Interest has to be given on capital when the owner deprived of use of their money

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

FIRST APPEAL NO.646 of 2007

(From the Order dated 19.07.2007 in Complaint No.300/1998

of the State Consumer Disputes Redressal Commission, Delhi)

1.      Smt. Sheela Wanti

Through her legal representatives       

2.      Mrs. Sunita Nagpal,

W/0 Shri Satish Nagpal

R/o Flat No.19, Pocket F-25,

Sector-VII, Rohini,

Delhi                                                                       …..Appellant

Vs.

 

1.      State Bank of India,

Through its Chief Manager,

Saraswati Vihar,

Delhi-34

 

2.      The Regional Manager,

State Bank of India,

Parliament Street,

New Delhi

 

3.      The General Manager,

State Bank of India,

Parliament Street,

New Delhi

 

4.      The Chairman,

          State Bank of India,

          State Bank Bhawan,

          Madame Cama Road,

          Mumbai-400021                                                      …..Respondents

BEFORE: -

          HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

 HON’BLE MRS. VINEETA RAI, MEMBER

For the Appellants          :  Mr. Prem Kumar Chugh, Advocate

 

For the Respondents      :  Mr. S.K. Singh, Advocate

                                     

PRONOUNCED ON:           09.01.2013

 

O R D E R

ASHOK BHAN, J., PRESIDENT

Complainants/Appellants have filed this Appeal against the judgment and order dated July 19, 2007 passed by the State Consumer Disputes RedressalCommission, Delhi (in short, ‘the State Commission’) in Complaint No. 300/98 seeking interest on the amount of Rs.4,00,000/- awarded by the State Commission.

FACTS:-

            Briefly stated the facts of the case are that the Complainants/Appellants had a joint saving bank account No. 45656 with the Respondent No.1 Bank (hereinafter referred to as the ‘Respondent’). On 02.06.97, Appellant No.1 deposited with the Respondent Bank an Account Payee Demand Draft No.400564 (000892) dated 29.05.97 in the sum of Rs.4,00,000/- payable at Canara Bank, New Delhi [Branch code No.1745]. Presuming that the amount of the said demand draft would be credited in their account within 3-4 days, Appellants requested the Respondent Bank on 17.6.97 to issue a demand draft in favour of HUDA for a sum of Rs.1,10,000/-.  The said request was declined by the Respondent for want of sufficient balance. The demand draft was obtained only after depositing a sum of Rs.200/- in cash to make up the existing balance for issuance of the draft.  On verbal enquiry, Appellants were informed by the Respondent Bank that the demand draft of Rs.4,00,000/- deposited by them on 2^nd June, 1997 had been misplaced. Despite repeated requests made by the Appellants, Respondent failed to trace the demand draft or credit the amount of the demand draft to the their account. Complainants, being aggrieved, filed the complaint before the State Commission seeking a direction to the Respondent Bank to pay the sum of Rs.4,00,000/- being the value of the demand draft and compensation of Rs.1,00,000/- along with cost of litigation.

          Respondents, on being served, entered appearance and filed their written statement resisting the complaint, inter-alia, on the grounds; that as a matter of practice, all the cheques/drafts submitted by the parties for clearance with the Respondents were acknowledged by putting the rubber stamp on the counter foil of the pay-in-slip along with signature/initials of the staff/officer with whom such cheques/drafts had been tendered but the counter foil of the pay-in slip dated 2.6.97 produced by the Appellants did not bear any signature/initial of the any of the staff of the Respondent Bank; that it bore only the rubber stamp on which even the date of stamping was not legible; that in order to avoid any misuse of such tendered cheque/draft with the Respondents, the parties were required to put the account number at the back of such cheque/draft tendered by them for clearance with the Respondents;  that as a further safeguard, all thecheques/drafts tendered by the parties with the Respondent bank were “crossed” by putting “SBI Saraswati Vihar” endorsement on the face of it to avoid any misuse of such cheques/drafts and thereafter, the same were sent for clearing after making necessary entries in the records of the Respondents;  that no entry with regard to alleged tendering of the said draft on 02.06.1997 was found anywhere in the records of the Respondents.

