission has committed error
in allowing appeal and complaint, hence, revision petition may be accepted and order of
State Commission may be set aside. On the other hand, learned respondent submitted
that petitioner has cheated with the respondent and has not allotted industrial plot of
similar size as requested though plots of smaller size were available and in such
circumstance order passed by learned State Commission is not in accordance with law ,
hence, revision petition may be dismissed.
7. It is admitted case that complainant vide its two letters referred to above
surrendered industrial plot of 600 sq. mt and requested for refund of money and as
petitioner had already withdrawn allotment and refunded money in 2001, complainant
does not fall within the purview of C.P. Act. As refund was made in 2001 and complaint
has been filed in 2007 on the ground of cheating, etc., complaint is clearly time barred
and no application under section 24A has been filed along with the complaint and in
such circumstances, as complaint being time barred could not have been entertained by
the District Forum and learned State Commission has committed error in allowing time
barred complaint.
8. Complainant/respondent was allotted industrial plot. Complainant has nowhere
mentioned in the complaint that complainant prayed for allotment of industrial plot for
earning her livelihood by means of self-employment and in such circumstances,
complainant does not fall within the purview of consumer under Section 2 (d) of the C.P.
Act and on this count also complaint was liable to be dismissed and learned State
Commission has committed error in allowing complaint.
9. Consequently, revision petition filed by the petitioner against the respondent is
allowed and impugned order dated 24.5.2011 passed by learned State Commission is
set aside and order of District Forum is upheld. There shall be no order as to costs. ..……………Sd/-……………
( V.B. GUPTA, J)
PRESIDING MEMBER
..……………Sd/-………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.1348 OF 2012(From the order dated 07.12.2011 in First Appeal Nos.1437 & 1438 of 2011 of the
Karnataka State Consumer Disputes Redressal Commission, Bangalore)
Smt. Ganga Patil W/o Mallikarjun Patil, R/o Hebbal, Tq. Chittapur, District Gulbarga
… PetitionerVersus
1. The Executive Engineer (Electrical) O & M Division-II, GESCOM, Jewargi Under Bridge Road, District Gulbarga
2. The Assistant Executive (Electrical) O & M Sub-Division, GESCOM, Post Kalgi, Tq.
Chittapur, District Gulbarga … Respondents
REVISION PETITION NO.1349 OF 2012(From the order dated 07.12.2011 in First Appeal Nos.1437 & 1438 of 2011 of the
Karnataka State Consumer Disputes Redressal Commission, Bangalore)
Shri Prabhakar Patil S/o Bashanth Rao Patil R/o Bebbal, Tq. Chittapur, District Gulbarga
… PetitionerVersus
1. The Executive Engineer (Electrical) O & M Division-II, GESCOM, Jewargi Under Bridge Road, District Gulbarga
2. The Assistant Executive (Electrical) O & M Sub-Division, GESCOM, Post Kalgi, Tq.
Chittapur, District Gulbarga … Respondents
BEFORE:
HON’BLE MR. K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner : Ms. Kiran Suri, Advocate
PRONOUNCED ON: 14 th JANUARY, 2013
ORDER
PER SURESH CHANDRA, MEMBERSince both these revision petitions have been filed by the petitioners against a
common order passed on 7th December, 2011 by the Karnataka State Consumer
Disputes Redressal Commission, Bangalore (‘State Commission’ for short) by which the
State Commission had dismissed the two appeals filed by the two petitioners, these
petitions are being taken up together and disposed of by this common order.
2. The factual matrix of the two cases which have similar facts are like this.
Petitioner in R.P. No.1348/2012, Ganga Patil, had a pair of bullocks being used by him
as an agriculturist. Through his servant he sent the bullocks for grazing. On 3.10.2004,
while passing through the village path at about 11.00 a.m., the bullocks got electrocuted
due to the fall of live electric wire and died on the spot. Immediately a complaint was
lodged with the police which conducted Mahazar and post-mortem. Alleging deficiency
in service on the part of the respondents, the petitioner filed a consumer complaint with
the District Forum Gulbarga. In the other revision petition No.1349/2012 also similar
incident took place with the bullocks of the other petitioner who were being taken for
grazing by the servant of the petitioner. He too sustained the loss on account of the
electrocution incident which caused the death of his bullocks. He lodged another similar
complaint with the District Forum.
3. On notice, the OPs filed their written statement in which it was contended that the
incident had occurred due to the carelessness and negligence of the complainants. It
was further contended that the complainants are not consumers as defined under the
Consumer Protection Act and as such there was no relationship between the
complainants and the respondents. Since the claim made by the complainants was
exorbitant, the respondents, in all fairness, settled the compensation for Rs.5,000/- in
complaint filed by petitioner in R.P. No.1348/2012 and for Rs.2,000/- in the other
revision petition. Both the petitioners/complainants received the said compensation
without any protest. It was claimed that the compensation was towards full and final
settlement. Accordingly, the respondents/OPs prayed for dismissal of the complaints.
The District Forum vide its two separate orders in the two complaints passed on
31.3.2011 accepted the two complaints. In the complaint filed by the first petitioner,
Ganga Patil, the opposite parties/respondents were jointly and severally directed to pay
a sum of Rs.55,000/- to the complainant together with interest @ 9% p.a. from the date
of filing of the complaint towards loss on account of death of the bullocks and they were
also held liable to pay a sum of Rs.10,000/- towards compensation for mental agony
alongwith cost of Rs.2,000/- In the other complaint, the District Forum ordered the
opposite parties/respondents to jointly and severally pay a sum of Rs.28,000/- to the
complainant together with interest @ 9% p.a. from the date of filing of the complaint till
realization towards the loss on account of death of the bullocks besides awarding a
compensation of Rs.10,000/- for mental agony and Rs.2,000/- by way of cost of the
proceedings. Aggrieved by these orders passed by the District Forum, the
petitioner/complainants filed appeals before the State Commission for enhancement of
the compensation requesting for compensation of more than Rs.19 Lakhs. The State
Commission vide its common impugned order, dismissed the two appeals. In these
circumstances, the two petitioners have filed the present revision petitions reiterating
their request for enhancement of the compensation.
4. We have heard Ms. Kiran Suri, Advocate for the petitioners and perused the
record. Learned counsel contended that the compensation awarded by the fora below
was too inadequate and was nowhere near the loss and the mental agony suffered by
the petitioners. In this context, she has drawn our attention to the calculations of loss of
income to the petitioners on account of non-availability of the bullocks which comes
to several lakhs. In support of the amounts of compensation claimed by the petitioners,
the counsel also drew our attention to the rates of different agricultural produce obtained
by the petitioners from the Agricultural Produce Marketing Committee, Gulbarga. She
further submitted that it was not correct to say that the fora below do not have power to
award adequate compensation. She further submitted that in the present cases, the
District Forum and the State Commission have failed to assess due compensation and
what they have awarded is not correct and hence she strongly pleaded for
enhancement in the amounts of compensation in the two petitions. In support of her
contentions, she relied on the judgments of the Apex Court in the cases of Lucknow Development Authority vs. M.K. Gupta (1994) 1 Supreme Court Cases 243 and National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy & Anr. (2012) 2 Supreme Court Cases 506.
5. We have carefully considered the submissions made by learned counsel for the
petitioners in the light of the peculiar facts and circumstances of this case. Both the fora
below have held the respondents guilty of deficiency in service. The only question to be
considered is in respect of quantum of compensation for the deficiency in service. The
State Commission while dismissing the appeals for enhancement of the compensation
amounts has made the following observation: -
“We have gone through the grounds urged in the appeal memo and the arguments advanced. There is no proof that the said bullocks cost so much as on that day. Complainants during the course of enquiry by police stated that each bullock was worth of Rs.25,000/-. Under such circumstances, the D.F. has thoroughly considered each and every aspect of the matter and rightly come to the conclusion that the complainants are entitled for compensation and awarded compensation of Rs.55,000/- as far as a pair of bullock is concerned and Rs.28,000/- compensation as far as one bullock is concerned. It has also awarded separate compensation as well as litigation cost and the interest. Bearing in mind the relief granted the D.F. we are of the considered opinion that the said award is proper in consonance with the monetary loss suffered by the complainant. As already observed by us complainants have failed to make out substantial grounds and reasons so as to enhance the said compensation. Appeals appear to be devoid of merit.
6. We agree with the view taken by the State Commission while upholding the
quantum of compensation awarded by the District Forum. The maximum amount which
the claimants could have prayed for would normally not exceed the price of the bullocks.
In the absence of any evidence to the contrary, the District Forum has gone by the
police report indicating the worth of the bullocks at Rs.25,000/- each and pegged the
value of each bullock at Rs.30,000/- and after deducting the amount of Rs.5,000/-
already paid by the OP, awarded Rs.55,000/- in the case of Ganga Patil’s complaint
where a pair of bullocks had died due to electrocution and Rs.28,000/- (after adjusting
Rs.2,000/-) in the case of Prabhakar Patil’s complaint where one bullock was involved.
Besides this, the cost of the proceedings and compensation had also been awarded.
We consider this as a fair and just compensation in the given circumstances. It is not
understood as to why the petitioners, who now claim to have suffered losses worth
lakhs of rupees on account of the absence of these bullocks, did not replace them by
purchasing new bullocks which would have cost them only as much as the price of
bullocks rather than allegedly continuing to suffer financial losses over the period of
time. We, therefore, do not find any merit in the claims put forth by the petitioners in
these revision petitions and they are liable for dismissal. During the course of her
submission, learned counsel for the petitioners pointed out that the petitioners had not
accepted the cheques of Rs.5,000/- and Rs.2,000/- respectively sent by the
respondents by way of compensation to settle the claims. However, the District Forum
while partly accepting the complaints of the two petitioners had deducted these amounts
from the amounts of award in each of the two complaints. In view of this, learned
counsel submitted that the two amounts - Rs.5,000/- in the case of R.P. No.1348 of
2012 and Rs.2,000/- in the case of R.P. No.1349 of 2012 will have to be added to the
amounts awarded by the District Forum even if the impugned orders of the Fora below
are to be confirmed. We accept the submission made by learned counsel for the
petitioners subject to its verification by the District Forum.
7. In view of the above, we confirm the impugned order and dispose of two revision
petitions in terms of the above directions. There shall be no order as to costs. ………………Sd/-…………..
(K.S. CHAUDHARI)PRESIDING MEMBER
………………Sd/-…………..(SURESH CHANDRA)
MEMBERRaj/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.2544OF 2011(From the order dated 03.05.2011 in First Appeal No.A/10/1027 of the Maharashtra
State Consumer Disputes Redressal Commission, Mumbai)
Mr. Deepak Jayendra Mehata R/At no.5 B-3 Narendra Complex SP Road Dhar Khadi Cross Vaishali Nagar Dahisar (E) Mumbai Maharashtra.
...... PETITIONER
Versus
1. The Chairman HDFC Bank Ltd Retail Assets Division 3rd Floor Trade Star Building Opp. J B Nagar Andheri Kurla Road, Andheri (E) Mumbai Maharastra.
2. The Branch Manager HDFC Bank Ltd. Retail Assets Division 3rd Floor Trade Star Building Opp. J B Nagar Andheri Kurla Raod Andheri (E) Maharashtra.
3. The Manager/Director M/s OM Sai Motors Pvt. Ltd. Jyoti Plaza, S.V. Road, Kandivali (W), Mumbai-400067, Maharashtra.
....... RESPONDENTS
BEFORE:
HON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON'BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner : Ms. Jayshree Satpute, Advocate
For the Respondents : Mr.Rishab Raj Jain, Adv. for R1& R2
Mrs. Bindu Jain, Adv. for R3
PRONOUNCED ON: 14 th January, 2013
ORDER
PER SURESH CHANDRA, MEMBER
This revision petition has been filed against the order dated 03.05.2011 passed
by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (‘the
State Commission’, for short) by which the State Commission allowed the appeal of the
petitioner only against OP no.3/respondent no.3 and remitted the matter back to the
District Forum as against OP no.3 only and dropped the complaint against OPs no.1
and 2/respondent nos.1 and 2. The impugned order reads as under:-
“(i) Appeal is allowed only against Respondent/original Opponent No.3.
(ii) Impugned order as against Respondent/Original Opponent Nos.1 &2 stands confirmed.
(iii) The Consumer Complaint No.188/2008 is remitted back to the Forum as against Respondent/original Opponent no.3 only, in the light of the observations made in the body of the order.
(iv) Both parties, i.e. Appellant/original Complainant and Respondent/original Opponent No.3 shall appear before the Forum on 03.06.2011.
(v) The Forum shall give opportunity, if so desires by the Appellant/original Complainant to correct the description of original Opponent No.3. If such application is made, that should be decided on merit after hearing Opponent no.3.
(vi) The Forum shall also give proper opportunity to the parties before it, i.e. Complainant and Opponent No.3 to lead their respective evidence as per Provisions of Section 13(4) of the Consumer Protection Act, 1986 and thereafter them, settle the dispute according to law.
(vii) In the given circumstances, both the parties in appeal shall bear their own costs.
(viii) Appeal stands disposed of accordingly.”
2. Briefly stated, it is the case of the petitioner, who was original complainant before
the District Forum, that he had purchased a Tata Indigo car in the month of August,
2005 from M/s Om Sai Motors Pvt. Ltd., Kandivali (W), Mumbai, respondent no.3
herein. While an amount of Rs.1,40,000/- against the total purchase price of the car is
alleged to have been paid by the complainant-petitioner to the agent of respondent
no.3, he also applied for car loan of Rs.4,51,000/- from the HDFC Bank Ltd. who are
respondents no.1 and 2 in this petition and were OPs in the same order before the
District Forum. The loan amount sanctioned by the respondent bank to purchase the
said car is alleged to have been directly released by the respondent bank to
respondent no.3. It is the case of the petitioner that respondent no.3 failed to deliver the
possession of the vehicle purchased. It is also alleged by the petitioner that instead of
making delivery of the said car to him, the respondent no.3 had given delivery thereof to
another person called ‘Deepak Devendra Mehta’. Alleging deficiency in service on the
part of the respondent no.3/OP no.3, the petitioner filed a consumer complaint before
the District Forum in which the Chairman of the HDFC Bank was shown as OP no.1 and
the Branch Manager of the Bank was made as OP no.2 in addition to the
Manager/Director of M/s Om Sai Motors Pvt. Ltd. being included as OP No.3. On
notice, OPs appeared before the District Forum. The financial help provided by the
HDFC Bank for purchase of the car through a car loan was admitted by the HDFC Bank
but the respondent no.3 submitted that they had no dealing with the petitioner and they
had dealing with one Mr.Deepak Devendra Mehta to whom the car had been
delivered. Vide its impugned order dated 31.07.2010, the District Forum came to the
conclusion that the facts of this case showed that this is not a complaint which can be
tried by a Consumer Forum in a summary trial under the Consumer Protection Act,
1986 and as such held that the complaint is not maintainable before it and that the
complainant should have preferred a Forum of conventional Court to thrash out the
complicated issues by appropriate legal proceedings. Accordingly, the District Forum
dismissed the complaint.
3. As stated above, vide its impugned order the State Commission remanded the
matter to the District Forum for giving an opportunity to the parties for leading evidence
and to settle the dispute according to law after hearing the parties. Since the State
Commission, while remitting the matter back to the District Forum, dropped the
complaint against respondents no.1 and 2 who had been made OPs no.1 and 2 by the
complainant before the District Forum, the petitioner has now challenged this order
before us.
4. We have heard Ms. Jayshree Satpute, Advocate for the petitioner, Mr. Rishab Raj
Jain, Advocate for the respondent no.1 and 2 and Mrs.Bindu Jain, Advocate for the
respondent no.3.
5. It is contended by the learned counsel for the petitioner that the State Commission
has committed grave mistake in observing in its impugned order that the petitioner did
not have any grievance against the respondent bank and hence reached the conclusion
that the respondent no.1 and 2 were impleaded unnecessarily as the opponents. She
submitted that the District Forum without reaching a final conclusion in respect of the
complaint in question had simply observed that in view of the complicated nature of
issue involved the same was not maintainable before the Consumer Forum and hence
dismissed the complaint by its order by which the petitioner was directed to approach a
Civil Court competent to take cognizance of the dispute. It is the contention of the
learned counsel that since the State Commission has not looked into the merits of the
case, it would be wrong on its part to dismiss the complaint against therespondents no.1
and 2/OPs no.1 and 2. In any case, it was not correct on the part of the State
Commission to hold that since the consumer dispute was in respect of non- delivery of
the vehicle by the dealer , i.e., the respondent no.3 to the petitioner/complainant, the
presence of the bank/financial institution could be dispensed with. She submitted that
once the evidence is led by the concerned parties, the presence of the respondent
bank who was included as opposite party would be absolutely essential. She, therefore,
pleaded that the impugned order of the State Commission be set aside and the matter
be remanded back to the State Commission for deciding it on merits by retaining
the respondents no.1 and 2 as parties to the case.
6. Learned counsel for the respondent no.3 has also submitted that the matter be
remanded to the State Commission and not to the District Forum.
7. Learned counsel for the respondent bank has reiterated that the grievance of the
complainant is mainly against the persons, namely, Mr. Vilas P. Sawant, Mr. Sandeep
Kandalkar and Mr. Ajay Sawant who, according to the complainant had induced him to
deal with them and in that process he was cheated by them. He submitted that the role
of the bank was limited to grant of a car loan and recovery thereof from the petitioner
and as such the order of the State Commission dismissing the complaint against the
respondent bank is correct and needs to be confirmed.
8. We have carefully considered the rival contentions raised before us. The limited
issue which has arisen for our consideration in this case is as to whether the impugned
order of the State Commission dropping the names of respondents no.1 and 2 thereby
dismissing the complaint against these two respondents while remitting the matter for a
fresh trial to the District Forum is correct in the eye of law. It is not in dispute that the
petitioner had taken a car loan from the respondent bank. It is also not in dispute that
the respondent bank was getting the payment of EMIs for some time in repayment of
the said loan. According to the petitioner, the respondent bank released the amount of
car loan directly to the dealer. We do not see any denial to this aspect, which in any
case is presumed to be true as per the general practice in which the car loan usually is
released to the dealer of the car (which in this case would be respondent no.3). This
being the situation, the respondent bank needs to specifically point out and produce
documentary evidence in support thereof as to how and to whom the cheque on
account of the car loan was released by the respondent bank. Such documents would
invariably indicate the correct name of the person on whose behalf the amount was
being released by the respondent bank to the dealer. This aspect has not been dealt
with by the State Commission and there is no observation in this regard. In the
circumstances, when the State Commission thought it appropriate to remand the matter
to the District Forum for a fresh trial after considering the evidence to be adduced by
the respondent no.3 and the petitioner in support of their contentions and take a
decision on merits after hearing the parties, it is not understood as to how the presence
of the respondent bank could be dispensed with by dismissing the complaint against the
bank. In that view of the matter and to this extent, the impugned order of the State
Commission cannot be sustained in the eye of law being not based on any acceptable
evidence before it.
9. It is noted from the revision petition that the District Forum had dismissed the
complaint as not being maintainable under the Consumer Protection Act simply
because in its opinion it felt that the dispute involved complicated questions of law and
facts. It is further seen from paras 3 (II), (III) and (IV) of the revision petition that the
respondent bank failed to produce certain documents as per the direction given by the
District Forum and as such the District Forum did not reach any conclusion based on
evidence or merits of the case but only on its impression that because of the nature of
the dispute and complications involved, the complaint was not maintainable. In the
circumstances, when the petitioner has alleged non- delivery of the vehicle by the
respondent no.3 to him for which the loan amount had been released directly by the
respondent bank to the respondent no.3-dealer, it is necessary that the respondent
bank clarifies this position in respect of the person on whose behalf the car loan
cheque was released to the dealer/respondent no.3 before he could be held liable for
deficiency in service in respect of non delivery of the car to the petitioner. In other
words, the presence of the respondent bank is absolutely essential for reaching any
conclusion or taking a final view on the complaint in question. The observations of the
State Commission to the effect that the main grievance of the petitioner being against
the respondent no.3, the respondent bank has no role to play is incorrect and not based
on proper appreciation of the submissions made in the complaint and the written
statement of the parties.
10. In view of the above, we do not find any fault with the order of the State
Commission to remand the matter back to the District Forum for recording evidence and
hearing the parties afresh but we do not agree with the impugned order regarding the
dismissal of the complaint against the respondents no.1 and 2 thereby exempting them
from appearing and leading the evidence before the District Forum. We, therefore,
accept the revision petition partly and set aside the impugned order to the extent that it
dismisses the complaint against the respondent no.1 and 2. Rest of the impugned
order is upheld. Consequently, the District Forum is directed to give proper opportunity
to the petitioner and all the respondents who were OPs before the District Forum to lead
their respective evidence and thereafter settle the dispute after hearing the parties in
accordance with the provisions of law. We make it clear that the petitioner and the
respondents would be at liberty to lead their evidence with reference to the allegations
of deficiency in service made in the original complaint and the District Forum shall take
a decision on merits without being influenced by any of the observations made by the
State Commission in its impugned order.
11. The revision petition thus stands partly allowed and disposed of in terms of the
aforesaid directions with the parties bearing their own costs.
……………Sd/-….……………
(K. S. CHAUDHARI, J.)
PRESIDING MEMBER
…………Sd/-…….……………
(SURESH CHANDRA)
bs MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 237 OF 2009
(From the order dated 23.10.2008 in Appeal No. 1472/2008
of Madhya Pradesh State Consumer Disputes Redressal Commission)
THE NEW INDIA ASSURANCE CO. LTD. Through its Regional Manager, 87 – Mahatma Gandhi Fort, Mumbai – 400 001 (Maharashtra)
...........Petitioner(s)
Versus
1.Chandra Kumar Chatrath R/o 130 Dusheera Maidan Ujjain (MP)
2. Raksha T.P.A. PVT. LTD. 15/5, Escort Corporate Centre, Faridabad, Haryana
...........Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner(s) : Mr. Mohan Babu Aggarwal, Advocate
For the Respondent No.1 : Mr. Pankaj Kumar, Advocate
For the Resp. No.2 : Ms. Sugandha Taneja, Advocate
Exparte
PRONOUNCED ON : 14 th JAN. 2013
O R D E R
PER SURESH CHANDRA, MEMBER
Delay of eight days in filing the present revision petition is condoned.
2. We have heard Mr. Mohan Babu Aggarwal, Advocate for the petitioner and Mr.
Pankaj Kumar, Advocate for the respondent no. 1. Respondent no. 2 remained exparte.
3. Briefly stated, the facts of the case are that the father of respondent no. 1 was
insured with the petitioner insurance company for a sum of Rs.2 lakh under a medi-
claim policy and he had undergone a treatment for which he spent
Rs.1,63,109/-. Against the claim of Rs.1,63,109/- made by the respondent – 1 /
complainant, the petitioner insurance company paid Rs.20,000/- only on the plea that
treatment in question was not a surgical treatment and for such non-surgical treatment
only a total sum of Rs.20,000/- could be paid or reimbursed as hospitalisation
expenses. Not satisfied with the decision taken by the insurance company in restricting
the claim to Rs.20,000/-, the petitioner knocked the door of the consumer fora by filing a
complaint with the District Forum. The District Forum vide its order dated 28.03.2008
held that the procedure of putting the tubes in the nose is not a surgical operation and
as such it non-suited the claim of the petitioner / complainant and dismissed the
complaint. Aggrieved by this order of the District Forum, the respondent no. 1 went in
appeal before the Madhya Pradesh State Consumer Disputes Redressal Commission,
Bhopal (State Commission ‘for short’) which vide its order dated 23.10.2008 allowed the
appeal and directed the petitioner insurance company to pay the respondent no. 1 /
complainant a sum of Rs.1,63,109/- minus the amount already paid, within two months
from the date of the order. In spite of service of the notice by the State Commission,
none appeared on behalf of the petitioner insurance company and the other
opposite party, hence they were proceeded exparte by the State Commission. It is
against this order of the State Commission that the petitioner / insurance company and
OP No. 2 has filed the present revision petition.
4. The only issue which has arisen for our consideration in this case is as to whether
the treatment undertaken by the father of the respondent no. 1 was a surgical treatment
or not? It is seen from the impugned order that the State Commission has allowed the
appeal and the claim of the complainant on the basis of a certificate of Dr. Mukesh Jain,
MS (ENT) to the effect that the “tracheostomy” performed requires making a hole in the
respiratory passage and, therefore, it is a surgical procedure. Since the doubt raised by
the insurance company about the nature of the treatment taken by the assured had
been resolved with the certificate of the Doctor, the State Commission accepted the
prayer of the complainant and allowed the entire amount spent for the treatment in
terms of the medi-claim policy. In this context, learned counsel for the petitioner drew
our attention to the definition of “surgical operation”, contained in para 63 of the
Annexure I, which forms part of the policy, in question. According to the counsel, the
procedure in question would not amount to surgical operation as per the definition
contained in the terms and conditions of the medi-claim policy. In view of this, learned
counsel pleaded that the impugned order accepting the full claim was bad in law and
deserves to be set aside.
5. We have considered the contentions raised by learned counsel for the petitioner. It
is to be noted that in spite of notice sent by the State Commission, the petitioner
insurance company chose to remain absent and hence proceeded exparte. Petitioner
has not placed any material to support its claim about non-receipt of the notice from the
State Commission. It is also seen that the petitioner has not placed any rebuttal in
respect of the certificate issued by Dr. Mukesh Jain, who is ENT Surgeon and hence an
expert, on the basis of which the State Commission has passed the impugned order. In
view of these facts, no fault could be found with the impugned order. Consequently, we
dismiss this revision petition but with no order as to costs.
..……………Sd/-………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..…………Sd/-…………………
(SURESH CHANDRA)
MEMBERRS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1614 OF 2012 (From the Order dated 17.11.2011 in Appeal No. 269/2011 of
Maharashtra State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad)
Shri Vijay Maruti Dhandwade R/o Behind Hotel Maujam Professor Colony ChowkSavedi, Ahmednagar Maharashtra
… Pettiioner
Versus
Shilpa Prabhakar Rawas R/o Balikashram Road Shinde Mala, AhmednagarMaharashtra
Respondent BEFORE: HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner : Mr. Yatin M. Jagtap, Advocate Pronounced on : 14 th January, 2013
PER SURESH CHANDRA, MEMBER
There is a delay of 18 days in filing this revision petition. For the reasons
submitted in the application filed by the petitioner for condonation of delay, the delay is
condoned.
2. This revision petition challenges the order dated 17.11.2011 passed by the State
Consumer Disputes Redressal Commission, Mumbai, Circuit Bench Aurangabad (‘State
Commission’ for short) by which the State Commission dismissed appeal No.269 of
2011 in complaint case No.151 of 2010 filed by the petitioner and upheld the order
dated 7.4.2011 passed by the District Consumer Forum, Ahmednagar.
3. Briefly stated, petitioner herein was the opposite party before the District Forum
and the respondent was the original complainant. The complainant/respondent agreed
to purchase one family unit No.201 in the building called “Vyankatesh Heights” from the
petitioner. An agreement was entered into between the petitioner and the respondent on
10.3.2006 for a total consideration of Rs.3,80,000/-. While an amount of Rs.80,000/-
was paid by the respondent to the petitioner on 10.3.2006, for the remaining amount,
the respondent availed of loan from the HDFC Bank,Ahmednagar. The HDFC Bank is
stated to have sanctioned the loan on 16.3.2006 and in pursuance thereof issued
cheque of Rs.1,75,000/- and later another cheque of Rs.1,00,000/- on 12.5.2006. Both
the amounts were received by the petitioner. Thereafter, the respondent is stated to
have paid Rs.20,000/- on 1.6.2006 and an amount of Rs.9500/- on 9.6.2006 thereby
completing the payment of entire consideration in respect of the flat. Even after receipt
of the total consideration, the petitioner did not handover the possession of the flat
and kept certain works incomplete like light fitting, colouring, plumbing, etc. In view of
this, the respondent filed a consumer complaint before the District Forum. The petitioner
appeared before the District Forum and resisted the complaint. He denied any
transaction for the purchase of said flat. However, he admitted having received an
amount of Rs.1,75,000/- on 16.3.2006 and Rs.1,00,000/- on 12.5.2006. It was submitted
by the petitioner before the District Forum that since the husband of the respondent and
the petitioner were friends, nominal transaction of sale and purchase was entered into.
According to the petitioner, the amount had been received by him was returned to the
husband of the respondent as he was facing financial crisis. He, therefore, submitted
that there was no relationship of consumer and service provider between the
respondent and the petitioner.
4. After hearing both the parties, the District Forum partly allowed the complaint
and directed the petitioner/opposite party to execute the sale deed in favour of the
respondent/complainant in respect of the said flat No.201 in “Vyankatesh Heights” and
also directed the petitioner to pay Rs.25,000/- by way of compensation and Rs.10,000/-
for mental agony. Aggrieved by this order of the District Forum, the petitioner filed an
appeal against the order before the State Commission which was dismissed by the
State Commission by the impugned order upholding the order of the District Forum. In
these circumstances, the petitioner has now filed the present revision petition aggrieved
by the impugned order.
5. We have heard Mr. Yatin M. Jagtap, Advocate, counsel for the petitioner and
perused the record. The main contention of the learned counsel is that only a nominal
agreement of sale was entered into because the husband of the respondent and the
petitioner were friends but the amounts received in that respect were returned by the
petitioner to the husband of the complainant because he was facing financial crisis. In
view of this, it was submitted by learned counsel for the petitioner that there was no
question of executing any sale deed. He submitted that the State Commission erred in
passing the impugned order without proper appreciation of the factual matrix and based
on erroneous assumption of facts and hence the impugned order is contrary to the
provisions of law and the material available on record and hence the same deserves to
be set aside.
6. We have considered the submissions made by learned counsel for the
petitioner. We find that both the Fora below have returned their concurrent finding in
favour of the respondent/complainant based on the facts of the case supported by the
evidence placed before them. While upholding the order of the District Forum and
dismissing the appeal of the petitioner, the State Commission has recorded the
following reasons in paras 6 and 7 of the impugned order:-
“6. Adv. Patil submitted that, agreement to sale executed by appellant in favour of complainant. According to said price of flat i.e. Rs. 3,80,000/- was paid by the complainant herself and through HDFC Bank. Appellant received said consideration. Proof in that respect was produced by the complainant before the Forum. Allegations of appellant that, said amount was returned to the husband of complainant is not proved by the appellant. No documentary evidence to show that said amount was returned and sale transaction was nominal is produced by the appellant. District Forum rightly considered all the
facts while allowing the complaint.7. We heard both counsels and perused the record. Appeal decided at admission stage with consent of both counsels. It is an admitted fact that, agreement to sale was entered into between the complainant and appellant. It is also admitted fact that consideration amount of Rs.3,80,000/- was paid by the complainant to appellant. The contention of appellant that, said amount was returned to the husband of complainant is not proved by any documentary evidence by the appellant. In fact, legal notices were issued by complainant to the appellant for execution of sale deed and possession of flat. If husband of complainant would have been friend of the appellant legal notice would not have been issued for the possession of flat. The documents which were produced by the appellant to show that husband of complainant got the deposit amount from the appellant were not about the disputed flat. When it is admitted by appellant that, total consideration of the flat No.201 was received by appellant the contention that said amount was returned to the husband of complainant as he was facing financial crises cannot be believed. The agreement to sale was executed between the parties and accordingly total consideration was paid by the complainant. In our view, District Forum rightly considered all the facts while allowing the complaint. We do not want to interfere the order of Forum.”
7. We agree with the concurrent finding of facts returned by the Fora below and do
not see any ground to interfere with the same. Keeping in view the ratio laid down by
the Apex Court in the case of Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. [(2011) 11 SCC 269], this revision petition is liable to be dismissed and it is
accordingly dismissed at the threshold with no order as to costs.
..……………Sd/-…..……….
(K.S. CHAUDHARI, J.) PRESIDING
MEMBER
….…………Sd/-…………… (SURESH CHANDRA)
MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 270 OF 2006
(Against the order dated 16.03.2006 in C.D. No. 41 of 2001 of the A.P. State Consumer
Disputes Redressal Commission, Hyderabad)
Yashoda Super Speciality Hospital Represented by its Managing Partner Somajiguda, Raj Bhavan Road Hyderabad, A.P.
… Appellant
Versus
1. Smt. A. Subbalakshmi W/o Late Shri G. Ramakistaiah R/o H.No. 12-12-76, Ravindra Nagar Sethaphalmandi Secundrabad-500061 (A.P.)
2. New India Assurance Co. Ltd. Divisional Office 5-2-174/2, Madan Mohan Buildings R.P. Road Secundrabad, A.P.
… Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants : Mr. Y. Raja Gopala Rao, Advocate with
Mr. Hitendra Nath Rath, Advocate
For Respondent : NEMO for R-1
Mr. Salil Paul, Advocate for R-2
Pronounced on 15 th January, 2013
ORDER
PER VINEETA RAI, MEMBER
1. This appeal has been filed by Yashoda Super Speciality Hospital, Hyderabad
(hereinafter referred to as the appellant-hospital) being aggrieved by the order of the
A.P. State Consumer Disputes Redressal Commission, Hyderabad (hereinafter referred
to as the State Commission), which partially allowed the complaint of medical
negligence and deficiency in service filed against them by Smt. A. Subbalakshmi,
respondent no.1 herein and original complainant before the State Commission.
FACTS :-
2. In her complaint before the State Commission, respondent no.1 had contended
that her late husband (hereinafter referred to as the patient), who was a Senior
Accountant in the Accountant General’s office, had a minor fall from his bed while
sleeping and approached the Central Government Health Scheme (CGHS) dispensary
with a complaint of muscular pain on the right side near the shoulder. The medical
examination revealed slight tenderness and swelling on the right shoulder blade region,
for which he was advised to consult an orthopedic surgeon. Patient thereafter got
admitted in the appellant-hospital and the medical examination conducted by the
orthopedic surgeon revealed that there was no orthopedic defect but there was some
congestion on the nerve shoulder region which was fixed with collar and sling so as not
to disturb the position. Respondent no.1 noted that on 18.04.2000 the eyes of her
husband were yellowish, which was indicative of jaundice and she informed the
concerned doctors. It was only two days later that a blood test was conducted, which
indicated that moderate jaundice was prevalent. According to respondent no.1, around
5.00 p.m. on 20.04.2000 her husband complained of breathlessness and a feeling of
uneasiness and when she informed the doctor and nurses on duty, they were very
casual and administered an injection to the patient late in the evening but his condition
deteriorated. It was, therefore, decided to shift him to the Intensive Care Unit but there
was delay in doing so because no stretcher or wheelchair was available and ultimately
he was taken to the Intensive Care Unit at 8.50 p.m. and expired there at 10.00
p.m. According to respondent no.1, if her husband had been given proper and prompt
medical treatment and necessary precautionary measures taken, including immediate
treatment for jaundice, during his stay in the appellant-hospital, his premature death
could have been avoided. Being aggrieved she issued a legal notice on grounds of
medical negligence to appellant-hospital as well as the treating doctor claiming a sum of
Rs.10,50,000/- as compensation but to no avail. Therefore, respondent no.1 filed a
complaint before the State Commission requesting that appellant-hospital and the
treating doctor be jointly and severally directed to pay her Rs.10,60,000/- as
compensation for mental pain and torture, medical expenses, legal & miscellaneous
expenses and interest @ 24% per annum from 14.08.2000.
3. Appellant-hospital on being served filed a written statement denying the above
allegations. It was contended that as soon as the patient approached appellant-
hospital with complaints of pain on the shoulder etc. on 14.04.2000, he was immediately
examined by a consultant orthopedic surgeon, who confirmed that there was no fracture
but only an injury to the soft tissue around the shoulder. He was admitted into the
hospital and was treated for the same and a cuff and collar was put on him and he was
advised rest. Since the patient had diabetes, medicines were also prescribed for the
same and special care was taken to check the sugar level as also blood pressure
etc. As a result of the medical treatment given to him, the pain on the right shoulder
considerably subsided and it was planned to discharge this patient on
21.04.2000. However, on 19.04.2000 when the patient developed yellowish colouration
of the eyes, he was examined by Dr. M.V. Rao, a Physician, and a Liver Function Test
conducted confirmed the jaundice, for which he was given due treatment. On
20.04.2000, when the patient complained of breathlessness and sweating, he was
immediately shifted to the Acute Medical Care Unit and a cardiologist attended to him,
wherein he was diagnosed with acute myocardial infarction, for which he was given
treatment, including cardio pulmonary resuscitation. He was also put on the ventilator
but despite the best efforts, he died at 10.00 p.m. The death of the patient occurred due
to the sudden myocardial infarction, which is quite common in diabetic patients and,
therefore, his death could not be attributed to any medical negligence on the part of the
appellant-hospital/doctors. Therefore, the complaint made by respondent no.1 of
medical negligence and deficiency in service against appellant-hospital was baseless.
4. The State Commission, after hearing the parties and on the basis of evidence filed
before it, concluded that so far as the orthopedic problem of the patient was concerned,
he was treated with reasonable care and caution and, therefore, no case of medical
negligence against respondent no.2 i.e. the specialist doctor was established and also
consequently respondent no.3, the New India Assurance Co., with which he was
insured. However, the State Commission found appellant-hospital guilty of not taking
due care and giving prompt treatment to the patient. In this connection, the relevant
part of the State Commission’s observation is as under :-
“… There are many unanswered questions with respect to cause of death whether it can be Pulmonary embolism or Myocardial Infraction which only the opposite parties can answer but they have not chosen to do so either in their counter, affidavits, discharge summary or case sheet, but only came up with this plea of Myocardial Infraction during arguments. Therefore, we are of the considered opinion that though opposite party No.2 treated the patient with reasonable care and caution so far as orthopaedic problem is concerned, we are of the view that opposite party No.1 hospital did not take due care and precaution by giving prompt treatment to the patient. The patient joined the hospital on 14-4-2000 complaining of right shoulder pain and was put on a cuff and colar and was admittedly to be discharged on 18-4-2000. On 20-4-2000 he developed breathlessness and at 5.00 p.m. as per the complainant’s version and at 7.45 p.m., as per the version of the opposite parties. It is pertinent to note that there is a visible correction in the timings on page – 26 of the case sheet which has not been initialed or signed. Post mortem report could probably have confirmed the factors leading to the cause of death, however no post mortem was insisted on by the complainant or his relatives and therefore, the compensation being awarded is a nominal amount. It is the case of the complainant that the doctors and nursing staff were not alert enough immediately when the breathlessness developed. The patient was already admitted in the hospital for shoulder pain five days prior to the attack of breathlessness and the burden lies on the hospital to prove that they were alert enough and attended to him immediately. …”
5. The State Commission, therefore, directed appellant-hospital to pay a sum of
Rs.2,00,000/- with interest @ 9% per annum from the date of filing of complaint i.e.
14.03.2001 till the date of realization within six weeks, failing which the said sum would
attract interest @ 9% per annum together with costs of Rs.5000/-. Hence, the present
first appeal.
6. Learned counsel for both the parties made oral submissions.
7. Learned counsel for the appellant-hospital stated that the State Commission erred
in concluding that it was guilty of medical negligence and deficiency in service. In fact,
immediately on patient’s admission, all the necessary diagnostic tests like x-ray, ECG
etc. were conducted and there was no indication of any heart problem since the ECG
was normal. However, since the patient was a known case of diabetes, he was
prescribed medication to control his sugar levels. His injury was also properly treated by
a specialist orthopedic doctor and thereafter his condition continued to be carefully
monitored and had improved. On 20.04.2000, around 8.00 p.m. (and not 5.00 p.m. as
contended by respondent no.1) when the patient developed breathlessness and
sweating, which was a sudden complication, he was immediately referred to a
cardiologist, who attended to him within ten minutes. Thereafter, he was shifted to the
Intensive Care Unit within twenty minutes and put on a ventilator around 8.30 p.m. The
relatives of the patient were also informed about his critical medical condition and poor
prognosis. A team of doctors put in their best efforts to save the life of the patient but
unfortunately failed to do so. The sudden heart attack was neither due to negligence of
the doctors or administration of any wrong medicine. Thus, the appellant-hospital
cannot be held to be guilty for the unfortunate death, which occurred despite the best
possible treatment as per standard procedures.
8. Counsel for respondent no.1 on the other hand stated that the appellant-hospital
took the plea that the patient died of a myocardial infarction only at the argument stage
before the State Commission. This fact was not mentioned either in the death report or
in the medical history of the patient filed before the State Commission. There was no
evidence that an ECG was conducted and the appellant’s explanation that the ECG and
its findings had faded away with the passage of time lacks credibility. The patient was
under the treatment and care of the appellant-hospital for six days and because they did
not properly monitor his condition, it deteriorated with the onset of jaundice and other
complications for which the State Commission rightly held it responsible for medical
negligence and deficiency in service.
