Case BriefsHigh Courts

Karnataka High Court: N. Sanjay Gowda, J., allowed the petition and quashed the demand note.

The facts of the case are such that the petitioner is supplied electricity by the licensee i.e. Hubli Electricity Supply Company Limited i.e. ‘HESCOM’. Apart from this, it is also supplying energy from the energy exchange every month which is called as purchase of electricity from Open Access Source. The petitioner is liable to pay tax on electricity consumed by it. A demand to pay a sum of Rs. 94, 47, 534 being a demand for payment was issued by HESCOM. The grievance of the petitioner is regarding whether the electricity tax which is to be paid should be levied on the price at which it purchases, be it from the licensee or from the Open Access Source. Aggrieved by the demand note, instant petition under Article 226 and 227 of the Constitution of India was filed on grounds of it being without jurisdiction and thus unconstitutional.

Counsel for the petitioner submitted that the price paid for purchase of electricity through Open Access Source is different than the price paid by it for the electricity sold to it by the licensee HESCOM.

Counsel for the respondents submitted that irrespective of source of electricity, every consumer is liable to pay tax on the electricity consumed within the State and since, admittedly, petitioner had consumed the electricity within the State of Karnataka, it was bound to pay electricity tax on the rates at which electricity has been supplied by HESCOM.

The Court observed that The Karnataka Electricity (Taxation n Consumption or Sale) Act, 1959 i.e ‘The Act’ was enacted to provide for levy of tax on consumption of electricity energy in the State of Karnataka in the year 1959 for sale of electricity energy in the State of Karnataka.

The intent of Section 3 of The Act is clear that whenever electricity is consumed by a consumer within the State of Karnataka, the consumer is bound to pay electricity tax on that on ad valorem basis at the rate of 6% on the charges payable on the electricity sold or consumed. The deliberate use of the expression “charges payable on electricity sold to or consumed by any consumers” would indicate that the charges for the electricity sold and for the electricity consumed could be different. Section 3 sub section 2 makes it clear that the source of electricity consumed by the consumers would be the yardstick for determination of the electricity charges on the basis of which an ad valorem rate have to be calculated.

Further, it was observed that as per Section 4 (1)(a), licensee is required to collect and pay to the State Government the electricity tax payable under the Act on the electricity charges included in the bill issued by him to the consumers. Thus, it is applicable in respect of electricity sold by the license.

Section 4 (1)(b) clearly states that the licensee shall collect and pay to the State Government the electricity tax payable on the units of electricity supplied to consumer by a non licensee through a license. Thus, a clear distinction is made on the manner in which the tax is paid.

The Court concluded that it is to be borne in mind that the person who sells the electricity would necessarily pay the wheeling and access charges to the licensee and the seller of the electricity would be basically using the infrastructure and paying for the distribution. The licensee, therefore, would have no preferential right.

The Court thus held “the demand made by HESCOM by computing the tax at the rate at which it was selling electricity to its consumers cannot be the basis for levying and collecting the electricity tax. HESCOM shall now calculate the electricity tax at the rate at which the petitioner had purchased the electricity from Open Access Source and issued a revised demand within a period of two weeks from the date of receipt of a certified copy of this order”

In view of the above, petition was allowed.[Southern Ferro Ltd. v. State of Karnataka, W.P. No. 105054/2017, decided on 15-03-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Advocates before the Court:

Counsel for the Petitioner: Mr Gurudas Kannur (Senior Counsel) and Mr Narayan G. Rasalkar (Adv.)

Counsel for the respondent: Ms K. Vidyawati (Add. Adv. Gen), Mr Vinayak S. Kulkarni (for R1, 2 and 5) and Mr B. S. Kamate (Adv.)

Case BriefsSupreme Court

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


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

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


Impact of a change in forum on pending proceedings and retrospectivity

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

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

Section 107 of the Act of 2019

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

Section 6 of the General Clauses Act

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

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

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

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

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

Object of the Act of 2019

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

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

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

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

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

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

Data on pendency of cases

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

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

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


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

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

*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Appearances before the Court by:

For appellants: Advocate P Vinay Kumar

For respondent: Senior Advocate Krishnan Venugopal

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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

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

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

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

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

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

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

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

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

Analysis and Decision

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

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

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

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

Advocates before the Commission:

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

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): C. Viswanath (Presiding Member) dismissed the complaint while granting an opportunity to the Complainant to approach any Appropriate Forum/ Authority of Court.

The instant complaint was filed under Section 21 of the Consumer Protection Act, 1986.

Complainant a resident and owner of an apartment at Ambience Island Lagoon Apartment, Gurgaon. OP 1 is the Director of the Opposite Parties 2 and 3.

What is the Complaint?

Complainant submitted that an Apartment Buyers Agreement, dated 20-10-2001 was executed between the Complainant and OP 2 for which he paid an amount of Rs 54, 46, 706 towards the purchase of the apartment.

Further Complainant paid an additional 13% of the sale price in two instalments for the registration of the Deed of the Apartment. In 2003, the complainant received the confirming receipt from OP 2 and in 2014 the Conveyance Deed was also executed.

