Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., directed that the National Consumer Disputes Redressal Commission to pronounce judgment in a case pending for 15 years, within two weeks of the date it is listed.

In the present matter, petitioners concern was the non-pronouncement of orders/judgment by the National Consumer Dispute Redressal Commission (NCDRC).

Petitioner had filed a complaint before the NCDRC alleging negligence by the doctors and hospital – Kanpur Medical Centre Private Ltd., due to which severe burns were caused to her as a newly born infant. Complaint was filed before the NCDRC I April, 2006 and the said complaint has been pending for more than 15 years.

Petitioners Counsel, Raghavendra M. Bajaj, submitted that repeated enquiries were made with NCDRC, but to no avail. Further, an application was moved by the petitioner by seeking re-hearing and pronouncement of judgment, despite which, matter was not listed before any Bench.

Adding to the above, Counsel submitted that he has received intimation that the application is now listed on 23-02-2021.

Supreme Court in the decisions of Anil Rai v. State of Bihar, (2001) 7 SCC 318 and Balaji Baliram Mupade v. State of Maharashtra, 2020 SCC OnLine SC 893 emphasised the importance of timely pronouncement of judgments and orders once submissions are heard.

Recently, in Supreme Court decision of JVNL v. CCM HIM JV [Civil Appeal No. 494 of 2021, decided on 12-02-2021] has reiterated its pronouncement in Anil Rai v. State of Bihar, (2001) 7 SCC 318 while clarifying that the same would not apply to High Courts.

Bench stated that the above pronouncements would apply to Subordinate Courts and tribunals equally.

 The Supreme Court decision in Sudipta Chakrobarty v. Ranaghat S.D. Hospital, 2021 SCC OnLine SC 107, dealt with cases where the NCDRC pronounced operative portions of orders with reasons to follow.

The entire purpose of the Consumer Protection Act, 1986, is supposed to provide speedy justice to complainants, which stands completely defeated in a case of the present nature where the matter has taken more than 15 years to be adjudicated and the same has not reached a conclusion yet.

Following directions have been issued to NCDRC:

  1. Whenever judgments are reserved, they ought to be pronounced in accordance with the timelines prescribed in Anil Rai v. State of Bihar, (2001) 7 SCC 318
  2. If orders are not pronounced within six months of being reserved and an application is filed by either party, the same ought to be listed before the President, NCDRC by the Registry of the NCDRC within two days, without fail. The NCDRC may issue a practice direction to this effect so that the same is complied with by the Staff of the Registry;

Hence, Court directed NCDRC to pronounce the judgment within two weeks of the date it has been listed. [Sandhya Srivastava v. Dr Neelam Mishra, 2021 SCC OnLine Del 892, decided on 18-02-2021]


Advocates who appeared for the matter:

For the Petitioner: Raghavendra M. Bajaj, Garima Bajaj, Agnish Aditya & Nikhil Bamal, Advocates

For the Respondents: Ajay Saroya, Advocate for R-3.

Case BriefsSupreme Court

Supreme Court: After the Court noticed that, in a case, where the National Consumer Disputes Redressal Commission (NCDRC) had passed the reasoned order 8 months after the pronouncement of the operative order, the bench of Indu Malhotra and Ajay Rastogi, JJ has asked the President of the NCDRC into the matter, and take necessary steps so that this practice is discontinued, and the reasoned Judgment is passed alongwith the operative order.

The Court also observed that in all matters where reasons are yet to be delivered, it must be ensured that the same are made available to the litigating parties positively within a period of two months.

In the present case, the operative order was pronounced on 26.04.2019 and the the reasoned order was passed on 20.12.2019 by the NCDRC. The Supreme Court then directed the Registrar of the NCDRC to submit a Report stating the number of cases in which reasoned judgments had not been passed, even though the operative order had been pronounced in Court.

By the report dated 27.7.2020, the Court was informed that as on 20.12.2019, there were 85 such cases in which the operative order had been pronounced, but reasoned judgments were not delivered so far.

“The fact which has been brought to our notice by the Registrar of the Commission can, in no manner, be countenanced that between the date of operative portion of the order and the reasons are yet to be provided, or the hiatus period is much more than what has been observed to be   the   maximum time period for even pronouncement of reserved judgments.”

The Court noticed that the rights of the aggrieved parties are being prejudiced if the reasons are not available to them to avail of the legal remedy of approaching the Court where the reasons can be scrutinized.

“It indeed amounts to defeating the rights of the party aggrieved to challenge the impugned judgment on merits and even the succeeding party is unable to obtain the fruits of success of the litigation.”

[Sudipta Chakrobarty v. Ranaghta SD Hospital, 2021 SCC OnLine SC 107, order dated 15.02.2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Division Bench of Dr S.M. Kantikar (Presiding Member) and Dinesh Singh (Member), while addressing the consumer complaint held that:

Mode of treatment/ skill differ from doctor to doctor and the doctor is not liable for negligence if he performs his duty with reasonableness and with due care.

Complainant 1 (hereinafter referred to as ‘the patient’) was suffering from congenital spinal deformity. Her father (complainant 2) consulted Dr Rajendra Prasad and advised Complainant 2 to contact OP 2. The patient was taken to OP 1 who examined the patient and advised urgent surgery and the delay otherwise will aggravate the disease.

Factual Matrix

It was alleged that operation took long time, the patient was taken to operation theatre (OT) at 9 a.m. and operation completed at 5 p.m. After the operation one junior doctor came from OT and informed the complainant 2 that operation was successful. The patient’s father went to see his daughter in the recovery room, but she was in semi-conscious state & crying. At 5.30 p.m., he noticed no movements in her legs and same was informed the duty doctors. The CT scan of the operated area was done and after examining CT report, the Opposite Party 2 expressed with sorry figure to the Complainant 2 and his elder brother, Dr. Sarveshwar Puri that one screw was pressing the spinal cord and as a result thereof the reoperation was necessary for removal of the said screw. It was further alleged that the C-arm was not used during the operation as it was not functioning properly and it was not disclosed by the Opposite Party 2. It was further alleged that during any spinal surgery, presence of Neurosurgeon was must, but in the present case, the operation was performed under the supervision of the Opposite Party 2 only, who was just an orthopaedic surgeon. After the operation on the insistence of the Complainant 2, then only from Neurosurgery Department Dr. S. S. Kale the Neurosurgeon (the Opposite Party 3) was called. Thereafter 2nd operation was conducted at 7.30 pm in the presence of the Neurosurgeon Dr S. S. Kale. The operation ended at 9.00 pm. The patient remained in ICU for 10 days, but no recovery in movements of the lower part of the body.

Patient became paralysed. On being aggrieved, complainants filed the consumer complaint under Section 21(a)(i) of the Consumer Protection Act against the AIIMS and the treating doctors for gross carelessness and deficiency in service causing complete paralysis of lower part of patient’s body and damage to other organs.

Analysis and Decision

Bench noted the fact that OP 2 i.e. the doctor at AIIMS ruled out the presence of any spinal cord anomalies with the help of investigations like CT and MRI of the whole spine. Thereafter, the patient was advised for corrective bony deformative surgery for the patient and in Commission’s opinion, it was reasonable and standard of spinal surgical practice from the AIIMS doctors.

From medical literature from the Standard textbooks on Spinal Surgery it is apparent that any surgical procedure complications are inherent.

It is not uncommon that while putting the rod into a corrective position, at times the screws moves slightly from the original position, which can cause neurological or vascular problem in few patients. 

In the instant matter, as soon as the neurological complication was noticed, the CT scan revealed one of the screws penetrating the spinal cord. Hence the decision to remove the same was taken in consultation with the parents of the child. Methylprednisolone was given as an established treatment protocol in acute spine cord injury and decongestants were given to prevent CSF leak. This cannot be construed as shortcomings or medical negligence.

Therefore, in view of the above discussion, Commission could not find the case of medical negligence and stated that the spinal correction surgery took place as per the accepted standards and referred to the Supreme Court decision in Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634.

While adding that the Bench has sympathy for the patient for having Congenital Kyphoscoliosis deformity, however, sympathy cannot substitute for conclusive evidence of medical negligence.

Advice by the Commission:

AIIMS is a premier institute in India, renowned over the decades for its illustrious work. Its ‘Scoliosis and Spine’ Unit has been running since 1976, under ‘Orthopaedics’. We may observe that ‘Scoliosis and Spine’ requires an integrated concomitant approach by both ‘Orthopaedics’ and ‘Neurosurgery’. To take its Unit to the next level, as a systemic improvement, the Director, AIIMS may kindly consider enhanced integration of ‘Orthopaedics’ and ‘Neurosurgery’ in its said Unit, including by posting both ‘Orthopaedics’ and ‘Neurosurgery’ therein as well as working towards creating a speciality in its own right for ‘Spinal Surgery’, having knowledge in both ‘Orthopaedics’ and ‘Neurosurgery’. [Shrishti Puri v. AIIMS, Consumer Case No. 54 of 2007, decided on 09-02-2021]


Advocates who appeared:

For Complainants:

Anand S. Asthana, Advocate
Pankaj Singh, Advocate
Dr Someshwar Puri (complainant – 2)

For Opposite Parties:

Vikrant N. Vasudeva, Advocate

Mr Parv Ahluwalia, Advocate
Sarthak Chiller, Advocate
Dr Arvind Jaiswal (OP-2)

Dr Shashank Shekhar Kale (OP-3)

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): C. Viswanath (Presiding Member) expressed that:

Section 50 of the Insurance Act imposes a statutory obligation on the part of the Insurance Company to issue notice before the expiry of three months from the date on which premium is payable and has not been paid and to give notice to the Policyholder informing him about the options available to him, unless the said conditions are set forth in the Policy.