9. We have heard learned counsel for both parties and have carefully gone through
the evidence on record. The fact that the patient was admitted after a fall in his sleep to
the appellant-hospital, wherein he was treated by opposite party no.2, is not in
dispute. It is further a fact that six days after his admission in the hospital, patient
developed breathlessness and severe uneasiness and he was examined by a
cardiologist and shifted to the Intensive Care Unit, where he passed away. The
appellant-hospital has sought to explain the cause of his death as a result of sudden
myocardial infarction. However, we note (as also observed by the State Commission)
that this fact has not been recorded either in the case history or death certificate of the
patient. Further, appellant-hospital’s contention that an earlier ECG conducted on the
patient did not indicate any abnormality is also not available on the record. When
specifically asked by us if there was any proof of the same, learned counsel for the
appellant-hospital stated that it was very much a part of the case history and related
papers filed before the State Commission but unfortunately the ECG image as also the
observations recorded on it were not visible since these had faded away. We agree
with the State Commission that this is not a plausible explanation. We further agree
with the finding of the State Commission that the appellant-hospital has not been able to
satisfactorily explain as to what caused the death of the patient, which leaves many
unanswered questions, including whether he was given prompt and adequate treatment
by the appellant-hospital.
10. In view of these facts, we see no reason to interfere with the order of the State
Commission and uphold the same. This first appeal stands dismissed. The appellant-
hospital is directed to pay respondent no.1 a sum of Rs.2,00,000/- with interest @ 9%
per annum from the date of filing of the complaint i.e. 14.03.2001 till payment along with
litigation cost of Rs.5000/-.
Sd/-
(ASHOK BHAN, J.)
PRESIDENT
Sd/-
(VINEETA RAI)
MEMBER Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
(FIRST APPEAL NO.387 OF 2007)
(From the order dated 19.03.2007 in CC No.127/1999of the State Commission, Gujarat)
Kersi F.Dalal ……Appellant(s)
Versus Dr.Janak K.Mehta & Ors. ……Respondent(s)
BEFORE:HON’BLE MR.JUSTICE ASHOK BHAN, PRESIDENTHON’BLE MRS.VINEETA RAI, MEMBER
For the Appellant (s) : Mr.S.J.Mehta, Advocate For the Respondent (s) : Dr.Sushil Kr.Gupta, Advocate for R-1
and R-2. Pronounced on 15 th January, 2013
ORDER
PER VINEETA RAI, MEMBER
This revision petition has been filed by Kersi F. Dalal(hereinafter referred to as
the ‘Appellant’) being aggrieved by the order of the State Consumer Disputes Redressal
Commission, Gujarat(hereinafter referred to as the ‘State Commission’) which had
dismissed his complaint of medical negligence filed against Dr.Janak K.Mehta and
Dr.Jayesh J.Shah, Respondents No.1 and 2 herein. The National Insurance Co.Ltd. is
Respondent No.3 in this case.
In his complaint before the State Commission, Appellant, a practicing Advocate,
who had also earlier been treated by Respondent No.1, consulted him on 07.01.1997
with complaints of feeling feverish with abdominal pain. He was given a course of
antibiotic injections for 4 days but instead of getting relief, his fever rose to 104 FH and
his stomach became very distended and he also started vomiting. In spite of this,
Respondent No.1 without trying to find out the cause of his multiple medical complaints,
did not advise any pathological or other examination e.g. X-ray, stool examination
etc. and instead he referred the Appellant to Respondent No.2 who conducted a
sonography twice but could not get a good image. During this procedure, two big straps
were tightly tied across appellant’s stomach which caused him extreme distress. As a
result of the defective sonography, Appellant’s ailments could not be properly diagnosed
and the infection spread into the stomach. Respondent No.1 instead of treating him for
this condition, asked him to go to Patwa Nursing Home to an unknown doctor. It was
only another senior surgeon whom the Appellant consulted in the late evening, who
advised him to immediately get admitted into the hospital and be put on a saline drip
prior to an emergency operation for appendicitis. The saline drip which was fixed by
Respondent No.1 was done so carelessly that Appellant’s biceps and forearm became
swollen upto three times. It was with difficulty that the Appellant managed to get a ticket
to Pune and got admission in Jehangir Nursing Home where he underwent a 3½ hours
surgery and had to stay there for 4 months undergoing extreme mental agony as also
substantial expenditure on boarding, lodging as also on medical treatment. Besides,
Appellant’s profession also suffered due to his inability to regularly attend to his
clients. Being aggrieved by the treatment and medical negligence on the part of
Respondents No.1 and 2, Appellant filed a complaint before the State Commission and
requested that they be directed to jointly and severally pay him compensation of Rs.10
lakhs with interest @ 18% per annum, Rs.30,000/- as costs and any other damages as
considered appropriate.
On being served, Respondents filed written statements before the State
Commission challenging the allegations made against them by the
Appellant. Respondent No.1 contended that he had a Degree in Medicine and is fully
qualified as a General Medical Practitioner who had been practicing medicine for
several decades and had been the family doctor of the Appellant for about 2
decades. On 07.09.1997 on a request from the Appellant, he visited him and noted that
he had complaints of watery diarrhea, vomiting and mild pain on the left side of the
lower abdomen. Respondent No.1 thoroughly examined him and gave him two
injections i.e. Gentamicin and Ranitin and also prescribed oral medication. The
Appellant’s general condition was satisfactory. His blood pressure was 140-90 and
there was no distension of the abdomen and his fever was 99 Deg.FH. He was advised
liquid diet. In the evening, Appellant phoned the Respondent No.1 and requested that
since he does not want to take oral drugs, he may be given injection and a drip. On
08.09.1997 when Respondent No.1 again examined appellant, he had only mild fever
and pain and no diarrhea. However, he was put on an IV drip slowly for one hour and
after examination his pulse rate, blood pressure etc. was found to be normal and his
general condition continued to be good. In this way, he was given conservative
treatment to manage his minor medical complaints. On 10.09.1997, Appellant
continued to complain of vague pain and Respondent No.1, therefore, advised him to
consult Dr. Rahul Thakore, a senior surgeon, for further investigations. Dr.Thakore
gave Appellant an appointment for 5.15 pm and Respondent No.1 also accompanied
the Appellant to Dr.Thakore who after examining him advised the sonography and X-ray
to be done at the clinic of Respondent No.2. The sonography was satisfactorily
conducted and after seeing the two reports, Dr.Thakore immediately advised the
Appellant to get admitted in Patwa Nursing Home where surgery may be
required. However, the Appellant did not get himself admitted there and instead
requested the Respondent No.1 to give him a drip which was done. There was
however no swelling on the Appellant’s forearm or biceps. It was contended that
Respondent No.1 had medically treated the Appellant as per the standard medical
practice and used his best professional skills. It was Appellant who did not heed the
medical advice for which Respondent No.1 cannot be held responsible. Respondent
No.2 also denied that he had conducted a defective sonography. He contended that he
is a qualified Radiologist and Sonologist and has a post-graduate degree in
Radiology. He had used the best available equipment for conducting the sonography
and the same was satisfactorily done. It was specifically denied that any flaps or straps
were tied on the abdomen of the Appellant. In fact, when the sonography of the
abdomen is performed there cannot be any obstruction between the machine and the
skin of the patient and therefore, the question of putting any obstruction like a flap did
not arise. The State Commission after hearing the parties and on the basis of the
evidence produced before it, dismissed the complaint by observing as under:“There is nothing oral or written on record or evidence to suggest that
treatment given to Mr.Dalal was incomplete, inappropriate or wrong. Mere say of Mr.Dalal (in absence of any documentary or oral evidence) cannot be accepted as truth. Mr.Dalal had ample time and opportunity to bring forth the evidence to substantiate the claim, but sadly complainant has failed to avail it. As far as opponent No.1 Dr.Mehta is concerned, though Mr.Dalal was not serious (as indicated by records showing his physical condition and vital data) Dr.Mehta showed indulgence to take him to Dr.Thakore for consultation. Dr.Shah for sonography and put I/V drip at home. These acts in itself will suggest that he exercised due care expected of him. As far as treatment in form of medicine is concerned nothing indicates that the medicines given were wrong or inappropriate done o that medicine had harmed Mr.Dalal. As far as Dr.Thakore’s management is concerned, Mr.Dalal chose to ignore his advice to get hospitalized for treatment and chose to go to Pune of his own sweet will for further treatment. We do not have records of medical management of said treatment at Pune on record……………..Dr.Shah against whom allegations of poor quality of x-ray & sonography are not proved; Mr.Dalal has not only not produced the film nor an opinion on that film. Dr.Shah also rules out as physical impossibility to put straps tightly or for that matter even to put the strap as then sonography will not be possible, but in fact he did sonography further suggesting non-putting of strap. Mr.Dalal has not shown us how Dr.Shah’s report are wrong or his machineries were outdated, not even challenged the same in written statement of Dr.Shah or his evidence.”
Hence, the present First Appeal.
Learned Counsel for both parties made oral submissions. Learned Counsel for
Appellant reiterated the medical negligence and deficiency in service on the part of both
Respondents No.1 and 2 and stated that the main complaint against Respondent No.1
was that without conducting any diagnostic tests including a stool examination, he gave
him medical treatment which actually worsened his condition. He also reiterated that
the sonography conducted by Respondent No.2 was not clear and undue agony and
pain was caused to him by putting straps on his distended abdomen during the
procedure which the State Commission failed to take note of. It was also reiterated that
the patient actually suffered from appendicitis which could have been easily diagnosed
if he was given proper medical attention including a proper sonography. Instead, a
wrong diagnosis was made and it was only at Pune when the Appellant’s condition
deteriorated that he was immediately detected with appendicitis and a surgery had to be
performed. It was prayed that because of the mental agony and harassment as also the
financial hardship and loss caused to the Appellant, compensation of Rs.10 lakhs was
reasonable and justified.
Learned Counsel for Respondent on the other hand stated that the clinical
condition of the Appellant was carefully assessed after due examination he was given
conservative treatment as warranted during the first 3 days. Thereafter, when the
complaints persisted, Appellant was advised to consult a specialist surgeon and in fact
Respondent No.1 not only fixed the appointment but also accompanied him to the
surgeon who advised diagnostic tests including a sonography which was properly
conducted by Respondent No.2 who had a post-graduate degree in Pathology and was
fully qualified to conduct the same. It was the Appellant who erred in rejecting the
medical advice to get himself admitted in the hospital and instead rushed to Pune for
further treatment. There was, therefore, no deficiency in service on the part of the
Respondents.
We have heard learned Counsel for both parties and have gone through the
evidence on record. The fact that the Appellant consulted Respondent No.1 with
complaints related to his abdomen with nausea and related problems is not in
dispute. It is also a fact that Respondent No.1 who was a qualified doctor after
examining the Appellant decided to treat him conservatively since the parameters
relating to his blood-pressure, temperature and the condition of the stomach was not
unduly abnormal. There is nothing on record produced by the Appellant, on whom there
was onus to do so, to support his contentions that he had very high temperature and
other severe problems. We further note that when the Appellant’s condition remained
the same with the lower abdominal pain continuing, he was immediately referred to a
specialist surgeon and then a qualified Radiologist for conducting the required
diagnostic tests which included sonography and X-ray. Appellant has made certain
allegations against Respondent No.2/Radiologist pertaining to the quality of the
sonography conducted by him. However, again there is nothing on record to support
this contention. In fact, the sonography and diagnostic test reports were seen by a
specialist surgeon who advised hospitalization since there was a possibility of
surgery. The Appellant, however, chose not to get admitted to the hospital and instead
went to Pune for treatment. These facts have also been confirmed by the State
Commission as a first court of fact.
What constitutes medical negligence is now well established [Jacob Mathew v.
State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be
followed: (i) Whether the doctor in question possessed the medical skills expected of an
ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor
adopted the practice (of clinical observation diagnosis – including diagnostic tests and
treatment) in the case that would be adopted by such a doctor of ordinary skill in accord
with (at least) one of the responsible bodies of opinion of professional practitioners in
the field and (iii) whether the standards of skills/knowledge expected of the doctor,
according to the said body of medical opinion, were of the time when the events leading
to the allegation of medical negligence occurred and not of the time when the dispute
was being adjudicated.
Applying these principles to the present case, we see no reason to disagree with
the order of the State Commission, which had concluded that there was no deficiency in
service or medical negligence in the treatment of the appellant, which was done by well-
qualified doctors using their best professional judgment and skills to treat the patient
after conducting the necessary diagnostic and clinical tests. The appellant has not been
able to produce any credible evidence, including documentary or expert evidence to
contradict or controvert these facts. We, therefore, uphold the order of the State
Commission in toto and dismiss this first appeal. No costs.
Sd/-
(ASHOK BHAN J.)PRESIDENT
Sd/-(VINEETA RAI)
MEMBER /sks/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4924 OF 2012
(Against the order dated 10.09.2012 in Revision Petition No. RP/11/40
of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
M/s. Shree Constructions, Through its Partner- Mr. Umesh Raosaheb Pawar Patil Address at : 102, Ganga Prasad, Ghantali, Sainath Chowk, Ram Ganesh Gadkari Road Naupada, Thane (W)-400 602 ... Petitioner
Versus
1. Shree Residency CHS Ltd. Near Shankar Temple Old Mumbai-Pune Road Mumbra-400 612 2. Shri Namdev K. Patil, An adult, R/at Flat No. A/01, 3. Shri Harishchandra K. Patil, An adult, R/at Flat No. A/02, 4. Shri Narayan K. Patil, An adult, R/at Flat No. A/201, 5. Shri Dattatray K. Patil An adult, R/at Flat No. A/201 Nos. 2 to 5 are residents of Shree Residency CHS Ltd., Near Shankar Temple, Mumbra-400 612 Dist. Thane. ... Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner : Mr. Nagaraj Hoskeri, Advocate
Pronounced on : 16 th January, 2013
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. The present revision petition has been filed by the builder M/s Shree
Constructions-opposite party No. 1. The facts of its case are these. The agreement for
development of land was executed between the partners, i.e. petitioner-opposite party
No. 1- builder and the original land owners,
namely, Shri Namdev K.Patil, Shri Harishchandra K. Patil, Shri Narayan
K. Patil and Dattatray K. Patil, opposite parties 2 to 5, for land measuring 2098 sq.
yds. equivalent to 1754 sq.mts on 18.4.1986. The conveyance deed was executed
between the opposite party No. 1 and opposite parties 2 to 5 in respect of above said
land on 13.2.1996. The opposite party No. 1 started construction activities on the said
land and sold the land to the respective purchasers by agreement to sell during 2001-
2002. On 14.2.2006, the society of the flat purchasers was formed and registered by
the petitioner in the name of Shree Residency CHS Limited.
2. The complainant had filed a complaint before the District Consumer Forum, Thane
against the petitioner and land owners for conveyance of the property. On. 7.3.2009, the
District Forum, Thane had passed the order and directed the petitioner-opposite party
No. 1 and the original land owners-opposite parties 2 to 5 jointly and severally to
execute the conveyance deed in favour of the society and also awarded cost and
compensation. There is no confliction on the point that the said judgment has attained
finality. The above judgment was not challenged by any of the parties.
3. Thereafter, the complainant filed another application for execution of the above
said order. The petitioner had complied with the monetary part of the order and shown
the document to the forum for its having power to convey the land measuring 2098 sq.
yards i.e. equivalent to 1754 sq. meters. The District Forum directed the opposite
parties 1 to 5 to convey the land measuring 1754 sq. mts. in favour of the complainant-
society. The State Commission, Mumbai has set aside the order passed by the District
Forum dated 24.11.2010.
4. We have heard learned counsel for the petitioner-opposite party No. 1. He argued
that by virtue of development agreement, the petitioner is empowered to convey the
property to the extent of 2098 sq. yd. i.e. 1754. Sq. mts. The society has no authority or
power or right or title and interest to convey the property measuring 2200 sq. yards as
alleged by the society. It is also pointed out that the order passed by
the Hon’ble District Forum on 7.3.2009 nowhere mentions regarding the area of the land
to be conveyed to the society. The District Forum vide its order dated 24.11.2010 has
clarified the exact area to be conveyed to the society.
5. This is noteworthy that the opposite party No. 1/petitioner did not appear before
the State Commission. The complainant and respondents No. 2 to 5 were present. On
their joint request, the case was remanded. The State Commission also observed that
Section 25 clause III is not applicable to this case. He opined that Section 27 of the
Consumer Protection Act, 1986 is applicable in this case. It was ordered that the trial
court has not followed the procedure. The learned State Commission observed:-“We find that since the forum did not follow the procedure prescribed, the direction given to execute the conveyance is per se illegal and, therefore, in light of the submission made by both the parties, it would be proper and just to set aside the impugned order dated 24.11.2010 and remand back the matter to consider the aspects referred earlier. Hence, we hold accordingly and pass the following order:-
ORDER Revision petition is allowed. Impugned order dated 24.11.2010 is set aside.Execution application bearing no. 12/2010 is remitted back to the forum in light of the observation made in the body of the order.
Both the parties shall appear before the forum on 03.10.2012. No order as to costs.”
6. The learned State Commission did not state that the opposite parties were
directed to execute the area to the extent of 1735 sq. mts. or 2200 sq. mts. of
land. This question was not decided by the State Commission. It appears only
apprehension on the part of the petitioner because order dated 24.11.2010 has been
set aside. The apprehension appears to be false. This question certainly requires
evidence and investigation. The State Commission has not decided this very
point. This question is yet to be decided keeping in view all the facts and circumstances
of the case. If the original order dated 7.3.2009 does not mention the area, it has to be
found out from the relevant documents viz. Agreement, area allotted to the flat owners
etc. The learned forum under the circumstances correctly remanded the case before
the District Commission. During the remand proceedings, the District Forum is directed
to decide the question raised by the State Commission and the area for which
conveyance deed is to be executed. Both the parties have right to produce their
evidence. The question is kept open and will be decided by the District Forum after
hearing both the parties.
The revision petition has no force and the same is therefore dismissed.………………Sd/-…..………..
(J. M. MALIK, J)
PRESIDING MEMBER
……………Sd/-….……………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2106 OF 2008
(From the order dated 08.02.2008 in Appeal No. 367/2002
of Gujarat State Consumer Disputes Redressal Commission)
Parvatiben Bhimjibhai Rathod Resides at : Shiv Shakti Society-2; Plot No. 41, Bhavnagarpara: Bhavnagar ……. Petitioner
Versus
1. Dr. Shivkumar Chandra Shekhar Resides at Bhajrangdas Hospital Panwadi; Bhavnagar
2. Trustee, Bhajrangdas Hospital Panwadi; Bhavnagar
…. Respondents
REVISION PETITION NO. 2112 OF 2008
(From the order dated 08.02.2008 in Appeal No. 837/2006
of Gujarat State Consumer Disputes Redressal Commission)
Parvatiben Bhimjibhai Rathod Resides at : Shiv Shakti Society-2; Plot No. 41, Bhavnagarpara: Bhavnagar ……. Petitioner
Versus
1. Dr. Shivkumar Chandra Shekhar Resides at Bhajrangdas Hospital Panwadi; Bhavnagar
2. Trustee, Bhajrangdas Hospital Panwadi; Bhavnagar
…. Respondents
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner(s) Ms. Surekha Raman, Amicus Curiae
For the Respondent-1 Mr. Sumit Bhatia, Advocate
For Respondent-2 Mr. Nikhil Goel, Advocate
PRONOUNCED ON : 16 th JAN. 2013
O R D E R
PER SURESH CHANDRA, MEMBER
Both these revision petitions have been filed against the common order dated
08.02.2008 by which the Gujarat State Consumer Disputes Redressal Commission (for
short ‘the State Commission’) dismissed Appeal No. 837 / 2006 filed by the petitioner for
enhancement in the amount of award passed by the District Forum and accepted the
Appeal No. 367 / 2002 filed by the respondent no. 1 for setting aside the order of the
District Forum passed on 11.02.2002. They are being disposed off by this common
order.
2. Both the revision petitions have been filed by the original complainant and the
respondents in both these revision petitions were opposite parties 1 & 2 respectively
before the District Forum. For the sake of convenience, the parties hereto have been
referred to as the complainant and the opposite parties.
3. Briefly stated, the complainant, who is a resident of Bhavnagar earns her
livelihood by engaging herself in miscellaneous labour work. As she had to undergo a
cataract operation of left eye, she was admitted in the OP No. 2 hospital in which OP
No. 1 is an eye surgeon. It is not in dispute that she paid the fee for her admission and
charges demanded by the hospital. It is alleged by the complainant that there was
negligence on the part of the OP Doctor while administering the anaesthesia injection
into her eye which caused damage to it and even though she was rushed to Civil
Hospital, Ahemdabad by taxi, theDoctor there informed her that due to serious mistake
of the OP Doctor, the damage to the eye of the complainant could not be
restored. Alleging carelessness on the part of the OP Doctor while carrying out the
operation, the complainant knocked the doors of Consumer Fora by lodging a complaint
with the District Forum, Bhavnagar. On notice, the Opposite Parties resisted the
complaint. On appraisal of the issues and the evidence placed before it and after
hearing the parties, the District Forum vide its order dated 11.02.2002 accepted the
complaint and awarded an amount of Rs.25,000/- by way of compensation with interest
@12% p.a. from the date of complaint till its actual payment. Aggrieved by this order,
the opposite parties challenged the same before the State Commission by filing appeal
for its dismissal. The complainant also filed another appeal praying for enhancement in
the amount of the award. The State Commission by its impugned order, as stated
above, accepted the appeal of the opposite parties and set aside the order of the
District Forum. Accordingly, the appeal of the complainant for enhancement was also
dismissed by the impugned order.
4. We have heard Ms. Surekha Raman, Advocate who was appointed as Amicus to
assist this Commission on behalf of the petitioner / complainant and Mr.Sumit Bhatia,
Advocate for the respondent no. 1 and Mr. Nikhil Goel, Advocate for respondent no. 2.
We have also perused the record placed before us.
5. It was contended by learned Amicus that the facts of this case which are not in
dispute would indicate that sufficient care was not taken by the OP Doctor in carrying
out the surgery in question particularly while administering the anaesthesia
injection. She submitted that looking at the status and background of the complainant
who was a petty labourer and a poor villager, it should have been kept in view by the
OP Doctor that adequate care was taken to avoid any likely mishap since it was a
delicate matter when the anaesthesia injection was to be administered into the eye of
the complainant. Admittedly, not only once but in the second attempt also there was
shaking of the head and / or hand of the complainant when the injection was being
administered into the eye by the OP Doctor. She submitted that as a professional
engaged in the surgery of the eyes, he should make sure that the hands and the head
were held by the attending staff present in the operation theatre, particularly when the
second attempt was made by OP Doctor for administering injection. In the
circumstances, the negligence was writ large and no further expert opinion is required in
the matter to prove the negligence on the part of the Opposite Parties. She further
submitted that looking to the overall facts and circumstances of this case, the District
Forum had rightly awarded compensation of Rs.25,000/- with interest in favour of the
complainant and the same should, at least, have been upheld by the State Commission
rather than dismissing the complaint altogether. She, therefore, submitted that there is
a fair case for upholding the order of the District Forum by setting aside the impugned
order.
6. On the other hand, counsel for the OP Doctor has submitted that the damage to
the eye was caused on account of the mistake on the part of the complainant when she
did not follow the instructions given by the Doctor and moved her head and hand which
resulted in the damage to her eye. He submitted that at worst, it could be regarded as a
case of contributory negligence for which OP Doctor could not be held liable for
compensation while discharging his professional functions to the best of his
capabilities. He, therefore, submitted that there is no force in the revision petition and
the same is liable to be dismissed. Learned counsel for the respondent no. 2 did not
have anything further to add in the matter.
7. We have considered the rival contentions. Perusal of the O.T. notes and the
written statement filed by the OP before the District Forum confirm that there was
movement of head and hand both the times during the administration of anaesthesia
injection by the OP Doctor. The District Forum in its order has observed that the
incident of disturbance during administration of anaesthesia injection took place thrice in
this case which indicates that the Doctor has not taken care in respect of what could
happen in such a situation because of general human nature / behaviour and the
incident which took place was uncalled for and improper. In the given facts and
circumstances of this case, we agree with the view taken by the District Forum. The
State Commission apparently erred while treating it as “an unfortunate accident” for
which it did not hold the OP Doctor as being negligent or deficient in service while
dismissing the complaint. We are of the considered view that the finding returned by
the District Forum was fair and just and hence confirm the same except to the extent
that the interest @12% p.a. is on the higher side and hence in the given circumstances
we reduce the same to 6% p.a. from the date of the complaint, i.e., 2.08.1997 till its
actual payment. 8. Revision Petitions are thus, partially accepted and disposed off in above terms. There shall be no order as to costs.
..……………Sd/-………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………Sd/-………………
(SURESH CHANDRA)
MEMBERRS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 2031 OF 2012
(From the order dated 18.04.2012 in Appeal No. 477 of 2010
of Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench no. 3 Jaipur)
Ankur Surana Son of Shri Mahendra Surana R/o Prop. Shri Surana ElectronicsKesar Gank Ajmer, Rajasthan
Petitioner
Versus United India Insurance Co., Ltd. United House, 24 Whites Road Chennai 600 014Through Chairman United India Insurance Co. Ltd. Regional Office Sahara Chambers Tonk RoadJaipur United India Insurance Co. Ltd Divisional Office Holagal Road, Ajmer
... Respondents
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA MEMBER
For the Petitioner Mr Harsh Vardhan Surana, Advocate
PRONOUNCED ON : 16 th JANUARY 2013
O R D E R
PER SURESH CHANDRA, MEMBER
This revision petition has been filed by the petitioner who was the original
complainant against the order dated 18 th April 2012 passed by the State Consumer
Disputes Redressal Commission, Rajasthan, Circuit Bench no. 3 at Jaipur (in short, ‘the
State Commission’), by which the State Commission had allowed the appeal filed by
respondents against the order dated 22.02.2010 passed by the District Consumer
Disputes Redressal Forum, Ajmer (in short, ‘the District Forum) and set aside the order
of the District Forum.
2. The factual matrix of this case are like that the petitioner had insured his godown
no. 644 with the insurance company of the respondents. The godown caught fire on
15.04.2007 and according to the petitioner he suffered a loss of Rs.25,23,552/-. The
insurance company got the investigation done through a surveyor and allowed the claim
of Rs.14,76,264/- and also made payment thereof to the petitioner. It is the case of the
petitioner that the surveyor did not treat the goods worth Rs.6,59,459/- belonging to the
petitioner but treating these goods to be of Surana Associates, a sister concern
company of the petitioner and rejected the same and stated that transferring the entire
goods had been made with an intention to make the claim. Accepting the plea made by
the petitioner, the District Forum vide its aforesaid order allowed the complaint and held
that the insurance company had not produced any evidence in addition to the report of
the surveyor and under these circumstances, it could not be admitted that the
complainant/petitioner had not purchased goods from the Surana Associates. The
Order of the District Forum read as under:
“19. Consequently complaint of the appellant is allowed against non-applicant
insurance company and non-applicant insurance is hereby ordered to make the
payment of Rs.6,59,459/- to the applicant with 9% interest per annum from the
date of the filing of complaint till the date of payment and litigation cost of
Rs.1,500/- within a period of two months from the date of order or to make
deposit the amount in forum”.
3. Aggrieved by the order of the District Forum, the insurance company filed an
appeal against the same before the State Commission which allowed it and set aside
the order of the District Forum.
4. We have heard Mr Harsha Vardhan Surana, learned counsel appearing on behalf
of the petitioner and perused the record. Learned counsel for the petitioner has
submitted that the State Commission committed a mistake in accepting the plea of the
insurance company based on the report of the surveyor. He submitted that the District
Forum has rightly included the goods kept in the godown when the fire broke out and
the total amount of loss because of the presence of goods in the godown at that time
was not at all disputed by the respondents. The only contention which was relied upon
by the State Commission in the impugned order was that the surveyor had said that the
goods under dispute were not insured as they were kept in by friendly transfer and not
by proper sale purchase. Another contention raised by the learned counsel was in
respect of receipt of part payment towards claim of the petitioner from the insurance
company. He submitted that the State Commission has erred in its observation that
since the petitioner had received the part payment as full and final settlement and
hence, he was not entitled to raise any further claim. He further submitted that the State
Commission failed to appreciate that the amount was accepted by the petitioner
because of his helplessness of undergoing financial hardship due to loss in the
business caused by the fire and his business rotation would have suffered if he had not
received the part payment from the insurance company. He, therefore, pleaded that the
order of the District Forum which was a well-reasoned order needs to be maintained
and the impugned order be set aside.
5. We have given our thoughtful consideration to the contentions raised by the
learned counsel of the petitioner. We find that the State Commission has reversed the
order of the District Forum by giving reasons which are in line with the established legal
decision and the judgment of the Apex Court. Coming to the first plea regarding the
exclusion of goods, the value at Rs.6,59,459/- is based on the report of the surveyor. It
is well established by now that the report of the surveyor appointed by the insurance
company is an important document and the same should not be rejected by the Fora
below unless cogent reasons are recorded for doing so. The State Commission has
stated that it did not see any legal ground before the District Forum to reject the report
of the surveyor. The report of the surveyor should have been rebutted on behalf of the
complainant/ petitioner since the respondents/OPs had filed the surveyor’s report as
their evidence. Besides this, the State Commission has also recorded the following
circumstances which lead the State Commission to reject the plea of the petitioner:
“The owner of Surana Associates has been stated to be Dinu Surana whereas
the owner of Surana Electronics has been stated to be Ankur Suarana. The
name of the father of the both is Mahendra Singh Surana. In this way the relation
of these both is proved. It has occurred in the report of the surveyor that disputed
goods were available in the godown of Surana Electronics and it belongs to
Suaran Associates. It was put there only as trust because both are having
relations together. Hence, these goods were kept in the godown as trust and
goods were not insured. In addition this fact has also occurred that the fire
incident occurred on 15.04.2007 and at the same day Surana Associates has
stated to sale these goods to Suarana Electronics. It is also a strange co-
incidence. As well as these facts have also come on record that goods which
have been stated to be of Surana Associates on 15.04.2007, prior to the same
Surana Electronics had never purchased the same”.
6. So far as the other ground taken by the petitioner is concerned, the receipt of
amount of Rs.14,76,264/- sent by the insurance company against the claim put up by
the petitioner is not disputed by the petitioner. In fact, the petitioner filed certain
additional documents which have been placed on record in which it has been included.
Copy of the voucher signed by the petitioner indicates that he has received the amount
in question by way of full and final discharge of his claim against the insurance
company/ respondents. This being the undisputed factual position, the petitioner cannot
be permitted to approach the Consumer Forum for the balance amount treating the
payment as only part payment against the claim unless he establishes that he accepted
the amount under undue influence, misrepresentation or fraud played by the insurance
company. No such plea has been put forth by the petitioner. The only point made by
learned counsel is that after receipt of the amount, the petitioner sent a letter to the
insurance company asking for the payment of balance amount. This, however, cannot
provide any comfort to the petitioner to reopen the matter having accepted the amount
sent by the insurance company and signed the discharge vouched sent by the
insurance company. The claim of the petitioner stood settled. The view taken by the
State Commission is in line with the judgment of the Apex Court in the case of United
India Insurance vs Ajmer Singh Cotton and General Mills and Ors. [(1999) 6
Supreme Court Cases 400]. In the absence of any allegation of fraud,
misrepresentation or undue influence, we cannot agree with the contention of the
learned counsel.
7. In view of the above, we do not find any merit in the revision petition which is liable
to be dismissed. We dismiss the same at the threshold with no order as to cost.
……..………Sd/-……………………
(K.S. CHAUDHARI J.)
Presiding Member
……....……Sd/-………………………
(SURESH CHANDRA)
Member
satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 692 of 2006
(Against the order dated 31.08.2006 in Complaint Case No. C-21/95 of the
State Consumer Disputes Redressal Commission Delhi)
Devinder Singh Gupta S/o Late Shri B.L. Gupta Resident of H.No. I-4 Mandir Wali Gali No.10 Brahampuri, Delhi-53 Presently at Pocket F, 56-D, MIG Flats, GTB Enclave Dilshad Garden Delhi-93
… Appellant
Versus
Dr. Vivek Pal Navjyoti Eye Centre 53, Daryaganj New Delhi-11002
… Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For Appellant : Mr. Santosh Kumar, Advocate
For Respondent : Ms. Anu Narula, Advocate
Pronounced on 16 th January, 2013
ORDER
PER VINEETA RAI, MEMBER
1. This first appeal has been filed by Devinder Singh Gupta, the original complainant
before the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred
to as the State Commission) and Appellant herein, being aggrieved by the lesser
compensation awarded to him by the State Commission in respect of his complaint of
medical negligence against Dr. Vivek Pal, Respondent herein.
FACTS : -
2. In his complaint before the State Commission, Appellant had stated that following
a minor complaint of a cosmetic nature in his left eye he consulted Respondent, who
was an eye surgeon, in his clinic in Daryaganj in June, 1993, who after examining him
informed that he was suffering from an innocuous growth known as Pytreygium and
since there was likelihood that the growth may increase excision was advised through a
minor surgery, which would ensure that the Appellant’s eye would become normal
within five days. Appellant, therefore, agreed to undergo this surgery, which was
conducted in October, 1993 in Respondent’s clinic at Masjid Moth, New Delhi and he
was thereafter prescribed medicines for both local application, which
included Mitomycine-C, as also oral medication. However, soon after Appellant’s left
eye became red and there was acute pain and irritation, which persisted, and, therefore,
he consulted the Respondent, who assured him that if he continues to regularly
use Mitomycine-C, his eye would become normal. However, during the course of using
this medicine, Appellant’s eye further deteriorated and became very dry and there was
loss of vision in that eye. Appellant complained about this to Respondent, who changed
the medicine, which only further aggravated the condition. Appellant, therefore,
consulted another ophthalmologist Dr. G.C. Mukherjee, who informed him that his left
eye had become very dry due to wrong prescription of Mitomycine-C and he was
advised to consult Dr. P. Vishwanathan Gopal atGeetanjali Hospital, New Delhi, who
confirmed that the eye had got damaged due to prolonged use of Mitomycine-
C. Appellant thereafter went to All India Institute of Medical Science, New Delhi, where
this diagnosis was confirmed by a Cornea Specialist-Dr. Anita Panda. He was advised
to stop using all the medicines, including Mitomycine-C. Being aggrieved because of
the medical negligence and deficiency in service on the part of Respondent, because of
which the Appellant’s eye became dry, he issued a legal notice to Respondent to pay
him Rs.10 Lakhs as compensation but received no response. Appellant, therefore,
approached the State Commission with a complaint of medical negligence and
deficiency in service against Respondent and requested that he be directed to pay
Rs.10 Lakhs as damages and compensation since there was total loss of vision in
Appellant’s left eye, which had adversely affected both his professional and personal
life, as also any other relief as deemed appropriate.
3. Respondent on being served filed a written rejoinder denying the above
allegations, which he termed as false, frivolous and vexatious. It was contended that
Appellant approached him with a condition known as Pytreygium, which is a growth of
extra skin and if it reached the pupil area of the eye, it could permanently hamper the
Appellant’s vision. Surgery was, therefore, necessary, which was satisfactorily
conducted. Appellant, thereafter advised both oral medication as also medicine through
local application and a week later when the healing of the Appellant’s eye was
completed, he was advised to useMitomycine-C for two weeks since this was necessary
to prevent recurrence of Pytreygium. This medicine, which comes in the form of
injection, was converted into eye drops for use three times a day and Appellant was
verbally told that over use of this medicine for more than two weeks is
harmful. Unfortunately, Appellant did not heed this advice and instead of coming back
for a further check up appears to have continued using Mitomycine-C and taking
treatment from various other doctors as per his own whim and fancy. It was only on
03.03.1994 i.e. after over four months that Appellant visited the Respondent and told
him that he was still continuing the use of Mitomycine-C. Respondent immediately
asked him to discontinue the same and to come back after 15 days. Appellant again did
not heed this advice and consulted Respondent after three months i.e. on 22.06.1994
when he was prescribed natural tear drops and lacritubeointment. A perusal of these
facts clearly indicate that it was the Appellant who was responsible for the damage
caused to his left eye by prolonged use ofMitomycine-C on his own volition and against
medical advice given by Respondent. There was, therefore, no deficiency in service or
medical negligence of Respondent.
4. The State Commission after hearing the parties and on the basis of evidence
produced before it held the Respondent guilty of “limited negligence” by not advising the
Appellant in writing to use Mitomycine-C only for a particular limited period. The
relevant part of the order of State Commission reads as follows :“28. By not prescribing in writing in the prescription that medicine Mitomycine-C should be used, at first instance, only for two weeks to O.P. has committed an offence of limited medical negligence as complainant also cannot be excused for contributory negligence by not approaching the treating Doctor after few days and hopping from one
Doctor to another and continued using the medicine for long resulting in dry-eye syndrome causing loss of vision in the eye. 29. OP is guilty of this limited medical negligence amounting to deficiency in service due to which the complainant has lost his vision of one eye though he can also be not absolved from contributory negligence which is a mitigating circumstance for awarding compensation.”
5. The State Commission, therefore, held that a lump-sum compensation of
Rs.50,000/- to the Appellant would meet the ends of justice.
6. Being aggrieved by the lesser compensation, the present first appeal has been
filed.
7. Learned counsel for both parties made oral submissions.
8. Learned counsel for the Appellant contended that the State Commission erred in
holding the Respondent guilty of only limited medical negligence and on the other hand
holding the Appellant guilty of “contributory negligence” by not following the advice of
Respondent. In fact, following the surgery the Appellant did visit the Respondent doctor
for further check-up prior to 03.03.1994. According to Appellant, Respondent had
prescribed him Mitomycine-C on 18.10.1993 and the prescription did not indicate either
the duration for taking the medicine or its possible harmful side effects. The Appellant
was also not advised when he should come back for a follow up check. Further, when
the Appellant visited the Respondent on 03.03.1994 with a serious complaint regarding
his operated eye, Respondent again sought to hide the correct facts by recording that
the condition of appellant’s eye as also the vision was normal whereas by then he had
already started losing his eyesight and he was having acute pain in his eye because of
which he was constrained to approach other doctors, who advised the Appellant to
immediately stop the use of Mitomycine-C. It was these doctors who informed him that
the problem in his left eye had occurred due to over use of Mitomycine-C, which should
not have been used for more than two weeks. Counsel for the Appellant further stated
that the conduct of the Respondent was suspect before the State Commission as is
evident from the fact that he did not produce the necessary documents on the ground
that these had been destroyed in a fire. Because of the medical negligence and
callousness on the part of Respondent, Appellant lost the vision in his left eye causing
him a great deal of mental agony and adversely affecting his work as a senior clerk in
the Supreme Court of India.
9. Learned counsel for Respondent denied the above allegations and stated that it is
not factually correct that Respondent had prescribed Mitomycine-C to the Appellant on
18.10.1993 i.e. immediately following the surgery. In fact, he was prescribed other
medicines and ointments after the surgery and it was only after a week when the eye
had healed that Mitomycine-C was prescribed to the Appellant. It is a proven fact in
ophthalmology medical literature thatMitomycine-C is successful in checking the
recurrence of Pytreygium, which has a very high incidence of recurrence and is
routinely prescribed for limited periods following such surgeries. It was under these
circumstances that Respondent rightly prescribed this medicine to the
Appellant. Although not written down in the prescription, it was made clear verbally to
the Appellant that the eye drops were to be used three times a day for a limited period
of two weeks and its over use was harmful. This is further confirmed by the fact that
Respondent converted only one vial of Mitomycine-C injection into eye drops, which
would have lasted at the most for a little over two weeks. From this fact alone, it is clear
that the Appellant had been procuring this medicine and getting it converted into eye
drops from some other doctor(s) and in this way using it for several weeks i.e. till
03.03.1994 when he next visited the Respondent, who immediately directed him to
discontinue the use of this medicine. Learned counsel for Respondent pointed out that
a senior ophthalmologist of Safdarjung Hospital, New Delhi, Dr. Malik, has confirmed to
him in writing that Appellant had consulted him and also informed him that he was
continuing to use Mitomycine “on his own”. Learned counsel for Respondent stated that
Appellant continued to disregard medical advice of Respondent even after 03.03.1994
by not coming for follow up visits, which he was advised to do by Respondent, who had
prescribed him some other medicines and wanted to assess their effect. From the
above facts, it is clear that Appellant, who was not an illiterate person and who had
been clearly orally advised to use Mitomycine-C eye drops only for a limited duration by
Respondent, failed to follow this advice and continued to use the medicine on his own,
for which Respondent cannot be held responsible, particularly since Appellant did not
even come for the follow up visit after two weeks. There was no medical negligence or
deficiency in service on the part of Respondent, who had prescribed the right medicine
and given correct advice regarding its limited period of use. The present first appeal,
therefore, having no merit deserves to be dismissed.