OPs to date has not executed the Deed of Apartment in favour of the Complainant. Further, they alleged that the Conveyance Deed was forced upon them in lieu of Deed of Apartment.

Adding to the above allegations, another revelation was made that the OPs systematically and intentionally defrauded and misled the Complainant.

Hence, the Complainant alleged deficiency in service.

Analysis and Decision

Bench noted that OPs executed the Conveyance Deed as per clause 13 of the Apartment Buyer Agreement.

Further, adding to the above, Commission stated that there were no one-sided clauses in the Agreement which constituted an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 and deficiency in service under Section 2 (g) of the Consumer Protection Act, 1986.

In fact, the Complainant sought for the execution of the Conveyance deed before the Delhi High Court in Civil Suit No. C.S.(O.S) No.2155 of 2011. 

“…the expressed “terms and conditions” of the ABA are binding on Parties”.

Hence, since Complainant himself filed a Civil Suit in Delhi High Court for the execution of the Conveyance Deed, he cannot back out after it is executed.

Supreme Court’s decision in Bhubaneshwar Development Authority v. Susanta Kumar Mishra, (2009) 4 SCC 684 held:

“Further, any fora under the Consumer Protection Act, 1986 (“the Act”, for short) before granting any relief to a complainant, should be satisfied that the complaint relates to any of the matters specified in Section 2(1)(c) of the Act, and that the complainant has alleged and made out either unfair or restrictive trade practice by a trader, or defects in the goods sold or any deficiency in a service rendered, or charging of excessive price for the goods sold, or offering of any goods hazardous to life and safety without displaying information regarding contents, etc. If none of these is alleged and made out, the complaint will have to be rejected”

In the decision of Satish Kumar Pandey v. Unitech Ltd., Consumer Complaint No. 427 of 2014, it was held that it was an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum to revise the said terms.

Commission observed that Clause 13 of the Agreement clearly stipulated that:

“the Company along with its Associates/Subsidiary Companies as stated earlier shall prepare and execute along with the Apartment Allottee a conveyance deed to convey the title of the said Apartment in favour of Apartment Allottee…”

Therefore, in the present matter, the Commission cannot grant any relief beyond the Agreement entered between the Parties.

Complaint was dismissed in view of the above terms. [Dr Amitabha Sen v. Raj Singh Gehlot, 2021 SCC OnLine NCDRC 23, decided on 24-02-2021]

Advocates who appeared before the Commission:

For the Complainant: Dr Amitabha Sen (Advocate) Complainant in person with Ms Aditi Pandey Ms Prarthana and Mr Abhinav, Advocates

For the OP: Mr P.K. Agrawal, Advocate with Ms Tanya Sharma and Ms Deepti Gupta, Advocate

Explanation of a few terms used in the above brief:

  • Conveyance: An instrument which transfers property from one person to another defined for the purposes of the Conveyancing Act, as including ‘assignment, appointment, lease settlement, and other assurance, and covenant to surrender, made by deed on a sale, mortgage, demise or settlement of any property or on any other dealing with or for any property’. [Whart.]
  • Deed: A formal document on paper or parchment duly signed, sealed and delivered. (factum inter partes) needing no actual indentation (Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 5) made between two or more persons in different interests or a deed-poll (charta de unâ parte) made by a single person or by two or more persons having similar interests.
  • Agreement: Every promise and every set of promises, forming the consideration for each other, is an agreement, [Section 2(e), Contract Act, 1872 (India)]
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): C. Viswanath (Presiding Member) addressed the issue of whether educational institutions fall under the ambit of Consumer Protection Act, 1986.

The instant appeal was filed under Section 19 of the Consumer Protection Act, 1986 against the Order of Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow.

Appellant, father of Late Master Raunak Gupta, student of the respondent school. During the summer camp, the school invited students for various activities including swimming in which the appellant’s son also participated.

On 28-05-2007, appellant received an urgent phone call from the school requesting him to come immediately since his son was unwell and when the appellant reached the school he was informed that his son has been taken to O.E.F Hospital as he had drowned in the swimming pool.

On reaching the hospital, the appellant’s son was declared dead.

In view of the above facts, the appellant approached the State Commission complaining of negligence and deficiency in service on the part of the School and claimed Rs 20,00,000 along with Rs 2,00,000 on account of mental agony and Rs 55,000 towards the cost of litigation.

State Commission held that, the Complainant is not a consumer of the defendants and the complaint in question, being not covered under the Consumer Protection Act, is not maintainable. Therefore, the Complaint is liable to be dismissed.

On being aggrieved with the above order, present appeal was filed.

Whether extra-curricular activities such as swimming would fall within the purview of the Consumer Protection Act, 1986?