The State Commission, after considering the material available on record and going through the evidence led by the parties, came to the conclusion that the pay-in slip with stamp of the bank manifestly indicated that the demand draft was received by the Respondent Bank and on the internal complaint of theManager, the entire staff of the bank was transferred.  It was further held that even an FIR was lodged by the Bank with the Police with regard to the loss of draft which was of a very heavy amount. Accordingly, State Commission allowed the complaint and directed the Respondent Bank to pay a sum of Rs.4,00,000/- to the Appellants along with costs of Rs.10,000/-.

State Commission observed thus:-

“8.     We have accorded careful consideration to the rival contentions of the parties.  In our view, none of the contentions raised by the OP has substance.  No person, in whose favour a draft has been issued and has been deposited with the bank where he has an account, would on his own open an account in another bank only with a view to get the amount of draft encashed, if he has already an account in a bank.  The pay-in-slip with stamp of the bank manifestly demonstrates that the draft was received by the OP Bank. So much so on the internal complaint of the Manager, the entire staff of bank was transferred.  Even FIR was lodged by the Bank with regard to the loss of the draft which was of a very heavy amount.  On the contrary, the OP failed to produce any material to show that the Canara Bank had opened an account of the complainant on the next date.  The documents on record show that it was opened in the name of somebody else and not the complainant.  May be there was some conspiracy or connivance with the staff of the OP in depriving the complainant of this amount and opening an account in some other bank in the name of some other person.

9       The service of the kind the banks provide, vis-à-vis, receipt of cheques, drafts received by them from their consumers should be perfect and without any fault or inadequacy.  The consumer reposes full faith in the bank when he opens an account and deposits cheques and drafts and if there is either mishandling or loss from the custody of the bank and are deposited orencashed by unauthorized person, amounts to deficiency in service for which the bank has to compensate the consumer as to the actual loss or injury suffered by him.  Complainant is not concerned as to how this draft fell in the hands of unauthorized persons and was encashed in the account of the some other bank.

10.    In the given facts and circumstances of the case and the report lodged with the police by the OP bank and the loss suffered by the complainant, we allow the complaint with the directions to pay the amount of draft, i.e. Rs. 4.00 lacs within one month withRs. 10,000/- as compensation and cost of litigation.

11.    We are not awarding any interest in view of the peculiarity of the facts and circumstances of the case.”

          Feeling aggrieved by the order of the State Commission, both the parties have preferred Appeals before this Commission. Appellants have filed First Appeal No.646/07 seeking interest on the awarded amount while the First Appeal No.624/07 was filed by the Respondents for setting aside the impugned order.

          First Appeal No.624/07 filed by the Respondents was dismissed by this Commission vide order dated 12.03.08 by observing thus:-

“        The State Commission, after perusing the documents, has arrived at the conclusion that the pay-in-slip with stamp of the bank manifestly demonstrates that the draft was received by the OP Bank.  On the internal complaint of the Manager, the entire staff of Bank was transferred.  Even FIR was lodged by the bank with regard to the loss of the draft which was of a very heavy amount.  The State Commission has allowed the complaint and directed the Appellants to pay the amount of draft, i.e. Rs.4 lakh within one month with Rs.10,000/- as compensation and costs of litigation.

In our view, the State Commission has rightly allowed the complaint and came to the conclusion that there was deficiency in service on the part of the Bank and there is no reason for us to admit this appeal.  Hence, dismissed.”

First Appeal No.646/07 filed by the Appellants was admitted on 12.03.08 limited to the point of awarding interest.

We have heard the Ld. Counsel for the parties on the question of awarding interest at some length.

Ld. Counsel appearing for the Appellants contends that the State Commission has committed a grave error in declining the interest on the awarded amount of Rs.4,00,000/- to the Appellants.

As against this, Ld. Counsel for the Respondents supports the order passed by the State Commission. 