10. We have heard learned counsel for both parties and have carefully gone through
the evidence on record. The fact that Appellant visited the Respondent’s clinic with a
complaint in his left eye and was detected with Pytreygium, for which a minor surgery
was conducted is not in dispute. It is also a fact that Appellant was
prescribed Mitomycine-C by Respondent, which is a drug of choice, to ensure
that Pytreygium does not recur since it has a high degree of recurrence. While it is a
fact (as also observed by the State Commission) that no directions were given by
Respondent in writing to Appellant regarding the duration for which the drug should be
used or any written precaution against its prolonged use, we find force in the contention
of Respondent that since he had converted only one vial of Mitomycine injection into
eye drops, this itself indicates that the intention was clearly for its limited use for about
two weeks and not for several months. When specifically asked by us, learned counsel
for the Appellant also fairly conceded that Respondent had converted only one vial
of Mitomycineinjection into eye drops, thus confirming the Respondent’s clear intention
regarding its use for a limited period. It is, thus, apparent that Appellant had been using
this medicine for several weeks by getting the Mitomycine injection converted into eye
drops through some other source and not by the Respondent, for which Respondent
cannot be held responsible. It was under these circumstances that the State
Commission had held the Respondent guilty of only “limited medical negligence” for not
having put down in writing the dosage and duration of the medicine in the prescription
slip. We agree with this finding. We further agree that the Appellant is guilty of
“contributory negligence” by not visiting the Respondent for follow up visits as advised
on more than one occasion and instead consulting one doctor after another and also
continuing Mitomycine-C for long period on his own volition, which resulted in
the dry eye syndrome and consequent loss of vision in the left eye.
11. To sum up, we uphold the order of the State Commission that Respondent is
guilty only of “limited medical negligence” by not giving a written prescription and
instead verbally advising the Appellant, for which a compensation of Rs.50,000/- is
reasonable and we, therefore, confirm the same. The present first appeal is
dismissed. Respondent is directed to pay a sum of Rs.50,000/- to the Appellant within
six weeks, failing which it will carry interest @ 6% per annum for the period of
default. No costs.
Sd/-
(ASHOK BHAN, J.)
PRESIDENT
Sd/-
(VINEETA RAI)
MEMBER
Sd/-
(REKHA GUPTA)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 845 OF 2011
(From the order dated 10.01.2011 in Appeal No. 749/2010
of Chhattishgarh State Consumer Disputes Redressal Commission)
RAMSUYASH PANDEY Ward No. 5, New Teachers Colony Tilda, Post Nevra District Raipur Chhattisgarh
….. Petiitoners
Versus
1. MANAGING DIRECTOR, C.G. STATE POWER DISTRIBUTION CO. LTD. Raipur Chhattisgarh
2. EXECUTIVE ENGINEER, CHHATTISGARH STATE VIDYUT VITRAN COMPANY Raipur Chhattisgarh
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner(s) : In Person
PRONOUNCED ON : 17 th JAN. 2013
O R D E R
PER SURESH CHANDRA, MEMBER Petitioner in this case, who was complainant before the District Forum, filed a
complaint under section 12 of the Consumer Protection Act, 1986 praying for
compensation and restoration of disrupted power supply. The petitioner had a power
supply connection of the respondent company for supply to 5 H.P. motor for his tube-
well. On 23.5.2010, wire of the electric supply line was stolen and power supply to the
tube-well got disrupted. The petitioner requested the respondent company to restore
the supply but the same was not done and hence the consumer complaint came to be
filed. According to the respondents, the power supply was restored on 09.07.2010 after
carrying out the survey of the area, the respondent company had issued necessary
work order for laying new wire in place of the stolen wire. The work of restoration was
completed at the earliest and the petitioner had no right to claim
compensation in the matter. The District Forum vide its order dated 19.11.2010 partly
accepted the complaint and directed the respondent company to pay Rs.7,000/- to the
petitioner for mental agony caused to him along with cost of Rs.1,000/-. Not satisfied
with the order of the District Forum, the petitioner filed an appeal before
the Chattisgarh State Consumer Disputes Redressal Commission, Raipur (State
Commission, for short) for enhancement of the awarded amount. Another appeal was
filed by the respondent company challenging the order of the District Forum with the
State Commission. Since none appeared for the appellant, State Commission
dismissed the appeal in limine and also for want of prosecution at admission hearing
stage without notice to the respondent. Aggrieved by the impugned order, the petitioner
has filed the present revision petition.
2. We have heard the petitioner, who has appeared in person. It was pointed out by
him that after dismissal of his appeal in limine, he had also filed an application dated
10.1.2011 praying for review of the impugned order but the same was dismissed vide
order dated 10.2.2011 passed by the State Commission. A copy of which is placed at
page 21 of the record. The petitioner further submitted that the appeal filed by the
respondent company before the State Commission has also been dismissed by the
State Commission vide a separate order dated 30.3.2011, by which order the order of
the District Forum has been upheld confirming the quantum of compensation of
Rs.7,000/- awarded by the District Forum for mental agony. In the circumstances, the
petitioner submitted that since the deficiency in service on the part of the respondent
company has been upheld by the Fora below, his prayer for enhancement of the
amount of the compensation is suitable. There is no other legal issue involved in the
matter.
3. Perusal of the record indicates that the District Forum has awarded an amount of
Rs.7,000/- for mental agony suffered by the petitioner. State Commission on appeal
has upheld the amount as adequate and refused to interfere with the quantum
thereof. We do not find any reason or justification to interfere with the impugned order
through this revision petition. We, therefore, dismiss this revision petition as devoid of
any merit at the threshold with no order as to cost.
..……………Sd/-………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..…………Sd/-…………………
(SURESH CHANDRA)
MEMBERRS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 2011 OF 2011
(From the order dated 11.04.2011 in Appeal No. A/08/2002
of Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench Nagpur)
Kailash Dainaji Kharde Resident of Pari Amma Nagar Mothi Umari Akola Maharashtra
Petitioner
Versus Mittal Electronics Kala Chabutara Akola Maharashtra Executive Manager TATA Sky Ltd., 3rd Floor Bombay Dying, A O Building Pandurang Bhutkar Marg Worli, Mumbai – 25
Respondents BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA MEMBER
For the Petitioner Mr Krishna Muraree Singh, Advocate
PRONOUNCED ON : 17 th JANUARY 2013
O R D E R
PER SURESH CHANDRA, MEMBER
Petitioner Kailash Dainaji Kharde was the original complainant before the District
Consumer Disputes Redressal Forum, Akola, Maharashtra (in short, ‘the District
Forum’) and respondents 1 and 2 were the opposite parties (OPs) in the same order.
He is serving in the telephone department at Akola, Maharashtra.
2. Briefly stated, the main grievance of the complainant was that against the
assurance given by OP 1 at the time of installation, OP 2 had increased the rent of the
Dish Antenna by charging the entire amount. The allegation of giving a false temptation
and non-fulfilment of the promise made because of which he suffered mental torture
and inconvenience, the complainant filed this complaint before the District Forum for
getting damages from the OPs.
3. After hearing the parties and on appraisal of the issues and documents before it,
the District Forum allowed the complaint by directing both the respondents/ OPs to
initially provide services of TATA Sky for one year by charging the Rs.200/- per month
from the complainant. For mental tension and physical harassment compensation of
Rs.1,000/- was awarded and Rs.500/- were awarded by way of cost of the proceedings.
4. Not satisfied with this award treating it as inadequate, the complainant filed an
appeal before the State Consumer Disputes Redressal Commission, Maharashtra,
Circuit Bench at Nagpur (in short, ‘the State Commission’) . None appeared for the
complainant/ appellant or OP 1. After hearing the counsel for the OP 2, the State
Commission vide its impugned order held that reasonable compensation had been
awarded by the District Forum while partly accepting the complaint and hence did not
find any merit in the appeal and dismissed the same. Aggrieved by this order of the
State Commission, the complainant has now filed the present revision petition.
5. We have heard Mr Krishna Muraree Singh, learned counsel appearing on behalf of
the petitioner and perused the records. The only issue involved in the present revision
petition is in respect of quantum of compensation awarded by the District Forum and
upheld by the State Commission. It is to be noted that award of compensation
and quantum thereof have to be decided by the Fora below in their distinction keeping
in view the peculiar facts and circumstances of the case. There is no other legal issue
involved. In the given facts and circumstances, we do not find any merit which would
justify our interference with the impugned order. We, therefore, dismiss this revision
petition in limini with no order as to cost.
……..………Sd/-……………………
(K.S. CHAUDHARI J.)
Presiding Member
……....……Sd/-………………………
(SURESH CHANDRA)
Member
satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2310 OF 2009
(From the order dated 23.03.2009 in Appeal No. 2633/2008
of Karnataka State Consumer Disputes Redressal Commission)
United India Insurance Co. Ltd., Through its Manager At Regional Office, Kanchenjunga, Barakhamba Road, New Delhi.
……. Petitioner
Versus
1. Sri Sadanand R. Kotian S/o Raju Kotian, R/o Pithordi, Udayavara, Udupi Taluk and District Karnataka – 576101
2. The Manager, Syndicate Bank, Yadayavara, Udupi Taluk and District Karnataka – 576101
…. Respondents
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner(s) Mr. Ravi Bakshi, Advocate
For the Respondent-1 Mr. Ranji Thomas, Advocate
Respondent-2 NEMO
PRONOUNCED ON : 17 th JAN. 2013
O R D E R
PER SURESH CHANDRA, MEMBER This revision petition has been filed by the insurance company which was
opposite party no. 1 in the complaint before the District Forum. The respondent no. 1
was the original complainant and respondent no. 2 was OP No. 2 being the Bank which
had financed the purchase of the boat in question.
2. Briefly stated, the respondent no. 1 / complainant purchased a mechanized fishing
vessel named “Shwethasri” for a total sum of Rs.11,50,000/- by availing a loan of
Rs.8,00,000/- from respondent no. 2 bank. The said boat was being used for
fishing. This boat of the respondent no. 1 which had been insured with the petitioner
company drowned in the high sea on 15.09.2004. When the claim was lodged by the
respondent no. 1 with the petitioner insurance company, it was repudiated by the
petitioner insurance company as not being genuine. A complaint was, therefore, filed
by respondent no. 1 before the District Forum, which was registered as CC-27/2006. It
was allowed by the District Forum, Udupi, Karnataka vide its order dated 25.08.2007.
3. However, on appeal before the Karnataka State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in appeal No. 2008 /
2007 the State Commission remitted the matter back to the District Forum for fresh
inquiry and recording additional evidence in terms of the directions of the State
Commission. Pursuant to this order of the State Commission, the District Forum vide its
order dated 25.10.2008 confirmed its earlier order and allowed the complaint in terms of
the following directions:-
“The complaint is allowed. Opposite party No. 1 (Insurance Co.) is directed to pay to the complainant a sum of Rs.10,00,000/- with interest @12% per annum from 15.09.2004 till payment alongwith Rs.10,000/- as damages towards the mental agony and Rs.5,000/- towards the legal fee, Rs.3,000/- as cost of the proceedings to be paid within a month from the date of receipt of the order.”
4. Aggrieved by this order of the District Forum, the petitioner filed an appeal bearing
no. 2633 / 2008 before the State Commission against this order. Vide impugned order
dated 23.03.2009, the State Commission partly allowed the appeal and modified the
order of the District Forum in terms of the following directions:-“The appellant / Insurance Company is directed to pay Rs.10,00,000/- to the complainant within two months from today. In the event if the Insurance Company fails to pay the said amount within two months as directed above, the Insurance Company is liable to pay interest at 9% per annum on the said sum of Rs.10,00,00/- from the date of the complaint filed before the DF till realization. The appellant / Insurance Company has deposited a sum of Rs.5,25,000/- in this appeal. If the respondent / complainant filed a memo for payment, the office is directed to pay the same to the respondent/ complainant. The balance amount is to be paid by the Insurance Company to the complainant as directed above.”
5. It is against the aforesaid order dated 23.3.2009 passed by the State Commission
that the present revision petition has been filed by the petitioner insurance company. 6. We have heard Mr. Ravi Bakshi, Advocate for the petitioner insurance company
and Mr. Ranji Thomas, Advocate for the respondent no. 1. No one has appeared for
the respondent no. 2 bank.
7. It was submitted by the learned counsel for the petitioner that the claim of the
complainant came to be rejected by the insurance company because it was a fraudulent
insurance claim since the boat of the complainant which had allegedly sunk on the high
sea reappeared with similar features but with a different name and some minor changes
in the boat number etc. He contended that the State Commission failed to properly
appreciate the similarities in the two boats especially with regard to engine number and
erred in holding that two boats were different. Another contention raised by the learned
counsel was that the State Commission erred in holding that there was no need to call
any witness from Goa Port Authorities which would have enabled the petitioner to prove
that the boat purchased by Seetabai was named ‘Manal’ which was subsequently
renamed as Jai Prakash. Thus, the petitioner was denied reasonable opportunity to
defend itself and, therefore, the impugned order is bad in law and is liable to be set
aside.
8. Per contra, the counsel for the complainant / respondent no. 1 has submitted that
both the contentions raised by the counsel for the petitioner have been duly considered
by the State Commission in its well-reasoned order and both the fora below have
returned their concurrent findings based on facts of this case emanating from the
evidence adduced by the parties. He further submitted that the complaint has already
gone through two rounds of litigation before the Fora below and yet on re-examination
of the dispute, both the District Forum and State Commission have returned their
concurrent findings. There is, therefore, no merit in the present revision petition and the
same is liable to be dismissed.
9. We have considered the rival contentions carefully. The State Commission while
partially accepting the appeal of the insurance company has made the following
observations in support of the impugned order:-
“No doubt the Insurance Company made an application before the DF to call for the official of the Goa Port in order to establish that the boat by nameManal is the boat which subsequently named as ‘Jai Prakash’ which was said to have been purchased by Seetabai. When the document produced bySeetabai conclusively proves that fact that the said boat was purchased from Purandara Kotian there is no need to call for any witness from Goa Port authorities. Further it was not so difficult for the Insurance Company to produce the documents after obtaining the certified copies from the Goa Port to show that the said Manal boat was subsequently named as ‘Jai Prakash’ which is said to have been purchased by Seetabai. The Engine number and other particulars in respect of two boats are one is relates to the boat said to have been sunk in the high sea and another relates to the boat found near the Bhatkal sea shore. So far as engine number is concerned in respect of the boat belonging to the complainant is ALMV-400/9 No. AL 7832 whereas engine number of the boat found near the Bhatkal sea shore is Ashok Leyland ALMU 400 No. AL 7832. Thebaots that was manufactured by Ashok Leyland bears engine numbers as 400 and another boat 400/9. Even length, breadth of the boats in respect of these two boats are altogether different. Therefore it cannot be said that the boat found near the Bhatkal Sea shore is the same boat which is said to have been sunk in the
high sea. Therefore the DF is right in awarding compensation of Rs. 10,00,000/- in favour of the complainant. If the Insurance Company is still of he view that the complainant has made a false and fradulent claim misrepresenting the facts, it is open for the Insurance Company to institute criminal proceedings as against the complainant and in the event if the Insurance Company were to succeed in the prosecution liberty is reserved to the Insurance Company to take steps to recover the amount from the complainant. In view of the peculiar facts and circumstances of the case we are of the view that the interest awarded by the DF on the amount payable is to be denied. In addition in our view the complainant is also not entitled for any compensation and costs. This observation which we are now making is sufficient to safeguard the interest of the Insurance Company. Hence impugned order to that extent requires modification.”
10. We agree with the view taken by the State Commission. Both the aspects
pleaded by the learned counsel for the petitioner have been suitably dealt with by the
State Commission in its impugned order and no fresh material has been placed by the
petitioner to persuade us to take a different view. We have also thought it necessary to
call for the original record of the District Forum and to give opportunity to the petitioner
to produce photographs in support of the contentions regarding the number of gear box
of the Boat being identical and showing the change of name of the boats by scratching
the surface paint. While the District Forum record has been received and perused by
us, no further documents as per our direction regarding the gear box number and
scratching of the surface paint have been produced by the petitioner in support its
contention in spite of the opportunity given to learned counsel for the same.
11. In the circumstances, we do not find any merit in this revision petition and dismiss
the same with the parties bearing their own costs...…………Sd/-…………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..…………Sd/-…………………
(SURESH CHANDRA)
MEMBERRS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2945 OF 2011(From the order dated 21.06.2011 in Appeal No.789/11 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
PCARDB Through its CEO Cooperatives Bhawan, Panchkula Sector -2, District Panchkula
… Petitioner/OP
Versus 1. Shri Satbir Singh S/o Shri Devi Ram R/o Village Kharkhari, Tehsil Bawal, Bawal, District Rewari, Haryana
2. Shri Om Prakash PCARDB Branch Manager, Bawal District Rewari, Haryana
… Respondents/OP
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioners in both the matters
: Mr. Rishi Malhotra, Advocate
For the Res. No.1in both the matters
For the Res.No.2
in both the matters
: Ms. Girija Wadhwa, Advocate
Mr. Dinesh Chander Yadav & Mr
Mr. A.S. Rish, Advocates
PRONOUNCED ON 17 th January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed against the order dated 21.6.2011 passed by
the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the
State Commission’) in Appeal No. 789 of 2011 – PCARDB Vs. Satbir Singh & Ors. by
which while dismissing appeal, order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that complainant/Respondent No. 1 had raised a loan
of Rs.4,00,000/- from petitioner/opposite party in order to run his soap manufacturing
unit. The loan was sanctioned by OP/Respondent No. 2 by mortgaging the immovable
property of the complainant and loan amount was to be disbursed to the complainant in
three instalments. First instalment of Rs. 1,75,000/- was disbursed on 13.3.2009 and
second instalment of Rs.1,00,000/- was disbursed on 30.3.2009 to the complainant, but
the third instalment of Rs.1,25,000/- was withheld by opposite party. Complainant
served notice on the opposite party for release of third instalment, but opposite party
vide its order dated 19.8.2009 informed that for want of utilization certificate of two
instalments, third instalment of loan could not be disbursed. In such circumstances,
complainant alleging deficiency on the part of opposite parties filed complaint. Opposite
parties filed written statement and took the plea that complainant did not properly utilize
first two instalments so the third instalment could not be validly released, hence,
complaint may be dismissed. Learned District Forum vide order dated 27.4.2011
allowed complaint and directed opposite party to release third instalment of
Rs.1,25,000/- to the complainant within a period of one month and further awarded
Rs.1,00,000/- as litigation expenses. This order was challenged by the petitioner before
the State Commission and the learned State Commission vide its impugned order
dismissed appeal.
3. Heard Learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioner submitted that third instalment of loan could
not have been released in the absence of utilisation certificates as per rules and further
submitted that utilisation certificate issued by the Branch Manager and Field Officer was
false and petitioner has not committed any deficiency in not releasing third instalment,
hence, revision petition be accepted and order of learned State Commission and District
Forum may be set aside. On the other hand, learned Counsel for the
respondent-1/complainant submitted that proper utilisation certificate was given by
concerned officers of opposite party and order passed by learned State Commission is
in accordance with law, hence, petition be dismissed.
5. Perusal of record reveals that Branch Manager and Field Officer of the opposite
party had issued utilisation certificate dated 30.4.2009 to the complainant in which it
was specifically mentioned that complainant had utilised earlier two instalments of loan
amount. Further, this certificate was affirmed by report dated 3.6.2009 submitted by the
Branch Manager and Field Officer of the Petitioner Bank. It appears that another
Branch Manager also inspected the site on 30.4.2009 and submitted his report on
2.5.2009 in which it was mentioned that he visited the site of the complainant on
30.4.2009 for checking utilisation of loan amount and found that borrower (complainant)
has not purchased the material according to the bills and only temporary arrangement
was made by the borrower for the eyewash. It was further observed in the report that
borrower manipulated reports with the help of Field Officer, Om Prakash and Branch
Manager, Om Prakash and both the officers issued false loan utilisation certificate. It is
not clear whether there were two Branch Managers of the Petitioner Branch at Bawal
and what was the occasion for second Branch Manager to inspect the site after two
days when Field Officer and Branch Manager had already reported about utilisation of
loan instalments. Second report of Branch Manager also speaks about temporary
arrangement of material. In such circumstances, it appears that amount of earlier two
instalments had been utilised by the complainant and the third instalment of loan was
not released by the Petitioner Bank which amounted to deficiency in service and
learned State Commission has not committed any error in dismissing appeal of the
petitioner.
6. Learned Counsel for the Petitioner submitted that petitioner has taken disciplinary
action against the defaulting Field Officer and Branch Manager for giving false utilisation
certificates and in such circumstances, it may be held that utilisation certificates
procured from the Field Officer and the Branch Manager were not true. This argument
is devoid of force as no such plea has been taken by the petitioner in the written
statement filed before the learned District Forum and only revision petition discloses this
fact that charge sheet dated 30.4.2010 has been issued to the delinquent
officials. Complainant is not concerned with this charge sheet and this fact should have
been brought to the notice of District Forum and necessary documents should have
been filed along with written statement before the District Forum which passed the
judgment after one year of the alleged charge sheet. In such circumstances,
cognizance of charge sheet cannot be taken for setting aside impugned order.
7. Perusal of record reveals that out of Rs.4,00,000/- sanctioned loan, Rs.2,75,000/-
had been disbursed to the complainant and only loan of Rs.1,25,000/- was withheld and
for this deficiency, learned District Forum has awarded damages to the tune of
Rs.1,00,000/- which has been upheld by the learned State Commission. It appears that
this amount of damages is on very higher side. In such circumstances, we deem it
proper to reduce the amount of compensation to the tune of Rs.40,000/- instead of
Rs.1,00,000/-.
8. Consequently, revision petition filed by the petitioner is allowed in part and order
of learned State Commission dated 21.6.2011 and order of District Forum dated
27.4.2011 are modified to the extent that complainant/respondent is entitled to get
damages of Rs.50,000/- instead of Rs.1,00,000/- awarded by the District Forum. There
shall be no order as to costs.Sd/-
..…………………………
( V.B. GUPTA, J)
PRESIDING MEMBER
Sd/-
..……………………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2944 OF 2011(From the order dated 21.06.2011 in Appeal No.788/11 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
PCARDB Through its CEO Cooperatives Bhawan, Panchkula Sector -2, District Panchkula … Petitioner/OP
Versus 1. Shri Kuldeep Singh S/o Shri Rati Ram R/o Mauja Ramsinghpura (Nanglia), Tehsil Bawal, Bawal, District Rewari, Haryana
2. Shri Om Prakash PCARDB Branch Manager, Bawal District Rewari,
… Respondents/OP
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioners
: Mr. Rishi Malhotra, Advocate
For the Res. No.1For the Res. No.2
: Ms. Girija Wadhwa, Advocate
Mr. Dinesh Chander Yadav & Mr
Mr. A.S. Rish, Advocates
PRONOUNCED ON 17 th January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the order dated
21.6.2011 passed by the Haryana State Consumer Disputes Redressal Commission,
Panchkula (in short, ‘the State Commission’) in Appeal No. 788 of 2011 – PCARDB Vs.
Kuldeep Singh & Ors. by which while dismissing appeal, order of District Forum allowing
complaint was upheld.
2. Brief facts of the case are that complainant/Respondent No. 1 had raised a loan
of Rs.6,00,000/- from petitioner/opposite party in order to run his soap manufacturing
unit. The loan was sanctioned by OP/Respondent No. 2 by mortgaging the immovable
property of the complainant and loan amount was to be disbursed to the complainant in
three instalments. First instalment of Rs. 2,50,000/- was disbursed on 13.3.2009 and
second instalment of Rs.2,00,000/- was disbursed on 30.3.2009 to the complainant, but
the third instalment of Rs.1,50,000/- was withheld by opposite party. Complainant
served notice on the opposite party for release of third instalment, but opposite party
vide its order dated 19.8.2009 informed that for want of utilization certificate of two
instalments, third instalment of loan could not be disbursed. In such circumstances,
complainant alleging deficiency on the part of opposite parties filed complaint. Opposite
parties filed written statement and took the plea that complainant did not properly utilize
first two instalments so the third instalment could not be validly released, hence,
complaint may be dismissed. Learned District Forum vide order dated 27.4.2011
allowed complaint and directed opposite party to release third instalment of
Rs.1,50,000/- to the complainant within a period of one month and further awarded
Rs.1,00,000/- as litigation expenses. This order was challenged by the petitioner before
the State Commission and the learned State Commission vide its impugned order
dismissed appeal.
3. Heard Learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioner submitted that third instalment of loan could
not have been released in the absence of utilisation certificates as per rules and further
submitted that utilisation certificate issued by the Branch Manager and Field Officer was
false and petitioner has not committed any deficiency in not releasing third instalment,
hence, revision petition be accepted and order of learned State Commission and District
Forum may be set aside. On the other hand, learned Counsel for the
respondent-1/complainant submitted that proper utilisation certificate was given by
concerned officers of opposite party and order passed by learned State Commission is
in accordance with law, hence, petition be dismissed.
5. Perusal of record reveals that Branch Manager and Field Officer of the opposite
party had issued utilisation certificate dated 30.4.2009 to the complainant in which it
was specifically mentioned that complainant had utilised earlier two instalments of loan
amount. Further, this certificate was affirmed by report dated 3.6.2009 submitted by the
Branch Manager and Field Officer of the Petitioner Bank. It appears that another
Branch Manager also inspected the site on 30.4.2009 and submitted his report on
2.5.2009 in which it was mentioned that he visited the site of the complainant on
30.4.2009 for checking utilisation of loan amount and found that borrower (complainant)
has not purchased the material according to the bills and only temporary arrangement
was made by the borrower for the eyewash. It was further observed in the report that
borrower manipulated reports with the help of Field Officer, Om Prakash and Branch
Manager, Om Prakash and both the officers issued false loan utilisation certificate. It is
not clear whether there were two Branch Managers of the Petitioner Branch at Bawal
and what was the occasion for second Branch Manager to inspect the site after two
days when Field Officer and Branch Manager had already reported about utilisation of
loan instalments. Second report of Branch Manager also speaks about temporary
arrangement of material. In such circumstances, it appears that amount of earlier two
instalments had been utilised by the complainant and the third instalment of loan was
not released by the Petitioner Bank which amounted to deficiency in service and
learned State Commission has not committed any error in dismissing appeal of the
petitioner.
6. Learned Counsel for the Petitioner submitted that petitioner has taken disciplinary
action against the defaulting Field Officer and Branch Manager for giving false utilisation
certificates and in such circumstances, it may be held that utilisation certificates
procured from the Field Officer and the Branch Manager were not true. This argument
is devoid of force as no such plea has been taken by the petitioner in the written
statement filed before the learned District Forum and only revision petition discloses this
fact that charge sheet dated 30.4.2010 has been issued to the delinquent
officials. Complainant is not concerned with this charge sheet and this fact should have
been brought to the notice of District Forum and necessary documents should have
been filed along with written statement before the District Forum which passed the
judgment after one year of the alleged charge sheet. In such circumstances,
cognizance of charge sheet cannot be taken for setting aside impugned order.
7. Perusal of record reveals that out of Rs.6,00,000/- sanctioned loan, Rs.4,50,000/-
had been disbursed to the complainant and only loan of Rs.1,50,000/- was withheld and
for this deficiency, learned District Forum has awarded damages to the tune of
Rs.1,00,000/- which has been upheld by the learned State Commission. It appears that
this amount of damages is on very higher side. In such circumstances, we deem it
proper to reduce the amount of compensation to the tune of Rs.50,000/- instead of
Rs.1,00,000/-.
8. Consequently, revision petition filed by the petitioner is allowed in part and order
of learned State Commission dated 21.6.2011 and order of District Forum dated
27.4.2011 are modified to the extent that complainant/respondent is entitled to get
damages of Rs.50,000/- instead of Rs.1,00,000/- awarded by the District Forum. There
shall be no order as to costs. ..……………Sd/-……………
( V.B. GUPTA, J)
PRESIDING MEMBER
..……………Sd/-………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4762 OF 2012 (From the order dated 18.9.2012 in Appeal No.233/11 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
Surender S/o Shri Kishan Singh, R/o Vill. Bidhal, Distt. Sonepat, Haryana
… Petitioner/OP
Versus
National Ins. Co. Ltd. Azadpur Branch II (Direct Agent Branch) Laxmi Tower, C- 1/3, Naini Wala Bagh, Azadpur Commercial Complex, Delhi - 110033
… Respondents/Complainant
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioner : Mr. Vikas Chauhan, Advocate
PRONOUNCED ON 18 th January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 18.09.2012 passed by the Haryana State Consumer
DisputesRedressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal
No. 233 of 2011 – National Insurance Co. Ltd. Vs. Surender by which while allowing
appeal, set aside the order of learned District Forum and dismissed complaint.
2. Brief facts of the case are that complainant/respondent’s Truck HR 46 F 2837 was
insured with OP/Respondent w.e.f. 04.10.2007 to 03.10.2008. On 20.5.2008, the truck
was stolen and on the very same day, FIR No.81/2008 was lodged by complainant at
PS: Sindhawali Ahir, Baghpat. The complainant gave intimation of theft to opposite
party on 12.8.2008. Opposite Party repudiated claim on account of violation of
condition and in such circumstances, alleging deficiency on the part of OP filed
complaint before the District Forum. Learned District Forum after hearing both the
parties allowed complaint and directed OP/Respondent to pay Rs. 10,00,000/- along
with 9% p.a. interest and further awarded Rs.5,000/- as compensation and Rs.5,000/-
as litigation charges. OP filed appeal before the State Commission and learned State
Commission vide impugned order allowed appeal and dismissed complaint.
3. Heard learned Counsel for the petitioner at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that learned State Commission has
committed error in dismissing complaint as report of theft was made on the very same
day and OP was also informed timely, hence, the revision petition may be accepted and
order of the learned State Commission be set aside.
5. This is an admitted fact that complainant’s truck was insured by OP and during
subsistence of insurance, the truck was stolen on 20.5.2008 and on the very same day
FIR was lodged under Section 379 IPC. Complainant has not mentioned purposely in
the complaint that when intimation of theft was given to OP. But, letter dated 19.8.2008
issued by OP by which claim was repudiated reveals that by letter dated 12.8.2008,
intimation of theft was given by the complainant to OP meaning thereby intimation of
theft was given to the Insurance Company after 83 days of theft. As per terms and
conditions of the policy it was obligatory on the part of the complainant to intimate about
theft to the OP immediately. Learned State Commission has rightly allowed appeal and
dismissed claim of the complainant on the basis of Hon’ble Apex Court judgment 2011
CTJ 11 (SC) (CP) – Suraj Mal Ram Niwas Oil Mills (P) Ltd . Vs.United India Insurance Co. Ltd. & Anr . and other judgments of this Commission. We do not find
any infirmity in the order passed by the learned State Commission and there is no
jurisdictional error or material irregularity in the order passed by the learned State
Commission and revision petition is liable to be dismissed at admission stage.
5. Consequently, the revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs.
Sd/-
..…………………………
( V.B. GUPTA, J)
PRESIDING MEMBER
Sd/-
..……………………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3157 OF 2012
(From the order dated 17.05.2012 in Appeal No. 704/2009
of Haryana State Consumer Disputes Redressal Commission)
WITH
I.A. No. 1 /2012 (STAY)
1. Nikunj Lohia s/o H.P. Lohia R/o G-3, Maharani Bagh, New Delhi
2. Harsh Gupta S/o Sh. Anil Gupta, B-41, Maharani Bagh, New Delhi
3. Abha Mittal, Mr. D.C. Mittal, R/o 1010, Sector 17, Faridabad
…. Petitioners
Versus
Yashpal Kalra S/o Late Roop Chand, House No. 2-H/11, NIT Faridabad
…. Respondent
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA,
PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioner(s) Mr. Madhurendra Kumar, Advocate
PRONOUNCED ON : 17 th JANUARY 2013
O R D E R
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER
Being aggrieved by the order dated 17.05.12 passed by the State Consumer
Disputes Redressal Commission, Haryana, Panchkula (for short ‘the State
Commission’), the appeal filed against order dated 10.11.2008 passed by the District
Forum, Faridabad was dismissed.
2. Brief facts of this case are that the respondent no. 1 / complainant was permanent
employee of East India Cotton Manufacturing Ltd. under the control and supervision of
the petitioners / OP No. 1 to 3 and a school, namely, Vidya Niketan was being run by
them. There was a contract between the management of East India Cotton
Manufacturing Ltd. and its employee in which a specific provision was that children of
employees will get education in the aforesaid institute on the basis of ‘no profit no loss’,
i.e., minimised fee of Rs.30 per month. It is further alleged that respondent no. 1
children have been studying since very beginning in the aforesaid institute. It is alleged
that respondent no. 1 has been cheated by charging full fee. Accordingly, respondent
no. 1 filed an application praying not to discriminate with him and other employee to
which he did not get any positive response rather have threatened
to shunt out of his children from the institute. Thus,
alleging negligence and deficiency on the part of the petitioner, a complaint was filed
before the District Forum.
3. The complaint was contested by the petitioners in which a plea was raised that there
was no contract between East India Cotton Manufacturing Ltd. and its employees that
children of the employees would get education in the above said school on the basis of
no profit no loss. It has been further stated by the petitioners that there was grant given
by the company to its employees that employees’ children will get education at
subsidised fee in Vidya Niketan Sr. Sec. School and for this company had to
compensate the school against the concession given by it to the employee’s children. It
was the sole discretion of Vidya Niketan society to whom it will grant the concession,
thus, there was no fault on the part of the petitioners.
4. The District Forum accepted the complaint by granting the following reliefs:-“i) to compensate the wards of its employees by providing them facilities and concessions in connection with education inVidya Niketan Sr. Secondary School, Faridabad, in accordance with the existing arrangement and the practice followed heretofore. ii) to refund the earlier excess fee charged by the respondents from the wards of the complainant alongwith interest @12% p.a. from the date of deposit till its realisation. iii) to pay Rs.2200/- as litigation charges.”
5. Aggrieved by the order of the District Forum, petitioners filed an appeal before the
State Commission. Along with the appeal an application seeking condonation of delay
of 132 days was also filed.
6. The State Commission vide its impugned order, dismissed the appeal on the ground
of limitation as well as on merits. Hence this revision petition.
7. It has been pointed out by the counsel for the petitioner that the complaint filed by
the complainant before the District Forum was barred by limitation and the complainant
does not fall within the category of “consumer”.
8. These pleas have been raised by the petitioner for the first time before this
Commission. Be that as it may, since getting education in the school is a continuous
process so it cannot be said that complaint was barred by limitation.
9. Even otherwise, above pleas raised by the learned counsel for the petitioner before
this Commission falls to the ground in view of the admission made by the petitioners in
their written version, in which it is averred :-“After the closure of the company, it is not in condition to compensate the school against the concession given by the school to the children of employees.”
10. In view of the aforesaid admission made by the petitioners in its written statement,
admittedly, it had been earlier compensating the school against the concession given by
the school to the children of the employees. Now, it does not lie in the mouth of
petitioners to escape their liability. The State Commission while dismissing the appeal
in its impugned order observed:-“Even on merits, the learned counsel for the respondent no. 1 submitted that many complaints were filed against the OPs – appellants by other similarly situated employees claiming the benefit of concession in fees of their wards studying in the school (OP NO. 4) being run by OP Nos. 1 to 3. One of the said complaints bearing 46 to 7.5.1992 was partly allowed by District Forum, Faridabad vide order dated 14.12.1993 upholding right of complainants for having concessional fee for this children and same was confirmed in appeal No. 17/12.5.1994. Even Revision Petition filed by OP before Hon’bleNational Commission bearing RP No. 448 of 1994 also stood dismissed vide judgement dated 17.5.1995. Since the proposition already stands settled. No ground to interfere in the impugned order.”
11. Thus, we do not find any infirmity or ambiguity in the order passed by the State
Commission. There is no legal point involved in the present revision petition. The
revision petition is thereby dismissed with cost of Rs.5,000/-. Cost be deposited by way
of demand draft in favour of ‘Consumer Legal Aid Account’ of this Commission within
four weeks, failing which it shall carry interest @9% p.a. till realisation.
12. List on 01.03.2013 for compliance.
..…..………………………
(V. B. GUPTA J.)
PRESIDING MEMBER
..….…………………………
(K. S. CHAUDHARI J.)
MEMBERRS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2382 OF 2012(From the order dated 17.2.2012 in Appeal No.860/11 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
State Bank of India Through Chief Manager, Branch Rewari Bajaria Rewari, Haryana
… Petitioner/OP
Versus Om Prakash Saini S/o Shri Shyam Lal R/o House No. 1008, Sector-3, Part-2, District Rewari, Haryana
… Respondents/Complainant
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioner : Mr. Gautam Gupta, Advocate
For the Respondent : In person
PRONOUNCED ON 18 th January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 17.02.2012 passed by the Haryana State Consumer Disputes Redressal
Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 860 of 2011 –
State Bank of India Vs. Om Prakash Saini by which appeal of the petitioner was
dismissed and order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that complainant filed complaint before the District
Forum alleging that he was holding saving bank account with the petitioner/OP. On
23.5.2010, complainant went to ATM of OP to withdraw Rs.5,000/-. Rupees 5,000/-
could not be withdrawn due to defect in the ATM machine, but received a slip showing
deduction of Rs.5,000/- from his account. Complainant immediately contacted opposite
party on its toll free no. 1800112211. Opposite party assured that complainant would
get the money back. Complainant also demanded video footage of the transaction at
the relevant time but that was not supplied. Rupees 5,000/- was also not returned to
him and in such circumstances alleging deficiency of service, filed complaint before the
District Forum for refund of amount. Opposite party filed written submissions and
submitted that ATM machine clearly shows withdrawal of sum of Rs.5,000/- on
23.5.2010 and complainant was given intimation of this fact along with copy of ATM
record and prayed for dismissal of complaint. Learned District Forum after hearing both
the parties accepted complaint and directed opposite party to refund Rs.5,000/- as
compensation and Rs.1100/- as litigation expenses. Opposite party/petitioner filed
appeal before the State Commission which was dismissed by the learned State
Commission against which this revision petition has been filed.
3. Learned Counsel for the petitioner submitted that J.P. Roll contained various
other transactions effected on 23.5.2010 and many persons had withdrawn money, but
none other except the complainant, complained. Had there been any defect in the ATM
machine, more complaints would have been received and in such circumstances,
learned State Commission has committed error in dismissing appeal, hence, the
revision petition be accepted and order of learned State Commission may be set aside
and complaint be dismissed. On the other hand, General Power of Attorney Holder of
Respondent submitted that order passed by learned State Commission is in accordance
with law and as the petitioner has not supplied video footage, petition is liable to be
dismissed.
4. Complainant has supported his claim only by his affidavit, but has not adduced
any other evidence to substantiate his claim before the District Forum. Learned District
Forum observed that “The first and foremost question before this Forum is whether
affidavit of the complainant should be relied upon or the slip of the ATM
Machine? Normally, machine does not lie but man may do so. But it also varies from
man to man. Every person cannot be presumed to be a liar. It is reliability and
trustworthiness of the person which matters. Some time machine may fail. There may
be unexplainable number of reasons for the same. After perusal of the record and after
hearing the complainant himself, our judicial conscience is completely satisfied that the
complainant is a reliable and trustworthiness person”.
5. Learned District Forum held complainant reliable and trustworthiness only on
account of judicial conscience on the ground that there was no reason for the
complainant to tell a lie only for a sum of Rs.5,000/-. It is true that normally a person
would not tell a lie but in civil matters complainant was obliged to prove his claim by
preponderance of evidence. Complainant should have called for the statement of the
opposite party showing opening balance in ATM machine on 23.5.2010 and closing
balance on that day along with amount withdrawn which should have proved that
Rs.5,000/- were not received by the complainant and he got only a slip showing receipt
of the money. When many other persons had withdrawn money from that ATM on that
day and none complained for not receiving money it cannot be presumed that
complainant did not receive Rs.5,000/- from the ATM machine. Complainant has not
proved any written protest made to the bank authorities immediately and has based his
claim only on the basis of information given on toll-free number of the opposite party.
6. Exactly what message was given is also not on record. Learned District Forum
allowed the complaint mainly on the ground that video footage were not furnished to the
complainant by the opposite party and the learned State Commission also observed the
same fact in the impugned order. In this case, video footage had no relevance at all
because this is not the case of the complainant that he did not go to operate ATM
machine of opposite party. Opposite party has also mentioned in its written statement
that camera is fixed only on the face of the user and not on the keys of the ATM and the
delivery window. In such circumstances, non-supply of video footage had no bearing on
the claim of the complainant and on this deficiency claim could not have been allowed
by the learned District Forum and upheld by the learned State Commission.
7. Consequently, petition filed by the petitioner/OP is allowed against the
respondent and impugned order dated 17.2.2012 passed by the learned State
Commission in F.A. No. 860 of 2011 is set aside and complaint of the complainant is
dismissed. Parties to bear their own cost.