In Anupama College of Engineering v. Gulshan Kumar. the Supreme Court has held:

“… The only question raised in this case is whether a college is a service provider for the purposes of the Consumer Protection Act, 1986. Learned Counsel for the appellant has placed the decision of this Court in Maharshi Dayanand University v. Surjeet Kaur, (2010) 11 SCC 159. The aforesaid decision was followed by this Court in SLP (C) No. 22532/2012 titled as P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors. The order reads as follows: “In view of the judgment of this Court in Maharshi Dayanand University v. Surjeet Kaur,(2010) 11 SCC 159, wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986. In view of the above, we are not inclined to entertain the special leave petition. Thus, the special leave petition is dismissed”. In view of the consistent opinion expressed by this Court, the orders passed by the National Consumer Disputes Redressal Commission in Revision Petition No. 3571/2013 and Revision Petition No. 807/2017 are not in accordance with the decision of this Court and are therefore set aside. The civil appeals are allowed.”

In the decision of Manu Solanki. v Vinayaka Mission University, 2020 SCC OnLine NCDRC 7, it was held that “…such incidental activities of an Educational Institution while imparting education would also not amount to rendering any service under the provisions of the Consumer Protection Act, 1986.”

Bench in view of the Supreme Court decisions held that Educational Institutions do not fall within the ambit of the Consumer Protection Act, 1986 and education which included co-curricular activities such as swimming, is not a ‘service’ within the meaning of the Consumer Protection Act, 1986.

Hence the present complaint was stated to be not maintainable in view of the above discussion.[Rajendra Kumar Gupta v. Dr Virendra Swarup Public School, 2021 SCC OnLine NCDRC 24, decided on 02-02-2021]

Advocates who appeared for the parties:

For the Appellant: Pawan Kumar Ray, Advocate

 For the Respondent: Murari Kumar, Advocate

Also Read:

NCDRC | Coaching Classes do not fall within the definition of ‘Education Institutions’; Matters of Educational Institutions do not fall under Consumer Forum

Case BriefsDistrict Court

District Consumer Disputes Redressal Commission-II, Hyderabad: A three-Member Bench of Vakkanti Narasimha Rao, President, and P.V.T.R Jawahar Babu and R.S. Rajeshree, Members, ordered More Megastore Retails Ltd. to payback Rs 3 (with interest) that were charged from the complainant as the cost of the carry bag with company’s name and logo printed on it. The Commission also ordered More Megastore pay a compensation of Rs 15,000 to the complainant.


The complainant purchased a certain product from More Megastore. It was submitted that a plastic carry bag was supplied by More Megastore on collecting Rs 3 towards its costs. This bag had the company’s name and logo printed on it. It was alleged that More Megastore used the complainant as its advertising agent, that too at the cost of the complainant. Further, it was alleged that this amounted to unfair trade practice under Section 2(1)(r) of the Consumer Protection Act 1986.

Reliance was placed on the decision of Chandigarh Consumer Court Dinesh Prasad Raturi v. Bata (India) Ltd. (CC/64/2019), which held that “the Bata Company has used the Consumer as if he is the advertisement agent of the opposite party”.

More Megastore’s Stand

The Megastore refuted all the allegations and argued that the complaint was liable to be dismissed in limine. It was submitted that More Megastore never compelled the complainant to purchase the carry bag as alleged in the complaint. It was argued that the present complaint had only been filed as a means to harass More Megastore and is being used as money-making scheme.         


The following three questions arose for determination by the Commission:

  1. Whether any deficiency of service is there or any unfair trade practice is made out upon the part of More Megastore?
  2. Whether the complainant is entitled for the relief sought?
  3. What relief?


On Points 1 and 2:

The Commission considered that the only dispute was that More Megastore had been using its consumers as its advertisement agents, by selling the carry bags to the customers with their logo without prominent prior notice and information before the customer makes his choice of patronising its retail outlets and before the customer makes his selection of goods for purchase and also without disclosing the specifications and price of the carry bags.

It was held that disclosing the price of carry bags at the payment counter seems to be undoubtedly an “unfair trade practice” under Section 2(1)(r) of the Consumer Protection Act, 1986 [corresponding Section 2(47) of the Consumer Protection Act, 2019]. The Commission said that:

As a matter of consumer rights, the consumer has the right to know that there will be an additional cost for carry bags and also to know the silent specifications and price of the carry bags, before he exercises his choice of patronising a particular retail outlet before he makes his selection of goods for purchase from the said retail outlet.

Reliance was placed on the decision of the National Consumer Disputed Redressal Commission in Big Bazaar (Future Retail Ltd.) v. Ashok Kumar, 2020 SCC OnLine NCDRC 495.

Points 1 and 3 were finally answered by stating More Megastore is selling the plastic bags having their company logo and using the customers as tool of their advertisement that leads to adoption of unfair trade practice apart from deceptive nature of services and committal of spurious acts that are highly objectionable.

On Point 3:

The Commission directed More Megastore to:

  1. Provide free carry bags to all customers if in case they printed their company logo on the carry bags.
  2. However, More Megastore is at liberty to charge for the plain carry bags, with prior intimation and consent of consumers and by displaying the information at conspicuous places in the business premises.
  3. Pay back Rs 3 which were charged to the complainant with interest at the rate of 12% p.a. from 1-6-2019 (the date of purchase) till its realisation.
  4. Pay Rs 15,000 towards compensation for collecting Rs 3 from the complainant for the cost of carry bag having the company logo, for which the opposite party utilised the complainant as tool of their advertisement, which amounts to adoption of unfair trade practice with deceptive nature apart from spurious act.
  5. Pay Rs 1500 towards costs of the proceedings.

