Consumer Protection Act, 1986 — Section 2(1)(o) — Deficiency in service —

June 5th, 2014

Consumer Protection Act, 1986 — Section 2(1)(o) — Deficiency in service — Failure on part of service provider to facilitate utilization and enjoyment of plots, effect of — Respondents were allotted plots by appellant board upon depositing the 25% of price of plots — Respondents did not pay installments in terms of allotment letters due to failure on part of appellant to provide basic amenities at Mandi Area — On non-payment of installments, appellant imposed interest and penalty charges as prescribed in allotment letter — Respondents filed a complaint before District Forum alleging deficiency of services, failure to notify subject Mandi as Market Area and failure to develop and provide basic amenities in said locality — Appellant was directed By district Forum to withdraw demand notice and further directed not to charge any interest on installments — Appeal assailing order passed by National Commission, affirming order passed by State Commission, which further confirmed order passed by District Forum — Held, Appellant board as service provider is obligated to facilitate utilization and enjoyment of the plots as intended by allottees and set out in allotment letter — Inaction on part of appellant in providing requisite facilities for more than a decade clearly establishes deficiency of services as respondents were prevented from carrying out grain business — However, respondents were also incorrect in refusing to pay installments and violating the terms of installment letter — Thus, there is a need for proportionate relief as levy of penal interest and other charges on respondents will be grossly unfair — Adequate relief has been granted even to respondents/complainants by awarding interest @ 12 per cent per annum on entire deposited amounts — Appeal dismissed — Punjab Agricultural Produce Markets Act, 1961 — Section 7 — Allotment of plots in market area — Duty to facilitate utilization.

Municipal Corporation, Chandigarh & Ors. v. Shantikunj Investment (P) Ltd.& Ors., (2006)4 SCC 109 & Haryana State Agricultural Marketing Board v. Raj Pal, (2011)13 SCC 504, Referred.

(Para 7, 8 & 9)

Haryana State Agricultural Marketing Board v. Bishamber Dayal Goyal [Bench Strength 2], Civil Appeal No. 3122/2006 (26/03/2014), 2014(4) SCALE 134: 2014(4) JT 354 [Gyan Sudha Misra, J.: Pinaki Chandra Ghose, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 21 — Non-refund of amount — Due to mismanagement on part of erstwhile chief promoter of Society, Effect of — Appellant Society constructed a housing complex and Respondent No.2 was the then Chief Promoter — In view of allegations against Respondent No.2 with respect to management of funds of Society, another Managing Committee took over — Respondent No.1 despite having paid all payments, was neither allotted any apartment nor refunded of the amount paid to Society — Consumer Forum passed as order against appellant Society as well as against respondent No.2 — Appeal by appellant society — Held, order passed against respondent No.2 was an ex-parte order as respondent No.2 was in jail — As respondent No.1 had made the payment when respondent No.2 was incharge of Society and present Managing Committee was not in the picture — Responsibility to refund amount primarily lies on respondent No.2 and in the event of his failure, on appellant Society — Accordingly, order passed is modified and respondent No.2 is held primarily responsible for paying the amount — Appeal allowed to this extent.

(Para 6, 8 & 9)

Pariwar Co-operative Housing Society Ltd. v. Chandrashekar M. Virkud [Bench Strength 2], Civil Appeal No. 10240/2013 (Arising out of SLP (C) No. 27607/2008) (12/11/2013), Civil Appeal No. 10240/2013 (Arising out of SLP (C) No. 27607/2008) [H.L. Gokhale, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Just and reasonable compensation — Grant of — Held, it is the duty of the Tribunals, Commissions and the Courts to consider relevant facts and evidence in respect of facts and circumstances of each and every case for awarding just and reasonable compensation — Motor Vehicles Act, 1988 — Section 168 — Just and reasonable compensation.

Ningamma and Anr. Vs. United India Insurance Company Ltd., (2009) 13 SCC 710, Oriental Insurance Company Ltd. Vs. Jashuben & Ors, (2008) 4 SCC 162, R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. & Ors, (1995) 1 SCC 551, Laxman @ Laxman Mourya Vs. Divisional Manager Vs. Oriental Insurance Co. Ltd. & Anr., (2011) 10 SCC 756, Ibrahim Vs. Raju, (2011) 10 SCC 634 & R.K. Malik Vs. Kiran Pal, (2009) 14 SCC 1, Referred.

(Para 84)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Life expectancy of healthy person — Held, life expectancy of a healthy person in the present age is estimated as 70 years.

(Para 133)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Vicarious liability of hospital — Held, Hospital is vicariously liable for its doctors — Torts — Vicarious liability — Liability of hospital for it’s doctors.

Savita Garg Vs. Director, National Heart Institute, (2004) 8 SCC 56, Relied on.

(Para 109)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Addition towards future loss of income — Medical negligence, Death due to, Entitlement to — Held, 30% should be added towards future loss of income of deceased.

Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 & Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421, Relied on.

(Para 132)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Medical negligence — Claim under head of emotional distress, pain and suffering, Effect of — Held, claim under head of `Emotional distress, pain and suffering for the claimant’ bears no direct link with the negligence.

(Para 46)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Medical negligence — Expenses towards cost of litigation, Grant of — Death of claimants’ wife due to medical negligence — Claimant is a doctor by profession, appeared in person to argue his case — Held, it is acknowledged that he might have required rigorous assistance of lawyers to prepare his case and produce evidence in order — Therefore, compensation of Rs.1,50,000/- under the head of `legal expenses’ is granted and total amount of Rs. 11,50,000/- is granted to the claimant under the head of `cost of litigation’.

(Para 99)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Compensation towards travel expenses — Grant of — Death of claimants’ wife due to medical negligence — Claimant, a citizen of U.S.A. and had been living there — Held, claimant did not produce any record of plane fare to prove his travel expenditure from U.S.A. to India to attend the proceedings — Therefore, on an average, compensation of Rs.10 lakhs awarded under the head of `Travel expenses over the past twelve years’.

(Para 99)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Damages for loss of employment for traveling from U.S.A. to India — Disentitlement to — Death of claimants’ wife due to medical negligence — Claimant, a citizen of U.S.A. and had been living there — Held, claim made by claimant under the head of loss of income for missed work, cannot be allowed by this Court since, the same has no direct nexus with the negligence of the appellant-doctors and the Hospital.

(Para 99)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Non-grant of interest on compensation — Pendency of complaint before NC for long time, Effect of — Death of claimants’ wife due to medical negligence — Case was pending before National and this Court for the long period of 15 years — National Commission awarded interest at the rate of 12% per annum but only in case of default by the doctors of AMRI Hospital to pay the compensation within stipulated time — Held, National Commission committed error in not awarding interest on the compensation awarded by it and the same is opposed to various decisions of this Court.

Thazhathe Purayil Sarabi & Ors. Vs. Union of India & Anr., (2009) 7 SCC 372 & Kemp and Kemp on Quantum of Damages, (Special Edn., 1986), Relied on.

(Para 100)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Medical negligence — Compensation towards pain and suffering during treatment, Entitlement to — Death of claimants’ wife due to medical negligence — Held, deceased had gone through immense pain, mental agony and suffering in course of her treatment which ultimately could not save her life — A lumpsum amount of Rs.10 lakhs is awarded to the claimant following the Nizam Institute’s case and also applying the principles laid in Kemp and Kemp on the “Quantum of Damages”, under the head of `pain and suffering of the claimant’s wife during the course of treatment’.

Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors., (2009) 6 SCC 1 & Kemp and Kemp on Quantum of Damages, (Special Edn., 1986), Relied on.

Arun Kumar Agarwal Vs. National Insurance Company, (2010) 9 SCC 218 & Rajesh & Ors. Vs. Rajvir Singh and Ors., 2013 (6) SCALE 563, Referred.

(Para 145)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Medical negligence — Liability of junior doctor holding PG degree — Death of claimants’ wife due to medical negligence — Appellant was held liable alongwith hospital and senior doctors and his liability fixed at Rs.25,93,000 towards compensation to husband of deceased — Held, it is acknowledged that appellant, being a junior doctor who might have acted on the direction of the senior doctors who undertook the treatment of the claimant’s wife in AMRI-Hospital — However, he was an independent medical practitioner with a post graduate degree and still stood as a second fiddle and perpetuated the negligence in giving treatment to the claimant’s wife — Since he is a junior doctor whose contribution to the negligence is far less than the senior doctors involved, therefore this Court directs him to pay a compensation of Rs. 5 lakhs to the claimant, as a reminder and deterrent to him against being casual and passive in treating his patients in his formative years of medical profession.

Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee, (2009) 9 SCC 221, Relied on.

(Para 122)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Compensation for loss of dependency — Use of multiplier method to determine, Justifiability of — Death of claimants’ wife due to medical negligence — Deceased was a recent graduate in Psychology from a highly prestigious Ivy League School in New York — Held, National Commission or this Court requires to determine just, fair and reasonable compensation on the basis of the income that was being earned by the deceased at the time of her death and other related claims on account of death of the wife of the claimant — Determination of compensation by following the multiplier method does not justify under the head of loss of dependency.

Indian Medical Association Vs. V.P. Shantha & Ors, (1995) 6 SCC 651, Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia, (1998) 4 SCC 39, Charan Singh Vs. Healing Touch Hospital, (2002) 7 SCC 668, J.J. Merchants & Ors. Vs. Srinath Chaturbedi, Savita Garg Vs. Director, National Heart Institute, (2004) 8 SCC 56, State of Punjab Vs. Shiv Ram & Ors., Samira Kholi Vs. Dr. Prabha Manchanda & Anr., P.G. Institute of Medical Sciences Vs. Jaspal Singh & Ors., Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors., (2009) 6 SCC 1, Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee, (2009) 9 SCC 221, & V. Kishan Rao Vs. Nikhil Superspeciality Hospital & Anr., Relied on.

(Para 98)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Finding of contributory negligence — Setting aside of — Death of claimants’ wife due to medical negligence — National Commission deducted 10% from the total compensation, holding claimant responsible for contributory negligence — Held, claimant though over-anxious, did to the patient what was necessary as a part of the treatment — Hence, finding of National Commission set aside and re-emphasize the finding of this Court that the claimant did not contribute to the negligence of the appellants-doctors and AMRI Hospital which resulted in the death of his wife.

Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee, (2009) 9 SCC 221, Relied on.

(Para 125 & 127)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 14(1)(d) — Quantum of compensation — Inflation of money, Consideration of — Death of claimants’ wife due to medical negligence — Appeal for enhancement of compensation by claimant — Held, National Commission has rejected the claim of the claimant for “inflation” made by him without assigning any reason whatsoever — Claim remained pending before National Commission and this Court for the last 15 years and value of money claimed is devalued to a great extent — Therefore, claim for enhancement of compensation by the claimant in his appeal is justified.

Reshma Kumari v. Madan Mohan, (2009) 13 SCC 422, Relied on.

(Para 81 & 82)

HELD: The C.I.I. is determined by the Finance Ministry of Union of India every year in order to appreciate the level of devaluation of money each year. Using the C.I.I. as published by the Government of India, the original claim of Rs.77.7 crores preferred by the claimant in 1998 would be equivalent to Rs.188.6 crores as of 2013 and, therefore the enhanced claim preferred by the claimant before the National Commission and before this Court is legally justifiable as this Court is required to determine the just, fair and reasonable compensation. Therefore, the contention urged by the appellant-doctors and the AMRI Hospital that in the absence of pleadings in the claim petition before the National Commission and also in the light of the incident that the subsequent application filed by the claimant seeking for amendment to the claim in the prayer of the complainant being rejected, the additional claim made by the claimant cannot be examined for grant of compensation under different heads is wholly unsustainable in law in view of the decisions rendered by this Court in the aforesaid cases. Therefore, this Court is required to consider the relevant aspect of the matter namely, that there has been steady inflation which should have been considered over period of 15 years and that money has been devalued greatly. Therefore, the decision of the National Commission in confining the grant of compensation to the original claim of Rs.77.7 crores preferred by the claimant under different heads and awarding meager compensation under the different heads in the impugned judgment, is wholly unsustainable in law as the same is contrary to the legal principles laid down by this Court in catena of cases referred to supra. We, therefore, allow the claim of the claimant on enhancement of compensation to the extent to be directed by this Court.

(Para 82)

Balram Prasad v. Kunal Saha [Bench Strength 2], CA No.2867/2012 with CA No.692/2012 with CA No.2866/2012 with CA No.731/2012 & CA No.858/2012 (24/10/2013), 2013(14) JT 47: 2013(13) SCALE 1: 2013(7) Supreme 323: 2013(8) SLT 513: 2014(1) SCC 384 [Chandramauli Kumar Prasad, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 21 — Manufacturing defect in vehicle — Direction to provide new vehicle modified with replacement of chassis by NC, Legality of — Chassis of brand new three wheeler motor vehicle of appellant, a physically challenged person, broke down within a short period — District Forum considering it a manufacturing defect allowed complaint and directed respondents to make available new vehicle — National Commission in revision petition modified direction of new vehicle with direction to replace chassis with a brand new one with fresh warranty — Appeal — Held, National Commission did not find any jurisdictional error or perversity in the finding recorded by District Forum on issue of deficiency in service or in conclusion recorded by District Forum that there was manufacturing defect in the vehicle sold to appellant — Therefore, by interfering with order of District Forum, National Commission transgressed the limits of its jurisdiction — Appeal allowed — Respondents to implement order of District Forum.

Rubi (Chandra) Dutta v. United India Insurance Company Limited, (2011) 11 SCC 269, Referred.

(Para 14 & 15)

Momna Gauri v. Regional Manager [Bench Strength 2], Civil Appeal No. 8815/2013 (Arising out of SLP (C) No. 25770/2012) (27/09/2013), 2013(14) SCALE 82 [G.S. Singhvi, J.: C. Nagappan, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(c), 2(1)(g) & 11 — Sale of plot of land simpliciter — Whether covered under the Act? — Held, when it comes to “housing construction”, same has been specifically covered under the definition of ‘service’ by an amendment inserted by Act 50 of 1993 with effect from 18th June, 1993 — On the other hand, where a sale of plot of land simpliciter is concerned, and if there is any complaint, the same would not be covered under the said Act.

(Para 6)

Ganeshlal v. Shyam [Bench Strength 2], Civil Appeal No. 331/2007 (26/09/2013), Civil Appeal No. 331/2007 [H.L. Gokhale, J.: J. Chelameswar, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(c), 2(1)(g) & 11 — Dispute of sale of plot of land simpliciter — Determination by Consumer Forum, Execution of sale deed in pursuant to, Effect of — Appellant agreed to sell a plot of land to respondent by virtue of an agreement — On failure of appellant to hand over the possession of the concerned plot of land, respondent filed a complaint — District Forum passed an order directing appellant to deliver possession of concerned plot of land — Appeal against grant of relief to respondent by consumer forum — Held, since appellant executed the sale deed, and the concerned plot of land has been handed over to respondent, appellant cannot be granted any relief, namely to dismiss the complaint which was filed in District Consumer Forum which has now been entertained and acted upon by the conduct of appellant himself.

(Para 7)

Ganeshlal v. Shyam [Bench Strength 2], Civil Appeal No. 331/2007 (26/09/2013), Civil Appeal No. 331/2007 [H.L. Gokhale, J.: J. Chelameswar, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 24-A, 21 & 12 — Complaint — Filed after expiry of statutory limitation — Duty of consumer forum — Held, statutory period of limitation of 2 years from date of accrual of cause of action is unambiguous — Consumer forum must feel convinced that the same has been filed within the period of limitation or that the complainant has succeeded in showing sufficient cause for delayed filing of the complaint.

HELD; A reading of Sections 12 and 24A makes it clear that a complaint filed after expiry of two years counted from the date of accrual of cause of action cannot be admitted by any Consumer Forum unless the complainant is able to show that he had sufficient cause for not filing the complaint within the prescribed period and the concerned forum records reasons for condoning the delay. The embargo contained in Section 24-A against admission of a complaint is unambiguous and if that section is read in conjunction with Section 12, which prescribes the procedure for entertaining the complaint, it becomes clear that before admitting a complaint and issuing process, the Consumer Forum must feel convinced that the same has been filed within the period of limitation or that the complainant has succeeded in showing sufficient cause for delayed filing of the complaint.

(Para 15)

Muneesh Devi v. Uttar Pradesh Power Corporation Ltd. [Bench Strength 3], C.A. No. 4075/2013 (19/07/2013), 2013(10) SCC 478: 2013(9) SCALE 640: 2013(4) SCV(Civil) 567 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 24-A & 21 — Limitation — 156 days delay in filing complaint — Non-consideration delay due to proceedings before other for a — Complaint for compensation by dependent widow of deceased who was died due to burst of transformer — Initially suit was file before Civil Court which was not allowed to prosecute for want of court fees — Application for waiver of court fees was also dismissed — Thereafter appellant approached the writ court seeking mandamus for awarding compensation which was unsuccessful — SLP against the same was also dismissed summarily — Last resort was made by filing complaint for awarding compensation of Rs. 25 lacs before National Commission which was dismissed on limitation — Challenged — Held, appellant has mentioned all facts of previous litigation in the application for condonation of delay — The National Commission completely ignored the fact that the appellant is not well educated and she had throughout relied upon the legal advice tendered to her — It has neither pleaded nor any material is on record to infer that the appellant had not acted bona fide before the judicial for a — Therefore, it was an eminently fit case for exercise of power under Section 24- A(2) of the Act — Impugned order is set aside and delay is condoned — Matter is remitted back to consider on merits.

HELD: The National Commission did not take cognizance of the appellant’s assertion that before filing the complaint, she had pursued remedies before the civil Court, the High Court and this Court and dismissed the complaint as barred by time by simply observing that she could not substantiate her assertion of having made representation dated 28.7.2000.

In the application filed by her for condonation of delay, the appellant made copious references to the civil suit, the writ petition and the special leave petition filed by her and the fact that the complaint filed by her was admitted after considering the issue of limitation. She also pleaded that the cause for claiming compensation was continuing. The National Commission completely ignored the fact that the appellant is not well educated and she had throughout relied upon the legal advice tendered to her. She first filed civil suit which, as mentioned above, was dismissed due to non payment of deficient court fees. She then filed writ petition before the High Court and special leave petition before this Court for issue of a mandamus to the respondents to pay the amount of compensation, but did not succeed. It can reasonably be presumed that substantial time was consumed in availing these remedies. It was neither the pleaded case of respondent No.1 nor any material was produced before the National Commission to show that in pursuing remedies before the judicial forums, the appellant had not acted bona fide. Therefore, it was an eminently fit case for exercise of power under Section 24-A(2) of the Act. Unfortunately, the National Commission rejected the appellant’s prayer for condonation of delay on a totally flimsy ground that she had not been able to substantiate the assertion about her having made representation to the respondents for grant of compensation.

(Para 16)

In view of the above, we hold that the impugned order is legally unsustainable and is liable to be set aside.

(Para 17)

In the result, the appeal is allowed, the impugned order is set aside. The delay in filing of complaint by the appellant under Section 21 of the Act is condoned and the matter is remitted to the National Commission for disposal thereof on merits.

(Para 18)

Muneesh Devi v. Uttar Pradesh Power Corporation Ltd. [Bench Strength 3], C.A. No. 4075/2013 (19/07/2013), 2013(10) SCC 478: 2013(9) SCALE 640: 2013(4) SCV(Civil) 567 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 11, 4, 7 & 27 — Interests of consumer — Care taking and dispute resolution mechanism — Object of legislation — Discussed.

HELD: The 1986 Act was enacted by Parliament in the backdrop of the fact that India has signed Consumer Protection Resolution No. 39 of 248 passed by the General Assembly of the United Nations. With a view to fulfil the objectives enshrined in the guidelines adopted by the General Assembly of the United Nations and keeping in view the proliferation., of international trade and commerce and vast expansion of business and trade which resulted in availability of variety of consumer goods in the market, the Consumer Protection Bill was introduced in Parliament to provide for better protection of the interest of consumers.