The instant revision petition was filed under Section 21(1) (b) of the Consumer Protection Act, 1986 against the Order of Punjab State Consumer Disputes Redressal Commission.

Factual Matrix

Complainant’s son obtained a Personal Life Insurance Policy from petitioner 2 for a sum of Rs 2.70 lakh. On the said policy a quarterly instalment of the premium was fixed which was being paid through an agent. The complainant was the nominee.

Complainant’s son died in a road accident. Later the insurance company appointed a surveyor who demanded a bribe to make a favourable report, which the complainant did not pay.

Petitioner 1informed the complainant that since the premium due was not paid, therefore the claim of the complainant could not be considered.

On being aggrieved with the deficiency in service on the part of the petitioners, respondent filed a complaint before the District Forum.

District Forum concluded that there was no deficiency in service on the part of the petitioners as the Insurance Policy of the deceased had lapsed and the complaint was dismissed.

Though the State Commission while accepting the appeal and setting aside the District Forum’s order observed that:

“Consequently, the Complaint filed by the Appellant/ Complainant is allowed and the Respondents are directed to pay the sum insured of Rs.2.70 lakh under the Policy to the Appellant and Rs.1.00 lakh on account of accidental death of the young and unmarried son of the Appellant. The Respondents are also directed to pay Rs.20,000/- as compensation and Rs.10,000/- as litigation expenses to the Appellant.

The Respondents shall comply the order within 45 days of the receipt of copy of the order.”

Complainant aggrieved with the State Commission’s order filed the present revision petition.

Decision

Commission observed that the entire case revolved around Section 50 of the Insurance Act, which states as follows:

“50. Notice of options available to the assured on the lapsing of a policy:

An insurer shall (before the expiry of three months from the date on which the premiums in respect of a policy of life insurance were payable, but not paid), give notice to the policy-holder informing him of the options available to him (unless these are set forth in the policy)”.

Bench observed that the petitioner’s main issue was that the premium was payable on 06-03-2007 and even during the grace period it was not paid. Policy stood lapsed at the end of 31st day from the date of premium fell due.

Further, since the complainant did not apply for reinstatement, no benefits under the policy could be given to them. Petitioners kept notifying the complainant about the policy being lapsed and were also informed about the reinstatement option.

Later on not receiving any information from the insured, the policy lapsed and the same was notified to the complainant.

Hence, the Commission found that the petitioners had acted in accordance with the terms and conditions of the Policy, therefore the complaint deserved to be dismissed.

District Forum’s Order was upheld.[Tata AIG Life Insurance Company Ltd. v. Kishan Lal Arora, Revision Petition No. 4415 of 2013, decided on 01-02-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Anup Thakur (Presiding Member), held that a person who purchases a fully constructed real estate property (a Villa in the present case) with eyes wide open, cannot subsequently claim what all was offered in the original brochure.

Gist of the Case

In the instant matter, appellants case was that the complainant was an individual who had bought and moved into his villa in April, 2013 with his eyes wide open, under a specific agreement.

In light of the above, complainants could not file and maintain a consumer complaint qua the common items/concerns of all the other residents of the project.

Senior Counsel for the Appellants raised the following issues:

(i) Whether after having taken possession of the Villa, it was permissible to raise grievances regarding defects, given that the complainants had purchased an already constructed villa and had thus done so with their eyes wide open;

(ii) Whether the complainant, being one individual occupying one villa from out of 97 villas and 47 apartments in a housing complex could seek reliefs affecting all other residents, through an individual consumer complaint;

(iii) a sub-issue was whether the State Commission could have granted both reliefs which were, in fact, sought as an alternative to each other.

Analysis and Decision

Bench stated that complainant’s grievance qua the clubhouse as being only for the exclusive use of the residents of the villa, to the exclusive of all others, cannot stand. As per the agreement referred above, the complainant was provided with the facility of a clubhouse and he had paid a fee for it, in a similar manner, others including the apartment owners had also paid a fee for the use of the clubhouse.

Therefore, the Commission was unable to understand regarding how the complainant, in his individual capacity was claiming exclusiveness of the clubhouse only for the residents of the villa.

With regarding making demands by referring to the brochure, Commission answered the complainant that as far as the complainant was concerned, he visited the site, the villa, liked what he saw, signed an agreement, and was given possession of that, within a few months. The complainant clearly did all this with his eyes wide open. It was therefore not for him to now refer to what all had been promised in the brochure(s) and start making demands based on that.

Bench on perusal of the record opined that the instant appeal against the impugned order of the State Commission deserved consideration and could be partly allowed.

State Commission’s Order

Firstly the OP was directed to pay a consolidated amount of Rs 2 Lakh as compensation for the defects and deficiencies in the construction. The said order was evidence-based and for the said reason it is to be upheld.

Bench in view of the above considered it just that the amount of Rs 2 lakh be paid with simple interest of 6% per annum.

Bench however did not agree with the rest of the State Commission’s Order viz.

  • restraining OP from extending the clubhouse facilities to others,
  • directing the OPs to construct 6’ feet high boundary wall on the fourth remaining side of the campus
  • directing the OPs to construct 30’ X 40’ CC road at the entrance and in the entire campus.

Commission expressed that there was nothing in the complaint petition to show that there was even a claim that all other villa residents were of the same view. Indeed, if this had been the case, the complainant would have then filed a joint complaint or have come through the Association of villa owners.

Bench appreciated that the complainants had signed the agreement, after applying their mind to the aspects of community living in a villa in a project which had 96 other villas and that they were not the original allottees; rather, they came in January 2013, saw the villa, were satisfied with what they saw and were told, and then, with eyes wide open, signed the agreement.

The agreement in itself clearly spelt out that it would alone henceforth govern the relationship between the complainant and the OP.

Clause 4 of the agreement made the above aspect abundantly clear:

“4. The purchaser has applied for allotment of Villa No. 17 in the above said scheme “Manglam’s Arpan” and the seller has agreed to allot to the purchaser Villa/Shop in the said Scheme on the following terms & conditions. All other agreements and/or arrangements or letters, assurances written, oral or implied hereto, sales brochures, newspapers advertisements, etc. before made and which are in any way contradictory to or inconsistent with this agreement shall have no effect. The sellers hereby agrees to sell Purchaser hereby agrees to purchase on terms &conditions mentioned in this Agreement.”

Bench concluded that the complainants in light of the agreement could not have laid any claim to what was promised in the brochure. Along with this, the Commission added that the complainant could not have certainly claimed anything of behalf of themselves as well as on behalf of other residents and that too since December 2012, when they were nowhere in the picture.

A narrative which goes beyond what falls in the domain of the individual complainant can still have relevance but confined strictly to what directly affects the complainant, not beyond that.

The commission while partly allowing the appeal, laid down the following directions:

(i) order of the State Commission in para 19 (a), directing the OPs to pay to the complainants a consolidated amount of Rs 2 lakh as compensation for defects and deficiencies in construction, is upheld;

(ii) This amount of Rs.2 lakh shall carry interest @ 6% p.a. from the date of the impugned order of the State Commission, till the date of actual payment;

(iii) Rest of the order of the State Commission relating to common facilities and costs is set aside.

[Manglam Build-Developers Ltd. v. Aviral Mathur, 2021 SCC OnLine NCDRC 15, decided on 12-01-2021]


Advocates who represented the parties:

For the Appellant: Sukumar Pattjoshi, Sr. Adv. with Sunil Mund, Advocate

For the Respondent: Debesh Panda, Advocate with Naman Maheshwari, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): C. Viswanath (Presiding Member) observed that:

“Conduct of the insured becomes relevant on the facts of each case to ascertain whether the discharge voucher in the full and final settlement was given  voluntarily or there was coercion or undue influence on the Complainant.”

The instant application was filed under Section 19 of the Consumer Protection Act, 1986 against the Maharashtra State Consumer Disputes Redressal Commission’s Order.

Complainant had obtained “Standard Fire and Special Perils” Insurance Policies for stocks of cotton etc. and plant and machinery. Due to a fire break out at the complainant’s factory, huge stock of cotton got damaged.

Surveyor assessed the loss at Rs 32,92,525 only, though the total loss suffered was to the tune of Rs 99,45,286. Complainant submitted that since he was facing financial difficulties he accepted the settlement offered by the OP and executed the Indemnity Bond and Discharge Voucher in the name of OP.

Further, alleging the deficiency in service by OP, he filed a Complaint before the State Commission.

Aggrieved by the State Commission’s Order, complainant preferred the present appeal before this Commission.

Analysis and Decision

Bench noted that in several insurance claim cases under the Consumer Protection Act, it has been held that if a Complainant satisfies the Consumer Forum that Discharge Vouchers were obtained by fraud, coercion, undue influence etc., they should be ignored, but if they were found to be voluntary, the Complainant will be bound by it resulting in rejection of the Complaint.

“…mere signing of Discharge Voucher will not bar the Complainant/Claimant from raising a dispute before this Commission.”

 Commission further stated the only question to be addressed is whether the Discharge Voucher was signed under undue influence or coercion?

Whether the Complainant received Rs 39,72,829 towards full and final settlement or under protest pending investigation?