..………………Sd/-…………
( V.B. GUPTA, J)
PRESIDING MEMBER
..……………Sd/-………………
( K.S. CHAUDHARI, J)
MEMBERK
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI
REVISION PETITION NO. 2982 OF 2012 (From the Order dated 2.5.2012 in Appeal No. 456/2010 of
Haryana State Consumer Disputes Redressal Commission, Panchkula)
Shri Kuldeep Singh S/o sh. Hoshiyar Singh R/ Village – Damayapur Post Office - BadliDistt. Jhajjar, Haryana
Petitioner
Versus
IFCO Tokio General Insurance Co. Ltd. Reg. Office at IFCO House, IIIrd Floor34, Nehru Place New Delhi Through Its Manager
Respondent BEFORE: HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner : Mr. Jitender Vashisht, Advocate Pronounced on : 18 th January, 2013
PER SURESH CHANDRA, MEMBER
This revision petition has been filed by the petitioner, who was the original
complainant before the District Forum, against the order dated 2.5.2012 passed by the
Haryana State Consumer Disputes Redressal Commission, Panchkula (‘State
Commission’ for short) by which the State Commission allowed the appeal filed by the
respondent / opposite party and reversed the order dated 8.3.2010 passed by the
District Consumer Forum, Bhiwani in complaint No.503 of 2008. The District Forum had
earlier accepted the complaint of the petitioner by granting the following reliefs:-
(i) To pay Rs.15,18,100/- along with interest @ 12% p.a., i.e., from 18.2.2007 the date of repudiation till its final realization.
(ii) To pay Rs.2200/- as litigation charges
2. Aggrieved by the aforesaid order of the District Forum, the OP Insurance Co.
had challenged the same before the State Commission which vide its impugned order
reversed the order of the District Forum and accepted the appeal of the OP Insurance
Co. Aggrieved by this order of the State Commission, the complainant has now filed the
present revision petition against the impugned order.
3. Brief facts of this case which are not disputed between the parties are that the
petitioner / complainant had got insured his truck bearing Regn. No.HR-63A-1885 with
the respondent / OP for the period from 9.5.2006. Unfortunately, the vehicle was stolen
on 19.12.2006. FIR No.607 of 2006 dated 30.12.2006 was lodged and information was
sent to the opposite party on 31.12.2006 along with requisite documents. However, the
claim of the complainant was closed as “No Claim” and the complainant was informed
by the OP Insurance Co. accordingly vide its letter dated 18.2.2007. Alleging it as a
case of deficiency in service, the complainant invoked the jurisdiction of the District
Forum, Bhiwani. On being noticed, the OP Co. contested the complaint. It is submitted
that the vehicle in question was stolen on 19.12.2006 whereas the FIR
was lodged on 30.12.2006 and the information was sent to the OP on 31.12.2006. It is
further submitted that the complainant did not produce requisite documents. Some
information which was required was also not submitted despite repeated reminders and
hence the claim was closed as “No Claim” and the complainant informed accordingly
vide letter dated 18.7.2008. On appraisal of the pleadings of the parties and the
evidence placed before it, the District Forum accepted the complaint and granted the
relief mentioned hereinbefore. Aggrieved by the order of the District Forum, the OP
Insurance Co. filed an appeal before the State Commission which was allowed and the
order of the District Forum was reversed and set aside by the State Commission vide its
impugned order. The complainant/petitioner has now challenged the same through the
present revision petition.
3. During the course of admission hearing, learned counsel for the petitioner has
contended that the claim of the complainant where the theft of the vehicle is an admitted
fact, it is the responsibility of the OP Insurance Co. to pay the claim amount (known as
insured amount) which is reflected in the complaint petition and in no circumstances, the
respondent company can ignore its own responsibility to pay the insured amount to the
complainant only on the ground of delayed FIR. He further submitted that the
complainant informed the matter immediately after its occurrence to the police but the
police did not want to proceed for investigation into the matter and started the case only
on 30.12.2006 although the matter was reported in writing by the petitioner on
19.12.2006. In view of this, it was the job of the police to start the investigation and the
complainant could not compel the police to start the case and hence the State
Commission erred in not appreciating this aspect properly while non-suiting the claim of
the petitioner. He also argued that the word “Immediately” which is mentioned in the
terms and conditions of the policy, does not specify the time limit within which the
insured will inform the matter and hence even if there was some delay in informing the
matter to the OP Insurance Co., the same should have been ignored by the State
Commission since the petitioner had already informed the local police station of the theft
in writing on 19.12.2006. He, therefore, pleaded that the order passed by the District
Forum was based on correct appreciation of the facts and circumstances and hence the
same needs to be restored and confirmed and the impugned order be set aside.
4. Learned counsel has also cited the two cases of National Insurance Co.
Ltd. Vs. Sanjay Shivhare [IV (2007) CPJ 366 (NC)] and Oriental Insurance Co. Ltd.
& Ors. Vs. ParveshChander Chadha [IV (2008) CPJ 211 (NC)] decided by the
National Commission in support of his submission.
5. We have carefully considered the submissions made by the learned counsel and
also gone through the two orders of the National Commission relied upon by the learned
counsel. The State Commission while reversing the order of the District Forum and non-
suiting the claim of the petitioner has made the following observations in support of the
impugned order:-
“Undisputedly, the vehicle in question was stolen on 19.12.2006 and the information to the Insurance Company was given on 31.12.2006 i.e. after twelve days from the date of alleged accident. No FIR was recorded in the concerned police station on the date of theft. Thus, there was violation of the condition No. 1 of the policy. The District Consumer Forum has not appreciated the factual position on record and committed great error while accepting the complaint of the complainant and as such the impugned order under challenge is not sustainable in the eyes of law.”
6. While passing the impugned order, the State Commission has relied on
the judgement of the National Commission in the case of New India Insurance Co. Ltd.
Vs. Trilochan Jane in F.A. No.321 of 2005 decided on 9.12.2009 in which the vehicle
was stolen on 8.4.2000 and the matter was reported to the police on 10.4.2000, i.e.,
after two days of the incident and information to the Insurance Co. was given after about
9 days, i.e., on 17.4.2000 and even then the National Commission dismissed the
complaint on the ground of delay in reporting the theft of the vehicle. In the present
case, we find that the FIR with the police is recorded on 30.12.2006 and the intimation
to the Insurance Co. was given on 31.12.2006. In the circumstances, we agree with the
view taken by the State Commission which is in line with the later decision of this
Commission in Trilochan Jane’s case (Supra) where the delay in reporting the theft was
held to be crucial in the matter of violation of terms and conditions of the policy based
on which the claim of the complainant was non-suited. So far as the two cases relied
upon by the learned counsel are concerned, we find that the facts and circumstances of
the case of Sanjay Shivhare were different and hence the decision of the three Member
Bench in that case would not get attracted to the present case. So far as the ratio of the
second case of Parvesh Chander Chadha is concerned, this case was decided
on 28.8.2008 by a Two Member bench of this Commission wherein in spite of the
delay, the order of the District Forum, as upheld by the State Commission, directing the
claim to be settled on non-standard basis as 75% was upheld. However, in the case
of Trilochan Jane (Supra), this Commission has taken a different view in similar
circumstances relying on the ratio laid down by the Apex Court in the case of United
India Insurance Co. Ltd. Vs. M/s Harchand RaiChandan Lal [JT (2004) 8 SC 8]. In
this later judgement in the case of Trilochan Jane, this Commission in line with the ratio
laid down by the Apex Court has held that the terms of policy have to be considered as
it is and nothing can be added or subtracted from the same. It was held that the policy
provides that in the case of theft, the matter should be reported “Immediately”. In the
context of a theft of the car, word “Immediately” has to be construed strictly to make
the Insurance Co. liable to pay the compensation. We are of the considered view that
looking to the facts and circumstances of this case, the State Commission rightly
applied the ratio of later judgement in the case of Trilochan Jane while non-suiting the
claim of the petitioner. We, therefore, do not find any ground which would justify our
interference with the impugned order. The revision petition, therefore, stands dismissed
in limine with no order as to costs.
..…………Sd/-……..………. (K.S. CHAUDHARI, J.)
PRESIDING MEMBER
….………Sd/-……………… (SURESH CHANDRA)
MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2533 OF 2011
(Against the order dated 29/03/2011 in Appeal No 2721/2007 of Haryana State Consumer Disputes Redressal Commission, Panchkula)
1 .SMT. SHANTI DEVI Widow of Inder Singh R/o Village Dharauli Tehsil & District Jhajjar Haryana
2 .Narender Singh, S/o Inder Singh, Village Dharauli Tehsil Jhajjar & District Haryana
3. Surender Singh S/o Inder Singh Village Dharauli Tehsil & District Jhajjar Haryana
4. Vikram Singh S/o Inder Singh Village Dharauli Tehsil & District Jhajjar Haryana
5 .Kiran Daughter of Inder Singh Village Dharauli Tehsil & District Jhajjar Haryana
6. Rekha Daughter of Inder Singh Village Dharauli Tehsil & District Jhajjar Haryana
7. Parveen Daughter of Inder Singh Village Dharauli Tehsil Jhajjar & District Haryana
....Petitioner(s)
Versus
1 .ORIENTAL INSURANCE CO. LTD. Regional Office, LIC Building 2nd Floor, Jagdhari Ambala Haryana
2 .Oriental Insurance Company Ltd Branch office at Bahadurgarh District Jhajjar Haryana
3 .Oriental Insurance Company Ltd. Branch Office at Mohali Mohali Punjab
....Respondent(s)
BEFORE:
HON'BLE MR. SURESH CHANDRA , PRESIDING MEMBER
For the Petitioners : Mr. R.K. Bhartiya, Advocate
Pronounced on : 18 th January, 2013
PER SURESH CHANDRA, MEMBER
Briefly stated, the facts of this case are that one Inder Singh (hereinafter referred to as
life assured) obtained an insurance policy from the OP Insurance Co. for the period
from 26.2.1997 to 25.2.2007 for a sum of Rs.5 lakhs. The life assured died in a road
accident in the midnight of 7/8.1.2002. FIR No.197 of 6.3.2002 was lodged with the
Police Station, Gurgaon wherein an ‘Untraced Report’ was prepared by the police and
forwarded to the Chief Judicial Magistrate, Gurgaon. Necessary intimation was given to
the OP Insurance Co. but it refused to pay the claim amount and hence alleging it a
case of deficiency in service and unfair trade practice, the complainants/petitioners filed
a complaint before the District Forum. The District Forum vide its order dated 13.8.2007
accepted the complaint and directed the OP Insurance Co. to pay Rs.5 lakhs to
the complainants/petitioners within a period of one month. The OP Insurance Co. filed
an appeal against this order of the District Forum before the Haryana State Consumer
Disputes Redressal Commission, Panchkula (‘State Commission’ for short). The State
Commission vide its order dated 29.3.2011 allowed the appeal of the OP Insurance Co.
and set aside the aforesaid order of the District Forum and dismissed the complaint.
Aggrieved by the impugned order of the State Commission, the complainants have filed
this revision petition against the same.
2. We have heard Mr. R.K. Bhartiya, Advocate, learned counsel for the petitioners
and perused the record.
3. It is seen that the State Commission has reversed the order of the District Forum
and dismissed the complaint on the ground that it was barred by limitation. While
accepting the appeal of the OP Insurance Co., the State Commission has made the
following observations:-
“From the perusal of record, it is crystal clear that the claim submitted by the complainant was treated as no claim by the opposite parties and the intimation in this regard was sent to the complainant on 17.03.2003 whereas the complainants have filed the present complaint on 25.08.2006 i.e. beyond the prescribed period of two years as provided under Section 24-A of the Consumer Protection Act, 1986. It is well settled principle of law that no complaint can be entertained by the Consumer Forum if it is not filed within two years from the date of cause of action. Reliance is placed on the case titled as Kandimalla Raghavaiah & Co. Versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) wherein it has been held by Hon’ble Apex court that:-
“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”
4. Applying the ratio laid down by the Apex Court to the facts of the present case,
the State Commission treated the complaint of the petitioners as barred by limitation
and hence held that the same could not have been entertained by the District Forum.
The view taken by the State Commission in its impugned order is correct and according
to the provisions of the Consumer Protection Act and the law laid down by the Apex
Court. This being the legal position based on the undisputed facts, we do not find any
merit in the revision petition and the same is liable to be set aside at the threshold. It is
accordingly dismissed with no order as to costs.
….………Sd/-………………
(SURESH CHANDRA)
PRESIDING MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 176 OF 2006
(Against the order dated 30.12.2005 in CD No. 46 of 2001 of the
A.P. State Consumer Disputes Redressal Commission, Hyderabad)
1. G. Ravender Rao (wrongly mentioned as Raghavender Rao in the complaint) Managing Director Yashoda Super Special Hospital, Malakpet Hyderabad
2. Yashoda Super Speciality Hospital Malakpet, Hyderbad Rep. by Dr. Shari G.S. Rao, Executive Director
3. Dr. Shri P. Ranganadham, MBBS, M.Ch Neuro Surgeon Yashoda Super Speciality Hospital Malakpet, Hyderabad
4. Dr. Shri A.V. Naidu, Pathologist Yashoda Super Speciality Hospital Malakpet, Hyderabad
5. Dr. Shri Sasidhar, Radiologist Yashoda Super Speciality Hospital Malakpet, Hyderabad
6. Dr. Shri Lingaiah Medical Superintendent Yashoda Super Speciality Hospital
Malakpet, Hyderabad
… Appellants
Versus
1. Shri Ghulam Dastagir Father and Natural Guardian of Miss Rousheen Ahmedi, 15 yrs. Minor represented by her father Shri Ghulam Dastagir R/o H.No. 8-2-27/1-2-3, Teacher’s Colony Mahabubnagar
2. New India Assurance Co. Ltd. Divisional Office 5-2-174/2 Madanmohan Building, R.P. Road Secunderabad
… Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For Appellants : Mr.Y. Rajagopala Rao, Advocate
For Respondents : Ms.Rekha Aggarwal, Amicus Curiae for R1
Mr. Navdeep Singh, Advocate for R-2
Pronounced on 21 st January, 2013
ORDER
PER VINEETA RAI, MEMBER
1. This first appeal has been filed by G. Ravender Rao and five others being the
Managing Director and doctors at the Yashoda Super Speciality Hospital, Hyderabad
[Appellants herein and Opposite Parties before the A.P. State Consumer Disputes
Redressal Commission (hereinafter referred to as the State Commission)] being
aggrieved by the order of that Commission, which allowed the complaint of medical
negligence and deficiency in service filed against them by Respondent Ghulam Dastagir
(hereinafter referred to as Respondent).
FACTS :
2. In his complaint before the State Commission, Respondent had contended that
he had taken his only daughter Rausheen Ahmedi, aged 15 years (hereinafter referred
to as the patient) with complaint of severe headache to Appellant Hospital, where she
was prescribed certain tests by Dr. P. Ranganadham, Neuro Surgeon and Appellant
No.3, which included a CT scan conducted by Dr. Sasidhar, Radiologist and Appellant
No.5. Patient was diagnosed with Meningioma i.e. a non-cancerous tumor on the left
side of her brain and was advised immediate surgery. Respondent, therefore, got his
daughter admitted to the Appellant Hospital and the surgery was conducted on
08.05.2000. He was informed that the operation was successful and that the tumor had
been completely removed. He was further informed that the pathology lab where the
tumor was sent for analysis had confirmed that it was Meningioma (non-
cancerous). Appellant No.3-Neuro Surgeon, who performed this surgery, after seeing
the patient on 09.05.2000 went away on a holiday for about 10 days. During her period
of stay in the hospital, when she was attended by another Neurologist, her condition
deteriorated and her head and eyes were swollen after the surgery and on 16.05.2000
and 17.05.2000 water was removed from her spinal cord. Late at night on 17.05.2000
her condition became very serious and she became incoherent and this was
immediately reported to the doctor on duty. Despite her remaining in the hospital and
being under the treatment of their doctors, her condition did not improve and on
21.05.2000, when Appellant No.3-Neuro Surgeon returned from holiday, she was again
shifted to the acute neuro ward. On 03.06.2000, Appellant No.3-Neuro Surgeon stated
that the patient was now normal and she was discharged with an advice to bring her
after one week for a check-up. Respondent had paid a bill of Rs.94,815/- for her
treatment. When the patient visited the Appellant hospital on three occasions with
complaints of feeling unwell, she was assured that it would take time to be completely
cured. It was only on 26.06.2000 that she was readmitted in the Appellant hospital and
Respondent was informed that the patient required a second CT scan which was
conducted on 28.06.2000, after which Respondent was informed that the area of the
brain where surgery had been conducted had got filled with “pus” and, therefore, a
second surgery was required. Appellant No.3-Neuro Surgeon, who performed the
surgery, informed the Respondent that he had to remove the pus from the brain as also
9 cm x 4.5 cm of bone from this area since it had got infected. The specimen was sent
for a biopsy alongwith infected bone to the pathology lab of the Appellant Hospital. The
second surgery placed serious doubts in the mind of the Respondent about the
correctness of the treatment being given to the patient and, therefore, he consulted one
Dr. S.S.R. Murthy, Neuro-Surgeon at Apollo Hospital for a second opinion. Dr. Murthy
opined that if the Meningioma tumor had been completely removed, it could not recur
within a short span of 52 days and, therefore, the diagnosis of Meningioma was wrong
and the patient’s tumor was apparently cancerous. Soon after taking the second
opinion, Respondent met Appellant No.3-Neuro Surgeon to find out what exactly he had
removed from the brain when he performed the second surgery and was only then
informed that there was also a tumor which was removed during the second
surgery. On 05.07.2000 the report from the pathology department of the Appellant
Hospital confirmed that the tumor was cancerous. Appellants assured the Respondent
that a committee would be constituted to look into this case but without taking any
action, the patient was abruptly discharged on 18.07.2000 with an advice to take
radiotherapy treatment. Before taking radiotherapy, Respondent took a second opinion
from several doctors, who confirmed that the tumor was cancerous and also opined that
the diagnosis of first tumor being non-cancerous was not correct because a cancerous
tumor could not have formed and that too in 4th stage in such a short
period. Respondent, therefore, issued legal notice to all the 7 Appellants on grounds of
medical negligence and deficiency in service and demanded a sum of Rs.11 Lakhs
towards damages under various heads. In the meantime, the patient suffered a
paralytic attack and ultimately expired on 04.11.2000. Respondent, therefore, issued a
second legal notice demanding a sum of Rs.20 Lakhs as compensation and not being
satisfied with the response received that the infection had occurred because of the
number of visitors who came to see the patient, Respondent filed a complaint before the
State Commission on grounds of medical negligence and deficiency in service and
requested that the Appellants be jointly and severally directed to pay him Rs.20 Lakhs
as compensation for causing the premature death of his daughter and untold mental
torture and agony due to the careless and gross medical negligence on the part of the
Appellants.
3. Appellants on being served filed their written counter, in which they denied that
there was any medical negligence or deficiency in service in the medical treatment and
care of the patient. It was stated that following a CT scan of the brain, which revealed a
large lesion in the fronto-temporal area and reported by the radiology test as
Meningioma (i.e. a non-cancerous tumor), the patient was successfully operated and
the entire tumor was removed. Some post-operative complications in the form of fever
and headache developed because of over-crowding by the patient’s attendants in spite
of repeated requests from the hospital authorities. The patient was readmitted on
20.06.2000 with very minor complaints, which were treated in two days’ time and the
patient was discharged in a satisfactory condition. It was only on 26.06.2000 when she
was admitted for a third time that a repeat CT scan was done free of cost, which again
revealed a large lesion in the left fronto-temporal area with infected bone flap. The
second surgery, therefore, became necessary to remove the bone flap and the
intracranial tumor. The histopathology report of the tumor this time indicated that it was
a neuroectodermal tumor (malignant) i.e. it was cancerous and the patient was
accordingly advised radiotherapy. It is not correct that the patient was wrongly
diagnosed as having non-cancerous tumor on the first occasion. It was submitted that
the Appellants are not aware of the medical opinion that the Respondent had obtained
from some other doctors which needs to be put to strict proof. According to the
Appellants, the patient was provided the best possible treatment on the basis of a clear
and scientific diagnosis and she was provided medical treatment by well-qualified
specialist doctors in the Appellant hospital.
4. The State Commission after hearing the parties and on the basis of evidence
produced before it concluded that Appellants No. 1 to 6 were guilty of medical
negligence and they were jointly and severally directed to pay the Respondent Rs.3
Lakhs as compensation. Rs.2000/- was awarded as litigation cost. The relevant part of
the order of the State Commission is reproduced:“… there is negligence on the part of the opposite party in removing the cancerous tumor and also deficiency in service in not giving the radio therapy after removing the tumor in the first operation. Advocate for the opposite party referred to page 15227 in book of Neurosurgery. The author says that ‘the primary treatment should be surgery because cure is possible if complete resection is accomplished. This requires complete removal of tumor, dural origin and involved skull.
Had the opposite party no.2 removed the tumor completely conducting the second operation for removal of the tumor at the same place would not arise. IT is stated in the above said book ‘even with a gross total resection however 10% of patients will have recurrence within 10 years’. In this case if tumor is completely removed and it is a meningioma (non cancerous tumor) the patient would have survived for 10 years. As the opposite party removed the tumor which is cancerous further aggravated the condition and opposite party conducted the second operation also. Only after the second operation the patient got admitted in the cancer hospital and gave the radio therapy. The patient died within 6 months after the first operation. Due to the medical negligence in not exercising the reasonable degree of care in treating the patient the patient died within 6 months after the operation. The complainant and his family members lost company of the patient for about 10 years. The complaint was also made to bear expenses of the second operation which could have been avoided had the first operation conducted with care and caution. Due to the negligence in conducting the first operation bone was infected. The complainants claimed Rs.3 lakhs towards medical expenses. Rs.1,50,000/- towards loss of company, Rs.15 lakhs for pain and suffering. As the patient was suffering from Cancerous tumor in the brain and considering the fact that she would have survived for 5 to 10 years by giving radio therapy we fix Rs.3 lakhs towards compensation, medical expenses and loss of company as against the claim of Rs.19,60,000. We fix Rs.2000/- towards legal and miscellaneous expenses.”
Hence, the present first appeal.
5. Learned counsel for both parties made detailed oral submissions.
6. Learned counsel for the Appellants while reiterating the facts as stated by them
before the State Commission contended that the CT scan done on the patient prior to
the first surgery clearly indicated that there was a tumor because of which the surgery
was conducted. Thereafter, as per normal procedure after the tumor was removed, it
was sent for biopsy, which confirmed that it was not Malignant. Therefore, there was no
error in either the diagnosis or the treatment of the patient and the question of
radiotherapy did not arise since the tumor was clearly non-cancerous. A copy of the
histopathology report/specimen pertaining to the first tumor was sent to Apollo Hospital
for a second opinion shortly after the death of the patient and it was confirmed by the
pathologist in that hospital (Dr. Swaranlata) that the diagnosis of the tumor being non-
cancerous was correct. Unfortunately, the State Commission concluded that this was a
case of medical negligence by relying on the opinion of one Dr. S.S.R. Murthy, a Neuro-
Surgeon of Apollo Hospital, who apparently informed the Respondent that if the first
tumor had been removed completely, it would not have recurred within a short span of
52 days and further that the first tumor was wrongly diagnosed as Meningioma and,
therefore, a wrong line of treatment was followed causing unnecessary pain and
suffering to the patient and her eventual death. Counsel for the Appellants pointed out
that Dr. Murthy was not examined by the State Commission as a witness nor was any
affidavit or statement filed by him in support of these facts. It was only the Respondent,
an interested party, who had stated before the State Commission that this was the
opinion of Dr. Murthy and the State Commission, therefore, erred in taking cognizance
of the same in reaching its finding of medical negligence. On the other hand, as per
credible documentary evidence on file i.e. the histopathology report and a second
opinion from a pathologist of Apollo Hospital confirming the same in writing, the first
tumor was undoubtedly non-cancerous. There is also no evidence to support
Respondent’s contention that the first tumor was not completely removed. When the
second CT scan revealed a tumor and infection in the bone, the Appellants-doctors
using their best professional judgment conducted a second surgery and when their
report indicated that the second tumor was cancerous, radiotherapy was immediately
advised. Counsel for the Appellants contended that it is medically well established as
per medical literature that a second tumor can recur in the same site as the non-
cancerous tumor even after it is fully removed and cancerous tumors are known to be
fast growing and, therefore, can occur within a short period. Unfortunately, this is what
happened in the instant case, for which the Appellants cannot be held responsible.
7. Learned counsel for Respondent in his submissions stated that the State
Commission had rightly concluded that had the entire tumor been removed in the first
instance and a correct diagnosis made, then the second tumor in the same area would
not have recurred. It was also pointed out that this is further confirmed by the fact that
the second tumor was found to be grade IV i.e. at final stage and this could not have
occurred within 52 days. The above facts were confirmed by a specialist Dr. S.S.R.
Murthy, from whom Respondent took second opinion and on whose statement the State
Commission had correctly relied. It was further contended that a well- qualified and
professional doctor should have been immediately able to diagnose a cancerous tumor
on seeing it and in the instant case, the concerned Appellants failed to do so while
removing the first tumor because of their medical negligence and indifferent attitude. It
was because of this that the patient who was a promising 15 year old girl lost her
life. Had radiotherapy been advised on 06.05.2000 itself, she would have
survived. The State Commission, therefore, rightly concluded that there was a clear
case of medical negligence and deficiency in service on the part of Appellant
hospital/doctors.
8. We have heard learned counsel for both parties and have carefully gone through
the evidence on record. The facts regarding the patient’s admission in the Appellant
hospital and her having undergone two surgeries there are not in dispute. What was
challenged by the Respondent before the State Commission was that the Appellant
hospital/doctors had misdiagnosed the patient’s first tumor as not being cancerous
when she was admitted to the Appellant Hospital on 08.05.2000 and conducting an
unnecessary surgery whereas she should have been advised radiotherapy
immediately. The State Commission, we note, had accepted Respondent’s contention
by primarily relying on Respondent’s evidence citing the opinion of Dr. S.S.R. Murthy, a
Neuro Surgeon of Apollo Hospital, to this effect. However, in view of the fact that Dr.
Murthy was not examined as a witness before the State Commission nor was any
evidence filed either in the form of his statement or an affidavit, confirming that he had
given this opinion to the Respondent, we find force in the contention of the Appellants
that the State Commission erred in relying on this opinion cited by the Respondent in
reaching its conclusion of medical negligence. On the other hand, we note that there is
credible documentary evidence on record to indicate otherwise e.g. the histopathology
report filed by the Appellants in respect of the first tumor stating that it was non-
cancerous which fact was confirmed by another pathologist from Apollo Hospital. Thus,
as stated earlier, we are unable to accept the contention of the Respondent and the
finding of the State Commission that the first tumor was wrongly diagnosed as being
non-cancerous. We are also unable to agree with the finding of the State Commission
that because the second tumor was detected and removed within 52 days of the first
tumor, this is proof of the fact that the first tumor had not been fully removed by the
Appellants, which clearly amounts to medical negligence. In this connection, we have
perused the medical literature on the subject* and note that brain tumors, including
Primitive Neuro Ectodermal Tumor (PNET), from which the patient suffered, are
notoriously fast growing and, therefore, its presence in a short span by itself is not
adequate evidence to conclude that the first tumor was not fully removed. Respondent
on whom there was onus to prove his contention has not been able to produce any
specific evidence, including the evidence of any medical expert before the State
Commission in support. Respondent has also not been able to prove that there was
any mistake in the first histopathology report, which, as stated earlier, was confirmed by
the opinion of a specialist from another super speciality hospital. [*Source :(i) Wikipedia (en.wikipedia.org/wiki/Medulloblastoma)(ii) Great Ormond Street Hospital for Children, London, U.K.(iii) Einstein Healthcare Reports – Brain Tumor]
9. What constitutes medical negligence is now well-established through a catena of
judgments of the Hon’ble Supreme Court of India (e.g. in Jacob Mathew v. State of
Punjab [(2005) 6 SCC 1]) and essentially three principles are required to be followed:
(i) Whether the doctor in question possessed the medical skills expected of an ordinary
skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the
practice (of clinical observation diagnosis – including diagnostic tests and treatment) in
the case that would be adopted by such a doctor of ordinary skill in accord with (at
least) one of the responsible bodies of opinion of professional practitioners in the field
and (iii) whether the standards of skills/knowledge expected of the doctor, according to
the said body of medical opinion, were of the time when the events leading to the
allegation of medical negligence
occurred and not of the time when the dispute was being adjudicated.
10. Applying these principles to the present case, we are unable to conclude that
there was any medical negligence or deficiency in service in the treatment of the
patient. The Appellants, who are well-qualified doctors treated the patient as per their
best professional judgment and on the basis of diagnostic and clinical tests from a well-
equipped laboratory. As stated earlier, the Respondent has not been able to controvert
or contradict the above facts through any credible evidence, including that of a medical
expert before the State Commission. In view of these facts, we are unable to uphold
the order of the State Commission concluding that there was medical negligence
against the Appellants and, therefore, set aside the same. We note that Rs.1 Lakh out
of the total compensation of Rs.3 Lakhs awarded by the State Commission has already
been released to the Respondent. Counsel for Respondent states that this may be
treated as ex-gratia payment and not be recovered from the Respondent. Ordered
accordingly.
11. The first appeal is allowed on the above terms.
Sd/-
(ASHOK BHAN, J.)
PRESIDENT
Sd/-
(VINEETA RAI)
MEMBER
Sd/-
(REKHA GUPTA)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 435 OF 2011 (From the order dated 20.10.2010 in Appeal No.1601/03 of the U.P. State Consumer
Disputes Redressal Commission, Lucknow)
Ghaziabad Development Authority Through its Vice Chairman Vikaspath, Ghaziabad … Petitioner/OP
Versus Satya Narayan R/o Gyan Khand-4/144-A, HIG D/S, First Floor, Indirapuram Ghaziabad
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioner : Mrs. Reena Singh, Advocate
For the Respondent : Mr. Pankaj Sharma, Advocate
PRONOUNCED ON 21 st January , 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed against the order dated 20.10.2010 passed
by the U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, ‘the
State Commission’) in Appeal No. 1601 of 2003 – GDA Vs. Satya Narayan Tyagi by
which while dismissing appeal, order of District Forum allowing complaint was affirmed.
2. Brief facts of the case are that complainant/respondent was allotted House No.
144/A in Gyan Khand 4 of Indirapuram Scheme at the estimated price of Rs.5,50,000/-
and complainant was required to deposit the entire amount by 15.10.1998, but he
deposited the entire payment by 15.7.1997 and obtained possession of the house. After
3 years and 3 months, petitioner/OP asked the complainant to deposit additional
Rs.1,95,645/- and Rs.922/- as earlier price was only tentative. Complainant further
alleged that after getting possession of the house, OP has neither fixed a brick nor put a
nail in the house but demanded money and under compelling circumstances, under
protest complainant deposited money with the OP. In such circumstances, complainant
filed complaint for refund of the aforesaid money. OP did not file written statement
before the District Forum and District Forum proceeded ex-parte against OP, but OP
filed written arguments and learned District Forum after considering written arguments
filed by OP allowed complaint and directed the petitioner/OP to refund the aforesaid
amount along with 8% p.a. interest. Petitioner filed appeal before the learned State
Commission which was dismissed by impugned order against which this revision
petition has been filed.
3. Heard Learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioner submitted that as per affidavit given by the
complainant he was bound to deposit the increased cost of the house and learned
District Forum has committed error in allowing refund of the aforesaid amount and
learned State Commission has also committed error in dismissing appeal, hence,
petition may be accepted and orders of learned State Commission and District Forum
be set aside. On the other hand, learned Counsel for the OP submitted that order
passed by learned State Commission is in accordance with law, as price cannot be
escalated after giving possession of the flat and in such circumstances, revision petition
be dismissed with cost.
5. It is admitted fact that house was allotted to the complainant at the estimated cost
of Rs.5,50,000/-. This amount was to be deposited by complainant in
instalments upto15.10.1998, whereas the complainant deposited entire amount by
15.7.1997 and obtained possession of the house. Demand notice for extra money was
sent by OP after 3 years 3 months. OP has not filed written submissions before the
District Forum and learned District Forum proceeded ex-parte against the OP and
rightly allowed the complaint and directed OP to refund extra money demanded by OP
and deposited by complainant under protest. No doubt, affidavit was given by
complainant on 15.4.1997 stating that if in future cost of the house is increased, he will
deposit the same in accordance with rules. Learned Counsel for the petitioner could not
show any rule on what basis price was increased. Price could have been escalated
only on the ground of increase of payment of compensation for the land acquired but
learned Counsel for the petitioner admitted that compensation has not been
increased. In such circumstances, there was no occasion to increase the price of
house, particularly, when complainant had deposited the entire amount before 15
months of payment schedule. Learned State Commission has not committed any error
in dismissing appeal of the petitioner and in such circumstances, revision petition is
liable to be dismissed.
6. Consequently, revision petition filed by the petitioner is dismissed with no order
as to cost. ..……………Sd/-……………
( V.B. GUPTA, J)
PRESIDING MEMBER
..…………Sd/-…………………
( K.S. CHAUDHARI, J)
MEMBERK
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO . 4391 OF 2012
(From the Order dated 29.06.2012 in Appeal No. 664/2011 of
Haryana State Consumer Disputes Redressal Commission, Panchkula)
Manoj Banerjee S/o Sh. Moti Lal Banerjee R/o H.N.482, Professor Colony Ambey Gas Godown Road Yamuna Nagar, Tehsil Jagadhri District Yamuna Nagar, Haryana
Petitioner
Versus
Oriental Insurance Co. Ltd. Opp. Madhu Hotel, Jagadhri Road Yamuna Nagar, Tehsil Jagadhri District Yamuna Nagar, Haryana (Through its authorized signatory Chief Regional Manager)
Oriental Insurance Co. Ltd. Regional Office, LIC Building 2nd Floor, Jagadhri Road Ambala Cantt-133001
Respondent
BEFORE: HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner : Mr. Abhishek Garg, Advocate
Pronounced on : 21 st January, 2013
PER SURESH CHANDRA, MEMBER
There is a delay of 40 days in filing this revision petition. For the reasons stated
by the petitioner in his condonation application, the delay stands condoned.
2. This revision petition has been filed by the petitioner/complainant against the
order dated 29.6.2012 passed by the Haryana State Consumer
Disputes Redressal Commission, Panchkula (‘State Commission’ for short) by which the
State Commission had reversed and set aside the order dated 11.4.2011 passed by the
District Forum, Yamuna Nagar in complaint No.73 of 2010 and allowed the appeal of
the opposite party/respondent Insurance Co. while nonsuiting the claim of the petitioner.
3. The brief facts of this case as emerging from the record are that the truck
bearing Regn. No.HR-58-A-9306 of the complainant was insured with the OP Insurance
Co. for the period from 10.10.2008 to 9.10.2009. On 23.3.2009, the truck met with an
accident at Shillong in Meghalya State and was burnt. D.D.R. No. 332 dated
23.3.2009 was registered at the police stationSohryngkham. Intimation was also given
to the OP Insurance Co. which appointed a surveyor who inspected the vehicle and
submitted his report. The claim of the complainant submitted to the Insurance Co. was,
however, repudiated by the OP Co. on the ground that the vehicle was driven in the
area of Meghalya without any valid route permit because the complainant had obtained
the route permit only for the State of Haryana, Punjab, U.P and Uttrakhand. It was
further stated that the vehicle was loaded with Wax which is a hazardous item and
the driver of the vehicle was not carrying any valid and effective driving licence to drive
the vehicle loaded with hazardous items. Challenging the repudiation of his claim, the
complainant filed a consumer complaint before the District Consumer Forum, Yamuna
Nagar.
4. On being noticed, OP appeared and contested the complaint by filing written
statement wherein it justified the repudiation and prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on record, the
District Forum accepted the complaint with the following observations:-
“…… As per report of the Surveyor Annexure R-11 at para No. 4 page No. 2 it is clearly mentioned that the insurer was having valid route permit for Haryana, U.P, Bihar, Assam, Meghalaya and Tripura, so first ground for repudiating the claim by respondent is not sustainable…………” Secondly Learned counsel for the respondent took the plea that the vehicle of the complainant as carrying wax and to carry chemical in any vehicle a person to obtain a permit particularly for hazardous goods. The respondent failed to prove wax is a hazardous goods. Neither the surveyor has pointed out regarding wax fall under the definition of Hazardous nor he touch this point in his report. So argument of the respondent on this ground is not tenable………”
5. In view of the aforesaid observations, the District Forum granted the following
reliefs to the complainant:-
“………. Admittedly the vehicle was insured with the respondent for the relevant time for Rs.8,40,000/-. According to the report of Surveyor there is a total loss of the vehicle. The scrap of the truck have also been stolen. The accident took place within 6 months of obtaining the insurance cover and we allow depreciation at the rate of 5% on the vehicle and direct the respondent to pay a sum of Rs. 7,98,000/- along with interest at the rate of 12% per annum from 14.07.2009 i.e. after two months from the receipt of Surveyor report till actual payment and the respondent is further directed to pay a sum of Rs.10,000/- as cost of proceedings. Order be complied within 30 days after preparation of copy of this order failing which penal action under section 27 of the Consumer Protection Act will be initiated.”
6. Aggrieved by the above order of the District Forum, the OP Insurance Co. went
in appeal before the State Commission which allowed the same and set aside the order
of the District Forum. Aggrieved by the impugned order, the complainant has now filed
the present revision petition against the order of the State Commission.
7. It is seen from the impugned order that the State Commission has nonsuited the
claim of the petitioner keeping in view the admission on the part of the petitioner that the
truck had entered into the area of Meghalya without any valid route permit. It is
observed that the report received from the Regional Transport Authority, Yamuna Nagar
also indicated that the complainant had obtained the route permit only for Haryana,
Punjab, U.P. and Uttrakhand. Considering these admitted facts, the State Commission
has accepted the appeal of the OP Insurance Co. applying the ratio laid down by the
National Commission in the judgement dated 9.11.2010 rendered in R.P. No 2976 of
2006 (United India Insurance Co. ltd. Vs . Trilok Kaushik ) . We agree with the view
taken by the State Commission in its impugned order which is in line with the view taken
by the National Commission. It is well-established in the light of various judgements of
the Apex Court that the terms and conditions of the insurance policy have to be
construed strictly and if there is any violation of the terms, the party cannot claim any
relief. Mr. Abhishek Garg, Advocate, learned counsel for the petitioner has tried albeit
unsuccessfully persuaded us to accept the claim of the petitioner on non-standard basis
but in view of the settled position of law, we cannot accept this request. The facts and
circumstances of the two cases relied upon by the learned counsel for the petitioner in
the cases of G. Kothainachiar Vs. Branch Manager United India Insurance Co. Ltd.
& Ors . [R.P. No.1503 of 2004] decided on 29.10.2007 by the National Commission
and Oriental Insurance Co. Ltd. Vs . Banto Devi & Ors . [2007 (1) T.A.C. 1000
(P&H) decided by the High Court of Punjab and Haryana were different and hence the
same cannot be applied to the present case. Consequently, we do not find any merit in
the present revision petition which would justify our interference with the impugned
order. The revision petition, therefore, stands dismissed at the threshold with no order
as to costs.
..……..………Sd/-……..……….
(K.S. CHAUDHARI, J.)
PRESIDING MEMBER
……..………Sd/-………………
(SURESH CHANDRA)
MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2448 OF 2012 (Against the order dated 08.05.2012 in First Appeal No. 7 of 2011 of the
Goa State Consumer Disputes Redressal Commission,Panaji)
M/s Transasia Bio-Medicals Ltd. (through Authorised representative Mr. Transasia House, 8 Chandivali Studio Road, Mumbai- 400072
... Petitioner
VersusDr. D. J. Desouza, Proprietor, Clinical Laboratory, “Luz Lab” Libania Building, New Market, Margao, Goa
... Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner : Ms. Anjali Manish, Advocate with Mr. Priyadarshi Manish, Advocate Mr. Apoorva Rajnish, Advocate
Pronounced on : 22 nd January, 2013 ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. The respondent is absent despite service. The learned counsel for the
respondent submits that a sum of Rs.10,000/- has already been paid to him and despite
accepting the same he has not turned up. He be proceeded against ex parte. The
counsel for the petitioner heard at length.
2. On 4th December, 2001, Dr. D. J. De Souza, complainant/respondent had
purchased a Erba Chem 5 Plus auto analyzer, 2001 model (No. 103741) for a sum of
Rs.1,35,800/-. The same was installed on the same day. The complainant noticed that
the second auto analyzer was not functioning properly and brought this fact to the notice
of the petitioner-Engineer on or about 19.10.2001 i.e. within 15 days of the purchase of
the machine. The complainant also wrote a letter to the petitioner that second
auto analyser was defective specially in the kinetic mode. The complainant asked for
the replacement or in the alternative, he would approach the consumer forum by
31.10.2001. Vide letter dated 16.11.2001, the complainant wrote to the petitioner that
he was not interested in having the said defective instrument in his laboratory nor he
was interested in having a replacement of the same. He required the petitioner to return
his amount in the sum of Rs.1,35,800/- lakh.