(Para 9)

Haryana Urban Development Authority v. Tej Refrigeration Industries Ltd. [Bench Strength 2], C.A. No. 5852/2013 (Arising out of SLP (C) No. 14452/2013) (16/07/2013), 2013(9) SCALE 635 [G.S. Singhvi, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 24-A & 12 — Complaint — Filed after statutory limitation — Requirement to decide limitation — Held, Sections 12 and 24A makes it clear that a complaint filed after expiry of two years counted from the date of accrual of cause of action cannot be admitted by any Consumer Forum unless the complainant is able to show that he had sufficient cause for not filing the complaint within the prescribed period and the concerned forum records reasons for condoning the delay — The Consumer Forum must feel convinced that the same has been filed within the period of limitation or that the complainant has succeeded in showing sufficient cause for delayed filing of the complaint.

HELD: A reading of Sections 12 and 24A makes it clear that a complaint filed after expiry of two years counted from the date of accrual of cause of action cannot be admitted by any Consumer Forum unless the complainant is able to show that he had sufficient cause for not filing the complaint within the prescribed period and the concerned forum records reasons for condoning the delay. The embargo contained in Section 24-A against admission of a complaint is unambiguous and if that section is read in conjunction with Section 12, which prescribes the procedure for entertaining the complaint, it becomes clear that before admitting a complaint and issuing process, the Consumer Forum must feel convinced that the same has been filed within the period of limitation or that the complainant has succeeded in showing sufficient cause for delayed filing of the complaint.

(Para 11)

Unfortunately, most of the Consumer Forums in the country do not follow the provisions of Section 12 read with Section 24A and large number of complaints are entertained without considering the issue of limitation. This results in over burdening of the dockets of Consumer Forums and consequential delay in the disposal of other deserving cases.

(Para 12)

Haryana Urban Development Authority v. Tej Refrigeration Industries Ltd. [Bench Strength 2], C.A. No. 5852/2013 (Arising out of SLP (C) No. 14452/2013) (16/07/2013), 2013(9) SCALE 635 [G.S. Singhvi, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 24-A & 12 — Limitation — Complaint filed after six years accrual of cause of action — Allowed without deciding limitation despite objection — District Forum allowed complaint of respondent against appellant which was filed after six years of cancellation of allotment of plot in question — Respondent neither filed application for condonation of delay nor District Forum decided it despite specific defence of limitation set up by appellant Board — State Commission and National Commission did not interfere with the order — Challenged — Held, the order passed by the District Forum without even adverting to the issue of limitation was ex-facie without jurisdiction and the State Commission and the National Commission committed serious error by dismissing the appeal and the revision filed against the order of the District Forum, consequently appeal is allowed and order passed by lower fora are set aside as time barred.

(Para 14 & 15)

Haryana Urban Development Authority v. Tej Refrigeration Industries Ltd. [Bench Strength 2], C.A. No. 5852/2013 (Arising out of SLP (C) No. 14452/2013) (16/07/2013), 2013(9) SCALE 635 [G.S. Singhvi, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Object of enactment — Held, the Act was enacted to provide for the better protection of interest of consumers, such as the right to be protected against marketing of goods which are hazardous to life and property; the right to be informed about the quality, quantity, potency, purity, standard and price of goods, to protect the consumer against unfair trade practices; and right to seek redressal against an unscrupulous exploitation of consumers, and further to provide right to consumer education etc.

(Para 10)

Jagmittar Sain Bhagat v. Director, Health Services, Haryana [Bench Strength 2], Civil Appeal No. 5476/2013 (Arising out of S.L.P. (C) No. 11381/2012) (11/07/2013), 2013 AIR(SC) 3060: 2013(10) SCC 136: 2013(9) SCALE 103: 2013(5) Supreme 631: 2013(4) SCV(Civil) 501 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 11, 17, 21 & 2(1)(d)(ii) — Approach to Forum for retiral benefits by government servant — Allowability — Appellant/Medical Officer took voluntary retirement — Preferred complaint for non-payment of retiral benefits, and deduction of penal rent from his dues of retiral benefits without giving any show cause notice to him — Rejection — Challenged — Held, by no stretch of imagination a government servant can raise any dispute regarding his service conditions or for payment of gratuity or GPF or any of his retiral benefits before any of the Forum under the Act — The appropriate forum, for redressal of any his grievance, may be the State Administrative Tribunal, if any, or Civil Court but certainly not a Forum under the Act.

Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225, Secretary, Board of Secondary Education, Orissa v. Santosh Kumar Sahoo & Anr., AIR 2010 SC 3553, Bihar School Examination Board v. Suresh Prasad Sinha, AIR 2010 SC 93, Maharshi Dayanand University v. Surjeet Kaur, (2010) 11 SCC 159 & Regional Provident Fund Commissioner v. Bhavani, AIR 2008 SC 2957, Referred.

(Para 16, 17 & 18)

HELD: Statutory provisions make it crystal clear that the Act is made to deal with the rights of consumers wherein marketing of goods, or “services” as defined under the Act have been provided. Therefore, the question does arise as to whether the Forum under the Act can deal with the service matters of government servants.

(Para 11)

In view of the above, it is evident that by no stretch of imagination a government servant can raise any dispute regarding his service conditions or for payment of gratuity or GPF or any of his retiral benefits before any of the Forum under the Act. The government servant does not fall under the definition of a “consumer” as defined under Section 2(1)(d)(ii) of the Act. Such government servant is entitled to claim his retiral benefits strictly in accordance with his service conditions and regulations or statutory rules framed for that purpose. The appropriate forum, for redressal of any his grievance, may be the State Administrative Tribunal, if any, or Civil Court but certainly not a Forum under the Act.

(Para 16)

Jagmittar Sain Bhagat v. Director, Health Services, Haryana [Bench Strength 2], Civil Appeal No. 5476/2013 (Arising out of S.L.P. (C) No. 11381/2012) (11/07/2013), 2013 AIR(SC) 3060: 2013(10) SCC 136: 2013(9) SCALE 103: 2013(5) Supreme 631: 2013(4) SCV(Civil) 501 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Electricity Act, 2003 — Sections 173, 174 & 175 — Electricity Act, 2003 and Consumer Protection Act, 1986 — Inconsistency between, Effect of — Held, in case of inconsistency between the Electricity Act, 2003 and the Consumer Protection Act, 1986, the provisions of Consumer Protection Act will prevail, but ipso facto it will not vest the Consumer Forum with the power to redress any dispute with regard to the matters which do not come within the meaning of “service” or “complaint” — Consumer Protection Act, 1986 — Sections 2(1)(o) & 2(1)(c) — Redressal of dispute.

(Para 43 & 47(i))

HELD: The inconsistency would arise only if the provisions of the Electricity Act, 2003 run counter to the provisions of the Consumer Protection Act, 1986 or if while enforcing provision on one statute, provisions of other statute is violated. We find that the entire object and reasons of Consumer Protection Act is not crossed over by the Electricity Act, 2003 and whenever such situation arise the Electricity Act, 2003 has left the option open for the consumer to take recourse under other Laws.

(Para 43)

Uttar Pradesh Power Corporation Ltd. v. Anis Ahmad [Bench Strength 2], Civil Appeal No. 5466/2012 (Arising out of SLP (C) No. 35906/2011) (01/07/2013), 2013(3) SCV(Civil) 401: 2013 AIR(SC) 2766: 2013(8) SCC 491: 2013(10) JT 610: 2013(9) SCALE 334: 2013(5) Supreme 642: 2013(9) SLT 554 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Electricity Act, 2003 — Section 126 — Transaction under — Whether a complaint? — Held, nature of transaction under Section 126 does not come within the ambit of “complaint” — Consumer Protection Act, 1986 — Section 2(g) — Deficiency of service.

(Para 20)

Uttar Pradesh Power Corporation Ltd. v. Anis Ahmad [Bench Strength 2], Civil Appeal No. 5466/2012 (Arising out of SLP (C) No. 35906/2011) (01/07/2013), 2013(3) SCV(Civil) 401: 2013 AIR(SC) 2766: 2013(8) SCC 491: 2013(10) JT 610: 2013(9) SCALE 334: 2013(5) Supreme 642: 2013(9) SLT 554 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 2(1)(d) — Complaint in respect of supply of electrical or other energy — When maintainable? — Held, a consumer may file a valid complaint in respect of supply of electrical or other energy, if the complaint contains allegation of unfair trade practice or restrictive trade practice; or there is a defective goods; deficiency in services; hazardous services or a price in excess of the price fixed by or under any law etc.

(Para 23)

Uttar Pradesh Power Corporation Ltd. v. Anis Ahmad [Bench Strength 2], Civil Appeal No. 5466/2012 (Arising out of SLP (C) No. 35906/2011) (01/07/2013), 2013(3) SCV(Civil) 401: 2013 AIR(SC) 2766: 2013(8) SCC 491: 2013(10) JT 610: 2013(9) SCALE 334: 2013(5) Supreme 642: 2013(9) SLT 554 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 2(1)(e) — Assessment of “unauthorized use of electricity — Whether a consumer dispute? — Held, after notice of provisional assessment to the person indulged in unauthorized use of electricity, the final decision by an assessing officer, who is a public servant, on the assessment of “unauthorized use of electricity is a “Quasi Judicial” decision and does not fall within the meaning of “consumer dispute” — Electricity Act, 2003 — Section 126 — Assessment of “unauthorized use of electricity — Nature of decision of.

(Para 30)

Uttar Pradesh Power Corporation Ltd. v. Anis Ahmad [Bench Strength 2], Civil Appeal No. 5466/2012 (Arising out of SLP (C) No. 35906/2011) (01/07/2013), 2013(3) SCV(Civil) 401: 2013 AIR(SC) 2766: 2013(8) SCC 491: 2013(10) JT 610: 2013(9) SCALE 334: 2013(5) Supreme 642: 2013(9) SLT 554 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(c), 2(1)(b) & 2(1)(d) — Person availing services for commercial purpose — Whether a consumer? — Held, person(s) availing services for ‘commercial purpose’ do not fall within the meaning of “consumer” and cannot be a “complainant” for the purpose of filing a “complaint” before the Consumer Forum.

(Para 22)

Uttar Pradesh Power Corporation Ltd. v. Anis Ahmad [Bench Strength 2], Civil Appeal No. 5466/2012 (Arising out of SLP (C) No. 35906/2011) (01/07/2013), 2013(3) SCV(Civil) 401: 2013 AIR(SC) 2766: 2013(8) SCC 491: 2013(10) JT 610: 2013(9) SCALE 334: 2013(5) Supreme 642: 2013(9) SLT 554 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 2(e) — Consumer dispute — Elements for — Held, for a valid consumer dispute an assertion and denial of a valid complaint is must.

(Para 18)

Uttar Pradesh Power Corporation Ltd. v. Anis Ahmad [Bench Strength 2], Civil Appeal No. 5466/2012 (Arising out of SLP (C) No. 35906/2011) (01/07/2013), 2013(3) SCV(Civil) 401: 2013 AIR(SC) 2766: 2013(8) SCC 491: 2013(10) JT 610: 2013(9) SCALE 334: 2013(5) Supreme 642: 2013(9) SLT 554 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 3, 2(1)(c) & 2(1)(d) — Complaint against assessment under Section 126 of Electricity Act, 2003 — Electrical connections for industrial/commercial purpose, Absence of allegation stipulated under Section 2(1)(c), Effect of — Held, complainants had electrical connections for industrial/commercial purpose and, therefore, they do not come within the meaning of “consumer”; they cannot be treated as “complainant” nor they are entitled to file any “complaint” before the Consumer Forum — In absence of any allegation of unfair trade practice or a restrictive trade practice or there is deficiency in service(s) or hazardous service(s) or price fixed by the appellant(s) is excess to the price fixed under any law etc, their complaints were not maintainable — Electricity Act, 2003 — Section 126 — Assessment order — Complaint before Consumer forum, Maintainability of.

(Para 24, 25 & 26)

Uttar Pradesh Power Corporation Ltd. v. Anis Ahmad [Bench Strength 2], Civil Appeal No. 5466/2012 (Arising out of SLP (C) No. 35906/2011) (01/07/2013), 2013(3) SCV(Civil) 401: 2013 AIR(SC) 2766: 2013(8) SCC 491: 2013(10) JT 610: 2013(9) SCALE 334: 2013(5) Supreme 642: 2013(9) SLT 554 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(d), 2(1)(o) & 2(1)(c) — Electricity matters — Jurisdiction of Consumer Forum to decide, Scope — Held, Electricity Act, 2003 and the Consumer Protection Act, 1986 runs parallel for giving redressal to any person, who falls within the meaning of “consumer” under Consumer Protection Act, 1986 or the Central Government or the State Government or association of consumers but it is limited to the dispute relating to “unfair trade practice” or a “restrictive trade practice adopted by the service provider”; or “if the consumer suffers from deficiency in service”; or “hazardous service”; or “the service provider has charged a price in excess of the price fixed by or under any law” — Electricity Act, 2003 — Sections 126, 135 to 140 — Complaint before Consumer Forum, Maintainability of.

(Para 47(iii))

Uttar Pradesh Power Corporation Ltd. v. Anis Ahmad [Bench Strength 2], Civil Appeal No. 5466/2012 (Arising out of SLP (C) No. 35906/2011) (01/07/2013), 2013(3) SCV(Civil) 401: 2013 AIR(SC) 2766: 2013(8) SCC 491: 2013(10) JT 610: 2013(9) SCALE 334: 2013(5) Supreme 642: 2013(9) SLT 554 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 3, 2(1)(b), 2(1)(c) & 2(1)(d) — Unauthorized use of electricity — Complaint before consumer Forum, Maintainability of — Held, Consumer Forum cannot derive power to adjudicate a dispute in relation to assessment made under Section 126 or offences under Sections 135 to 140 of the Electricity Act, as the acts of indulging in “unauthorized use of electricity” as defined under Section 126 or committing offence under Sections 135 to 140 do not fall within the meaning of “complaint” as defined under Section 2(1)(c) of the Consumer Protection Act, 1986 — Acts of indulgence in “unauthorized use of electricity” by a person, neither has any relationship with “unfair trade practice” or “restrictive trade practice” or “deficiency in service” nor does it amounts to hazardous services by the licensee — Such acts of “unauthorized use of electricity” has nothing to do with charging price in excess of the price — Therefore, acts of person in indulging in ‘unauthorized use of electricity’, do not fall within the meaning of “complaint”, and, therefore, the “complaint” against assessment under Section 126 is not maintainable before the Consumer Forum — Since offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted under Section 153 of the Electricity Act, 2003, in that view of the matter also the complaint against any action taken under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Forum — Electricity Act, 2003 — Sections 126, 135 to 140 — Action under — Complaint before Consumer Forum against, Maintainability of.

(Para 45, 46 & 47)

Uttar Pradesh Power Corporation Ltd. v. Anis Ahmad [Bench Strength 2], Civil Appeal No. 5466/2012 (Arising out of SLP (C) No. 35906/2011) (01/07/2013), 2013(3) SCV(Civil) 401: 2013 AIR(SC) 2766: 2013(8) SCC 491: 2013(10) JT 610: 2013(9) SCALE 334: 2013(5) Supreme 642: 2013(9) SLT 554 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 3, 12 & 2(1)(d) — Right to seek remedy under the Act — Availability of alternate remedy under special statute, Effect of — Appellants were enrolled as members of respondent No.1-Cooperative Group Housing Society — They applied for flats, which were being constructed by respondent No.1 and deposited the installments of price — Respondent No.1 returned the amount deposited by the appellants and indirectly terminated their membership — Appellants challenged by filing complaints under Consumer Protection Act — Respondent No.1 raised the objection regarding maintainability of complaints in view of Haryana Cooperative Societies Act, 1984 — District Forum overruled the objections raised by respondent No.1 but dismissed the complaints by observing that there was no deficiency in service on the part of respondent No.1 — Appeals and the revisions filed by the appellants were dismissed by the State Commission and the National Commission respectively solely on the ground that the appellants cannot be treated as consumer within the meaning of Section 2(1)(d) of the Act — Challenged before Supreme Court — Held, in the complaints, the appellants had primarily challenged the action of respondent No.1 to refund the amounts deposited by them and thereby extinguished their entitlement to get the flats — Therefore, the mere fact that the action taken by respondent No.1 was approved by the Assistant Registrar, Cooperative Societies and higher authorities, cannot deprive the appellants of their legitimate right to seek remedy under the Act, which is in addition to the other remedies available to them under the Cooperative Societies Act — Appeals allowed — Matters are remanded to the State Commission with the direction to decide the appeals on merits after giving opportunities of hearing to the parties.

Secretary, Thirumurugan Co-operative Agricultural Credit Society v. M. Lalitha, (2004) 1 SCC 305, Kishore Lal v. ESI Corporation, (2007) 4 SCC 579, National Seeds Corporation Ltd. v. M. Madhusudhan Reddy, (2012) 2 SCC 506, Fair Air Engineers (P) Ltd. v. N.K. Modi, (1996) 6 SCC 385, Thirumurugan Co-operative Agricultural Credit Society v. M. Lalitha (supra), Skypak Couriers Ltd. v. Tata Chemicals Ltd., (2000) 5 SCC 294 & Trans Mediterranean Airways v. Universal Exports, (2011) 10 SCC 316, Referred.

(Para 14 & 16)

Virender Jain v. Alaknanda Co-operative Group Housing Society Limited [Bench Strength 3], Civil Appeal No. 64/2010 (23/04/2013), 2013(9) SCC 383: 2013(9) JT 92: 2013(6) SCALE 571 [G.S. Singhvi, J.: Ranjana Prakash Desai, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 2(1)(d) — Members of Co-operative Group Housing Society — Whether consumers? — Held, appellants, who had deposited the installments of price for the flats being constructed by respondent No.1 are covered by the definition of `consumer’ contained in Section 2(1)(d) of the Act and the contrary view expressed by the National Commission in B.K. Prabha v. Secretary Kendriya Upadyarasanga, (2004) 2 CLT 305, which has been reiterated in the impugned order is not correct.

Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243 & Chandigarh Housing Board v. Avtar Singh, (2010) 10 SCC 194, Relied on.

B.K. Prabha v. Secretary Kendriya Upadyarasanga, (2004) 2 CLT 305, Overruled.

(Para 12)

Virender Jain v. Alaknanda Co-operative Group Housing Society Limited [Bench Strength 3], Civil Appeal No. 64/2010 (23/04/2013), 2013(9) SCC 383: 2013(9) JT 92: 2013(6) SCALE 571 [G.S. Singhvi, J.: Ranjana Prakash Desai, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 21 — False representation and unfair trade practice — Finding of, Ayurvedic practitioner prescribing Allopathic medicines, Entitlement to — Son of the appellant was given treatment for the problem of epilepsy by Respondnet No. 1 who was passing off Allopathic medicines as Ayurvedic medicines — National Commission by the impugned judgment held that respondent No.1 having made the false representation was guilty of unfair trade practice but held that in the light of letter dated 24th February, 2003 respondent No.1 was entitled to prescribe Allopathic medicines — Respondents relied on a letter dated 24th February, 2003 issued by Secretary, Medical Education Department, Government of U.P. to suggest that the Aurvedic/Unani Practitioners practicing Ayurvedic System are also authorised to use allopathic medicines under U.P. Indian Medical Council Act, 1939 — Held, incident and treatment as alleged by the appellant relate to the period 1994 to 1997 — Therefore, letter dated 24th February, 2003 is of no avail to the respondents as the same was not in existence during the period of treatment — From the letter it is clear that in connection with some case the High Court of Allahabad issued direction to take action against the quacks who are practicing in Allopathic Medicine but not registered with Medical Council — Respondents has not brought to notice any Act known as U.P. Indian Medical Council Act, 1939 but there is an Act known as U.P. Indian Medicine Act, 1939 — In any case respondent No.1 has nowhere pleaded that he was registered with the Medical Council or enrolled in the State Medical Register — He has not cited even the registration number and no specific plea has been taken that he has already been registered with the U.P. State Medical Council — Even the registration number has not been mentioned — Merely on the basis of a vague plea; the National Commission held that respondent No.1 was entitled to practice and prescribe modern Allopathic medicine.