[Baglekar Akash Kumar v. More Megastore Retail Ltd., Consumer Case No. 310 of 2019, dated 19-2-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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

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

Factual Matrix

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

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

Analysis and Decision

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

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

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

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

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

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

Advice by the Commission:

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

Advocates who appeared:

For Complainants:

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

For Opposite Parties:

Vikrant N. Vasudeva, Advocate

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

Dr Shashank Shekhar Kale (OP-3)

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Anup K. Thakur (Presiding Member) dismissed the revision petition while upholding the State Commission’s order.

Respondent/Complainant had sown sugarcane. He purchased herbicides from petitioner 1/OP 1. It was submitted that after the usage of the said herbicide the crop started to suffer severe damage.

In view of the above occurrence, Sub Divisional Agriculture Officer was informed, after which inspection of the affected crop was carried out and a report was submitted.

Consumer complaint seeking compensation of Rs 1,60,000 on account of crop damage was filed.

What was District Commission’s decision?

Circular of Deputy Director of Agriculture was not complied with while constituting the inspection team was a mere inadvertence and did not suggest any malafide intention. In any case, it was an irregularity and on this ground, equity and natural justice could not be denied to the complainant. So reasoning, it allowed the complaint to the extent of Rs.72,850/-, this being the loss on account of 235 quintals of sugarcane in one acre land @ Rs.310/- per quintal, with interest of 9% from the date of filing of the complaint.

 The above reasoning was upheld by the State Commission.

Analysis and Decision

On perusal of the facts and circumstances of the case, Bench opined that no ground for revision of the State Commission’s order was required.

Bench observed that an internal circular of Deputy Director of Agriculture was circulated regarding the composition of the inspection team for the purpose of smooth functioning of the Department of Agriculture in its subordinate filed offices for fulfilling its role of assisting the farmers, including taking prompt action on any complaint as is in the present matter.

On noting the above, the Commission stated that:

To not have included a representative of the OPs was, at worst, an irregularity.

The fact in the present matter was that there was a crop loss and the complainant farmer did therefore had to suffer loss and the inspecting team found the loss to be largely due to the use of herbicides.

Commission added to its reasoning that the business entities viz. dealers, manufacturers of agri-inputs (seeds, herbicides) carry a special responsibility. They are expected to properly inform the farmer and follow up after sale, to ensure that the farmer has understood and is following all the instructions.

In the present case, dealer ought to not have waited for an invitation to join the inspection team if it was already aware of the complaint through information furnished by the complainant. He should have been proactive rather than reactive.

The same goes for the manufacturers of agri-inputs: their dealers should be properly trained to ensure that they see their job as not merely one selling but as providing after-sale service through regular follow up.

With regard to the revisionary jurisdiction, Bench referred to the decision of the Supreme Court in Rubi (Chandra) Dutta v. United India Insurance Co. Ltd., (2011) 11 SCC 269.

Hence, in view of the above discussion, Bench dismissed the revision petitions. [Adama Agan Ltd. v. Ramesh, 2021 SCC OnLine NCDRC 3, decided on 18-01-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Dinesh Singh (Presiding Member), dismissed a revision petition filed by Haryana Urban Development Authority.

The District Forum had directed the Haryana Urban Development Authority (HUDA) to allot an alternative plot to the Complainant and awarded interest on the entire amount deposited with HUDA.

It was stated that the area in which the originally allotted plot was located was not developed by the HUDA. Consequently, possession of the said plot could not, and was not, offered by the HUDA. An alternative plot was offered in lieu thereof.

In the given facts and circumstances, deficiency in service was determined by the District Forum, and it inter alia awarded compensation by way of interest at the rate of 10% per annum on the total amount deposited with the HUDA from the date of deposit till the date of payment. It did not distinguish between the amount deposited by the original allottee and the amount deposited by the subsequent purchaser/allottee, the Complainant.

The question for consideration in the instant case was that the District Forum, in its wisdom, evidently finding it just and equitable, had adopted the yardstick of determining compensation for the Complainant by computing interest at the rate of 10% per annum on the total amount deposited for the plot in question.

Bench stated that the District Forum (rightly) did not get into the arena of distinguishing between the rights of an original allottee and of a subsequent purchaser/allottee, the question not being germane to the matter at hand i.e. of determining the quantum of (just and equitable) compensation to the Complainant.

What should have been a non-issue has been unnecessarily agitated by the HUDA before this Commission for about 10 years. 

Commission stated that HUDA unnecessarily has been agitating the interest on an amount of Rs 62,773 deposited by the original allottee, unnecessarily entering into the arena of the respective rights of an original allottee and a subsequent purchaser/allottee, without understanding that the question here was not to distinguish between such respective rights but to adopt a yardstick for calculation of just and equitable compensation for the Complainant.