3. On 20.12.2001, the petitioner filed a complaint before the District Forum. The
District Forum allowed the complaint. The opposite party was directed to refund
Rs.1,35,800/- being the purchase price of the medical instrument with interest @12%
from the date of its purchase till actual payment. The opposite party was further
directed to pay to the complainant consolidated amount of Rs.10,000/- as
compensation/damages on the ground of mental tension, anxiety, loss of professional
income, inconvenience and hardship suffered by the complainant.
4. Aggrieved by that order, the opposite party preferred an appeal before the State
Commission. The State Commission modified the order and directed the complainant
to refund the purchase price of Rs.1,35,800/- with interest at 6% from 20.12.2001 until
payment plus damages/compensation of Rs.5,000/-. The complainant was also directed
to return the second auto analyzer to the opposite party.
5. We have heard the learned counsel for the petitioner. She contended that there is
no report of the expert that machine in question is defective. However, record reveals
that the District Forum had appointed Dr.. Asha Naik as Commissioner in this
case. She filed her report dated 25.1.2006 and 2.2.2006 stating that the second
auto analyser was not fit for lab test in kinetic mode. At the request of the opposite
party, the said doctor was also cross examined. The contention raised by the opposite
party that he was not informed about the inspection by Dr. Asha Naik was given a short
shrift as the District Forum had already directed both the parties to remain present
before the Commissioner on 25.1.2006 at 10.00 a.m.
6. Learned counsel for the petitioner vehemently argued that they are ready to
replace the machine. The case pertains to the year 2001. The machine is with the
complainant. The complainant never signified his willingness for replacement of his
machine.
7. The argument advanced by learned counsel for the petitioner does not carry any
conviction. This is not a matter of new machine. This is the second hand
machine. There is a marked difference between the new machine and old
machine. What is the guarantee that the second hand machine will have no defect. The
facts of this case speak for themselves. Within 15 days of availing the machine, the
defects were detected. The petitioner should have returned the money after 15 days.
8. Under the circumstances, the order of the State Commission cannot be faulted.
The revision petition is, therefore, dismissed.
……………Sd/-……..………..
(J. M. MALIK, J)
PRESIDING MEMBER
……………Sd/-….……………
(VINAY KUMAR)
MEMBER
Naresh/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI
CONSUMER COMPLAINT NO. 145 OF 2012
1. The Society for Consumers’ and investors Protection (SCIP) 118, IInd Floor, DDA Site-1 New Rajinder Nagar, New Delhi-110060 2. M/s Sampark Securities Pvt. Ltd. 1E/18, 4th Floor, Jhandewalan Extension, New Delhi-110055 3. Mr. Ankur Sachdeva 1E/18, 4th Floor, Jhandewalan Extension, New Delhi
… Complainant (s)
Versus
Haryana State Industrial & Infra Development Corporation Limited, C-13-14, Sector-6,Panchkula, Haryana
… Opposite Party (s) BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBERHON’BLE MR.VINAY KUMAR, MEMBER
For the Complainant(s) ….. Mr. B. R. Sachdeva, Advocate For the Opp. Party ….. Mr. Ravindra Bana, Advocate Pronounced on 22 nd January , 2013
O R D E R
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. We have heard learned counsel for the parties on the maintainability of this
case. Learned counsel for the opposite party vehemently argued that this is a case of
open auction. The plot was taken on ‘as is where is basis’. Learned counsel for the
opposite party vehemently argued that under the circumstances, the complainants are
not the consumers as per law laid down in UT Chandigarh Administration and
another vs. Amarjeet Singh and Ors . 2009(4) SCC 660. Learned counsel for the
opposite party invited our attention towards paras 18, 19, 20 and 21 of the said
authority. He contended that under the circumstances, the present complaint is not
maintainable.
2. On the other hand, learned counsel for the complainant invited our attention
towards the orders of this Commission in Haryana Urban Development Authority
(HUDA) and another vs. M/s Suneja and Sons, revision petition No. 2951 decided
on 18.8.2011 and Rajil Khod vs. Haryana Urban Development Authority through
Estate Officer, Hisar , revision petition No. 729 of 2011 decided on
18.11.2011 wherein it was held that in the peculiar facts and circumstances of the case,
the above said authority is not applicable. This Commission also referred two Supreme
Court authorities in H.U.D.A. & Anr . Vs. Satish Hans 2009(7)
SCC 282 and Madan Kumar Singh vs. District Magistrate, Sultanpur IV (2009)
SCPJ 3 (SC) decided on 29.4.2009 and 7.8.2000, respectively. In the said cases, the
Apex court did not set aside the orders of this Commission on the ground that the
complainant being an auction purchaser could not at all qualify as a
consumer. However, the Apex Court remanded the case back to this Commission.
3. In view of this discussion, the complainants have produced enough material for
admission of this case. The case is, therefore, admitted but it is made clear that the
above said question requires investigation and evidence. The same question cannot be
disposed of at this initial stage whether the petitioner is a consumer for the above said
reason or whether this is a commercial transaction or a transaction for self
employment is being kept open. This will be decided at the final stage. The case is,
therefore, admitted and the opposite party is directed to file counter till 6.3.2013.
The case is fixed for filing of the written statement on 6.3.2013.
Copy of this order be sent to both the parties immediately.
.…..…………Sd/-………………
(J. M. MALIK, J)
PRESIDING MEMBER
………………Sd/-……………...
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1387 OF 2011 (From the order dated 17.03.2011 in Appeal No. 286/2010 of the State Consumer
Disputes Redressal Commission, UT Chandigarh)
Prof. Arun K Lall House No.653 Punjab Engineering College Campus Sector 12 Chandigarh – 160 012 … Petitioner/OP
Versus
The Manager Credit Card Section M/s. ICICI Bank Ltd. SCO 180 – 182 Sector 9-C, Chandigarh – 160 017 … Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioner : NEMO
For the Respondent : NEMO
PRONOUNCED ON 22 nd January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the order dated
17.3.2011 passed by the Karnataka State Consumer Disputes Redressal Commission,
Bangalore (in short, ‘the State Commission’) in Appeal No. Appeal No. 286/2010
– Prof. Arun K. Lall Vs. The Manager, Credit Card Section by which appeal for
enhancement of compensation was dismissed and order of District Forum allowing
complaint with compensation was affirmed.
2. Brief facts of the case are that petitioner/complainant and his wife used credit
card of respondent/OP bank from 2001 to 2004 and after depositing final amounts of
Rs.6875/- and Rs.1040/- on 1.10.2004 and 12.10.2004 respectively, closed credit
card. On 19.7.2008, complainant received a phone from Delhi Police who apprised the
complainant that non-bailable warrants have been issued against him and further
directed him to contact Mr. Sunit Soni, Advocate for getting further details. Complainant
contacted Mr. Soni and as per his advice complainant deposited Rs.4422/- with ICICI
Bank shown outstanding against him on the very day i.e. 19.7.2008. In spite of
repeated requests, opposite party did not supply him details of outstanding payment,
though, complainant had already cleared dues while closing credit card and as such,
alleging deficiency, filed complaint before the District Forum. Opposite party contested
complaint and submitted that account of outstanding amount due against the
complainant as per statements Annexure C3 and C4 have already been provided to the
complainant and complainant has deposited only outstanding amount on
19.7.2008. Allegation of information regarding non-bailable warrants was also denied.
District Forum after hearing both the parties allowed complaint and directed
OP/respondent to refund Rs.4422/- along with Rs.10,000/- as compensation and
Rs.5,000/- as litigation charges. Petitioner not satisfied with the compensation awarded
to him filed appeal against the order of the District Forum which was also dismissed by
impugned order.
3. Petitioner did not appear at admission stage but requested by circulating a letter
dated 2.1.2013 to dispose of the petition.
4. Perused record.
5. Learned District Forum while allowing refund of Rs.4422/- awarded compensation
of Rs.10,000/- and further awarded Rs.5,000/- as cost of litigation. Learned State
Commission has rightly observed that object of Consumer Protection Act is not to enrich
the complainant at the cost of the service provider and its object is only to adequately
compensate the consumer. Learned State Commission observed that petitioner’s case
was not a fit case in which punitive damages should be awarded to him and in such
circumstances, appeal was dismissed.
6. We do not find any jurisdictional error or material irregularity in the order of
learned State Commission in upholding compensation awarded by the District Forum
and not enhancing the compensation. Petitioner has drawn our attention towards
compensation awarded by District Forum in other similar case. As per the statement, in
another case Rs. 50,000/- were awarded by the District Forum on 6.8.2008 to the
complainant Premendu Roy whereas only Rs.10,000/- have been awarded to the
petitioner in order dated 14.7.2010. He could not supply details of order passed by State
Commission in Premendu Roy case. In such circumstances, the comparison of his
case with Premendu Roy cannot benefit him, as there is no illegality or material
irregularity or jurisdictional error in not enhancing compensation. Revision Petition is
liable to be dismissed at admission stage.
7. Consequently, the revision petition filed by the petitioner is dismissed at
admission stage with no order as to costs.
..……………Sd/-……………
( V.B. GUPTA, J)
PRESIDING MEMBER
..…………Sd/-…………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2452 OF 2011(From the order dated 28.06.2011 in Appeal No. 1727/2011 of the Karnataka State
Consumer Disputes Redressal Commission, Bangalore)
M.R. Anand Prabha S/o Late Ramachandra Shetty Archana Finnace Neem Street Now R/at Shariff Street Chikmagaluru Karnataka State
… Petitioner/OP
Versus Smt. Sreelakshmi W/o Ravindra Venkateshwara Medicals Chikmagaluru Karnataka State
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioner : Mr. Anand Sanjay M. Nuli, Advocate
For the Respondent: NEMO
PRONOUNCED ON 22 nd January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER This revision petition has been filed by the petitioner against the order dated
28.6.2011 passed by the Karnataka State Consumer Disputes Redressal Commission,
Bangalore (in short, ‘the State Commission’) in Appeal No. Appeal No. 1727/2011 –
M.R. Anand Prabhakar Vs. Smt. Sreelakshmi by which application for condonation of
delay and appeal filed by the petitioner/OP was dismissed.
2. Brief facts of the case are that complainant/respondent filed complaint and
alleged that he kept some amount in four fixed deposits with the petitioner/OP and OP
agreed to pay interest @ 24% p.a. OP did not return money, hence, after giving notice
filed complaint for recovery of Rs.3,09,400/-. OP contested complaint but learned
District Forum vide its order dated 26.7.2010 partly allowed complaint and petitioner
was directed to refund a sum of Rs.1,77,000/- with interest @ 12% p.a. Against this
order petitioner filed appeal with a delay of 283 days and also moved application for
condonation of delay which was dismissed by the impugned order and in consequence
thereof appeal was also dismissed.
3. Heard learned Counsel for the petitioner and perused record.4. Petitioner moved application for condonation of delay of 283 days before the
State Commission on the ground that he had no personal income and he was
dependent on his son who is an Engineer, got job in a multinational company 3 months
back so he could not arrange Rs.25,000/- for filing appeal. In his affidavit he further
submitted that he had also preferred two appeal Nos. 421 & 422 of 2010 before the
State Commission against other orders of District Forum and State Commission
directed him to deposit Rs.25,000/- in each appeal but he could not arrange funds and
his aforesaid appeals were also dismissed by State Commission. Learned State
Commission has rightly observed in its order that reasons assigned by the petitioner for
condonation of delay does not constitute sufficient cause for condonating inordinate
delay of 283 days. Learned State Commission has not committed any error in rejecting
application for condonation of delay and in dismissing appeal.
5. Learned Counsel for the petitioner further submitted that petitioner had already
undergone 3 months imprisonment, as he failed to deposit money with the District
Forum. This cannot be the ground for admitting revision petition, as we do not find any
infirmity in the order passed by learned State Commission in disallowing application for
condonation of inordinate delay of 283 days.
6. Consequently, the revision petition filed by the petitioner is dismissed at
admission stage with no order as to cost.
..……………Sd/-……………
( V.B. GUPTA, J)
PRESIDING MEMBER
..……………Sd/-………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 1032 OF 2012
(Against the order dated 13.10.2011 in First Appeal No. 2294/2006of the State Commission Haryana, Panchkula)
Jiwan Spinners Pvt. Ltd. Delhi Sanoli By Pass Opposite Sector – 25 Panipat, HaryanaThrough The Director Shri Ashok Singla
........ Petitioner
Vs.
New India Insurance Co. Ltd. Regd. Office At SCO No.36-37, Sector-17A, Chandigarh
......... Respondent
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner : Shri Vinod Kumar, Advocate
For the Respondent : Shri Abhishek Kumar, Advocate
Dated : 22 nd January, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
This revision petition is directed against the order of State Consumer Disputes
Redressal Commission Haryana, Panchkula ( for short, ‘the State Commission’) dated
13.10.2011.
2. Briefly stated facts relevant for disposal of this revision petition are that the
petitioner – company got insured stock of raw material, finished goods as also building
and machinery with the respondent-opposite party vide two insurance policies which
were valid for the period 24.02.2004 to 23.022005. Due to fire accident on 04.03.2004,
the stock in process, material stocked in the factory and the card machine got
damaged. The matter was reported to the P.S.Chandni Bagh Panipat on
05.03.2004. The opposite party appointed a surveyor who submitted his report to the
insurance company estimating the loss due to fire as Rs.7,73,059.39P. It is alleged that
the insurance company, however, paid a sum of Rs.2,15,176/- to the petitioner through
a cheque no.105857 dated 07.09.2004 and the payment of balance amount of loss was
illegally denied to the petitioner. Thus there was deficiency in service on the part of the
opposite party.
3. The opposite party in his written statement denied the allegations of the petitioner
and submitted that the petitioner had voluntarily accepted Rs.2,15,176/- as full and final
settlement of his claim. The opposite party also denied that petitioner – company was
forced to sign unfilled form of settlement by the insurance company and that there was
any deficiency in service on the part of the respondent.
4. The District Forum vide its order dated 25.08.2006 came to the conclusion that
the petitioner was coerced to accept the amount of Rs.2,15,176/- and sign unfilled form
and blank papers. Accordingly, the District Forum allowed the claim of the petitioner
and directed the respondent – opposite party to pay a sum of Rs.4,60,380/- to the
petitioner on account of loss of stock and machinery as per Surveyor Report together
with interest @ 18% from 31.08.2004 till the realisation of the amount.
5. Aggrieved by the order of the District Forum, respondent / opposite party
preferred an appeal before the State Commission and the State Commission came to
the conclusion that the petitioner had accepted a sum of Rs.2,15,176/- in full and final
settlement of his claim under the insurance policies and signed the discharge voucher
voluntarily. Thus, the State Commission accepted the appeal and reversed the order of
the District Forum.
6. The petitioner being aggrieved of the order of the State Commission has
preferred this revision petition.
7. It is contended on behalf of the petitioner that the State Commission has passed
impugned order in complete disregard of the settled law and failed to consider the ratio
of judgment of the Supreme Court in United India Insurance Vs. Ajmer Singh Cotton
& General Mills & Ors. 1999 (II) CPJ 10 SC. It is contended that State Commission in
the aforesaid judgment has held that the consumer forum can impose liability upon the
insurance company notwithstanding execution of Discharge Voucher by the insured
provided the Discharge Voucher has been obtained by the insurance company by
resorting to fraud, pressure, undue influence or coercion. Learned counsel further
submitted that the State Commission has failed to appreciate that as per the report of
the respondent’s own Surveyor, the loss was quantified at Rs.7,73,059.39P and if that is
so, the petitioner could not have accepted Rs.2,15,176/- in full and final settlement of
discharge of his claim unless there was undue influence and coercion exerted upon the
petitioner.
8. Learned counsel for the respondent on the contrary has contended that there is
no evidence on record to suggest that the signatures of the petitioner were obtained on
the Discharge Voucher by practicing fraud, undue influence or coercion. Therefore, as
per the law laid down in the judgment relied upon by the petitioner, after having settled
the matter and taken cheque of Rs.2,15,176/-, the petitioner now cannot re-agitate the
matter and claim further amount under the insurance claim.
9. The only question which requires consideration in this revision petition is whether
or not the Discharge Voucher mentioning payment of Rs.2,15,176/- in full and final
settlement of the claim of the petitioner was obtained by the respondent by practicing
fraud, misrepresentation or coercion?
10. We have considered the rival contentions and perused the record. The case of
the petitioner as set up in para 6 of the complaint, copy of which is placed on record is
that the officials of the respondent-company forced the complainant to sign blank
unfilled form as a pre condition to give the cheque to him and they threatened that if the
petitioner failed to sign the blank forms, no cheque would be issued to him against his
claim. This allegation of the petitioner is belied by the averments in the registered
notice dated 04.12.2004 sent to the opposite party by the petitioner wherein it is alleged
that the respondent-company took almost seven months in deciding the claim of the
petitioner and during that period, harassed and mentally tortured him. It is also alleged
in the notice that the amount of Rs.2,15,176/- was accepted by the petitioner under
protest and pressure reserving the right to recover the balance amount from the
respondent – company. It is nowhere mentioned in the notice that the petitioner was
threatened by the officials of the respondent – company that if he failed to sign the blank
forms, no cheque would be delivered to him and he would not be paid anything against
the claim. This material contradiction in the stand taken by the petitioner in notice dated
04.12.2004 and his complaint lead us to the obvious conclusion that the stand of the
petitioner in his complaint is an after thought with a view to exhort further money after
having received a cheque from the respondent in full and final settlement of his
claim. We may note that on perusal of copy of the discharge voucher we found that
petitioner has accepted the cheque in full and final settlement of his claim without any
protest.
11. On perusal of the impugned order, we find that the State Commission on
consideration of the Discharge Voucher dated 31.08.2004 signed by the petitioner and
acceptance of the cheque of Rs.2,15,176/- in full and final settlement of claim, allowed
the appeal and dismissed the claim of the petitioner with following observations:
“DISCHARGE VOUCHER
Received from the New India India Assurance Company Limited, the sum of Rs.2,15,176 ( Two Lakh fifteen thousand one hundred and seventy six only which I / We agree to accept in full satisfaction and discharge or all claims present or future under policy no.353900/11/03/00048 / 353200/11/03/02711 in respect of which occurred on or about the _____ day of ______ year _________.
Sd/-For Jiwan Spinners Pvt. Ltd.
Director / Manager
Having considered the facts and circumstances of the case and the ‘Discharge Voucher’ dated 31.08.2004. We find force in the contention r raised on behalf of the appellant – opposite party. It is well settled law that once the claim has been accepted by the claimant without any objection by signing discharge voucher in full and final settlement of claim offered by the Insurance Company, thereafter, the claimant cannot be allowed to reopen his claim seeking any further relief. However, mere execution of consent letter in the form of letter of indemnity cannot deprive the claimant of consequential relief if discharge voucher was obtained by fraud, misrepresentation or under coercion. There is no evidence on behalf of the complainant that any fraud or misrepresentation or coercive method was adopted by the Insurance Company upon the complainant at the time of signing the discharge voucher dated 31.08.2004 and as such the complainant is not entitled for any further compensation.
Admittedly, the complainant, is running a business of raw material, finished goods, semi finished goods which are used in the mill and must have signed the discharge voucher dated 31.08.2004 with full knowledge after going through the contents mentioned therein and therefore question of any pressure tactics by the opposite party upon the complainant does not arise. The District Consumer Forum has not appreciated the facts of the present case in its true perspective and committed error in allowing the complaint.
As a sequel of our aforesaid discussions, this appeal is accepted, the impugned order is set aside and the complaint is dismissed”.
12. In view of the above, we do not find any legal or factual infirmity in the impugned
order of the State Commission which may call for interference by this Commission in
exercise of revisional jurisdiction. Accordingly, revision is dismissed with no order as to
costs.
………………………….
(AJIT BHARIHOKE) ( PRESIDING MEMBER)
………………………… (SURESH CHANDRA) MEMBER
Am/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 3353 OF 2011
(Against the order dated 28.04.2011 in Appeal No. 918/2009of the State Commission Madhya Pradesh, Bhopal)
M/s Mahindra & Mahindra Financial Services Ltd. 2nd Floor, Sadhna House 507, P.B.Marg, Worli Mumbai – 400018 Through its Authorized signatory Samarjeet Khokhar Legal Executive Branch Office Aggarwal Corporate Tower3rd & 4th Floor, plot No.23 Rajindra Place, New Delhi – 110008
....... Petitioner
Vs.
Naresh Singh 204, Princess Price Building Janjeer Wala Chauraha Indora, M.P.
......... Respondent
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner : Mr.Amit Singh and Mr.Rajan Singh, Advocates
Dated : 23 rd January, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
The petitioner being aggrieved by the order of M.P.State Consumer
Disputes Redressal Commission ( in short, ‘the State Commission’) has preferred this
revision petition. Alongwithrevision petition, the application for condonation of delay of
71 days in filing of revision petition has been filed.
2. Briefly stated facts of the case are that the petitioner (opposite party) provided a
loan of Rs.3,50,000/- to the complainant – respondent for purchase of a Mahindra
Tourist vehicle on hire purchase basis. The loan amount was to be paid in 34
instalments. It was agreed that the first instalment would be of Rs.24,500/- and
remaining instalments would be of Rs.12,250/- each.
3. According to the respondent-complainant, he had paid all the instalments
against loan during the period w.e.f.01.06.2004 to 02.09.2005. Despite of that the
petitioner repossessed the vehicle on 23.10.2005 without giving notice, on the ground
that a sum of Rs.4,29,000/- was outstanding against the loan and sold the vehicle
without any notice to the respondent for a sum of Rs.2,50,000/-. On the aforesaid
averments, the respondent filed complaint claiming a sum of Rs.82000/- as
compensation and also for other charges.
4. The petitioner admitted that they had financed Rs.3,50,000/- for purchase of
vehicle by the opposite party. The petitioner, however, denied that the respondent had
paid the instalments regularly. It was claimed by the petitioner that on 23.10.2005, a
sum of Rs.85,650/- was outstanding against the respondent and, therefore, the vehicle
was possessed in a lawful manner and sold. The petitioner denied deficiency of service
on his part.
5. The District Forum after considering the evidence came to the conclusion that
the possession of the vehicle was taken by the petitioner without informing the
respondent about any amount outstanding against him and, thereafter, the vehicle was
unlawfully sold without notice. Thus, the District Forum awarded a sum of Rs.42,000/-
as compensation to the respondent besides Rs.15000/- as the amount spent on
obtaining permit and registration and Rs.1000/- as cost.
6. Being aggrieved by the order of the District Consumer Forum, the petitioner
preferred an appeal which was dismissed by the State Commission.
7. It is against the aforesaid dismissal of his appeal, the petitioner has preferred
the revision petition. He has also filed the application for condonation of delay of 71
days in filing the revision petition.
8. Learned counsel for the petitioner has contended that the delay caused in filing
of revision petition is unintentional. Actually the documents received from the office
were not legible. Therefore, the counsel for the petitioner asked for the original copies of
those documents from Bombay Head Office of the petitioner – company. It took some
time in tracing the original documents and, thereafter, the documents were received
back in the local office of petitioner in third week of September which were then
transmitted to the Advocate for drafting the preparation of revision petition. It is further
contended that some of the documents were in Hindi, therefore, sometime was taken in
getting those documents translated in English. Thus it is contended that delay caused in
filing of revision petition is not deliberate and it has occurred because of the aforesaid
reason. Learned counsel for the petitioner thus urged us to condone the delay in filing
of revision petition.
9. We are not convinced with the submissions made on behalf of the petitioner,
firstly, for the reason that the explanation given in the application for condonation of
delay in filing of revision petition is vague. The application does not disclose the name
of the counsel for the petitioner who insisted for original copies of the documents. It
also does not disclose various dates of the movement of papers and the date on which
the counsel for the petitioner asked for original copies. It also does not disclose the
date on which the original documents were traced and also the date on which the
documents were sent to the Advocate for drafting the preparation of revision
petition. Further, we may note that the application for condonation of delay is not even
supported by affidavit of either some responsible officer of the petitioner – company or
the concerned Advocate. Law relating to the condonation of delay in filing of suit or
petition after the expiry of period of limitation is well settled. The condonation of delay
cannot be as a matter of routine and the petitioner in such cases is required to explain
the delay for each and every date after the expiry of period of limitation. In the matter
of Anshul Aggarwal Vs. New Okhla Industrial Development Authority IV (2011)
CPJ 63 (SC), the Hon’ble Supreme Court has held that while deciding an application
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 for filing appeals and
revisions in consumer matters and the object of expeditious adjudication of the
consumer disputes will get defeated if this Court was to entertain highly belated
petitions filed against the orders of the consumer Foras. In the instant case, as
discussed above, the petitioner has failed to disclose sufficient cause for delay caused
in filing of revision petition. Therefore, we are not inclined to condone the delay on this
count alone and revision petition fails.
10. Even on merits, we find that both the District Consumer Forum as well as the
State Commission have given concurrent finding of fact that the vehicle in question was
repossessed by the petitioner without serving notice of outstanding amount on the
respondent and it was also sold without giving any notice to the respondent. The
counsel for the petitioner has failed to show any material irregularity or illegality in the
impugned order which may call for interference by this Commission
in revisional jurisdiction. Therefore, also the revision petition fails.
11. In view of the above discussion, application for condonation of delay in filing
revision petition is dismissed. Accordingly, revision petition being time barred is also
dismissed. No order as to costs.
…………………………. (AJIT BHARIHOKE)
( PRESIDING MEMBER)
………………………… (SURESH CHANDRA) MEMBER
Am/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2871 OF 2011 (From the order dated 14.6.2011 in Appeal No.2173/08 of the Rajasthan State
Consumer Disputes Redressal Commission, Jaipur)
1. Rajasthan Khadi and Gramudhyoug Board, Through Pyare Lal Bairwa AAO, Jawahar Lal Nehru Marg, Jaipur, Rajasthan
2. Deputy Director (Khadi) Through Pyare Lal Bairwa AAO, District Industries Centre, Bharatpur, Rajasthan …Petitioners/OP 3 & 4
Versus 1. Manvendra Dev S/o Keshav Dev, R/o Village Jaghina Teh. & Distt. Bharatpur, Rajasthan …Complainants/ Respondent-1
2. The Bharatpur Central Co-operative Bank Ltd. Head/Main Office, through its Managing Director Bharatpur, Rajasthan
…OP-1/ Respondent-2
3. Branch Manager The Bhartpur Central Co-operative Bank Ltd. Kumher, District Bharatapur, Rajasthan
…OP-2/ Respondent-3
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioner : Mr. S.K. Sinha, Advocate
For the Respondent no.1: NEMO
For the Res. Nos.2 & 3 : Mr. Amit Agrawal, Advocate
PRONOUNCED ON 23 rd January , 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 14.06.2011 passed by the Rajasthan State Consumer
Disputes Redressal Commission, Jaipur (in short, ‘the State Commission’) in Appeal
No. 2173 of 2008 – Manvendra Dev & Ors. Vs.
Rajasthan Khadi and Gramudhhyoug Board & Anr. by which while accepting appeal set
aside the order of learned District Forum and allowed complaint against OP Nos. 3 & 4.
2. Brief facts of the case are that
complainant/Respondent No.1 submitted application for loan with petitioner/OP NO. 4
under KVIC project for Bees Farming Industries and petitioner/OP-4 recommended
sanction of loan for Rs.2,63,200/- to the OP Nos. 1 & 2/Respondents No. 2 & 3 and also
approved that on payment of the first instalment of the loan, 30% of the total loan by
way of margin money will be deposited in term deposit. Opposite party sanctioned loan
of Rs.2,00,000/- and it was incumbent upon the opposite party No. 2-Bank to inform OP
No. 4/petitioner and demand 30% of the margin money which they failed and in such
circumstances, claiming deficiency on the part of opposite parties filed complaint with a
prayer/direction to Opposite party to deposit Rs.78,960/- along with interest. Opposite
party resisted claim and filed their reply. Learned District Forum after hearing both the
parties dismissed complaint against which this revision petition has been filed.
3. Heard Learned Counsel for the petitioner and respondents no. 3 & 4. None
appeared for the complainant/respondent no. 1.
4. Learned Counsel for the petitioner submitted that as no information was given by
the bank authorities to the petitioner, margin money could not have been released and
learned State Commission has committed error in allowing complaint against them,
hence, petition be accepted and impugned order be set aside. On the other hand,
learned Counsel for the respondent submitted that order passed by the learned State
Commission is in accordance with law, hence, petition be dismissed.
5. Perusal of complaint reveals that complainant has mentioned in para 3 of the
complaint that by letter dated 15.3.2004 the bank informed OP. OP Nos. 3 & 4 also
admitted this fact in para 3 of its written statement but further alleged that claim for grant
was not submitted in prescribed form along with other documents, hence, amount was
not paid. Perusal of record reveals that by letter dated 25.6.2003, Annexure R-2/1
petitioner/OP requested Respondent/OP Bank to sanction loan and intimate so that OP
may proceed for payment of margin money. In this letter this fact has not been
mentioned that intimation was to be sent in any prescribed form. Once, bank authorities
informed to the petitioner about disbursement of loan, it was obligatory on the part of
OP to process margin money and pay and if any intimation was required in
prescribed prorforma, OP/petitioner should have informed to the bank authorities which
has not been done.
6. As Opposite party/Respondent Nos. 2 & 3 intimated to the petitioners in time
about disbursement of loan, it was obligatory on the part of the petitioner to disburse
margin money in the account of complainant and learned State Commission has not
committed any error in passing impugned order. As there is neither any illegality nor
irregularity in the impugned order which calls for interference, revision petition is liable
to be dismissed.
7. Consequently, revision petition filed by the petitioner is dismissed with no order
as to costs. ..……………Sd/-……………
( V.B. GUPTA, J)
PRESIDING MEMBER
..……………Sd/-………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3691 OF 2010 (From the order dated 18.08.2010 in Appeal No.A/10/486 of the Maharashtra State
Consumer Disputes Redressal Commission, Mumbai)
Mr. Sayyed J.A. Wadood, Flat No.401, A-Wing, Poonam Enclave, Near Golden Nest, Opposite Himalaya Complex, Mira-Bhayandar Road, Mira Road (E), District – Thane – 400107
… Petitioner/OP
Versus The Manager, United India Insurance Company Ltd. 226, Canada Building, Dr. D.N. Road, Fort, Mumbai – 400001
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioner : Mr. R.R. Shinde, Advocate
For the Respondent: Mr. Ravi Bakshi, Advocate
PRONOUNCED ON 23 rd January , 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the order dated
18.8.2010 passed by the Maharashtra State Consumer
Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in Appeal
No. Appeal No.A/10/486 – United India Insurance Co. Vs. Sayeed J.A. Wadood by
which while allowing appeal order of District Forum allowing complaint was set aside
and complaint was dismissed.
2. Brief facts of the case are that petitioner/complainant purchased Bolero GLX 200
vehicle in 2001 and got it registered with RTO and got Regd. No. MH-04-BD-
3763. Petitioner got the vehicle insured as comprehensive from OP/respondent for
Rs.3,84,000/- for the period from 30.10.2003 to 29.10.2004. When this vehicle was in
custody of his friend ShriPrakashchandra Sanghavi residing in Goregaon, Mumbai the
vehicle was stolen on 22.4.2004. His friend lodged complaint of theft on 27.4.2004 and
also informed to Tata Finance Ltd. and RTO. OP was also informed about theft. Claim
was lodged with the opposite party. As no decision was taken after serving notice,
petitioner filed complaint for recovery of claim. Opposite party filed written statement
and denied the allegations made by the complainant and further submitted that claim
was repudiated on 21.3.2005 on account of complaint being time barred. It was further
submitted that vehicle was used by the complainant for hire and reward against the
terms and conditions of insurance policy which is evident from complainant’s income tax
return and prayed for dismissal of the complaint. Learned District Forum after hearing
both the parties allowed complaint and directed respondent/OP to pay Rs.3,84,000/-
with 9% p.a. interest. Respondent filed appeal before the
State Commission and learned State Commission vide impugned order allowed appeal
and set aside order of District Forum and dismissed complaint against which order this
revision petition has been filed.
3. Heard Learned Counsel for the parties at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that report of theft was promptly
lodged with the police station and respondent was also intimated immediately and
complaint was filed within limitation even then learned State Commission has committed
error in accepting appeal and dismissing complaint and in such circumstances petition
may be accepted and order of learned State Commission be set aside. On the other
hand, learned Counsel for the respondent submitted that order passed by learned State
Commission is in accordance with law which does not call for any interference, hence,
petition may be dismissed.
5. It is admitted case of the complainant that vehicle was stolen on 22.4.2004 and
report of theft was lodged on 27.4.2004. In the complaint further it has been mentioned
that intimation of theft was given to Tata Finance Ltd. vide letter dated 29.4.2005 and to
RTO, Thane vide letter dated 6.5.2004. Only this fact has been mentioned in paragraph
6 of the complaint that complainant also informed to the OP in respect of theft but no
date has been mentioned. It appears that OP was not informed at least before 6.5.2004
meaning thereby there was no intimation to the OP at least upto 15 days from the date
of commission of theft. In such circumstances, OP/respondent has not committed any
error in repudiating claim of the Insurance Company vide letter dated 21.3.2005.
6. Admittedly, theft was committed on 22.4.2004 and claim was repudiated by OP
on 21.3.2005 but complaint was filed on 19.7.2007 which is about after 2 year and 4
months. Complaint should have been filed within a period of 2 years from the theft or
from the repudiation of claim as complaint has been filed without any application under
Section 24-A of Consumer Protection Act, learned State Commission has not committed
any error in allowing appeal and dismissing complaint as complaint being time
barred. Learned District Forum committed error in allowing time barred complaint.
7. Learned Counsel for the petitioner could not place any citation in support of his
complaint to show that complaint was filed within limitation and complainant has not
committed breach of any condition of policy. In such circumstances, order passed by
learned State Commission does not call for any interference and revision petition is
liable to be dismissed.
8. Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to cost. ..……………Sd/-……………
( V.B. GUPTA, J)
PRESIDING MEMBER
..…………Sd/-…………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 751 OF 2011(From the order dated 24.11.2010 in Appeal No.1514/05 of the Haryana State
Consumer Disputes Redressal Commission, Panchkula)
Mrs. Lajwanti W/o Shri Fateh Singh R/o H. No. 2779, Urban Estate, Jind (Haryana) Also at: R/o H. No.4577, Sector – 11 Extn., Urban Estate, Jind – 126102 Haryana. … Petitioner/OP
Versus 1.Chief Administrator Haryana Urban Development Authority HUDA Complex, Sector 6, Panchkula (Haryana)
2.Administrator HUDA, Hissar, (Haryana)
3.Estate Officer HUDA, Jind District Jind (Haryana)
4.D.C.T.P.O. Jind Kothi No.1242, Urban Estate, Jind (Haryana)
5.S.D.O. HUDA (Electricity Water, Roads, Sewear and Disposal Drainage Services) HUDA, Jind (Haryana)
6.Executive Engineer HUDA, HUDA Office Hissar, (Haryana)
… Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioner : Mr. Madhurendra Kumar, Advocate
For the Res.Nos.1 to 3, 5&6: Mr. R.S. Badhran, Advocate
PRONOUNCED ON 23 rd January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 24.11.2010 passed by the Haryana State Consumer Disputes Redressal
Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 1514 of 2005 –
HUDA Vs. Mrs. Lajwanti by which appeal of the respondent/opposite party was
partly accepted and order of District Forum was modified.
2. Brief facts of the case are that complainant/petitioner was allotted Plot No.4577,
Sector II, Extension Urban Estate, Jind by respondent/OP vide allotment letter dated
11.10.2000. Possession of flat was offered vide letter dated 20.3.2001 and possession
certificate was received by the complainant on 30.3.2001. Complainant raised
construction upto DPC level for which certificate was issued on 28.6.2002. As electric
wire was passing 3 ft. over the rear portion of the plot, the complainant could not
continue construction work. Electric line was removed on 5.9.2002, hence, alleging
deficiency in service filed complaint. Opposite Party resisted the claim and submitted
that electric line was removed within 67 days from the date of submitting certificate and
thus there was no deficiency in service and prayed for dismissal of complaint. Learned
District Forum after hearing both the parties allowed complaint and directed OP to pay a
sum of Rs.1,50,000/- and further to refund amount of interest recovered from the
complainant and further extended period of construction which was wasted in removing
electric line. Respondent filed appeal and learned State Commission vide impugned
order partly accepted the appeal and modified order of compensation and reduced it to
Rs.10,000/- against which this revision petition has been filed.
3. Heard learned Counsel for the parties at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that as construction was
delayed due to non-removal of electric wire, learned District Forum rightly allowed
compensation of Rs.1,50,000/- and learned State Commission has committed error in
reducing it to Rs.10,000/-, hence, petition may be accepted and order of State
Commission be set aside. On the other hand, learned Counsel for the respondent
submitted that order passed by the State Commission is in accordance with law as
electric wires were removed within a very small span, hence, petition may be dismissed.
5. It is admitted fact that possession certificate was received by petitioner on
30.3.2001 and complainant raised construction upto DPC level without permission.
Certificate for construction was issued on 28.6.2002 and in such circumstances,
petitioner could have started construction only after that date. It is also clear that
electric wire was removed by respondent within 67 days from the date of issuing DPC
level certificate. In such circumstances, there was no occasion for the District Forum to
grant huge compensation of Rs.1,50,000/-. Petitioner has not mentioned in her
complaint that how much amount she intended to spend on the construction activities
and within a period of two months how much cost escalated. Learned State
Commission has rightly observed in its impugned order as under:
“We find force in the contention raised on behalf of the
appellants-opposite parties. Admittedly, the complainant had
submitted the DPC certificate on 28.6.2002 and the electric wire
was removed by the opposite parties on 5.9.2002. Thus, within a
period of about two months and seven days a huge increase of
Rs.2,50,000/- in the cost of construction material is not
believable. The report dated 2.7.2003 obtained by the
complainant first the valuer in the cost of construction is not in
accordance with law because the valuer has not disclosed the
period for which the alleged escalation in the cost of construction
was assessed by him to the tune of Rs.2,50,000/-. Therefore, the
report of the valuer is of no consequence. It is a matter of
common knowledge that within a period of two months and
seven days, so much escalation in the construction material
cannot go high. We have no data before us with respect to the
rising in the cost of construction material is not believable. The
valuer has not disclosed the rates of bricks, cement, sand and
Bajri etc. Thereafter, awarding of compensation to the
complainant to the tune of Rs.1,50,000/- is not justified.
As a sequel to our aforesaid discussion, we feel that the opposite
parties was under an obligation to offer the possession of the plot
to the complainant after removing the electric wire from the back
portion of her plot so that she could raise construction on the plot
of her free will at any time after completing the construction upto
DPC level. Due to the inaction on the part of HUDA in not
removing the electric wires/pole from the back portion of the plot,
it has definitely caused a hindrance for a period of two months in
completing the construction by two months. We therefore feel
that instead of awarding an amount of Rs.1,50,000/-, if the
complainant is at the most awarded compensation of Rs.10,000/-
for deficiency of service, it would meet to the ends of justice and
we order accordingly”.
5. We do not find any infirmity in the impugned order in modifying amount of
compensation to the petitioner and there is no justification for enhancement of
compensation and in such circumstances, revision petition is liable to be
dismissed. Learned Counsel for the petitioner submitted that period for construction
may be extended but perusal of District Forum order reveals that extension of period
had already been extended for the aforesaid 67 days.
6. Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to cost.
..……………Sd/-……………
( V.B. GUPTA, J)
PRESIDING MEMBER
..…………Sd/-…………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 397 OF 2010(From the order dated 28.10.2009 in Appeal No.FA-09/644 of the State Consumer
Disputes Redressal Commission, Delhi)
Delhi SC/ST/OBC/Minorities/ Handicapped/Financial and Development Corpn. Ltd., Ambedkar Bhawan, Institutional Area, Sector 16, Rohini Delhi
… Petitioner/OP
Versus
Kamal Kishore S/o Itwari Lal R/o D-476, Jahangir Puri, Delhi – 110033.
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioner : Mr. Vivek Kumar Tandon along with
Mr. Manish C., Advocates
For the Respondent : Mr. Madhurendra Kumar, Advocate
PRONOUNCED ON 24 th January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 28.10.2009 passed by the State Consumer Disputes Redressal Commission,
Delhi (in short, ‘the State Commission’) in Appeal No. FA-09/644 – Delhi
SC/ST/OBC/Minorities/Handicapped Financial and Development Corporation Ltd. Vs.
Kamal Kishore by which application for condonation of delay was rejected and
consequently, appeal was dismissed.
2. Brief facts of the case are that complainant/OP filed complaint before District
Forum and ex-parte order allowing complaint was passed by learned District Forum on
21.5.2007 against which petitioner filed appeal before learned State Commission along
with application for condonation of delay. Learned State Commission by impugned
order dismissed application for condonation of delay as there was delay of 750 days in
filing appeal and consequently, appeal was dismissed.