(Para 13 & 14)

Bhanwar Kanwar v. R.K. Gupta [Bench Strength 2], Civil Appeal No. 8660/2009 (05/04/2013), 2013(2) SCV(Civil) 253: 2013(4) SCC 252: 2013(8) JT 296: 2013(5) SCALE 373: 2013(3) Supreme 34: 2013(5) SLT 720 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 21 — Compensation — Deduction of 50% of the compensation amount and direction to deposit with Consumer Legal Aid Account, Justifiability of — In a case of false representation and unfair trade practice, National Commission deducted 50% of the compensation amount and directed to deposit the same with the Consumer Legal Aid Account of the Commission — Challenged — Held, no reason given by the National Commission for deducting 50% of the compensation amount and to deposit the same with the Consumer Legal Aid Account of the Commission — Accordingly, part of the order passed by the National Commission is set aside.

(Para 15 & 16)

Bhanwar Kanwar v. R.K. Gupta [Bench Strength 2], Civil Appeal No. 8660/2009 (05/04/2013), 2013(2) SCV(Civil) 253: 2013(4) SCC 252: 2013(8) JT 296: 2013(5) SCALE 373: 2013(3) Supreme 34: 2013(5) SLT 720 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 21 — Enhancement of compensation — Finding of false representation and unfair trade practice, Physical and mental harassment, Entitlement to — Prashant, son of the appellant was given treatment for the problem of epilepsy by Respondnet No. 1 who was passing off Allopathic medicines as Ayurvedic medicines — National Commission by the impugned judgment held that respondent No.1 having made the false representation was guilty of unfair trade practice and quantified the compensation payable by the respondents as Rs. 5,00,000/- and directed respondent No.1 to pay a consolidated sum of Rs.2,50,000/- to the appellant and to deposit the remaining amount in the account of the Consumer Legal Aid of the National Commission — Appeal preferred by the complainant-appellant — Held, National Commission has already held that respondent No.1 was guilty of unfair trade practice and adopted unfair method and deceptive practice by making false statement orally as well as in writing — In view of the finding, both Prashant and appellant suffered physical and mental injury due to the misleading advertisement, unfair trade practice and negligence of the respondents — Appellant and Prashant thus are entitled for an enhanced compensation for the injury suffered by them — Therefore, amount of compensation is enhanced at Rs.15 lakhs for payment in favour of the appellant — Appeal allowed.

(Para 15 & 16)

Bhanwar Kanwar v. R.K. Gupta [Bench Strength 2], Civil Appeal No. 8660/2009 (05/04/2013), 2013(2) SCV(Civil) 253: 2013(4) SCC 252: 2013(8) JT 296: 2013(5) SCALE 373: 2013(3) Supreme 34: 2013(5) SLT 720 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 21 — Compensation — Rejection of claim for, Non-consideration of report of Medical Board, Effect of — Appellant’s father took insurance cover under `Janta Gramin Vyaktigat Durghatna Policy’ in the name of the appellant — Appellant fell down and sustained injuries in the right portion of his head and suffered 100% disability in the right eye — Respondents rejected the claim on the ground that the same was not covered by the policy — State Commission and National Commission dismissed the claim for compensation by assuming that his right eye was afflicted with the disease of Phthisis Bulbi and the same was the cause of loss of vision — Complainant preferred appeal — Held, both the consumer fora did not bother to carefully go through the report of the Medical Board constituted in furtherance of the direction given by the State Commission — In that report, the concerned doctors opined that the loss of vision could have been caused by fall while playing — In their pleadings, respondents had not contested the statement contained in the complaint, which was duly supported by the affidavit of Shri P.D. Chourasia, that while playing outside the residence his child had an accidental fall and the consequential injury to the right eye led to the loss of vision — State Commission and the National Commission committed serious error in completely ignoring the report of the Medical Board which had opined that Phthisis Bulbi can be caused due to injury caused due to fall — Before the State Commission, sufficient evidence was produced by the appellant to prove that he had an accidental fall and as a result of that, right side of his head and the right eye were injured — Therefore, there is no escape from the conclusion that the appellant’s case was covered by the policy issued by respondent No.1 and the State Commission and the National Commission committed serious error by rejecting his claim — Appeal allowed — Respondents to pay compensation to the appellant with interest.

(Para 12, 14 & 15)

Sandeep Kumar Chourasia v. Divisional Manager, New India Insurance Company Ltd. [Bench Strength 2], Civil Appeal No. 2759/2013 (Arising out of SLP (C) No. 25991/2008) (02/04/2013), 2013(2) SCV(Civil) 595: 2013(4) SCC 270: 2013(5) SCALE 103: 2013(2) Supreme 639: 2013(4) SLT 724 [G.S. Singhvi, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Insurance — Insurance policy — Risk cover of price recovery of foreign export — Failure on part of insured to inform to insurance company about non-payment by importer — Sustainability of claim — Respondent purchased a policy for the purpose of insuring a shipment to foreign buyers — Buyer committed default in making payments towards such policy with respect to the consignment — Insurer rejected claims on the ground that the insured did not ensure compliance with Clause 8 (b) of the insurance agreement, which stipulated the period within which the insurer is to be informed about any default committed by a foreign importer — State Disputes Redressal Commission directed the insurer to make various requisite payments due under different claims, with 9 per cent interest with litigation expenses — Insurer preferred appeals before National Consumer Disputes Redressal Commission, wherein the impugned judgment and order was disputed, stating that it was evident from the said judgment that 11 claims had been rejected and that 5 claims made by the insured were accepted — Both the parties preferred appeals — Held, since insured failed to comply with the requirement of clause 8(b) of the agreement informing the insurer about the non-payment of outstanding dues by the foreign importer within the stipulated time except in two cases, thus, we are of the view that only two claims deserve to be allowed and others are dis-allowed — Consumer Protection Act, 1986 — Sections 19 & 23 — Insurance — Liability of insurer — Failure on the part of insured to comply with stipulated terms in agreement, Effect of.

(Para 13)

Export Credit Guarantee Corporation of India Ltd. v. Garg Sons International [Bench Strength 2], Civil Appeal No. 1557/2004 (17/01/2013), 2013(1) SCV(Civil) 233: 2013(1) SCALE 410: 2013(1) SLT 614: 2014(1) SCC 686 [B.S. Chauhan, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 16(1)(a) & 20(1)(a) — National and State Consumer Redressal Commisions — Consultation in the matters of appointment — Discussed.

Ashish Handa, Advocate v. Hon`ble the Chief Justice of High Court of Punjab and Haryana and others, (1996) 3 SCC 145, Ashok Tanwar and another v. State of H.P. and others, (2005) 2 SCC 104 & N. Kannadasan v. Ajoy Khose and others, (2009) 7 SCC 1, Referred.

(Para 54 & 56)

HELD: This Court in Ashish Handa, Advocate v. Hon`ble the Chief Justice of High Court of Punjab and Haryana and others, (1996) 3 SCC 145, held in the matter of appointment of President of the State Commissions and the National Commissions under the Consumer Protection Act, 1986, the consultation with the Chief Justice of the High Court and Chief Justice of India is in the same manner, as indicated by the Supreme Court in Supreme Court Advocates-on-Record Association case (supra) for appointment of High Court and Supreme Court Judges. This Court noticed that the functions discharged by the Commission are primarily the adjudication of consumer disputes and, therefore, a person from the judicial branch is considered to be suitable for the office of the President. The Court noticed the requirement of consultation with the Chief Justice under the proviso to Section 16(1)(a) and Section 20(1)(a) of the Consumer Protection Act, is similar to that in Article 217. Consequently, it was held that principle enunciated in the majority opinion in the Supreme Court Advocates-on-Record Association case (supra) must apply even for initiating the proposal for appointment.

(Para 54)

Judgments discussed above would indicate that the consultation is held to be mandatory if the incumbent to be appointed to the post is either a sitting or a retired judge who has to discharge judicial functions and the orders rendered by them are capable of execution. Consultation, it may be noted, is never meant to be a formality, but meaningful and effective and primacy of opinion is always vested with the High Court or the Chief Justice of the State High Court or the collegium of the Supreme Court or the Chief Justice of India, as the case may be, when a person has to hold a judicial office and discharge functions akin to judicial functions.

(Para 56)

Chandrashekaraiah v. Janekere C. Krishna [Bench Strength 2], Civil Appeal Nos. 197-199/2013 (Arising out of SLP (Civil) Nos. 15658-15660/2012) (11/01/2013), 2013 AIR(SC) 726: 2013(3) SCC 117: 2013(2) JT 65: 2013(1) SCALE 255: 2013(1) Supreme 161: 2013(1) SLT 297 [K.S. Radhakrishnan, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g) & 12 — Medical Negligence — Requirement of expert opinion before recording consumer complaint — Applicability of ratio of Martin F. D`Souza case — Husband of Respondent No. 1 died who was operated upon by doctors, appellant and respondent No. 2 — Respondent No. 1 filed a complaint — Revision petition before State Consumer Disputes Redressal Commission, on the ground that complaint could not have been registered by District Forum without seeking opinion of an expert in terms of the decision of the Supreme Court reported in Martin F. D`Souza Vs. Mohd. Ishfaq, (2009)3 SCC 1 — State Commission rejected the revision petition — Challenged before National Commission — National Commission dismissed the petition by relying upon the subsequent judgment of this Court in V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., (2010)5 SCC 513, wherein this Court has declared that the judgment rendered in Martin F. D`Souza is per incuriam — Preferred SLP — Held, observations in Jacob Mathew were limited only with regard to the prosecution of doctors for the offence under Section 304-A IPC — Judgment rendered by a two-Judge Bench of this Court in the case of Martin F.D`Souza has been correctly declared per incuriam by the judgment in V. Kishan Rao as the law laid down in Martin F.D`Souza was contrary to the law laid down in Jacob Mathew — Hence, conclusions recorded by National Commission does not call for any interference — Appeals are dismissed — Penal Code, 1860 — Section 340-A — Death caused by medical negligence — Rule applicability in civil liability.

Jacob Mathew Vs. State of Punjab & Anr., (2005)6 SCC 1 &V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., (2010)5 SCC 513, Relied on.

Martin F. D`Souza Vs. Mohd. Ishfaq, (2009)3 SCC 1, Distinguished (not applicable in consumer cases).

(Para 9 & 10)

A. Srimannarayana v. Dasari Santakumari [Bench Strength 2], Civil Appeal No. 368/2013 (Arising out of S.L.P (C) No. 26043/2010) (09/01/2013), 2013(1) SCV(Civil) 171: 2013(9) SCC 496: 2013(9) JT 135: 2013(1) SCALE 606: 2013(1) Supreme 797: 2013(1) SLT 597 [Surinder Singh Nijjar, J.: Anil R. Dave, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 12, 15 & 27-A — Deficiency in service by non-delivery of flats — Complaint against allowed — Dismissal of appeal before state commission — Revision before National Commission also dismissed — Special lease petition against — Held, finding recorded by District Forum that there was deficiency in service on petitioners part is based on correct analysis of facts and documents and State Commission rightly refused to interfere with the same — Direction given by District Forum for refund of amount deposited by respondent was also correct — No error committed by State and National Commission by applying the same — Cost imposed by National Commission of Rs. 50000/- on respondent also justified — Special leave petition accordingly is dismissed.

(Paras 6 to 10)

Shivalik Vihar Sites Pvt. Ltd. v. Darshan Singh [Bench Strength 2], Petition(s) for Special Leave to Appeal (Civil) No(s). 33470/2012 (10/12/2012), 2013(1) SLT 19 [G.S. Singhvi, J.: Gyan Sudha Misra, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 10(1A) — Appointment of President of District Forum — Time limit for joining — Extension of, permissibility — Period provided for joining of post 45 days — Appointment of respondent nos. 4 to 6 beyond period of 45 days of offer of appointment — Writ petition challenging — Held, respondent nos. 4 to 6 were working as District Judges at relevant time when appointment letters were issued — Extension of period to meet the said exigencies — Since power to extend time was within the domain of respondent-authorities and they had every right to extend the time of meet such exigencies, the extension of period for joining of respondent nos. 4 to 6 justified and needs no interference — Petition to be dismissed.

(Paras 8 to 10)

Prem Lata v. Govt. of NCT Delhi [Bench Strength 2], Special Leave Petition (C) No. 29967/2011 (11/09/2012), 2013(1) SCV(Civil) 566: 2012(9) SCC 490: 2012(9) JT 386: 2012(8) SCALE 589: 2012(6) Supreme 609: 2012(7) SLT 258: 2012 LIC 4437: 2013(1) SLR 299 [Altamas Kabir, J.: J. Chelameswar, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2, 14 & 27 — Allotment of flat — Delay in delivery of possession — Permissibility of revision of construction cost — Held, appellant voluntarily sought change in mode of purchase after delay in delivery of possession and unequivocally agreed to pay the cost of Rs. 5,23,232/- — Plea of appellant that cost of flat cannot be more than what was specified in registered sale deed sounds attractive but lacks merit — Having taken advantage of offer made by board to get deed registered at a price less than the actual cost of flat, the appellant cannot turn round and demand refund of Rs. 1,01,314/- — Appeal to be dismissed.

HELD: We have considered the respective arguments/submissions and carefully scanned the record. In our view, the appellant cannot make any grievance against the cost specified in the revised allotment letters issued on 22.1.1999 and 25.1.1999 because he had voluntarily sought change in the mode of purchase and unequivocally agreed to pay the cost i.e. Rs.5,23,232/-. The appellant’s plea that the cost of the flat cannot be more than what was specified in the registered sale deed sounds attractive but lacks merit. A careful reading of letters dated 22.8.1998, 27.11.1998 and 15.5.1999 sent by the appellant to the respondent makes it clear that he had conveyed his unequivocal willingness for registration of the sale deed showing the cost of the flat as Rs.4,31,918/although the actual cost was Rs.5,23,232/-. Having taken advantage of the offer made by the Board to get the deed registered at a price less than the actual cost of the flat, the appellant cannot turn around and demand refund of Rs.1,01,314/-.

The appellant’s grievance against the quantum of compensation awarded by the State Commission also merits rejection because the complaint filed by him was not bona fide.

In the result, the appeal is dismissed.

S. Srinivasa Murthy v. Karnataka Housing Board [Bench Strength 2], Civil Appeal No. 5584/2012(Arising out of SLP (C) No. 12334/2009) (22/08/2012), 2012(4) SCV(Civil) 362: 2013 AIR(SC) 990: 2012(8) SCC 424: 2012(8) JT 256: 2012(7) SCALE 479: 2012(6) Supreme 238 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 226 — Writ — Challenging imposition of penalty by National Commission — Maintainability of — Held, the writ petition against order of National Commission is not maintainable before High Court as a statutory appeal in terms of section 27A(1)(c) lies to this court — Consumer Protection Act, 1986 — Section 27-A(1)(c).

HELD: It is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercise its jurisdiction in accordance with law The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds.

Cicily Kallarackal v. Vehicle Factory [Bench Strength 2], Special Leave Petition (C) No. 24228-24229/2012 (06/08/2012), 2012(4) SCV(Civil) 49: 2012(8) SCC 524: 2012(7) JT 426: 2012(7) SCALE 328: 2012(8) SLT 585 [B.S. Chauhan, J.: Swatanter Kumar, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 2(1)(o) — `Service’ — Membership inviting for purchase of developed plots — Included service under Act or not? — Housing and construction activity — Appellant, a private company promotes ventures for development of lands into house-sites and invites intending purchaser to join as members — Sale is not as `as is where is’ basis — Sale price was not for virgin land but also includes development of site and provision of infrastructure — Held, appellant was offering `service’ to respondents within the meaning of the Act for development etc. of plots — Activities of appellant involving offer of plots for sale to its customers with assurance of development of infrastructure amenities, lay out approvals etc. amounts to service under section 2(1)(o), hence amenable to jurisdiction under the Act.

U.T. Chandigarh Administration and Anr. v. Amarjeet Singh and Ors., (2009) 4 SCC 660, Distinguished.

Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243, Relied on.

HELD: High Court was perfectly justified in holding that the activities of the appellant-company in the present case involving offer of plots for sale to its customers/members with an assurance of development of infrastructure/amenities, lay-out approvals etc. was a `service’ within the meaning of clause (o) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the fora established under the statute. Having regard to the nature of the transaction between the appellant-company and its customers which involved much more than a simple transfer of a piece of immovable property it is clear that the same constituted `service’ within the meaning of the Act. It was not a case where the appellant-company was selling the given property with all advantages and/or disadvantages on “as is where is” basis.

Narne Construction P. Ltd. v. Union of India [Bench Strength 2], Civil Appeal Nos. 4432-4450/2012 (Arising out of S.L.P. (C) Nos. 3499-3517/2011 (10/05/2012), 2012 AIR(SC) 2369: 2012(5) SCC 359: 2012(5) JT 335: 2012(5) SCALE 369: 2012(3) Supreme 632: 2012(3) SLT 669: 2013(29) STR 3 [T.S. Thakur, J.: Gyan Sudha Misra, J.] <<LAWPACK SUPREME COURT>>
M.P. Consumer Protection Rules, 1987 — Rule 6 — Pension for services rendered as President of State Commission — Entitlement of — Respondent, a judge of High Court retired after serving more than 10 years — Subsequent to his retirement, respondent was appointed as President of State Commission and served for 4 years 10 months and 22 days — Claim for pension for services rendered as president of state commission — Two conflicting views expressed by judges constituting the bench on the issue of entitlement for pension — In view of divergence of opinion, matter is placed before Hon’ble Chief Justice for reference to larger bench — Consumer Protection Act, 1986 — Sections 9(b) & 16.

HELD: (as per Hon’be J. R.M. Lodha): State Government has power to issue executive order or administrative instructions with regard to subject/s provided in Section 16(2) of the 1986 Act where the State Rules are silent on any of such subject. There is nothing in Section 30(2) or Section 31 of the 1986 Act that abridges the power of the State Government to issue executive order or administrative instructions with regard to pensionable service of the President and Members of the State Commission, although State Rules have been framed but such Rules are silent on the aspect of the pensionable service. In other words, in the absence of any provision in the State Rules relating to the pensionable service of the President and Members of the State Commission, there is no bar for the State Government in issuing executive order or administrative instructions regarding pensionable service of the President, State Commission.

Insofar as the order dated April 5, 2002 issued by the Government of Madhya Pradesh according sanction for counting the service of the respondent on the post of President, State Commission for pension is concerned, the same being not inconsistent with the statutory provision contained in Section 16(2) and the State Rules, the view of the High Court that the respondent was entitled to pension from the State Government as per the terms and conditions of appointment cannot be faulted. The High Court rightly observed that the respondent was entitled to pension from the State Government insofar as service rendered by him as the President, State Commission was concerned to the extent provided in the order dated April 5, 2002. Obviously such service shall not be clubbed with the service of the respondent as a High Court Judge and shall not be charged to Consolidated Fund of India.

Civil appeal, accordingly, has no merit and is dismissed with no order as to costs.

