Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Expressing that “Women are emotionally attached to their hair” Justice R.K. Agarwal (President) and S.M. Kantikar (Member) granted Rs 2 crores compensation to the women who received haircut not as per her instructions and also was subjected to medical negligence due to hair treatment given by Salon at ITC Maurya.

Read the below facts to know this very interesting decision by NCDRC.

Instant complaint was filed under Section 12 read with Section 21 of the Consumer Protection Act alleging deficiency in service on the part of OPs i.e. Chairman ITC Company Ltd. and ITC Ltd. in cutting and treatment of her hair at the Salon of hotel ITC Maurya and medical negligence in hair treatment.

Factual Matrix

Complainant, a week before her interview visited the salon of Hotel ITC Maurya for hairstyling to have a clean and groomed appearance before the interview panel.

According to the complainant, she had specifically instructed the hairdresser for long flicks/layers covering her face in the front and at back and 4-inch straight hair trim from the bottom.

Further, it was submitted that complainant was wearing high powered spectacles and was requested by the hairdresser to keep her head constantly down, she was not able to see herself clearly in the mirror. She further averred that it was a simple haircut but when the hairdresser took more than an hour to do the hairstyling, she questioned about more time and replied by the hairdresser that she was giving her a “London Haircut”. However, to the utter shock and surprise of the Complainant, the hairdresser, Christine chopped of her entire hair leaving only 4 inches from the top and barely touching her shoulders for which she was not instructed by her. She complained about hairdresser to the Manager of the Salon, and she was not given any bill for hairstyling though generally she was earlier being charged heavily. It is stated that because of the hair cutting the Complainant was not looking pretty and she stopped leading her normal busy life.

As no action was taken against the hairdresser, complainant called the General Manager, who misbehaved with her and stated that she was free to take any action against the salon.

Later complainant got to know that her hair were sold by the Salon. She was persuaded by the Salon to get extensions free of cost to which she agreed and later she was also given some hair treatment due to which her scalp got completely damaged, and she faced irritation in the scalp.

Complainant also asserted that the hairdresser scratched and cut her entire scalp with his nails on the pretext that he was doing this exercise to open the hair cuticles. But, when he put the ream which was laden with ammonia, complainant’s scalp got burnt.

On seeking assistance from the hotel staff, complainant stated that they were abusive, rude and disrespectful.

In view of the above background, complainant sought an apology from ITC Management as well as compensation of Rs 3 crores for harassment, humiliation and mental trauma.

Analysis, Law and Decision

Commission noted that OP 2 had admitted the fault on their part by offering the free hair treatment.

Certificate issued by Dr Ranjit Kumar Dass, MBBS to whom the complainant visited for treatment for her scalp, stated that,

“ This is to certify that Ms. Aashna Roy aged 42 years has been suffered from scalp disorder due to chemical treatment done by the Head of Hair Treatment.”

Another question was – What compensation the complainant was entitled to?

Coram referred to the Supreme Court decision in Charan Singh v. Healing Touch Hospital, (2000) 7 SCC 668, wherein it was observed that,

“ While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.”

Keeping in consideration the Supreme Court decision with respect to awarding compensation, Commission opined that the reasonable and just compensation was to be awarded to the complainant.

There is no doubt that the women are very cautious and careful with regard to their hair. They spend a handsome amount on keeping the hair in good condition. They are also emotionally attached to their hair.

Commission added to its analysis that, complainant was a model for hair products because of her long hair and was done modelling for VLCC and Pantene.

Due to haircutting against her instructions, she lost her expected assignments and suffered a huge loss which completely changed her lifestyle and shattered her dream to be a top model.

Complainant also underwent severe mental breakdown and trauma due to the negligence of the OP 2 in cutting her hair and could not concretise her job and finally lost the same.

Hence, in Commission’s opinion, OP 2 was guilty of medical negligence in hair treatment, as complainant’s scalp was burnt and still there is allergy and itching due to the fault of staff of OP 2.

While concluding the matter, Commission allowed the complainant partly and granted compensation of Rs 2,00,00,000 within a period of 8 weeks. [Aashna Roy v. Yogesh Deveshwar, Consumer Case No. 1619 of 2018, decided on 21-09-2021]


Advocates before the Commission:

For the Complainant: In-person

For the Opposite Parties: Mr. Parag P. Tripathi, Sr. Advocate and Mr. L.K. Bhushan, Ms. Aditi Awasthy and Mr. Srinivasan Ramaswamy, Advocates with him.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Discussing a matter wherein allegedly a defective mobile phone was received From Amazon sellers, Bench of Dr Justice R.K. Agarwal (President) and Dr S.M. Kantikar (Member) emphasized the concept of punitive damages.

Present Consumer complaint under Section 2(1)(d)(i) read with Section 12(1)(c) of the Consumer Protection Act had been filed against Amazon Seller Service Private Limited seeking refund of the amount of Rs 9,119 paid towards purchase of Mobile Phone along with litigation and transportation cost of Rs 1 lakh and Punitive Damages to the tune of Rs 7,43,00,00,000 for causing legal injury and financial loss to the complainant and other innumerable consumers.

Complainant purchased a mobile phone from OP. It was contended that after using the Mobile Phone for a couple of days, it started heating up which compelled him to return the same as per the Easy Return Policy of the OP advertised on T.V. Serial, Media and Print Media.

Since, the Complainant was not able to click the option of Return/Exchange on their website, he called the Customer Support of the Opposite Party and was informed that they had changed its Return Policy on the items purchased.

Complainant sent an email to the OP stating that they had always advertised about Easy Returns and that at the time of purchase, it had not been mentioned that the Refund/Return Policy of the Opposite Party has been changed which amounted to Unfair Trade Practice on their part. Vide an email the OP apprised to the Complainant that if he had received a defective/damaged Phone, he would be eligible only for free replacement and not for a refund.

Further, in the invoice bill of the phone along with the order list, the option of returning the phone was given.

Hence, he stated that the action/inaction of the OP was in violation of the Right of Consumers to be informed about the product and to decide as to whether to purchase the same or not.

Complainant alleged that the OP was involved in Unfair Trade Practice by making a false promise and running misleading advertisement about Easy Refund of the Product. The OP was bound to disclose all the necessary information about its Product enabling the Consumers to take a decision as to whether buy the said product or not.

Analysis, Law and Decision

Commission while referring to the decision of Supreme Court in Magma Fincorp Ltd. v. Rajesh Kumar Tiwari, (2020) 10 SCC 399, answered the question as to whether the punitive damages claimed by the complainant can be treated as part of the compensation for determining the pecuniary jurisdiction of the commission.

In the said decision it was held that the Punitive damages cannot be treated as a form of compensation.

Punitive damages under Section 14(1)(d) of the Act cannot be granted by the Consumer Fora in cases of breach of contract unless the act is so reprehensible that it calls for punishment of the party in breach, by imposition of punitive or exemplary damages.

In the instant matter, Bench stated that some of the purchasers are purchasing the products on the online website and after using the said product for a few days, seek a refund of the amount paid by them.

