Case BriefsTribunals/Commissions/Regulatory Bodies

   

State Consumer Disputes Redressal Commission (SCDRC), Chandigarh: While deciding the instant appeal filed by VLCC Health Care Ltd. against the order of the District Consumer Court whereby they were directed to refund and compensate the respondent for the mental agony caused due to the failure of VLCC's weight loss program; the Bench of Raj Shekhar Attri, J. (President) and Rajesh K. Arya (Member) observed that VLCC's act of giving false assurances on one hand by way of misleading advertisements, and on the other hand obtaining a declaration from the consumers qua no guarantee/assurance regarding the result and outcome of the program, is a clear example of unfair trade practices adopted by them, and for which the consumers cannot be made to suffer at their hands. “The appellants are very much held liable to refund the amount paid by the respondent purely on the basis of their own advertisement, ‘Lose 4 Kgs in 30 days or take your money back!'.

Facts of the case: In March 2015, the respondent took VLCC's weight loss program (A)+(B) for reduction of 5 kg weight and 4-inch loss of tummy circumference within one month, and paid advance for the program amounting to Rs. 50,000. The respondent visited VLCC for the sittings as detailed by them but there was no visible result. The respondent even discussed the matter with VLCC stating that he had undertaken 30 sessions but there has been no progress on weight loss, and he could manage to lose 1Kg by diet control only, and thus sought refund.

In order to allure the respondent, VLCC showed him an imported costly machine through which the treatment would be done. Thus, the respondent was induced to take up the program and money back guarantee and pay another amount of Rs.28,000 again on 31-03-2017. However, upon observing no improvement in weight loss and inch reduction, the respondent took the matter to the concerned Court.

Contentions: VLCC argued that the respondent was satisfied with his first weight loss program which is why he chose to purchase the new treatment; if there was any sort of dissatisfaction, the respondent would not have gone ahead to buy the second program. It was further argued that the respondent did not remain regular for the treatment nor followed his diet as per the terms of the treatment despite several suggestions by VLCC's representatives. The futility of the weight loss program was due to the respondent's own unhealthy dietary habits and not due VLCC's alleged deficient service.

It was submitted that the respondent had given a specific undertaking duly signed by him that he understands that no guarantee could be given to him regarding the result and outcome of the program and in circumstances of unsatisfactory results due to factors beyond the control of the staff of VLCC, he shall not be entitled to claim/damages or to hold VLCC or its staff liable.

Per contra, the respondent contended that the plea of VLCC with regard to disclaimer cannot be accepted in view of the fact that they specifically mentioned that “Lose 4 kgs in a month or your money will be refunded”, which clearly shows that VLCC were misguiding the consumer by a misleading advertisement and in case they don't lose weight then puzzle them in disclaimer clause which is a clear case of deficiency in service.

Observations and Decision

  • Perusing the facts, contentions and reasoning behind the District Commission's Order, the Bench pointed out that the contention raised by VLCC vis-a-vis the disclaimer is not sustainable in the eyes of the law because VLCC's own advertisement loudly and proudly claimed- “Lose 4 Kgs in 30 days or take your money back!”

  • The State Commission relied on its precedent in Shipra Sachdeva v. VLCC Health Care Ltd., [First Appeal No.93 of 2008], which dealt with similar issues as raised in the instant appeal. The State Commission also relied on NCDRC's decision in Divya Sood v. Gurdeep Kaur Bhuhi, 2006 SCC OnLine NCDRC 76, which raised the concerns surrounding “tempting advertisements, giving misleading statements (…) persons lured to pay large amount to such bodies in a hope that they can reduce their weight by undergoing the so-called treatment”. It was observed that the acts of allurement and unfair trade practice via misleading emails and advertisements, wasted the respondent's precious time, energy and money over a weight loss program that was not fruitful eventually.

  • With the afore-stated observations, the State Commission held that VLCC's advertisements claiming, “Lose 4 Kgs in 30 days or take your money back”, squarely falls under the definition of ‘misleading advertisement' as defined in Section 2(28) of the Consumer Protection Act, 2019. Therefore, the appeal was dismissed.

[VLCC Health Care Ltd. v. Vijay Aggarwal, Appeal No. 14 0f 2022, decided on 10-08-2022]


Advocates who appeared in this case :

Atul Goyal, Advocate, for the appellants;

Harsh Nagra, Advocate, for the respondent.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): While deciding the instant revision petition under Section 21(b) of Consumer Protection Act, 1986, the Bench of Dinesh Singh (Presiding Member) and Karuna Nand Bajpayee, J., (Member) observed that points of law regarding “limitation” and “consumer” have to be applied on the facts of the case, and the facts can only be determined by leading evidence before the forum of first instance (in rare cases by filing additional evidence before the forum of appellate jurisdiction) and should not be raised in revision just for the sake of prolonging the lis.

Facts and Legal Trajectory of the Case: The complainant (respondent in the instant petition) insured his truck with the insurance company for an assured sum of Rs 9,60,000 for the period from 04-10-2006 to 03-10-2007. During the subsistence of the policy, the truck met with an accident on 19-10-2006. The complainant claimed loss of Rs 6,25,020. The surveyor appointed by the insurance company assessed the loss at Rs 2,30,000 which was intimated to the complainant via a letter dated 28-04-2010. The letter stated that the insurance company will settle the claim at Rs 1,04,316 and sent therewith pre-receipted vouchers for discharge in full. Aggrieved with the quantum of the settlement, the complainant filed a complaint before the District Commission on 08-06-2010.

Upon perusal, the District Commission assessed the loss at Rs. 5,27,770 and ordered the insurance company to pay the said sum to the complainant along with compensation of Rs. 20,000. The insurance company appealed to the State Commission which made its own independent appraisal of the case and assessed the loss at Rs. 4,50,000. It ordered the insurance company to pay the said sum to the complainant along with compensation of Rs. 20,000/- as ordered by the District Commission within two months of receipt of its Order, failing which it would carry interest at the rate of 15% per annum till payment.

Aggrieved with the decision, the insurance company then approached the NCDRC.

Contentions: Counsels for the insurance company argued that the surveyor’s report should not have been overruled by the State Commission. They also contended that the case was barred by limitation since the accident occurred on 19-10-2006 and the complaint was filed on 08-06-2010 which was beyond the two-year period stipulated under the Consumer Protection Act, 1986.

The counsel further contended that the vehicle was purchased under a hire-purchase agreement which shows that the same was being used for commercial activities and therefore the complainant was not a ‘consumer‘ under Section 2(1)(d) of the 1986 Act.

Per contra, the counsels for the complainant argued that the question of limitation was not raised by the insurance company either at the forum of original jurisdiction (District Commission) or at the forum of appellate jurisdiction (State Commission).

Observations: Perusing the trajectory of the dispute, the Bench made the following observations-

  • The District Commission had cogent reasons to overrule the surveyor’s report. The Bench noted that the District Commission made its appraisal after examining the entire evidence which also included the vouchers relating to the repairs undertaken on the accident-hit vehicle. The State Commission then took due note of the surveyor’s report as well as of the District Commission’s appraisal and after considering the entire evidence made its own assessments.

  • The Bench pointed out that the counsels of the insurance company could not explain the reasons that when the surveyor had assessed the loss at Rs. 2,30,000 what caused the insurance company to settle the claim at only Rs. 1,04,316. The counsels also could not explain the reasons that when the accident occurred in 2006, what caused the inordinate delay of sending intimation of settlement in 2010 i.e., after over 3.5 years; and whether the delay was on the part of the insurance company or on the part of the complainant or both.

  • Vis-a-vis the contention regarding limitation, the Bench upon examining the material placed before itself, observed that the insurance company intimated the settlement of claim via letter dated 28-04-2010. The complainant filed his complaint on 08.06.2010 which was well within the limitation period of two years provided under Section 24-A (1) of Consumer Protection Act, 1986. “The argument of the counsel that the limitation should be counted from the date of the accident is patently irrational, there is a distinct distinction between the date on which the accident occurred and the date on which the cause of action arose”.