(as per Hon’ble J. H.L. Gokhale): The first respondent was undoubtedly entitled to receive pension for his tenure of service as a High Court Judge. The question is with respect to payability of pension for the service as the President of the State Commission. It is a matter concerning public finance, and such a grant cannot be made at the instance of the State Government when the rules do not prescribe the same. In the instant case the order according sanction to pension does not prescribe any period for eligibility nor any rate at which the pension is to be paid. This is apart from the fact that as seen from the Calculation Sheet tendered by the first respondent, the subsequent period of his service as the President of the State Commission was sought to be clubbed with the period of his service as a High Court Judge, which is impermissible. Such an order for the benefit of an individual cannot be considered to be a valid one. Any such exception being made by exercising executive power would be violative of Article 14 of the Constitution of India.

In the circumstances the appeal deserves to be allowed and the impugned judgment and order passed by the High Court is required to be set-aside. Accordingly, this Civil Appeal is allowed, the judgment and order of the High Court dated 8.2.2005 in Writ Petition No.13302/2004 is hereby set aside, the said writ petition filed by the first respondent is dismissed though without any order as to costs.

Mr. Amrendra Sharan, learned counsel for the first respondent submitted that in the event this Court is not inclined to hold in favour of the respondent No.1, the payment made so far should not be recovered. He relied upon the judgment of this Court in the case of Yogeshwar Prasad Vs. National Institute of Education Planning and Admn. reported in 2010 (14) SCC 323 wherein this court held in the facts of that case the grant of higher pay scales should not be recovered unless it was a case of misrepresentation or fraud. This judgment in turn referred to an earlier judgment in Sahib Ram Vs. State of Haryana reported in 1995 Supp. (1) SCC 18. In that matter the appellant was held to be not entitled to a salary in the revised scale. However, since the higher pay scale was given to him due to wrong construction of the relevant order by the authority concerned and not on account of any misrepresentation by the employee, the amount paid till the date of order was directed not to be recovered. When this appeal was admitted, stay as prayed by the appellant was declined, but it was made clear that the payment made by the appellant pursuant to the judgment of the High Court will be subject to the decision of appeal. Mr. Mariarputham, learned counsel for the appellant submitted that the appeal is canvassed basically in view of the principle involved. In view thereof, although the appeal is allowed, the additional pension paid to the first respondent as the President of the State Commission till the end of February 2012, will not be recovered from him. However, from March, 2012 onwards the first respondent shall be entitled to receive pension only for the service rendered by him as a High Court Judge.

Accountant General, Madhya Pradesh v. S.K. Dubey [Bench Strength 2], Civil Appeal No. 5322/2005 (29/02/2012), 2012(4) SCC 578: 2012(3) JT 210: 2012(3) SCALE 124: 2012 LIC 1671: 2012(3) SLR 752 [R.M. Lodha, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 12 — Compensation — Against possession of vehicle by Financer — Higher purchase agreement — All three fora concurrently held financier liable for paying compensation to the hirer for taking possession of the vehicle against default payment of installments — Challenged — Held, all three fora committed error — This Court in series of judgments held that owner in hire purchase is financer and hirer is only bailee/trustee of the vehicle — Prima facie we are of the view that the courts below have committed an error in granting compensation to the present petitioner and which appears to be non-sustainable in law — Accordingly issue notice on sustainability of impugned judgment — Meantime petitioner is restrained from any recovery — Hire Purchase Act, 1972 — Sections 18 to 20.

(Para 2 to 4)

Suryapal Singh v. Siddha Vinayak Motors [Bench Strength 2], SLP(C) No. 5302/2012 (21/02/2012), 2012(12) SCC 355 [B.S. Chauhan, J.: Jagdish Singh Khehar, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g), 14 & 17 — Medical negligence — Reduction of compensation since deceased was home maker — Justification — Award of compensation by State Commission — Reduction by National Commission — Justification — Surgery for removal of fibroid from uterus of patient — The MoPS were left in her abdominal cavity — Later on, she died due to scepticemia inside her abdomen — Medical negligence established — Award of Rs. 12,34,414.50 by State Commission — National Commission reduced it to Rs. 8 lacs holding that deceased was merely a home maker and not generating any income by any occupation for gain — Held, the mere fact that deceased was a home maker was not sufficient to deny adequate compensation to appellant in lieu of service rendered by her — Reduction in amount of compensation by National Commission unjustified and to be set aside and that of State commission is restored — Appeal allowed.

Arun Kumar Agrawal v. National Insurance Company Limited, 2010(9) SCC 218, Relied on.

(Paras 11 to 13)

Jaswinder Singh v. Santokh Nursing Home [Bench Strength 2], C.A. Nos. 699-701/2012 (Arising from SLP (C) No. 15638-15640/2010) (16/01/2012), 2012(12) SCC 550: 2012(4) SCALE 170 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(d), 3 & 13 — Complaint — Agriculture — Supply of defective seeds — Allowability of compensation for, justification — Purchase of seeds by respondents who are engaged in agriculture from the appellant, a government company whose function is to arrange for quality seeds — Complaint by respondents alleging that despite taking proper steps, they did not get the yield on account of defective seeds supplied by the appellant — Consumer Forum allowed the complaint — State Commission as well as National Commission upheld the order of District Forum — Held, fora below are justified in allowing the complaint of respondents — Appellants neither produced samples of seeds sold/supplied to respondents nor offered to get it tested in appropriate laboratory — On other hand, report of agricultural experts appointed as commissioners by District Forum reveals that crops failed because of defective seeds — Procedure adopted by the District Forum in no way contrary to Section 13(1)(c) — Appellant cannot seek annulment of well reasoned orders passed by the District Forum as well as State and National Commissions — Impugned order warrants no interference — Appeal dismissed — Seeds Act, 1966 — Sections 6, 7, 9, 10, 11, 14(1)(a)(b), 16, 19, 20 & 21.

Maharashtra Hybrid Seeds Co. Ltd. v. Alavalapati Chandra Reddy, (1998) 6 SCC 738, Relied on.

HELD: We shall now deal with the question whether the District Forum committed a jurisdictional error by awarding compensation to the respondents without complying with the procedure prescribed under Section 13(1)(c). A reading of the plain language of that section shows that the District Forum can call upon the complainant to provide a sample of goods if it is satisfied that the defect in the goods cannot be determined without proper analysis or test. After the sample is obtained, the same is required to be sent to an appropriate laboratory for analysis or test for the purpose of finding out whether the goods suffer from any defect as alleged in the complaint or from any other defect. In some of these cases, the District Forums had appointed agricultural experts as Court Commissioners and directed them to inspect the fields of the respondents and submit report about the status of the crops. In one or two cases the Court appointed Advocate Commissioner with liberty to him to avail the services of agricultural experts for ascertaining the true status of the crops. The reports of the agricultural experts produced before the District Forum unmistakably revealed that the crops had failed because of defective seeds/foundation seeds. After examining the reports the District Forums felt satisfied that the seeds were defective and this is the reason why the complainants were not called upon to provide samples of the seeds for getting the same analysed/tested in an appropriate laboratory. In our view, the procedure adopted by the District Forum was in no way contrary to Section 13(1)(c) of the Consumer Act and the appellant cannot seek annulment of well-reasoned orders passed by three Consumer Forums on the specious ground that the procedure prescribed under Section 13(1)(c) of the Consumer Act had not been followed.

The issue deserves to be considered from another angle. Majority of the farmers in the country remain illiterate throughout their life because they do not have access to the system of education. They have no idea about the Seeds Act and the Rules framed thereunder and other legislations, like, Protection of Plant Varieties and Farmers’ Rights Act, 2011. They mainly rely on the information supplied by the Agricultural Department and Government agencies, like the appellant. Ordinarily, nobody would tell a farmer that after purchasing the seeds for sowing, he should retain a sample thereof so that in the event of loss of crop or less yield on account of defect in the seeds, he may claim compensation from the seller/supplier. In the normal course, a farmer would use the entire quantity of seeds purchased by him for the purpose of sowing and by the time he discovers that the crop has failed because the seeds purchased by him were defective nothing remains with him which could be tested in a laboratory. In some of the cases, the respondents had categorically stated that they had sown the entire quantity of seeds purchased from the appellant. Therefore, it is naove to blame the District Forum for not having called upon the respondents to provide the samples of seeds and send them for analysis or test in the laboratory.

National Seeds Corporation Ltd. v. M. Madhusudhan Reddy [Bench Strength 2], Civil Appeal No. 7543/2004 (16/01/2012), 2012 AIR(SC) 1160: 2012(2) SCC 506: 2012(1) JT 330: 2012(1) SCALE 367: 2012(2) SLT 51 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(d), 3 & 13 — Complaint — Alternative remedy of arbitration — Maintainability of — Complaint by farmers against supply of defective seeds — Respondents were selected by appellant for growing of seeds on its behalf — Foundation seeds were supplied by appellant to respondents at a price with assurance that crop will be purchased by them — Agreement contains arbitration clause — Filing of complaint before Consumer Forum without exhausting remedy of arbitration — Maintainability of complaint — Remedy of arbitration is not the only remedy available to a grower — Respondents can either seek reference to arbitrator or file complaint — Remedy available to respondents in Act is in addition to and not in derogation of provisions of any other law for time being in force — Complaint maintainable — Arbitration and Conciliation Act, 1996 — Sections 5 & 8.

Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243, Fair Air Engineers (P) Ltd. v. N. K. Modi, (1996) 6 SCC 385, Skypay Couriers Limited v. Tata Chemicals Limited, (2000) 5 SCC 294, State of Karnataka v. Vishwabharathi House Building Cooperative Society, (2003) 2 SCC 412, CCI Chambers Cooperative Housing Society Limited v. Development Credit Bank Limited, (2003) 7 SCC 233, Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha, (2004) 1 SCC 305, H.N. Shankara Shastry v. Assistant Director of Agriculture, Karnataka, (2004) 6 SCC 230, Trans Mediterranean Airways v. Universal Exports and another, (2011) 10 SCC 316, Relied on.

HELD: Grievance of a farmer/grower who has suffered financially due to loss or failure of crop on account of use of defective seeds sold/supplied by the appellant or by an authorised person is not remedied by prosecuting the seller/supplier of the seeds. Even if such person is found guilty and sentenced to imprisonment, the aggrieved farmer/grower does not get anything. Therefore, the so-called remedy available to an aggrieved farmer/grower to lodge a complaint with the concerned Seed Inspector for prosecution of the seller/supplier of the seed cannot but be treated as illusory and he cannot be denied relief under the Consumer Act on the ground of availability of an alternative remedy.

The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.

National Seeds Corporation Ltd. v. M. Madhusudhan Reddy [Bench Strength 2], Civil Appeal No. 7543/2004 (16/01/2012), 2012 AIR(SC) 1160: 2012(2) SCC 506: 2012(1) JT 330: 2012(1) SCALE 367: 2012(2) SLT 51 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Seeds Act, 1966 — Sections 6, 7, 9, 10, 11, 14(1)(a), (b), 16, 19, 20 & 21 — Supply of defective seeds — Compensation claim — Complaint before Consumer Forum, maintainability — Respondents who are farmers and engaged in agriculture/seed production, purchased seeds from appellant, a Government Company whose function is to arrange for quality seeds — Respondents filed complaints before Consumer Forum alleging that despite taking proper steps for cultivation, they did not get expected yield due to defective seeds, hence claimed compensation — Maintainability of consumer complaint — Seed Act, though a special legislation but totally silent on the issue of payment of compensation for loss of crop due to use of defective seeds supplied by the appellant — No adjudicatory mechanism is provided in the Act for compensation — Nothing in the Seeds Act indicating that provisions of Consumer Act are not available to farmers — Any attempt to exclude farmers from the ambit of Consumer Act will make it vulnerable to an attack of unconstitutionality on the ground of discrimination — Consumer Complaint is maintainable — Consumer Protection Act, 1986 — Sections 2(d), 3 & 13.

HELD: Though, the Seeds Act is a special legislation enacted for ensuring that there is no compromise with the quality of seeds sold to the farmers and others and provisions have been made for imposition of substantive punishment on a person found guilty of violating the provisions relating the quality of the seeds, the legislature has not put in place any adjudicatory mechanism for compensating the farmers/growers of seeds and other similarly situated persons who may suffer loss of crop or who may get insufficient yield due to use of defective seeds sold/supplied by the appellant or any other authorised person. No one can dispute that the agriculturists and horticulturists are the largest consumers of seeds. They suffer loss of crop due to various reasons, one of which is the use of defective/substandard seeds. The Seeds Act is totally silent on the issue of payment of compensation for the loss of crop on account of use of defective seeds supplied by the appellant and others who may obtain certificate under Section 9 of the Seeds Act. A farmer who may suffer loss of crop due to defective seeds can approach the Seed Inspector and make a request for prosecution of the person from whom he purchased the seeds. If found guilty, such person can be imprisoned, but this cannot redeem the loss suffered by the farmer.

In the context of farmers/growers and other consumer of seeds, the Seeds Act is a special legislation insofar as the provisions contained therein ensure that those engaged in agriculture and horticulture get quality seeds and any person who violates the provisions of the Act and/or the Rules is brought before the law and punished. However, there is no provision in that Act and the Rules framed thereunder for compensating the farmers etc. who may suffer adversely due to loss of crop or deficient yield on account of defective seeds supplied by a person authorised to sell the seeds. That apart, there is nothing in the Seeds Act and the Rules which may give an indication that the provisions of the Consumer Act are not available to the farmers who are otherwise covered by the wide definition of `consumer’ under Section 2(d) of the Consumer Act. As a matter of fact, any attempt to exclude the farmers from the ambit of the Consumer Act by implication will make that Act vulnerable to an attack of unconstitutionality on the ground of discrimination and there is no reason why the provisions of the Consumer Act should be so interpreted.

National Seeds Corporation Ltd. v. M. Madhusudhan Reddy [Bench Strength 2], Civil Appeal No. 7543/2004 (16/01/2012), 2012 AIR(SC) 1160: 2012(2) SCC 506: 2012(1) JT 330: 2012(1) SCALE 367: 2012(2) SLT 51 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 226 — Writ — Against order passed by State Consumer Disputes Redressal Commission — Jurisdiction for — Availability of alternate remedy — Consumer complaint by appellant against respondents for exemplary damages to the tune of Rs. 34,50,000/- for harassment caused on account of unsolicited calls received on her mobile phone from various banks/financial institutions — State commission imposed penalty — Aggrieved by the said order, respondents filed a writ — Directions of State Commission set aside by High Court — Held, High Court had no jurisdiction to entertain the writ petition — High Court erred in declaring the directions of State Commission as without jurisdiction, that too by overlooking the availability of statutory remedy of appeal — High Court should not have entertained the writ — Impugned order of High Court set aside — Appeal allowed — Consumer Protection Act, 1986 — Sections 11, 17, 19 & 21.

HELD: The 1986 Act was enacted for better protection of the interests of consumers by making provision for the establishment of consumer councils and other authorities for the settlement of consumer disputes. The object and purpose of enacting the 1986 Act is to provide for simple, inexpensive and speedy remedy to the consumers who have grievance against defective goods and deficient services. This benevolent piece of legislation intended to protect a large body of consumers from exploitation. Prior to the 1986 Act, consumers were required to approach the Civil Court for securing justice for the wrong done to them and it is known fact that decision of the litigation instituted in the Civil Court could take several years. Under the 1986 Act, the consumers are provided with an alternative, efficacious and speedy remedy before consumer forums at district, state and national level.

We also find that the High Court has taken cognizance of the statement made on behalf of the counsel for the petitioners that their clients would challenge Clause (iii) of para 38 of the State Commission’s order by filing an appeal under Section 19 of the Act and the fact that one of the aggrieved parties, namely, American Express Bank Limited has already filed an appeal questioning paragraph 38(iii) of the order of the State commission. After having noticed that some of the petitioners were inclined to avail the remedy of appeal against the particular portion of the order passed by the State Commission. After having noticed that some of the petitioners were inclined to avail the remedy of appeal against the particular portion of the order passed by the State Commission, the High Court should not have entertained the writ petition filed under Article 226 of the Constitution and the miscellaneous petitions filed under Article 227 of the Constitution and directed them to avail remedy of appeal under Section 19 of the 1986 Act.

The appeal is accordingly allowed and the impugned order is set aside.

Nivedita Sharma v. Cellular Operators Assn. of India [Bench Strength 2], C.A. No. 10706/2011 (Arising out of SLP (C) No. 17213/2010) (07/12/2011), 2011(14) SCC 337: 2011(13) SCALE 584 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 23 — Remand of matter to lowest fora — Damage to Monoblock, Pumps in Transit — Liability to pay price of damaged pumps — Entitlement of transporter to receive the damaged pumps — Held, as the District Forum directed the appellant-transporter to pay a particular sum which covered the price of damaged pumps, the appellant was entitled to return of damaged pumps from respondent — Matter remitted to District Forum with direction to issue notice to parties and after taking evidence, if necessary, order the return of damaged pumps to appellant — Appeal allowed.

(Paras 8 & 9)

Nagpur Golden Transport Company v. Nath Traders [Bench Strength 2], Civil Appeal No. 3546/2006 (07/12/2011), 2012 AIR(SC) 357: 2012(1) SCC 555: 2011(14) JT 27: 2011(13) SCALE 356: 2012(1) Supreme 317: 2011(9) SLT 218 [P. Sathasivam, J.: A.K. Patnaik, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2, 14 & 21 — Hire purchase agreement — Recovery of vehicles by use of force — Recovery process has to be in accordance with due process of law and not by use of force — View taken in ICICI Bank’s case reiterated — Hire purchase agreement — Default in payment of loan –One time settlement for Rs. 60,000 was also not honoured — Seizure and sale of vehicle — Sale proceeds of Rs. 70,000/- were adjusted towards loan amount and demand made for payment of balance — Complaint filed alleging deficiency in services and claim for damages — Awarding of Rs. 1,50,000/- to respondent by way of damages — State commission affirmed the order and further granted an amount of Rs. 50,000/- towards punitive damages — On revision national commission set aside the granting of punitive damages — Since appellant has already accepted the decision and paid amounts as directed — No further relief be granted to appellant.

ICICI Bank Ltd. vs. Prakash Kaur, 2007(2) SCC 711, Relied on.

(Paras 21, 22, 23 & 24)

Citicorp. Maruti Finance Ltd. v. S. Vijayalaxmi [Bench Strength 3], Civil Appeal No. 9711/2011 (Arising out of SLP (C) No. 19314/2007) (14/11/2011), 2011(5) SCV(Civil) 578: 2012 AIR(SC) 509: 2012(1) SCC 1: 2011(13) JT 382: 2011(12) SCALE 537: 2011(8) SLT 651: 2012(1) JCC 613 [Altamas Kabir, J.: Cyriac Joseph, J.: Surinder Singh Nijjar, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 12 — Housing — Allotment — Encroachment — Deficiency in service — Allotment of a plot admeasuring 335.50 sq. mtrs. to `CJ’ — Sale of plot by `CJ’ — Subsequent transferees, after 1-1/2 years of sale, filed a complaint in consumer Forum against HUDA alleging deficiency in service as actual area of plot is less than 335.50 sq. mtrs. and plot is subject to encroachment — Direction by consumer forum for allotment of alternate plot — Possession of plot was delivered to original allottee without any encumbrance — Plot subjected to encroachment as original allottee failed to protect the plot — Appellant cannot be blamed for encroachment, if any, made after delivery of possession to original allottee — No provision casting liability on HUDA for redelivery of possession to transfrees — Impugned order directing for allotment of alternative plot, unsustainable — Haryana Urban Development Authority Act, 1977 — Haryana Urban Development (Disposal of Land and Buildings) Regulations, 1978.