Further, respondents counsel submitted that there was a clarity expressed to the Complainant that unless the Discharge Voucher was signed, payment would not be released and therefore, the Discharge voucher was signed under coercion.

Bench while concluding held that “If at all the Complainant had an objection to the nature of the settlement, he should have recorded the same while signing the settlement”, hence no infirmity in the State Commission’s order was found.

In light of the above, the instant appeal was dismissed. [Arihant Industries v. United India Insurance Co. Ltd., 2021 SCC OnLine NCDRC 8, decided on 04-01-2021]


Advocates for the parties:

For the Appellant: S.M. Tripathi, Advocate

For the Respondent: Nanita Sharma, Advocate

Legislation UpdatesNotifications

National Consumer Disputes Redressal Commission

Central Government establishes a National Consumer Disputes Redressal Commission to be known as the National Commission.

The President and every other member of the National Commission appointed immediately before the commencement of the Consumer Protection Act, 2019 shall continue to hold office as the President and Member of the National Commission as provided in Section 56 of the said Act.

NOTIFICATION


Ministry of Consumer Affairs, Food and Public Distribution

[Notification dt. 11-01-2020]

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of Dr Dhananjaya Y Chandrachud, Indu Malhotra and Indira Banerjee, JJ., observed that

“Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer‘s Agreement.”

Judgment passed by the National Consumer Disputes Redressal Commission is in Challenge

Appellant-Developer challenged the decision of NCDRC wherein refund of the amounts deposited by the Apartment Buyers was directed on account of inordinate delay in completing the construction and obtaining the Occupation Certificate.

Issues for Consideration:

  • Determination of the date from which the 42 months period for handing over possession is to be calculated under Clause 13.3, whether it would be from the date of issuance of the Fire NOC as contended by the Developer; or, from the date of sanction of the Building Plans, as contended by the Apartment Buyers;
  • Whether the terms of the Apartment Buyer‘s Agreement were one-sided, and the Apartment Buyers would not be bound by the same;
  • Whether the provisions of the Real Estate (Regulation and Development) Act, 2016 must be given primacy over the Consumer Protection Act, 1986;
  • Whether on account of the inordinate delay in handing over possession, the Apartment Buyers were entitled to terminate the agreement, and claim a refund of the amounts deposited with interest.

Analysis

Bench made a pointwise analysis of the instant matter wherein in the first issue, the point of controversy was whether the 42 months’ period is to be calculated from the date when the Fire NOC was granted by the authority concerned as contended by the Developer; or, the date on which the Building Plans were approved as contended by the Apartment Buyers.

In accordance with Section 15 of the Haryana Fire Safety Act, 2009, it is mandatory for a Builder/Developer to obtain the approval of the Fire Fighting Scheme conforming to the National Building Code of India, and obtain a ‘No objection Certificate’ before the commencement of construction.

Clause 13.3 of the Apartment Buyer’s Agreement provides that the 42 months’ period has to be calculated from the date of approval of Building Plans and/or fulfilment of the pre-conditions imposed thereunder.

Bench opined that it was a mandatory requirement under the Haryana Fire Safety Act, 2009 to obtain the Fire NOC before the commencement of construction activity. The said requirement was stipulated in the sanctioned Building Plans, as also in the Environment Clearance.

 The 42 months‘ period in Clause 13.3. of the Agreement for handing over possession of the apartments would be required to be computed from the date on which Fire NOC was issued, and not from the date of the Building Plans being sanctioned.

In the instant matter, there was a delay of approximately 7 months in obtaining the fire NOC by Developer.

Whether the terms of the Apartment Buyer’s Agreement are one-sided?

Court observed on perusal of the clauses mentioned in the Agreement that the said clauses were wholly one-sided terms of the Agreement Buyer’s Agreement, which were entirely loaded in favour of the Developer and against the allottee at every step.

For the said issue, Court held that the terms of the Apartment Buyer‘s Agreement are oppressive and wholly one-sided, and would constitute an unfair trade practice under the Consumer Protection Act, 1986.

Incorporation of one-sided and unreasonable clauses in the Apartment Buyer’s Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act.

Whether primacy to be given to RERA over the Consumer Protection Act?

Bench expressed that this Court has upheld the applicability of provisions of Consumer Protection Act as an additional remedy, despite the existence of remedies under special statutes, including the Arbitration and Conciliation Act, 1996.

In the decision of  Emaar MGF Land Ltd. v. Aftab Singh, (2019) 12 SCC 751, it was held that the remedy under the Consumer Protection Act, 1986 is confined to the Complaint filed by a Consumer as defined by the Act, for defects and deficiency caused by the service provider.

In a recent decision of this Court in Imperia Structures Ltd. v. Anil Patni, (2020) 10 SCC 783, it was held that remedies under the Consumer Protection Act were in addition to the remedies available under special statutes. The absence of a bar under Section 79 of the RERA Act to the initiation of proceedings before a fora which is not a civil court, read with Section 88 of the RERA Act makes the position clear. Section 18 of the RERA Act specifies that the remedies are “without prejudice to any other remedy available”.

Whether the Apartment Buyers are entitled to terminate the Agreement or refund of the amount deposited with Delay Compensation?

Answering this issue, the Court categorised the buyer/allottees into two categories:

  • Apartment Buyers whose allotments fall in Phase 1 of the project comprised in Towers A6 to A10, B1 to B4, and C3 to C7, where the Developer has been granted occupation certificate, and offer of possession has been made
  • Apartment Buyers whose allotments fall in Phase 2 of the project, where the allotments are in Towers A1 to A5, B5 to B8, C8 to C11, where the Occupation Certificate has not been granted so far.

For category 1, it was held that such allottees (barring an exception) were obligated to take possession of the apartments, since the construction was completed, and possession offered on 28-06-2019, after the issuance of Occupation Certificate on 31-05-2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from  27-11-2018 till the date of the offer of possession was made to the allottees.

So far category 2 is concerned, it was held that such allottees are entitled to refund of entire amount deposited by them, along with compensation and interest.

In view of the above discussion, civil appeals were disposed of. [Ireo Grace Realtech (P) Ltd. v. Abhishek Khanna, 2021 SCC OnLine SC 14, decided on 11-01-2021]

Case BriefsHigh CourtsTribunals/Commissions/Regulatory Bodies

It’s the last day of 2020, and here we are with the 20 most-read Case Briefs of the SCC Online Blog in the Year 2020.

The following lists consist of the most-loved Case Briefs by SCC Blog Readers.

[Bombay High Court]

Bom HC | State Govt. declares ATMA, XAT, MAT, GMAT entrance tests not to be valid eligibility for MBA/MMS courses, instead only MS-CET, CMAT and CET to be valid: Read HC’s decision on Government Circular

[Anmol Jagdish Baviskar v. Minister, Higher and Technical Education Department Mumbai; 2020 SCC OnLine Bom 3853, decided on 11-12-2020]


[National Consumer Disputes Redressal Commission]

If a person carries out trading in shares on an occasional basis by opening a Demat Account, will that person come under the ambit of Consumer? Read NCDRC’s opinion

[Vaman Nagesh Upaskar v. India Infoline Ltd., 2020 SCC OnLine NCDRC 469, decided on 28-10-2020]


[Bombay High Court]

Bom HC | If the wife is earning something for livelihood, can the same be a ground to refuse alimony under S. 24 of Hindu Marriage Act? Read Court’s ruling reiterating SC’s decision

[Arpana Vijay Manore v. Dr Vijay Tukaram Manore, 2020 SCC OnLine Bom 3925, decided on 09-12-2020]


[Delhi High Court]

Del HC | Schools free to decline Online Education Facility to students whose parents fail to pay tuition fees

[Queen Mary School Northend v. Director of Education, 2020 SCC OnLine Del 736 , decided on 08-07-2020]


[Allahabad High Court]

All HC | Offences under Ss. 498-A IPC and 3/4 of Dowry Prohibition Act compounded in light of settlement between parties

[Deena Nath v. State of U.P., 2020 SCC OnLine All 1057, decided on 23-09-2020]


[Supreme Court]

Maintenance of wife|Husband doesn’t have to pay maintenance in each of the proceedings under different Maintenance laws [Explainer on Supreme Court guidelines]

[Rajnesh v. Neha,  2020 SCC OnLine SC 903, decided on 04.11.2020]


[Kerala High Court]

Ker HC | If a particular income is not taxable under Income Tax Act, it cannot be taxed on basis of estoppel or any other equitable doctrine; Court reiterates principles for recovery under Income Tax Act

[Uniroyal Marine Exports v. CCE,  2020 SCC OnLine Ker 5175, decided on 17-11-2020]


[Allahabad High Court]

[Maintenance to Muslim wife] All HC | “S. 125 CrPC perhaps one of the most secular enactment ever made in this country”: HC while upholding maintenance awarded to a divorced Muslim wife

[Jubair Ahmad v. Ishrat Bano, 2019 SCC OnLine All 4065, decided on 18-10-2019]


[Kerala High Court]

Ker HC | No blanket order should be passed under S. 438 CrPC to prevent accused from being arrested when there is no crime registered against him; Court quashes order granting anticipatory bail

[State of Kerala v. Ansar M.C.,  2020 SCC OnLine Ker 4569, decided on 21-10-2020]


[Supreme Court]

SC clarifies law on admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571, decided on 14.07.2020]


[Allahabad High Court]

