National Consumer Disputes Redressal Commission
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National Consumer Disputes Redressal Commission (NCDRC): Justice R.K. Agarwal (President) and Dr S.M. Kantikar and Binoy Kumar (Members) decided a matter with regard to alleged medical negligence.

Issue for Consideration:

Whether non-referral of the patient to the Specialist or higher centre amounts to deficiency in service or medical negligence of the treating doctor/hospital?

Complainants Case

The complainant’s case was that their son Rahul (since deceased, referred to as the “patient”) about 17 years of age was hit by the train while crossing the railway track. It was alleged that the doctors did not carefully attend to the fatal head injuries. The Neurosurgeon was not available in the hospital and the patient was not referred to the higher centre. Ultimately, the patient died.

OPs denied negligence during treatment, and they treated the patient with all precautions.

On being aggrieved by the alleged carelessness, deficiency in service and medical negligence causing the death of Rahul, the complainants filed the consumer complaint before the District Forum.

Analysis, Law and Decision

Commission noted that the deceased had sustained grievous injuries due to hit by the train. Immediately after conducting relevant investigations and X-rays, he was shifted to the ICU and was kept under observation.

On perusal of the facts and circumstances of the present matter, Coram opined that the patient was evaluated by specialist doctors and was treated as per their reasonable skills and standard of practice.

Commission did not find any failure of duty of care or negligence from the OPs to refer the patient at higher centre, because it was a serious accident, and the patient was in critical stage.

It was held that the doctors took the required care as under the standard of practice to deal with the emergency situation.

Lastly, it was concluded stating that the patient was critical and unless his condition gets stabilized, shifting the patient to a higher center as not advisable. Hence, no deficiency in treatment was found by the treating doctors.

No merit was found in the revision petition. [Malhe Ram v. Jeevan Jyoti Hospital, 2021 SCC OnLine NCDRC 416, decided on 13-12-2021]

Advocates before the Commission:

 For the Petitioners: Mr. Naresh Kumar Gupta, Advocate

For the Respondent 2 – 4: Mr. Navin Kumar, Advocate

For the Respondent 5: Mr. Anand Vardhan, Advocate

Case BriefsDistrict Court

Delhi State Consumer Disputes Redressal Commission: Coram comprising of Dr Justice Sangita Dhingra Sehgal (President) and Anil Srivastava (Member) addressed a grievance pertaining to loss of photos either due to the Nikon Camera or Memory Card leading to the filing of the consumer complaint.

Facts that led to the present complaint

Complainant was the owner of a Nikon Digital Camera and he took the same camera on a trip to Europe to shoot some memorable photos. After a few days, the said camera started showing a warning to the effect that any further use shall delete all data due to which the complainant switched off the camera and stopped using it.

On return to India, the complainant informed OP-2 of the said fault which had occurred in the camera along with the memory card, who informed him that there was nothing wrong with the camera but the data card had been corrupted.

Complainant left the memory card with Op-2 in their shop for retrieving the data but it proved futile and complainant was told that the memory card will shown at the service centre of Op-1. However, after two weeks the memory card was returned telling the complainant that the retrieval of the data was not possible because the memory card had been totally damaged. It is further alleged that Op-2 offered a replacement of the faulty memory card which complainant declined. It is also stated that later on, Op-2 informed that the memory card was faulty and it was a defective product supplied by OP-3.

Complainant had filed the consumer complaint against all the OPs seeking Rs 5,00,000 compensation for the loss, mental agony and harassment.

District Forum

In District Forum’s opinion, all three OPs were at fault and deficient in providing the service to the complainant, hence liable to compensate the complainant for sufferance of any loss, mental agony and harassment.

Hence each OPs were directed to pay an amount of Rs 25,000

Present Complaint

Nikon impugned the District Forum’s Order on the ground that the Forum erred in not appreciating the fact that the actual problem was with the Memory Card alone and the camera manufactured by the Nikon was in proper working condition.

Further, it was stated that the District Forum failed to take into consideration the warranty clauses that clearly excluded the liability of Nikon from damage occurring due to improper care, misuse, etc.


Whether Nikon is liable for Deficiency of Service and has caused mental agony and /or harassment to Respondent 1/Complainant due to Memory Card getting corrupted which was installed in the said camera?

Bench noted that Nikon was neither the manufacturer, dealer, importer, wholesaler of the Memory Card which got corrupted leading to the loss of the photos.

Further, there was nothing on record to show that the loss of photos was caused due to any malfunction of the camera.