HELD: In our view, the finding recorded by the District Forum that there was deficiency in service on the appellant’s part is ex facie erroneous and the Sate Commission and the National Commission committed serious error by confirming the direction given by the District Forum for allotment of alternative plot to the respondents. Unfortunately, none of the consumer forums adverted to the fact that possession of the plot was delivered to the original allottee Shri Champat Jain on 27.2.1998 free from all encumbrances and there is no provision in the Haryana Urban Development Authority Act, 1977 and the Regulations for redelivery of possession to the transferees. One can easily visualise that after taking possession of the plot allotted to him, Shri Champat Jain did not take steps to protect the same and by taking advantage of his absence at the site, the people from the neighbouring areas may have opened their doors towards the plot or made some encroachment. However, the appellant cannot be blamed for the encroachment, if any, made after possession of the plot was delivered to the original allottee. The respondents must have executed the sale deed after inspecting the site. If there was any encroachment or the area of the plot was less than the one specified in the allotment/re-allotment letter, they would have immediately lodged a protest with the vendor. However, the fact of the matter is that the respondents did not raise any objection in this regard and by taking shelter of a manipulative report prepared by the Junior Engineer, they filed complaint and succeeded in convincing the District Forum to ordain allotment of an alternative plot.

In our considered opinion, the appellant cannot be held responsible for the encroachment, if any, made after possession of the plot had been delivered to Shri Champat Jain and neither Devender Yadav and Narender Yadav, who purchased the plot from Shri Champat Jain nor the respondents could possibly accuse the appellant of deficiency in service in the matter of allotment of plot on the ground that some people had made encroachment on it.

Haryana Urban Development Authority v. Viresh Sangwan [Bench Strength 2], C.A. No. 9691/2011 (Arising out of SLP (C) No. 33789/2010 (08/11/2011), 2012(1) SCV(Civil) 471: 2012 AIR(SC) 506: 2012(1) SCC 256: 2011(13) JT 287: 2011(12) SCALE 584: 2011(8) SLT 675 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 3 — Remedy under the Act — Scope of — Held, Consumer Protection Act was enacted to provide for better protection of the interests of consumers and for establishment of Consumer Councils and other authorities for the settlement of consumer disputes and for matters connected therewith — Provisions contained in the Act are in addition to and not in derogation of the provisions of any other law for the time being enforce — There is no provision in the Act which bars filing of a complaint by a consumer after availing other statutory remedies.

(Para 9)

Dhanbir Singh v. Haryana Urban Development Authority [Bench Strength 2], Civil Appeal No. 8639/2011 (14/10/2011), 2012(5) SLT 35 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 3, 2(d), 12, 17 & 21 — Remedy under the Act — After availing departmental remedies — Availability of — Aggrieved by delay in handing over possession of the plot and levy of extension fee by respondent, appellant preferred appeal which was dismissed by the Administrator, HUDA — Filed complaint under the Act — District Forum allowed the complaint and granted compensation — Appeal preferred by the respondent was allowed by the State Commission — Revision filed by the appellant was summarily dismissed by the National Commission with observation that once the appellant had availed the remedy of appeal, then instead of filing the complaint, he should have pursued the alternative remedy — Challenged — Held, impugned order as also the one passed by the State Commission are liable to be set aside because the appeal preferred by the appellant against the order of the District Forum was allowed by the State Commission under a misapprehension that once a consumer avails and exhausts the departmental remedies, he cannot invoke the jurisdiction of any Consumer Forum and the National Commission dismissed the revision by erroneously assuming that the appeal preferred by the appellant against the demand of extension fee was still pending before the Administrator, HUDA — In matters like allotment of plot/land by HUDA and other similar agencies/instrumentalities of the State, whose functioning is governed by the law enacted by State Legislature, departmental remedies are usually available to an aggrieved person — If such person falls within the definition of consumer under Section 2(d) of Act then he can directly file complaint under Sections 12, 17 and 21, as the case may be — He can also avail departmental remedy by filing appeal — Once the appeal is decided and the consumer is aggrieved by the decision of the appellate authority then he can challenge the action/decision of the initial authority as well as the appellate authority by filing a complaint — If the complaint is time barred, the consumer can seek condonation of delay by filing an application under Section 24(A)(2) — Appeal filed by the appellant against the demand of the extension fee had already been rejected by the Administrator, HUDA — Therefore, the National Commission was clearly in error in dismissing the revision only on the ground that the appeal filed by him was pending before the Administrator — The State Commission also committed an error by non suiting the appellant on the ground that he had already availed the remedy of appeal — The dismissal of departmental appeal could hardly be pressed into service by the respondent for facilitating rejection of the appellant’s complaint against the levy of excess extension fee and delayed delivery of possession of the plot and that too of a similar size — Consequently, appeal is allowed.

(Para 8, 9 & 10)

Dhanbir Singh v. Haryana Urban Development Authority [Bench Strength 2], Civil Appeal No. 8639/2011 (14/10/2011), 2012(5) SLT 35 [G.S. Singhvi, J.: Sudhansu Jyoti Mukhopadhaya, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g), 15 & 23 — Insurance claim — Repudiation by insurer — Liability of insurer to indemnify appellant for loss of cargo — Complaint before state commission allowed — Reversed by national commission — Justification — Held, long time gap of 3 months between date of information to appellant about discharge of cargo and intimation given by appellant to insurer was unreasonable and not to be construed as a prompt notice — Impugned order of National Commission holding insurer not liable to indemnify appellant is justified and does not suffer from an infirmity — Appeal dismissed.

(Paras 6 to 8)

Silversons v. Oriental Insurance Company Ltd. [Bench Strength 2], Civil Appeal No. 1451/2005 (15/09/2011), 2012(12) SCC 522: 2011(7) SLT 422 [G.S. Singhvi, J.: H.L. Dattu, J.] <<LAWPACK SUPREME COURT>>
Carriage by Air Act, 1972 — Sections 2, 3, 4, 4-A, 5, 6 & 7 — Complaint — Deficiency in service — Jurisdiction of national commission — Complaint against wrong delivery of consignment by an international carrier — Whether national commission under Consumer Protection Act has jurisdiction to entertain and decide a complaint filed by consignor claiming compensation for deficiency in service by carrier? Yes — Protection provided under CP Act, 1986 to consumers is in addition to remedies available under any other statute and does not extinguish remedies under another statute — At relevant point of time, value of subject matter was more than Rs. 20 lakhs, hence, national commission was conferred with the jurisdiction to entertain the complaint — No legal infirmity in National Commission exercising its jurisdiction as the same can be considered `court’ within territory of contracting for the purpose of Rule 29 — No merit in the appeal, hence, dismissed — Consumer Protection Act, 1986 — Sections 3, 12, 23 — Carriage by Air Rules, 1972 — Rules 14, 17, 18, 20, 29, 30 & 33.

HELD: The use of the word “Court” in Rule 29 of the Second Schedule of the CA Act has been borrowed from the Warsaw Convention. We are of the view that the word “Court” has not been used in the strict sense in the Convention as has come to be in our procedural law. The word “Court” has been employed to mean a body that adjudicates a dispute arising under the provisions of the CP Act. The CP Act gives the District Forums, State Forums and National Commission the power to decide disputes of consumers. The jurisdiction, the power and procedure of these Forums are all clearly enumerated by the CP Act. Though, these Forums decide matters after following a summary procedure, their main function is still to decide disputes, which is the main function and purpose of a Court. We are of the view that for the purpose of the CA Act and the Warsaw Convention, the Consumer Forums can fall within the meaning of the expression “Court”.

The consignor, through his agent, has stated that in the airway bill that is handed over to the appellant-carrier, in the consignee box, the name of BBSAE, Madrid is specifically mentioned. If, for any reason, the appellant-carrier was of the view that the name of the consignee is not forthcoming or if the particulars furnished were insufficient for effecting the delivery of the consignment, it was expected from the appellant-carrier to have made enquiries. In our view, at this belated stage, the appellant-carrier cannot shift the burden by contending that it was expected from the consignor and his agent to have furnished the correct and proper particulars of the consignee in the airway bill. The appellant is an air line carrier of high repute and they effect transportation of goods to various parts of the world including Spain and, therefore, it can safely be presumed that the carriers were fully aware of the consignee’s name, which was indicated in the consignee’s box and they should have notified the notified party immediately after the arrival of the consignment. Since, that has not been done, the National Commission was justified in holding that there is deficiency of service on the part of the carrier in not effecting the delivery of goods to the consignee.

We are in total agreement with the conclusion reached by the National Commission. Therefore, we do not see any merit in the contention canvassed by the learned counsel for the appellant-carrier.

We conclude that the National Commission has jurisdiction to decide the dispute between the parties and it is a Court and that there was deficiency in service by the appellant-carrier.

In view of the above discussion, we do not see any merit in this appeal.

Trans Mediterranean Airways v. Universal Exports [Bench Strength 2], Civil Appeal No. 1909/2004 (15/09/2011), 2012(1) SCV(Civil) 93: 2011(10) SCC 316: 2011(10) JT 624: 2011(10) SCALE 524: 2011(7) SLT 339 [G.S. Singhvi, J.: H.L. Dattu, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 21 & 23 — Rejection of claim — Lack of evidence to support claim, Justification for — Original petition filed by appellant dismissed primarily on ground that case sought to be made out by appellant, namely, robbery of the jewellery at gunpoint is not supported by the contents of FIR — Appeal before Supreme Court — Held, finding recorded by National Commission that repudiation of appellant’s claim by respondent Insurance Company was justified, does not suffer from any legal infirmity — Appeal dismissed

(Para 3)

Goel Jewellers v. National Insurance Company Limited [Bench Strength 2], Civil Appeal No. 7460/2011 (09/09/2011), 2011(14) SCC 606 [G.S. Singhvi, J.: H.L. Dattu, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2, 3 & 4 — Authorised agent — Right of appearance — Appearance of authorised agent before consumer Fora on behalf of the parties — Permissibility — The Act and the Rules have made specific provisions by which agents were permitted to plead and appear on behalf of parties before consumer for a — To interpret it differently would be contrary to legislative intent — View of High Court on permitting of the authorised agent to appear before consumer for a, justified — Advocates Act, 1961 — Sections 29, 32 & 33 — Maharashtra Consumer Protection Rules, 2000 — Rules 1, 6 & 9.

HELD: The agent has been defined both in the Consumer Protection Rules, 1987 and under the Maharashtra Consumer Protection Rules, 2000. The agents have been permitted to appear before the Consumer Forums. The appearance of authorized agents is not inconsistent with section 33 of the Advocates Act, 1961.

The legislature in its wisdom has granted permission to the authorized agents because most of the cases before the Consumer Forums are small cases of relatively poor people where legal intricacies are not involved and great legal skills are not required, which may be handled by the authorized agents.

The other reason is that a large number of litigants may not be able to afford heavy professional fees of trained advocates, therefore, authorized agents have been permitted.

It is the bounden duty and obligation of the Court to carefully discern the legislative intention and articulate the same. In the instant case we are not really called upon to discern legislative intention because there is specific rule defining the agents and the provisions of permitting them to appear before the Consumer Forums. The agents have been permitted to appear to accomplish the main object of the act of disposal of consumers’ complaints expeditiously with no costs or small costs.

In our considered view the High Court was fully justified in observing that the authorised agents do not practise law when they are permitted to appear before the District Forums and the State Commissions.

In the impugned judgment the High Court aptly observed that many statutes, such as, Sales Tax, Income Tax and Competition Act also permit non-advocates to represent the parties before the authorities and those non-advocates cannot be said to practise law. On the same analogy those non-advocates who appear before Consumer fora also cannot be said to practise law. We approve the view taken by the High Court in the impugned judgment.

The legislature has given an option to the parties before the Consumer Forums to either personally appear or be represented by an ‘authorized agent’ or by an advocate, then the court would not be justified in taking away that option or interpreting the statute differently.

The functioning, conduct and behaviour of authorized agents can always be regulated by the Consumer Forums. Advocates are entitled as of right to practise before Consumer Fora but this privilege cannot be claimed as a matter of right by anyone else.

When the legislature has permitted authorized agents to appear on behalf of the complainant, then the courts can’t compel the consumer to engage the services of an advocate.

Many statutes and Acts in India permit non-advocates to represent the parties before the authorities and forums.

In other jurisdictions also, non-advocates are permitted to appear before quasi-judicial fora or subordinate courts. In most of these jurisdictions, specific rules have been framed for the regulation of qualifications, conduct and ethical behaviour of the non-advocates appearing in these fora.

In most jurisdictions, the statutes or court rules impose some form of restrictions on appearances of non-advocate representatives in quasi-judicial fora or subordinate courts. Restrictions on non-advocates agents vary significantly in terms of their specificity, but most forums have rules granting them some discretion in admitting or refusing the appearance of a non-advocate representative.

In order to ensure smooth, consistent, uniform and unvarying functioning of the National Commission, the State Commissions and the District Forums, we deem it appropriate to direct the National Commission to frame comprehensive rules regarding appearances of the agents, representatives, registered organizations and/or non-advocates appearing before the National Commission, the State Commissions and the District Forums governing their qualifications, conduct and ethical behaviour of agents/non-advocates/representatives, registered organizations and/or agents appearing before the consumer forums.

The National Commission may consider following suggestions while framing rules

The Commission may consider non-advocates appearing without accreditation A party may appoint a non-advocate as its representative provided that the representative –

1) is appearing on an individual case basis

2) has a pre-existing relationship with the complainant (e.g., as a relative, neighbour, business associate or personal friend)

3) is not receiving any form of direct or indirect remuneration for appearing before the Forum and files a written declaration to that effect

4) demonstrates to the presiding officer of the Forum that he or she is competent to represent the party.

Accreditation Process

a) The National Commission may consider creating a process through which non-advocates may be accredited to practice as representatives before a Forum.

b) Non-advocates who are accredited through this process shall be allowed to appear before a Forum on a regular basis

c) The accreditation process may consist of –

1) an written examination that tests an applicant’s knowledge of relevant law and ability to make legal presentations and arguments

2) an inspection of the applicant’s educational and professional background

3) an inspection of the applicant’s criminal record

d) the National Commission may prescribe additional requirements for accreditation at its discretion provided that the additional requirements are not arbitrary and do not violate existing law or the Constitution.

Fees

a) A representative who wishes to receive a fee must file a written request before the Forum

b) The presiding officer will decide the amount of the fee, if any, a representative may charge or receive

c) When evaluating a representative’s request for a fee, the presiding officer may consider the following factors :

1) the extent and type of services the representative performed

2) the complexity of the case

3) the level of skill and competence required of the representative in giving the services

4) the amount of time the representative spent on the case; and

5) the ability of the party to pay the fee

d) If a party is seeking monetary damages, its representative may not seek more a fee of more than 20% of the damages

Code of Conduct for representatives

– The National Commission to create a code of conduct which would apply to non-advocates, registered organizations and agents appearing before a Forum.

Disciplinary Powers of a Forum

(a) The presiding officer of a Forum may be given specific power to discipline non-advocates, agents, authorized organizations and representatives for violating the code of conduct or other behaviour that is unfitting in a Forum

(b) In exercising its disciplinary authority, the presiding officer may –

1) revoke a representative’s privilege to appear before the instant case

2) suspend a representative’s privilege to appear before the Forum

3) ban a representative from appearing before the forum

4) impose a monetary fine on the representative

We direct the National Commission to frame

comprehensive Rules as expeditiously as possible, in any event, within three months from the date of communication of this order. The copy of this judgment be sent to the National Commission — .

C. Venkatachalam v. Ajitkumar C. Shah [Bench Strength 3], Civil Appeal No. 868/2003 (29/08/2011), 2011(5) SCV(Civil) 180: 2011(9) SCC 707: 2011(10) JT 207: 2011(9) SCALE 479: 2011(6) Supreme 33 [Dalveer Bhandari, J.: Mukundakam Sharma, J.: Anil R. Dave, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g), 14 & 23 — Life insurance claim — Denial pleading suppression of material fact relating to his illness — Complaint before District Forum allowed and upheld by State Forum — Reversed by National Commission in revision against — Justification — Held, no tangible evidence produced by respondent to prove suppression of material fact by deceased about his illness, hospitalization and treatment — Reversal of concurrent finding of District and State Forum by National Commission by cryptic order — Impugned order of National Commission therefore unsustainable and to be set aside — Appeal allowed.

(Paras 6 to 9)

P. Vankat Naidu v. Life Insurnce Corporation of India [Bench Strength 2], Civil Appeal No. 7437/2011 (26/08/2011), 2011(7) SLT 454 [G.S. Singhvi, J.: H.L. Dattu, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 12 & 23 — Insurance claim — Permanent blindness due to accident, a ground for — Repudiation of claim by insurer — Complaint before District Forum dismissed — Appeal against allowed by State Forum and same upheld by National Commission — Justification — Held, the National Commission independently examined the matter and agreed with the State Commission that the respondent had suffered blindness due to accident and he was entitled to the insurance amount — No infirmity in concurrent finding of State and National Commissions and same needs no interference — SLP to be dismissed.

(Paras 2 to 4)

Life Insurance Corporation of India v. Hira Lal [Bench Strength 2], Petition for Special Leave to Appeal (Civil) No. 28693/2009 (23/08/2011), 2011(14) SCC 445: 2011(7) SLT 474 [G.S. Singhvi, J.: H.L. Dattu, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 13(4), 17, 20 & 22 — Ex parte order, setting aside of — Power to recall/review — Complaint made before State Commission claiming compensation alleging deficiency in service — Dismissal of complaint for want of prosecution — Subsequent recall of dismissal order on application of complainant — Power of State Commission to recall its order, challenged — Neither District Forums nor State Commissions were given power to set aside ex-parte orders or power of review — Tribunals being creatures of statues derive their powers from express provisions of statute — Powers which have not been given expressly by the State cannot be exercised — State Commission has no power to recall — Such power is conferred only on National Commission — Impugned order set aside.

Jyotsana Arvind Kumar Shah & Others v. Bombay Hospital Trust, (1999) 4 SCC 325, Approved.

New India Assurance Co. Ltd. v. R. Srinivasan, (2000) 3 SCC 242, Overruled.

HELD: The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly.

In our considered opinion, the decision in Jyotsana’s case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained.

In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law.

There has been considerable delay in disposal of the complaint. Therefore, we direct the State Commission to dispose of the Complaint No.473 of 1999 [in Civil Appeal No.4307 of 2007] as expeditiously as possible and in any event within three months from the date of the communication of this order — .

Rajeev Hitendra Pathak v. Achyut Kashinath Karekar [Bench Strength 3], Civil Appeal No. 4307/2007 (19/08/2011), 2011(5) SCV(Civil) 1: 2011(9) SCC 541: 2011(9) JT 407: 2011(9) SCALE 287: 2011(8) Supreme 120: 2011(7) SLT 404 [Dalveer Bhandari, J.: Mukundakam Sharma, J.: Anil R. Dave, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 23 — Belated petitions in consumer matters — Effect of — Held, while deciding an application for condonation of delay, Court has to keep in mind that the special period of limitation has been prescribed under the Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras — Limitation Act, 1963 — Section 5 — Belated petitions in consumer matters — Effect of.

(Para 5)

Anshul Aggarwal v. New Okhla Industrial Development Authority [Bench Strength 2], SLP (C) …../2011 (CC No. 12439/2011) (09/08/2011), 2011(14) SCC 578 [G.S. Singhvi, J.: H.L. Dattu, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 136 — Delay in SLP — Unsubstantiated and unsatisfactory explanation for, Effect of — Delay of 233 days in filing of SLP — Explanation offered that within a fortnight of passing of impugned order, petitioner became aware of the same and instructed her counsel to prepare a draft of the case to be filed in this Court, but could not come to India due to unforeseen difficulties to leave Kuwait immediately as per need and demand of counsel — Held, petitioner visited India in between, but then too she could not contact counsel — Petitioner’s assertion that she could not do so because she was suffering from viral fever has not been substantiated by any document — Therefore, no valid ground much less justification for exercise of power to condone delay — Dismissed — Limitation Act, 1963 — Section 5 — Condonation of delay — Plea of suffering from viral fever, Absence of medical documents, Effect of — Consumer Protection Act, 1986 — Section 23 — Delay in appeal — Unsubstantiated explanation for, Effect of.