The Complaint was filed in 1997. The District Forum made its order on the contest in 2003. The Appeal was filed in 2003. The State Commission dismissed it (inter alia) on limitation in 2010. The instant Petition was filed in 2011. We are now in 2021. 

Further, the Bench expressed that the Act 1986 is “for better protection of the interests of consumers”, its Statement of Objects and Reasons speaks of “speedy and simple redressal to consumer disputes”.

Concluding the decision, Commission held:

“it is just, and conscionable to dismiss this Petition with the cost of Rs 10,000, to be deposited in the Consumer Legal Aid Account of the District Forum within four weeks from today. It will be open to the Chief Executive of the Petitioner, the HUDA, to recover the said cost from its officers responsible for the unnecessary litigation before this Commission. The Petitioner, the HUDA, through its Chief Executive, is directed to make good the award in its entirety within four weeks from today, failing which the District Forum shall undertake execution, for ‘Enforcement’ and for ‘Penalty’, as per the law.”[HUDA v. Nirmal Madan, Revision Petition No. 269 of 2011, decided on 03-02-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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

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

Factual Matrix

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Anup K. Thakur (Presiding Member) dismissed a consumer complaint against the insurance company in case of a Marine Cargo Specific Voyage Policy, holding that it was for the insured/complainant to ensure full compliance of all the policy conditions in its own interest and that the principle of utmost good faith in the present case favoured the insurance company strongly.

Complainant, Mauria Udyog Ltd. and Jotindra Steel & Tubes Ltd. purchased marine cargo-specific voyage insurance policy from United Insurance Co. Ltd., Noida (OP-1) and facts in both the cases are identical.

Issue for Consideration:

Whether the OP had committed any deficiency in service by withdrawing the guarantee and impliedly, denying the insurance claim on the ground that the Marine Vessel (M.V )was not a classified M.V ad did not satisfy the condition mentioned in the policy viz. “Institute Classification Clause with deletion of held cover provision”.

Bench stated that both parties claimed that they had acted in good faith.

OP’s case was that it depended entirely on the information furnished by the insured to issue the policy and when it came to know that the M.V. was not a classified M.V., it immediately withdrew the guarantee it had extended to the adjusters and informed the complainant.

Complainant, on the other hand, argued that it supplied information on the M.V. when it came to it’s knowledge as it was only one of the importers of cargo, on CIF basis, it had no means of knowing the classification of the vessel any sooner. Further, it was not it’s responsibility alone to have ascertained the classification of the M.V. and the implied seaworthiness or otherwise. OP too could have and should have ascertained the M.V.’s classification status, as per it’s own internal circulars. That the OP singularly failed to do so was a deficiency in service and the complainant should not have to suffer repudiation of its genuine claim on this account.

Insurance contract is a contract of utmost good faith, as laid down by the Supreme Court.


Whether the principle of good faith was violated?

Bench on perusal of the records found that M.V. was old and that at the time of it’s engagement in the instant case, it was not classed with any approved society under the International Association of Classification Societies (IACS).

This finding of the surveyor has not been disputed. Indeed, complainant’s argument has remained confined to claiming that it was not as if the vessel was not classified at all; rather, it was listed in the International Register of Shipping. OP has, on the other hand, firmly held that the vessel was not classified as required by the policy clause “Institute Classification Clause with deletion of held cover provision”. Indisputably, therefore, it can be safely concluded that as per OP’s policy clause, the vessel was not worthy of being insured. Yet, it was.

Should the OP have insured the complainant’s cargo, without full knowledge of the vessel and its classification?

Bench held that the complainant failed to establish it’s case.


It was the complainant, the importer, who had purchased the insurance cover. It was, therefore, reasonable that it had to be vigilant about all the conditions of taking an insurance cover.

The complainant, a regular importer, ought to have known the terms and conditions accompanying a Marine Cargo Specific Voyage Policy.

Although was for the OP to do the necessary due diligence on the classification of the vessel, but, It was the complainant whose cargo was to be insured against all risks associated with the marine voyage. It was therefore for the complainant to have ensured full compliance of all the policy conditions, in it’s own interest.

Hence, merely a cover note, with details of vessel and voyage left blank, on “To Be Declared” basis, from the OP-insurance company, could not have meant that the complainant could then have assumed the contract of insurance as complete and taken no further steps other than a mere communication of details of the shipment, including the vessel’s name, to the OP.

Bench, however, added that it was unreasonable for the OP insurance company to proceed on good faith and issue the insurance policy, in the hope that all the terms and conditions would be complied with, if and when a claim were to be filed.

OP displayed the good faith in issuing the insurance policy, leaving the box in the policy schedule blank.

Utmost Good Faith

The principle of utmost good faith, in the instant case, favours the OP strongly. It was the complainant’s responsibility, first and foremost, to have kept the OP fully apprised of the classification status of the M.V. as soon as it came to know.