  • Regarding the contention that the complainant is not a consumer as per the concerned provisions of the 1986 Act, the Bench pointed out that Section 2(1)(d) precludes a person who hires or avails of any service for any “commercial purpose” but the explanation thereto makes it clear that “commercial purpose” does not include services availed exclusively for the purposes of earning livelihood by means of self-employment. The Bench also noted that this objection was neither raised before the District Commission nor in appeal before the State Commission. “In other words, it is patently clear that the opportunity to rebut the same was not duly provided to the complainant before the District Commission or even before the State Commission”.

  • It was further observed that in matters where it is necessarily to be seen whether the activity undertaken was for commercial purpose or whether it was exclusively for the purpose of earning a livelihood through self-employment; much depends upon the facts. Thus, adequate opportunity to both sides must be made available so that they may furnish out the relevant facts and evidence.In such cases if the plea is not raised at the appropriate stage when it ought to have been raised and where the opportunity to furnish an adequate rebuttal in that regard could have been availed by the other side, it becomes highly doubtful whether such a plea seeking ouster of the jurisdiction may be raised at a belated stage”.

Conclusion and Decision: With the afore-stated observations, the Bench concluded that there was no misappropriation of evidence on the part of the State Commission requiring a de novo re-appreciation in revision. Given the facts of the instant case, the award appears to be just and equitable. There is no jurisdictional error or legal principle ignored or erroneously ruled or miscarriage of justice in the impugned Order of the State Commission.

The Commission also termed the instant revision petition to be frivolous one, filed simply to prolong the case.

The Commission also directed that the amount (if any) deposited by the insurance company with the District Commission, along with interest (if any) accrued, shall be released by the District Commission to the complainant by way of ‘payee’s account only’ demand draft as per the procedure. The balance awarded amount shall be made good by the insurance company, failing which the District Commission shall undertake execution, for ‘enforcement’ and for ‘penalty’ as per the law.

[National Insurance Co. Ltd. v. Prabodh Kumar Swain, 2022 SCC OnLine NCDRC 364, decided on 14-07-2022]


Advocates who appeared in this case :

S. K. Ray, Advocate with Nikita Chaturvedi, Advocates, for the Petitioner;

Subesh Kumar Sahu, proxy counsel for Sanjib Kumar Mohanty, Advocates, for the Respondent;

None, for the Respondent No.2.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Yashwant Varma, J. stayed the ruling passed in the form of guidelines by the Central Consumer Protection Authority (‘CCPA’) vide order dated 04-07-2022 holding that the issue of whether the levy of service charge would amount to a restricted and unfair trade practice under Consumer Protection Act, 2019 requires consideration in view of precedents and incidental facts of the subject matter.

CCPA passed an order dated 04-07-2022 issuing guidelines which stated that restaurants and hotels are levying service charges in the bill by default, without informing consumers that paying such charge is voluntary and optional. Further, service charges are being levied in addition to the total price of the food items mentioned on the menu and applicable taxes, often in the guise of some other fee or charge. Thus, placing an order involves consent to pay the prices of food items displayed on the menu along with applicable taxes. Charging anything other than the said amount would amount to unfair trade practice under the Act. The instant petition challenges the above ruling impugning the guidelines.

The Court noted that the issue of a levy of a service charge by the hotel industry was deprecated by the Dewan Chaman Lal Committee recommending the implementation of the continental system of service charge both with regards to its collection as well as disbursement. Later, a Wage Board was constituted by the Chief Commissioner of Delhi vide notification dated 28-10-1964 which recommended the levy of a service charge on customers’ bills varying from 5% to 10%. The collections made were then to be distributed with 10% going to a welfare fund, 15% being retained by the management towards breakages and 45% to be distributed to the workmen and employees of the establishment and the remaining 30% to be allocated to the wage bill.

In view of this, counsel for petitioner brings to notice of the Court that various settlements were entered between the workmen and individual establishments and awards were, thereby rendered by industrial adjudicators and thus, the impugned guidelines will clearly upset them.

The Court also noted that there exists a serious doubt whether the issue of pricing and the levy of a service charge would fall within the ambit of Section 2(47) of Consumer Protection Act, 2019 or not.

Reliance was placed on S S Ahuja v. Pizza Express, 1999 SCC OnLine MRTPC 2 wherein it was observed that service charges are levied for the service of food at the table in the restaurant. The choice rests with the customer either to take food in the restaurant bearing the service charges, as-is also a practice in other restaurants, or to carry away the food avoiding the aforesaid levy, there could, however, be no tie or up between the sale of food and service of it on the table as is in the present case. This goes along with it. These two cannot be separated. The practice followed by the respondent as well as the others in trade in no way harms the competitor in general or customer in particular. It has, thus, been sufficiently demonstrated that the respondent did not indulge in unfair or restrictive trade practices as alleged.”

The Court affirmed that the matter requires consideration and thus stayed the impugned guidelines dated 04-07-2022 till the next date of listing the directions subject to following conditions:

(1) The members of the petitioner Association shall ensure that the proposed levy of a service charge in addition to the price and taxes payable and the obligation of customers to pay the same is duly and prominently displayed on the menu or other places where it may deem to be expedient.

(2) The members of the petitioner Association further undertake not to levy or include service charge on any “take away” items.

The matter is next listed for 25-11-2022.

[National Restaurant Association of India v. UOI, 2022 SCC OnLine Del 2172, decided on 20-07-2022]


Advocates who appeared in this case :

Mr. Lalit Bhasin, Ms. Nina Gupta, Ms. Ananya Marwah, Ms. Ruchika Joshi and Mr. Ajay Pratap Singh, Advocates, for the Petitioner;

Mr. Sandeep Mahapatra, CGSC, Advocate, for UOI;

Mr. Varun Kumar Garg, Advocate, for R-1 & 2.


Read our previous story

CCPA issues Guidelines to prohibit automatic levy of service charge in hotels and restaurants


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

District Consumer Disputes Redressal Commission (DCDRC), Gondia: In the instant ‘unique’ complaint, relief in the nature of directions to Facebook were sought vis-a-vis discontinuation of unfair/ restrictive trade practices; not putting up misleading advertisements and neutralization of the effect of misleading advertisements on their platform. The coram of Bhaskar B. Yogi (President) and Sarita B. Raipure (Member) directed Facebook and Meta Inc. to run scam related awareness advertisement on various media, social sites, TV and OTT platforms to create awareness regarding various scam on regular basis to neutralize the impact of misleading advertisements. The Commission also stated that Facebook has a legal and social duty and obligation to provide funding to a step-by-step service to aid and advise the public regarding online frauds and scams.

Facts of the case: The complainant who hails from Maharashtra, is a daily wager coming from Below Poverty Line Family and currently remains unemployed due to Covid19 pandemic. Facebook (opposite party) is a major social networking site.

The complainant is an active Facebook user. On 16-09-2020, the complainant noticed on his Facebook-wall an advertisement of Marya Studio, offering shoes of Nike Company for Rs. 599. As the advertisement was on Facebook, the complainant did not doubt its authenticity and immediately placed the order for shoes and paid Rs. 599 through his debit card. The Complainant waited for a long time but he did not receive any text or call from the Marya Studio regarding shipping of the shoes booked by him, and since Facebook did not contain any contact details of Marya Studio, therefore the complainant googled Marya Studio’s customer care number and in result he came to the website www.consumersathi.com which showed 4-5 numbers of Marya Studio Customer Care. The Complainant called on one of the numbers and the person receiving the call introduced themselves as Marya Studio’s Customer Care Executive. The person sent a link to the Complainant and asked him to fill debit card details in that link for the purposes of refund. The Complainant was further asked to download AnyDesk App in order to receive the refund amount. The Complainant did as he was instructed and also the provided the OTP number as required by the Customer Care Executive. However, the complainant was duped for Rs. 7568.