(Para 4)

Anshul Aggarwal v. New Okhla Industrial Development Authority [Bench Strength 2], SLP (C) …../2011 (CC No. 12439/2011) (09/08/2011), 2011(14) SCC 578 [G.S. Singhvi, J.: H.L. Dattu, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 13(4) — Complaint — Sovereign immunity — Applicability of — Booking of a consignment with appellant, a foreign Airlines — Delay in delivery of consignment — Deterioration of goods due to delay — Complaint was filed against appellant before State Consumer Commission — Preliminary objection raised as to maintainability of complaint — Appellant claims sovereign immunity — Whether proceedings before Consumer Forums are `suits’ and appellant is thereby entitled to sovereign immunity? No — Section 86 of CPC is inapplicable as special statutes exclude general laws — Appellant cannot claim sovereign immunity for commercial transactions undertaken by it in India — Carriage by Air Act, 1972 — Sections 2, 3 & 7 — Civil Procedure Code, 1908 — Section 86(2).

E.I.C.M. Exports Ltd. v. South Indian Corporation (Agencies) Ltd. and Another, 2009(10) SCALE 22, Overruled.

Patel Roadways Limited v. Birla Yamaha Limited, (2000) 4 SCC 91, Approved.

Economic Transport Organisation, Delhi v. Charan Spinning Mills Private Limited and Another, (2010) 4 SCC 114, Relied on.

HELD: Section 86 of the Code of Civil Procedure is inapplicable to the present case because the older and more general statute has been excluded by more recent special statute, namely, Consumer Protection Act, 1986 and the Carriage by Air Act, 1972. Ethiopian Airlines is not entitled to sovereign immunity in the suit at issue in the present case. Therefore, any other consent of the Central Government is not required to subject the appellant, Ethiopian Airlines, to a suit in an Indian Court.

It is settled principle of statutory interpretation that specific statutes that come later in time trump prior general statutes. Both the Consumer Protection Act, 1986 and the Carriage by Air Act, 1972, which came long after the Code of Civil Procedure, 1908, are more focused and specific statutes and therefore should be held to supersede Section 86 of the Code. This Court in Savita Garg (supra) has clearly laid down that the principle that in fora created by the Consumer Act, the provisions of the Code of Civil Procedure are applicable only to a limited extent, therefore, the provisions of the Code of Civil Procedure have not been made applicable to the proceedings of the National Consumer Forum.

On careful analysis of the American, English and Indian cases, it is abundantly clear that the appellant Ethiopian Airlines must be held accountable for the contractual and commercial activities and obligations that it undertakes in India.

It may be pertinent to mention that the Parliament has recognized this fact while passing the Consumer Protection Act, 1986 and the Carriage by Air Act, 1972. Section 86 was itself, a modification and restriction of the principle of foreign sovereign immunity and thus, by limiting Section 86’s applicability, the Parliament through these incorrect acts, further narrowed a party’s ability to successfully plead foreign sovereign immunity. In the modern era, where there is close interconnection between different countries as far as trade, commerce and business are concerned, the principle of sovereign immunity can no longer be absolute in the way that it much earlier was. Countries who participate in trade, commerce and business with different countries ought to be subjected to normal rules of the market. State owned entities would be able to operate with impunity, the rule of law would be degraded and international trade, commerce and business will come to a grinding halt. Therefore, we have no hesitation in coming to the conclusion that the appellant cannot claim sovereign immunity. The preliminary objection raised by the appellant before the court is devoid of any merit and must be rejected.

Ethiopian Airlines v. Ganesh Narain Saboo [Bench Strength 3], C.A. No. 7037/2004 (09/08/2011), 2011(4) SCV(Civil) 597: 2011 AIR(SC) 3495: 2011(8) SCC 539: 2011(9) JT 243: 2011(8) SCALE 549: 2011(7) SLT 371 [Dalveer Bhandari, J.: Mukundakam Sharma, J.: Anil R. Dave, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 2(1)(g) — Deficiency in postal service — Claim of interest on deposited amount — Entitlement to — Discontinuance of post office time deposit account — Refund of deposited amount without interest — Complaint before state commission claiming interest on deposited amount — Dismissal upto national commission — Appeal — Held, since the deposit in question relates to post office time deposit account, Rule 17 of 1981 Rules is squarely applicable — Said deposit against notification no. G&SR. 118(E), 119(E), 120(E) which amounted to contravention of post office Rules 1981 — No deficiency in service on part of respondent as scheme was not permissible and discontinued even prior to deposit — Appellant not entitled to any interest on deposited amount — Impugned order justified and needs no interference — Appeal to be dismissed — Post Office Saving Bank General Rules, 1981 — Rules 16 & 17.

HELD: It is the case of the respondents that the Central Government had issued a Notification being No. G & SR 118(E) 119(E) 120(E) as per which no Time Deposit shall be made or accepted on behalf of any institution with effect from 01.04.1995. It is not in dispute that the appellant-Temple had deposited a huge sum of money amounting to Rs.1,40,64,300/-with the Post Master from 05.05.1995 to 16.08.1995. The said deposit was for a period of five years under the Scheme. Though the 3rd Respondent had accepted the amount under the said Scheme and issued a receipt for the same, later it was found that the deposits made on and from 01.04.1995 were against the said Notification which amounted to contravention of the Post Office Savings Bank General Rules, 1981 (in short ‘the Rules’).

Since the deposits in the case on hand relate to Post Office Time Deposit Account, Rule 17 of the Rules is squarely applicable.

It is clear from the above communication that with effect from 01.04.1995 i.e. even prior to the deposits made by the appellant-Temple, investment by institutions under the Scheme was not permissible and in fact discontinued from that date. It is not in dispute that the appellant-Temple is also an institution administered and under the control of the Hindu Religious and Charitable Endowments Department of the State. Vide the above said communication, the Post Master, Palani informed the appellant to close all those accounts since the same was not permissible. The communication dated 01.12.1995 also shows that all such accounts should be closed and the amounts so deposited are to be refunded without interest. In our case, the deposit accounts have been caused to be closed and the amounts deposited have been returned to the depositors without interest. Though the appellant claimed interest and insisted for the same on the ground of deficiency in service on the part of the Post Master, Palani, in view of Rule 17, the respondents are justified in declining to pay interest for the deposited amount since the same was not permissible. In the light of Rule 17 of the Rules, as rightly concluded by the State and the National Commission, it cannot be held that there was deficiency in service on the part of the respondents, 3rd respondent in particular.

It is true that when the appellant deposited a huge amount with the 3rd Respondent from 05.05.1995 to 16.08.1995 under the Scheme for a period of five years, it was but proper on the part of the Post Master to have taken a note of the correct Scheme applicable to the deposit. It was also possible for the Post Master to have ascertained from the records, could have applied the correct Scheme and if the appellant, being an institution, was not eligible to avail the Scheme and advised them properly. Though Mr. S. Aravindh, learned counsel for the appellant requested this Court to direct the 3rd Respondent to pay some reasonable amount for his lapse, inasmuch as such direction would go contrary to the Rules and payment of interest is prohibited for such Scheme in terms of Rule 17, we are not inclined to accept the same. We are conscious of the fact that a substantial amount had been kept with the 3rd Respondent till 03.01.1996 when the said amount was refunded without interest. In the light of the letter dated 01.12.1995 and in view of Rule 17 of the Rules, failure to pay interest cannot be construed as a case of deficiency in service in terms of Section 2(1)(g) of the Consumer Protection Act, 1986. Both the State and the National Commission have concluded that the 3rd Respondent was ignorant of any Notification and because of this ignorance the appellant did not get any interest for the substantial amount. We agree with the factual finding arrived at by the State and the National Commission and in view of the circumstances discussed above, the respondents cannot be fastened for deficiency in service in terms of law or contract and the present appeal is liable to be dismissed

Arulmighu Dhandayudhapaniswamy Thirukoi v. Director General of Post Offices, Department of Posts [Bench Strength 2], Civil Appeal No. 4995/2006 (13/07/2011), 2012(4) SCV(Civil) 10: 2011 AIR(SC) 2604: 2011(13) SCC 220: 2011(8) JT 657: 2011(7) SCALE 466: 2011(5) Supreme 214 [P. Sathasivam, J.: A.K. Patnaik, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 23 — Appeal before Supreme Court — Question of fact raised for the first time — Permissibility of — Territorial jurisdiction of J&K State Commission to entertain the dispute raised before the court — Dispute regarding postal services — Plea that cause of action entirely arose in Delhi as parcel for onward transmission to Malaysia was booked at Delhi and no part of transaction took place within jurisdiction of Commission of Srinagar — Held, this is a question of fact and law requiring evidence and was never raised before High Court — Therefore the same is not permissible to be raised for the first time before this court — Appeal to be dismissed.

(Paras 1 to 3)

Superintendent, Foreign Post Office v. Indo Lhasa Curious [Bench Strength 2], Civil Appeal No. 6121/2001 (07/06/2011), 2011(5) SLT 2(1) [B.S. Chauhan, J.: Swatanter Kumar, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2, 14 & 21 — Insurance claim — Issuance of policy contrary to proposal of insured? — Rectification of — Justification — Husband of appellant submitted proposal for issue of New Jeevan Akshay-I policy and deposited premium of Rs. 26 lakhs — However, respondent issued New Jeevan Dhara-I Plan — After death of husband, appellant claimed for refund of balance amount — Whether insurer was justified in rectifying the mistake by issuing fresh policy under New Jeevan Akshay-1 plan after death of insured — Held, yes — However, respondent-LIC should not be allowed to take advantage of its mistake and deprive the nominee of deceased of the balance of Rs. 26 lakhs which he had deposited — Directions issued accordingly.

HELD: We have given serious thought to the entire matter. In our view, both the insurer and the insured do not appear to have acted with the due diligence. It is difficult to accept the assertion made on behalf of the appellant that her husband had signed the form, which was filled by the agent of the respondent, without going through the contents thereof. Rather, it can reasonably be presumed that he had done so with full knowledge of the nature and terms of New Jeevan Akhsay-1 policy. We also agree with Shri Kailash Vasdev, learned senior counsel for the respondent that on discovery of the patent mistake committed at the time of issue of policy Annexure 2, which was contrary to the proposal submitted by the deceased, the competent authority was justified in issuing New Jeevan Akshay Plan-1. However, keeping in view the peculiar facts of the case, we are inclined to accept the prayer made by learned counsel for the appellant that the respondent should not be allowed to take advantage of its mistake and deprive the nominee of the deceased of the balance of Rs.26 lakhs which he had deposited on 9.5.2003. In the result, the appeals are disposed of in the following terms:

(i) The impugned order passed by the National Commission is set aside.

(ii) The action of the respondent to cancel New Jeevan Dhara policy and to issue New Jeevan Akshay-1 policy is held to be justified.

(iii) It is declared that the appellant is entitled to get Rs.26,50,000/- from the respondent. This amount represents balance of the premium deposited by the insured and lump sum compensation.

(iv) The appellant shall encash the fixed deposit and pay the balance amount to the Senior Divisional Manager of the Life Insurance Corporation, Jaipur within a period of two months.

Usha Kumari Ranawat v. Senior Divisional Manager, LIC of India [Bench Strength 2], C.A. No. 4832/2011 (Arising out of SLP (C) No. 9485/2009) (12/05/2011), 2012(3) SCV(Civil) 281: 2011(13) SCC 196: 2011(6) SCALE 493 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 12 — Non-issuance of M.Sc. certificate by University — Deficiency in service thereby — Complaint for — Non-appearance by university to contest complaint — Complaint allowed directing university to issue certificate and to pay compensation of Rs. 50,000/- — Upheld upto National Commission — Justification — Held, respondent appointed as a teacher which was not possible without producing evidence of his having post graduate degree — Therefore, the appellant’s plea that the respondent had demanded duplicate provisional certificate appears to be plausible and the consumer foras committed serious error by ordering payment of compensation to the respondent by assuming that the appellant had not issued the provisional certificate in the first instance — Impugned order unsustainable and to be set aside — Appeal allowed.

(Paras 5 & 6)

Ranchi University v. Sneh Kumar [Bench Strength 2], Civil Appeal No(S). 3163/2011 (Arising out of SLP (C) No. 3374/2008) (08/04/2011), 2011 AIR(SC) 1824: 2011(4) SCALE 795: 2012(1) SLT 189 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 12 — Award of damages — Grant of interest thereon — Scope — Held, though the Act does not contain any provision for grant of interest but interest can still be awarded taking recourse to section 34 of CDC to do complete justice between the parties — Civil Procedure Code, 1908 — Section 34.

(Para 26)

Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. [Bench Strength 2], C.A. No. 2588/2011 (Arising out of SLP(C) No. 19246/2009 (18/03/2011), 2011(4) SCV(Civil) 57: 2011(11) SCC 269: 2011(3) JT 586: 2011(3) SCALE 654: 2011(4) SLT 303 [Dalveer Bhandari, J.: Deepak Verma, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 12 & 21(b) — Insurance claim — Damage of bus in accident covered by insurance policy — Award of damage of Rs. 4 lacs by District Forum — Reduced to Rs. 2,72,517/- by State Commission in appeal — Quashing of order of both forums by National Commission — Justification — Held, no jurisdictional error warranting National Commission to take a different view than what was taken by two forums — Revisional power invoked by National Commission in wrong manner and thus jurisdiction conferred on it u/s 21(b) has been transgressed — No infirmity in appointing driver by owner of bus — Impugned order of National Commission unsustainable and to be set aside — Respondent liable to pay the amount of Rs. 2,72,517/- awarded by State Commission as no further revision there against was preferred by appellant alongwith interest 9% p.a. from date of filing till payment — Appeal allowed.

HELD: In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent findings of two fora.

Obviously, it goes without saying that at the time of giving employment to Sirajul Haque, the owner of the bus must have examined the licence issued to him and after satisfaction thereof, he must have been given employment. Nothing more was required to have been done by the Appellant. After all, at the time of giving employment to a driver, owner is required to be satisfied with regard to correctness and genuineness of the licence he was holding. After taking the test, if the owner is satisfied with the driving skills of the driver then, obviously, he may be given an appointment.

In the light of the aforesaid discussion, we are of the considered opinion that the impugned order passed by National Commission cannot be sustained in law. It is necessary to point out that against the order of State Commission, whereby the amount of Rs. 2,72,517/-was awarded, no further Revision was preferred by the Appellant. Thus, in any case the compensation awarded to the Appellant cannot be enhanced beyond what has been pegged down by the State Commission.

The order of National Commission is set aside and quashed. We accordingly, hold that Respondent is liable to pay the aforesaid amount of Rs. 2,72,517/to the Appellant together with interest at the rate of 9% per annum, from the date of filing of the application till it is actually paid. Appeal thus, stands allowed to the aforesaid extent. Respondent to bear the cost of the litigation throughout — Counsels’ fee Rs. 10,000/-.

Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. [Bench Strength 2], C.A. No. 2588/2011 (Arising out of SLP(C) No. 19246/2009 (18/03/2011), 2011(4) SCV(Civil) 57: 2011(11) SCC 269: 2011(3) JT 586: 2011(3) SCALE 654: 2011(4) SLT 303 [Dalveer Bhandari, J.: Deepak Verma, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 21(b) — Revisional power of National Commission — Exercise of — Scope — Held, the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside.

(Para 23)

Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. [Bench Strength 2], C.A. No. 2588/2011 (Arising out of SLP(C) No. 19246/2009 (18/03/2011), 2011(4) SCV(Civil) 57: 2011(11) SCC 269: 2011(3) JT 586: 2011(3) SCALE 654: 2011(4) SLT 303 [Dalveer Bhandari, J.: Deepak Verma, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 12 & 21(b) — Insurance claim — Repudiation of — Plea of no valid driving licence held by person driving the vehicle damaged in accident — Justification — Issuance of duplicate licence by some RTO admitted by court witness who appeared with relevant record from RTO Office — Duplicate licence duly issued following normal procedure by licensing authority — In view of said admission it cannot be challenged that original licence was fake, forged document — Thus it is established that at relevant time, the driver was holding a valid driving licence to drive the bus — Plea unsustainable and to be rejected.

HELD: We have once again critically gone through the evidence produced by the parties, and the statements made by the authorized officer of the RTO and other material documents filed by the parties. In the light of the admission of the witness, who had appeared with the relevant records from the office of RTO, we have absolutely no doubt in our mind that at the relevant point of time Sirajul Haque was having a valid driving licence. The reasoning behind our opinion is explained hereunder.

No doubt, it is true that the original application of Sirajul Haque bearing No. 676/96 was missing in the Register of Driving Licences but on the strength of other available documents, he was issued a duplicate licence by the same RTO, a fact admitted by the Court witness. After having gone through the copy of the duplicate licence we are further reassured that the same was duly issued following normal procedure by the Licensing Authority.

In view of the aforesaid admission made by him, there remains no doubt that the said duplicate licence was issued by the said office in his favour after checking the previous credentials of the driver. Even if the original application was not available but since the duplicate licence was issued by the same licensing Authority, Murshidabad, it cannot be challenged that the original licence was fake, forged, manufactured or engineered document. This unequivocal admission made by the said witness of RTO fully establishes this fact.

The cumulative effect of the aforesaid facts would clearly establish that at the relevant point of time driver Sirajul Haque was holding a valid driving licence to drive the bus.

Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. [Bench Strength 2], C.A. No. 2588/2011 (Arising out of SLP(C) No. 19246/2009 (18/03/2011), 2011(4) SCV(Civil) 57: 2011(11) SCC 269: 2011(3) JT 586: 2011(3) SCALE 654: 2011(4) SLT 303 [Dalveer Bhandari, J.: Deepak Verma, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2 & 14 — Marine insurance claim — Repudiation of — Complaint claiming a particular amount — Allowed by National Commission directing appellant to pay a particular amount — Justification — Marine insurance policy in respect of a large bulk ore and oil carrier for purpose of scrapping got damaged — Plea of suppression of material fact taken for the first time in proceeding before national commission is an afterthought — Appellant unable to show any material in support of his submission — The finding and conclusion drawn by National Commission are based on proper appreciation and elaborate consideration of entire material available on record — No merit in appeal and same to be dismissed.

HELD: At all points of time, the contract was sought to be repudiated on the one and only ground that there was no total loss. In this connection, the National Commission examined the complete correspondence that has taken place between the parties prior to filing of the complaint and written statement before the National Commission and found that at no point of time the insurance company took any plea or stand that there was any suppression on the part of the complainant in not disclosing that one engine of the vessel was not functioning. The Commission referred to the evidence led by the appellant insurance Company in which it was specifically admitted that repudiation was only on the ground that the vessel had encountered neither total loss nor a constructive total loss. It is under those circumstances the Commission found that the issue has been raised by the insurance Company for the first time in the proceedings before it only as an afterthought.

We do not wish to refer to other issues raised by the insurance Company before the Commission which were dealt with since the only question that was argued before us in this appeal relates to nondisclosure of the material facts. The learned counsel for the appellant submitted that the respondent complainant suppressed the material fact that one engine of the vessel was not working and therefore, not entitled to any relief. We do not find any merit whatsoever in the submission made by the learned counsel for the appellant. The material available on record which has been taken into consideration by the National Commission clearly demonstrates that the respondent complainant never made any representation that the vessel had two functional engines. On the other hand, addendum No. 2 to MOA expressly speaks about the fact that starboard engine was not working. The MOA that was forwarded included both the addendums and in fact it was one of the reasons for demolishing the vessel. At any rate, as observed by the National Commission, at no point of time the insurance Company took this plea to repudiate the contract. This plea was raised for the first time in the written statement filed in the National Commission as an afterthought.