We find substance in the submission made by the Ld. Counsel for the Appellants. It is no longer in dispute that the demand draft of Rs.4,00,000/- was deposited by the Appellants with the Respondent Bank on 2.6.97 which was misplaced by them.  Finding recorded by the State Commission and upheld by this Commission that the Respondent was negligent in providing service to the Appellants had attained finality. Bank has accepted the order passed against it and paid the sum of Rs.4,00,000/- along with costs of Rs.10,000/- to the Appellants on 04.06.08 vide banker cheque No.584022. 

Appellants have been deprived of use of their money for about 11 years and as such they are entitled to interest being the normal accretion on the capital.  Supreme court of India in “Alok Shanker Pandey vs. Union of India & Ors. (2007) 3SCC 545”  has held that interest is not a penalty or punishment at all, but is the normal accretion on capital; that in equity the person keeping the money is required to pay the interest being normal accretion on the principal amount.  Relevant observations of the Supreme Court are as under: -

“It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B.”

                                                                               

          In our considered view, State Commission has erred in not awarding interest on the awarded amount.  Appeal is allowed and the Respondent Bank is directed to pay interest @ 6% p.a. to the Appellants from the date of deposit of demand draft till the date of payment, i.e. 4.06.08 within a period of eight weeks from today failing which the amount shall carry interest @ 9% p.a. Respondent is also directed to pay further costs of 5,000/- to the Appellants.  

…………….. . . . . .

                                                                             (ASHOK BHAN J.)

   PRESIDENT

                                                            . . . . . . . . . . . . . . . .

            (VINEETA RAI)

   MEMBER

The insurer can repudiate the claim even if there is a delay of one day to inform about the theft of vehicle

While passing the impugned order, the State Commission has relied on the judgement of the National Commission in the case of New India Insurance Co. Ltd. Vs. Trilochan Jane in F.A. No.321 of 2005 decided on 9.12.2009 in which the vehicle was stolen on 8.4.2000 and the matter was reported to the police on 10.4.2000, i.e., after two days of the incident and information to the Insurance Co. was given after about 9 days, i.e., on 17.4.2000 and even then the National Commission dismissed the complaint on the ground of delay in reporting the theft of the vehicle. In the present case, we find that the FIR with the police is recorded on 30.12.2006 and the intimation to the Insurance Co. was given on 31.12.2006. In the circumstances, we agree with the view taken by the State Commission which is in line with the later decision of this Commission in Trilochan Jane’s case (Supra) where the delay in reporting the theft was held to be crucial in the matter of violation of terms and conditions of the policy based on which the claim of the complainant was non-suited. So far as the two cases relied upon by the learned counsel are concerned, we find that the facts and circumstances of the case of Sanjay Shivhare were different and hence the decision of the three Member Bench in that case would not get attracted to the present case. So far as the ratio of the second case of Parvesh Chander Chadha is concerned, this case was decided on  28.8.2008 by a Two Member bench of this Commission wherein in spite of the delay, the order of the District Forum, as upheld by the State Commission,  directing the claim to be settled on non-standard basis as 75% was upheld. However, in the case of Trilochan Jane (Supra), this Commission has taken a different view in similar circumstances relying on the ratio laid down by the Apex Court in the case of United India  Insurance Co. Ltd. Vs. M/s Harchand RaiChandan Lal [JT (2004) 8 SC 8]. In this later judgement in the case of Trilochan Jane, this Commission in line with the ratio laid down by the Apex Court has held that the terms of policy have to be considered as it is and nothing can be added or subtracted from the  same. It was held that the policy provides that in the case of theft, the matter should be reported “Immediately”. In the context of a theft of the car,  word  “Immediately” has to be construed strictly to make the Insurance Co. liable to pay the compensation. We are of the considered view that looking to the facts and circumstances of this case, the State Commission rightly applied the ratio of later judgement in the case of Trilochan Jane while non-suiting the claim of the petitioner. We, therefore, do not find any ground which would justify our interference with the impugned order. The revision petition, therefore, stands dismissed in limine with no order as to costs.