Adding to the above, it was stated that Complainant did not face any issue with the Camera and was fully aware that the loss, if any, was caused by the corruption of the Memory Card only and not due to any other reason.

Therefore, order of the District Forum, restrictively to the finding whereby it has held the present Appellant/Nikon liable for loss, mental agony was set aside. [Nikon (P) Ltd. v. K. Prabhakran, First Appeal No. 859 of 2013, decided on 15-07-2021]

Advocates before the Commission:

Mr Saksham Tyagi, Counsel for the Appellant.

None for the Respondents.

National Consumer Disputes Redressal Commission
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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

National Consumer Disputes Redressal Commission
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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 BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Vineet Saran, JJ has held that the Real Estate (Regulation and Development) Act, 2016 (RERA Act) does not bar the initiation of proceedings by allottees against the builders under the Consumer Protection Act, 1986.

“It is true that some special authorities are created under the RERA Act for the regulation and promotion of the real estate sector and the issues concerning a registered project are specifically entrusted to functionaries under the RERA Act. But for the present purposes, we must go by the purport of Section 18 of the RERA Act. Since it gives a right “without prejudice to any other remedy available’, in effect, such other remedy is acknowledged and saved subject always to the applicability of Section 79.”

Background of the Case

The said decision of the Court came in the matter relating of delay in handing over the possession of flats to buyers by the developer. The apartments were booked by the Complainants in 2011-2012 and the Builder Buyer Agreements were entered into in November, 2013. As promised, the construction should have been completed in 42 months. The period had expired well before the Project was registered under the provisions of the RERA Act. Even after four years there were no signs of the Project getting completed and hence, a complaint was filed by the Buyers.

RERA Act vis-à-vis CP Act: Statutory Analysis

The Court discussed the following provisions for the purpose of deciding the case at hand:

  • Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine.
  • Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law.
  • Section 89 provides that the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force.

The Court noticed that an allottee placed in circumstances similar to that of the Complainants, could have initiated following proceedings before the RERA Act came into force.

A) If he satisfied the requirements of being a “consumer” under the CP Act, he could have initiated proceedings under the CP Act in addition to normal civil remedies.

B) However, if he did not fulfil the requirements of being a “consumer”, he could initiate and avail only normal civil remedies.

C) If the agreement with the developer or the builder provided for arbitration:-

i) in cases covered under Clause ‘B’ hereinabove, he could initiate or could be called upon to invoke the remedies in arbitration.

ii) in cases covered under Clause ‘A’ hereinabove, in accordance with law laid down in Emaar MGF Ltd v. Aftab Singh, (2019) 12 SCC 751, he could still choose to proceed under the CP Act.

The Court noticed that on plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated hereinabove, would stand barred from invoking the jurisdiction of a Civil Court.

“The absence of bar under Section 79 to the initiation of proceedings before a fora which cannot be called a Civil Court and express saving under Section 88 of the RERA Act, make the position quite clear.”

To answer the question whether the Commission or Forum under the CP Act is a civil court or not, the Court referred to the decision in Malay Kumar Ganguli v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 , where it was held,

“The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court.”

Hence, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint.

The Court further discussed the proviso to Section 71(1) of the RERA Act which entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act. It noticed,

“The proviso thus gives a right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant.”

It was held that insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation. Further, Section 18 itself specifies that the remedy under said Section is “without prejudice to any other remedy available”.

“Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act.”

[Imperia Structures v. Anil Patni,  2020 SCC OnLine SC 894, decided on 02.11.2020]

National Consumer Disputes Redressal Commission
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National Consumer Disputes Redressal Commission (NCDRC): V.K. Jain (Presiding Member), held that homebuyers cannot be made to wait indefinitely for the possession of the plots allotted to them and they are entitled to refund of the amount which they paid

Developer Company was selected by Government of Uttar Pradesh for the development of a township in Greater Noida in the name of ‘Sushant-Megapolis’.

No Time Frame

Large number of complainants booked residential plots and executed agreements with the OP. In the agreement, no time frame for delivering possession of the plots to the allottees was incorporated but the complainants were verbally told that the possession would be handed over within 36 months from the execution of the agreement.

Case of the Complainants

Complainants stated that the township has not been developed, hence no possession was offered to them along with other allottees.

Class Action

Therefore complainants approached the commission by way of class action under Section 12(1)(c) of the Consumer Protection Act seeking a refund of the amount paid by the allottees along with compensation.