3. Heard learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioner submitted that learned State Commission has
committed error in rejecting application for condonation of delay and dismissing appeal
as delay was beyond control of the petitioner, hence, petition be accepted and order of
State Commission be set aside and matter be remanded to learned State Commission
for disposal of appeal on merits. On the other hand, learned Counsel for the
respondent submitted that order passed by State Commission is in accordance with
law, hence, petition be dismissed.
5. Petitioner filed application for condonation of delay before the State Commission
in which period of delay to be condoned has not been mentioned purposely. The
explanation given for condoantion of delay in paragraph 2 of the application is as
follows:
“2. That due to inadvertence and wrong noting of the date the
file was not assigned to the counsel within time therefore Ex-
parte order was passed. That therefore upon coming to
know about the present order immediately file was sent for
approval of the competent authority for permission and
disbursement of the requisite expenses of the counsel and
the counsel kept file with his office but did not filed an appeal
despite the fact that the appellant corporation was pursuing
the case with their counsel and later on the said counsel
returned the said file stating the fact that he will not be in
position to contest the present case and then the file was
handed over to the present counsel who immediately
prepared the appeal and filed before this Hon’ble
Commission for consideration”.
6. In paragraph 3 it was further alleged that delay caused was purely due to
administrative functioning and delay is neither intentional nor deliberate but due to
above stated bonafide reason. In this application nothing has been mentioned when file
was sent for approval of competent authority for filing appeal, when filed was returned
by the counsel and when another counsel was engaged to prepare appeal who filed it
immediately before the State Commission. In written arguments submitted by leaned
Counsel for the petitioner in paragraph 20,it was submitted that -
“That the petitioner took back the file of the case and handed over to another counsel on 4.12.2008, but as the ill luck would have been prevailing over the petitioner, the other counsel also slept over the file for 6 months”.
This fact has nowhere been mentioned in application for condonation of delay
filed before learned State Commission and fresh efforts have been made for
covering 6 months delay which cannot be believed at this stage. Learned State
Commission has rightly dismissed application for condonation of inordinate delay
of 750 days and this order does not call for any interference.
7. Learned Counsel for the petitioner has placed reliance on (1981) 2 SCC 788 –
Rafiq and Anr. Vs. Munshilal and Anr. in which High Court’s order dismissing appeal
was set aside by Hon’ble Supreme Court as High Court rejected the appeal on the
ground that appeal was prepared and drafted and affidavit was sworn on 29 th October,
1980 whereas appeal was filed on 12.11.1980. Thus, it becomes clear that as there
was no satisfactorily explanation of 13 days, High Court rejected application for
condoantion of delay which was set aside by the Supreme Court. This citation does not
help to the petitioner as there is inordinate delay of 750 days and no satisfactory
explanation has been given by the petitioner. He has also placed reliance on 2009 (6)
SCALE 677 – State of Karnataka Vs. Y. Moideen Kunhi (dead) by Lrs. and Ors. in which
inordinate delay of about 300 days against the review petition and nearly 6,500 days
against the original order was condoned by Hon’ble Apex Court because Government
made out a case of public interest and has further shown to have suffered due to acts of
fraud or bad faith on the part of its officers or agents in surrendering land and this delay
was condoned subject to payment of exemplary cost of Rs.10,00,000/-. In the case in
hand, there is no allegation of petitioner against its officers. Allegations are only
against the advocates but name of the advocate and any action taken against any
advocate has not been reflected in the application and in such circumstances, this
citation does not help to the petitioner. He has also placed reliance on (1973) 3 SCC
800 – The Punjabi University, etc. Vs. Acharya Swami Ganesh and Anr. in which Apex
Court set aside the order of High Court as High Court did not condone delay of 2 days in
filing appeal. This citation does not help to the petitioner as there is delay of 750 days.
8. Petitioner also did not appear before learned District Forum which shows that
petitioner was reluctant in contesting the matter and so appeal was also filed after 750
days.
9. We do not find any jurisdictional error, material irregularity and infirmity in the
impugned order and revision petition is liable to be dismissed.
10. Consequently, revision petition filed by the petitioner is dismissed with no order
as to costs.
..………………Sd/-…………
( V.B. GUPTA, J)
PRESIDING MEMBER
..……………Sd/-………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3848 OF 2007 (From the order dated 14.08.2007 in Appeal No.2177/06 of the Karnataka State
Consumer Disputes Redressal Commission, Bangalore)
1. Life Insurance Corpn. Of India Divisional Manager, No. 37, Jeevan Prakash, Mysore-Bangalore Road, Bannimantap, Mysore
2. Branch Office, LIC of India M.C., Road, Bandi Gowda Layout Mandya Through: Assistant Secretary Northern Zonal Office, LIC Jeevan Bharti, Connaught Circus, New Delhi … Petitioners/OPs
Versus 1. Smt. Kempamma W/o Late Hemagirigowda
2. Hemagirigowda @ Thammaiah Both R/o Yadavanahally Village, Bekkalale Post Koppahobli, Maddur Taluk Mandya, Karnataka
… Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioners : Mr. Ashok Kashyap, Advocate
For the Respondents: Mr. Jojo Jose, Advocate
PRONOUNCED ON 24 th January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the order dated
14.8.2007 passed by the Karnataka State Consumer Disputes Redressal Commission,
Bangalore (in short, ‘the State Commission’) in Appeal No. 2177 of
2006 – Kempamma & Anr. Vs. LIC of India & Anr. by which, while allowing appeal,
reversed order of District Forum and allowed complaint and directed petitioner/OP to
pay Rs.1,00,000/- along with 6% p.a. interest.
2. Brief facts of the case are that Complainant No. 1 husband and Complainant No.
2 father, Hemagirigowda obtained policy of Rs.1,00,000/- on 13.3.2001 from
petitioner/respondent which lapsed due to non-payment of premium. On the application
of the assured, policy was revived on 19.9.2003 but unfortunately assured died on
7.5.2005 due to heart attack. Complainants submitted claim for policy amount which
was repudiated by petitioner, hence, complainants filed complaint. Petitioner/OP filed
written statement and admitted issuance and renewal of policy but submitted that policy
was issued under medical scheme and on the declaration made in the proposal form
and also before the medical examiner. At the time of renewal the deceased submitted
his personal statement regarding health and medical report. Medical examiner also
medically examined assured but assured falsely answered questions in the personal
statement regarding his health and there was no discloser of material facts, so claim
was repudiated. Assured died due to heart attack which had direct nexus with disease
suffered by assured and prayed for dismissal of complaint. Learned District Forum after
hearing both the parties dismissed complaint but on appeal learned State Commission
vide impugned order set aside order of District Forum and allowed complaint against
which this revision petition has been filed.
3. Heard learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioner submitted that at the time of revival the
assured suppressed fact of undertaking treatment and also falsely answered the
questions in personal statement regarding his health and learned District Forum rightly
dismissed the complaint but learned State Commission has committed error in allowing
complaint, hence, petition be accepted and order of State Commission 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 as there was neither
suppression of material facts nor nexus of death to treatment undertaken by assured,
hence, petition be dismissed.
5. It is admitted case that assured policy lapsed which was revived on 19.9.2003
and at that time he submitted information regarding his health and treatment. Learned
District Forum in its order dated 21.8.2006 observed that assured suppressed material
fact about health at the time of revival of policy. Learned District Forum observed as
under:“15. Coming to the facts of this case at the time of revival of the policy
i.e. on 19.9.2003 the life assured has given answers in his personal
statement regarding his health as below:
Q.No.2 a) Have you suffered from any illness/
Disease requiring treatment for a week
or more? : No b) Did you ever have any operation,
accident or injury? : No. c) Did you ever undergo ECG, X-ray
Screening, blood, Urine or stool
Examination? : NoQ.No. 4 Are you at present in sound health : Good
16. This health statement was given on 19.9.2003. The evidence of
RW-2 and the documents Ex.D-6 and D-7 reveal that on 29.7.2003
the insured visited VinayakaHospital in Hanumant Anagara,
Bangalore with a complaint of breathlessness on exertion and
cough and sputum production since one month. On examination on
the lungs, he found murmur sound, he is suspected bronchitis
(lower respiratory tract infection) and he prescribed medicines and
also X-ray as per Ex.D-6. As pere Ex.D-7 on 30.7.2003 the life
assured had undergone chest X-ray and the diagnosis was
right hilar and right basal pneumatics (? Koch’s). According to the
evidence of RW-2 as per the X-ray there was infection in the right
lung at lower part in central portion and Koch’s means tuberculosis.
He was also advised to take the test of sputum continuously for
three days. Of course, he has taken treatment as an
outpatient. Though in the cross-examination, RW-2 has deposes
that tuberculosis is a curable disease depending upon the infection
and there was no heart problem to the life assured it is evident that
at the time of renewal of the policy the deceased assured was
aware that he had taken treatment for tuberculosis and under gone
X-ray in spite of it he answered the questions narrated above in the
negative though the treatment for tuberculosis and undergoing X-
ray were within the knowledge of the deceased assured. Though it
is contended that the deceased died due to heart attack and there
is no nexus between tuberculosis and heart attack that the National
Commission and our State Commission has held that there need
not be any nexus between the decease at the time of obtaining the
policy or revival to that of cause of death. It is established law that
contract of insurance is of utmost good faith and the proposal
statement regarding health shall be basis of contract at the time of
revival and if it contains any untrue averments, the contract will be
null and void. So the opposite party has proved that the deceased
assured as suppressed undergoing treatment for tuberculosis for
more than a week and also subjecting to the X-ray and in spite of
the knowledge of tuberculosis, he concealed those facts at the time
of revival of the policy though those material facts were within his
knowledge. Therefore we answer point no. 1 in the affirmative”.
6. Learned District Forum rightly observed that at the time of revival of lapsed policy
the assured suppressed material facts about his health. Learned State Commission
while allowing appeal observed as under:
“No doubt the insurance company has examined one Dr. C.J. Girish in support of its defence. The said doctor in his evidence has deposed that the insured was subjected to medical tests conducted by it. In the test he has also appears to have diagnosed that the complainant was suffering from lower respiratory tract infection for which he prescribed medicine. In the cross
examination he has deposed that the patient was not anemic and there was no illness pertaining to the heart and the patient had taken treatment as an outpatient and that tuberculosis infection is curable if the infection is not severe.
From this it is seen that at no point of time the insured had taken any treatment as an in-patient in any of the hospital. Further the death is due to the heart attack. The above said disease has no nexus with the cause of death. If that is so, there is no reason for the insurance company to repudiate the claim that too in the absence of any evidence to that the complainant had the knowledge of any of diseases even though he was subjected to certain medical tests by Dr. C.J.Girish.
Before the revival of the policy the insured was also subjected to medical test by the panel of doctors of the insurance company. If at all if the insured was suffering from any disease necessarily the doctor who conducted the medical examination would not have certified the insured was hale and healthy. Therefore, in our view the DF is not right in dismissing the complaint of the complainant”.
7. Observances given by learned State Commission are apparently not correct
because assured gave wrong answers regarding his health at the time of revival of
policy which is apparent from the perusal of form and further treatment of disease which
was also proved by petitioner by evidence of treating doctors before the District
Forum. In such circumstances, it cannot be said that assured had not suppressed
material facts and had not given wrong statement pertaining to his health.
8. Learned Counsel for the opposite party submitted that burden of proof regarding
false representation and suppressing material fact lies on the Corporation. In support of
his contention he placed reliance on (AIR) 1991 SC 392 – LIC of India Vs.
G.M. Channabasemma, IV CPJ 269 (NC) – Asha Garg & Oth Vs. United India
Insurance Co. Ltd. and II CPJ 9 (NC) – LIC of India
Vs. Badri Nageswaramma & Oth. in which it was held that burden to prove false
representations and fraudulent suppression of facts by the assured lies on Insurance
Company. We agree with the principles laid down in aforesaid citations but perusal of
record reveals that OPs discharged its burden by proving false representation and
suppression of material facts by the assured by evidence of RW1 Dr. C.J. Girish and
treatment documents as well X-ray report. As the assured suppressed material facts
and made false statements in the revival form the petitioner was right in repudiating
claim and learned State Commission has committed error in allowing complaint.
9. Learned Counsel for the petitioner placed reliance on IV (2009) CPJ 8 (SC)
– Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. in which Hon’ble Apex
Court held that insured is under obligation to make true and full disclosure of information
within his knowledge. Where insured is on regular treatment and fully aware about his
state of health and statements made in the proposal form regarding as to state of health
are palpably untrue to his knowledge, repudiation of claim is justified. In the matter in
hand, petitioner has proved that at the time of revival, assured suppressed material
facts regarding his treatment and gave false answers to the questions and in such
circumstances, petitioner rightly repudiated the claim.
10. Learned Counsel for the OP placed reliance on AIR (1962) SC 814
– Mithoolal Nayak Vs. LIC of India in which it was observed –
“The principle underlying the Explanation to S.19 of the Contract Act is that a false representation whether fraudulent or innocent, is irrelevant if it has not induced the party to whom it is made to act upon it by entering into a contract. We do not think that that principle applies in the present case. The terms of the policy make it clear that the averments made as to the state of health of the insured in the proposal form and the personal statement were, the basis of the contract between the parties, and the circumstance that Mahajan Deolal had taken pains to falsify or conceal that he had been treated for a serious ailment by Dr. Lakshmanan only a few months before the policy was taken shows that the falsification or concealment had an important bearing in obtaining the other party’s consent. A man who has so acted cannot afterwards turn round and say: “It could have made no difference if you had known the truth.” In our opinion no question of waiver arises in the circumstances of this case, nor can the appellant take advantage of the Explanation to S.19 of the Indian Contract Act”.
This citation does not help to the respondent rather supports the case of petitioner as
deceased has suppressed material fact and made false representations in the revival
form.
11. Learned Counsel for the respondent further argued that statement regarding his
health at the time of revival of lapsed policy is not to be seen. This argument is devoid of
force in the light of judgment rendered by this Commission in R.P. No. 85 of 2007
– Pritam Kaur Vs. LIC of India in which it was held that “At the time of revival fresh
declaration is taken on the basis of which new contract is entered into” . Thus, it
becomes clear that at the time of revival of policy new contract comes into existence
and if assured suppresses material fact or gives false declaration regarding his health,
Insurance Company is entitled to repudiate claim.
12. As assured has suppressed material facts regarding his treatment before revival
and gave wrong answers intentionally regarding his health and he died due to heart
attack which had direct nexus with disease suffered by him, petitioner has not
committed any error in repudiating claim. Learned District Forum rightly dismissed
complaint of the complainant/OPs and State Commission has committed error in
allowing appeal and accepting complaint.
13. Consequently, revision petition filed by the petitioner is allowed and impugned
order dated 14.8.2007 passed by learned State Commission is set aside and order of
District Forum dated 21.8.2006 dismissing complaint is affirmed. There shall be no order
as to cost.
..……………Sd/-……………
( V.B. GUPTA, J)
PRESIDING MEMBER
..…………Sd/-…………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 187 OF 2012 (From the order dated 03.10.2011 in Appeal No.1692/2011 of the Rajasthan State
Consumer Disputes Redressal Commission, Jaipur)
Ram, Pal Singh S/o Shri Dayalram R/o Katlabas Outside Deen Darwaja Kata, Didwana District Nagor … Petitioner/OP
Versus General Manager Shri Transport Finance Co. Ltd. Regd Office: 123 Angappa Naikaen Street Madras
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
For the Petitioner : Mr. J.B. Mudgil Advocate
For the Respondent : Mr. Lenin Singh Hijam, Advocate
PRONOUNCED ON 24 th January , 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 3.10.2011 passed by the State Consumer Disputes Redressal Commission, Delhi
(in short, ‘the State Commission’) in Appeal No. 1692 of 2011 – Ram Pal Singh Vs.
General Manager Sri Ram Transport & Ors. by which appeal was dismissed and order
of District Forum dismissing complaint was upheld.
2. Brief facts of the case are that complainant/petitioner obtained loan of Rs.
5,00,000/- from OP/respondent for purchasing truck for a sum of Rs. 6,11,000/-. This
loan was to be repaid in 54 instalments. Due to illness of father of the complainant, loan
instalments could not be paid and muscle persons of OP snatched truck and OP sold it
for Rs.3,11,500/- and further raised demand of Rs.2,71,832/- from the complainant and
thus committed deficiency in selling truck at very low price and further demanding
money, hence, filed complaint for damages. OP contested the complaint and submitted
that complainant does not fall within purview of consumer as per loan-cum-
hypothecation Agreement. Vehicle was repossessed and sold as per terms and
conditions of agreement and notice for recovery is still pending before Arbitrator and
prayed for dismissal of complaint. Learned District Forum after hearing both the parties
dismissed complaint against which appeal filed by the complainant was dismissed by
impugned order, hence, this revision petition has been filed.
3. Heard learned Counsel for the parties at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that impugned order passed by
learned State Commission is non-speaking order and petitioner fall within purview of
consumer as he obtained loan from the respondent, hence, petition be accepted and
impugned order be set aside and matter be remanded back to the learned State
Commission for passing speaking order. On the other hand, learned Counsel for the
OP submitted that orders passed by learned State Commission and District Forum are
in accordance with settled law which does not call for any interference, hence, petition
be dismissed.
5. It is admitted case of parties that complainant purchased truck on finance
provided by OP and parties entered into hypothecated agreement and this amount was
to be paid by the complainant in instalments. Complainant failed to pay instalments and
in such circumstances, vehicle was repossessed by the OP and after notice vehicle was
sold.
6. Learned Counsel for the petitioner submitted that learned State Commission has
not passed speaking order, hence, matter may be remanded back. It is true that
learned State Commission has not passed speaking order and learned State
Commission ought to have passed speaking order after dealing with arguments placed
by Counsel for the appellant but only on this count there is no justification to remand the
matter if there is no merit in the complaint at all.
7. Learned District Forum after referring many citations of this Commission held that
complainant does not fall within purview of consumer and repossessing vehicle under
the terms and conditions of hire purchase agreement cannot be considered as any
negligence on the part of OP. When complainant failed to pay instalments it was within
the domain of OP to repossess vehicle and dispose it as per agreement and law.
Similar complainant has been dismissed in IV (2012) CPJ 93 (NC) – Shriram Transport
Finance Co. Ltd. Vs.Chaman Lal after referring judgment of Hon’ble Supreme Court
reported in II (2012) CPJ 8 (SC) – Suryapal Singh Vs. Siddha Vinayak Motors & Anr. I
do not find any infirmity in the order of District Forum which has been upheld by learned
State Commission and in such circumstances, I am not inclined to set aside the
impugned order and remand the matter back to the learned State Commission only on
the ground that order is not speaking order.
8. Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to cost.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3457 OF 2011
(From the order dated 03.08.2011 in First Appeal No. 1016/2011
of Haryana State Consumer Disputes Redressal Commission)
Shri Balraj Sharma S/o Shri Ramsaroop Sharma R/o H No. 220/4 Birbal Nagar Narwana District – Jind (Haryana)
... Petitioner / Complainant
Versus
Manager ICICI Lombard General Insurance Co. Ltd. Hisar
… Respondents / OP
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
For the Petitioner(s) Mr. J. B. MUDGIL, Advocate
PRONOUNCED ON : 24 th JAN. 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 03.08.2011 passed by the learned Haryana State Consumer Disputes Redressal
Commission (for short ‘the State Commission’) in FA No. 1016 / 2011 ‘Balraj Sharama
Vs. Manager, ICICI Lombard General Insurance Co. Ltd.’, by which appeal was
dismissed and order of District Forum dismissing the complaint was affirmed.
2. Brief facts of the case are that complainant / petitioner is registered owner of HR –
56 – T – 0066 which was insured with opposite party / respondent from 30.03.2008 to
29.03.2009. Complainant sent aforesaid vehicle along with driver Rajpal from Kaithal to
Kandla on 12.05.2008 but vehicle did not turn back. On 24.07.2008, complainant
received information from Economic Cell Office of S.P. Kaithal regarding dispute in
repayment of the instalments between driver Rajpal and purchaser
Satyawan. Complainant immediately approached S.H.O. P.S. Sadar Kaithal on
25.07.2008 to register a case of theft and intimation was also given to OP on
28.07.2008 through registered Post. As case was not registered by Police, complainant
approached to Punjab & Haryana High Court and as per direction of Hon’ble High
Court, F.I.R. was registered on 5.02.2009. But vehicle could not be traced out by the
Police. Opposite Party insurance company appointed a surveyor. Complainant
submitted claim which was repudiated by the Opposite party on the ground of delay in
lodging FIR, hence alleging deficiency in service on the part of the Opposite Party
Insurance Company, filed a complaint before the District Forum. Opposite party
contested the complaint and submitted that no intimation of theft was received by
opposite party on 28.07.2008 but complainant intimated to opposite party on 7.01.2009
and thus, complainant violated terms and conditions of the policy. Learned District
Forum after hearing both the parties, dismissed the complaint and appeal filed by the
complainant was also dismissed by the State Commission vide impugned order.
3. Heard learned counsel for the petitioner / complainant at admission stage and
perused record.
4. Counsel for the petitioner / complainant submitted that intimation of theft was given
to opposite party on 28.07.2008 just after knowledge of theft even then learned State
Commission has committed error in dismissing the appeal and District Forum committed
error in dismissing the complaint hence petition be accepted and the order passed by
the State Commission be set aside.
5. It is admitted case that vehicle was stolen on 12.05.2008. As per complainant FIR
was lodged on 25.07.2008. But it appears that on that date no FIR was lodged but as
per directions of Hon’ble Punjab and Haryana High Court, FIR was registered on
05.02.2009. Complainant alleged in the complaint that intimation was given to Opposite
Party on 28.07.2008 through registered post to which Opposite Party denied in written
statement and submitted that intimation was received on 07.01.2009. District Forum
disbelieved that intimation to OP was given on 28.07.2008 and observed that there was
delay of 267 days in lodging the FIR and delay of 230 days in giving intimation of theft to
opposite party and on the ground of delay in lodging the FIR and intimation to Opposite
Party, dismissed the complaint. Complainant has not proved that intimation was
received by OP on 28.07.2008. The State Commission also upheld the order of District
Forum as there was inordinate delay in giving intimation to opposite party. Even if it is
presumed that by letter dated 28.07.2008 intimation of theft was given by complainant
to OP, there was clear delay of two and half months and in such circumstances learned
District Forum has not committed any error in dismissing the complaint and State
Commission has also not committed any error in dismissing the appeal in the light of
judgement passed by Apex Court in “Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United
India Insurance Co. Ltd. and Anr.” [2011 CTJ 11 (Supreme Court) (CP)]. I do not find
any illegality or material irregularity or jurisdictional error in the impugned order and
revision petition is liable to be dismissed at admission stage.
6. Consequently, the revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs...……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBERRS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 695 OF 2006
(Against the order dated 26.09.2006 in Complaint Case No. 22/1997 of the Bihar State
Consumer Disputes Redressal Commission, Patna)
Birendra Kumar S/o Shri Baban Prasad R/o Mohalla Hanuman Nagar Punaichak, P.S. Shastrinagar District Patna Bihar-800023
… Appellant
Versus
Dr. Usha Kiran Jha Consultant, Histopathologist-cum-Cytologist (U.K. Histopath) Daughter of Dr. Bodh Krishna Jha R/o Chandrakanta Apartment Pandue Kothi Front of Bata India Gali Boring Road Patna-1
… Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants : Mr. Sumit Kumar, Advocate with
Mr. Anil Kumar, Advocate
For Respondent : Mr. Mahesh K. Chaudhary, Advocate
Pronounced on 28 th January, 2013
ORDER
PER VINEETA RAI, MEMBER
1. This first appeal has been filed by Birendra Kumar, original Complainant before
the Bihar State Consumer Disputes Redressal Commission, Patna (hereinafter referred
to as the State Commission) and Petitioner herein being aggrieved by the order of that
State Commission, which had disallowed his complaint of medical negligence against
Dr. Usha Kiran Jha, Opposite Party before the State Commission and Respondent
herein.
FACTS :-
2. In his complaint before the State Commission, Appellant had stated that he had
taken his minor son Ashish Priyadarshi (hereinafter referred to as the Patient) to a
Specialist-Pediatrician Dr. Mohan Choudhary with a complaint of small gland on the left
side of his neck and who after examination advised some tests, including an x-ray of the
chest and biopsy on the lymph gland. The names of two doctors were recommended;
(i) Dr. K.K. Kanth and (ii) Dr. Usha Kiran Jha. On 18.11.1995 Appellant again went to
Dr. Mohan Choudhary, who advised FNAC of the left lymph gland. Appellant,
accordingly, contacted Dr. Usha Kiran Jha, who took specimens for the FNAC of the
neck gland and after a laboratory examination gave a report that the Patient appeared
to be suffering from Tuberculosis. On the basis of this diagnosis, the consulting
Pediatrician prescribed medicines for Tuberculosis and when the condition of his son
did not improve he took him to the All India Institute of Medical Sciences, New Delhi,
where after seeing the FNAC slide the doctors there opined that this was indicative of
Hodgkin’s disease i.e. Cancer. The Appellant thereafter took his son to Tata Memorial
Hospital for Chemotherapy and he is presently recovering from Hodgkin’s
disease. However, because of the wrong report given by the Respondent, on the basis
of which the Pediatrician also prescribed medicines which were not required, the Patient
apart from suffering adverse side effects also had to undergo delay in the correct
treatment for the Cancer. Appellant thereafter filed a complaint of medical negligence
and deficiency in service against the Respondent and requested that she be directed to
pay Rs.5,41,413.34 as compensation.
3. Respondent on being served filed a written rejoinder denying any medical
negligence on her part. It was stated that the Appellant had approached her with a
written recommendation of the Pediatrician requiring her to only conduct an FNAC
procedure and not Biopsy. The FNAC was accordingly scientifically conducted in a
well-equipped laboratory and on the basis of this the Appellant gave her opinion. There
was no negligence in this matter and even if there was a misdiagnosis after due care
was taken to conduct the FNAC, it did not amount to medical negligence as per settled
law. Respondent further contended that it was the Appellant who delayed getting a
Biopsy done on his son because admittedly he did not get it conducted on 17.11.1995
and 06.12.1995 despite advice from the Pediatrician and instead went to All India
Institute of Medical Sciences. Even there he did not get the necessary tests done and
instead took the Patient to Tata Memorial Hospital delaying the Biopsy and proper
treatment by several weeks. Respondent further contended that she had not
prescribed/administered any medicine for Tuberculosis, which was done by the
Pediatrician, since she was only the Histopathologist and not the treating doctor i.e. the
clinician in the present case.
4. In the first round of litigation, the State Commission after hearing both parties vide
its order dated 08.12.1999 dismissed the complaint. Aggrieved by this, the Appellant
filed an appeal before the National Commission, which on 02.06.2006 remanded the
case back to the State Commission with a direction that the Opposite Party
(Respondent herein) be permitted to file evidence by way of affidavits and if so desired
to cross-examine each of the deponents as also refer the matter for obtaining expert
opinion on this subject. The State Commission after complying with the above
directions but not allowing impleadment of consulting Pediatrician as an Opposite Party
again dismissed the complaint by observing as follows :“12. The O.P. is a cytologist and she is not a clinician and on the basis of the slide she has expressed suspicion of tuberculosis for which the reason is mentioned. She has explained that she has given only one prick to collect smear and that might have been given at a place where lymphoma was not present at that point of time. The clinician has not discussed the case with the O.P. He did not advise her for rechecking of the slide. On the other hand he has advised for biopsy test to eliminate lymphoma which was never done by her and the complainant himself did not opt for this test. The physician has insisted for proper biopsy test to exclude lymphoma but the complainant was himself negligent in not opting for this test at Patna and he himself wasted time for more than 15 days and thereafter he went to Delhi. As stated above at Delhi also he did not cooperate in full test as advised at AIIMS but returned back to Patna and after six months he went to Bombay. Had the complainant got the biopsy test done of his son as per advice by Dr. M. Choudhary in between 17-11-95 to 6-12-95 the Hodgkin’s disease could have possibly been detected through biopsy test and he would have even advised for the line of treatment by the physician who was treating him at Patna. It was the fault on the part of the complainant that he allowed waste of time in the treatment of his son by not adopting the advise of the treating physician. The O.P. in support of her case that her report was correctly prepared on the basis of guidelines under the medical science as detailed in journal of clinical pathology of March, 98 which mentions that FNAC test in conjunction with immunocyto chemistry could give reliable result but such facility is not available in Patna. It is mentioned in the journal that excision biopsy and histopathological diagnosis remain the gold standard for the diagnosis of malignant lymphoma i.e. why the doctors at Patna and
at AIIMS have advised for biopsy test which the complainant willfully avoided. Therefore, the negligence was on the part of the complainant and not on the part of the O.P. that she gave a report showing symptom of tuberculosis on the slide which she prepared while doing test of FNAC. There is no expert opinion on record before us to support the case of the complainant that on the slide prepared for FNAC test the finding given by the O.P. suffers from defect and it was done under the method not acceptable to the medical science or it lack technical know how. There is nothing on record to support the contention of the complainant that slide prepared by O.P. suffers from any defect or her suggestive finding suffered from deficiency as she adopted wrong line in examining the slide against the norms of the medical science. The slide prepared by the O.P. was handed over to the complainant when he asked for. The allegation of the complainant that doctor at AIIMS on examination of this slide came to the conlusion that patient was suffering from Hodgkin’s disease is not supported from the papers of the AIIMS as referred to above. ..”
(Emphasis provided)
5. The State Commission also cited a number of judgments, including the case
of Hacher v. Blare Lancet (1954-2-880), in which it was opined that a doctor cannot be
held to be negligent simply because as a matter of opinion he made an error of
judgment, as also Jacob Mathew v. State of Punjab [(2005) 6 SCC 1], wherein the
Hon’ble Supreme Court has laid down the principles defining medical negligence by
applying the well-known Bolam test. Hence, the present first appeal.
6. Learned counsel for the Appellant was present. Neither Respondent nor her
counsel was present. Since service on the Respondent is complete, it was decided to
proceed with the case ex-parte.
7. Learned counsel for the Appellant in his oral submissions while reiterating the
facts stated by him in his complaint before the State Commission contended that the
State Commission erred in not appreciating the fact that the Respondent herself had
admitted that the FNAC procedure without the supporting Immunocyto Chemistry
Technology does not give the best results and she did not use the said technology
because it was not available in Patna. Under the circumstances, she should not have
given a categorical opinion that the Patient was suffering from Tuberculosis. Had she
raised a doubt regarding the diagnosis, then the consulting Pediatrician would have
definitely advised for a Biopsy. Unfortunately, because of this lapse the consulting
Pediatrician also did not prescribe a Biopsy till 06.12.1995, by which time the Patient’s
condition had deteriorated and he had to be rushed to the All India Institute of Medical
Sciences. Appellant further stated that Respondent’s contention that he had himself
delayed the Biopsy on his son is factually not correct. The State Commission also erred
in concluding that the Appellant had not been able to provide any expert medical
opinion to support his contention regarding the faulty FNAC because Respondent had
filed a supplementary affidavit along with the report of the Department of Pathology of
the Mahavir Cancer Sansthan in Patna, which clearly stated that the FNAC report of the
Respondent was indicative of Cancer and not Tuberculosis. The first appeal, therefore,
deserves to be allowed.
8. We have heard the submissions made by learned counsel for the Appellant,
including his written synopsis filed in Court today as also the entire evidence on
record. The fact that the FNAC was conducted on the minor son of the Appellant by
Respondent on the specific written advice of the consulting Pediatrician, who had
examined the Patient, is not in dispute. It is also an admitted fact that Respondent, who
is a consultant Histopathologist, had opined in writing that “this appeared to be a case of
Tuberculosis Lymphadenitis despite on ATT”. This report was accepted by the
consulting Pediatrician and he did not raise any doubts regarding this diagnosis and,
therefore, Biopsy was not immediately recommended until 06.12.1995 when the
Patient’s condition deteriorated. The State Commission noting these facts had
concluded that the Respondent had only given an opinion based on a scientifically
conducted FNAC that it was Tuberculosis and it was for the Pediatrician to have
reached a conclusive finding either after discussing this case with her or after having
recommended a Biopsy. We find force in the finding of the State Commission since
admittedly the Respondent was not a clinician and there is no evidence that a
reasonable degree of skill and care was not taken by her in conducting the
FNAC. Further, we agree with the State Commission that at the most Respondent
could be held responsible for misdiagnosis, which, as per settled law quoted in para-13
of the State Commission’s order, clearly does not amount to medical
negligence. Further, the Appellant has not been able to pin point how the Respondent
erred in conducting the FNAC test. The expert opinion filed by him along with his
affidavit also does not indicate any specific deficiency. If at all there was any medical
negligence in not applying reasonable care and precaution, it could have been
attributed to the Pediatrician, who, however, has not been impleaded as a party by the
Appellant in this case.
9. Keeping in view these facts, we see no reason to differ with the order of the State
Commission which had dismissed the Appellant’s complaint of medical negligence and
deficiency in service against the Respondent. We, therefore, uphold the order of the
State Commission in toto and dismiss the first appeal. No costs.
Sd/-
(ASHOK BHAN, J.)
PRESIDENT
Sd/-
(VINEETA RAI)
MEMBER Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 35 OF 2012 (From the order dated 18.04.2011 in Appeal No.1949/05 of the Haryana State
Consumer Disputes Redressal Commission, Panchkula)
Haryana Urban Development Authority Through its Estate Officer, Sonepat Haryana. … Petitioner/OP
Versus Jai Pal Singh S/o Sh. Ganga R/o House No.29, Sector 14, Sonepat, Tehsil and Distt. Sonipat, Through its Power of Attorney Sh. Pawan Kumar S/o Sh. Rattan Lal, R/o House No.1134, Sector-14, Sonepat, Haryana.
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
For the Petitioner : Mr. R.S. Badhran, Advocate
For the Respondent : NEMO
PRONOUNCED ON 29 th January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 18.04.2011 passed by the State Consumer Disputes Redressal Commission,
Haryana (in short, ‘the State Commission’) in Appeal No. 1949 of 2005 – HUDA vs. Jai
Pal Singh by which while dismissing appeal order of District Forum was affirmed.
2. Brief facts of the case are that complainant/respondent was allotted Plot No.323-
P in Sector 13 Part, Sonepat vide letter dated 19.9.2001, but petitioner/OP failed to
deliver actual physical possession of the plot to the complainant after providing all basic
amenities, hence, complainant filed complaint alleging deficiency on the part of OP and
prayed for delivery of possession of alternative plot. OP contested complaint and
learned District Forum while allowing complaint granted following reliefs:“…..the respondents are directed to allot an alternative plot to the
complainant bearing No.2145P, in Sector-7, Sonepat in place of plot
No.323P, situated in Sector-13 Part, Sonepat. However, it is made clear
that the payment of excess area, if any, will be made by the complainant
to the respondents.
As far as interest-compensation is concerned, the respondents are
directed to pay interest-compensation to the complainant at the rate of
12% per annum on the amount lying deposited with the respondents from
the date of allotment of the plot till the actual physical possession of
alternative plot No.2145P, Sector-7,Sonepat, is delivered to the
complainant. The respondents are also directed to deliver the actual
physical possession of the alternative plot No.2145P, Sector-7,Sonepat to
the complainant and to refund or adjust the amount of interest already
deposited by the complainants with the respondents and not to charge any
interest or penalty or any other amount from the complainant at the time of
handing over the actual physical possession of alternative plot to the
complainant. The respondents are further directed to pay compensation
to the tune of Rs.5,000/- for causing mental agony and harassment and
further to pay Rs.2000/- under litigation expenses to the complainant.
With these observations, findings and directions, the present
complaint stands accepted and the respondents are directed to make the
compliance of this order within 30 days from the date of this order”.
3. Petitioner filed appeal before the State Commission and the State Commission
vide impugned order dismissed appeal on the count of delay of 255 days as well as on
merits.
4. Heard learned Counsel for the petitioner and perused record.
5. This petition has been filed after inordinate delay of 140 days. Petitioner has not
filed any application for condonation of delay with revision petition filed on 4.1.2012. On
19.9.2012, learned counsel for the petitioner sought adjournment to file application
for condonation of delay. Even after lapse of 4 months, application for condonation of
delay has not been filed. As revision petition has been filed with inordinate delay of 140
days and no application for condonation of delay has been filed, petition being barred by
time liable to be dismissed at admission stage.
6. Learned State Commission also dismissed appeal on the count of inordinate
delay of 255 days as well as on merits. It appears that petitioner is in the habit of filing
appeal or revision petition after inordinate delay and in such circumstances, in the
absence of any application for condonation of delay, revision petition is liable to be
dismissed.
7. Petitioner has challenged in this revision petition only rate of interest awarded to
the complainant and period for which interest has been allowed and only to this extent
notice has been issued by this Commission to the respondent. Apparently, rate of
interest and period for which interest awarded by the District forum and affirmed by the
learned State Commission does not call for any interference.
8. Consequently, the revision petition filed by the petitioner is dismissed at
admission stage with no order as to cost.
..……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBERK
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 175 OF 2006
(Against the order dated 28.02.2006 in S.C. Case No. 61/O/2001 of the W.B. State
Consumer Disputes Redressal Commission, Kolkata)
Dr. Sunil Thakur Avenue Nursing Home 3A, Madan Street Kolkata-700072 Residing at 34, Bagmari Road Plot No. D/4, Kolkata-700054 … Appellant
Versus
1. Gorachand Goswami S/o Late Manick Lal Goswami Residing at Dakshini Housing Estate Phase-II, House No. C-1/19 P.S. Metiabruz, Kolkata-700018
2. M/s Avenue Nursing Home 3A, Madan Street Kolkata-700072 Jointly owned by
(i) Fatima Khatoon
(ii) Hasma Khatoon
(iii)Mahasur Rahaman
3. Lions District 322 B Blood Bank 27/8A, Waterloo Street Kolkata-700069
… Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant : Mr. Suchit Mohanty, Advocate
For Respondents : Ms. Meenakshi Midha, Advocate for R-1
NEMO for R-2
R-3 already ex-parte
Pronounced on 29 th January, 2013
ORDER
PER VINEETA RAI, MEMBER
1. This first appeal has been filed by Dr. Sunil Thakur, Appellant herein and Opposite
Party before the West Bengal State Consumer Disputes Redressal Commission,
Kolkata (hereinafter referred to as the State Commission) which had allowed the
complaint of medical negligence filed against him by Gorachand Goswami, Respondent
No.1 and others herein and Complainant before the State Commission.
FACTS :
2. Manick Lal Goswami (hereinafter referred to as the Patient) fell down from his
bicycle while returning home from his office on 14.11.2000 and sustained injuries, which
included a fracture in the neck of the femur. Respondent No.1, who was Patient’s son,
contacted Appellant-Dr. Sunil Thakur, who was a Consultant Orthopedic Surgeon
attached to M/s Avenue Nursing Home on telephone the same night and who advised
him to bring the Patient for medical examination the next day i.e. on 15.11.2000, where
after an x-ray was taken confirming the fracture, patient was admitted in the Avenue
Nursing Home and operated upon by the Appellant on 17.11.2000. Prior to the surgery,
the Appellant advised that one bottle of blood would be required, which would be
provided by the Avenue Nursing Home. Blood was accordingly supplied and transfused
and the operation completed by 5.00 p.m. However, blood transfusion continued even
after the surgery. Soon after the blood transfusion, the Patient started frothing from the
mouth and complained of difficulty in breathing and shivering. The next day, he could
not urinate and his eyes were found to be deep yellow in colour. Subsequently, a
Nephrologist after examining the Patient advised that since he might need Dialysis and
this facility was not available in the Avenue Nursing Home, the Patient be shifted to
Calcutta Medical Research Institute (CMRI), which was done. On request of CMRI to
the Blood Bank attached to it, one bottle of blood of A+ group (being the blood group of
the Patient) was supplied for the Patient’s Dialysis. However, the condition of the
Patient continued to deteriorate and despite being put on a ventilator he passed away
on 01.12.2000. As per the death certificate issued by CMRI, one of causes of death
was attributed to the “history of mismatched blood transfusion”. It was contended that
while the blood group of the Patient was A+, the blood which was transfused to him at
the Avenue Nursing Home on 17.11.2000 was of B+ group as per the report of the
Blood Bank which supplied the blood based on an enclosed blood specimen sent with
the requisition slip. It was also stated that the Patient’s condition actually deteriorated
following the transfusion of B+ blood while the Patient was under the treatment and care
of the Appellant, which clearly reveals gross medical negligence as also deficiency in
the treatment of the Patient on the part of the Appellant as also the Nursing
Home. Being aggrieved by the loss of his father, who was the sole earning member of
the family, Respondent No.1 filed a complaint before the State Commission on grounds
of medical negligence and deficiency in service and requested that the Appellant and
Avenue Nursing Home be directed to jointly and severally pay Rs.6 Lakhs as
compensation.