Thereafter the complainant tried to bring this fraud to the notice of Facebook (via Twitter and then e-mail) and sought compensation of Rs. 7568, but Facebook never replied. Therefore the complainant was compelled to knock the doors of the District Commission, Gondia, against Facebook.

Contentions: The counsels of the complainant put forth the following contentions-

  • It was argued that Facebook voluntarily and intentionally runs a false, frivolous, misleading and fraudulent advertisement and causes loss to the public at large. The complainant pointed out the names of the many fake pages advertised on Facebook like- Marya Studio, Yaryastudio, Crunchkart, G9fashionnn etc. The complainant also cited the names of other persons who were victims of such fake advertisements.
  • It was argued that the complainant is unemployed has suffered a lot due to the loss of the afore-stated amount. It was stated that he has no money to buy groceries and vegetables and that him and his family members are suffering from starvation. Such circumstances have caused a great deal of mental and physical pain to the Complainant and his family.

Per-contra, the opposite parties (Facebook/ Meta) argued on the following points-

  • It was contended that Complaint is not maintainable since the Complainant is not a ‘consumer‘ of Facebook India.
  • It was submitted that Facebook India is a wrong entity for adjudicating this Complaint since it does not operate/control the Facebook service- as Facebook would be considered as an intermediary, and therefore, immune from liability under the provisions of the Information Technology Act, 2000. Furthermore Facebook would be under no obligation to proactively monitor the Facebook Service under the IT Act and as per the decision of the Supreme Court in Shreya Singhal v. Union of India, (2015) 5 SCC 1.
  • Meta submitted that it has taken reasonable steps to enforce policies to protect its users and offers several user friendly tools to enable users to report violations of these policies.

Observations: Based on the facts and contentions presented in the case, the Commission framed certain important issues and made the following observations-

  • The Commission pointed out that to establish the consumer-service provider relationship, the complainant has to prove whether he has paid any consideration for service while buying online product from third party. Perusing the details provided by the complainant, the Commission observed that complainant paid Rs 599 for purchase of the shoe, whose advertisement was hosted on Facebook. The revenue of opposite parties mainly comes by selling the space for advertising which is clear from their Memorandum of Association. The Commission thus noted that the complainant falls under the category of ‘consumer’.
  • The Commission noted that the complainant suffered from financial loss due to misleading advertisement. However, the Commission deliberated on the extent to which the opposite party was bound to compensate. The Commission perused the “Help Centre” details provided on Facebook titled “Privacy, safety and security- Shopping safety”. It was noted that transaction of buying shoes Rs. 599 was due to a misleading advertisement; but, the second transaction of sharing OTP and personal bank details by the complainant was due to his own unawareness regarding online scams, therefore can be termed as ‘contributory negligence’ for which the opposite parties are not liable.
  • It was observed that the Government of India has taken various measure to curb the menace of online fraud from time to time by inserting concerned provisions in the Consumer Protection Act and Consumer Protection (E-commerce) Rules, 2020. It was noted that the law provides a clear mandate of compliance for social media websites. The Commission pointed out that complainant was lured to purchase the product by looking to the rate of the shoes, and it is mandatory obligations of e-commerce websites to provide complete name, address, contact numbers, email address of the seller so that in case of any consumer grievance it can be redressed immediately. The e-commerce websites, as prescribed by RBI have a Corporate Social Responsibility to educate the masses regarding various online frauds. It was stated that opposite parties failed to sufficiently safeguard and protect the Indian consumers from unscrupulous exploitation.

Decision/Directions: Perusing the facts and contentions presented by the parties and making the afore-stated observations, the Commission partly allowed the complaint and made the following directions-

  • The opposite parties are to pay to the complainant the price of product (Nike shoes) not delivered i.e. Rs. 599. The opposite parties were directed to pay Rs. 25,000 for mental agony and legal costs suffered by the complainant.
  • Facebook/ Meta directed to comply the Consumer Protection (e-commerce) Rules, 2020 in letter and spirit and submit report of compliance within a period of 45 days to this Commission.
  • Facebook was directed to issue corrective advertisement in order to neutralize the effect of misleading advertisement that came to question in the instant complaint.

[Tribhuvan v. Facebook India Online Services Pvt. Ltd., Complaint No. : CC/117/2020, decided on 30-06-2022]


Advocates who appeared in this case :

Sagar J. Chavhan, Advocate, for the Complainant;

M. B. Ramteke, Advocate, for Opposite Parties.


*Sucheta Sarkar, Editorial Assistant has prepared this brief

Legislation UpdatesNotifications

On 04-07-2022, the Central Consumer Protection Authority (‘CCPA’) has issued Guidelines to prevent unfair trade practices and to protect the consumer interest with regard to levy of service charge in hotels and restaurants.

 

Key points:

  • No hotel or restaurant shall add service charge automatically or by default in the bill.
  • Service charge shall not be collected from consumers by any other name.
  • No hotel or restaurant shall force a consumer to pay service charge and shall clearly inform the consumer that service charge is voluntary, optional and at consumer’s discretion.
  • No restriction on entry or provision of services based on collection of service charge shall be imposed on consumers.
  • Service charge shall not be collected by adding it along with the food bill and levying GST on the total amount.
  • If a hotel or restaurant is found levying service charge, a consumer may: –
    1. Make a request to the concerned hotel or restaurant to remove service charge from the bill amount.
    2. Lodge a complaint on the National Consumer Helpline (NCH).
    3. File a complaint against unfair trade practice with the Consumer Commission.
    4. The Complaint can also be filed electronically through e-daakhil portal www.e-daakhil.nic.in for its speedy and effective redressal.
    5. Submit a complaint to the District Collector of the concerned district for investigation and subsequent proceeding by the CCPA. The complaint may also be sent to the CCPA by e-mail at com-ccpa@nic.in.

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission, New Delhi (NCDRC): While addressing a medical negligence case, the Coram of Dr S.M. Kantikar (Presiding Member) and Binoy Kumar, Member, observed that, Negligence per se is not a separate cause of action from negligence suits. Negligence per se, however, assumes the duty because of public policy or law. “Negligence per se” is defined by the legal field as “negligence due to the violation of a public duty under a law that defines the failure of care required to constitute negligence. Negligence per se may also be declared when a person does or omits to do something which is so beyond reasonable behaviour standards that it is negligent on its face.”

An appeal was filed against the State Commission’s order wherein it had granted Rs 20 lakhs without interest which was much less than reasonable and just compensation.

The three grounds for the present appeal were:

(A) Enhancement of the compensation from Rs. 20,00,000/- to Rs. 50,00,000/-.

(B) The interest to be awarded on the amount of compensation either from the date of surgery (06.02.2006) or from filing of the complaint before the State Commission, New Delhi (2007)

(C) To Hold the doctor guilty and impose fine/penalty upon him.

Analysis, Law and Decision


In Commission’s opinion, the impugned order in both the appeals was unsustainable and in the present case, the final arguments were heard by two members –Judicial and Administrative but due to the retirement of the Administrative Member, probably to avoid a fresh hearing in the case, the Judicial Member thought it was advisable to pronounce the final order himself.

In the present case, the final arguments in the Complaint were heard by two Members and, therefore, only those two Members were competent to pronounce the order, and not by the Member sitting singly. This is the fundamental rule, which cannot be sacrificed at the altar of administrative convenience. 

Coram set aside the order challenged as the same was illegal.

After the remand, the matter was heard, and the State Commission awarded Rs. 20 lakh compensation with Rs.1 lakh as cost of litigation to the Complainants.