The learned counsel for the appellant did not show any material available on record in support of her submission. Nor the counsel could point out any material or evidence which has a bearing on the issue that had escaped the attention of the Commission. Thus it is not a case of non-consideration of any evidence available on record by the Commission. The findings and conclusions drawn by the National Commission are based on proper appreciation and elaborate consideration of the entire material available on record. The Commission did not commit any error in appreciating the evidence available on record. The contention urged before us in this appeal is accordingly rejected. No other contention was raised.

For the same reasons, we find no merit in the cross appeal preferred by the respondent complainant.

The appeals are accordingly dismissed.

New India Assurance Co. Ltd. v. Priya Blue Industries Pvt. Ltd. [Bench Strength 2], C.A. No. 3714/2005 with C.A. No. 2116/2006 (09/03/2011), 2011(2) SCV(Civil) 328: 2011(4) SCC 231: 2011(3) JT 452: 2011(3) SCALE 502: 2011(4) SLT 1: 2011(163) CompCas 42 [B. Sudershan Reddy, J.: Surinder Singh Nijjar, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2 & 14 — Delay in delivery of vehicle — Increase in excise duty prior to delivery — Liability to pay of — No evidence to show any deliberate intention on part of respondent-dealer to delay delivery of vehicle — In the proforma invoice also it has been indicated that price prevailing on date of billing would apply — Furthermore, in view of section 64-A(1)(a) of Sales of Good Act, it is the liability of petitioner-buyer to pay the extra price and not of liability of respondent-dealer — Petition unsustainable and to be dismissed — Sale of Goods Act, 1930 — Section 64-A(1)(a).

(Paras 10 to 13)

Ravinder Raj v. Competent Motors Co. Pvt. Ltd. [Bench Strength 2], Special Leave Petition (Civil) No(S). 10364/2006 (10/02/2011), 2011(2) SCV(Civil) 707: 2011 AIR(SC) 1061: 2011(11) SCC 547: 2011(2) JT 149: 2011(2) SCALE 446: 2011(2) Supreme 63: 2011(3) SLT 769: 2011(266) ELT 157 [Altamas Kabir, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 12 & 15 — Impleadment of third party in appeal — Right of third party for challenging to — Scope — Held, when a non-party is impleaded as a respondent in an appeal, he can either challenge the impleadment itself or challenge his impleadment, while challenging the final decision in the appeal — The fact that the impleaded non-party filed objections to the complaint during the pendency of the appeal, on the specific direction of the State Commission, will not deny his right to challenge the impleadment.

(Para 14)

Vinod Kumar Thareja v. Alpha Construction [Bench Strength 2], Civil Appeal No. 1493/2011 (Arising out of SLP (C) No. 7283/2010) (08/02/2011), 2012(5) SCV(Civil) 90: 2011 AIR(SC) 996: 2011(11) SCC 453: 2011(2) SCALE 630: 2011(4) SLT 7 [R.V. Raveendran, J.: A.K. Patnaik, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 12 & 15 — Appeal — Impleadment of appellant, a third party — Order in appeal making him liable — Justification — Held, as the complainant neither impleaded nor sought any relief against appellant, neither State Commission nor National Commission, could make him liable alongwith first respondent — Impugned order unsustainable and to be se aside — Appeal allowed.

(Paras 13 & 15)

Vinod Kumar Thareja v. Alpha Construction [Bench Strength 2], Civil Appeal No. 1493/2011 (Arising out of SLP (C) No. 7283/2010) (08/02/2011), 2012(5) SCV(Civil) 90: 2011 AIR(SC) 996: 2011(11) SCC 453: 2011(2) SCALE 630: 2011(4) SLT 7 [R.V. Raveendran, J.: A.K. Patnaik, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 12 & 15 — Service provider held liable to a complainant — Appeal against — Remedy if such service provider wants contribution from anyone else — Held, the issue in the appeal and the relief that can be granted in the appeal can be only qua the complainant and not qua some third party — If a service provider who has been made liable to a complainant wants contribution from anyone else, on the ground that such third party had also contributed to the deficiency in service, it is for the service provider to take independent action against such third party, in respect of the liability.

(Para 13)

Vinod Kumar Thareja v. Alpha Construction [Bench Strength 2], Civil Appeal No. 1493/2011 (Arising out of SLP (C) No. 7283/2010) (08/02/2011), 2012(5) SCV(Civil) 90: 2011 AIR(SC) 996: 2011(11) SCC 453: 2011(2) SCALE 630: 2011(4) SLT 7 [R.V. Raveendran, J.: A.K. Patnaik, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 12 & 15 — Appeal to pass on a part of liability to some third party — Permissibility of — Held, the scheme of the Act does not permit a service provider, who has been made liable to refund the amount paid towards price under the order of the District Forum, to file an appeal and pass on a part of the liability to some third party, on the ground that the contract between them enabled him to do so.

(Para 13)

Vinod Kumar Thareja v. Alpha Construction [Bench Strength 2], Civil Appeal No. 1493/2011 (Arising out of SLP (C) No. 7283/2010) (08/02/2011), 2012(5) SCV(Civil) 90: 2011 AIR(SC) 996: 2011(11) SCC 453: 2011(2) SCALE 630: 2011(4) SLT 7 [R.V. Raveendran, J.: A.K. Patnaik, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 12 — Deficiency in service of Bank — Complaint for — Allegation that bank official had withdrawn the amount from account of respondent fabricating the records — Allowed holding the bank liable to reimburse the amount withdrawn — Concurrent finding of three consumer fora in said respect — Admittedly bank has lodged FIR against its Branch Manager and some other officials and same is pending — No evidence to prove the withdrawal of amount without entries in pass books showing withdrawal — Impugned order justified and bank is vicariously liable for wrong doing of its officials — Petition to be dismissed.

HELD: In our opinion, the concurrent finding recorded by the three consumer foras on the issue of the petitioners’ liability to reimburse the respondent do not suffer from any legal infirmity. Admittedly, the bank has lodged first information report against its Branch Manager, Mr. Pawan Kumar and some other officials and the same is pending. It is also not in dispute that the petitioners did not produce any evidence to prove that even though there were no entries in the passbooks showing withdrawal of the amount deposited by the complainant in the savings bank accounts or by way of FDRs, he had, in fact, withdrawn the amount, as reflected in the ledgers maintained by the bank. Therefore, we do not find any valid ground much less justification to interfere with the impugned order. The petitioner is vicariously liable for the wrong doings of its officials/employees which resulted in monetary loss to the respondent and the consumer foras did not commit any error by entertaining and allowing the complaint filed by him and dismissing the appeals and revisions filed by the petitioners. The argument of the learned counsel that the complainants had made manipulations in the passbooks cannot be entertained because no evidence was produced by the bank to prove the factum of manipulations.

In the result the special leave petition is dismissed.

Haryana Gramin Bank v. Madan Lal [Bench Strength 2], SLP (C) No. 304/2011 (31/01/2011), 2011(2) SCALE 417 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 25(a) — Order of State Commission — Execution — Jurisdiction of civil court — Filing of execution petition in civil court for execution of State Commissions order for payment of interest to complainant — Dismissal of petition by civil court for want of jurisdiction — Order of Civil Court is under challenge — Once order of State Commission has attained finality, same has to be executed — Hyper-technicalities should not come in the way of executing the orders — Appeal allowed — Constitution of India — Article 142.

HELD: It is because of these hypertechnicalities that the judiciary in India is getting a bad name. All sorts of objections are raised to linger on the matter as much as possible. There is a first inning in which the dispute often comes up to this Court to secure a final order. Then, the second inning starts to execute the said order in which again all kinds of objections are raised to linger on the matter as much as possible and to avoid execution of the decree. Now the time has come when people of India are fed up and are not going to tolerate such delaying tactics to subvert the operation of the judicial orders.

In the circumstances and exercising our powers under Article 142 of the Constitution of India to do substantial justice between the parties, we allow this appeal, set aside the impugned judgment of the High Court dated 07th April, 2005 and the order of the Additional City Civil Judge, Bangalore dated 20th February, 2002.

H.K.K. Bail v. Cyma Exports Pvt. Ltd. [Bench Strength 2], C.A. No. 4319/2006 (19/01/2011), 2011(1) SCALE 597 [Markandey Katju, J.: Gyan Sudha Misra, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 2(1)(d)(ii) — Consumer — Definition — Purchase of goods for commercial purposes — Agreement between parties for developing certain computer software — That software was to take care of (1) financial accounting, (2) production, (3) marketing, (4) purchase, (5) stores/inventory, (6) fixed assets etc. etc. — Disputes started when payment of appellant not released and respondent started complaining about the working of various modules — Respondent filed consumer complaint against appellant on 26.6.2003 — State Commission dismissed the complaint accepting appellant’s preliminary objection that the respondent was not a consumer — Software in question amounted to sale of goods by the appellant to respondent for commercial purpose — It was nobody’s case that the goods bought and used by respondent and services availed by respondent were exclusively for the purpose of earning respondent’s livelihood by means of self-employment — Whether complaint filed by respondent was maintainable? — Held, no.

HELD: We have gone through the impugned judgment, wherein there is a clear cut finding that the software in question amounted to sale of goods by the appellant to the respondent for commercial purpose and as such the respondent would be excluded for being considered as a ‘consumer’ under Section 2(1)(d)(i) of the Act. However, the National Commission then proceeded to hold that there was a warranty period of one year in the year 2000 and as such since the complaint was filed on 1.8.2000, i.e. prior to the amendment of Section 2(1)(d)(ii) by the Amendment Act, 2002, a person hiring or availing of any services for a consideration was not excluded even though the services were availed for any commercial purpose. In that view, it proceeded to hold that if there was any deficiency in service during the warranty period, the complaint could be maintained before the consumer forum for the said purpose.

In view of the findings of the National Commission that the goods sold by the appellant to the respondent/complainant amounted to ‘goods’ and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view, it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15.3.2003 by way of the amendment by the same Amendment Act, as it is nobody’s case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent’s livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto.

Birla Technologies Ltd. v. Neutral Glass and Allied Industries Ltd. [Bench Strength 2], Civil Appeal No. 10650/2010 (15/12/2010), 2011(1) SCV(Civil) 736: 2011(1) SCC 525: 2010(13) JT 524: 2010(13) SCALE 360: 2010(8) Supreme 613: 2010(9) SLT 396 [V.S. Sirpurkar, J.: T.S. Thakur, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 3 & 14 — Manufacturing defect in purchased diesel vehicle — Complaint before district forum claiming replacement or refund of money paid — Allowed directing respondent to make refund as claimed — State Commission on appeal directed to replace the vehicle with a new vehicle or to refund a sum of Rs. 7,69,187/- — National Commission holding that complainant not able to prove any manufacturing defect, directed respondent to remove the defect, if any in presence of independent technical expert — Justification — Held, order passed by National Commission does not appear to be unreasonable — However, in addition to direction of National commission, it is directed that if the independent technical expert is of opinion that there are inherent manufacturing defects in vehicle, the petitioner will be entitled to refund of price of vehicle and relevant tax with interest and cost as directed by State Commission — SLP disposed of accordingly — Constitution of India — Article 136.

HELD: Having considered the various submissions made on behalf of respective parties, what emerges is the question as to whether the manufacturing company and by extension the dealer/agent was under any compulsion to replace the vehicle itself when the engine of the vehicle from which certain noises were allegedly emanating had been replaced. It has been explained that an engine operating on diesel makes a rattling noise which does not occur in petrol driven engines and that there was really no manufacturing defect in the vehicle as complained of by the purchaser.

In such circumstances, the order passed by the National Commission, impugned in these Special Leave Petitions, does not appear to be unreasonable. For whatever reason, except for a mere 800 kilometers the Petitioner has not used the vehicle after it was delivered and has, on the other hand, made several complaints in an attempt to prove that there were manufacturing defects in the vehicle. The National Commission has taken all these matters into consideration in giving the impugned directions regarding delivery of the vehicle to the Petitioner after having the same properly checked by an independent technical expert who would have to certify that the vehicle was free from any defect when it is delivered.

From the facts as disclosed, it appears that apart from the complaint relating to noise from the engine and the gear box, there was no other major defect which made the vehicle incapable of operation, particularly when the engine was replaced with a new one. However, in addition to the directions given by the National Commission, we direct that if the independent technical expert is of the opinion that there are inherent manufacturing defects in the vehicle, the petitioner will be entitled to refund of the price of the vehicle and the lifetime tax and EMI along with interest @ 12% per annum and costs, as directed by the State Commission.

In such circumstances, the Special Leave Petitions are disposed of with the above directions.

C.N. Anantharam v. Fiat India Ltd. [Bench Strength 2], Special Leave Petition (C) Nos. 21178-21180/2009 (24/11/2010), 2011(1) SCV(Civil) 493: 2011 AIR(SC) 523: 2011(1) SCC 460: 2011(1) JT 202: 2010(12) SCALE 359: 2010(8) Supreme 122: 2010(8) SLT 497 [Altamas Kabir, J.: Cyriac Joseph, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d) & 19 — Deficiency in service — Medical negligence — Remission of matter — Patient admitted in hospital of respondent with complaint of loose motions on 31.10.1994 — Glucose saline administered through the left foot of patient — Same resulted in swelling in toe of left foot and it turned black — Resultantly, patient referred to another doctor, namely “C”, who removed black coloured fluid and discharged the patient after giving him some medicines — However, the patient did not recover and in the morning of 5.11.1994, it was noticed that the left leg of the appellant had become totally black up to the knee — Thereupon, doctor “AB” examined the patient and suspected that he had developed gangrene in his left leg and he advised his admission in BM Hospital — Patient got operated in that hospital and his left leg amputated below the knee — In facts of the case, the State Commission allowed the complaint by holding that the respondent doctor was liable for deficiency in service and to pay compensation to the patient — National Commission did not advert to important aspects taken into consideration by the State Commission and allowed the appeal on the solitary ground that on his cross-examination, doctor “AB” had admitted that there could be ten to twelve other reasons for development of gangrene — Resultantly, impugned order passed by the National Commission set aside and matter remitted for fresh consideration.

HELD: A critical analysis of the order of the State Commission shows that it did not accept the respondent’s version that the appellant had been brought to his hospital in a serious condition and he was suffering from gastro-enteritis, dehydration acidosis and septicemia shock and mal-nutrition and anemia by observing that if that was so, there was no valid reason for the respondent to stop medication and withdraw glucose on 2.11.1994. The State Commission also took serious view of the respondent’s conduct in producing the case papers after a gap of 6 years from the date of filing the complaint and that too, after the appellant’s father and Dr. Ashwin Bhammar had been cross-examined. The State Commission then referred to the statement of Dr. Ashwin Bhamar and opined that in view of his statement, the printed material produced by the respondent cannot be relied for denying relief to the appellant. The State Commission concluded that there was deficiency in service on the part of the respondent and directed him to pay compensation to the appellant. The National Commission did not advert to these important aspects and allowed the appeal on the solitary ground that on his cross-examination, Dr. Ashwin Bhamar had admitted that there could be ten to twelve other reasons for development of gangrene.

The National Commission was duty bound to pay serious attention on the respondent’s failure to produce the case papers for 6 long years and called upon him to explain why the record pertaining to the treatment given to the appellant was held back from the State Commission till the complainant’s evidence was virtually over. The case papers/bed ticket maintained by the hospital of the respondent would have disclosed the line of treatment adopted by him. Why he did not produce those papers along with reply to the complaint or at least before commencement of the evidence of the appellant is inexplicable. By withholding those papers till the completion of the evidence of Dr. Bhamar, the respondent appears to have made an attempt to mislead the State Commission about the steps taken by him for treating the appellant. Equally intriguing was respondent’s failure to file affidavit of Dr. Chudasama to whom he claims to have taken the appellant for treatment. The respondent did try to fill in this lacuna by filing affidavit of Dr. Chudasama before the National Commission. The latter should have enquired as to why he had not filed such affidavit before the State Commission or examined him as a witness before the State Commission. These omissions on the part of the National Commission are extremely serious and have resulted in failure of justice.

For the reasons stated above, the appeal is allowed. The impugned order is set aside and the matter is remanded to the National Commission for fresh disposal of the appeal filed by the respondent.

Marghesh K. Parikh v. Mayur H. Mehta [Bench Strength 2], Civil Appeal No. 9352/2010 (Arising out of SLP (C) No. 19165/2009) (26/10/2010), 2011(1) SCV(Civil) 330: 2011 AIR(SC) 249: 2011(1) SCC 31: 2010(11) JT 453: 2010(11) SCALE 313: 2010(7) SLT 659 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(g) & 24-A(1) — Medical negligence — Cause of action — Relevant date in respect of — Each case needs to be decided on its own facts.

HELD: In cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctor’s part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative-complainant discovers the harm/injury caused due to such act or the date when the patient or his representative-complainant could have, by exercise of reasonable diligence discovered the act constituting negligence.

V.N. Shrikhande v. Anita Sena Fernandes [Bench Strength 2], Civil Appeal No. 8983/2010 (Arising out of SLP(C) No. 5479/2009) (20/10/2010), 2011(1) SCV(Civil) 166: 2011 AIR(SC) 212: 2011(1) SCC 53: 2010(11) JT 524: 2010(11) SCALE 138: 2010(7) SLT 648 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 24-A(1) — Term `cause of action’ — Meaning of — Held, since, the term `cause of action’ has not been defined in the Act, the same has to be interpreted keeping in view the context in which it has been used in Section 24A(1) and object of the legislation.

(Para 17)

V.N. Shrikhande v. Anita Sena Fernandes [Bench Strength 2], Civil Appeal No. 8983/2010 (Arising out of SLP(C) No. 5479/2009) (20/10/2010), 2011(1) SCV(Civil) 166: 2011 AIR(SC) 212: 2011(1) SCC 53: 2010(11) JT 524: 2010(11) SCALE 138: 2010(7) SLT 648 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 12(3), 18 & 22 — Complaint — Rejection at admission stage — Powers in this respect should not be exercised lightly — Considering object of the ACT, admission of the complaint filed under the Act should be the rule and dismissal thereof should be an exception.

HELD: The power conferred upon the consumer forums under Sections 12(3), 18 or 22 to reject the complaint at the stage of admission should not be exercised lightly because the Act has been enacted to provide for better protection of the interest of consumers and the speedy and inexpensive redressal mechanism enshrined therein is in addition to other remedies which may be available to the consumer under the ordinary law of land. Therefore, admission of the complaint filed under the Act should be the rule and dismissal thereof should be an exception.

V.N. Shrikhande v. Anita Sena Fernandes [Bench Strength 2], Civil Appeal No. 8983/2010 (Arising out of SLP(C) No. 5479/2009) (20/10/2010), 2011(1) SCV(Civil) 166: 2011 AIR(SC) 212: 2011(1) SCC 53: 2010(11) JT 524: 2010(11) SCALE 138: 2010(7) SLT 648 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 26 — Frivolous and vexatious complaint — Dismissal — Permissibility and necessity of recording reasons — Section 26 empowers the consumer forums to dismiss the complaint if it is found that same is frivolous and vexatious — Exercise of this power is hedged with the condition that the concerned consumer forum must record reasons for dismissal of the complaint.

(Para 14)

V.N. Shrikhande v. Anita Sena Fernandes [Bench Strength 2], Civil Appeal No. 8983/2010 (Arising out of SLP(C) No. 5479/2009) (20/10/2010), 2011(1) SCV(Civil) 166: 2011 AIR(SC) 212: 2011(1) SCC 53: 2010(11) JT 524: 2010(11) SCALE 138: 2010(7) SLT 648 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 24-A(1) & 24-A(2) — Complaint beyond limitation — Absence of application for condoning delay — Effect of — If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24-A(2), the consumer forums will have no option but to dismiss the same.

(Para 14)

V.N. Shrikhande v. Anita Sena Fernandes [Bench Strength 2], Civil Appeal No. 8983/2010 (Arising out of SLP(C) No. 5479/2009) (20/10/2010), 2011(1) SCV(Civil) 166: 2011 AIR(SC) 212: 2011(1) SCC 53: 2010(11) JT 524: 2010(11) SCALE 138: 2010(7) SLT 648 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 24-A(1) & 24-A(2) — Complaint beyond limitation — Rejection without hearing complainant — Held to be not permissible.