The above was the reason why OP changed its policy of Easy Return.

Commission added that, in case the Complainant had received the defective mobile phone, the remedy was still available with him to get it replaced despite the change in Return/Refund Policy”.

OP had published in the newspaper, namely the Indian Express about the change in its Return Policy with the Heading “Amazon no longer has a return and get refund policy for mobiles” along with this, the said information was also published in NDTV Gadget 360 with the heading that “Mobile Purchased from Amazon India No longer Eligible for Return”

In so far as the option appearing in the Invoice Bill of the Mobile Phone regarding the refund, was concerned, Commission opined that since there was a gap of only 16 days from the date of change of policy, i.e. 07-02-2017 and purchasing of mobile phone, i.e. 23-02-2017, it was not possible to rectify the said mistake or reprint the Invoice Bill.

Therefore, present matter was not a fit case for awarding exemplary punitive damages and action/inaction of the OP did not warrant any punishment. [Paras Jain v. Amazon Seller Services (P) Ltd., Consumer Case No. 930 of 2017, decided on 22-09-2021]


Advocates before the Cmmission:

For the Complainant : Mr. Paras Jain, In person

For the Opposite Party: Mr. Joy Basu, Sr. Advocate with Mr. Amit Kr. Mishra, Mr. Mohit Singh, Mr. Turab Ali Kazmi, Ms. Samridhi Hota and Mr. Kank B, Advocates

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Justice Ram Surat Ram Maurya (Presiding Member) upheld the decision of State Commission with regard to Mediclaim insurance policy being denied.

Present appeal was filed against the State Consumer Disputes Redressal Commission’s decision whereby the complaint was allowed, and appellant was directed to reimburse the medical claim of complainant with interest @6% per annum from the date of repudiation till the date of payment.

The deceased insured had obtained a Mediclaim insurance policy from Apollo Munich Health Insurance and further ported Mediclaim Insurance Policy to Star Health & Allied Insurance Company Ltd., which was valid till midnight of 26-2-2018. The policy was renewed the next day itself.

One morning, the deceased fell unconscious and was diagnosed with “Neuroleptic Malignant Syndrome due to Anti Psychotic Drug Sepsis”. Later he was diagnosed with “Neuroleptic Malignant Syndrome due to Anti Psychotic Drug Rhabdomyolysis Aki Ventilator Associated Trachetis”

On not being satisfied with the treatment, he asked the doctor for discharge and was admitted to another hospital on the same day. Due to no improvement in his condition, he was brought back home as the family was not in a condition to bear his medical expenses.

In the discharge papers of the initial hospital, the deceased was diagnosed to be suffering from “known case of Schizophrenia” to which the complainant protested but the doctor stated that it is the medical term for depression.

The insurance company repudiated the medical claim stating that the deceased while porting the policy did not disclose his disease as he was suffering from “Schizophrenia” for last 20 years, which was proved from Indoor case record submitted along with medical claim.

Complainant submitted that the deceased developed depression, after death of his mother on 02.11.2017. Prior to it, he was not suffering from any disease as such there was no concealment of the disease at the time of obtaining the policy. Repudiation of the claim was illegal.

State Commission stated that it was not noted that in the discharge papers of the Columbia Asia Hospital that “the patient was on mild medication for last 20 years” Further, it added that,

The disease Schizophrenia was developed after, obtaining Insurance Policy. In any case, this was a ported policy, in continuation of earlier policy which was obtained in 2013. As the claim was made of the treatment in September, 2019 as such exclusion clause of the policy was not applicable as 4 years had expired. On these findings, State Commission allowed the complaint.

Analysis, Law and Decision

Commission observed that the contract of Insurance is a contract of uberrima fides and non-disclosure of any material fact vitiates the policy.

Coram noted that the policies were obtained prior to the death of deceased’s mother and at that time he was not suffering from any disease. Apart from the handwritten letter of Dr Manjeet Nath Das, there was no evidence on record to prove that Vivek Khanna was suffering from any disease at the time of obtaining policy.

Indian Medical Council (Professional Conduct Etiquette and Ethics) Regulation, 2002, provides mandatory provision for the hospitals/ doctors to record/maintain Case Summary and Discharge Summary. Neither in Case Summary nor in Discharge Summary of Columbia Asia Hospital or of Sir Ganga Ram Hospital, this fact was noted that the patient was on mild medication, for last 20 years. This handwritten letter dated 17.09.2019 was contrary to the hospital record.

No person affidavit from the doctor concerned was placed hence no reliance on his letter was placed.

Section 45 of Insurance Act, 1938 provided two year limitation for questioning the policy on the ground of suppression/non-disclosure/misrepresentation of the fact at the time of obtaining policy. But the two years period was expired and for the first time on 4-11-2019 the same was questioned.

In view of the above, appeal was dismissed. [Star Health & Allied Insurance Co. Ltd. v. Vineet Khanna, First Appeal No. 383 of 2021, decided om 17-09-2021]


Advocates before the Commission:

For the Appellant: Mr S.M. Tripathi, Advocate
For Respondent-1: Mr Nikhlesh Jain, Authorised Representative

Case BriefsSupreme Court

Supreme Court: While addressing the matter wherein a passenger suffered loss and agony due to delay in the arrival of train, M.R Shah and Aniruddha Bose, JJ., observed that,

These are the days of competition and accountability. If public transportation has to survive and compete with private players, they have to improve the system and their working culture.

Background

Aggrieved by the National Consumer Disputes Redressal Commission, State Commission and District Forum, wherein the    Northern Western Railway and another were directed to pay to the complainant – respondent Rs 15,000 for taxi expenses, Rs 10,000 towards booking expenses along with Rs 5,000 towards mental agony and litigation expenses. Aggrieved by the same, present special leave petition was preferred.

Respondent had booked 4 tickets from Northern Western Railway along with the return reserved tickets.

Respondent’s case was that, he had to take flight at 12:00 noon from Jammu to Srinagar in SpiceJet. But the said train did not reach in time and it was delayed by 4 hours and reached Jammu at 12:00 noon.

Since the Jammu Airport was at a far distance from Jammu Railway Station and they had to reach the airport at least two hours prior to the departure of the flight, they could not reach in time and missed the flight.

Further, the respondent had to book private taxi to reach Srinagar.

In view of the above background, respondent claimed a loss of Rs 9,000as airfare, Rs 15,000 towards taxi hire charges for going from Jammu to Srinagar, Rs 10,000 on account of booking of boat in Dal Lake.

Analysis, Law and Decision

Supreme Court opined that in view of the facts and circumstances of the case, impugned orders awarding compensation to the complainant do not warrant any interference.

No evidence was led by the railways explaining the delay and/or late arrival of train at Jammu. The railways were required to lead the evidence and explain the late arrival of train to establish and prove that delay occurred because of reasons beyond their control. 

At least the railways were required to explain the delay which the railways failed.

Bench held that unless and until the evidence was laid explaining the delay and it was established and proved that delay occurred which was beyond their control and/or even there was some justification for delay, the railway is liable to pay the compensation for delay and late arrival of trains.