All HC | Can a complaint filed in light of S. 138 NI Act be dismissed on ground of one day delay? Read Court’s reasoned order

[Pankaj Sharma v. State of U.P., 2020 SCC OnLine All 1339, decided on 22-09-2020]


[Chhattisgarh High Court]

Chh HC | Can an application for anticipatory bail under S. 438 CrPC be filed directly before the High Court? || Thorough Analysis

[Hare Ram Sharma v. State of Chhattisgarh, 2020 SCC OnLine Chh 639, decided on 18-11-2020]


[Bombay High Court]

[S. 125 CrPC] Bom HC | Wife cannot be denied maintenance on ground of having a source of income

[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694, decided on 26-05-2020]


[Calcutta High Court]

Cal HC | Rejection of complaint under S. 156(3) CrPC by Magistrate without taking cognizance under S. 190(1)(a) is an error in law; correct approach explained

[Pranati v. State of W.B., 2020 SCC OnLine Cal 132, decided on 21-01-2020]


[Delhi High Court]

Del HC | If interim maintenance by wife has already been secured under Domestic Violence Act, will application under S. 125 CrPC be maintainable? Court answers

[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]


[Himachal Pradesh High Court]

HP HC | Remedy under S. 125 CrPC and S. 12 of DV Act, 2005 are distinct and different; Law does not prohibit wife to proceed under both of the said statutory provisions simultaneously or otherwise; Petition dismissed

[Sachin Sharma v. Palvi Sharma,  2020 SCC OnLine HP 2109, decided on 26-10-2020]


[Chhattisgarh High Court]

Chh HC | S. 320 CrPC is no bar to the exercise of power of quashing of FIR in matrimonial matters; Petition allowed

[Gurumukh Das Chandani v. State of Chhattisgarh, 2020 SCC OnLine Chh 568, decided on 27-10-2020]


[Allahabad High Court]

All HC | Principle contained in S. 141 of NI Act is not applicable to a sole-proprietary concern, firm need not be arraigned as an accused while making a claim for recovery under S. 138 of the NI Act

[Dhirendra Singh v. State of U.P., 2020 SCC OnLine All 1130, decided on 13-10-2020]


[Karnataka High Court]

[MV Act] Kar HC | Will the insurance company be liable for compensation if the vehicle was insured as ‘private vehicle’ but plyed on ‘hire’ at the time of accident? HC decides

[United India Insurance Co. Ltd. v. Basavaraj, 2020 SCC OnLine Kar 1652, decided on 02-11-2020]


[National Consumer Disputes Redressal Commission]

NCDRC | Can a consumer claim refund of principal amount if flat not delivered on time? Commission untangles two fundamentals for Buyer — Consumer

[Ankur Goyal v. Rise Project (P) Ltd., 2020 SCC OnLine NCDRC 465, decided on 14-10-2020]

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

The interest of the consumer has to be kept in the forefront and the prime consideration that an essential commodity ought to be made available to the common man at a fair price must rank in priority over every other consideration.”

Y.V. Chandrachud, J. in Prag Ice & Oil Mills v. Union of India, (1978) 3 SCC 459

 Introduction

“An Act to provide for protection of the interests of consumers and for the said purpose, to establish authorities for timely and effective administration and settlement of consumers’ disputes and for matters connected therewith or incidental thereto”

The long title of the new Consumer Protection Act, 2019 (“2019 Act”) in the least number of words explains the whole and sole purpose of the Act. While the Consumer Protection Act, 1986 had nearly the same long title, but being around three decades old, did not inculcate the needful things that would have solved the problems of the modern and technology-dependent consumers, which is why a need was felt to replace the whole Act with a new one and bring a fundamental change.

The Parliament passed the Consumer Protection Bill, 2019 on 06-08-2019 to replace the Consumer Protection Act, 1986. The President of India gave its accent to the 2019 Act on 09-08-2019 and the same came into force on 20-07-2020. The 2019 Act has been enacted for the purpose of providing timely and effective administration and settlement of consumer disputes and related matters.

Related Read:

Substantial portion of Consumer Protection Act, 2019 along with related Rules to come into force on 20th July, 2020

Consumer Protection Act, 2019 comes into force from today

Brief History of Consumer Protection Act in India

Consumer Protection has always been a matter of great concern. In ancient India, effective measures were initiated to protect consumers from crimes in the market place. Ancient law-givers ably described various kinds of unfair trade practices and also prescribed severe punishments for wrongdoers. Mainly, acts of adulteration and false weights and measures were seriously dealt with.

In the medieval period, some Muslim rulers developed well-organized market mechanisms to monitor prices and the supply of goods to the markets. During the British period, the modern legal system was introduced in India and many laws were enacted to protect the interests of consumers generally.

Some of the laws which were passed during the British regime concerning consumer interests were: the Contract Act of 1872, the Sale of Goods Act of 1930, the Penal Code of 1860, the Drugs and Cosmetics Act of 1940, the Usurious Loans Act of 1918, and the Agriculture Procedure (Grading and Marketing Act) of 1937. These laws provided specific legal protection for consumers.

Today, the civil justice system is tainted with deficiencies that discourage the consumer from seeking legal recourse. However, the Consumer Protection Act of 1986, which provided easy access to justice, had brought a legal revolution in India as a result of its cost-effective mechanisms and popular support. However, with the gradual advancements in technology, the age-old 1986 Act was unable to keep up with the grievances of the modern consumer. Thus, a need was felt to substitute the old Act which resulted in the enactment of the Consumer Protection Act, 2019.

Key features of the Consumer Protection Act, 2019

  • The new Act which was drafted keeping in mind the needs of the modern consumers incorporates new terminologies which had no place in the old Act. Under Section 2(1)advertisement” is defined as any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents; which means that now a consumer who is aggrieved due to some kind of misleading advertisement can approach the authorities concerned seeking relief.
  • A provision for a minor being a consumer has been introduced under Section 2(5)(vii) of the Act where the parent or legal guardian can approach the authorities through the minor seeking relief.
  • A new clause of “product liability action[Section 2(35)] has been added with definition of “complaint” under Section 2(6)(vii) which lies against the product manufacturer [Section 2(36)], product seller [Section 2(37)] or product service provider [Section 2(38)] as the case may be.
  • Under the new Act, “consumer” is defined under Section 2(7) as a person who “buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose” or “hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.”

Thus, a consumer will now mean any person who “buys any goods” and “hires any services” which shall include both online and offline transactions through electronic means, teleshopping, direct selling or multi-level marketing.

  • The most important feature of the new Act definitely being the rights of the consumer under Section 2(9), which includes,
    • the right to be protected against the marketing of goods, products or services which are hazardous to life and property;
    • the right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices;
    • the right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices;
    • the right to be heard and to be assured that consumer’s interests will receive due consideration at appropriate fora;
    • the right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers; and
    • the right to consumer awareness.
  • Section 2(10) and 2(11) of the Act talk about “defect” and “deficiency” “Defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression “defective” shall be construed accordingly; whereas “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes—(i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and

(ii) deliberate withholding of relevant information by such person to the consumer.

  • The new additions include “e-commerce” Section 2(16), “electronic service provider” Section 2(17) along with the prescribed liabilities in relation to internet frauds. This has broadened the scope of the Act and it looks after the better protection of the rights of e-consumers and also enables them to proceed against e-commerce websites in the event of any infringement or violation.
  • Thereafter, a series of new terminologies have been added to Section 2 of the Act, for example a brand new concept of “product liability” has been included in the new Act which has been defined under Section 2(34) of the Consumer Protection Act, 2019 as “the responsibility of a product manufacturer or product seller, of any product or service, to compensate for any harm caused to a consumer by such defective product manufactured or sold or by deficiency in services relating thereto;” and in lieu of which the concepts of “product liability action”, “product manufacturer” etc. have also been included in the Act.

Central Consumer Protection Authorities

One of the major drawbacks of the previous Act was that there were no protection authorities in order to keep check, regulate and address the grievances of the consumers in an effective and speedy manner. Chapter III of the 2019 Act provides with the Central Consumer Protection Authority (CCPA) which has been added in order to regulate matters relating to violation of rights of consumers, unfair trade practices and false or misleading advertisements which are prejudicial to the interests of public and consumers and to promote, protect and enforce the rights of consumers as a class. Central Authority shall consist of a Chief Commissioner and such number of other Commissioners as may be prescribed, to be appointed by the Central Government to exercise the powers and discharge the functions under this Act. It will consist of an investigation wing headed by a Director-General for the purpose of conducting inquiry or investigation under this Act as may be directed by the Central Authority.

An appeal to an order passed by the CCPA on this issue can be filed before the National Commission within a period of 30 days from the date of the receipt of such order.

How to make a complaint?

Section 17 states that a complaint relating to violation of consumer rights or unfair trade practices or false or misleading advertisements which are prejudicial to the interests of consumers as a class, may be forwarded either in writing or in electronic mode, to any one of the authorities, namely, the District Collector or the Commissioner of Regional Office or the Central Authority.

The Central Authority under Section 21 has been provided with the powers to issue directions and penalties against false or misleading advertisements.

Consumer Dispute Redressal Commission (CDRC)

Chapter IV of the Act deals with the Establishment, Qualifications, Jurisdiction, Manner of Complaint, Proceedings etc. regarding the Consumer Disputes Redressal Commission. CDRC is empowered to resolve complaints with respect to unfair and restrictive trade practices, defective goods and services, overcharging and goods which are a hazard to life and safety. It has to be set up at three levels, i.e. the District, State and National levels (commissions). In comparison to the old Act, the jurisdictions of the commissions have been enhanced.