In view of the above discussion, the instant consumer complaint was dismissed. [Mauria Udyog Ltd. v. United India Insurance Company Ltd., 2021 SCC OnLine NCDRC 16, decided on 28-01-2021]

Advocates for the parties:

For the Complainant:  Joy Basu, Sr. Advocate with T.S. Ahuja, Advocate

For the Opposite Parties: Amit Kr. Singh, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Dinesh Singh (Presiding Member), expressed that whether, for a particular purpose, a company is a ‘consumer’, has principally to be determined by examining the facts and specificities of the case.

In the instant matter, the complainant had filed the complaint under Section 58(1) (a) read with Section 59 of the Consumer Protection Act, 2019.

11 units, comprising the entire Mezzanine Floor of Summit Business Bay Andheri, were purchased by the Complainant Co. from the Builder Co. for a total consideration of Rs 17,95,30,000.

Preliminary Issue:

Whether the Complainant Co. is a ‘consumer’ under the Act?

A Company is included in the definition of ‘person’ contained in Section 2(31)of the Consumer Protection Act, 2019, it is not per se precluded from being ‘consumer’, provided, if, for a particular purpose, it meets the requirements of ‘consumer’ as defined in Section 2(7) of the Act 2019.

Further, it was added that:

[a] ‘housing construction’ under the definition of ‘service’ in Section 2(42) cannot be construed  to include construction of a commercial complex for commercial activity; and

[b] commercial space in a commercial complex for an office of a company engaged in a business to generate profit is for ‘commercial purpose’.

Bench stated that a plain reading of Section (7)(ii) and Section 2(42) of the Act 2019 makes it clear that the Complainant Co., which has purchased commercial space for its office in a commercial complex, is not a ‘consumer’ under the Act 2019.

“…if, for a particular purpose, a company does not meet the ingredients of ‘consumer’ under the Act 2019, it will not be left remediless, it can avail of remedies available under other existing laws.”

Commission referred to the Supreme Court decision in Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers, (2020) 2 SCC 265, wherein it was decided that If, for a particular purpose, a company wants to enter the consumer protection fora, whether or not it is a ‘consumer’ has to be (reasonably and logically) adjudged in the given facts and specificities of each case (“a straight-jacket formula cannot be adopted in every case”; “The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case”).

Further while addressing the question relating to the purchase of commercial space in a commercial complex, in its own name, as its, the company’s property, its immovable capital assets, Bench stated that:

“a company creating immovable capital assets in the form of lands and buildings, in its own name, for its office, is differently placed from a company buying a car, in its own name, ‘solely or principally’ for the personal use of its Directors or employees.”

While analysing, another significant aspect that was added by the Bench was that, a company purchasing commercial space for its office in a commercial complex, is materially different from a company indemnifying its raw materials, goods in process, finished goods, plant and machinery, lands and buildings, etc., by taking insurance. In such case, the purpose is indemnification against perils, nothing per se to do ‘closely and directly’ with its profit-generating activity, the ‘dominant purpose’ is not linked with its commercial activity, as such the company straightaway falls within the meaning of ‘consumer’ in accordance with Section 2(7), without necessitating a detailed exposition.

Hence, Complainant’s case that it is a ‘consumer’ failed on its facts and on the law. Commission also observed that allowing anyone into consumer protection for has adverse ramifications:

[a] evasion of court fee in civil courts; and

[b] eroding into the time and resources of consumer protection fora, which could otherwise be better devoted to the ordinary general consumers, who straightaway fall, ex facie, in the definition of ‘consumer’ (without having to write a treatise to enable their anyhow entry into the fora).

In light of the above discussion, it was found that the complaint was not maintainable before the Commission. [Freight System (India) (P) Ltd. v. Omkar Realtors and Developers (P) Ltd., 2021 SCC OnLine NCDRC 19, decided on 25-01-2021]

Advocates for the parties:

For the Complainant: Vivek Kohli, Senior Advocate with Bharti Chawla, Advocate.

Case BriefsTribunals/Commissions/Regulatory Bodies

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

Law is settled that illegal and forceful means cannot be adopted by Banks to seize any property.

The present revision petition was filed by the petitioners against the order dated 31-10-2011 of the West Bengal State Consumer Disputes Redressal Commission wherein the appeal filed by the petitioners was dismissed.

Complainant had purchased a ten-wheeler truck financed by OP 1 and accordingly OP 1 through OP 2. Further, the complainant entered into an agreement with OP 1and accordingly both OP 1and 2 sanctioned a loan of Rs 9,15,000.  The Complainant was supposed to repay a sum of Rs 11,57,700 in 47 instalments.

Thereafter, when it came to the notice of the Complainant that the Registration Certificate bore the name of Opposite Party 3 as a joint registered owner, on enquiry, Opposite Party 3 informed him that he had incurred an expenditure of Rs 45,000 from his own pocket in order to get the loan sanctioned in favour of the Complainant and as and when the Complainant would repay the same, he would take necessary steps to remove his name from the Registration Certificate.

Later, although the Complainant paid Rs 45,000 to Opposite Party 3 in two instalments, Opposite Party 3 took no steps to delete his name from the Registration Certificate. Further, Opposite Party 3 detained the vehicle by force and removed its tyres to render it defunct. According to the Complainant, Opposite Parties, in collusion with each other, seized the vehicle.