Commission, noted that,

further note that, the DMC has made strong observations on the patient management in G.M. Modi Hospital as it was in very lackadaisical manner. The hospital had inadequate manpower, lack of coordination, no proper record keeping of in-ward and outward (dispatch) of specimen of histo-path. The operative findings and the follow-up advice were not recorded properly. Thus, the hospital ignored all treatment protocols and the surgeon blandly violated the standard norms. Though, in this case the operated specimen was handed over to the patient’s relative for HPE examination but Dr. Panigrahi did not bother to see/know about the report. However, the patient relatives denied about receipt of any specimen. As per the NABH standard operating procedure (SOP), it is the responsibility of operating surgeon to send the surgical specimen for HPE. It is unfortunate that subsequently the patient developed metastasis in liver and other parts of body and she lost the chance of early cancer therapy. In our considered view it was ‘negligence per se’ of the hospital and the treating surgeon Dr.Panigrahi. The DMC further observed that only CBD exploration was done to claim money from CGHS though admittedly laparoscopic small bowel resection was not done but it was mentioned in discharge summery. The DMC removed the name of Dr. A.K. Panigrahi for 12 weeks from the State Medical register.

Coram expressed that, in negligence cases, one must prove that there was a duty, that duty was breached, and the breach of that duty caused damages.

Compensation in Medical Negligence Cases

It was noted by the Commission that, in the present case, the Surgeon failed in his duty of care, and it was not a reasonable standard of practice, thus he was negligent.

The State Commission ignored the medical negligence of the Surgeon; and for the qualitative change awarded Rs 20 lakh as compensation.

Hence, in Commission’s opinion, the medical negligence was attributed to the doctor and hospital, and the Complainant deserved the compensation. Therefore, the compensation was modified, that Rs 20 lakhs have to be paid just and fair, and therefore the view taken by the State Commission for the need of qualitative change in the functioning of the hospital was endorsed and the hospital shall pay Rs 5 lakhs more to the Complainant.

Since it has been 1 ½ decade since the incident occurred, the complainant deserves an interest on the total quantum of the award.

Conclusion

The impugned Order was modified to the extent that the treating Surgeon was liable for medical negligence; as well, the hospital was vicariously liable. The hospital needed qualitative change and systemic improvement also. Therefore, on the basis of the foregoing discussion, OP 1 and 2 shall pay total compensation of Rs 25 lakhs with interest of 6% pa and cost of litigation shall remain at Rs 1 lakh only. [Vishnu Priya Giri v. G.M. Modi Hospital Research Centre for Medical Sciences, 2022 SCC OnLine NCDRC 58, decided on 13-5-2022]


Advocates before the Commission:

For the Appellant: Mr Jalaj Agarwal, Advocate Mr Alok Chaudhary, Advocate with Appellant in person

For the Respondent: Mr Sanjeev Kumar Dubey, Sr. Advocate with Mr Rajmangal Kumar, Advocate for R-1

Ms Mary Mitzy, Advocate for R-2

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): C. Viswanath, Presiding Member, held that the complainant was not investing money in the share market exclusively for earning his livelihood, hence the same was he did not fall under the definition of Consumer.

Instant revision was filed by the petitioner under Section 21(b) of the Consumer Protection Act, 1986 against the order passed by the State Consumer Disputes Redressal Commission.

The revision petition was filed with a delay of 116 days.

Factual Background

The complainant/petitioner had purchased 2000 equity shares of Aravinda Remedies and 200 equity shares of Reliance Power Ltd. by making payments of Rs 13,700 and Rs 49,400 respectively. The OP delivered 1000 shares of Aravinda remedies instead 2000 shares amounting to Rs 6,850 leaving a refundable amount of Rs 6,850.

Further, OP delivered 200 shares of Reliance amounting to Rs 47,400 leaving a refundable amount of Rs 1,960. When the complainant enquired about his Demat Account, he came to know that 200 shares of Reliance Power Ltd. were transferred to the account of Ureka Stock and Share Broking Services without intimation to the complainant.

The OP also did not make a payment of Rs 27,480 being the differential price of the share which were credited to the Demat account of the complainant.

Aggrieved by the non-refunding of the aforesaid amount by the OP, the complainant filed the consumer complaint.

Complaint was partly allowed before the District Forum and on being aggrieved with the same, the complainant approached the State Commission, wherein the matter was remanded to District Forum and the forum dismissed the complaint as barred by limitation.

Further, the State Commission also dismissed the appeal since the transactions involved were commercial in nature.

Analysis, Law and Decision

Maintainability

State Commission had dismissed the complaint with the observation that the complainant was not a “consumer” as he was dealing in the share market.

As per Section 2(1)(d) of the Consumer Protection Act, 1986, a consumer is a person who buys goods or hires or avails services for consideration. The said section, however, carves out an exception by providing that the person who purchases goods or hires/avails services for the commercial purposes shall not be included in the definition of consumer.

Though Explanation to Section 2(1)(d) provides that if such services are availed exclusively for earning livelihood, he will be considered as a “Consumer”.

State Commission relied on the Judgment of this Commission in Steel City Securities Ltd. v. G.P. Ramesh, Revision Petition No. 3060 of 2011 and dismissed the complaint with the observation that the transaction was commercial in nature and the complainant was not a “consumer”.

Supreme Court’s decision in Morgan Stanley Mutual Funds v. Kartick Das, (1994) 4 SCC 224 was also cited, and the law laid down by the Supreme Court still holds good.

“33. Certainly, clauses (iii) and (iv) of Section 2(1)(c) of the Act do not arise in this case. Therefore, what requires to be examined is, whether any unfair trade practice has been adopted. The expression ‘unfair trade practice’ as per rules shall have the same meaning as defined under Section 36-A of Monopolies and Restrictive Trade Practices Act, 1969. That again cannot apply because the company is not trading in shares. The share means a share in the capital. The object of issuing the same is for building up capital. To raise capital, means making arrangements for carrying on the trade. It is not a practice relating to the carrying of any trade. Creation of share capital without allotment of shares does not bring shares into existence. Therefore, our answer is that a prospective investor like the respondent or the association is not a consumer under the Act. Q. 2: Whether the appellant company trades in shares?”

Hence, the complainant was not a consumer and the state commission had passed a well-reasoned order. [Baidyanath Mondal v. Kanahaya Lal Rathi, 2022 SCC OnLine NCDRC 62, decided on 29-4-2022]


Advocates before the Commission:

For the Petitioner: Mr Sahej Uban, Advocate with Petitioner in Person

For the Respondent: Mr Kanhaiya Lal Rathi (Respondent No.3 in person and

AR for Respondents Nos. 1 & 2)

Case BriefsHigh Courts

Orissa High Court: Narendra Kumar Vyas, J., directed the petitioner to approach Civil Court as the writ court cannot pronounce the legal right of the petitioner to receive compensation.

The instant petition was filed seeking compensation for the wrongful disconnection of electricity. The prayer sought is to award the compensation amounting to rupees one crores in favour of the petitioner at an early date and to take appropriate legal action against the opposite parties.

Counsel for Electricity Company submitted that it does not have any compensation policy. The Court observed that where licence is granted to a supplier for the supply of electricity and before the expiration of the period of licence, the State Electricity Board exercises option to purchase the undertaking of supplier, there is the question of compensation to be paid. But in the instant case, the petitioner is a consumer and has not been able to disclose a policy of the supplier regarding payment of compensation.

The Court thus held “In the circumstances, the writ Court cannot pronounce on a legal right of petitioner to receive compensation. Petitioner must approach the Civil Court and prove wrongful disconnection for decree of compensation.”[Pramod Kumar Rout v. Superintending Engineer Electrical Circle, 2022 SCC OnLine Ori 1123, decided on 13-04-2022]


Appearances

For the Appellants: Mr. A.K. Dash

For the Respondent: Mr. S.C. Das


Arunima Bose, Editorial Assistant has reported this brief.