      District Consumer Disputes Redressal Commission (previously known as the District Forum):

District Commission shall consist of a President and not less than two and not more than such number of members as may be prescribed, in consultation with the Central Government. The District Commission now has the jurisdiction to entertain complaints where the value of the goods and services paid as consideration does not exceed one crore rupees. Section 34(2)(d) categorically states that the complaint can now also be instituted in a District Commission within the local limits of whose jurisdiction the complainant resides or personally works for gain, apart from filing in the jurisdiction where the other side actually or voluntarily resides, or carries a business, or has a branch office or personally works for gain.

      State Consumer Disputes Redressal Commission (previously known as the State Commission):

The State Commission shall have jurisdiction to entertain the complaints where the consideration exceeds one crore rupees but does not exceed ten crore rupees.

      National Consumer Disputes Redressal Commission (previously known as the National Commission):

The National Commission shall have the jurisdiction to entertain complaints where the consideration paid exceeds ten crore rupees.

The jurisdiction in which the complaint is to be filed is now on the basis of the value of the goods and services paid, which was not the case in the 1986 Act where it was on the value of the goods and services and the compensation, if any, claimed. A great emphasis has been placed on mediation which will be dealt with further.

Mediation

The Act has introduced a new chapter (Chapter V) on mediation as an alternate dispute resolution mechanism in order to resolve the consumer dispute in a much faster way without having to approach the Commissions. Thus, in the events where the mediation is successful in whole, the terms of such agreement shall be reduced into writing accordingly. Where the dispute is settled only in part, the Commission shall record the statement of the issues which have been settled, and shall continue to hear the remaining issues involved in the dispute. In case of unsuccessful mediation the respective Commission shall within seven days of the receipt of the settlement report, pass a suitable order and dispose of the matter accordingly.

Offences and Penalties

Section 21(2) and Section 89 of the 2019 Act provides the Central Authority with the power to impose a penalty in respect of any false or misleading advertisement, by a manufacturer or an endorser, it may, by order, impose on manufacturer or endorser a penalty which may extend to ten lakh rupees. Apart from this, a separate chapter (Chapter VII) for offences and penalties has been introduced where detailed penalties and punishments have been mentioned in relation to non-compliance, or manufacturing for sale or storing, selling or distributing or importing products that are adulterated or spurious.

Related Rules and Regulations

  • The Consumer Protection (E-Commerce) Rules, 2020 which are mandatory and are not advisories, lay down all the important information relating to the e-commerce entities keeping in mind both the consumer and the product/service provider. Key highlights are:
    • E-commerce entities according to Rule 5 are required to provide information to consumers, relating to return, refund, exchange, warranty and guarantee, delivery and shipment, modes of payment, grievance redressal mechanism, payment methods, security of payment methods, charge-back options and country of origin.
    • These platforms will have to acknowledge the receipt of any consumer complaint within 48 hoursand redress the complaint within one month from the date of receipt. They will also have to appoint a grievance officer for consumer grievance redressal.
    • Sellers cannot refuse to take back goods or withdraw services or refuse refunds,if such goods or services are defective, deficient, delivered late, or if they do not meet the description on the platform.
    • The rules also prohibit the e-commerce companies from manipulating the priceof the goods or services to gain unreasonable profit through unjustified prices.
  • As per the Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020 which came into force on 20th July 2020, the amount of fee payable for filing the complaint in the District Commission up to Rs 5 lakhs has been made Nil according to Rule 7.
  • The credit of the amount due to unidentifiable consumers will go to the Consumer Welfare Fund(CWF).
  • State Commissions will furnish information to the Central Government on a quarterly basis on vacancies, disposal, the pendency of cases and other matters.
  • Apart from these general rules, there are Central Consumer Protection Council Rules, provided for the constitution of the Central Consumer Protection Council(CCPC).
    • It will be an advisory body on consumer issues, headed by the Union Minister of Consumer Affairs, Food and Public Distribution with the Minister of State as Vice Chairperson and 34 other members from different fields.
    • It will have a three-year tenure and will have Minister-in-charge of consumer affairs from two States from each region: North, South, East, West, and North-East Region.

Conclusion

The 2019 Act is a much required change in favor of the consumers considering the current age of digitization. It empowers them with clearly defined rights and dispute resolution process which will enable them to get their grievance addressed with a fast track mechanism.

In order to have a better understanding of the concepts have a glance over some of the landmark judgments given by our Courts according to the Consumer Protection Act, 1986 which is now repealed but the guidelines laid down in those cases helped in framing the new Consumer Protection Act, 2019.

  • The Delhi High Court while examining the concept of advertisement decided the case of,

 Horlicks Ltd. v. Zydus Wellness Products Ltd., 2020 SCC OnLine Del 873

The High Court passed an interim order restraining Zydus from telecasting its advertisement comparing Complan to Horlicks on the grounds that the same was misleading and disparaging. The Court relied on various judgments on misleading advertisements, disparagement and law governing publication of advertisements on television. Major decisions were:

Dabur (India) Ltd. v.  Colortek (Meghalaya) (P) Ltd., 2010 SCC OnLine Del 391

The Delhi High Court culled out the principles governing disparagement in the advertisements and held:

On the basis of the law laid down by the Supreme Court, the guiding principles for us should be the following:

(i) An advertisement is commercial speech and is protected by Article 19(1)(a) of the Constitution.

(ii) An advertisement must not be false, misleading, unfair or deceptive.

(iii) Of course, there would be some grey areas but these need not necessarily be taken as serious representations of fact but only as glorifying one’s product.

To this extent, in our opinion, the protection of Article 19(1)(a) of the Constitution is available. However, if an advertisement extends beyond the grey areas and becomes a false, misleading, unfair or deceptive advertisement, it would certainly not have the benefit of any protection.

 Pepsi Co. Inc. v. Hindustan Coca Cola Ltd., 2003 SCC OnLine Del 802

In Pepsi Co. it was held that certain factors had to be kept in mind while deciding the question of disparagement. Those factors were:

(i) Intent of the commercial,

(ii) Manner of the commercial, and

(iii) Story line of the commercial and the message sought to be conveyed.

These factors were amplified or restated in the following terms:

“(1) The intent of the advertisement – this can be understood from its story line and the message sought to be conveyed.

(2) The overall effect of the advertisement – does it promote the advertiser’s product or does it disparage or denigrate a rival product?

In this context it must be kept in mind that while promoting its product, the advertiser may, while comparing it with a rival or a competing product, make an unfavorable comparison but that might not necessarily affect the story line and message of the advertised product or have that as its overall effect.

(3) The manner of advertising – is the comparison by and large truthful or does it falsely denigrate or disparage a rival product? While truthful disparagement is permissible, untruthful disparagement is not permissible.”

Related Read:

Advertisement to Misleading Advertisement | Horlicks Ltd. v. Zydus Wellness Products

The complainant/respondent had participated in Mc Donald’s widely published scheme ‘Mc Donald’s Mein Khao Har Bar Prize Le Jao’ by placing two separate orders worth Rs 81. It was alleged by the complainant that Connaught Plaza Restaurants Ltd. (CPRL) a franchisee running Mc Donald restaurants has indulged in unfair trade practices by not giving the assured prizes as per the scheme, rather put the participants under the obligation to make a further purchase of a minimum Rs 20 in order to avail free French Fries. Also, the complainant had to send two SMS giving the coupon numbers, for which Rs 3 per SMS were charged. Moreover, the details of the entire scheme with its terms and conditions and the result of the winners were also concealed from the participating customers. Therefore, the complainant filed a consumer complaint before the District Forum praying to declare the scheme as unfair trade practice and that Connaught Plaza Restaurants Ltd. be directed to disclose the entire scheme and winners of the prizes. The District Forum allowed the complaint and awarded compensation and costs to the complainant of Rs. 10,000 and Rs.2,000.

Aggrieved, CPRL filed an appeal before the State Commission, but the State Commission modified the order of the District Forum by enhancing the compensation and awarding punitive damages to the tune of  Rs. 2,00,000 and Rs. 10,00,000.

CPRL then appealed before the NCDRC. The NCDRC held that no proof had been filed by the complainant that CPRL had collected the SMS charges or that it had an agreement with the Telecom Company/Service provider on sharing of SMS charges. Thus, the order of the State Commission could not be sustained on those grounds. On the other hand, it held that it is also true that the scheme was an unfair trade practice followed by Connaught Plaza Restaurants Ltd. This fact having been established by the concurrent findings given by the District and the State Commission. The complainant and other similar customers who may not have come forward to file a complaint need to be granted relief. Partly allowing the appeal, the NCDRC reduced the amount of compensation to Rs. 30,000 and costs to Rs. 70,000 respectively.

  • The National Consumer Disputes Redressal Commission (NCDRC) in the recent case of, Ernakulam Medical Centre P.R. Jayasree, 2020 SCC Online NCDRC 490 observed that,

“Releasing a dead body by a hospital to an unrelated third person unquestionably constitutes ‘deficiency in service’ within the meaning of Section 2(1)(g) and (o) of Consumer Protection Act, 1986.”