Bench stated that it is not understood as to why respondent 2/OP 3 took possession of the vehicle and removed its tyres and later on said to have voluntarily handed over the possession of the vehicle to the petitioners.

The Petitioners could not place any evidence as to any notice having been given to the Complainant for seizure of the vehicle nor any notice of auction of the vehicle.

Commission expressed that District Forum rightly held “we do not see any reason to accept the contention of Opposite Party 2 that they did not take possession of the vehicle in question by force.”

State Commission observed that the vehicle was auctioned without issuing any prior notice to the Complainant.

Law is settled that illegal and forceful means cannot be adopted by Banks to seize any property. Due notice had to be given for seizure of the vehicle and following the established procedure the vehicle could be seized and later auctioned.

 While concluding the bench decided that the petitioners in collusion with respondent 2/OP 3 adopted illegal and unfair means in seizure of the vehicle which amounted to unfair trade practice.

Jurisdiction of this Commission under Section 21 (b) is very limited. This Commission is not required to re-appreciate and reassess the evidences and reach its own conclusion. The Court can intervene only when the petitioner succeeds in showing that the Fora below has wrongly exercised its jurisdiction or there is a miscarriage of justice.

 Referring to the decision of Supreme Court in Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. (2011) 11 SCC 269 and Lourdes Society Snehanjali Girls Hostel v. H&R Johnson (India) Ltd., (2016) 8 SCC 286, Commission did not find any infirmity or illegality in the impugned order. [Manager, IndusInd Bank Ltd. v. Abani Kanta Das,  2021 SCC OnLine NCDRC 14, decided on 11-01-2021]

Advocates for the parties:

For the Petitioner: Rana Ranjit, Advocate
For the Respondent 1: Somraj Gangopadhyay, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

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

Gist of the Case

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

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

Senior Counsel for the Appellants raised the following issues:

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

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

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

Analysis and Decision

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

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

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

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

State Commission’s Order

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Advocates who represented the parties:

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

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

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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

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

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

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

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

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

Analysis and Decision

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

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

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

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

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

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

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

Advocates for the parties:

For the Appellant: S.M. Tripathi, Advocate

For the Respondent: Nanita Sharma, Advocate

Case BriefsDistrict Court

State Consumer Dispute Redressal Commission, Odisha (SCDRC): Dr D.P. Choudhury (President) modified the compensation amount awarded to a Law Student in light of being subjected to ‘Deficiency of Service’ and ‘Unfair Trade by ‘Amazon’.

The instant appeal was filed under Section 15 of the erstwhile Consumer Protection Act, 1986.

Factual Matrix

While the appellant was in his first year of law school, the OP had floated an offer for sale of a Laptop without Laptop Bag for Rs 190 against the price of Rs 23,499.

OP had confirmed for placing of the order and two hours after receiving the confirmation, the appellant received a phone call from the OP’s Customer Care Service Department stating that the subject order stood cancelled due to the price recession issue.

Since the complainant was in need of a laptop to prepare his project, he raised an objection for such cancellation.

On not receiving any response from the OP, complainant issued a legal notice.

Deficiency in Service

Appellant had to purchase another laptop but suffered from mental agony for such cancellation, hence filed a complaint alleging the deficiency in service and unfair trade practice.

Complainant claimed compensation of Rs 50,000 and Rs. 10,000 towards litigation cost.

District Forum had allowed the complaint partly by directing the OP to pay compensation of Rs 10,000 for mental agony and to pay Rs 2,000 towards the cost of litigation.

Hence, the aforesaid impugned order was challenged by the complainant/appellant stating that the District Forum committed error in law by not deciding to direct to pay Rs 50,000 as compensation.

Analysis, Decision and Law

Bench observed that “When there is an advertisement made for offer placed by the OP and made the offer as per the material available on record and complainant placed the order and same got confirmed, the agreement is complete.”

Another aspect to be noted was that, when the OP had allowed Rockery Marketing at his platform as per written version, the responsibility of the OP could not be lost sight of.

Since there was a breach of contract by OP, OP is held to be liable to pay the damages.

Commission agreed with District Forum’s observation that OP not only negligent in providing service but was also involved in unfair trade practice.

Taking all the factors discussed above for consideration, Bench concluded that compensation awarded should be of Rs 30,000 for unfair trade practice and punitive damages of Rs 10,000. Further, with regard to the cost of litigation Rs 5000 needs to be awarded.

On failing to make the above payments to the complainant within 30 days, the said amounts will carry interest at the rate of 12% per annum.

In view of the above, the appeal was disposed of. [Supriyo Ranjan Mahapatra v. Amazon Development Centre India (P) Ltd., First Appeal No. 492 of 2018, decided on 11-01-2021]

Read More:

District Consumer Forum directs ‘Amazon’ to pay compensation for “deficiency in services”

Case BriefsSupreme Court

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

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

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

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

Issues for Consideration:

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Op EdsOP. ED.