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of R.K. Agarwal (President) and Dr S.M. Kantikar (Member) addressed a matter wherein a father had to face embarrassment and mental agony due to the sudden cancellation of rooms booked for his daughter’s marriage which resulted in claiming of compensation.

As per the facts of the case, the marriage of Complainant 1’s daughter was fixed and about 6 months in advance 25 rooms were booked for stay in ‘The Fern-An Ecotel Hotel’ – OP. After a span of 4 ½ months of booking, the hotel sent an email to the complainant about cancelling the said booking on the ground of the non-availability of rooms because of maintenance work.

Further, it was alleged that the reason for maintenance by the OP was completely false and malafide, though the hotel booking was open on the website during the said period.

Aggrieved by the deficiency in service, the conduct and negligent act of the OP, the consumer complaint was filed before the State Commission for Rs 23,45,500 for damages and mental agony.

Analysis, Law and Decision


Coram noted that there was no existence of any agreement between the parties and the appellant cancelled the booking and offered to refund the booking amount, but the complainants did not prefer to collect the amount but filed the Consumer complaint before the State Commission with the highly inflated claim.

For the above, Commission stated that bare quotation is not a confirmation of booking and there should be an agreement between the parties.

“The memories of marriage ceremonies are lifetime events in the life of bride and bridegroom and their family members to make their moments memorable. In our country, certainly, it is not an easy task for the parents to arrange their daughter’s marriage in a five-star hotel in place like Jaipur or any big cities. All of sudden cancellation of booking about 3 months prior to the date of marriage on account of maintenance is not acceptable reason.”

Elaborating further, Commission added that, in most of the star hotels, the maintenance schedule /calendar is fixed well in advance. As in the instant case, the Opposite Party was under the knowledge that the maintenance work would be completed up to 31.3.2012. Therefore, at the first instance only, the Opposite party would have rejected the booking.

In Coram’s opinion, the hotel management was at serious fault, which was well aware of their schedule of maintenance and the room reservations well in advance and the unilateral cancellation of rooms certainly caused huge loss and mental agony to the complainant and his family.

Hence, the act of the OP amounted to a deficiency of service which needed just and reasonable compensation to the complainants.

First appeal was allowed in view of the above discussion and OP was directed to pay Rs 2,53,950 to the complainants along with interest @9% per annum from the date of cancellation of the booking. [Fern-An-Ecotel Hotel v. Navratan Nahata, FA No. 750 of 2013, decided on 21-1-2022]


Advocates before the Commission:

For the Appellant : Mr. Sanjiv Arora, Advocate Mr. Shubham Arora, Advocate

For the Respondent : Mr. Ashok Mehta, Senior Advocate

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Dinesh Singh (Presiding Member) and Karuna Nand Bajpayee (Member) upheld the decision of the District Commission with respect to concealment of pre-existing fatal diseases at the time of taking insurance.

A revision petition was filed challenging the State Commission’s Order.

The dispute was with respect to the repudiation of the claim on the death of the insured. The parties in the present matter are the insurance company i.e., the petitioner and nominee/widow of the deceased insured was the respondent.

Repudiation of the claim was on the ground of concealment of pre-existing fatal diseases at the time of taking the insurance.

Crux

Whether or not the insured knew that he was suffering from fatal diseases, and he deliberately suppressed his medical condition when he took the policy.

The President of District Commission held that the insured had knowledge of his medical condition when he took the policy and he deliberately suppressed material facts when he took the policy. The other two members held that the insured came to know of his fatal diseases only subsequent to the taking of the policy, when the relevant tests and investigations were conducted in the hospital where he was admitted for treatment just before he died. Accordingly, the majority view was that the complaint deserved to be allowed.

State Commission observed that the onus of proving the fact that the insured had prior knowledge that he was suffering from fatal diseases and as such he deliberately suppressed these material facts at the time of filling up the proposal form was on the insurance co.

Further, it was noted that, there was no evidence on record to show that the insured had knowledge that he was suffering from fatal diseases prior to taking the policy and there was inadequate evidence to support that he had deliberately suppressed his medical condition.

Decision of NCDRC

Coram held that the State Commission’s decision was well appraised reasoned order, and no perversity was found for interference.

The Commission agreed with the counsel for the insurance company that suppression of material facts about pre-existing disease/medical condition would undoubtedly be a breach of the insurance contract, which was of utmost good faith.

In the present matter, the onus of establishing the fact that there was a deliberate suppression of material facts was on the insurance company which onus it failed to discharge by adducing the adequate evidence to substantiate such contention.

In view of the above discussion, the petition was dismissed.

Therefore, the award by the District Commission was upheld by the State Commission and has been confirmed. [LIC of India v. Mamta Sipani, 2022 SCC OnLine NCDRC 41, decided on 2-3-2022]


Advocates before the Commission:

For the Petitioner: Mr. Jai Vardhan, Advocate for Ms. Harvinder Kaur, Advocate

For the Respondent: Mr. Yashvir Singh Kadiyan, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members), noted allegations against Star India for providing a bouquet of channels at lesser prices resulting in denying of market access and also amounting to unfair pricing.

Background

Informant had filed information under Section 19(1)(a) of the Competition Act, 2002 against Star India (P) Ltd. (OP 1), Disney Broadcasting (India) Limited (OP 2) and Asianet Star Communications Private Limited (OP 3) alleging, inter alia, contravention of the provisions of Sections 4 of the Act.

Further, the informant was stated to be a Multi-System Operator engaged in the business of providing digital TV services, predominantly in Kerala. It also operated in Karnataka, Andhra Pradesh, Telangana and Odisha. Informant provides digital TV services to its customers directly as well as through Local Cable Operators (LCO) and currently provides services to about 10.02 lakh customers in Kerala and a minimal 1.19 lakh customers in all other States combined.

OP 2 was a broadcaster of satellite-based TV channels in India, having multiple channels of different languages and various genres including general entertainment, movies, kids’ entertainment, sports and infotainment.

As per the business arrangement, informant received broadcasting signals from OP-1 for a monetary consideration for the purposes of supplying the channels of OP-1 to customers and for that the informant entered into agreements with OP-1 from time to time.

Allegation

Informant alleged the abuse of dominant position by OPs by discriminating the informant in not extending the discounts, which are offered by its competitors.

Hence, offering discriminatory discounts was alleged to be in contravention of the provisions of Section 4(2)(a)(ii) of the Act being unfair/discriminatory prices, as also the provisions of Section 4(2)(c) as it denied market access to the informant as well due to the inability of the Informant to compete in the downstream market of the distribution of TV channels given the unfair advantage OP-1 had conferred upon the informant’s competitors.

After the introduction of the New Regulatory Framework, ADNPL started losing subscribers to Kerala Communicators Cable Limited (KCCL) as the latter offered low prices to LCOs who, in turn, offered lower prices to subscribers.

In gist, the informant alleged that OP-1 was in a dominant position on account of its significant market share, size and economic resources since it was a part of the global media conglomerate, dependence of consumers and its countervailing power. The said conduct violated provisions of Section 4(2) (a) (ii) of the Act and Section 4(2) (c) thereof since the discriminatory discounts amount to unfair/discriminatory price and denied market access to the Informant as it was unable to compete in the downstream market of distribution of TV channels considering the unfair advantage of OP-1 had conferred upon ADNPL’s competitor KCCL.

Analysis and Decision

The Commission observed that the crux amongst all the allegations was the offering of additional discounts to select MSOs and the main competitor of ADNPL in Kerala, viz KCCL, OP-1 had placed the MSOs at a huge disadvantage which was detrimental to the competition and competitors in the market.

Coram noted that the OP-1 had around 50 entertainment channels and over 15 sporting channels with exclusive content of the major sporting events such as ICC, IPL, ODIs, Wimbledon, French Open etc. making access to its bouquet of channels indispensable for any MSO operator, especially when some of the most popular as per TRPs, regional and nationwide channels belonged to the OPs.