Related Read:

NCDRC | Releasing a dead body by a hospital to an unrelated third person unquestionably constitutes ‘deficiency in service’ within the meaning of S. 2(1) (g) & (o) of Consumer Protection Act, 1986

  • Recently, the Supreme Court in a judgment laid emphasis on the role of NCDRC in Union of India N.K. Srivastava, 2020 SCC OnLine SC 636, wherein the Court had dismissed an appeal which had aroused from an order of the National Consumer Disputes Redressal Commission. The complaint alleged medical negligence against Sarvodaya Hospital and Safdarjung Hospital. The NCDRC allowed the revision of Sarvodaya Hospital. While exonerating it of the finding of medical negligence, it held Safdarjung Hospital liable to pay the compensation of Rs 2 lakhs imposed by the State Consumer Disputes Redressal Commission.

The District Forum had dismissed the consumer complaint stating that there was no deficiency on the part of Sarvodaya Hospital in referring the complainant to a specialized facility. An appeal was filed before the State Consumer Disputes Redressal Commission by the original complainant. The SCDRC, by its judgment concluded that Sarvodaya Hospital was guilty of medical negligence and directed it to pay a sum of Rs 2 lakhs as compensation and costs quantified at Rs 20,000. However, the complaint was held not to be maintainable against Safdarjung Hospital. A revision was filed against the judgment of the SCDRC by Sarvodaya Hospital before the NCDRC which allowed the revision and came to the conclusion that Sarvodaya Hospital was not guilty of medical negligence, however, the NCDRC elaborated on the question as to whether Safdarjung Hospital had been correctly exonerated. The NCDRC held that though the complainant had not filed a revision against the order of the SCDRC specifically holding that Safdarjung Hospital was not amenable to the jurisdiction of the consumer fora, he was not precluded from challenging a finding which was adverse to him in the revision petition. On these facts, the NCDRC sustained the finding of medical negligence against Safdarjung Hospital and directed it to pay compensation quantified at Rs 2 lakhs.


† Editorial Assistant (Legal)

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): C. Vishwanath (Presiding Member), held that since the Insurance Company itself insured the complainant’s vehicle and the vehicle had been stolen during the currency of the Policy and the Police were informed immediately, the Insurance Company could not repudiate the claim.

The instant revision petition was filed under Section 21(b) of the Consumer Protection Act, 1986 against the Order passed by Rajasthan State Consumer Disputes Redressal Commission.

Facts of the case

Respondent obtained an Insurance Policy from the petitioner for his Car being temporary registration for a sum of Rs 6,17,800.

In the night of 28-07-2011, Complainant’s car was stolen from Geeta Guest House, Jodhpur. Police could not trace the vehicle and submitted a negative final report. Complainant submitted an insurance claim with the Opposite Party/Insurance Company. Petitioner/Opposite Party repudiated the claim, on the ground that intimation of theft of the vehicle was given to the Insurance Company with delay, which was in violation of the Policy condition and though temporary registration of the vehicle expired on 19-07-2011, the Complainant did not get the vehicle permanently registered. Thirdly, the Complainant left the vehicle unattended outside the guesthouse, in violation of the Policy condition.

District Forum dismissed the complaint stating “as at the time of the theft the vehicle is not registered, there was no deficiency in service on the part of the Opposite Party”.

Against the order of the District Forum, the Complainant preferred an Appeal before the State Commission and State Commission set aside the order of the District Forum while allowing the appeal.

Aggrieved by the State Commission’s Order, Opposite Party/Insurance Company preferred the present Revision Petition.

Analysis and Decision

Core issue for the adjudication was in regard to the registration of the vehicle after expiry of temporary registration.

Since the Petitioner/Insurance Company had received the insurance premium and there was no violation of any specific condition in the Insurance Policy, the Insurance Company was liable to indemnify the insured for the loss suffered by the insured.

Though plying a vehicle on road without registration is a violation of provisions of Motor Vehicle Act, the Competent Authority to take action against a non-registered vehicle is the Police and other Government authorities. Insurance Company after accepting the premium, cannot escape from its liability and repudiate the claim on this technical ground.

Commission in view of the instant matter stated that:

The temporary registration of the vehicle expired on 19-07-2011 and the car got stolen on 28-07-2011, mere 9 days later. The Motor Vehicle Act does provide for registration of vehicle after its expiry on payment of certain fee.

Commission held that when the Insurance Company itself insured the complainant’s vehicle and the vehicle had been stolen during the currency of the Policy and the Police was informed immediately, the Insurance Company cannot repudiate the claim of the Complainant on a technical ground.

In view of the above-discussion, State Commission’s Order was justified and the same did not suffer from any illegality, therefore revision petition was dismissed. [United India Insurance Co. Ltd. v. Sushil Kumar Godara, 2020 SCC OnLine NCDRC 494, decided on 11-12-2020]


Advocates for the parties:

For the petitioner: Ms Suman Bagga, Advocate

For the Respondent: NEMO

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Dinesh Singh (Presiding Member) while addressing the instant first appeal upheld the State Commission’s Order in regard to a claim filed by the insured with the insurance company.

The instant appeal was filed under Section 19 of the Consumer Protection Act, 1986 challenging the Order passed by the State Consumer Disputes Redressal Commission, Maharashtra.

Complainant Firm took an insurance policy to cover its plant and machinery, electrical installations and stock-in-trade. The premium was paid for the valid policy. In 2005, an incident of fire took place and the insurance company was intimated after which survey was conducted.

The complainant had claimed an amount of Rs 17,00,000 but the surveyor assessed the loss at Rs 1,54,500. Since the Complainant Firm failed to submit the relevant record for verification, as mentioned in the Surveyor’s Report. Hence, Insurance Company filed the claim as ‘no claim’.

State Commission vide its impugned Order dated 22-09-2015 allowed the Complaint at the loss assessed by the Insurance Co.’s Surveyor i.e. at Rs 1,54,500 and awarded the said amount with interest at the rate of 9% per annum.

Complainant Firm appealed before this Commission for enhancement in compensation, specifically for accepting its claimed loss of Rs 17,00,000.

Analysis and Decision

Investigation and Survey by an insurance company are fundamental in determining the amount payable to the insured.

Bench observed that an insurance company is duty-bound to appoint its surveyor in accordance with the provisions of the Insurance Act, 1938 (Section 64 UM Surveyors or loss assessors specifically refers). A Survey cannot be disregarded or dismissed without cogent reasons.

Further, the Commission also observed that the onus,

[a] of showing that the Report of the Surveyor appointed by the Insurance Co. was flawed and

[b] of showing that actually, in fact, the loss was Rs 17,00,000, was on the Complainant Firm, which onus it failed to discharge.

Hence, in view of the above discussion, the Commission held that the State Commission had passed a reasoned order.

State Commission’s impugned order was upheld and confirmed.[Wilson Home Appliances v. New India Assurance Co. Ltd., 2020 SCC OnLine NCDRC 493, decided on 10-12-2020]


Advocates who appeared for the matter:

For the Appellant:  Ms Manisha T. Karia, Advocate

For Respondent 1: Mr S. M. Tripathi, Advocate

For the Respondent 2: Ex parte

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Anup K Thakur (Presiding Member), held that delivering the vehicle and withholding the documents of the said vehicle would amount to illegal delivery of the vehicle.

Factual Matrix

Respondent 1/ Complainant had purchased a Tata Spacio Car from the petitioner/OP 1. Complainant towards the purchase of the car had paid Rs 30,000 vide two cheques and Rs 8,100 separately for registration, insurance, service charges, etc., to OP 1. However, at the time of delivery, OP 1 had retained original documents of registration and insurance. OP1’s case was and continues to be that these were retained as the complainant had not paid the balance amount to him. Rs 1,15, 236 was yet to be paid after taking into account Rs 30,000 and the loan obtained from OPs 2 & 3.

In view of the above, the complainant had filed a consumer complaint alleging deficiency in service due to non-delivery of the original documents.

District Forum had accepted the complaint and directed OP 1 to send the original documents to the complainant. On appeal, State Commission also agreed with the District Forum and dismissed the appeal.

Petitioners Counsel submitted that an Ikararnama (agreement) was signed wherein complainant undertook to pay the balance amount later after taking delivery of the vehicle. On the said understanding, the vehicle was delivered to the complainant while the original documents such as registration, insurance were kept with OP 1. The case of OP-1 was that instead of paying the said amount and taking the original papers, the complainant filed a consumer complaint.

Hence, after allowing the above-stated complaint and appeal, the instant revision petition was filed.

Analysis and Decision

On considering the facts and circumstances of the instant case, the Commission stated that the revision petition cannot be sustained.

The vehicle was sold to the complainant, with the help of loan provided by OPs 2 & 3. The disputed point as per OP 1 was whether the complainant had paid the full amount to OP 1 or note. The related issue was whether the complainant was correct in alleging deficiency in service because OP 1 had retained the original documents after handing over the delivery of the car to him.

State Commission held that:

Once the vehicle has been delivered to the respondent 1, the appellant dealer cannot withhold the said documents on the plea of some dues still remaining to be paid. The delivery of the vehicle itself could have been delayed for that reason. Besides, since the purchase was financed by respondent 2 and 3, we see no reason how any amount could have been left unpaid and the appellant could still have delivered the vehicle in question to the respondent-complainant.

In the Commission’s opinion, the State Commission’s order had no material infirmity. Further, it was stated that if OP 1 had sold the vehicle and accepted the arrangement implicit in the Ikararnama, it had to bear the consequences.

“…as a responsible dealer, OP 1 could not have delivered the vehicle without the original documents. Such a delivery was illegal.”