Vide an order in 2017, Commission granted the permission to the complainants to institute this complaint on behalf of all the allotted who wanted a refund of the amount paid to the OP. Hence, public notice in two newspapers, circulated in Delhi/NCR were published and several allottees were permitted to join the complaint.

Preliminary objection raised by the OP was that the complaint is barred by limitation.

Analysis & Decision

OP having not completed the development and having not offered possession of the allotted plots to the allottees, they had a recurrent cause of action to file the Consumer Complaint, bench relied on the decision of Meerut Development Authority v. Mukesh Kumar Gupta, (2012) CPJ 12 (SC).

Commission found no merit in the above contention.

Farmers’ Protest | Compulsory Acquisition

With regard to delay in development due to the farmer’s protest, bench on perusal of the communication sent by OP noted that there was no dispute with the farmers as the land comprised in the project namely ‘Megapolis’ was concerned, the said land having been purchased by the complainant on market rate with the consent of landowners, the said case is not of compulsory acquisition of land by the State government.

Small Parcels of Land | Patches required to be acquired from State Government

The proposed project was a large land acquired directly from the farmers, though there were some small patches which were to be acquired from the State Government. OP having advertised the project and having executed the agreements for development and sale of plots, it was for them to purchase those small patches of land from the landowners at a negotiated price even if they had to pay a price higher than the price they were willing to pay.

Hence, it could not be said that the non-acquisition of such small parcels of land delayed the project.

Further, the bench stated that even if the plea taken by the OP with respect to non-acquisition of those small parcels of land is accepted on its face value, the allottees cannot be made to suffer for the inability of the OP to acquire those land parcels.

It’s been 12 years since the sale of the said plots started, but till this date, it is not known whether the OP will be able to complete the development work and if so when the said development would be completed.

Class Action

Counsel for the complainant stated that they have settled with eleven allottees other than the original complainants and they are in negotiations with thirteen other allottees.

For the above-stated, Commission stated that even if the above situation prevails, that would not lead to the dismissal of the class action. Once the jurisdiction of this Commission by way of a class action is invoked, the Commission is required to take the matter to its logical conclusion unless the matter is settled with each and every member of the class.

No Specific Time Period

Commission added to its analysis that though no specific time period for completing the development and offering possession to the allottees was indicated in the agreement, that would not entitle the builder to prolong the development work to an indefinite period.

As far as the development of plots is concerned, such a work does not require as much time as required for construction of group housing flats in multistoried buildings.

“…the development work of the plots, even on a large scale, must be completed within a period of three years from the approval of the lay-out plans.”

Bench relied on the Supreme Court decision of Pioneer Urband Land & Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725 and Kolkata West International City (P) Ltd. v. Devasis Rudra II, (2019) CPJ 29 (SC).

In view of the above discussion, Commission held that the allottees of residential plot in the project namely ‘Sushant Megapolis’ cannot be made to wait indefinitely for the possession of the plots allotted to them and they are entitled to refund of the amount which they paid to the OP along with appropriate compensation.

Further, the OP shall refund the entire principal amount received and pay Rs 50,000 as cost of litigation.[Bhrigu Kaushik v. Ansal Hi-Tech Township Ltd., Consumer Case No. 1951 of 2016, decided on 16-10-2020]

National Consumer Disputes Redressal Commission
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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]

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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]

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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

National Consumer Disputes Redressal Commission
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National Consumer Disputes Redressal Commission (NCDRC): A Division Bench of R.K. Agrawal (President) and Dr S.M. Kantikar (Member), held that

“…for detrmining the pecuniary jurisdiction of the District Commission, State Commission or National Commission the value of goods or services paid as consideration alone has to be taken and not the value of the goods or services purchased.”

Complainant approached the Commission with regard to a complaint against National Insurance Company Limited, Kolkata.

Further, it was stated that the complainant had taken Insurance coverage from National Insurance Company Limited, Kolkata under its Standard Fire and Special Perils Policy initially for a total sum of Rupees Twenty eight crores and twenty thousand only by paying a premium of Rupees Three lac twenty thousand five hundred and twenty-five only.

An additional security coverage of Rupees Thirteen crores only on 25-08-2020 by paying a premium of Rupees One lac twenty-three thousand and thirty-seven only.

Due to heavy rainfall and flood water, factory premises of the Complainant got tilted and partial collapse of the building was caused with several other losses due to damage in the building.