OP-1 enjoyed a position of dominance in the relevant market.

KCCL was getting channels at about 30% of the MRP with about 70% discount whereas the maximum permissible discounts under the New Regulatory Framework was capped at 35%. OP 1 was alleged to have chosen an indirect way to provide discounts to circumvent the new Regulatory Framework by way of promotion and advertisement payments to KCCL through high valued advertising deals.

In view of the above, the Informant was constrained to price its channels at a higher price than that of KCCL and ultimately pay the price by losing consumers consistently whereas KCCL had gained new consumers.

Ultimately, the informant was offering services at loss making price just to prevent the subscriber base from migrating to KCCL’s services but in vain.

Due to the alleged discriminatory conduct of price discrimination between different MSOs and OP-1 resulted in significant loss in the consumer base of the informant and therefore, prima facie appeared to be a violation of the provisions of Section 4(2)(a)9ii) of the Act as also in contravention of the provisions of Section 4(2)(c) of the Act due to discriminatory pricing and denial of market access.

Therefore, alleged discriminatory conduct of price discrimination between different MSOs of OP-1 resulted into significant loss in the consumer base of the Informant and therefore prima facie appeared to be in violation of provisions of Section 4(2)(a)(ii) of the Act as also in contravention of the provisions of Section 4(2)(c) of the Act due to discriminatory pricing and denial of market access respectively.

Commission directed DH to cause an investigation in the above matter. [Asianet Digital Network (P) Ltd. v. Star India (P) Ltd., 2022 SCC OnLine CCI 5, decided on 28-2-2022]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: N. Nagaresh, J., decided whether medical service would fall within the ambit of Section 2(42) of the Consumer Protection Act, 2019 unless of course the service is free of charge or is under a contract of personal service.

Background

Doctors practising Modern Medicine in Kannur filed the present petition seeking to quash the orders of District and State Consumer Disputes Redressal Commissions, as sans jurisdiction and hence illegal.

They sought to declare that the Consumer Fora under the Consumer Protection Act, 2019 does not have jurisdiction to take cognizance of complaints in respect of medical negligence and deficiency in medical service as a medical profession and practice and practice does not come within the purview of term ‘service’ defined under Section 2(42) of the Consumer Protection Act, 2019.

Contention

Senior Counsel assisted by the counsel for the petitioners argued that the medical service/practice is not included in the illustrations in the inclusive definition of the term ‘service’ under Section 2(42) of the Consumer Protection Act, 2019 and hence the intention of the Parliament is clear that the Parliament did not want to include medical services/profession within the purview of the term ‘service’. The learned Senior Counsel pointed out that the Draft Bill of the new Consumer Protection Act, 2019 had included health sector among the illustrations of facilities that are treated as ‘service’ in Section 2(42) of the new Act. However, the health sector was removed from among the illustrations under Section 2(42). The obvious reason is that the lawmakers intended to exclude medical service/profession from the purview of the new Act.

Analysis

High Court noted the argument of the petitioners that a complaint in respect of medical negligence or deficiency in medical service was not maintainable before the District or State Consumer Disputes Redressal Commission for the reason that Section 2(42) of the Consumer Protection Act, 2019 does not take within its ambit the medical profession/medical services.

Supreme Court’s decision in Indian Medical Association v. V.P. Shantha, (1995) 6 SCC 651, considered the question whether medical negligence/deficiency in the medical services would fall within the ambit of ‘service’ and it was held that the services rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, both medical and surgical would fall within the ambit of ‘service’ as defined under Section 2(1)(o) of the Act, 1986.

The Act, 1986 was substituted by the Consumer Protection Act, 2019, wherein the term ‘service’ is defined under Section 2(42).

Further, it was added that both Sections 2(42) of the Act, 2019 and Section 2(1)(o) of the Act, 1986 more or less have the same meaning and implications. The only difference is that Section 2)42) of the Act, 2019 is more descriptive and takes specifically in the banking, financing, insurance, transport, processing supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information.

High Court opined that Section 2(42) of the Act would show that the Parliament intended to specifically underline that, certain services like Banking, Financing, Insurance, transport, etc., which are in the nature of public utility services, would come within the purview of services.

The said definition is inclusive and not exhaustive. Therefore, all services which are made available to potential users would fall under Section 2(42), except those services rendered free of charge or under a contract of personal service. The words “but not limited to” appearing in Section 2(42) clarifies the intention of the Parliament.

Hence,

Medical services therefore would indeed fall within the ambit of Section 2(42), unless of course the service is free of charge or is under a contract of personal service.

Bench added that, the District Commission considered the issue of maintainability of the complaint and noted that there was no difference to the meaning of ‘service’ in the old Act and the new Act. Therefore, District Commission rejected the objections as to the maintainability of the complaint.

Even the State Commission held that since no conscious change in the definition of “service” was made in the new Act, the petitioner’s contention that Health Sector had been deliberately excluded by the Parliament while enacting the new law, could not be accepted.

High Court dismissed the petition in view of the above. [Dr Vijil v. Ambujakshi T.P., 2022 SCC OnLine Ker 863, decided on 10-2-2022]


Advocates before the Court:

For the Petitioners:

By Advocates:

GOPAKUMARAN NAIR (SR.)

SOORAJ T.ELENJICKAL

RENOY VINCENT

ARUN ROY

HELEN P.A.

SHAHIR SHOWKATH ALI

For the Respondents:

By Advocates:

SRI.MANU S, ASGI

SRI.V.GIREESH KUMAR, CGC

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao and BR Gavai*, JJ interpreted the true scope of a “consumer” in terms of Section 2(1)(d) of the Consumer Protection Act, 1986 and has held that the ‘business to business’ disputes cannot be construed as consumer disputes. The entire Act revolves around “business-to-consumer” disputes and not for “business-to-business” disputes.

Analysis

Section 2(1)(d) of the said Act is in two parts.

  1. Section 2(1)(d)(i) of the said Act deals with buying of goods.
  2. Section 2(1)(d)(ii) of the said Act is with respect to hiring of services.

By the 1993 Amendment Act, wherever the word “hires” was used, the same was substituted by the words “hires or avails of”.  By the said 1993 Amendment Act, insofar as Section 2(1)(d)(i) is concerned, an Explanation was provided to the effect that ‘commercial purpose’ does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Hence, though the original Act of 1986 excluded a person from the ambit of definition of the term ‘consumer’ whenever such purchases were made for commercial purpose; by the Explanation, which is an exception to an exception, even if a person made purchases for ‘commercial purpose’, he was included in the definition of the term ‘consumer’, if such a person bought and used such goods exclusively for earning his livelihood by means of self-employment.

By the 2002 Amendment Act, the legislature has done two things.

  1. It has kept the commercial transactions, insofar as the services are concerned, beyond the ambit of the term ‘consumer’ and brought it in parity with Section 2(1)(d)(i), wherein a person, who bought such goods for resale or for any commercial purpose, was already out of the ambit of the term ‘consumer’.
  2. The legislature did was that even if a person availed of the commercial services, if the services availed by him were exclusively for the purposes of earning his livelihood by means of self-employment, he would still be a ‘consumer’ for the purposes of the said Act.

Thus, a person who availed of services for commercial purpose exclusively for the purposes of earning his livelihood by means of self-employment was kept out of the term ‘commercial purpose’ and brought into the ambit of ‘consumer’, by bringing him on par with similarly circumstanced person, who bought and used goods exclusively for the purposes of earning his livelihood by means of self-employment.

“If a person buys goods for commercial purpose or avails services for commercial purpose, though ordinarily, he would have been out of the ambit of the term ‘consumer’, by virtue of Explanation, which is now common to both Sections 2(1)(d)(i) and 2(1)(d)(ii), he would still come within the ambit of the term ‘consumer’, if purchase of such goods or availing of such services was exclusively for the   purposes of earning his livelihood by means of self-employment.”