No vehicle can legally ply without the above-stated documents.

Commission held that the factum of delivery without documents was illegal per se and certainly a deficiency in service. It is not important nor relevant as to what informal arrangement existed between OP 1 and the complainant. Whatever may have been the arrangement, it cannot justify the action of OP 1.

In view of the above discussion, the revision petition was dismissed. [Fauzdar Motors v. Lok Nath Kushwaha, 2020 SCC OnLine NCDRC 492, decided on 01-12-2020]


Advocates who appeared before the Commission:

For the Petitioner: Sanjay Sehgal, Advocate

For the Respondent:

For the Respondent 1: Nemo
For the Respondents 2 & 3: Ritu Raj, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Justice V.K. Jain (Presiding Member) addressed the question of who can be considered a consumer under Section 2(1)(d) of Consumer Protection Act in light of trading of shares.

Complainant opened Demat Account with respondent 1 in India Infoline Ltd. Respondent 3 an employee of Respondent 1 carried out unauthorised trading of shares in his Demat Account without his consent and caused heavy losses to him.

The above-stated incident was brought to the notice of respondents 1 and 2, but they did not address the complaint.

After a loss of Rs 55,000, complainant tried to close the account but was not allowed to do so and further was carried out by respondent 3 from his Demat Account without his consent, causing him a loss of Rs 1,72,020.

In view of the above complainants approached the District Forum concerned by way of consumer complaint seeking the compensation of the above-referred amount.

Respondent 1 stated that complainant had entered into a mutual agreement with respondent 3 allowing him to trade into his account and on coming to know this, respondent 1 terminated the services of respondent 2 and 3.

Aggrieved with District Forum’s decision, an appeal was filed with State Commission wherein the appeal was allowed and the complaint was dismissed.

Analysis and Decision

Who can be said to be a consumer?

The above-stated question was considered in Springdale Core Consultants (P) Ltd. v. Pioneer Urban Land and Infrastructure Ltd., CC No. 349 of 2017, decided on 16-03-2020.

 “…Trust was not a consumer within the meaning of Section 2(1(d) of the Consumer Protection Action, which excludes a person who obtains goods and services for a commercial purpose. It was held by this Commission that providing hostel facilities to the nurses was directly connected to the commercial purposes of running the Hospital and was consideration for the work done by them in the hospital.”

Bench observed that there was no evidence of the complainants trading in the shares on a large scale. Complainants were stated to be in service though, in the account opening form, they had claimed to be in business.

No evidence or even allegation of the complainants was found carrying out large scale trading in stocks and shares.

If a person engaged in a business or profession other than regular trading in shares, open a Demat Account and occasionally carries out trading in shares, it cannot be said that the services of the broker were hired or availed by him for a commercial purpose, the scale of such trading by a casual investor being very low. Such a person cannot be said to be in the business of buying and selling shares on a regular basis.

In view of the above, the Commission held that the complainants were consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act.

Whether the trading by respondent 3 in the Demat Account of the complainants was done with the consent of the complainants or it was done unauthorizedly without their consent and without instructions from them?

Commission on perusal of the letter dated 20-10-2009, stated that respondent 3 was trading without instructions from the complainants and that is why he promised to the complainant that he would be responsible in case his losses were to increase.

With regard to the alleged private agreement between respondent 3 and complainant, no evidence was found.

Hence, in view of the above-stated discussion, Commission held that respondent 3 has caused loss to the complainant by unauthorised trading in his Demat Account, therefore he is responsible to compensate the complainant.

Being the employer of respondent 3 and being the broker with whom the Demat Account was opened, respondent 1 was equally liable to compensate the complainants.[Vaman Nagesh Upaskar v. India Infoline Ltd., 2020 SCC OnLine NCDRC 469, decided on 28-10-2020]


Counsel for the Petitioner: Advocate Astha Tyagi

Counsel for the Respondent 1: Advocate Ajit Rajput

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC):  A Division Bench of Dr S.M. Kantikar (Presiding Member) and Dinesh Singh (Member) held that, a homebuyer cannot be made to wait indefinitely for possession.

The instant appeal was preferred by the appellant under Section 19 of the Consumer Protection Act, 1986 against the Order passed by the Maharashtra State Consumer Disputes Redressal Commission wherein OP was directed to handover the possession of the subject flat to the respondent — complainant after receiving the balance consideration amount from respondent — complainant.

Advocates for the appellant — Siddhesh Bhole, Royden Fernandes and Deepam Rangwani.

Advocates for the respondent — Sukruta A. Chimalker and S.B. Prabhavalkar.

State Commission held that there was a deficiency on the part of the OP is not handing over possession and not obtaining the necessary certificates for the subject flat.

Opposite Party was directed to handover possession of the flat within three months after receiving the remaining consideration of Rs. 5.50 lakh as well as to provide Occupancy Certificate and Building Completion Certificate to the Complainant.

Aggrieved with the State Commission’s order, OP filed an appeal before the Commission.

Bench noted that the complainant had paid Rs 11 lakhs by cheque to the OP towards consideration for the subject agreement. OP contended that the subject agreement was cancelled by the complainant.

On perusal of the cancellation letter, it was evident that for more than 2 years, there was no construction work/development at the site of the project. Complainant was also paying interest on the amount paid to the Opposite Party builder firm, therefore, the Complainant requested the Opposite Party to return the entire amount paid.

With regard to the delivery of possession, OP contended that the agreement did not mention the date of delivery of possession of the said flat to the Complainant. However, the buyer cannot be made to wait for an indefinite period.

It was OP’s duty itself to mention the date of delivery of possession in the agreement and failure to do so necessarily requires to be read against the OP. In all contingencies, the complainant could not have been made to wait indefinitely for possession.

OP argued that State Commission grossly erred in disregarding the applicability of the relevant provisions of Specific Relief Act, 1963.

In the above regard, the Court noted that the Act 1986 is for better protection of the interests of consumers, to provide speedy and simple redressal to consumer disputes.

Section 3 specifically provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

In the year 2003, the complainant requested for refund of the entire amount paid by her but OP did not refund the amount paid with or without interest.

Commission opined that the State Commission’s order was reasoned, hence the instant appeal being misconceived and bereft of merit was dismissed.[Adrian Pereira v. Anita Ronald Lewis, 2020 SCC OnLine NCDRC 466, decided on 16-10-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): V. K. Jain (Presiding Member) while addressing the present matter observed that,

A negligent act such as driving a motor cycle without taking the orientation desired by its owner can never be equated with an intentional self-injury if driving the vehicle result in an accident.

Personal Accident Insurance (Individual) Policy

Deceased had obtained the above-stated policy from the OP whereunder a sum of Rs 58,75,000 was payable by the insurer in case he was to die in an accident.

In an accident, the Late Mr Sunil Seth died after. Complainant lodged a claim in the above-referred policy. Surveyor concluded that the death of Sunil Seth took place in a road accident and hence the claim may be processed as per the terms and conditions of the policy and its coverage.

Though the Insurer repudiated the claim vide letter dated 20-07-2017, which reads as follows:

“The claim is repudiated as per Exception No. 5(a) of the policy which stands as “The Company shall not be liable under this policy for Payment of compensation in respect of Death, Injury or Disablement of the Insured from Intentional self-injury.”

On being aggrieved with the repudiation of the claim, the complainant approached the Commission.

Pecuniary Jurisdiction

OP resisted the complaint stating that the Commission lacked pecuniary jurisdiction to entertain the consumer complaint.

In accordance with Section 21 of the Consumer Protection Act, 1986, the Commission has pecuniary jurisdiction to entertain the consumer complaint where the value of the goods or services and the compensation claimed by the complainant exceeded Rs 1,00,00,000.

Commission did have requisite pecuniary jurisdiction to entertain the consumer complaint.

Further, the Commission opined that in no case, whatsoever, an insurer can be asked to pay any amount beyond the sum insured to the complainant. Whether any compensation, over and above, the sum insured should be awarded in a given case or not would depend upon the facts and circumstances of the individual case.

Therefore, it would be difficult to say that merely because the sum insured was only Rs 58,75,000 this Commission would not have pecuniary jurisdiction to entertain the complaint.

In view of the Supreme Court decision in Galada Power and Telecommunication Ltd. v. United India Insurance Company Ltd., (2016) 14 SCC 161, the insurer cannot be allowed to contest the consumer complaint beyond the ground on which the claim has been repudiated.

According to the repudiation letter, the claim was repudiated solely on the ground that Eagle Rider who had given the motorcycle to its pillion rider Neeraj Sethi on hire had advised the person driving the motorcycle to undergo an orientation and the decease did not go such orientation, hence this was a case of intentional self-injury.”

The use of the term ‘intentional self-injury’ in the insurance policy would mean that the person who suffered the injury must have wanted such an injury caused to him.

Ordinarily, this would happen in a case where a person either wants to commit suicide or he wants to cause injury to himself.

A person driving a high-end motorcycle without taking the orientation which the owner of the vehicle wants to be taken by the driver of the vehicle may be said to be negligent if he drives the vehicle without such an orientation, but it can never be said that his intention behind driving such a motorcycle without orientation, desired by its owner, was to cause injury to himself.

Hence, the present case was not covered under exception no. 5(a) of the policy.