3. Appellant on being served filed a written rejoinder disputing the allegations made
in the complaint. It was stated that as an Orthopedic Surgeon he operated successfully
on the Patient and no complaint regarding the surgery was made by Respondent
No.1. So far as the arrangement for transfusion of blood was concerned, it was
submitted that this was arranged by the Patient’s relatives directly from the Lions District
322B Blood Bank at Waterloo Street, Kolkata and it was the duty of the Blood Bank to
correctly identify the blood group of the Patient and thereafter supply the blood after
matching it with the Patient’s blood group. Further, as per the usual practice, it is for the
doctors and para-medical staff present in the operation theater of the Nursing Home to
carefully verify the name and blood group of the Patient before transfusion and for this
the responsibility cannot be fixed on the Orthopedic Surgeon. It was further stated that
the Patient subsequently developed other complications like urination problems etc.,
which were not due to any medical negligence or deficiency in service in operating the
Patient and, therefore, the allegations of medical negligence and deficiency in service
are without basis.
4. The State Commission after hearing the parties allowed the complaint and held
the Appellant guilty of deficiency in service and medical negligence. The operative part
of the State Commission’s observations is reproduced:“27. … we are inclined to say O.P. No.-2* is evidently responsible for deficiency in service in terms of Sec.2(g) of the C.P. Act, 1986 on the following counts:- (i) O.P. No.-2 failed to ascertain the blood Group of the deceased before sending the sample to the Blood Bank despite the fact that there was a reliable document with the complainant’s relatives in respect of Blood Group of the deceased though the Complainant had drawn attention of O.P. No.-2 to the said document.(ii) O.P. No.-2 failed to mention the blood group of the deceased while sending sample to the blood Bank with a requisition which is otherwise mandatory.(iii) O.P. No.-2 committed gross negligence by accepting and transfusing a blood group other than A+ve which was the deceased’s confirmed blood group.
*(i.e. the Appellant before the National Commission)
(iv) O.P. No.-2 failed to follow instructions contained in the Issue Document of Blood Bank where caution is printed on the Poly Bag containing Blood that in case of any reaction, the Surgeon/Physician must send sample of patient’s blood, a small sample of the blood transfused, patient’s symptoms evident on transfusion.”
5. The State Commission, therefore, directed the Appellant to pay a compensation of
Rs.5,28,000/- and Rs.10,000/- as costs to Respondent No.1. The Avenue Nursing
Home (Opposite Party No.1 before the State Commission) was also directed to pay
Rs.10,000/- as compensation for their act of negligence and deficiency in service for
failing to carry the correct blood sample of the Patient to the Blood Bank. The State
Commission, however, concluded that no case of negligence against the Blood Bank
was established. Appellant as well as the Avenue Nursing Home were directed to pay
the above amount within 30 days from the date of communication of the order, failing
which it was to carry interest @ 12% per annum till the amounts were paid.
6. Aggrieved by this order, only the Appellant (i.e. Opposite Party No.2 before the
State Commission) filed this first appeal.
7. Learned counsel for both parties made oral submissions.
8. Learned counsel for the Appellant reiterated that the State Commission gave an
erroneous finding of medical negligence against Appellant since his responsibility was
only that of an Orthopedic Surgeon and admittedly the surgery was successfully
conducted by him without any complications. So far as provision of blood is concerned,
the responsibility is that of the concerned Nursing Home as also the Blood Bank to
cross check the blood group with the blood required and clearly state these
requirements in the requisition slip sent to the Blood Bank. In case of any deficiency in
doing so, including not giving the full details, it is the Nursing Home (i.e. Opposite Party
No.1 before the State Commission) and the Blood Bank, which are solely responsible
and not the operating surgeon i.e. the Appellant in the instant case. It was further
stated that the CMRI to whom the Patient was referred issued a death certificate without
careful consideration of the facts and, therefore, gave multiple reasons for the cause of
death but nowhere did it say that it was because of the faulty surgery. Further,
Respondent No. 1 did not produce any expert medical evidence or person to prove his
case. The Appellant was only a consulting doctor who had been called to the Avenue
Nursing Home to conduct the surgery and was not a regular member of its
staff. Therefore, in respect of any negligence committed by the Nursing Home and its
staff in not verifying the blood group before sending it to the Blood Bank, the Appellant
cannot be held responsible.
9. Learned counsel for Respondent No.1 on the other hand stated that the Appellant
cannot take the plea that the blood was arranged for the Patient by his relatives and it
was the responsibility of the relatives, the concerned hospital and the blood bank to
ensure that a correct requisition slip was sent because there is evidence on record that
the requisition slip dated 16.11.2000 to the blood bank was signed by Dr. Sunil Thakur
(i.e. the Appellant) stating that one unit of blood for the Patient was required and a
specimen blood sample attached. The requisition slip did not mention the blood group
of the Patient. The blood sample was cross-checked in the blood bank and found to be
of B+ group and accordingly blood of B+ group was sent for transfusion for the
Patient. It is clear from this that the Appellant had signed the requisition slip without
verifying whether the correct blood specimen had been sent and whether any blood
group was mentioned. In view of these facts and the death certificate, which confirmed
that one of the causes of death was “mismatched blood transfusion”, the same was
rightly attributed by the State Commission to the Appellant’s medical negligence.
10. We have considered the submissions made by learned Counsel for both parties
and have carefully gone through the evidence on record. The fact that the Patient was
admitted in the Avenue Nursing Home for a surgery by the Appellant following fracture
of the femur neck is not in dispute. It is further a fact that a requisition slip was sent to
the Blood Bank for blood transfusion required during and after the surgery and that the
blood specimen attached to it was not of the Patient but of some other person and,
therefore, the blood sent by the Blood Bank did not match with the Patient’s blood group
leading to serious complications, which contributed to his death. Appellant’s contention
that he was not responsible for arranging the blood is not acceptable in view of the fact
that he had admittedly signed the requisition slip sent to the Blood Bank enclosing with
it a wrong specimen of blood. Because of this serious lapse, the Patient developed
other complications following the blood transfusion relating to his liver and kidney
functions because as per medical literature there is a nexus between transfusion of
mismatched blood and renal urinary and liver problems*. [*Source :(i) Medical Dictionary – FARLEX(ii) Complications of Blood Transfusion (Maxwell & Wilson Oxford Journal)]
11. Counsel for Appellant’s contention that Respondent had been unable to produce
any medical evidence in support of their case is also not tenable because in the instant
case the principle of ipsa res loquitur is clearly applicable.12. Further, Counsel for Respondent No.1 has brought to our notice judgments of the
National Commission in Dr. Kam Inder Nath Sharma & Ors. V. Satish Kumar & Ors. [II (2005) CPJ 75 (NC)] and Dr. K. Vidhyullatha v. R. Bhagawathy [I (2006) CPJ 136 (NC)] as also of the Hon’ble Supreme Court inPost Graduate Institute of Medical Education & Research v. Jaspal Singh & Ors. [II (2009) CPJ 92 (SC)] in support of
the contention, wherein it has been concluded that wrong blood transfusion is an error,
which no doctor/hospital exercising ordinary skill would have made, and such an error is
a sure instance of medical negligence. Keeping in view the facts in this case, as
discussed above, and respectfully following the judgment of the Hon’ble Supreme Court
as also of this Commission, which are relevant in the instant case, we agree with the
finding of the State Commission that the Appellant was guilty of medical negligence and
uphold the same.
12. This first appeal having no merit is dismissed. Appellant is directed to comply with
the order passed by the State Commission and pay the awarded amount of
Rs.5,38,000/- (i.e. Rs.5,28,000/- as compensation and Rs.10,000/- as cost) to
Respondent No.1. No costs.
Sd/-
(ASHOK BHAN, J.)
PRESIDENT
Sd/-
(VINEETA RAI)
MEMBER Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
REVISION PETITION NO. 98 OF 2013 (From the Order dated 4.08.2009 in F.A. No. 3469/2001 of
Haryana State Consumer Disputes Redressal Commission, Panchkula)
With
IA/171/2013IA/172/2013
(DELAY & STAY)
Smt. Krishna W/o Sh. Mohan Lal R/o Mahavir Nagar Tehsil and Distt. RewariPetitioner
Versus
Sub Divisional Officer (OP) Sub Division No.2 Rewari
Respondent BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner : Mr. Himanshu Gupta, Advocate Pronounced on : 30 th January, 2013
PER SURESH CHANDRA, MEMBER
This revision petition is directed against the order dated 4.8.2009 passed by the
State Consumer Disputes Redressal Commission, Haryana, Panchkula (‘State
Commission’ for short) by which the State Commission allowed First Appeal No.3469 of
2001 filed by the respondent / opposite party and set aside the order dated 8.8.2001
passed by the District Consumer DisputesRedressal Forum, Rewari.
2. There is delay in filing this revision petition for which the petitioner has filed I.A.
No.171 of 2013 praying for condonation of the delay. There is no indication about the
period of delay in the application of the petitioner and the space regarding the number
of days of delay has been left blank. Since the impugned order was passed on 4.8.2009
and the same was received by the petitioner on 18.8.2009 and yet the revision petition
came to be filed by the petitioner on 9.1.2013, it is seen that there is delay of 1150 days
beyond the prescribed period of limitation.
3. We have perused the application filed by the petitioner for condonation of delay
and heard Mr. Himanshu Gupta, Advocate, counsel for the petitioner. It is submitted by
the petitioner that after engaging her counsel to pursue the First Appeal No.3469 of
2001 filed by the respondent before the State Commission, she had engaged another
person, viz., Mr. Pradyuman Yadav, Advocate as her counsel. It is submitted that
though she was in touch with the said counsel but he kept on assuring her that the
appeal was pending before the State Commission. However, in the meanwhile she was
in dark about the impugned order of the State Commission accepting the appeal of the
respondent and as such believed that the matter was still pending for final decision. In
view of this, it is submitted by her that because of the conduct of her counsel, she was
misled and came to know about the decision of the State Commission against her some
time in 2012 and accordingly applied for certified copy which was received on
27.9.2012. Learned counsel has submitted that she is a poor lady who is not familiar
with the legal provisions and procedures, and as submitted in the application, the delay
in question was unintentional and occurred due to inadvertence and for the reasons
beyond the control of the petitioner since she was misled by her advocate.
4. We have considered the application of the petitioner for the condonation of
delay. The reasons and the explanation put forth by the petitioner are general and
vague. Admittedly, no action has been taken by the petitioner against the Advocate who
is alleged to have kept her in the dark and thereby misled her regarding the decision of
the State Commission. According to the petitioner, the free copy of the impugned order
had been supplied to the parties/counsel on 18.8.2009. Without specifically denying the
knowledge about or the receipt of the free copy of the impugned order supplied by the
Commission, it is simply stated that the certified copy of the impugned order was not
received by her from her counsel. We are unable to accept this story which appears to
have been cooked up by the petitioner as an afterthought to justify such a long and
inordinate delay of about three years in filing the petition.
5. Besides the fact that no action was taken by the petitioner against the
concerned Advocate for this serious professional lapse on his part, it is unbelievable
that the petitioner would be unaware about the impugned order for such a long time. In
fact, it is stated in para 4 of the application that the petitioner instituted execution
proceedings on 31.8.2010 against the respondent for compliance of the order of the
District Forum dated 8.8.2001. Firstly, it is not understood as to how the petitioner could
file the execution petition without ascertaining the fate of the appeal filed by the opposite
party before the State Commission to which she was a party and where she had also
engaged a counsel for representing her. Besides this, if she was really not aware of the
impugned order having been passed on 4.8.2009, it is not understood as to why she
waited for such a long time of more than 8 years to approach the District Forum for
execution of the order which had been passed on 8.8.2001. It is obvious that she must
have come to know about the impugned order but in order to justify the inordinate delay
on her part in filing the present revision petition and to prove her “bonafides” in the
matter, she has mentioned about the filing of the execution petition on 31.8.2010. In
this context, no documents have been placed before us, which would indicate institution
of the execution proceedings on 31.8.2010. Even if the execution petition was filed on
31.8.2010, it is highly improbable that the petitioner would not come to know about the
impugned order for the next more than two years of the pendency of the execution
petition before the District Forum. Nothing has been mentioned about the issuance of
notice by the District Forum in the execution proceedings to the respondent and further
progress of the execution petition.
6. In view of the above factual position which emanates from the application and
the oral submissions made by learned counsel, we are not at all convinced about the
explanation and reasons put forth by the petitioner to justify the delay of more than three
years in filing this revision petition. Even after receipt of the certified copy on 27.9.2012,
the petitioner has taken more than 90 days to file the revision petition. In view of this,
her application for condonation of delay is dismissed. With this, the revision petition also
stands dismissed as hopelessly barred by limitation.
……………Sd/-……..……….. (AJIT BHARIHOKE, J.) PRESIDING MEMBER
……………Sd/-……..……….. (SURESH CHANDRA)
MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 2300 OF 2012
(Against the order dated 07.03.2012 in Appeal No. 905 of 2010of the State Commission Gujarat)
1. Amitaben Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah 2. Apexa Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah 3. Smruti Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah 4. Pratik Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah (all residents of 502, Nandishwardeep Apartment Parle Point, Surat)
........ Petitioners
Vs.
Varachha Co.op Bank Ltd. Effil Tower L.H.Road, Surat, Gujarat Through its Chief Manager / Branch Manager
......... Respondent
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioners : Dr.Bipin K Dwivedi, Advocate
For the Respondent : Mr.Sanjay Mehta, Advocate
Dated : 30 th January, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
Petitioners are legal heirs of complainant
Late Shri Dilip Kumar Rasiklal Shah. They have preferred this revision petition against
the impugned order of Gujarat State Consumer Disputes Redressal Commission ( in
short, ‘the State Commission’) whereby State Commission allowed the appeal preferred
by the respondent bank herein against the order of District Consumer
Disputes Redressal Forum ( Additional) of Surat which reads thus:
“1. The complaint by the complainant is allowed as under.
2. The opponent in the case has allowed a withdrawl of Rs.1,68,450/- vide cheque no.7780 in the frozen Account No.4226. The said amount shall be credited in the Deceased Complainant’s Account with interest as per rules and regulations of the bank effective Dt.09.08.2005.
3. The opponents in the matter shall pay to complainants in all sum of Rs.10,000/- (in words Rupees Ten Thousand only) towards cost of the complaint and mental physical torture.
4. The complainants as per relief prayed under complaint para -5 is not entitled to any additional relief.
5. The opponent shall bear the cost of suit himself.
6. The opponent shall comply the order within 30 days of this order”.
2. Briefly put, the facts relevant for disposal of this revision petition are that late
complainant filed consumer complaint against the respondent – opposite party claiming
that he had an account bearing no.4226 with the opposite party, namely, Varachha Co-
op Bank Ltd, Varachha Road, Surat. That on 04.12.2004 complainant gave written
instructions to the respondent– bank stating that he had lost certain cheques, as such
no payment be made against those cheques from his aforesaid bank account without
his written consent. That therespondent bank recorded the numbers of the lost cheques
in their register. Despite that, bank allowed withdrawl of Rs.1,68,450/- from the bank
account no. 4226 of the complainant against one of those lost cheques bearing no.
7780 without informing or obtaining consent from the complainant.
3. The respondent – bank contested the complaint by filing a written submissions
denying the allegations.
4. The District Forum after hearing the parties and on the basis of the evidence
produced came to the conclusion that the opposite party bank had encashed the
cheque regarding which stop payment instructions were issued from the bank account
no. 4226 of the complainant without seeking consent from him. This according to the
District Forum amounted to deficiency in service. As such, District Forum allowed the
complaint and passed the order reproduced above.
5. Feeling aggrieved by the order of the District Forum, the respondent bank
preferred an appeal before the State Commission and the State Commission concluded
that the instructions issued by the deceased – complainant to the bank vide letter dated
14.02.2004 were unclear and vague and as such there was no deficiency in service on
the part of the bank. Accordingly, the State Commission accepted the appeal and set
aside the order of the District Forum and also dismissed the complaint.
6. Learned Shri Bipin K Dwivedi, Advocate for the petitioner has contended that
order of the State Commission is perverse and against the facts. He argued that State
Commission was not justified in setting aside the well reasoned order of the District
Forum holding deficiency in service on the part of the respondent bank despite the fact
that petitioner had not only given clear instructions not to encash certain cheques
without his consent from his account which were claimed to have been lost particularly
when numbers of those cheques were got entered in the “unused cheques register”
maintained by the respondent – bank. In support of this contention, learned counsel for
the petitioner has drawn our attention to the petitioner’s letter dated 14.02.2004 as also
the photocopy of the relevant entry in the unused cheques register maintained by the
respondent bank. It is further contended that the State Commission has committed a
grave error in holding that in a business city like Surat, the bank is not supposed to
seek confirmation from the customer before encashing the cheque irrespective of the
customer having requested the bank not to allow operation of the bank
account. Learned counsel thus urged us to accept the revision petition and set aside
the impugned order of the State Commission accepting the appeal against the order of
the District Forum.
7. Shri Sanjay Mehta, Advocate, learned counsel for the respondent bank on the
contrary has argued in support of the order of the State Commission. He has drawn our
attention to the letter dated 14.02.2004 addressed by late complainant to the bank and
submitted that the letter in question is vague inasmuch as it does not mention a specific
account number in the subject and at the bottom of letter, there are five account
numbers mentioned under a note asking upto date statement of account. It is contended
that from this letter no instructions regarding stop payment of any cheque is perceived
and as such bank was not at fault in enashing the cheque which was presented in the
year 2005. Learned counsel for the respondent bank further contended that mere entry
of the cheque number in the unused cheque register relates to A/c No 0503/4226 by
itself does not mean that there were any instructions not to make payment against the
cheques detailed therein. Learned counsel for the respondent further contended that
whenever a duly signed cheque is presented for encashment before the bank, the bank
is under a legal obligation to encash the cheque failing which the bank would risk legal
proceedings by the beneficiary of the cheque issued by the account holder. Thus it is
contended that impugned order does not suffer from legal or factual infirmity which may
call for interference by this Commission in its revisionaljurisdiction, scope of which is
limited.
8. In order to appreciate the rival contentions, it would be useful to have a look on
the relevant portion of the impugned order of the State Commission
which interalia reads thus:
“Now, it is also necessary to be decided that whether the responsibility of blame to be poured out on the Bank of any dispute between the Deceased Complainant and with his professional friends. And any refund’s cheque number 775629 drawn on State Bank of Saurashtra for Rs. 1,68,476 by the Surat Municipal Corporation and
that was collected by the Architeet Parikshitlal Talati and that cheque was to be given to Deceased Complainant instead of that, has given to MansukhlalSanghani and that cheque was deposited in the Account No.4226 of Deceased Complainant and thereafter, that amount was withdrawn from the Account Number 4226 and while the aforesaid cheque deposited in the account of Deceased Complainant at the relevant time may have presented that cheque in the Bank to obtain amount with the signature of Deceased Complainant, so obviously information have to Deceased Complainant as to whose name that cheque is wrote and hence, the Deceased Complainant could have stopped payment of that cheque instead of unclear and vague language in the letter dated 14.02.2004. And to be obtained written consent of deceased person for each and every cheque which may submit and arrangement of bank may disturb if every account holder may write letter according to that and it seems that now the responsibility is being poured out on the bank in any dispute in respect of refund amount obtained from the Corporation. And the learned Forum has recorded in their judgment that the Bank could have demanded more clarity regarding that letter for the aim of better services to be provided to the Deceased Complainant. But that responsibility is not of the bank and account holder is bound to inform amount of cheque, date, number, account number in which person’s favour which has wrote, and hence Learned Forum’s Judgment is not proper and justified and therei interfere is required, so the appeal is granted and final order is being passed”.
9. On perusal of above, we find that the State Commission has accepted the appeal
against the order of the District Forum mainly for the reason that the instructions dated
14.02.2004 given by the complainant to the respondent bank was vague and it could not
be treated as clear instructions of ‘stop payment’. On careful consideration of record, we
find that aforesaid conclusion of the State Commission is erroneous as the State
Commission while arriving at the conclusion has ignored the fact that the numbers of
cheques stated to have been misplaced vide instructions dated 14.02.2004 were
recorded by the respondent bank in the unused cheque register officially maintained in
this regard. Photocopy of the unused cheque register maintained by the respondent
bank is available on record. On perusal of the aforesaid photocopy, we find that on
14.02.2004, the entry regarding seven unused cheques pertaining to the bank account
no.4226 of the complainant including cheque no.7780, which is the bone of contention
in this revision, was actually made by the respondent bank in the unused cheque
register pursuant to the instructions dated 14.02.2004 of the complainant. From this, it
is obvious that the respondent bank actually understood the instructions given by the
complainant and it is because of the said reason, the entries pertaining to unused
cheques was made in the unused cheque register. That being the case, the respondent
bank now cannot take shelter of vagueness in the letter dated 14.02.2004 of the
complainant addressed to the respondent bank. From the above referred entry in the
unused cheque register, it is clear that on 14.02.2004, the respondent bank was fully
aware that as per the instructions of the complainant, the cheques entered in the
unused cheque register were not to be encashed without first referring to the
complainant. Admittedly, the respondent bank encashed one of those cheques bearing
no.7780 for Rs.1,68,450/- relating to account no.4226 of the complainant without
referring to and seeking instructions from the complainant. This in our view obviously
amount to deficiency in service. The State Commission has allowed the appeal of the
respondent bank against the order of the District Forum without taking into account the
entries made in the relevant unused cheque register maintained in the bank. Thus in
our view, the order of the State Commission suffers from material irregularity and is
unsustainable. Accordingly, we accept the revision petition and set aside the impugned
order of the State Commission and restore the order of the District Forum. No order as
to costs.
…………………………
(AJIT BHARIHOKE,J) PRESIDING MEMBER
………………………… (SURESH CHANDRA) MEMBER
Am/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 279 OF 2007
(Against the order dated 21.02.2007 in O.P. No. 108/99 of the Tamil Nadu State
Consumer Disputes Redressal Commission, Chennai)
Smt. V. Bhavani W/o S. Vijayraja No. 18, Srirengapalayam East Kumarasamy Raja Nagar Rajapalayam … Appellant
Versus
Dr. S. Siva Subramaniam M.S.M.R.S.H. (London) Karthik Nursing Home Chettiarpatti Rajapalayam
… Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants : Mr. V. Prabhakar, Advocate
For Respondent : Ms. Hetu Arora Sethi, Advocate
Pronounced on 30 th January, 2013
ORDER
PER VINEETA RAI, MEMBER
1. Smt. V. Bhavani, original complainant before the Tamil Nadu State Consumer
Disputes Redressal Commission, Chennai (hereinafter referred to as the State
Commission) and Appellant herein had filed this first appeal being aggrieved by the
order of that Commission which had dismissed the complaint of medical negligence
against Dr. S. Sivasubramaniam, Respondent herein and Opposite Party before the
State Commission.
FACTS :
2. Appellant approached Respondent for treatment of irregular menstrual bleeding
on 24.02.1998 and Respondent after examining her and conducting relevant tests
advised that she be admitted in the Hospital for undergoing a Trans Cervical
Endometrial Resection (TCER). She was required to purchase the medicines from
Respondent’s clinic and also pay Rs.3000/- for the surgery. The surgery, which lasted
nearly four hours, was conducted under epidural anaesthesia but because the surgical
tools and apparatus were not sterilized in advance and there was no pre-arrangement
for a generator in case of power failure, which failed four times during the surgery, she
experienced severe pain during the surgery and on the third day from the surgery she
developed Sepsis, resulting in high fever, body pain, retention of urine and abdominal
swelling. Respondent prescribed some medicines but she suffered renal failure and her
husband was advised to admit her to Meenakshi Mission Hospital for treatment of renal
failure. She was shifted to that Hospital and admitted in the Intensive Care Unit, where
she was treated for Septicaemia, Jaundice and Renal Failure and was also put on
ventilator support. Because of the sincere and effective steps taken by a team of
doctors at that Hospital, the Patient recovered from her coma and though she was
discharged from the Hospital, she continues to have joint pains, nervous weakness and
shrunken kidneys because of which she might need renal transplantation in due
course. Being aggrieved because of the medical negligence on the part of Respondent,
which resulted in enormous pain and suffering as also heavy expenditure, Appellant
issued a legal notice to him claiming a sum of Rs.15 Lakhs as damages and
compensation for medical negligence and deficiency on his part. Respondent, however,
sent an evasive reply and denied the charges. Aggrieved by this, Appellant filed a
complaint before the State Commission and requested that the Respondent be directed to pay her
total amount of Rs.15 Lakhs as compensation under the following heads:1) Medical expenses .. Rs.3,50,000-00
2) Attendance and Nutrition till 6-5-98 .. Rs.50,000-003) Pain and suffering and Transportation .. Rs.4,00,000-004) Future attendance for transplantation,
Nutrition and Hospital.. Rs.3,00,000-00
5) Reducal of the normal span of life and damage
.. Rs.4,00,000-00
Total .. Rs.15,00,000-00”
3. Respondent on being served filed a written reply denying that there was any
medical negligence on his part, as alleged by the Appellant. The charge that the
equipments were not sterilized was specifically denied by Respondent, who stated that
the Resectoscope, Telescope and Cautery Loops were sterilized by immersion in cidex
solution prior to the surgery as also all other equipments, which included electrical
cords, suction and irrigation tubes as per standard procedure. It was also specifically
denied that there was any power-cut during the surgery, which was completed within an
hour. Since the Patient was under epidural anaesthesia throughout the surgery, the
possibility of her seeing anything, including her contention that there was a power
failure, is not factually correct. After successful completion of the surgery, the Patient
was recovering satisfactorily until the fourth day when it was noted that her urine output
was very low and, therefore, her Blood Urea and Serum Creatinine were tested and
found to be high. After medical examination, Appellant was diagnosed with Acute Renal
Failure and immediately referred to Meenakshi Mission Hospital for
Dialysis. Respondent stated that even after examination in Meenakshi Mission Hospital
he visited her to check her progress and the doctors there informed him that she had
developed Respiratory problems, Jaundice and Vomiting and, therefore, put on
ventilator and kept in the Intensive Care Unit. However, she never lost consciousness
and subsequently recovered. Respondent gave the best possible medical treatment
and care exercising the required professional skills needed in this case. The post-
operative condition was because of her pre-existing renal problems, for which she was
also taking treatment. Therefore, the charges of medical negligence and deficiency in
service are totally baseless.
4. The State Commission after hearing the parties and considering evidence before it
concluded that no case of medical negligence could be established against the
Respondent. The relevant part of the State Commission’s observations in this regard is
reproduced:“… In the present case the allegation that due to improper sterilization of instruments the complainant suffered septicaemia has also not been substantiated. The opposite party has clearly set out his stand in the version and in the proof affidavit to the effect that the instruments like Resectoscope
Telescope and Cautery Loops were all sterilized by immersion in Cidex solution and that it was carried out in the morning of 26/2/98 and the Electrical chords, suction and irrigation tubes were all sterilized by keeping in Formaline tray in the previous night itself. Cidex is the brand name of Activated Glutaradehyde Solution which is used as a sterilant and high level disinfectant into which sensitive instruments could be immersed to attain fully sterilized conditions prior to surgical procedures. The opposite party had followed all accepted procedures with regard to sterilization of equipments prior to the start of the medical procedure on the complainant. Even with regard to the post operative surgical care, it has already been noted that the complainant had been given proper medicines and she was also put on I.V. fluids. It is also to be noted that the opposite party had stated that the complainant brought to his attention her previous history of renal disorder and the treatment she was undergoing from Dr. Dhanam only after the operation was completed by him. This fact had not been controverted by the complainant. There was already a history of renal failure and treatment which the complainant had been following, which, for reasons best known to her, she had not disclosed to the opposite party. The complainant has not substantiated her case set out in the complaint. She has not established that the opposite party was negligent and consequently there was deficiency in service on his part while treating the complainant. She has not produced any expert evidence in support of her stand. She has not chosen to controvert the contents of the affidavit of Dr. Sampathkumar who treated her at the Meenakshi Mission Hospital and who has given a clean chit to the opposite party with regard to the treatment given to the complainant in Karthik Nursing Home.”
Hence, the present first appeal.
5. Learned counsel for both parties made oral submissions.
6. Learned counsel for the Appellant reiterated that the State Commission erred in
concluding that there was no medical negligence whereas it was clearly established that
the infection leading to renal failure occurred because the surgical equipments were not
properly sterilized and the situation was further aggravated because the electric supply
failed four times during the critical surgery. In proof of these contentions, it was stated
that prior to the surgery the blood test did not indicate the presence of any bacteria or
infection whereas the Blood Culture conducted after the surgery and which takes 3 to 7
days to confirm, clearly indicated that there was infection. Obviously, this occurred
during the surgery and because of the non-sanitary conditions in the operation theater
and non-sterilized surgical equipments. He brought to our attention the medical history
of the Appellant, which did not indicate that she had any pre-existing problem, apart
from the menstrual problems which necessitated the TCER. It was also specifically
stated that the epidural anaesthesia being mild, the Appellant was fully conscious during
the surgery and, therefore, her observation of power failure is based on facts.
7. Counsel for Respondent on the other hand reiterated that he was a well-qualified
doctor, who had conducted several surgeries, and that after the clinical examination and
laboratory investigations, the Appellant was diagnosed as suffering from chronic
cervicitis with dysfunctional uterine bleeding because of which she underwent TCER,
which is a standard management procedure in such cases. The surgery was conducted
with properly sterilized state of the art equipments and there was no negligence or
deficiency in conducting the surgery and there was also no power failure. During the
surgery it was found that the entire Endometrium was badly affected due to infection
and it was possible that the infection had spread to the bloodstream earlier and was in a
dormant stage since the uterine cavity is not an absolutely sterilized area. Further, this
also would explain the subsequent Sepsis which was not due to any negligence in the
surgery or non-sterilization of the equipments. Counsel for the Respondent further
stated that the Nephrologist from the Meenakshi Mission Hospital, who had treated the
Patient, had filed an affidavit before the State Commission as an expert, in which he
clearly stated that the renal failure and other problems encountered by the Patient were
not due to any negligence or deficiency in service on the part of Respondent but due to
pre-existing endomentrial infection and because of which occurrence of Septicaemia is
an inherent and accepted complication of TCER. The State Commission had, therefore,
rightly concluded that there was no medical negligence on Respondent’s part and had
rightly dismissed the Appellant’s complaint.
8. We have heard learned Counsel for both parties and have carefully gone through
the evidence on record. Patient’s admission in Respondent’s clinic with complaints of
irregular menstrual bleeding and related problems, where she underwent TCER
surgery, are admitted facts. It is also a fact that four days following the surgery, she
suffered from symptoms of Septicaemia, retention of urine and renal failure, because of
which she was referred to another Hospital, wherein she was treated for the same and
discharged after recovery. Appellant’s contention that the Septicaemia and the renal
failure problems occurred because of insanitary conditions in the operation theater as
also non-sterilization of the equipments, we note, is not borne out by any independent
or credible evidence to prove the same. It is merely Appellant’s conjecture to explain
the subsequent complications. Apart from this, we agree that a Patient who is under
epidural anaesthesia is unlikely to observe during that period that power was disrupted
on four occasions during the surgery. Therefore, this is also based on either conjecture
or hearsay and cannot be relied upon. On the other hand, we note from the evidence
on record that due care was taken in treating the Patient in respect of the diagnosis as
also the medical treatment and the Respondent’s explanation that the Septicaemia
occurred because a pre-existing infection is confirmed by the evidence of an expert,
Nephrologist from the Meenakshi Mission Hospital and Research Centre, where the
Patient was subsequently admitted, and who stated on affidavit as follows :-“9. … it was a known fact that Mrs. V. Bhavani was suffering from chronic cervicitis and endometritis even before TCRE, for over a period of 6 months. She underwent TCRE for removing the infected endometrium. In such a situation, in spite of the reasonable care and skill exercised by the surgeon, there is every possibility that the pre-existing infection could enter into the blood stream through the cut ends of the capillaries (the terminal end of an arteriole which are fine hair-like blood vessels forming a network) in the inner wall of the uterus after the removal of the endometrium. This possibility can neither be fully anticipated nor prevented. In my view this should have been the most probable reason for septicaemia suffered by Mrs. V. Bhavani after TCRE. This septicaemia should have given rise to the other ailments including the acute renal failure suffered by Mrs. V. Bhavani.
10. I submit that the renal problems encountered by Mrs. V. Bhavani was not due to any negligence or deficiency of service on the part of Dr. S. Sivasubramanian; but it is due to the pre-existing endometrial infection and in such a situation occurrence of septicaemia is an inherent and accepted complication of the TCRE. Even when a surgeon exercises best care and skill, such complications do occur. In this case, Dr. Sivasubramanian responded with a sense of urgency and referred Mrs. V. Bhavani for further management to me within time. In fact it is because of this immediate response that we could prevent further deterioration in the clinical condition of Mrs. V. Bhavani thereby saving her life.”
This evidence has not either been controverted or challenged by the Appellant, on
whom there was onus to prove that there was medical negligence. On the other hand,
from the evidence on record as also the expert opinion of the Nephrologist from a
Hospital where the Appellant was admitted and in whom she admittedly had full faith
clearly confirms that there was no medical negligence or deficiency in service in the
medical diagnosis, treatment and post operative care of the Appellant.
9. What constitutes medical negligence is now well established [Jacob Mathew v.
State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be
followed: (i) Whether the doctor in question possessed the medical skills expected of an
ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor
adopted the practice (of clinical observation diagnosis – including diagnostic tests and
treatment) in the case that would be adopted by such a doctor of ordinary skill in accord
with (at least) one of the responsible bodies of opinion of professional practitioners in
the field and (iii) whether the standards of skills/knowledge expected of the doctor,
according to the said body of medical opinion, were of the time when the events leading
to the allegation of medical negligence occurred and not of the time when the dispute
was being adjudicated.
10. In the instant case, there is adequate evidence as discussed in the foregoing
paras to conclude that on all these counts the Respondent, who was a well-qualified
doctor, used his best professional judgment and the required medical skills to diagnose
the Appellant’s illness and thereafter conduct the required surgery and also take due
post-operative care, including referring her to a higher medical institution when it was
considered necessary. We, therefore, agree with the order of the State Commission
that there was no medical negligence in this case and uphold the same.
11. The present first appeal having no merits is, accordingly, dismissed. No costs.
Sd/-
(ASHOK BHAN, J.)
PRESIDENT
Sd/-
(VINEETA RAI)
MEMBER Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3176 OF 2012(From the order dated 23.08.2011 in Appeal No. 5008 of 2010 of the Karnataka State
Consumer Disputes Redressal Commission, Bangalore)
Mallikarjun S/o Jagdevappa Durga R/o Harsur Village, Gulbarga Taluk & District Karnataka State.
… Petitioner/Complainant
Versus 1. The Oriental Insurance Co. Ltd. By its Divisional Manager Opp Mini Vidhana Soudha Main Road, Gulbarga Karnataka State Herein represented by Regional Office, 44/45, Leo Shopping Complex, Residency Road, Bangalore – 560025.
… Respondents/OP-1
2. Mysore Sales International Ltd. III Floor, Asian Plaza Sardar Vallabha Bhai Patel Chowk Gulbarga, Karnataka State.
… Respondents/OP-2
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
For the Petitioner : Mr. N.K. Verma, Advocate
PRONOUNCED ON 30 th January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 23.08.2011 passed by the Karnataka State Consumer Disputes Redressal
Commission, Bangalore (in short, ‘the State Commission’) in Appeal No. 5008 of 2010 –
The Oriental Ins. Co. Ltd. Vs. Mallikarjun & Anr. by which while allowing appeal, order of
District Forum was set aside, and complaint was dismissed.
2. Brief facts of the case are that petitioner/complainant was registered owner of
Motor Cycle KA-32/R-8285 which was insured by OP-1/Respondent No. 1 and financed
by OP-2/Respondent no.2. Complainant parked his vehicle in parking place of office
premises on 6.9.2008 which was stolen by someone and he lodged report with the
police authorities on 9.9.2008 and intimated to Respondent/Insurance Company on
10.9.2008. As claim was not settled by Respondent no. 1, complaint was filed. OP
contested claim and OP-1 further submitted that complainant has not informed them
about commission of theft within 48 hours, hence, complaint is liable to be dismissed.
Learned District Forum after hearing both the parties allowed complaint and directed
OP-1/Respondent No.1 to pay a sum of Rs.35,000/- along with 9% p.a. interest,
Rs.5,000/- as compensation, Rs.2,000/- as litigation charges and further directed that
out of the said amount, Rs.17,000/- be paid to OP-2/Respondent No.2. Respondent
No. 1 filed appeal and learned State Commission vide impugned order allowed appeal
and dismissed complaint, hence, this revision petition was filed.
3. Heard Learned Counsel for the petitioner at admission stage and perused record.
4. Petitioner moved application for condonation of delay of 321 days and submitted
that copy of impugned order dated 23.8.2011 was received by him in the first week of
October, 2011 and petitioner sent papers to his Counsel in Delhi for filing revision
petition. It was further alleged that parcel of documents was missing in the office of
Counsel and petitioner was under the impression that revision petition has been filed
but on an inquiry in July, 2012 he came to know that petition had not been filed. Later
on, his documents were traced and petition was filed and prayed for condonation of 321
days delay in filing revision petition. As per office report, there is delay of 259 days in
filing revision petition.
5. Learned Counsel for the petitioner submitted that delay is bonafide as petitioner
had already sent papers to his Counsel, hence, delay may be condoned and petition
may be proceeded further.
6. As alleged in the application, petitioner received copy of order in the first week of
October 2011 and sent it to his Counsel in Delhi. He has not mentioned to whom these
papers were sent and when his papers were not traceable in the office of his
Counsel. He has also not mentioned when these papers were traced and in these
circumstances, there appears to be no explanation at all about delay of 259 days in
filing revision petition. He has not filed any affidavit of Counsel in whose office
petitioner’s papers were missing. On account of inordinate delay of 259 days without
any explanation application for condonation of delay deserves to be rejected and
consequently revision petition is also liable to be dismissed on the count of delay.
7. As far merits of the case are concerned, learned District Forum dismissed
complaint as complainant did not inform to OP/Respondent No. 1 within 48 hours of
theft and thus violated terms and conditions of insurance policy and learned State
Commission has not committed any error in allowing appeal and dismissing complaint
on account of delayed information to Insurance company.
8. Consequently, revision petition is dismissed at admission stage on the count of
delay as well as on merits with no order as to costs.
..……………Sd/-………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 186 OF 2013 (From the order dated 01.10.2012 in Appeal No.260 of 2012 of the State Consumer
Disputes Redressal Commission, UT, Chandigarh)
HDFC ERGO General Insurance Co. Ltd. Zonal Office N-22, 2nd Floor, Sector 18 NOIDA – 201301 (U.P.).
… Petitioner/OP
Versus
Rachhpal Singh S/o Sh. Gurcharan Singh House No.1156/1, Sector-44B, Chandigarh
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
For the Petitioner : Mr. K.L. Nandwani, Advocate
PRONOUNCED ON 30 th January , 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 1.10.2012 passed by the State Consumer Disputes Redressal Commission, UT,
Chandigarh (in short, ‘the State Commission’) in Appeal No. 260 of 2012 – HDFC
ERGO General Insurance Co. Ltd. & Anr. Vs. Rachhpal Singh by which while
dismissing appeal, upheld order of District Forum allowing complaint.
2. Brief facts of the case are that complainant/respondent got
Health Suraksha Policy from OP/petitioner for a period of one year commencing from
3.9.2009 to 2.9.2010. On 8.11.2009, complainant was admitted in Fortis Hospital for
treatment. Bye-pass surgery was done on 10.11.2009 and he was discharged on
17.11.2009 and he incurred expenses of Rs.2,29,492/- on the treatment. Complainant
lodged claim with OP which was repudiated by OP on the ground that complainant was
suffering from pre-existing disease. Complainant filed complaint alleging
deficiency. OP contested complaint before the District Forum and submitted that as
complainant was suffering from pre-existing disease, his operation and treatments were
not covered under the policy. Learned District Forum after hearing both the parties
allowed the complaint against which appeal filed by the petitioner was dismissed on the
count of 75 days delay in filing appeal as well as on merits.
3. Heard learned Counsel for the petitioner at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that learned State Commission has
committed error in dismissing appeal on the ground of delay of 75 days in filing appeal
and submitted that learned State Commission ought to have condoned delay in filing
appeal. It was further submitted that learned State Commission committed error in
dismissing appeal on merits also, hence, petition be admitted.