Hence, in the present matter, the decision of the Commission’s observing that there was a deficiency in service leading to the railways being liable to pay the compensation to the passenger – complainant was rightly observed.

While concluding the matter and stating that no interference of this Court is called for, Bench emphasized that,

Citizen/passenger cannot be at the mercy of the authorities/administration. Somebody has to accept the responsibility.

 [Northern Western Railway v. Sanjay Shukla, Special Leave Petition (C) No. 13288 of 2021, decided on 6-09-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): C. Viswanath (Presiding Member) while addressing the appeal, expressed that:

If the valuation of the lost gold is determined as on the date when reimbursement is made by insurer, it would open Pandora’s box where the beneficiaries of such Policies may seek undue benefit by deliberately delaying reimbursements.

Instant appeal was filed under Section 19 of the Consumer Protection Act against the decision of State Consumer Disputes Redressal Commission.

Background

Appellant/Complainant was engaged in the business of gold jewellery hallmarking and testing of jewellery, refinery and testing of gold. Appellant took jeweller’s block policy from the respondent/insurance company.

Complainant submitted that while his employee was returning to his shop after collecting jewellery, two unknown persons snatched and fled away with the bag containing jewellery. Thereafter a complaint was filed.

During the course of investigation, appellant filed an insurance claim and further, the appellant was informed that the claim had been repudiated. Aggrieved by the same, a consumer complaint was filed before the State Commission.

Not satisfied with the decision of the State Commission, the complainant filed the instant first appeal.

Analysis, Law and Decision

Commission noted that the Insurance Claim of the appellant was repudiated by the respondents on the ground that the “Cover ceased due to policy terms and conditions”.

The Respondents failed to adduce any evidence in support of their contention that the alleged loss was caused by any of the reasons noted under Exclusion Clause 8 of the Insurance Policy, that there was any fraud/mischief on part of the employee of the Appellant, among others leading to the alleged loss.

Therefore, Commission opined that State Commission rightly dismissed the contention of the Respondents that the Appellant’s claim fell under the Exclusion Clause 8 of the Policy.

Appellant submitted that the value of gold increases day by day and therefore, the State Commission erred in law by disregarding the prayer of the Appellant for a sum of Rs 42,86,293/-. Coram was unable to accept the contention of the Appellant in this regard, since the award of compensation must be restricted to the amount that had been claimed by the Appellant under the Insurance Policy. A perusal of the Insurance Claim form shows that the Appellant had only claimed Rs 25,78,680/- from the Insurance Company.

If valuation of the lost gold is determined as on date when reimbursement is made, it would open a Pandora’s box where the beneficiaries of such Policies may seek undue benefit by deliberately delaying reimbursements.

In view of the above background, appeal was partly allowed. [G.N. Hallmarking & Refinery (P) Ltd. v. National Insurance Company Ltd., 2021 SCC OnLine NCDRC 299, decided on 23-08-2021]


Advocates before the Commission:

 For the appellant: Pawan Kumar Ray, Advocate

 For the Respondent: Animesh Sinha, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Coram of C. Viswanath (Presiding Member) and Justice Ram Surat Ram Maurya (Member) observed that,

NOIDA being a public authority should have adopted uniform policy for extending period of construction between the same category of persons.

Instant petition was filed against the order of the State Consumer Redressal Forum. Earlier, the District Forum held that NOIDA was a public authority, as such could not adopt a different policy for extending period of construction between the same category of persons.

In view of the above findings, the complaint was allowed, and the revisionist was directed to refund Rs 27,010 along with interest @ 15% per annum. The revisionist filed First Appeal and the same was heard by State Consumer Disputes Redressal Commission who by its judgment partly modified the decision of District Forum and reduced the interest to @1% per annum from 15% per annum.

Hence the present revision petition was filed.

Analysis and Decision

Commission observed that the decisions of the Foras below that different policy had been adopted by the revisionist for extension of the period of construction between the same category of persons does not suffer from any illegality.

Further, Coram added that being a public authority, NOIDA was bound to adopt a uniform policy for all.

State Commission had already reduced the interest even below the rate of interest provided by the bank. Hence, the revisionist could not point out any illegality in the orders of Foras below.

In view of the above discussion, the revision was dismissed. [New Okhla Industrial Development Authority v. M.C. Pandey, Revision Petition No. 300 of 2021, decided on 9-08-2021]


Advocates before the Commission:

For the Petitioner: Ms Manisha Agrawal Narain

Tribunals/Regulatory Bodies/Commissions Monthly Roundup

Here’s a run-through of all the significant decisions covered in the month of July, 2021 under the Section of Tribunals/Commission/Regulatory Bodies.


Appellate Tribunal for Electricity

 

Solar Project

Whether there was bona fide delay in commissioning the solar power project?

“…allowed an appeal which was filed against the Order of Karnataka Electricity Regulatory Commission (Commission) whereby, the Commission has held that the Applicant/Appellant was not entitled to extension of time for commissioning of solar power project in terms of the Power Purchase Agreement and Supplementary power Purchase Agreement.”

Read more: https://bit.ly/3jbKtvP


Armed Forces Tribunal

War Injury Pension

Tribunal grants war injury pension to WW-2 soldier who suffered splinter wound injury in Italy

“…war injury pension to World War-2 veteran who suffered splinter wound injury in his right leg”

Read more: https://bit.ly/37cxXXi


Customs Excise & Service Tax Appellate Tribunal

Input Services

Whether distribution of credits on input services attributable to final product on a pro-rata basis proportionate to turnover of each unit between manufacturing plants? Tribunal answers

“…issue involved was that the appeals was whether Parle Biscuits was justified in distributing credits on input services attributable to the final product on a pro-rata basis proportionate to the turnover of each unit between the manufacturing plants of Parle Biscuits and its contract manufacturing units, including Krishna Foods, under Rule 7(d) of the CENVAT Rules.”

Read more: https://bit.ly/2V5CYhG

Convenience Fee

“Convenience fee” charged by PVR for online booking of movie tickets under OIDAR category under S. 65(105) (zh) of Finance Act taxable or not? Tribunal explains

“Issue involved was related to to taxability of “convenience fee” charged by PVR Limited on its customers for online booking of movie tickets under the category of “online information and database access retrieval system” defined under section 65 (75) of the Finance Act and taxable under section 65 (105)(zh) of the Finance Act.” 

Read more: https://bit.ly/3rKRvvg

Principles of Natural Justice

Revenue has miserably failed to discharge its onus; Tribunal finds impugned order opposed to principles of natural justice

https://bit.ly/37a5uB8

CENVAT Credit

Admissibility of the Cenvat Credit in respect of outward GTA; Tribunal allows appeal

https://bit.ly/3xcJKzf


Central Information Commission

Right to Information Act

Can S. 8(1)(d), RTI Act be invoked to deny copy of thesis in view of commercial viability and to protect interests of scholar and his guide?