HELD: The consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1).

V.N. Shrikhande v. Anita Sena Fernandes [Bench Strength 2], Civil Appeal No. 8983/2010 (Arising out of SLP(C) No. 5479/2009) (20/10/2010), 2011(1) SCV(Civil) 166: 2011 AIR(SC) 212: 2011(1) SCC 53: 2010(11) JT 524: 2010(11) SCALE 138: 2010(7) SLT 648 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 24-A(1) — Complaint beyond limitation — Scope of provision — Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action.

(Para 14)

V.N. Shrikhande v. Anita Sena Fernandes [Bench Strength 2], Civil Appeal No. 8983/2010 (Arising out of SLP(C) No. 5479/2009) (20/10/2010), 2011(1) SCV(Civil) 166: 2011 AIR(SC) 212: 2011(1) SCC 53: 2010(11) JT 524: 2010(11) SCALE 138: 2010(7) SLT 648 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(d), (f), (g), (o), 12(3), 18 & 22 — Complaint — Rejection at the threshold — Permissibility — If the concerned forum is satisfied that the complaint does not disclose any grievance which can be redressed under the Act then it can reject the complaint at the threshold after recording reasons for doing so.

(Para 14)

V.N. Shrikhande v. Anita Sena Fernandes [Bench Strength 2], Civil Appeal No. 8983/2010 (Arising out of SLP(C) No. 5479/2009) (20/10/2010), 2011(1) SCV(Civil) 166: 2011 AIR(SC) 212: 2011(1) SCC 53: 2010(11) JT 524: 2010(11) SCALE 138: 2010(7) SLT 648 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Section 2(d), (f), (g) & (o) — Complaint — Disclosure of required ingredients — Effect of — If the concerned forum is prima facie satisfied that the complainant is a `consumer’ as defined in Section 2(d) and there is a `defect’, as defined in Section 2(f) in relation to any goods or there is `deficiency in service’ as defined in Section 2(g) read with Section 2(o) and the complaint has been filed within the prescribed period of limitation then it can direct that the complaint may be proceeded with.

(Para 14)

V.N. Shrikhande v. Anita Sena Fernandes [Bench Strength 2], Civil Appeal No. 8983/2010 (Arising out of SLP(C) No. 5479/2009) (20/10/2010), 2011(1) SCV(Civil) 166: 2011 AIR(SC) 212: 2011(1) SCC 53: 2010(11) JT 524: 2010(11) SCALE 138: 2010(7) SLT 648 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 12(3), 18 & 22 — Admissibility of complaint — Necessity of — Held, the District Forum, the State Commission and the National Commission are not bound to admit each and every complaint.

HELD: Under Section 12(3), the District Forum is empowered to decide the issue of admissibility of the complaint. The District Forum can either allow the complaint to be proceeded with, which implies that the complaint is admitted or reject the same. Similar power is vested with the State Commission under Section 18 and the National Commission under Section 22.

V.N. Shrikhande v. Anita Sena Fernandes [Bench Strength 2], Civil Appeal No. 8983/2010 (Arising out of SLP(C) No. 5479/2009) (20/10/2010), 2011(1) SCV(Civil) 166: 2011 AIR(SC) 212: 2011(1) SCC 53: 2010(11) JT 524: 2010(11) SCALE 138: 2010(7) SLT 648 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(g) — Deficiency in service — Medical negligence — Cause of action — Discovery rule — Object of — Discovery Rule was evolved by the Courts in United States because it was found that the claim lodged by the complainants in cases involving acts of medical negligence were getting defeated by strict adherence to the statutes of limitation.

(Para 19)

V.N. Shrikhande v. Anita Sena Fernandes [Bench Strength 2], Civil Appeal No. 8983/2010 (Arising out of SLP(C) No. 5479/2009) (20/10/2010), 2011(1) SCV(Civil) 166: 2011 AIR(SC) 212: 2011(1) SCC 53: 2010(11) JT 524: 2010(11) SCALE 138: 2010(7) SLT 648 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(g), 12(3), 17, 18, 22 & 24-A(1) — Medical negligence — Cause of action — Date of accrual and applicability of Discovery Rule — Appellant-doctor performed `Open Cholecystectomy’ on 26.11.1993 and discharged the respondent-patient on 30.11.1993 After the surgery, she was having pain in the abdomen off and on for which she took pain killers — But she neither contracted the appellant nor consulted any other doctor for 9 years despite being a nurse — In November 2002, she was operated upon in another hospital — Respondent-patient received Histopathology report from that hospital in November 2002 — Said report revealed that a piece of gauze was left by the appellant in her abdomen during her surgery in 1993 — Material revealed that the respondent, who was a government nurse not explained as to why she kept quite for about 9 years despite pain and agony — Long silence on her part would militate against the bona fides of the respondent’s claim for compensation — Discovery Rule cannot be invoked for recording a finding that the cause of action accrued to her in November, 2002 — Thus, the National Commission held to have wrongly held that cause of action lastly arose to the respondent on 25.10.2002 when the second surgery was performed at some other hospital and the complaint filed by her on 19.10.2004 was within limitation.

Morgan vs. Grace Hospital Inc., 149 W.Va. 783 144 S.E. 2d 156, Referred.

HELD: In the light of the above, it is to be seen whether the cause of action accrued to the respondent on 26.11.1993 i.e. the date on which the appellant performed `Open Cholecystectomy’ and the piece of gauze is said to have been left in her abdomen or in November, 2002 when she received Histopathology report from Lilavati Hospital. If the respondent had not suffered pain, restlessness or any other discomfort till September, 2002, it could reasonably be said that the cause of action accrued to her only on discovery of the pieces of gauze which were found embedded in the mass taken out of her abdomen as a result of surgery performed by Dr. P. Jagannath on 25.10.2002. In that case, the complaint filed by her on 19.10.2004 would have been within limitation. However, the factual matrix of the case tells a different story. In the complaint filed by her, the respondent categorically averred that after discharge from the appellant’s hospital, she suffered pain off and on and it was giving unrest to her at home and at work place; that her sufferings were endless and she had spent sleepless nights and mental strain for almost 9 years.

The respondent was not an ordinary lay person. She was an experienced Nurse and was employed in the Government Hospital. It was the respondent’s case before the State Commission and the National Commission that after the surgery in November, 1993, she was having pain in the abdomen off and on and, on that account, she was restless at home and also at work place and had to take leave including sick leave on various occasions. Therefore, it was reasonably expected of her to have contacted the appellant and apprised him about her pain and agony and sought his advice. That would have been the natural conduct of any other patient. If the respondent had got in touch with the appellant, he would have definitely suggested measures for relieving her from pain and restlessness. If the respondent was not to get relief by medication, the appellant may have suggested her to go for an X-ray or C.T. scan. In the event of discovery of gauze in the respondent’s abdomen, the appellant would have taken appropriate action for extracting the same without requiring the respondent to pay for it. If the measures suggested by the appellant were not to the satisfaction of the respondent and the pain in her abdomen persisted then she could have consulted any other doctor for relief. However, the fact of the matter is that after the surgery, the respondent never informed the appellant that she was having pain in the abdomen, was restless and having sleepless nights. At no point of time she contacted the appellant and sought his advice in the matter. Not only this, she did not consult any other doctor including those who were working in the Government Hospital where she was employed. Any person of ordinary prudence, who may have suffered pain and discomfort after surgery would have consulted the concerned surgeon or any other competent doctor and sought his advice but the respondent did nothing except taking some pain killers. If the respondent had been little diligent, she would have contacted the appellant and informed him about her sufferings. In that event, the appellant may have suggested appropriate medicines or advised her to go for X-ray or C.T. scan. If piece of gauze was found in the abdomen of the respondent, the appellant would have certainly taken remedial measures. The respondent has not explained as to why she kept quite for about 9 years despite pain and agony. The long silence on her part militates against the bona fides of the respondent’s claim for compensation and the Discovery Rule cannot be invoked for recording a finding that the cause of action accrued to her in November, 2002. The National Commission, in our considered view, was clearly wrong when it held that cause of action lastly arose to the respondent on 25.10.2002 when the second surgery was performed at Lilavati Hospital and the complaint filed by her on 19.10.2004 was within limitation.

V.N. Shrikhande v. Anita Sena Fernandes [Bench Strength 2], Civil Appeal No. 8983/2010 (Arising out of SLP(C) No. 5479/2009) (20/10/2010), 2011(1) SCV(Civil) 166: 2011 AIR(SC) 212: 2011(1) SCC 53: 2010(11) JT 524: 2010(11) SCALE 138: 2010(7) SLT 648 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2, 14 & 21 — Insurance — Repudiation of claim — Breach of special condition — Appellant engaged in the business of mustard oil and cakes took a `transit insurance policy’ covering all types of oils transported — Special condition in cover note requiring the appellant to declare each and every consignment immediately on its despatch — Railway wagon carrying appellant’s goods met with accident — Appellant’s claim was repudiated for failure to declare the consignment immediately on its dispatch — Whether repudiation of claim is justified? Yes — Terms of policy have to be construed strictly — Breach of special condition incorporated in cover note — Repudiation of claim is justified — Insurance — Claim, repudiation of.

HELD: Claim of the appellant must fail on the short ground that there was a breach of the afore-extracted special condition incorporated in the cover note. The special condition viz. each and every consignment must be declared before dispatch of goods is clear and admits of no ambiguity. The appellant was obliged to declare each and every consignment before it left the appellant’s factory premises and there is nothing in the policy to suggest that the insured had the liberty to pick and choose the dispatches which they wanted to declare to the insurer, not even at the instance of the consignee, who otherwise is a stranger to the contract between the insurer and the insured. We have no hesitation in rejecting the plea of the appellant that they were required to declare only those dispatches in which they had an insurable interest. It bears repetition that notwithstanding any request by the consignee, the policy of insurance postulated declaration in respect of each and every dispatch by the appellant. Therefore, the fact that purchasers did not want an insurance cover on certain dispatches had no bearing on the obligation of the appellant to declare each and every dispatch under the policy.

Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd. [Bench Strength 2], Civil Appeal No. 1375/2003 (08/10/2010), 2011(1) SCV(Civil) 397: 2010(10) SCC 567: 2010(11) JT 404: 2010(10) SCALE 640: 2010(7) Supreme 83: 2010(8) SLT 375 [D.K. Jain, J.: T.S. Thakur, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 226 — Writ of quo warranto — Appointment of members of State Consumer Disputes Redressal Commission — Quashing of — Respondent no. 1, the General Secretary of a Vayapara Samiti which has nothing to do with the appointment, sought for quashing of appointment of appellant as a member of State Commission — Whether appellant’s appointment is liable to be quashed? No — Name of appellant was recommended by entire body of selection committee consisting of chairman and two members — Respondent no. 1 has nothing to do with appointments — No material on record to show how the appointment of appellant adversely affects members of Samiti — High Court erred in entertaining and allowing the writ — Appeal allowed — Consumer Protection Act, 1986 — Section 16(1A).

HELD: Record of this case shows that just before start of the interview, a cover containing the names of candidates, which was sent from the office of the minister was handed over to the Chairman by Shri K.V. Thomas, who himself was a candidate. The Law Secretary and the Secretary, Food, Civil Supplies and Consumer Affairs Department, who were members of the Selection Committee appear to have been overawed by this development and this must have been the operative reason for their recommending the names of Smt. Valsala Sarangadharan and Shri K.V. Thomas. The Chairman did not toe their line and recommended inclusion of the name of the appellant and exclusion of that of Shri K.V. Thomas. Finally, the names of the appellant and Smt. Valsala Sarangadharan were recommended to the State Government. The minutes containing the recommendation were signed not only by the Chairman of the Selection Committee but also by the other two members.

While deciding Writ Appeal No. 968 of 2007, the Division Bench of the High Court was unduly influenced by the fact that the Chairman of the Selection Committee had initially recorded dissent and at the end of the minutes he separately appended a note suggesting that there was no difference of opinion between him and two members and concluded that name of the appellant was recommended only by the Chairman and not by the members. It appears that attention of the Division Bench was not drawn to the affidavit filed by Smt. Sheela Thomas in Writ Petition No.13058 of 2006 wherein she had categorically averred that a panel of three names including that of the appellant was recommended to the State Government and the difference of opinion was only on the candidature of Shri K.V. Thomas. We have no doubt that if the learned counsel appearing for the parties had properly assisted the Division Bench of the High Court, it may not have recorded the observation that the name of the appellant was recommended only by the Chairman and not by the members. That apart, be that as it may, we are convinced that the name of the appellant had been recommended by entire body of the Selection Committee i.e., the Chairman and the Members. If this was not so, either of the two Members would have, after coming to know of the minutes recorded by the Chairman, lodged a protest or sent communication to the State Government that they had not recommended the name of the appellant and that the minutes recorded by the Chairman did not reflect the actual recommendations. However, the fact of the matter is that neither of them lodged any objection nor sent any communication to the State Government. Therefore, the contrary observations made by the Division Bench in Writ Appeal No.968 of 2007 cannot but be termed as erroneous and the same could not have been relied upon for quashing the appointment of the appellant.

As mentioned above, respondent No.1 had nothing to do with the appointment of the members of the State Commission and who did not place any material on record to show as to how the appointment of the appellant would adversely affect the members of the Samiti. His position was nothing more than that of a meddlesome interloper/busy body and the Division Bench of the High Court gravely erred in entertaining the writ petition filed by him and converting the same into a writ of quo warranto.

S. Chandramohan Nair v. George Joseph [Bench Strength 2], Civil Appeal No. 8587/2010 (Arising out of S.L.P. (C) No. 33694/2009) (05/10/2010), 2010(12) SCC 687: 2010(11) JT 38: 2010(10) SCALE 507: 2010(7) SLT 227 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Kerala Consumer Protection Rules, 2005 — Rule 17(1) — State Commission — Appointment of members — Appointments to be made by State Government on recommendation of selection committee — State Government cannot arbitrarily ignore or reject the recommendations of selection committee — State Government though not bound to accept the recommendations by selection committee but reasons to be recorded in case of non-acceptance — Consumer Protection Act, 1986 — Section 16(1A).

(Para 16)

S. Chandramohan Nair v. George Joseph [Bench Strength 2], Civil Appeal No. 8587/2010 (Arising out of S.L.P. (C) No. 33694/2009) (05/10/2010), 2010(12) SCC 687: 2010(11) JT 38: 2010(10) SCALE 507: 2010(7) SLT 227 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(d), (g), (o) & 12 — Consumer — Service — Housing — Complaint in the matter of allotment of plot/flat by statutory authority — Maintainability — Chandigarh Allotment of Land to Cooperative House Building Societies Scheme, 1991 — Scheme provides for allotment of land to cooperative societies for construction of multi-storeyed buildings — Despite payment of earnest money along with interest @ 18% by members, no allotment of land was made — Members sought for refund of earnest money in full along with interest @ 18% — On refusal by appellant board to pay the full earnest money, members filed a complaint before consumer forum — Maintainability of complaint — If land had been allotted to the societies their members would have been actual and real beneficiaries — Hence members of society were certainly covered by the definition `consumer’ — Complaint maintainable.

Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243, Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 65, Relied on.

HELD: Even though no formal contract had been entered into between the Chandigarh Administration and the Board on the one hand and the members of the Societies on the other hand, the former exercised sufficient degree of control over the latter. By making applications for allotment of land, the Societies will be deemed to have hired or availed the services of the Chandigarh Administration and the Board in relation to housing construction as elucidated and explained in M.K. Gupta’s case and Balbir Singh’s case. If the scheme had been faithfully implemented and land had been allotted to the Societies, their members would have been the actual and real beneficiaries. Therefore, they were certainly covered by the definition of `consumer’ under Section 2(d)(ii), the second part of which includes any beneficiary of the services hired or availed for consideration which has been paid or promised or partly paid and partly promised. As a sequel to this, it must be held that the members of the Societies had every right to complain against illegal, arbitrary and unjustified forfeiture of 10% earnest money and non-refund of 18% interest and the District Consumer Forum did not commit any jurisdictional error by entertaining the complaints.

Chandigarh Housing Board v. Avtar Singh [Bench Strength 2], Civil Appeal No. 8203/2010 (Arising out of SLP (C) No. 21740/2007) (22/09/2010), 2011(1) SCV(Civil) 183: 2011 AIR(SC) 130: 2010(12) SCR 96: 2010(10) SCC 194: 2010(10) JT 360: 2010(10) SCALE 106: 2010(7) SLT 60 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(k), 12, 13, 14, 20, 21, 22 & 23 — Revision — Dismissal of — Non-speaking order — Appeal against the dismissal of revision petition by National Commission by way of cryptic order — No reasons were given for the dismissal — National Commission which has the trappings of civil court cannot dismiss the revision by refusing to give any reasons and by just affirming the order of State Commission — Impugned order set aside — Matter remanded.

Kranti Associates Pvt. Ltd. v. Masood Ahmed Khan [Bench Strength 2], Civil Appeal No. 7472/2010 (Arising out of SLP (Civil) No. 20428/2007) (08/09/2010), 2010(10) SCR 1070: 2010(9) SCC 496: 2010(9) JT 362: 2010(9) JT 590: 2010(9) SCALE 199: 2011(273) ELT 345 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(k), 12, 13, 14, 20, 21, 22 & 23 — National commission — Powers of — National commission is vested with same powers of civil court and is a high powered quasi-judicial forum for deciding lis between the parties.

(Para 15)

Kranti Associates Pvt. Ltd. v. Masood Ahmed Khan [Bench Strength 2], Civil Appeal No. 7472/2010 (Arising out of SLP (Civil) No. 20428/2007) (08/09/2010), 2010(10) SCR 1070: 2010(9) SCC 496: 2010(9) JT 362: 2010(9) JT 590: 2010(9) SCALE 199: 2011(273) ELT 345 [G.S. Singhvi, J.: A.K. Ganguly, J.] <<LAWPACK SUPREME COURT>>
Consumer Protection Act, 1986 — Sections 2(1)(d), 2(1)(o) & 14 — General Rules of Examination — Clause 17 r/w Notification dated 16.3.1998 — B.Ed. degree — Entitlement — As per General Rules, candidate pursuing a regular course for an examination in full subjects of University — Could not be simultaneously permitted to appear in another regular course of same University or of another University or Board — This prohibition, therefore, did not allow respondent-student to even apply for admission in B.Ed. correspondence course — Appellant-University was, therefore, absolutely right in withholding this privilege from respondent — Material further revealed that respondent while filling up of her form for B.Ed. course at first instance had not made any disclosure about her pursuit of post-graduate student in Political Science — Under garb of Notification, respondent managed to get her form registered with appellant — On discovery of discrepancy, appellant rightly chose to set it right — Further, respondent as a student was neither a consumer nor was appellant rendering any service — Claim of respondent to award B.Ed. degree could be said to be in nature of a relief praying for a direction to appellant to act contrary to its own rules — Resultantly, orders passed by District Forum and National Commission, directing appellant to issue B.Ed. degree to respondent held to be not sustainable.

HELD: Respondent cannot plead any estoppel either by conduct or against a Statute so as to gain any advantage of the fact that she was allowed to appear in the examination.

On the other hand, the conduct of the respondent was such that even though she had no statutory right or any vested right to pursue her B.Ed. course, the mistake on the part of the appellant to allow her to appear in the examination cannot be by any logic treated to be a conduct of the appellant to confer any such right on the respondent. The rules and regulations cannot be allowed to be defeated merely because the appellant erroneously allowed the respondent to appear in the B.Ed. examination. The records reveal that the respondent did not challenge the cancellation of her results in respect of 1995 examination. The said order attained finality. Respo

Entry Filed under: Consumer Laws


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