Complainant informed the National Insurance Company Limited, Kolkata on 05-09-2020 about the loss sufferred and making the payment of the loss suffered by estimating it.

After exchange of correspondence and personal interaction the National Insurance Company Limited – OP-1 repudiated the claim of the Complainant.

Maintainability of the present complaint

In the present case a preliminary point arises as to how this Consumer Complaint is maintainable before the National Consumer Disputes Redressal Commission because the value of the consideration paid in the present case i.e. premium paid for taking the Insurance Policies was only Rs 3,20,525 and Rs 1,23,037 the total of which comes to Rs 4,43,562 (Rupees Four Lac forty three thousand five hundred and sixty two only), which is less than the consideration paid of more than Rs 10,00,00,000 (Rupees Ten crores) as provided under Section 58 (1) (a) (i) of the Act of 2019.

Parliament, while enacting the Act of 2019 was conscious of this fact and to ensure that Consumer should approach the appropriate Consumer Disputes Redressal Commission whether it is District, State or National only the value of the consideration paid should be taken into consideration while determining the pecuniary jurisdiction and not value of the goods or services and compensation, and that is why a specific provision has been made in Sections 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i) providing for the pecuniary jurisdiction of the District Consumer Disputes Redressal Commission, State Consumer Disputes Redressal Commission and the National Commission respectively.

Hence, the bench stated that Sections 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i) of the Act of 2019 make it clear that for detrmining the pecuniary jurisdiction of the District Commission, State Commission or National Commission the value of goods or services paid as consideration alone has to be taken and not the value of the goods or services purchased.

Therefore, we are of the view that the provision of Section 58 (1)(a)(i) of the Act 2019 are very clear and does not call for any two interpretations.

As the value of consideration paid by the Complainant is only Rs 4,43,562 (Rupees four lac forty three thousand five hundred and sixty two only), which is not above Rs 10,00,00,000 (Rupees Ten crore), the National Commission has no jurisdiction to entertain the present Consumer Complaint. [Pyaridevi Chabiraj Steels (P) Ltd. v. National Insurance Company Ltd., Consumer Case No. 833 of 2020, decided on 28-08-2020]

National Consumer Disputes Redressal Commission
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National Consumer Disputes Redressal Commission (NCDRC): A Division Bench of Dr S.M. Kantikar (Presiding Member) and Dinesh Singh (Member), while addressing the issue of medical negligence by the doctors of Christian Medical College, Vellore awarded compensation to the deceased’ wife.

Deceased got admitted to as a private patient at Christian Medical College, Vellore — OP and on being examined it was found to be a case of Coronary Artery Disease.

The treating doctor advised the deceased to undergo Coronary Angiogram test when the same was conducted, the doctor expressed that it would be better if the patient undergoes Coronary Arterial By-pass Graft (CABG) surgery instead of angioplasty to avoid multiple stenting.

After a couple of days, Dr Sujit discontinued medicines Ecospirin and Clopidogrel and started Heparin 5000 units 6 hourly.

Heparin was started without any laboratory investigations and monitoring protocol.

Complainant had notice bleeding at the site of insertion of the needle but the said complaint was ignored by the doctors.

On the 3rd does of Heparin being given to the patient, it was noted that he suffered from a mini-stroke after that.

An immediate CT Scan was to be done but no stroke evaluation was suggested by the doctor. Later the deceased was transferred to the Thoracic surgery unit in Semi-ICU. Neurologist suggested a CT-Brain Plain study but the same was delayed.

The neurologist after conducting the above-stated scan informed the complainant that as the patient already progressed into coma, nothing more could be done. Finally, doctors suggested the family that they should accept the inevitable event and instead of wasting money allow them to withdraw ventilator support.

Later, the complainant took the opinion of several other doctors who said that the delay caused for stroke management was fatal and it was due to lapses in the hospital.

Patients once again suffered a stroke and died on nothing being done by the doctors.

In view of the above-stated, present consumer complaint was filed for medical negligence and callousness of the doctors at CMC causing the death of the patient.

Commission on perusal of the facts and submissions of the case stated that, the high-risk patients living in the hospital/nursing homes or undergoing cardiac procedures should have monitoring systems to help alert the doctor/staff immediately.

Adding to its analysis, the bench also stated that pre-hospital triage and communication between radiologists, neurologists and emergency physicians are more vital.

Delay in diagnosis and management of stroke was a deficiency and not a reasonable or standard of practice.