“…thesis publication of the research scholars cannot be reasonably even brought under any of the suo motu components of disclosure envisaged under Section 4 of the RTI Act, thereby reinforcing the proposition that the protection of Section 8 and 9 exemptions is very much available to the CPIO in the instant case.”

Read more: https://bit.ly/3fbpI23


Delhi State Consumer Disputes Redressal Commission

 

Deficiency of Service

Will Camera Manufacturer — Nikon be liable for deficiency of service caused to a consumer who lost all his photographs due to memory card getting corrupted?

“…Nikon was neither the manufacturer, dealer, importer, wholesaler of the Memory Card which got corrupted leading to the loss of the photos.”

Read more: https://bit.ly/3fbqg87

Builder-Buyer Dispute

Builder handing over possession of plot with incomplete development beyond agreed time. Is buyer entitled to refund of deposit with interest? Commission decides

“Possession of the plot land booked by the complainant was not handed over within the time agreed to despite the complainant has made the payment to the extent sought from time to time.”

Read more: https://bit.ly/2WJUV6d


National Consumer Disputes Redressal Commission

Medical Negligence

  • Can Wheelchair injuries be covered under the ambit of medical negligence?

“Wheelchairs are usually thought of a medical device that is meant to help those who are injured or have physical challenges; they can also be a source of injury when not properly used. Most wheelchair injuries that happen in a medical setting due to the negligence of medical staff and such could be easily prevented by a hospital or nursing home.”

Read more: https://bit.ly/3fimrOy

  • In case a medical practitioner chooses to follow one procedure instead of another, which turned out to be a failure, Can the said act be negligent?

“…The medical professional is often called upon to adopt a procedure that involves a higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.”

Read more: https://bit.ly/3idk4hG


National Company Law Appellate Tribunal

 

Insolvency Proceedings

An Arroyo for OYO | While allowing it to work independently, closed insolvency proceedings; Disallowed external parties to impinge

“We are of the considered view that before Constitution of Committee of Creditors (CoC) mere filing of a ‘Claim’ does not constitute a default per se. It is only on the basis of the ‘Claims’ that the CoC is constituted. In a catena of Judgments, the Supreme Court has reiterated that the prime objective of the Court is not recovery, but revival”.

Read more: https://bit.ly/3rO12BU


National Company Law Tribunal

Personal Guarantor

Personal Guarantor not liable to be prosecuted under S. 95 IBC where corporate debtor concerned is not under corporate insolvency resolution process

https://bit.ly/2Vmxnn0


National Green Tribunal

No Odour control system required to prevent odour from Sewage Treatment Plant. Why? NGT imposes costs on Delhi Jal Board: Why DJB is shirking its responsibility?

Mere spraying of chemical solution and other superficial steps is not effective in installing an effective odour control unit.”

Read more: https://bit.ly/3rMxOTD


National Human Rights Commission

Fr. Stan Swamy | Medical Treatment

  • Ensure every possible medical treatment to imprisoned FR. Stan Swamy as part of life saving measure and protection of his basic human rights: NHRC

https://bit.ly/3yk7ov5

Manual Scavenging

  • Manual scavenging and hazardous cleaning still remain a stinking truth of our nation: NHRC

https://bit.ly/3yi3seb

Post-Poll Violence in West Bengal

  • NHRC refutes allegations in a section of media regarding leakage of report relating to post poll violence in West Bengal

https://bit.ly/3BZMT9h


Securities Exchange Board of India

Fraudulent Scheme

 Manipulation in prices, fraudulent scheme results in debarment-Global Infratech, Directors and 12 other entities ousted from the market

https://www.scconline.com/blog/post/2021/07/23/manipulation-in-prices/

Insider Trading

Financial Racket: Kundra, Shetty into murky waters again | Imposes fine for insider trading on Viaan Industries

https://bit.ly/2V0zFZq


 Securities Appellate Tribunal

 

Collective Investment Scheme

Unregistered Collective Investment Scheme violative of S. 12(1)(b) of SEBI Act and Regulations, order to pay 10% p.a. interest on refundable amount not vitiated

https://bit.ly/3j728EJ


Tribunals/Regulatory Bodies/Commissions Monthly Roundup | June 2021

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Dr S.M. Kantikar (Presiding Member) while addressing an allegation of medical negligence, remarked that,

At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil.

The medical professional is often called upon to adopt a procedure that involves a higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.

Background

Patient, the wife of the complainant was under regular observation in Civil Hospital during her pregnancy. On her complaint of labour pains, she was admitted to the Kalka Nursing Home and remained under observation and then was referred to OP-1. OP-2 performed a caesarean section and a baby girl was delivered.

Complainant submitted that after her operation, the patient developed pain and she and she became critical and unconscious; therefore, the OP-2 referred the patient to PGI Chandigarh without providing any medical attendant. The patient died on the way, and she was brought back to the OP-1 hospital.

Complainant filed a consumer complaint while alleging that medical negligence on the part of the OP-1 and OP-2 caused the death of his wife.

District Forum had allowed the complaint and ordered the OPs to pay jointly and severally a lump sum compensation of Rs 5,00,000.

State Commission also upheld the District Forum’s decision.

Being aggrieved with the above decision, OPs 1 and 2 filed the revision petition.

Main allegation of the Complainant was that the cause of death of his wife was either due to spinal shock because of excessive anaesthesia or mismanagement while applying anaesthesia or excessive bleeding at the time of delivery which the OP-2 failed to control.

Coram relied on the decision of Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.

The medical practitioner faced with such an emergency always tries his best to redeem the patient out of his suffering. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient. 

Commission observed that a mere deviation from normal professional practice is not necessarily evidence of negligence. Also, mere accident is not evidence of negligence. So also, an error of judgment on the part of a professional is not negligence per se.

In view of the facts and circumstances of the present matter, Coram held that merely because the medical practitioner chose to follow one procedure and not another and the result was a failure cannot be held as a negligent act.

Commission opined that the patient was in an advanced stage of labour and it was an emergency, so OP-2’s decision was correct to perform an emergency Caesarian operation to save the life of the patient and foetus.

The duty of treating doctor is to decide the method of treatment depending upon the condition of the patients and the circumstances of each case, thus it cannot be construed as medical negligence.

The commission while concluding the decision set aside the orders of both the lower fora and revision petition was allowed. [J.N. Shori multi-speciality Hospital v. Krishan Lal, 2021 SCC OnLine NCDRC 291, Decided on 23-07-2021]


Advocates before the Court:

For Petitioners: Mr Abhineet Taneja, Advocate
For Respondent 1: Mr Bharat Swaroop Sharma, Advocate

For Respondent 2: Dr Sushil Kumar Gupta, Advocate

Case BriefsSupreme Court

Supreme Court: The Bench of Uday Umesh Lalit, Hemant Gupta and S. Ravindra Bhat, JJ., while giving major relief to homebuyers, held that rights of purchasers are the same as that of original allottees.

Appellant (builder) was aggrieved by the order of the National Consumer Disputes Redressal Commission (NCDRC).