The upshot of the above-mentioned discussion led to the conclusion that when a person avails a service for a commercial purpose, to come within the meaning of ‘consumer’ as defined in the said Act, he will have to establish that the services were availed exclusively for the purposes of earning his livelihood by means of self-employment. There cannot be any straitjacket formula and such a question will have to be decided in the facts of each case, depending upon the evidence placed on record.

Ruling

The Court was deciding the case where NCDRC has come to a finding that the appellant had opened an account with the respondent-Bank, took overdraft facility to expand his business profits, and subsequently from time to time the overdraft facility was enhanced so as to further expand his business and increase his profits.

The Court affirmed the said ruling and observed that the relations between the appellant and the respondent is purely “business to business” relationship. As such, transactions would clearly come within the ambit of ‘commercial purpose’. It cannot be said that the services were availed “exclusively for the purposes of earning his livelihood” “by means of self-employment”.

[Shrikant G. Mantri v. Punjab National Bank, 2022 SCC OnLine SC 218, decided on 22.02.2022]


*Judgment by: Justice BR Gavai


Counsels

For appellant: Senior Advocate Shyam Divan

For respondent: Senior Advocate Dushyant Dave

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Disputes Redressal Commission (NCDRC): The Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member) expressed that, when a Statute provides for a particular period of limitation, it has to be scrupulously applied, as an unlimited limitation leads to a sense of uncertainty.

Instant revision petition had been filed by the complainant under Section 19 read with Section 21(a)(ii) of the Consumer Protection Act, 1986 against the order passed by the West Bengal State Consumer Disputes Redressal Commission at Kolkata.

State commission had rejected the application seeking condonation of delay of 120 days in filing the Revision Petition and consequently summarily dismissed the Revision Petition.

Issue

Whether the State Commission was justified in declining to condone the delay of 120 days in filing the Revision Petition before it or not?

Analysis and Decision

Commission expressed that it is trite law that the expression ‘sufficient cause’ cannot be construed liberally if negligence, inaction or lack of bonafides are attributable to the party, praying for exercise of such discretion in its favour.

In the present matter, petitioner failed to make out any cause, much less a ‘sufficient cause’ for condonation of delay of 120 days in filing the Revision Petition before the State Commission and the State Commission for the reasons recorded in the Impugned Order was justified in declining to condone the delay.

Hence, the present revision petition was dismissed.[Pallab Mohan Chakraborti v. Debayan Ganguly, Revision Petition No. 2447 of 2018, decided on 22-2-2022]


Advocates before the Commission:

Petitioner in Person

For the respondent: Ms. Pooja Shukla, Advocate

Mr. Surojit Gangopadhyay, Advocate Ms. Chitralekha Das, Advocate

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission, New Delhi (NCDRC): The Coram of R.K. Agrawal (President) and Dr S.M. Kantikar (Member) addressed a matter wherein the builder took money from the purchaser for the formation of a co-operative housing society but failed to do so and when asked for the refund, he did not return the money as well.

An agreement was entered between the complainant and the OP to construct Bungalow and as per that, the complainant had paid Rs 10,00,000 as consideration. The said agreement was not notarized, after handing over the possession and Occupancy Certificate, OP had to form a Co-operative Society, for which an amount was collected from the complainant, which was Rs 75,000, but OP failed to do so and also did not enroll the complainant as a member or executed independent Deed of Sale.

Later it came to the complainant’s knowledge that the OP had executed a few individual sale deeds in respect of some purchasers but not for the complainant. The complainant got drafted a sale deed, but the OP demanded a further amount even after agreeing initially that he would execute the same.

The complainant even obtained a NOC under FEMA. Yet the sale deed was not executed by the builder.

Hence, on being aggrieved with the above circumstances, the party reached the consumer forum for a refund of Rs 10,00,000 along with interest @18% p.a.; compensation of Rs 5,00,000 and Rs 50,580 towards travel expenses due to postponement of Air Ticket to USA.

Analysis, Law and Decision

Coram noted that the appellant builder executed individual Sale Deeds in respect of some purchasers.

Commission found that the Complainant had agreed to join Co-operative Housing Society, but the appellant did not form any and also did not refund the money paid by the complainant as ‘advance towards the maintenance and formation of the Co-operative Housing Society”.

Based on the above discussion, the OP was liable for deficiency in service. [Dilip Sagun Naik v. Dr Maliyil Cheriyan Mathai, 2022 SCC OnLine NCDRC 30, decided on 17-2-2022]


Advocates before the Commission:

For the Appellant: Mr. Dileep Poolakkot, Advocate

For the Respondent: Mr. S.N. Joshi, Advocate

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): While noting whether the flat owners can be prevented from the use of certain common spaces, the Coram of Justice R.K. Agarwal (President) held that under the provisions of the Maharashtra Apartment Ownership Act 1970 and even Maharashtra Ownership Flats (Regulation of the promotion of construction, sale management and transfer) Act, 1963, a Society had to be formed by the builder and the entire building premises including the open space in question was to be transferred to the Society or a legal body for its maintenance and further, as per Section 6 of the MAOA 1970, each flat owner is entitled to an undivided interest in the common areas and the facilities.

Complainants challenged the order of the Maharashtra State Consumer Disputes Redressal Commission under Section 21(b) of the Consumer Protection Act, 1986.

What was the dispute?

Dispute between the parties was with respect to the use of substantial open space surrounding the building.

The complainants were being prevented from using and enjoying the open space as respondent 1 had covered the said space by erecting an iron grill.

Factual Matrix

Respondent 4 Society had allotted Plot No. 29 in question to respondent 1 on lease. In terms of the resolution passed by the Society allowing its member to construct the multi-storied building on the allotted plot, respondent 1 entered into a Development Agreement with respondent 2 who further transferred his rights of development in favour of respondent 2 Partnership Firm in which respondent 3 was a Partner.

Further, on completion of the building, the completion certificate was obtained. As per the Development Agreement, the flat nos. 1 and 2 at the Ground Floor of the building in question were retained by respondent 1 and flat no’s 3,4, 5 and 6 situated at 1st and 2nd floors were purchased by the complainants executing necessary registered agreements.

Respondent 1 submitted that in the Development Agreement executed with Late Vinayak Shridhar Deshpande, the right of the open space surrounding the Building was not given to him. As per the sale agreement, only staircase and top terrace were to be declared as common space

Analysis, Law and Decision

Coram opined that there was merit in the conclusion arrived at by the District Forum that the rights of the parties with regard to the use of open space surrounding the building in question, were governed by the various provisions of the Maharashtra Ownership Act, 1970 and the respondents were under an obligation to form a Society/legal body to take care of the entire Building Premises.

The above was the reason that during the pendency of the Complaint, respondent 1 executed a Deed of Declaration on 10-01-2005 to bring the property in question under the provisions of the MAOA 1970. Though the said deed of the declaration was not submitted as required under the provisions of the Maharashtra Apartments Ownership Act, 1970.

Whether the open space constitutes as part of the common area and facilities?  

As per Section 3(f) of the MAOA, 1970, the open space in question was a part and parcel of the Common Areas and the Flat Owners were within their right to use the same.

Section 2 (e) of the Maharashtra Housing (Regulation and Development) Act, 2012 specifically include any open space around the building in the definition of “Common Areas and Amenities and Facilities”

Further, Coram stated that the Apartment Owner has the right to use the common area and facilities in accordance with the purpose for which they were intended without hindering or encroaching upon the lawful rights of the other apartment owners.

“The Common Area and Facilities remain undivided and no Apartment Owner or any other person shall bring any action for partition or division of any part thereof.”