Another significant setback that was noted was that there was an urgent need for a brain CT scan of the patient but it was delayed for more than 3 hours for the want of a fresh receipt of Rs 1850 towards CT scan charges even though complainants had already deposited 150000 in advance. 

For the above instance, the bench stated,

Hospital has every right to insist the payment but it was also a prime duty to care the emergency patient.

In view of the above, deficiency/negligence was conclusively established and hence ac compensation of Rs 25 lakhs with an interest of 8% p.a was awarded. [Yashumati Devi v. Christian Medical College, 2020 SCC OnLine NCDRC 211, decided on 11-08-2020]

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National Consumer Disputes Redressal Commission
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National Consumer Disputes Redressal Commission (NCDRC): A Division bench of Justice R.K. Agrawal (President) and S.M. Kanitkar (Member) directed the developer to refund the principal amount along with compensation in the form of 9% p.a. interest and 25,000 as litigation costs in view of a 4-year delay in giving the possession of the apartment.

Consumer complaint was filed against Pioneer Urban Land and Infrastructure Limited.

Complainants booked an apartment in the Pioneer Group Housing Project called “Araya” for an amount of Rs 30,00,000. Pursuant to the execution of apartment buyer’s agreement, a unit was allotted to the complainants.

Complainants submitted that on visiting the site regularly they were surprised to see no progress in the construction of the project. Entire site seemed to be an abandoned piece of land with semi constructed structure. 

Failed to deliver the possession of Apartment

Till 16.12.2015 complainants had paid a sum of 3,22,18,954 out of the total consideration of 3,45,22,779 i.e. almost 95% of the total Consideration towards the cost of the apartment.

However, the Developer failed to deliver the possession of the Unit, complete in all respect, even after expiry of a long period of approx. five years despite repeated requests and remedies over letters, email, phone calls and personal visits.

Hence, in view of the above, complainants alleged deficiency in service on the developer’s part.

Complainants by the present petition sought more than contractual benefits from the developer.

Natural causes

Developer contended that the delay in completing the project was due to reasons beyond their control. Further, for refund and compensation, the Complainants have to adhere to the provisions made in Clause 11.5 of the Agreement.

Clause 11.5 of the Apartment-Buyer’s Agreement

Bench observed that, with regard to Clause 11.5 of the Agreement upon which the reliance has been placed by the Developer for refund and compensation payable to the Complainants, this Commission in Consumer Complaint No. 2000 of 2016 – Geeta Bansal v. Ireo Grace Realtech (P) Ltd.  – decided on 24-09-2018,  held that such a Clause is wholly one sided and unfair and, therefore, the Complainants would not be bound by the same. If the Developer is unable to justify the delay, this Commission would be competent to direct refund of the amount paid by them to the Developer along with appropriate compensation.

However, Pioneer had approached Supreme Court against the decision taken by Commission in the above Order, but Supreme Court affirmed the finding returned by this Commission and dismissed the Civil Appeals.

Hence, in the present matter, commission referring to the Supreme Court’s decision, allowed the complainant and directed the OP-Developer to refund the principal amount with compensation in form of simple interest @9% p.a. with costs of Rs 25,000 to be pid to the complainants.

Interest was awarded in light of the current market situation and three months times has been granted to the developer to refund the same. [Smita Uban v. Pioneer Urban Land & Infrastructure Ltd., Consumer Case No. 1430 of 2017, decided on 23-07-2020]

National Consumer Disputes Redressal Commission
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National Consumer Disputes Redressal Commission (NCDRC): Prem Narain, Presiding Member, has directed the developers of “Greenopolis” to refund homebuyers their amount deposited at the interest rate of 9% p.a. and in a few complaints the bench has asked for the possession to be handed over by 30-09-2020 with the occupancy certificate and with a delayed penalty of 6% p.a. on the deposited amount.

Consumer Complaints

Allottees of the project “Greenopolis” situated in Gurgaon alleged deficiency in service on the part of Opposite parties — Three C Shelters (P) Ltd.

Original allottee booked an apartment in OP’s project for a consideration of Rs 87,16, 800/-, apartment was allotted and later the same was endorsed in favour of complainant.

OP’s failed to deliver the possession in 42 months inclusive of 6 months grace period. Till date, the complainant has paid Rs 75,96,776/- to OP’s.

Several complaints have been filed by homebuyers with regard to no delivery and possession of the apartments for which they have paid installments of a very huge amount.