Respondent (Purchaser) sought a direction against the builder, for a refund of the consideration amount of Rs 1,93,70, 883 received by the latter as consideration for the sale of a flat along with interest from the date different instalments were paid as well as compensation and costs.

Factual Matrix

As per the allotment letter, the possession of the flat was to be handed over within 36 months. The original allottee made payment to the tune of ₹1,55,89,329/-, for the first seven instalments as demanded by the builder.

After noticing the slow pace of construction, the original allottee decided to sell the flat. The purchaser who was in search of a residential flat was approached by her through a broker. He was assured that the possession of the flat would be delivered on time, and he agreed to purchase the flat and paid an amount of 1,00,000/- as advance towards the total sale consideration of ₹1,55,89,329/.

Further, it was submitted that the purchaser alleged that possession was not delivered in October, 2015 as promised (in the allotment letter).

Purchaser decided to wait for the possession and not to make any payment towards the sale; however, the original allottee insisted upon the execution of an agreement to sell and demanded payment of instalments, which she had made to the builder, stating that she could not wait for any further and she would forfeit the earnest money and cancel the deal.

The purchaser alleged that he made enquiries from the officials of the builder, who assured that the possession would be delivered by June 2016. Therefore, the purchaser, on 17.02.2016, entered into an agreement of sale with the original allottee, and paid an amount of ₹1,85,00,000/-.

Later, original allottee requested the builder to transfer the flat in favor of the respondent. Purchaser visited the site to acquaint himself with the extent of construction but he was denied entry by the builder’s employees citing security reasons and was informed that the possession would be delivered shortly.

But till the end of the year 2017, possession of the said flat was not delivered.

In view of the above-stated facts, the purchaser sought a refund of the amount, but was in vain. Purchaser expressed his shock on receiving the demand letter for the 11th instalment. But on refusal for the same, builder’s officials threatened the purchaser of cancellation and forfeiture of the amounts paid.

Hence, the appellant had approached the NCDRC for a direction to the builder to refund the entire amount with interest at the rate of 24%.

NCDRC ordered the following:

“…we direct the Developer to refund the amount deposited with the developer.”

Analysis, Law and Decision

Bench noted that the builder’s principal argument was that the rights of a purchaser were not the same as the original allottee.

Supreme Court expressed that the builder did not deny that upon issuance of the endorsement letter, the purchaser not only stepped into the shoes of the original allottee but also became entitled to receive possession of the flat.

Whether a subsequent purchaser is not entitled to similar treatment as the original allottee, and can be denied relief which otherwise the original allottee would have been entitled to, had she or he continued with the arrangement?

Purchasers step into the shoes of Original Allottees

An individual such as the original allottee, enters into an agreement to purchase the flat in an ongoing project where delivery is promised.

The terms of the agreement as well as the assurance by the builder are that the flat would be made available within a time- frame.

It is commonplace that in a large number of such transactions, allottees are not able to finance the flat but seek advances and funds from banks or financial institutions, to which they mortgage the property. The mortgage pay-outs start initially after an agreed period, commencing in a span of about 15 to 24 months after the agreement. This would mean that in most cases, allottees start repaying the bank or financial institutions with instalments (mostly equated monthly instalments) towards the principal and the interest spread over a period of time, even before the flats are ready.

Bench in view of the above-stated expressed that,

“…prolongation of the project would involve serious economic repercussions upon such original allottees who are on the one hand compelled to pay instalments and, in addition, quite often -if she or he is in want of a house -also pay monthly rents. Such burdens become almost intolerable.”

 Hence, allottees cannot indefinitely wait and prefer to find purchasers who might step into their shoes.

Conclusion

Supreme Court on perusal of the facts and circumstances of the case decided that the nature and extent of relief, to which a subsequent purchaser can be entitled to, would be fact dependent.

Adding to the above, Court elaborated that, it cannot be said that a subsequent purchaser who steps into the shoes of an original allottee of a housing project in which the builder has not honoured its commitment to deliver the flat within a stipulated time, cannot expect any – even reasonable time, for the performance of the builder’s obligation. Such a conclusion would be arbitrary, given that there may be a large number- possibly thousands of flat buyers, waiting for their promised flats or residences; they surely would be entitled to all reliefs under the Act.

Since the purchaser agreed to buy the flat with a reasonable expectation that delivery of possession would be in accordance within the bounds of the delayed timeline that he had knowledge of, at the time of purchase of the flat.

Therefore, in the event the purchaser claims refund, on an assessment that he too can (like the original allottee) no longer wait, and face intolerable burdens, the equities would have to be moulded. Hence, it would be unfair to assume that the purchaser had knowledge of the delay.

The equities, in the opinion of this court, can properly be moulded by directing refund of the principal amounts, with interest @ 9% per annum from the date the builder acquired knowledge of the transfer, or acknowledged it.

In view of the above discussion, the order of the NCDRC was modified. [Laureate Buildwell (P) Ltd. v. Charanjeet Singh, 2021 SCC OnLine SC 479, decided on 22-07-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Dr S.M. Kantikar (Presiding Member) decided a matter wherein a question of whether wheelchair injuries would fall under the ambit of medical negligence or not.

In the present matter, complainant – patient came to Petitioner/OP-Hospital for follow-up check-up after her spinal surgery. It was alleged that she was very rashly and negligently wheeled from the hospital corridor, on the ramp by an unidentified security guard without putting seat belt, as a result of which she suffered ‘head-on fall’ from the wheelchair and sustained a fracture.

Further, the complainant alleged that she was not given immediate first aid and was made to stand in the queue for payment of X-Ray charges resulting to further pain and agony.

Hospital authorities were made aware of the said incident but they willfully ignored the same. Complainant submitted that it was gross negligence & deficiency in service from the supportive staff at the hospital. Being aggrieved by the negligent care and conduct of the Opposite Party, she filed the Consumer Complaint.

District forum had directed petitioner hospital to pay Rs 1,00,000 as compensation and Rs 10,000 towards the cost of legal proceedings.

State Commission dismissed the petitioner’s appeal with Rs 25,000 costs and further directing the hospital to pay Rs 3,51,000 compensation to the complainant.

Being aggrieved with the above orders, petitioner hospital approached this Commission.

In Commission’s view, the State Commission had passed a well-appraised reasoned order.

Coram opined that the present matter, prima facie does not fall strictly in medical negligence. Further elaborating more, Commission expressed that,

Wheelchairs are usually thought of a medical device that is meant to help those who are injured or have physical challenges; they can also be a source of injury when not properly used. Most wheelchair injuries that happen in a medical setting due to the negligence of medical staff and such could be easily prevented by a hospital or nursing home.

Further, Bench added that hospital authorities should make systemic improvements in their administration and their grievance redressal mechanism to ensure the patient’s safety and to maintain a good Doctor-Patient relationship.

In view of the above discussion, Commission held that nothing warrants interference with the impugned order of the State Commission in the exercise of the revisional jurisdiction of this Commission.[P.D. Hinduja National Hospital & Medical Research Centre v. Harsh Ashok Lal, 2021 SCC OnLine NCDRC 194, decided on 8-07-2021]


Advocates before the Commission:

For the Petitioner: Mr. Shekhar B. Prabhavalkar, Advocate

For the Respondent: In-person

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Dinesh Singh (Presiding Member) addresses matter regarding claiming of insurance cover.