5. It is admitted fact that petitioner preferred appeal before the learned State
Commission after 75 days. Learned State Commission has dealt in length application
for condonationof delay and has rightly disallowed application for condonation of delay
after citing many judgments of Hon’ble Supreme Court and other High
Courts. Impugned order reveals that appeal was prepared and sent to petitioner on
2.5.2012, but appeal was filed on 30.7.2012 and apparently there was no plausible
explanation regarding condonation of delay from 2.5.2012 to 30.7.2012. Hon’ble Apex
Court in (2012) 3 SCC 563 – Post Master General & Ors. Vs. Living Media India Ltd.
and Anr. has not condoned delay in filing appeal even by Government department and
further observed that condonation of delay is an exception and should not be used as
an anticipated benefit for the Government departments. Learned State Commission also
relied on 2012 (2) CPC 3 (SC) – Ansul Aggarwal Vs. New Okhla Industrial Development
Authority in which it was 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”.
Thus, it becomes clear that unless there is reasonable explanation, delay cannot be
condoned. Learned Counsel for the petitioner placed reliance on 2009 (II) SCALE –
State of J&K & Ors. Vs. Mohmad Mazbool Sofi & Ors. in which the matter was
remanded back by Hon’ble Apex Court to the High Court for fresh consideration as High
Court refused to condone delay of 97 days. This citation does not help to the petitioner
in the light of latest judgments of Apex Court and particularly when no reasonable
explanation has been given forcondonation of delay of 75 days.
6. Learned State Commission also dismissed appeal on merits and I do not find any
infirmity in the order passed by the learned State Commission. Petitioner was duty
bound to supply the terms and conditions of the policy to the complainant immediately
after receipt of premium and as petitioner failed to supply terms and conditions of the
policy to the complainant immediately, claim could not have been repudiated by
petitioner/OP on the basis of terms and conditions of policy. I do not find any illegality or
material irregularity or jurisdictional error in the matter and revision petition is liable to be
dismissed at admission stage.
7. Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to cost.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
MEMBERK
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 507 OF 2012 (From the order dated 28.07.2011 in Appeal No.555/09 of the Gujarat State Consumer
Disputes Redressal Commission, Ahmedabad)
M/s. Karuna Sagar Tractor Sales & Service Residing at Near Chikhdra Chokdi, At & PO Anand, Distt. Anand, Gujarat State
… Petitioner/OP-1
Versus Jagrut Nagrik’s Managing Trusty P.V. Murjani, 3rd Fl., Amin Building, Genigate, Vadodara, Gujarat.
… Respondent-1/Complinant-1
2. Legal Heirs of Laljibhai Punjabhai Parmar: Vasantbhai alias Vishnubhai parmar Vasantbhai Laljibhai Parmar Residing at 3rd Pole, Vadtal, Distt. Nadiad, Gujarat
… Res.-2/Complainant-2
3. MRF Ltd. Opp. Fertilizer, Near Main gate, Chhani, Vadodara, Gujarat.
… Respondent.-3/Complainant-3
4. Senior Sales Executive MRF Ltd. Gr. Fl., “Mahakant” Near V.S. Hospital Ellis bridge, Ahmedabad, Gujarat.
… Respondent.-4/Complainant-4
5. Punjab Tractor Ltd. Sahibzada Ajitsinh Nagar Phase IV, Distt. Ropar Near Chandigarh Punjab.
… Respondent.-5/Complainant-2
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
For the Petitioner : Mrs. Girija Wadhwa, Advocate
PRONOUNCED ON 31 st January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 28.7.2011 passed by the Gujarat State Consumer
Disputes Redressal Commission, Ahmedabad (in short, ‘the State Commission’) in
Appeal No. 555/09 by which while allowing appeal partly, filed by the petitioner, order of
District Forum was modified and amount awarded by District Forum was reduced.
2. Complainants/Respondent Nos. 1 & 2 filed complaint against OP/petitioner and
Respondent Nos. 3,4 & 5 and District Forum allowed complaint and ordered that
Complainant No. 2 is entitled to receive Rs.1,07,975/- from OP Nos. 1 & 2 along with
interest @ 9% p.a. and Rs.10,000/- for mental agony and Rs.3,000/- as cost. This order
was challenged by appellants/petitioner and Respondent No. 5 before the State
Commission and learned State Commission vide impugned order dated 28.7.2011
partly allowed appeal and modified order passed by District forum and held that OPs
are liable to pay Rs.90,000/- with 9% interest from the date of impugned order till
realization against which this revision petition has been filed.
3. Hard learned Counsel for the petitioner at admission stage and perused record.
4. Revision Petition has been filed with delay. Petitioner moved application
for condonation of delay and submitted that petitioner is sick since more than 5 months
because of heart trouble and operated, hence, delay of 5 months and 25 days in filing
appeal may be condoned. As per office report, there is delay of 91 days in filing this
revision petition. Petitioner has not placed any document pertaining to his heart
operation. Petitioner has annexed only prescription dated 27.9.2011 and further check
up on 2.11.2011, 1.12.2011, 2.1.2012, 12.1.2012 and 17.1.2012 on which dates his
blood pressure was checked and some medicines were prescribed. He has also
annexed ECG taken on 27.9.2011. Thus, it becomes clear that petitioner was checked
by Doctor from 2.1.2012 to 17.1.2012 after a gap of one month every time. Merely
because petitioner was checked up by physician after a month every time, it cannot be
inferred that petitioner was not in a position to file revision petition. No reasonable
explanation has been given for condonation of delay of 91 days.
5. Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General & Ors. Vs. Living
Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government
department and further observed that condonation of delay is an exception and should
not be used as an anticipated benefit for the Government departments. Learned State
Commission also relied on 2012 (2) CPC 3 (SC) – Ansul Aggarwal Vs.
New Okhla Industrial Development Authority in which it was 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”.
Thus, it becomes clear that unless there is reasonable explanation, delay cannot be
condoned. Learned Counsel for the petitioner placed reliance on 2009 (II) SCALE –
State of J&K & Ors. Vs. Mohmad Mazbool Sofi & Ors. in which the matter was
remanded back by Hon’ble Apex Court to the High Court for fresh consideration as High
Court refused to condone delay of 97 days. This citation does not help to the petitioner
in the light of latest judgments of Apex Court and particularly when no reasonable
explanation has been given forcondonation of delay of 75 days.
6. As there is no satisfactory explanation for condonation of 91 days delay in filing
revision petition, and order of District Forum allowing complaint has been upheld by
learned State Commission except modifying amount to some extent, revision petition is
liable to be dismissed on the count of delay alone.
7. Consequently, revision petition filed by petitioner is dismissed on the count of
delay at admission stage with no order as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4473 OF 2012(From the order dated 4.10.2010 in Appeal No.540/08 of the State Consumer Disputes
Redressal Commission, Delhi)
Smt. Sapna Jain W/o Sh. Naveen Jain M/s. Paras Holidays Pvt. Ltd. 321-322, Gold Plaza Building Gurudwara Road, Karol Bagh, New Delhi – 110005
… Petitioner/OP
Versus Jai Pal Singh S/o Sh. Ganga R/o House No.29, Sector 14, Sonepat, Tehsil and Distt. Sonipat, Through its Power of Attorney Sh. Pawan Kumar S/o Sh. Rattan Lal, R/o House No.1134, Sector-14, Sonepat, Haryana.
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
For the Petitioner : Mr. Baldev Singh, Advocate
PRONOUNCED ON 31 st January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the impugned orders
dated 4.10.2010 and 20.3.2012 passed by the State Consumer Disputes Redressal
Commission, Delhi (in short, ‘the State Commission’) in Appeal No. 540 of 2008 – Smt.
Sapna Jain vs. Sanjay Goyal & Ors. by which appeal filed by the petitioner was
dismissed in default and restoration application was also dismissed.
2. Petitioner/appellant filed appeal before the State Commission challenging order of
District Forum. Petitioner’s appeal was dismissed in default in presence of Counsel for
the respondent by learned State Commission vide impugned order dated
4.10.2010. Later on, petitioner filed restoration application and that too was also
dismissed by impugned order dated 20.3.2012 and both these orders have been
challenged by the petitioner in this revision petition.
3. Petitioner also moved application for condonation of delay and submitted that
order dated 20.3.2012 was received by petitioner on 15.4.2012 and he approached Shri
Ravinder Singh Chaudhary, Advocate who apprised him that revision can be filed within
180 days and he assured to file revision petition and obtained petitioner’s signatures on
papers and affidavits. It was further alleged that petitioner got notice of execution on
6.11.2012 and then rushed to the office of her Advocate Shri R.S. Chaudhary and from
there she came to know that no revision was filed. Then petitioner approached her
previous Counsel and then this revision petition was filed on 26.11.2012, hence, delay
of 125 days in filing revision petition may be condoned.
4. Heard learned Counsel for the petitioner at admission stage and perused record.
5. As far order dated 26.11.2012 is concerned, this order is in accordance with law
as the State Commission had no power of review its earlier order of dismissal in
default. Learned Counsel for the petitioner could not show any law on account of which
order dated 20.3.2012 can be assailed. As this order is in accordance with law, the
revision petition is liable to be dismissed.
6. Order dismissing appeal in default was passed on 4.10.2010 and this order has
been challenged by this revision petition on 26.11.2012, thus there is delay of 687 days
in filing revision petition. Learned Counsel for the petitioner submitted that time taken in
filing restoration application and its disposal has to be condoned as at the time of filing
restoration application, State Commission used to restore appeals dismissed in default
and later on as per Apex Court’s judgment, State Commission had no power to review
its order, hence, restoration application was rejected.
7. For the sake of argument if this period is condoned even then there is delay of
125 days in filing this revision petition from the date of dismissal of restoration
application. Petitioner has submitted in his application that he received copy of order on
15.4.2012 and approached Shri R.S. Chaudhary, Advocate who apprised him that
period of limitation for filing revision petition is 180 days and he would be filing revision
petition. It appears that petitioner was very careless and never enquired from her
Counsel whether the revision petition has been filed or not, and only after receiving
notice of execution on 6.11.2012, she enquired from her Counsel and came to know
that revision petition has not been filed. On the very day, Mr. R.S. Chaudhary,
Advocate returned papers to the petitioner. When petitioner contacted her previous
Counsel on the same day even then revision petition was filed after 20 days and no
reasonable explanation has been given for condonation of 20 days delay. Learned
Counsel for the petitioner also could not show whether any action was taken against
Shri R.S. Chaudhary, Advocate for not filing revision petition in time and in such
circumstances, merely on the basis of affidavit of petitioner it cannot be presumed that
she approached Shri R.S. Chaudhary, Advocate for filing revision petition who did not
file revision petition in time. As the revision petition has been filed after a period of 125
days from the date of restoration order dated 20.3.2012 and after 687 days from order
dated 4.10.2010 dismissing appeal in default and there is no reasonable explanation for
condonation of delay, the revision petition is liable to be dismissed on the count of delay
alone at admission stage.
8. Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to cost.
..……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3989 OF 2011(From the order dated 28.08.2011 in Appeal No.2010/827 of the State Consumer
Disputes Redressal Commission, Delhi)
G.M. Satyapriya E-209, Bathia Apartment 43, IP Extension, Patparganj, Delhi – 110092
… Petitioner/Complainant
VersusBank of India Through The Branch Manager, Patparganj, Delhi – 110092
… Respondent/OP
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Petitioner : Mr. G.M.V. Ramana, Advocate
For the Respondent : Mr. Shweta Kapoor, Advocate
PRONOUNCED ON 31 st January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 28.08.2011 passed by the State Consumer Disputes Redressal Commission,
Delhi (in short, ‘the State Commission’) in Appeal No. 2010/827 – G.M. Satyapriya vs.
Bank of India by which while dismissing appeal and confirming order of District Forum
imposed Rs.5,000/- as cost.
2. Brief facts of the case are that complainant/petitioner withdrew Rs.41,000/- from
OP/Respondent Bank on 24.1.2009 from her saving bank account. The amount
withdrawn included 82 currency notes of Rs.500/- denomination. Soon after withdrawal,
Rs.17,000/- were robbed by three miscreants at the counter of the bank from the
complainant and she reported incident to Hall In charge and the Branch Manager and
also lodged FIR. As she was robbed in bank premises, it was alleged that bank was
responsible for its negligence and filed complaint. OP/respondent contested claim and
submitted that some third person in the Hall pointed out to the complainant that one of
the notes in her hand was fake and in that process first took the note from the
complainant’s hand and then handed back the currency notes to her and left bank hall.
Complainant did not raise any alarm about this incident and she was also shown CCTV
recording from which it appeared that the main miscreant was accompanied by two
persons. Complainant identified the miscreant who had taken currency notes from
her. OP further submitted that there were 8 CCTV cameras installed in the banking hall
covering all important functions and there was also a security guard present on the main
gate at the time of occurrence and denied negligence on its part and prayed for
dismissal of the complaint. Learned District Forum after hearing both the parties
dismissed complaint on the ground that police investigation was still pending and matter
requires evidence as witnesses have to be examined and complainant was advised to
approach appropriate Court of law. Against this order, appeal filed by the complainant
was dismissed by impugned order, hence, revision petition was filed.
3. Hard learned Counsel for the parties and perused record.
4. It is admitted fact that complainant received money from the bank counter and
during the curse of counting Rs.17,000/- were robbed from her by miscreants. CCTV
cameras were also in working condition in the hall from where money was snatched and
security guard was also on the gate. In such circumstances, no negligence can be
attributed on the part of OP/respondent. Learned State Commission while dealing this
aspect held as under:“10. From the side of the Bank it has been averred in their
affidavit that there are CCTV camera fixed in the Branch of the
Bank at appropriate places and are functional. It has also to be
noticed that during the course of police investigation in the replay
of CCTV camera the picture portrayed the person who took the
notes from the complainant was available and the complainant
identified him and his accomplices. That will show that there was
proper affixation of CCTV cameras in the bank and there was no
negligence in respect of this matter on the part of the Bank. There
was also security guard available at the door but the security
guard did not come into picture because the lady did not raise an
uproar and did not shout. It appears that it was only after the
tricksters had left the bank that the lady awoke to the situation.
The lady is herself responsible for the loss because she handed
over the notes to an unknown person and that she has therefore
been herself negligence and is responsible for the consequences”.
Thus, it becomes clear that there was neither any deficiency nor any negligence on the
part of respondent and learned State Commission has not committed any error in
dismissing appeal, though, on other counts.
5. Learned Counsel for the petitioner has placed reliance on (2004) 6 SCC 113 –
Sumatidevi M. Dhanwatay Vs. Union of India in which compensation awarded by State
Commission was upheld by Hon’ble Apex Court as complainant was travelling in
1st class air-conditioned berth and a violent crowd entered the compartment, broke the
doors, windows, etc., and assaulted the complainant and other persons and took away
ornaments and other valuables of the complainant. This judgment does not help to the
petitioner in the case in hand because in aforesaid case, complainant was travelling in
air-conditioned coach after purchasing ticket and it was obligatory on the part of railway
authorities to provide safety to the passengers till destination, whereas in the case in
hand it was not obligatory on the part of bank authorities to provide extra-ordinary safety
to bank customers as bank authorities had already installed 8 CCTV cameras in the
hall and had security guard on the gate. Learned Counsel for the petitioner also
placed reliance on the judgment of this Commission in R.P. No.1690 of 2000 – Union of
India (UOI) and Ors. Vs. Sanjiv Dilsukhrai Dave and Anr. in which baggage was stolen
of the passenger from sleeper coach and awarded compensation was upheld by the
National Commission. This judgment also does not help to the petitioner in the
aforesaid case. Negligence on the part of railway administration was proved and
negligence was observed as under:
“10. As regards the issue of negligence of the railway administration, a list of duties prescribed by railway administration "TTE for Sleeper Coaches" is brought on record. Of these, duties
prescribed at Sl. No. 4, 14, 16 and 17 are very relevant. These read as follows:
"4. He shall check the tickets of the passengers in the coach, guide them to their berth/seats and prevent unauthorised persons from the coach. He shall in particular ensure that persons holding platform tickets, who came to see off or receive passengers do not enter the coach.
14. He shall ensure that the doors of the coach are kept latched when the train is on the move and open them up for passengers as and when required.
16. He shall ensure that the end doors of vestibuled trains are kept locked between 22.00 and 6.00 hrs. to prevent outsiders entering the coach.
17. He shall remain vigilant particularly during night time and ensure that intruders, beggars, hawkers and unauthorised persons do not enter the coach".
11. The above duties clearly show that there is a responsibility cast on the TTE attached to the second class sleeper coach to be very vigilant about anyone other than the reserved ticket holders entering the compartment, to such an extent that he is required to prevent even a relation of the passenger holding a platform ticket who comes to see off a passenger from entering a coach. The TTE is particularly required to take special care in the night as brought out in Sl. No. 16 and 17. Sl. No. 14 clearly casts a responsibility on him to ensure that the doors of the coach are kept latched when the train is on the move. In the case before us, it is the contention of the Respondent that the intruder came when the train was on the move in the night and this has not been seriously challenged. Admittedly, the TTE has failed in the performance of his duties which lead to the incident of theft. The arguments of the Petitioner that the rules nowhere provide that there should be a TTE for each sleeper coach cannot be accepted because, then, the impressive list of duties which would remain only on the paper, since they cannot be effectively enforced”.
6. In the case in hand there appears to be neither any negligence nor any deficiency
on the part of respondent and in such circumstances, learned State Commission has
not committed any error in affirming judgment of District Forum dismissing complaint.
Apparently, there is neither any jurisdictional error nor any illegality or material
irregularity in the impugned order and in such circumstances, revision petition is liable to
be dismissed.
7. Learned State Commission while dismissing appeal and affirming order of District
Forum imposed Rs.5,000/- as cost to be payable to respondent bank. Learned State
Commission did not agree with the finding of District Forum and dismissed appeal on
other counts. In such circumstances, it was not warranted to impose cost on the
petitioner and in such circumstances, order imposing cost is to be set aside.
8. Consequently, revision petition is partly allowed and order imposing cost of
Rs.5,000/- by impugned order is set aside and rest of the impugned order is affirmed
with no order as costs
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 369 OF 2009
(Against the order dated 11.08.2009 in RBT No. 15/2008 in Complaint No. 9 of 1998 of
the State Consumer Disputes Redressal Commission, U.T. Chandigarh)
Shri Anand Parkash, Husband of Smt. Usha Rani (Deceased), Resident of House No. 138, Block 18, Mohalla Dogran, Hisar … Appellant
Versus
1. Dr. Satya Sawant, Sawant Clinic, 6-7, Churamani Shopping Complex, Hisar
2. Churamani Vishnu Devi Maternity Hospital, Through Dr. Satya Sawant, Medical Superintendent, Hisar
… Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant : Ms. Sangeeta Sondhi, Advocate
For Respondents : Mr. Prasenjit Keswani, Advocate for R1
Mr. Sanchar Anand, Advocate for R-2
Pronounced on 31 st January, 2013
ORDER
PER VINEETA RAI, MEMBER
1. This First Appeal has been filed by Anand Parkash, Appellant herein and original
complainant before the State Consumer Disputes Redressal Commission, U.T.
Chandigarh (hereinafter referred to as the State Commission) being aggrieved by the
order of that Commission which had dismissed his complaint of medical negligence
against Dr. Satya Sawant and Anr., Respondents No. 1 and 2 herein.
2. In his complaint before the State Commission, Appellant had stated that his late
wife Smt. Usha Rani (hereinafter referred to as the Patient) on conceiving her second
child in March, 1996 was under the medical supervision and care of Respondent No.1,
who apart from working in Respondent No.2-Hospital was also doing private
practice. On 22.12.1996, the patient approached Respondent No.1 with mild labour
pains and was admitted on advice of Respondent No.1 in Respondent No.2-Hospital,
where she was put on a drip to induce labour for a normal delivery. Respondent No.1
was fully aware that patient’s first child had been delivered through cesarean section
and that she was also suffering from anaemia with a very low haemoglobin count but no
arrangements for blood transfusion in anticipation of any emergency was made. She
was kept in the labour room, where after 40 hours of labour she delivered a male
child. The patient developed complications immediately after delivery and blood
transfusion became necessary. Appellant and his family donated seven units of blood
on the spot, which was infused without any cross checking. Soon after, the patient went
into an irreversible shock and was declared dead at 5.40 P.M. Shocked and aggrieved
by her untimely and avoidable death, Appellant lodged an FIR at the Police Station and
also a complaint with the Commissioner, Hisar Division, after which an enquiry was
conducted by doctors from the Medical College & Hospital, Rohtak but nothing came
out of it because of Respondent No.1’s political clout. Appellant, therefore, filed a
complaint before the State Commission alleging medical negligence and deficiency in
service against Respondents, which led to the tragic and untimely death of his wife, who
was gainfully employed. It was requested that the Respondents be jointly and severally
directed to pay compensation amounting to Rs.10,65,512/-, which included loss for
future earnings at Rs.6500/- per month, medical and other expenses as also litigation
costs.
3. Respondents on being served filed written submissions, in which they denied that
there was any medical negligence or deficiency in service on their part. Respondent
No.1 while admitting that the basic cause leading to the death of the patient was Post
Partum Haemorrhage (PPH) contended that following Patient’s death independent
enquiries were conducted by a Medical Board of PGIMER, Chandigarh, which
confirmed that there was no negligence or deficiency in service in the medical treatment
and care to the Patient. Further, an enquiry conducted by another Board of experts
from Medical College & Hospital, Rohtak also concluded on the basis of evidence
before it, including the medical records, that there was no medical negligence in this
case. It was specifically concluded that at the time of her delivery, the Patient was not
anaemic as contended by the Appellant and it was only after careful assessment of her
condition that she was cleared for a normal delivery. The fact that she had previously
undergone a cesarean section by itself was not contraindicated in this case since the
first cesarean section was necessitated because of pre-oclasptia and not because of
any cephalo pelvic disproportion. The process of her labour was carefully monitored
and the labour period in fact was less than 24 hours during which period all care and
precautions were taken. The Appellant was also asked to arrange blood well in
advance. After the PPH occurred, standard emergency treatment was given, including
seven units of blood, but unfortunately patient went into irreversible shock and she
could not be saved. It was also contended that the police had investigated the matter
and found no medical negligence on the part of Respondents. Respondent No.1 also
stated that she had not taken any monetary consideration from the Patient. She treated
her not in her capacity as a private practitioner but in the Respondent-Hospital which is
run as a Trust. Under the circumstances, the case is not legally maintainable under the
Consumer Protection Act, 1986.
4. The Haryana State Consumer Disputes Redressal Commission, after hearing the
parties and on the basis of evidence produced before it, including the reports of the
Medical Boards of PGIMER, Chandigarh and Medical College & Hospital, Rohtak,
dismissed the complaint, following which the Appellant filed an appeal before the
National Commission, who vide its order dated 28.04.2008 remanded the complaint to
the U.T. Chandigarh State Consumer Disputes Redressal Commission on the grounds
that despite a specific request by the Appellant seeking permission of the State
Commission to appoint any of the two doctors, namely, Dr. Vijay Luxmi Lal or Dr. G.I.
Dhall, to give their expert opinion, this application was not disposed of by the State
Commission either by accepting or rejecting it and it, thus, remained pending. The
National Commission opined that in the interest of justice, the matter be reconsidered
by the State Commission in detail and the Appellant may be given an opportunity to
lead the evidence of any of the two doctors as sought by him in his application dated
28.01.1999 before the State Commission. On remand, the State Commission permitted
Appellant’s request to replace the earlier two experts named by her who were not in a
position to give expert evidence by either of two other experts, namely, Dr. Vijay Kumar
Kadam and Dr. M.C. Gupta. Consequently, Dr. M.C. Gupta appeared before the State
Commission and Respondents were given an opportunity to cross examine him. The
second doctor (Dr. Vijay Kumar Kadam), however, sent his views in writing and did not
appear in person. The State Commission after hearing the parties and considering the
entire evidence, including the evidence filed before the Haryana State Consumer
Disputes Redressal Commission, concluded that there was no medical negligence in
the treatment of the Patient. The relevant observations of the State Commission are
reproduced:
“25. In view of the above findings by the two Medical Boards constituted by the specialists in the field who had gone into the record of the patient as well as her treatment and who had given a clean chit to the doctors attending upon the deceased, which the complainant has not been able to rebut with any cogent medical evidence/literature, we are of the opinion that in this case, no negligence could be attributed to the doctor for waiting for normal delivery to take place or in the management of PPH. In this context, it is also relevant to mention that Dr. M.C. Gupta, who himself is not a specialist in Gynaecology, has in his evidence not been able to pinpoint or indicate as to where the Medical Boards had gone wrong or what was wrong with the conclusion they had drawn. Consequent to
the order of Hon’ble National Commission, full opportunity had been afforded to the complainant to assail the opinion of the Boards but as stated earlier, in our opinion, the complainant has not been successful in doing the same. It is unfortunate that the wife of the complainant died after her delivery but it is on record that the death was due to uncontrollable Post Partum Haemorrage, which the doctors tried their best to manage but were unable to do so and failed despite their best efforts.
26. In the circumstances narrated above, we are of the clear opinion that no medical negligence can be attributed to the treating doctors or the hospital and consequently, the complaint is dismissed. However, under the peculiar circumstances of the case, the parties are left to bear their own costs of litigation.”
Hence, the present first appeal.
5. Learned counsel for both parties made detailed oral submissions.
6. Learned counsel for the Appellant contended that the State Commission erred in
concluding that there was no medical negligence in the treatment of the Patient despite
clear cut evidence that due care was not taken in her treatment and by disregarding the
evidence of two medical experts, Dr. M.C. Gupta as also Dr. Vijay Kumar Kadam. It
was specifically contended that the Patient being anaemic with a Haemoglobin count of
7.8 gms. and having undergone an earliercaesarian section was made to undergo
prolonged and induced labor, which was responsible for both the PPH and her eventual
death. The situation was further aggravated by the fact that there was also a doubt
whether the blood that was transfused was cross-checked with the Patient’s blood
group since no arrangement was made for blood by Respondents in anticipation of any
emergency. It was specifically contended, as observed by Dr. M.C. Gupta, that the
Patient had six high risk factors, apart from anaemia and an earlier caesarian section
(which makes the wall of the uterus weak) and these and other factors including obesity,
small stature as also hypertension makes prolonged and induced labour very risky and
is clearly contraindicated. It is safer to perform a caesarian section in such
cases. Counsel for the Appellant stated that the two Medical Boards of PGIMER,
Chandigarh and Medical College & Hospital, Rohtak gave biased findings of there being
no medical negligence and this had also been reported in the local press, which was
filed in evidence before the State Commission. It was contended that the State
Commission erred in not relying on the medical evidence of Dr. M.C. Gupta merely
because he was not a Gynaecologist whereas he had a Post Graduate Degree in
Medicine as also the statement/affidavit of Dr. Vijay Kumar Kadam, a well-known
Gynaecologist of Delhi, who had opined that there was medical mismanagement of the
case.
7. Counsel for the Respondents on the other hand challenged the above allegations
and stated that the contention of the Patient having high risk factors was not factually
correct. It was specifically pointed out that the Haemoglobin count which was 7.8 gms.
during the Patient’s earlier visits in July and September, 1996 increased to over 10 gms.
at the time of admission (as recorded in her bed-chart) because she had been
prescribed iron tablets and other drugs to increase the Haemoglobin count. Further, her
blood pressure during these visits as also at the time of her admission and in labour
room was within normal limits. It was also stated that the actual period of her labour
was less than 24 hours and not 40 hours. The enquiries conducted by two highly
reputed medical institutions into this case also clearly confirmed that there was no
medical negligence or deficiency in service in the treatment of the Patient. Appellant’s
contention that all the enquiry reports were biased is based on pure conjecture and is
prima facie unreasonable.
8. We have considered the submissions made by both learned Counsel as also the
evidence on record, including the medical reports and opinions of the Medical Boards
and Medical Experts. Patient’s admission in Respondent’s nursing home and her death
from PPH following a normal delivery are admitted facts. It is further not in dispute that
following her death and to ascertain if it was because of any negligence or deficiency in
her treatment, as alleged by her husband, detailed enquiries were conducted, including
by two Medical Boards as also by a Chief Medical Officer. All these enquiries
concluded that there was no medical negligence or deficiency in service in the case and
the PPH was an unfortunate and unforeseen incident, for which also emergency
treatment was given. This was sought to be challenged by the Appellant on the ground
that Patient being high risk case should not have been permitted to undergo prolonged
labour and an immediate cesarean section would have saved her life. From the
evidence on record, we are unable to conclude that the Patient was a high risk
case. Admittedly her Haemoglobin count was low, three months prior to her delivery as
per the medical records but at the time of her admission (as per the bed chart) because
of medication, including iron supplementation it had increased to 10 gms., which is not
indicative of anaemia. There has been no evidence to controvert that there was any
error in the bed chart prepared at the time of her admission. Further, Appellant’s
contention that the Patient had hypertension is also not borne out by the medical
records, which clearly indicated that it was very much within normal limits. It is also a
fact that though the first delivery was conducted by cesarean section, this was
undertaken not because of any cephalo pelvic disproportion but because of her
temporary medical condition (pre-oclasptia) at that time, which necessitated a cesarean
section. It is also on record that the progression of the Patient’s labour and delivery was
carefully monitored and even when the PPH occurred standard emergency treatment
was given, including blood transfusion. These were clear findings of the Medical
Boards consisting of highly eminent doctors from PGIMER, Chandigarh, a premier
referral institution of excellence, and also from the Medical College & Hospital,
Rohtak. Appellant’s contention that these reports were biased appears to be both
unreasonable and not acceptable since there can be no plausible reason for the
medical boards of PGIMER, Chandigarh and Medical College & Hospital, Rohtak to be
biased in this case. Also no concrete evidence has been produced by the Appellant in
support of these contentions. The Appellant was given a second opportunity to produce
evidence of medical expert in support of his contention alleging medical
negligence. We agree with the State Commission that the evidence of the medical
expert Dr. M.C. Gupta, who had neither examined the Patient nor was a Gynaecologist,
has little evidentiary value in this case. In fact, this witness had admitted during his
cross-examination that his evidence was based on advice obtained by him from a
Gynaecologist. Further, neither he nor other medical expert Dr. Vijay Kumar Kadam,
who had filed his written evidence, have been able to point out any deficiency,
shortcoming or bias in the reports of the two Medical Boards. Dr. Gupta has made
some vague allegations that the report does not mention the date when it was signed by
experts and that it does not indicate what evidence they had actually examined. These
are trivial observations since they do not in any way contradict the actual findings of the
two Medical Boards.
9. Keeping in view these facts, we are unable to conclude that the Appellant, on
whom there was onus to do so, has been able to prove that there was any medical
negligence in the treatment of his late wife by the Respondents. On the contrary,
keeping in view the findings of the Medical Boards from two major institutions PGIMER,
Chandigarh and Medical College & Hospital, Rohtak as also the documentary evidence
pertaining to the medical records of the Patient, it is clear that there was no negligence
or deficiency in the medical treatment and care of the Patient. We, therefore, uphold
the order of the State Commission in toto. The first appeal having no merit is hereby
dismissed. No costs.
Sd/-
(ASHOK BHAN, J.)
PRESIDENT
Sd/-
(VINEETA RAI)
MEMBERSB/Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 494 OF 2007
(Against the order dated 15.02.2007 in O.P. No.9/1993 of the Tamil Nadu State
Consumer Disputes Redressal Commission, Chennai)
Javeed S/o Ameer No. 7, C. Kaladipet Market Lane Tiruvottiyur Chennai-19 Tamil Nadu … Appellant
Versus
Manager/Officer-in-charge C.S.I. Rainy Hospital G.A. Road, Chennai-600021 TamilNadu
… Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant : Mr. CKR Lenin Sekar, Advocate
For Respondent : Mr. Parivesh Singh, Advocate
Pronounced on 31 st January, 2013
ORDER
PER VINEETA RAI, MEMBER
1. This first appeal has been filed by Javeed, Appellant herein and original
complainant before the Tamil Nadu State Consumer Disputes Redressal Commission,
Chennai (hereinafter referred to as the State Commission) being aggrieved by the order
of that Commission which had dismissed his complaint of medical negligence against
Manager/Officer-in-charge, C.S.I. Rainy Hospital, Respondent herein.
FACTS :
2. Appellant, who was around 6 years old at the time of filing the complaint before
the State Commission, was admitted to Respondent hospital with complaint of
temporary Inguinal Hernia (R) and after diagnostic tests, confirming that he was
suffering from Inguinal Hernia (R), he was operated on 12.08.1989. However, instead
of operating on the Right side, Appellant was operated for Left Inguinal Hernia and
Hernitomy. This mistake was noted by the main doctor of the hospital and after his
discharge on 26.08.1989 he was advised to come back in September,
1989. Appellant’s father, therefore, got him back on 07.09.1989, when he was informed
that an operation is required on the Right Inguinal Herniatomy. His father refused to get
another surgery done and he was taken to Maharaja Hospital, Chennai, where after a
medical check-up he was informed by Dr. A.P. Subramaniam that Respondent had
made a mistake in conducting the first surgery on the Left Inguinal Hernia. Being
aggrieved by the medical negligence on the part of Respondent, Appellant filed a
complaint before the State Commission and requested that Respondent be directed to
pay him Rs.1,50,000/- as compensation.
3. Respondent on being served denied these allegations and stated that Hernia in
children are often bilateral, as is in the instant case. Since it is well established that
surgery cannot be done on both sides at the same time, Appellant’s parents were
informed that both sides would have to be operated through two separate surgeries,
which they had agreed. At the operation theater, the doctor conducting the surgery
noted that the left side scrotum was bulging more and, therefore, it was necessary to
conduct an operation on the Left side first, about which the Appellant’s mother, who was
waiting outside the operation theater, was duly informed. The surgery was successfully
conducted and after the wound was sutured on 26.08.1989 Appellant was discharged
and was asked to come back for the second surgery in September, 1989 during school
vacations. In the meantime, Appellant was administered medicine and injection for the
second surgery. However, when the Appellant was readmitted for repair of the Right
side Herniatomy, his father for reasons best known to him got him discharged without
waiting for the surgery. It was specifically denied that the Appellant’s parents were
informed that surgery was required only on the Right side. Thus, there was no medical
negligence on the part of the Respondent.
4. The State Commission after hearing the parties dismissed the complaint filed by
the Appellant against the Respondent by stating as follows:“The fact remained that the mother of the complainant was aware of the operation of the left side hernia as she had given consent for herniatomy which meant operation of both sides as explained by RW-2. Further, right through the treatment and surgery of the complainant, only the mother of the complainant was present and only on 08.09.1989, the father had as suggested in the cross-examination, had compulsorily asked for the discharge of the complainant. This was with an intention to extort money from the opposite party. He had projected a false stand as if he was present throughout from the beginning till the complainant was discharged. RW-2 had also in her evidence clearly stated that in children, the swelling would appear and dis-appear and that was the reason why while operating a child for hernia, the consent was got only for herniatomy which related to both sides of the scrotum. The opposite party had taken due care in the discharge of their duties and there was no negligence whatsoever in operating the complainant. As a competent surgeon, RW-2 had taken the necessary care and caution so that the child’s life could be saved. The complainant’s father had also published the case that he had consulted one Dr.A.P. Subramaniam. But, no evidence was produced to show that any other doctor had been consulted. There was also no proof produced by the complainant with regard to the expenses incurred.”
The State Commission also cited medical literature entitled “The Surgical Clinics of
North America” [Vol. 65/Number 5, October 1985], confirming that Hernias in children
are often bilateral but both may not always be diagnosed during a medical examination
and further that Inguinal Herniatomy also has a silent side which may not always be
apparent on sight.
5. Being aggrieved by the dismissal of his complaint Appellant has filed the present
first appeal.
6. Learned Counsel for both parties made oral submissions.
7. Learned Counsel for the Appellant stated that the State Commission erred in not
taking cognizance of the medical records pertaining to the Appellant’s case history in
Respondent hospital, which was in evidence before it. As per these records, a clear
diagnosis of obstructed Inguinal Herniatomy on the Right side was made which was
also recorded. This diagnosis was again confirmed in the detailed case history
recorded on 13.08.1989. On 25.08.1989 when the Appellant was admitted for surgery,
it was again clearly noted that he was “Posted for (R) Herniatomy on
25.08.1989”. However, it was only on 26.08.1989 i.e. just prior to the surgery that it was
noted in the case sheet that Appellant had Left Inguinal Herniatomy, which required to
be operated. Counsel for the Appellant stated that Respondent’s contention that the
Herniatomy was bilateral and that before the surgery the Appellant’s mother was
informed that the surgery would be first done on the Left side is not factually correct
because nowhere does the diagnosis in the case history indicate that the Appellant was
suffering from bilateral Inguinal Herniatomy. By operating on the Left side of the
Herniatomy, when it was not required Respondent was clearly guilty of medical
negligence, for which the compensation sought of Rs.1,50,000/- is fully justified.
8. Learned Counsel for Respondent on the other hand stated that the State
Commission had rightly relied upon the medical literature as also the evidence on
record to conclude that there was no medical negligence by stating that it was clear
from the record that the Appellant was suffering from bilateral Herniatomy, i.e. both on
the Right and Left sides, which is a common phenomenon in children, and in the
operation theater when a well-qualified pediatric doctor observed that the bulging was
more prominent on the Left side, after informing the mother of the Appellant, she rightly
conducted the surgery first on the Left side and advised that the Appellant be brought
for the second surgery on the Right side in September, 1989. Counsel for Respondent
stated that this is evident from the consent letter signed by Appellant’s parents as also
the case history recorded on 07.09.1989.
9. We have carefully considered the submissions made by learned counsel for both
parties and have gone through the evidence on record, including the documentary
evidence from the Respondent hospital pertaining to the Appellant’s case. We note
from the recorded case history of the Appellant that right from the time when he was
brought to the hospital i.e. on 12.08.1989, he was subjected to a number of diagnostic
and clinical tests and on the basis of these tests, a clear cut diagnosis of obstructed
Inguinal Herniatomy (R) was made. These findings were confirmed on 13.08.1989
following a physical examination when it was specifically noted that the Appellant was a
known case of Inguinal Herniatomy (R) and there was no other complaint. This
diagnosis was confirmed at the time of his admission for the required surgery on
24.08.1989 and again on 25.08.1989, when it was stated that the Appellant was posted
for (R) Herniatomy. It was only on 26.08.1989 at the time of the operation that for the
first time it was stated that this was a case of Left Inguinal Herniatomy. We have also
gone through the consent letter signed by the Appellant’s parents (since he was a
minor) and it only states that the Appellant’s mother had given permission for operation
of Herniatomy. No mention is made about bilateral Herniatomy. Respondent has not
been able to produce any evidence that Appellant’s parents were informed that
Appellant was suffering with bilateral Herniatomy or that just prior to the surgery they
were informed that the surgery would be conducted on the Left side and not on the
Right side. The letter dated 07.09.1989 only states that the Appellant is posted
tentatively for Right Herniatomy, which does not help the Respondent and only proves
the Appellant’s contention that a surgery on the wrong side was carried out on
26.08.1989. In view of the overwhelming documentary evidence from Respondent’s
own hospital discussed in the foregoing paras, we are unable to agree with the finding
of the State Commission that as per the evidence on record there was no medical
negligence in the treatment of the Appellant. Clearly, Appellant was diagnosed for
conducting a surgery on the Right Inguinal Herniatomy whereas without any evidence
that it was the Left side which required the surgery, this surgery was conducted. Had
the Respondent advised the Appellant’s parents during their visit to the hospital that the
Appellant had bilateral Herniatomy, then perhaps there would be some case for the
Respondent to explain how the surgery was conducted on the Left side. In the instant
case, nowhere did the case history state that the Appellant had symptoms of bilateral
Herniatomy. On the contrary, as stated above, after clinical and diagnostic tests, it was
recorded that the surgery was for Herniatomy on the Right side. In view of these facts,
we are of the view that there is force in the Appellant’s contention that he was wrongly
operated for Left Inguinal Herniatomy whereas the surgery should have been
conducted on the Right side.
10. What constitutes medical negligence is now well settled through a number of
judgments of this Commission as also of the Hon’ble Supreme Court of India. One of
the principles to test medical negligence is whether a doctor exercised a reasonable
degree of care and caution in treating a patient [Supreme Court Case Indian Medical
Association v. V.P. Shantha (1995) 6 SCC 651 and this Commission case Tarun
Thakore v. Dr. Noshir M. Shroff (OP No. 215 of 2000)]. In the instant case, the facts
clearly indicate that the required reasonable degree of care and caution was not taken
by Respondent in the treatment of the Appellant and, thus, Respondent was guilty of
medical negligence, for which the Appellant should justifiably be compensated.
11. In view of these facts and respectfully following the judgment of the Hon’ble
Supreme Court cited above, we are unable to uphold the order of the State Commission
and set aside the same. Respondent being guilty of medical negligence is directed to
pay the Appellant Rs.1,00,000/- as compensation for the unnecessary suffering and
agony caused to him and to his family within two months from the date of this order.
12. The present appeal stands disposed of on the above terms. No costs.
Sd/-
(ASHOK BHAN, J.)
PRESIDENT
Sd/-
(VINEETA RAI)
MEMBER Mukesh
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