In Buddhist Mission Dental College and Hospital v. Bhupesh Khurana[1] the appellant had published an advertisement inviting applications for admission to Degree Course of Bachelor of Dental Surgery. The advertisement was ‘misleading’ in several ways. It was held by two Judges of the Supreme Court of India on 13.02.2009, that this was a case of total misrepresentation which is an ‘unfair trade practice’; the appellant was neither affiliated nor recognised for imparting education; this fell within the purview of ‘deficiency’ under the Consumer Protection Act, 1986 (‘the Act’). However, in Bihar School Examination Board v. Suresh Prasad Sinha[2], two-Judges Bench held on 04.09.2009 that the appellant was not rendering any ‘service’ and a ‘complaint’ under the Act would not be maintainable against it, for a fault in conducting an examination. We nearly hear an echo in Maharshi Dayanand University v. Surjeet Kaur[3] and in State of Tamil Nadu v. K. Shyam Sunder[4]: a student is no ‘consumer’.

In Punjab Urban Planning and Development Authority v. Vidya Chetal[5], three Judges were clear, that the definition of ‘service’ is not exhaustive and the legislature has left the task to the judiciary to explain the provision on a case to case basis. “The purpose of leaving this provision open ended, without providing an exhaustive list indicates the requirement for a liberal interpretation.” How then are, mostly all activities related to educational institutions excluded from the reach of the Act?

In Kerala Tourism Development Corporation Ltd. v. Deepti Singh[6],  two Judges were of the view that the finding of ‘deficiency’ of ‘service’, arrived at by National Consumer Disputes Redressal Commission (‘NCDRC’), was correct. The deceased, with ample future prospects, had drowned in a swimming pool of a hotel. The lifeguard on duty had also been assigned the task of being a bartender. This was considered to be a deviation from duty of care and amounted to ‘deficiency’ of ‘service’ of the hotel management. In light of the above, if a student (‘XYZ’), while justifiably pursuing the extracurricular activity of a swim in an intra-school contest, suffers injury on account of an employed, negligent lifeguard – will not the school be liable under the Act?

Once Manu Solanki v. Vinayaka Mission University[7] (‘Solanki’) is decided by the Supreme Court there would be a final answer. It is interesting, the question, for the time being, was answered in negative on 20.01.2020 when Solanki was before NCDRC in Manu Solanki v. Vinayak Mission University[8]:

 “Such incidental activities of an educational institution while imparting education would not amount to rendering any ‘service’ under the provisions of the Consumer Protection Act, 1986.”

This would mean, not only ‘consumer law’ has no remedies for XYZ but also for a student who suffers injury, in a picnic organised by an educational institution, on account of an employed, negligent bus-driver.

Whether it be concerning the Act or the Consumer Protection Act, 2019, a ‘deficiency’ is certainly an imperfection or inadequacy in the quality of performance, undertaken to be performed, in relation to any ‘service’ of entertainment or amusement. If one considers: (i) ‘service’ requires a liberal interpretation; (ii) many of us are personally witness to, and data should be collected on the same, several schools demand lofty amounts of donations and a submission of income tax details of parents of the child; and (iii) educational institutions often charge exorbitant fees for boarding, food etc., it becomes clear that the conclusion, a student is no ‘consumer’, cannot and should not always be correct. It merits an explanatory thought every time. The jurisprudential basis for the rule of widest construction, as relatable to being liberal, must be elastic enough to meet new social realities.

Thus, the order of the Bench comprising of  Dr. D.Y. Chandrachud, Indu Malhotra and Indira Banerjee, JJ.  on 15.10.2020 in Solanki[9]: “Since there are divergent views of this Court bearing on the subject as to whether an educational institution or university would be subject to the provisions of the Consumer Protection Act, 1986, the appeal would require admission” is correct.

* Practicing Advocate at New Delhi and Kolkata.

[1] (2009) 4 SCC 473

[2] (2009) 8 SCC 483

[3] (2010) 11 SCC 159

[4] (2011) 8 SCC 474

[5] (2019) 9 SCC 83

[6] (2019) 16 SCC 573

[7] Civil Appeal Diary No. 12901 of 2020

[8] 2020 SCC OnLine NCDRC 7

[9] Supra Note 7.

Case BriefsHigh CourtsTribunals/Commissions/Regulatory Bodies

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

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

[Bombay High Court]

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

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

[National Consumer Disputes Redressal Commission]

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

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

[Bombay High Court]

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

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

[Delhi High Court]

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

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

[Allahabad High Court]

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

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

[Supreme Court]

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

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

[Kerala High Court]

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

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

[Allahabad High Court]

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

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

[Kerala High Court]

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

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

[Supreme Court]

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

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

[Allahabad High Court]

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

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

[Chhattisgarh High Court]

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

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

[Bombay High Court]

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

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

[Calcutta High Court]

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

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

[Delhi High Court]

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

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

[Himachal Pradesh High Court]

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

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

[Chhattisgarh High Court]

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

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

[Allahabad High Court]

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

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

[Karnataka High Court]

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

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

[National Consumer Disputes Redressal Commission]

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

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