Instant appeal was filed under Section 19 of the Consumer Protection Act, 1986 challenging the decision of the State Consumer Disputes Redressal Commission.

Factual Matrix

Late Jai Prakash, husband/father of the Complainant met an unnatural death, had obtained four insurance policies from the Insurance Company. It was stated that the Insurance Company did not query three of the four policies.

In respect of the 4th policy, it was objected that the claim was on the ground that the death was not accidental but a case of suicide, falling under the exceptions to the policy, and the claim was declined.

Insurance Company argued that the three policies were concealed while taking the fourth policy i.e. the subject policy.

Commission agreed with the appraisal and reasoning of the State Commission’s findings that in the instant case non-disclosure of the previous policies by the life assured was not fatal to the claim.

Another argument made by the Insurance Company was that the life assured had committed suicide which fell under the exception clause of the policy, that it was not a case of accidental death. Further, the insurance company reported that the injuries on the deceased were only possible in cases of a suicide death.

Police in its Inquiry Report had concluded that the cause of the accident due to rail accident could not be ruled out.

The insurance company had raised the objection of suicide based on the “medico-legal” report of a private agency, prepared on perusal of the documents on record, after about one year of the incident.

Inquest is conducted as mandated under the Cr.P.C., Post Mortem is conducted by the concerned government Medical Officer, Investigation is conducted by the Police (a private agency engaged by the Insurance Co. does not substitute for the Police).

 It was further noted that there was no evidence on record that the Insurance Company made a police complaint or filed a complaint before the competent judicial magistrate that a false case of accidental death had been made out for a wrongful gain when the death was by suicide, or that any remedial action in case of the other three policies settled earlier was subsequently undertaken, or any disciplinary action against its functionaries responsible for settling the earlier three policies was taken.

Commission stated that weighing the evidence in its totality, the eventuality of the death being accidental cannot be ruled out and the benefit of preponderance of probability goes to the complainants.

Hence, State Commission erred in placing reliance on the report of a private agency engaged by the Insurance Company while ignoring the complete spectrum of evidence in the matter.

Therefore, the Insurance Company wrongly withheld the claim in respect of the subject policy.

Bench directed the Insurance Company to settle the claim of the subject policy with interest at 9% per annum.

For the undue harassment and the loss and injury caused to the Complainants and for the inconsistency and arbitrariness in decision making, a cost of Rs. 1 lakh is imposed on the Insurance Co. through its chief executive, of which Rs. 50 thousand shall be paid to the Complainants and Rs. 50 thousand shall be deposited in the Consumer Legal Aid Account of the State Commission.

“…advised to inculcate and imbibe systemic improvements for future, in that there is no inconsistency or arbitrariness in decision-making in identical facts and same points of law.”

[Kamla Devi v. Tata AIG Life Insurance Corporation, 2021 SCC OnLine NCDRC 182, decided on 10-06-2021]


For the Appellant: Mr. Praveen Kumar Aggarwal, Advocate

For the Respondents No. 1 &2: Mr. S. Hari Haran, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Deepa Sharma (Presiding Member) addressed a matter wherein a consumer was subjected to the agony of delayed possession of a flat by being duped and coerced by the project owner.

Factual Matrix

Complainant 3 had booked a flat in Garden Isels project of the OP and the possession was to be handed over within 42 months, i.e. 3 and a half year, for which he had taken a home loan and had paid an EMI.

OP duped the complainant when he complained of the delay in construction, when OP suggested the complainant of buying another flat. Afterwhich, complainants had bought a flat in the project Imperial Courts and in 2015, an allotment letter was issued, and OP promised to hand over the possession within 24 months.

Further, it was contended that in one month of October, 2015, the Complainant as per the plan and advice of OP sought cancellation of the purchased unit in Garden Isels and requested for the transfer of the amount in the account of Imperial Courts flat.  It was stated that due to the transfer of the said amount, complainant lost home loan monthly EMI paid for over 25 months, 5% deduction on cancellation of the unit and the late payment amount of 2 to 4 Lakhs calculated @ 12% p.a. on the late payment of the installments and this amount comes to approximately 14 to 16 Lakhs and it is recoverable from the Opposite Party along with compensation for harassment and mental agony.

OP was paid total sale consideration amount and as per the possession letter, the flat was to be handed over within 45 days, i.e. by 15th February, 2017. However, series of unfortunate events took place. It was submitted that OP informed the complainants about the shortage of material and therefore informed them that it would take a long time for them to install 7 ACs one Jacuzzi, well-furnished modular kitchen and wardrobes in all four bedrooms.

On the advice of the OP, the Complainants under duress decided to give up all the materials like installation 7 ACs, one Jacuzzi, well-furnished modular kitchen and wardrobes in all four bedrooms and for that purpose, the Opposite Party had given a discount of 4,72,900, while the actual cost of all those articles were more than 15 Lakhs.

It was submitted that the OP had done nothing to ensure the handing over of the possession of the Imperial Courts flat.

The agreement between the parties was biased and contrary to the settled principle of law and public policy, hence, the agreement could not be implemented in the present form. The Complainants were induced to enter into this agreement which OP now sought to enforce.

OP was forcing the complainants to take possession of a flat that was not proposed and the overall condition of the project was not what was represented. Therefore, the agreement stood breached and deserved to be cancelled.

Analysis, Law and Decision 

Crux of the problem was that the flat was to be handed over within 42 months plus 6 months of a grace period, i.e. within 4 years. Before the expiry of 4 years, the complainant had booked a flat at the other project of OP for which the allotment letter was handed over and possession was promised within 24 months.

Coram stated that it is a settled proposition of law that if somebody complaints inducement, force or coercion it is his duty to plead the facts which led to said inducement, coercion or force and thereafter, prove those facts.

It was noted by the Commission that the complainants acted voluntarily and during the existence of an allotment of their flat in Garden Isles project, they booked another flat in Imperial Courts and finding difficult in paying installments towards Imperial Courts flat, they sought cancellation of the allotment of the flat in Garden Isles even before the period within which the possession of the said flat was to be handed over to them and requested for transfer of the money paid against the said flat in the account of Imperial Courts.

When can possession of a flat not be refused?

Commission while referring to the decision of the Supreme Court in Ireo Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241 expressed that where the offer of possession is made along with Occupation Certificate, even if there is a delay in the said offer, the allottees cannot refuse to take the possession.

In light of the above facts and contentions of the matter, Coram held that there was no delay in the offer of possession and complainants since failed to give any valid reason and there existed no valid reason for the complainants to refuse to take possession and terminate the contract, the refusal to take possession is hence not justifiable.