OP shall pay a sum of Rs 58,75,000 to the complainant along with compensation in form of simple interest on that amount @ 8% p.a. w.e.f. 6 months from the date of lodgement of the claim till the date of payment. Rs 50,000 as cost of litigation to be paid by the OP. [Mala Sahni Seth v. New India Assurance Co. Ltd., 2020 SCC OnLine NCDRC 461, decided on 08-10-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member), upheld the State Commission’s Majority Order with regard to alleged medical negligence.

The instant revision petition was filed against the Order by the U.P. State Consumer Disputes Redressal Commission, Lucknow.

Complainant had visited the SS Hospital, Varanasi (OP 1) for pain in his left knee. OP 2 examined the patient and suggested Arthroscopic removal of the loose bodies. Complainant alleged that instead of Arthroscopy, OP 2 performed an open operation. Another X-Ray was taken, wherein it was found that the loose bodies were still present.

Later, the complainant underwent the Arthroscopy procedure at Mumbai by the hands of Dr Anant Joshi and gradually his left knee started functioning normally.

What was the complainant aggrieved of?

Aggrieved by the careless and negligent treatment of the OPs, the complainant filed the consumer complaint before the District Forum.

The District Forum allowed the complaint and ordered OPs to pay compensation of Rs 2,30,000 jointly and severally to the complainant.

Further, on an appeal being filed before the State Commission, OP’s were ordered to pay compensation of Rs 4,37,965 by the minority order but the majority order allowed the appeal and set aside the District Forum’s Order.

Again on being aggrieved by the State Commission’s Order, the instant revision petition was filed.

Analysis & Decision

Bench stated that it is an admitted fact that Dr S.C. Goel preferred open operation during the time of procedure instead of Arthroscopy.

As per the operative notes, it was the case of degenerative changes in the left knee joint and the four loose bodies were seen during Arthroscopy and their sizes were 1.5, 1.25, 1 & 1 cm. A large body of more than 5 mm size is difficult to be removed by Arthroscopy. Therefore, the Opposite Party No. 2 preferred open surgery. Moreover, admittedly, the patient before the operation was informed that if the Arthroscopy was not successful, open surgery would be done.

Hence, in view of the above, nothing amounts to negligence in the present matter.

The commission relied on the Supreme Court’s decision in Jacob Mathew, (2005) 6 SCC 1 wherein it was held that,

“When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.”

Coram held that Just because a person suffers a bad outcome from medical treatment, does not mean that they have an automatic right to sue for compensation.

A medical error is only considered “negligent” if the healthcare practitioner has failed to take “reasonable care”.

It was noted in the present case through the medical records of the patient that it was the patient’s misconception that despite the advice of Arthroscopy,  OP 2 performed open surgery.

Hence, the State Commission’s Order had no jurisdictional error, or a legal principle ignored or miscarriage of justice. [Anil Kumar Gupta v. Banaras Hindu University, 2020 SCC OnLine NCDRC 462, decided on 05-10-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Anup K. Thakur (Presiding Member), addressed a complaint wherein a person who had sent a cheque through a courier service was lost and he claimed compensation of the same amount as was mentioned in the cheque as the amount was also credited.

State Commissions Order has been challenged in the present revision petition which partly allowed the Opposite Party against the District Commission’s Order.

What transpired the present case?

Complainant had sent a packet containing account payee cheque through OP [Trackon Couriers (P) Ltd.], which was not delivered to the addressee. However, the cheque amount was credited from the complainant’s account.

Complainant in view of the above alleged that this happened due to the negligent act of OP, which resulted in the loss of Rs 88,500 to the complainant.

What did the State Commission Order?

“We have heard the learned counsel for the parties and have also gone through the record. It is evident from the affidavits and other documentary evidence produced by the OP-appellant that the complainant had not declared the contents of the packet nor did he get the same insured for Rs. 88500/. for which the account payee cheque is alleged to have been kept in the packet. Further, the terms and conditions of the courier service clearly provided that no such contents like blank or account payee cheque shall be sent through the courier.”

“Further, the complainant did not implead either the bank or the person who actually got the account payee cheque credited in favour as party to the complaint, nor did he file any affidavit to that effect. Therefore, the appellant courier company cannot be held liable for the ultimate loss suffered by the complainant, as its liability is only limited to the extent of the amount of fee charged from the complainant. In the present case, the complainant has himself said in the opening para of his complaint that he paid Rs. 20/- in cash while getting the courier booked. Therefore, at best the appellant -OP is liable to pay four times the amount paid by the complainant as mentioned in the Terms and Conditions.”

Decision of the Commission

Coram stated that the State Commission correctly invoked the condition 2 of Termas and Conditions of the courier service which provided that,

“…items such as currency, bearer cheque, etc. would not be items loss of which would make the company liable to pay any claim arising therefrom.”

The above-stated terms and conditions are standard in nature and the complainant ought not to have sent the cheque through courier. And certainly not without a declaration and without taking insurance for the same. This was negligent on the part of the complainant. Op cannot be held accountable and liable for this.

It was also noted that an account payee cheque by law can only get credited to the account of the person named and to a different account only if it so endorsed. Therefore, if the account payee cheque got credited to a different account, it is this which has to be explained by the Bank, not by the OP.

Concluding, its decision, Commission stated that there was a deficiency in service in as much as the parcel was not delivered to the designated addressee, for which the courier has to compensate the complainant; however, this has to be as per terms and conditions of the contract. 

Hence, State Commission’s Order was affirmed. [Rikhab Jain v. Trackon Couriers (P) Ltd., Revision Petition No. 3354 of 2016, decided on 06-10-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Anup K. Thakur (Presiding Member) addressed a consumer complaint alleging unfair trade practice and deficiency of service.

As per the complaint, small contagious plots of different landowners were developed by the OP. On the said plots, multi-storied buildings consisting of composite flats were constructed as per duly approved and sanctioned by the Kolkata Municipal Authority.

Complainants purchased their respective flats paying full consideration as per the market rate and executing and registering the conveyance deed.

After several complaints, the OPs failed to provide the amenities and facilities assured by them. OPs also failed to provide a Completion Certificate which a statutory requirement as per the KMC rules.

Unfair Trade Practices

Complainants sought from the OPs common amenities and facilities. Later the complainants discovered that the playground promised belonged to a local club and the pond contiguous to the complex was described by OPs as their own and shown as a beautified lake in the brochure advertisement.

Analysis & Decision

On perusal of the facts and contentions, the bench stated that the complainants have not been able to establish their complaint. Though the OPs may have indulged in unfair trade practice yet this does not help the complainant’s case.

Maintainability of the complaint

  • The complainants do not constitute a uniform group rather they own flats on different floors in different blocks and premises.

Complainants chose to come together in the present consumer complaint on some basis undoubtedly but it is not clear what the basis might have been.

In an earlier order, the Commission stated that the consumer complaint listed certain facilities that were to be provided as a common one, hence the issue of maintainability of joint complaint stood settled.

Common Facilities

  • Complainant’s stated that with the payment of the full consideration for the flat all common facilities were also automatically paid for.

Whereas OPs stated that some common facilities such as stairs, etc. indeed included in the consideration but other than these extra facilities had to be paid for.

Even the AdvocateCommisisoner’s report on the behest of the State Commission stated that some extra common facilities had already been provided and more facilities could be provided if the complainants were willing to pay for the same.

Brochure and Newspaper Advertisement

  • Bench observed that a lot was promised to the complainants by way of amenities, undoubtedly to attract customers. The fact that some of the amenities promised were not part of the deal was not disclosed by the OP.

Further, the said act was misleading and therefore an unfair trade practice.

The fact that the brochure and the advertisement differed with respect to the amenities offered and further the descriptions of the said amenities and facilities in the Agreement for Sale and the Conveyance Deed also differed does give the impression that OPs were far too casual in the present matter.

In view of the above, OPs are guilty of unfair trade practice within the meaning of Section 2(1)(r) of the Consumer Protection Act, 1986.

But the bench on noting that the complainants themselves agreed to purchase their respective flats on payment of consideration and on due execution and registration of the conveyance deed, stated that the complainants ought to have known what they were purchasing.

Why is their a joint complaint?

Commission finds suspicion with regard to filing a joint complaint and states that this may be only to pressurize the OPs into paying some compensation and/or not insisting upon extra payments for the extra facilities and amenities.

No deficiency of service can be attributed to the OP

A reading of Section 403 of the KMC Act, 1980 makes it clear that it was incumbent on both the OP as well as the complainant to not occupy the premises in the absence of a completion certificate, in view of the said, complainant and the OP are in violation of the law.

Commission dismissed the consumer complaint as the complainants failed to establish their case as the Agreement of Sale as provided by the OP also clearly stated that common facilities mentioned were under the scope of “extra facilities and amenities” and the complainant/purchaser had to pay and extra sum for that.

Hence, the complainants should have been aware of the factum of extra payment for extra facilities.

Complainants in response to the brochure saw the flat, checked the price and bought the flat which appears to be an outright sale of flats.

In view of the above, no question of deficiency of service or unfair trade practice as it would be simply a case of buyer purchasing a falt on ‘as is’ basis, if not then the complainants ought to have known what they were purchasing

Therefore, the consumer complaint was dismissed. [Debashis Sinha v. R.N.R Enterprise, 2020 SCC OnLine NCDRC 429, decided on 21-08-2020]


Counsel for the complainants: Varun Dev Mishra, Advocate with Mrinmoi Chatterjee Advocate

Counsel for the OPs: Shiva Shankar Banerjee, Advocate with Madhurima Ghosh, Advocate with Sankar Sarkar, in person