Analysis and Decision

No breach of agreement by complainants | Entitled to relief under Sections 54 and 55 of the Indian Contract Act, 1872

Argument with regard to Sections 54 and 55 of the Indian Contract Act, 1872, OPs relied on the Commission’s decision in DLF Southern Town (P) Ltd. v. Dipu C. Seminal, wherein the complainant had deposited only the booking amount and no installments were paid whereas in the present complaints installment have been paid upto reasonable limit and on no progress in construction, the payment was stopped later.

Force Majeure

Defence of force majeure by OPs cannot be taken as there was no ban on construction and OPs should have put their resources and managerial skills to bring water from outside to complete the construction in time.

Joint Project

Three C Shelters (P) Ltd. pleaded for force majeure conditions for the delay and on the other hand Orris Infrastructure (P) Ltd. pleaded that Three C Shelters was responsible for delay in construction. Both of them had signed on the “Apartment buyer Agreement” and hence Commission stated that both of them were responsible for delay.

Apartment Buyer Agreement

Bench observed that the OP’s clearly have failed to complete the project and give the possession in time to the homebuyers as per the Apartment Buyer Agreement.

Hence allottees have the right to ask for a refund due to the inordinate delay which has been beyond 1 year, the possession was to be given in the year 2016.

No Forfeiture of earnest money

So far as the question of forfeiture of earnest money is concerned, it is seen that the complainants are seeking refunds as the project has been inordinately delayed. Even though the RERA, Haryana has taken a meeting to expedite the project and Three C Shelters (P) Ltd. has agreed to complete the project in phases.

Commission noted that OPs have not paid EDC and IDC to the Government and it seems that the OPs were not serious in timely completing the project. Thus, in these circumstances, there can be no question of forfeiture of earnest money.

Supreme Court in Haryana Urban Development Authority v. Diwan Singh, (2010) 14 SCC 770, observed that subsequent buyers are entitled to receive interest only after the date of endorsement in their favour.

In view of the above, Commission directed Three C Shelters to refund the amount at 9% interest per annum.

In one of the cases, Orris Infrastructure (P) Ltd. is directed to complete the construction work and handover the possession till 30-09-2020 after obtaining an occupancy certificate, and it shall pay interest of 6% p.a. on the deposited amount.

If the possession is not delivered till 30-09-2020, the complainant shall be at liberty to take a refund of the total deposited amount Rs 77,58,581/- along with interest @ 9% p.a. from the date of respective deposits till actual payment. [Sanjay Gupta v. Three C Shelter (P) Ltd., 2020 SCC OnLine NCDRC 178, decided on 20-07-2020]

National Consumer Disputes Redressal Commission
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National Consumer Redressal Commission (NCDRC): Justice V.K. Jain (Presiding Member) while dealing with a complaint in regard to unhygienic food that emitted foul smell causing food poisoning to the complainant, held that,

“If a consumer files an affidavit in the consumer complaint instituted by him stating therein that the food served to him was rotten/stale/inferior in quality, such an affidavit will be sufficient to discharge the initial onus placed upon the customer.”

In the present complaint, the consumer complained that on consuming the food from the restaurant he felt like vomiting and on being diagnosed by a doctor it was confirmed that he had food poisoning.

In the above-said circumstances, the complainant claimed compensation and was awarded the same by the District Forum and later the same order was maintained by the State Commission.

Counsel for the Petitioner

Petitioner’s counsel submitted that since onus was wrongly placed upon the petitioners, he would be satisfied if it is observed by the Commission that the onus of proving of any defect in the food served in a restaurant would be upon the customer who visits the restaurant.

Commission’s Decision

The Bench agreed with the petitioner’s submission, that,

“If a consumer complaint is filed alleging some defect in the food served to him in a restaurant the initial onus would be upon him to prove that the food served to him was defective or was of inferior quality.”

It further added that, the restaurant where such a complaint is made by the customer in respect of the food, will not allow them to carry food with them. On being aggrieved with such food, a customer cannot be expected to take the food and get laboratory analysis for the same as that would leave him in frustration.

Thus, in the present set of facts and circumstances, the onus which was placed upon the complainant, had been duly discharged by the affidavit filed by him coupled with a medical certificate from the doctor who certified that the complainant suffered from food poisoning and was under treatment.

In view of the above-stated observations, petitioners’ counsel did not press for revision petition and stands disposed of. [Yum Restaurants (India) (P) Ltd. v. Kishan Hegde, 2020 SCC OnLine NCDRC 8, decided on 05-02-2020]