Therefore, Complainants have failed to prove any fact on record to show that the OP had adopted an unfair trade practice or that the agreement was biased or one-sided. [Sudha v. Jaiprakash Associates Ltd., 2021 SCC OnLine NCDRC 166, decided on 29-04-2021]


Advocates before the Commission:

For the Complainant: Nakul Singh Pathania, Advocate

For the Opp.Party: Sukumar Pattjoshi, Sr. Advocate With Sumeet Sharma, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Dinesh Singh, Presiding Member, held that,

“…selling a second-hand car, in place of a new car, after accepting the full consideration price for a new car, inter alia constitutes ‘unfair trade practice’ under Section 2(1)(r) of the Consumer Protection Act.”

Revision Petition was instituted under Section 21(b) of the Consumer Protection Act, 1986 impugning the State Commission’s Order.

Short point in the present case was the delivery of a second-hand car, instead of a new car, by the OPs to the Complainant, after obtaining the full consideration price of a new car.

State Commission determined that the District Forum was correct in concluding that a second-hand car was delivered to the complainant instead of a new one. Further, it was also determined that the compensation awarded by the District Forum was just and equitable.

State Commission’s Order: 

“OPs/respondents refuted the allegations leveled by the complainant in the complaint and averred that at the time of Chhattisgarh Rajyotsav Fair, the vehicle was booked by Hardeep Singh Hora, on payment of Rs.10,000/-. But, later on, no amount was paid by that person and the vehicle was never delivered to Hardeep Singh Hora and so it remained a branch new vehicle and it was sold to the complainant. As such it was not an old or secondhand vehicle and so no amount was payable to the complainant as compensation.” 

Bench noted from the examination made by two fora below, after obtaining the total consideration price of new car, a second-hand car, instead of a new car, was delivered by the OPs to the Complainant.

Commission remarked that the present case revolved around unfair trade practice and stated that:

Factum of selling a second-hand car, in place of a new car, after accepting the full consideration price for a new car, inter alia constitutes ‘unfair trade practice’ (“- – unfair method or unfair or deceptive practice – -”) within the meaning of Section 2(1)(r) of the Act 1986.

Hence, the district forum’s order which was upheld by the State Commission was sustained. [Shashank Shah v. Gurjeet Singh Maan, 2021 SCC OnLine NCDRC 171, decided on 01-04-2021]


Advocates before the Commission:

For the petitioner: Mr Manish Kumar, Advocate with Mr Piyush Kaushik, Advocate

For the Respondent: Mr Kaushik Mishra, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): C. Viswanath (Presiding Member) while addressing the complaint reiterated the settled position of law, expressed that,

Section 58 of the Act provides that the National Commission shall have jurisdiction to entertain the Complaint where value of the goods or services paid as consideration exceeds rupees ten crores.

Complainant submitted that he was given a cash credit limit of Rs 25 lakhs by the State Bank of India.

It was submitted that OP/SBI had committed deficiency of service as an interest of Rs 18,66,719 had been demanded from the complainant against the outstanding loan of Rs 23 lakhs.

What was the prayer made by the complainant?

  1. Pass an award directing the Opposite Party to pay a sum of Rs 19,85,27,562 to the Complainant towards compensation and damages for negligence, deficiency in service and unfair trade practices;
  2. Pass an award directing the Opposite Party to pay a sum of Rs 5,00,000 to the Complainant for pain and mental agony;
  3. Pass an award directing the Opposite Party to pay a sum of Rs 4,00,00,000 to the Complainant for loss of closing of the industry of the complainant;
  4. Pass an award directing the opposite party to pay a sum of Rs 4,00,00,000 to the Complainant for the loss of reputation;
  5. And directing the Opposite Party to pay the cost of entire proceedings; rectification and
  6. Pass such further or other orders as this National Commission may deem fit and proper in the circumstances of the case and thus render justice.

Decision

Bench remarked that Consumer Protection Act, 2019 provides for a hierarchy of the Consumer Fora to deal with consumer complaints, depending upon the pecuniary value of the complaint.

In the instant case, the complainant had demanded disproportionate compensation to inflate the value of the complaint and reach the pecuniary jurisdiction of this Commission which is nothing but an abuse of the process of law.

Hence, the complaint was dismissed in view of the above discussion, since it did not fall within the pecuniary jurisdiction of the National Commission.[M.V. Madhu Sudhana v. SBI, 2020 SCC OnLine NCDRC 845, decided on 06-04-2021]

COVID 19Hot Off The PressNews

In view of the recent surge in the COVID-19 cases, NCDRC has taken the following decisions till further orders:

  • Physical Hearing and Hybrid Hearing of cases to remain suspended.
  • Cases listed for physical and hybrid hearings before NCDRC Benches from 12th April onwards, shall be taken up through video conferencing only.
  • Registry shall continue listing cases in terms of the Notice issues on 02 June, 2020, 9th June, 2020 and 26th June, 2020.
  • Filing/Dak shall be accepted and date stamped at entry gate of the Commission but same shall be processed after 4 days of filing.
  • public hearing will remain suspended till further orders.
  • some of the members of the Commission shall be allowed to work from home on rotational basis.

Nationa Commission Disputes Redressal Commission

[Notice dt. 10-04-2021]

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and MR Shah. JJ has held that the proceedings instituted before the commencement of the Consumer Protection Act 2019 on 20 July 2020 would continue before the fora corresponding to those under the Consumer Protection Act 1986 (the National Commission, State Commissions and District Commissions) and not be transferred in terms of the pecuniary jurisdiction set for the fora established under the Act of 2019.

Background

The material provisions of the Consumer Protection Act 2019 came into force on 20 July 2020. The appellants instituted a consumer case against real estate developers before the National Consumer Disputes Redressal Commission on 18 June 2020 under the Consumer Protection Act 1986 . The NCDRC by its order dated 30 July 2020 dismissed the consumer case on the ground that after the enforcement of the Act of 2019, its pecuniary jurisdiction has been enhanced from rupees one crore to rupees ten crores. The appellants’ review petition was also dismissed by the NCDRC on 5 October 2020. In the present case, the claim of Rs. 2.19 crores is below the enhanced pecuniary jurisdiction of the NCDRC.

This gave rise to the issue as to whether a complaint which was filed and registered under the Act of 1986, before the new Act of 2019 came into force, has to be entertained under the provisions of the erstwhile legislation. In anticipation of the enforcement of the Act of 2019, an administrative notice was issued by the NCDRC on 17 July 2020 to allow the functioning of its registry for fresh filings on 18 July 2020, since the new law was to come into force on 20 July 2020.

Analysis

Impact of a change in forum on pending proceedings and retrospectivity

After considering a number of precedents that have interpreted the impact of a change in forum on pending proceedings and retrospectivity, the following position of law emerged:

“a change in forum lies in the realm of procedure. Accordingly, in compliance with the tenets of statutory interpretation applicable to procedural law, amendments on matters of procedure are retrospective, unless a contrary intention emerges from the statute.”

Section 107 of the Act of 2019

  • Section 107(1) of the Act of 2019 repeals the Act of 1986.
  • Section 107 (2) has saved “the previous operation” of any repealed enactment or “anything duly done or suffered thereunder to the extent that it is not inconsistent with the provisions of the new legislation”.
  • Section 107(3) indicates that the mention of particular matters in sub-Section (2) will not prejudice or affect the general application of Section 6 of the General Clauses Act.