While citing the decision of Supreme Court in Nahalchand Laloochand (P) Ltd. v. Panchali Cooperative Building Society Ltd., (2010) 9 SCC 536, it was noted that the Builder/Promoter has no right to sell any area of Building except the unsold flats.

Therefore, the District Forum’s decision was restored, and the State Commission’s decision was set aside. [Parvin G. Joshi v. Sarojini Gangadhar, 2022 SCC OnLine NCDRC 34, decided on 22-2-2022]


Advocates before the Commission:

For the Petitioner: Mr. Ankur Gupta, Advocate

For the Respondents: Mr. Rohan S. Darandale, Advocate

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission, New Delhi (NCDRC): While addressing a case wherein there was a delay of 6 years in handing over the possession to the buyer, the Coram of Dr S.M. Kantikar (Presiding Member) and Binoy Kumar, Member, held that in view of catena of Supreme Court decisions on the said issue, the buyer was entitled to get legal possession along with compensation.

An appeal was filed under Section 51(1) of the Consumer Protection Act, 2019 against the decision of the State Consumer Disputes Redressal Commission Uttar Pradesh, whereby the complaint filed by the appellant/complainant was partly allowed.

Respondent/OP was engaged in developing a township and a flat was allotted to Anish Singhal who paid a sum of Rs 1,50,000 to the respondent/OP as a booking amount.

Further, the appellant/complainant returned the deposited amount to the original allottee Anish Singhal and paid a sum of Rs 2,50,000 to the respondent/OP, hence the respondent/OP transferred the flat in the name of appellant/complainant as per previous terms and conditions.

For a total price of Rs 18,21,763, the flat buyer agreement was signed and executed by all the parties. As per the agreement/contract, possession of the flat was to be given within a period of 18 months.

Appellant/Complainant had paid more than 50% of the total consideration as per the construction linked payment plan to the respondent/OP, but even after 6 years the said flat was not handed over.

On being aggrieved with the acts of respondent/OP, the appellant/complainant filed a complaint before the District Forum which was dismissed due to lack of pecuniary jurisdiction.

Analysis, Law and Decision

Commission expressed that appellant/complainant cannot wait for an indefinite time as he had invested heavily his hard-earned money with the intention to get legal possession of the flat.

Further, it was added that since the said agreement was a valid legal document, possession should have been given in 18 months i.e. by May, 2013 or by November, 2013 if the grace period of 6 months was added.

Coram found that there was a delay of about 6 years by the respondent/OP in obtaining the Occupancy Certificate and offer of possession. The reason for the delay was also unexplained.

Therefore, the appellant/complainant was entitled to get legal possession of his flat with reasonable compensation for the delay. [Ved Prakash Aggarwal v. Logix City Developers (P) Ltd., 2022 SCC OnLine NCDRC 35, decided on 22-2-2022]


Advocates before the Commission:

For the Appellant: In Person

For the Respondent: Binoy Kumar, Member

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Justice R.K. Agarwal (President) and Dr S.M. Kantikar (Member) analyses a matter wherein a patient developed serious issues after being operated, which led to her death, hence the doctors/hospital were alleged for medical negligence.

An appeal was preferred by Kapil Aggarwal and others (Appellants/Complainants) under Section 19 of the Consumer Protection Act, 1986 against the impugned order passed by the Haryana State Consumer Disputes Redressal Commission wherein the complaint of alleged medical negligence was dismissed against the Sarvodaya Hospital & Research Centre.

Factual Matrix

Complainant 1 had admitted his wife (patient) to Sarvodaya Hospital & Research Centre at Faridabad (Hospital). OP 2 examined the patient and was advised for removal of uterus. The patient was also suffering from umbilical hernia. The doctors specifically informed the patient’s condition was not suitable for two surgeries, which could prove fatal.

After being operated on, the patient’s condition was serious, hence she was shifted to ICU and put on oxygen and artificial ventilation support.

The Complainant was shocked to learn from the ICU bedside ticket that along with Hysterectomy, the surgery for hernia was also performed. No consent was given for hernia operation. Post operatively, the patient developed hypoxic encephalopathy. It was further alleged that in the ICU, Tracheostomy procedure was done four times.

It was also alleged that due to repeated X-ray & CT scan, the patient received heavy doses of radiation, which led to fall in Hb% to 8.3 g%. Due to the entire treatment being negligent, the patient’s death was caused.

On being aggrieved with the above, a complaint was filed seeking compensation to the tune of Rs 45,42,500.

Though the State Commission dismissed the above-stated complaint and on being aggrieved with the same, the instant first appeal was filed.

Analysis, Law and Decision

Coram noted from the medical record that based on the patient’s condition and the investigation, the doctors planned for Laparoscopic Total Hysterectomy.

As per the medical literature on laparoscopic hysterectomy surgeries, during the laparoscopic procedure umbilical port is used, and after TLH, at the time of removal, the umbilical port shall be closed.

In the instant case, admittedly, the patient had umbilical hernia and in the Commission’s opinion, the method adopted by the Surgeon was correct. Moreover, knowing the morbid obesity and other comorbidities, the operation was performed after obtaining high risk consent. Thus, it was TLH only and not the second surgery for the repair of hernia as no mesh and/or trackers were used for Umbilical Hernia repair surgery.

Whether it was a medical negligence wherein the patient suffered complication post-operatively?

In Commission’s opinion, both the procedures were performed as per standard of practice and unfortunately the patient developed serious complications post-operatively which were promptly treated by the team of doctors.

Further, the Coram relied on a Supreme Court decision in Achutrao Haribhao Khodwa v. State of Maharashtra, (1996) 2 SCC 634, wherein it was noticed that:

“in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.” 

Supreme Court observed that every mishap shall not be construed as negligence of the treating doctor or the hospital to fasten the liability.

Hence, in the present matter, medical negligence would not be conclusively attributed against the hospital and doctors.

Therefore, the first appeal was dismissed. [Kapil Aggarwal v. Sarvodaya Hospital & Research Centre, 2022 SCC OnLine NCDRC 21, decided on 8-2-2022]


Advocates before the Commission:

For the Appellant :

Mr. Prashant T. Bhushan, Advocate

Dr. H. M. Gupta, G.P.A. of the Appellants

For the Respondent:

Mr. S.N. Parasar, Advocate for R-1 to 5

Mr. Maibam N. Singh, Advocate for R-6

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Dr S.M. Kantikar (Presiding Member) and Binoy Kumar (Member) while allowing an application for transfer expressed that,

“…it is true that the doctors are busy and conscious about their duties towards the patient, but they are not exempted from the legal proceedings and duty bound to attend the court proceedings (physical or virtual mode) either through their Counsel or on their own.”

Instant petition was a transfer application to transfer the complaint from the State Commission, Chhattisgarh to the State Commission, Odisha.

Analysis and Decision

The OPs were running a Medical Centre for more than 2 decades. They have digitalization and communication facilities like WIFI/internet which may be used for e-filing/virtual proceedings.

Coram expressed that, it is true that the doctors are busy and conscious about their duties towards the patient, but they are not exempted from the legal proceedings and duty-bound to attend the court proceedings (physical or virtual mode) either through their Counsel or on their own.

The Statement of Objects and Reasons of the Act 1986 speaks of “speedy and simple redressal to consumer disputes”. This is the case of alleged medical negligence which needs a holistic approach after giving fair opportunities to the parties on both sides, instead of taking a technical approach, Commission added.

Hence, in view of the above discussion, as per the provisions contained under Section 62 of the Consumer Protection Act, 2019 the transfer application was allowed.

The Commission directed the parties to appear before the State Commission, Odisha on 7-3-2022.[Manasi Mishra v. Aayush Hospital & Maternity Home, 2022 SCC OnLine NCDRC 22, decided on 9-2-2022]


Advocates before the Commission:

For the applicant: Suyash Pande, Advocate

For the non-applicants 1 to 4: Rohini Kumar, Advocate

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