Section 6 of the General Clauses Act

Section 6 of the General Clauses Act provides governing principles with regard to the impact of the repeal of a central statute or regulation. These governing principles are to apply, “unless a different intention appears”. Clause (c) of Section 6 inter alia stipulates that a repeal would not affect “any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed”. The right to pursue a validly instituted consumer complaint under the Act of 1986 is a right which has accrued under the law which was repealed.

Clause (c) of Section 6 has the effect of preserving the right which has accrued. Clause (e) ensures that a legal proceeding which has been initiated to protect or enforce “such right” will not be affected and that it can be continued as if the repealing legislation has not been enacted. The expression “such a right” in clause (e) evidently means the right which has been adverted to in clause (c).

“The plain consequence of clause (c) and clause (e), when read together is twofold: first, the right which has accrued on the date of the institution of the consumer complaint under the Act of 1986 (the repealing law) is preserved; and second, the enforcement of the right through the instrument of a legal proceeding or remedy will not be affected by the repeal.”

However, considering that right to a forum is not an accrued right, the question whether the pending legal proceedings are required to be transferred to the newly created forum by virtue of the repeal would still persist.

While Section 6(e) of the General Clauses Act protects the pending legal proceedings for the enforcement of an accrued right from the effect of a repeal, this does not mean that the legal proceedings at a particular forum are saved from the effects from the repeal.

Object of the Act of 2019

There is no express language indicating that all pending cases would stand transferred to the fora created by the Act of 2019 by applying its newly prescribed pecuniary limits.

The Act of 2019 is enacted to provide “for protection of the interests of consumers” and has taken note of the evolution of consumer markets by the proliferation of products and services in light of global supply chains, ecommerce and international trade.

“New markets have provided a wider range of access to consumers. But at the same time, consumers are vulnerable to exploitation through unfair and unethical business practices. The Act has sought to address “the myriad and constantly emerging vulnerabilities of the consumers. The recurring theme in the new legislation is the protection of consumers which is sought to be strengthened by procedural interventions such as strengthening class actions and introducing mediation as an alternate forum of dispute resolution.”

In this backdrop, something specific in terms of statutory language – either express words or words indicative of a necessary intendment would have been required for mandating the transfer of pending cases.

“One can imagine the serious hardship that would be caused to the consumers, if cases which have been already instituted before the NCDRC were required to be transferred to the SCDRCs as a result of the alteration of pecuniary limits by the Act of 2019. A consumer who has engaged legal counsel at the headquarters of the NCDRC would have to undertake a fresh round of legal representation before the SCDRC incurring expense and engendering uncertainty in obtaining access to justice. Likewise, where complaints have been instituted before the SCDRC, a transfer of proceedings would require consumers to obtain legal representation before the District Commission if cases were to be transferred. Such a course of action would have a detrimental impact on the rights of consumers. Many consumers may not have the wherewithal or the resources to undertake a fresh burden of finding legal counsel to represent them in the new forum to which their cases would stand transferred.”

Hence, it would be difficult to attribute to Parliament, whose purpose in enacting the Act of 2019 was to protect and support consumers with an intent that would lead to financial hardship, uncertainty and expense in the conduct of consumer litigation.

Data on pendency of cases

Data drawn from annual reports of the Union Ministry of Consumer Affairs indicates pendency from financial year 2015-16 to financial year 2019-20 indicates that as on 31 October 2019, 21,216 cases were pending before the NCDRC and 1,25,156 cases were pending before the SCDRC. Many of these cases would have to be transferred if the view which the developer propounds is upheld.

“This will seriously dislocate the interests of consumers in a manner which defeats the object of the legislation, which is to protect and promote their welfare. Clear words indicative of either an express intent or an intent by necessary implication would be necessary to achieve this result. The Act of 2019 contains no such indication.”

Hence, the legislature cannot be attributed to be remiss in not explicitly providing for transfer of pending cases according to the new pecuniary limits set up for the fora established by the new law, were that to be its intention.

Conclusion

All proceedings instituted before 20 July 2020 under the Act of 1986 shall continue to be heard by the fora corresponding to those designated under the Act of 1986 and not be transferred in terms of the new pecuniary limits established under the Act of 2019.

[Neena Aneja v. Jai Prakash Associates Ltd., 2021 SCC OnLine SC 225, decided on 16.03.2021]


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Appearances before the Court by:

For appellants: Advocate P Vinay Kumar

For respondent: Senior Advocate Krishnan Venugopal

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): C. Vishwanath (Presiding Member) upheld the State Commission’s Order.

Petitioner/Complainant who was an account holder of HDFC Bank and was working as an officer with Qatar National Bank had deposited an amount of Rs 4,60,000. He found to his surprise that the entire balance was transferred from his account to another account as per the Bank Statement.

Later on filing a complaint in view of the above, the culprit was found by the police but only an amount of Rs 70,500 could be recovered.

Alleging deficiency in service and seeking recovery of the balance amount the consumer complaint was filed.

OPs denied that any of their employees were involved in any fraudulent act. Funds were transferred as per the instructions received from the Complainant through net banking and since the respondent did not respond to the verification email and messages about the transfer request, the said was affected.

Further, the OPs contended that the complainant was informed after the transaction was completed. Adding to this, it was stated that:

Only a Complainant could know about Net Banking Password ‘IPIN’ and nobody else could operate the account. They also took the plea that the alleged fraudulent transaction was reported to the Bank only on 31.12.2008, i.e., 47 days after the transaction date.

District Forum allowed the complaint, whereas the State Commission held that the complainant failed to establish negligence against the Bank.

State Commission also added that the Bank after following the due procedure, transferred the funds.

Being aggrieved with the State Commission’s Order, the present revision petition was filed.

Analysis and Decision

Bench noted that the petitioner availed of the Net Banking facility and signed the TPT Form agreeing to the terms and conditions. He being a Banker himself was aware of the nature of transactions. He was provided with a customer ID and Net Banking Password (IPIN), which he should have kept with himself. Before the transfer of funds, a customer was to add the name of beneficiaries. On any request for transfer of funds, the Bank sends a mail and SMS alert, which the Bank has done so in the present case.

The Bank waited for 24 hours and not receiving any adverse feed-back, effected the transfer. Once the transfer of funds was made, again the Petitioner was informed of the same by the Respondent/ Bank. Only after 47 days of transaction did the Petitioner choose to complain.

Hence, no deficiency in service on the part of the respondents was found.

Therefore, complainant failed to establish that the Bank had acted mala fidely, fraudulently and in violation of the security procedure. No illegality, jurisdictional error or material irregularity was found in the State Commission’s order.[Nikhil Phutane v. HDFC Bank Ltd., 2021 SCC OnLine NCDRC 51, decided on 09-03-2021]


Advocates before the Commission:

For the Petitioner: Mr Nikhil Jain, Advocate
For the Respondent: Mr Sharique Hussain, Advocate

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)