......National Commission - 

rp/2982/2012

Shri Kuldeep Singh

IFCO Tokio General Insurance Co. Ltd.

Insurer can repudiate the claim if the vehicle was driven in non permit areas.

rp/4391/2012

Manoj Banerjee

Oriental Insurance Co. Ltd.

21/01/2013

When Insurance Company may repudiate the claim

it becomes clear that at the time of revival of policy new contract comes into existence and if assured suppresses material fact or gives false declaration regarding his health, Insurance Company is entitled to repudiate claim.

...National Commission - Life Insurance Corporation of India & Anr. Vs. Smt. Kempamma & Anr. - R.P. No. 3848 of 2007.

wrong blood transfusion amounts to medical negligence and deficiency of service

wrong blood transfusion is an error, which no doctor/hospital exercising ordinary skill would have made, and such an error is a sure instance of medical negligence.

....National Commission - FA No. 175 of 2006 Dr. Sunil Thakur Vs. Gorachand Goswami & Ors. - 

Ignoring written instructions regarding stop payment amounts to deficiency of service

9.       On perusal of above, we find that the State Commission has accepted the appeal against the order of the District Forum mainly for the reason that the instructions dated 14.02.2004 given by the complainant to the respondent bank was vague and it could not be treated as clear instructions of ‘stop payment’. On careful consideration of record, we find that aforesaid conclusion of the State Commission is erroneous as the State Commission while arriving at the conclusion has ignored the fact that the numbers of cheques stated to have been misplaced vide instructions dated 14.02.2004 were recorded by the respondent bank in the unused cheque register officially maintained in this regard.  Photocopy of the unused cheque register maintained by the respondent bank is available on record.  On perusal of the aforesaid photocopy, we find that on 14.02.2004, the entry regarding seven unused cheques pertaining to the bank account no.4226 of the complainant including cheque no.7780, which is the bone of contention in this revision, was actually made by the respondent bank in the unused cheque register pursuant to the instructions dated 14.02.2004 of the complainant.  From this, it is obvious that the respondent bank actually understood the instructions given by the complainant and it is because of the said reason, the entries pertaining to unused cheques was made in the unused cheque register.  That being the case, the respondent bank now cannot take shelter of vagueness in the letter dated 14.02.2004 of the complainant addressed to the respondent bank.  From the above referred entry in the unused cheque register, it is clear that on 14.02.2004, the respondent bank was fully aware that as per the instructions of the complainant, the cheques entered in the unused cheque register were not to be encashed without first referring to the complainant.  Admittedly, the respondent bank encashed one of those cheques bearing no.7780 for Rs.1,68,450/- relating to account no.4226 of the complainant without referring to and seeking instructions from the complainant.  This in our view obviously amount to deficiency in service.  The State Commission has allowed the appeal of the respondent bank against the order of the District Forum without taking into account the entries made in the relevant unused cheque register maintained in the bank.  Thus in our view, the order of the State Commission suffers from material irregularity and is unsustainable.

..REVISION PETITION  NO. 2300  OF  2012 - National Commission - Amitaben Dilipkumar Shah & Ors. Vs. Varachha Co.op Bank Ltd.

When Medical Negligence can be attributed to Doctor

What constitutes medical negligence is now well established [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be followed: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred  and not of the time when the dispute was being adjudicated. (PARA 9)

National Consumer disputes redressal commission - FIRST APPEAL NO. 279 OF 2007 - Smt. V. Bhavani Vs. Dr. S. Siva Subramaniam.

Consumer law - when banks are liable to pay in case of theft in bank

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

                                                NEW DELHI        

REVISION PETITION NO. 3989 OF 2011

(From the order dated 28.08.2011 in Appeal No.2010/827 of the State Consumer Disputes Redressal Commission, Delhi)

G.M. Satyapriya

E-209, Bathia Apartment

43, IP Extension, Patparganj,

Delhi – 110 092                                                            …  Petitioner/Complainant

                                      Versus

Bank of India

Through

The Branch Manager,

Patparganj, Delhi – 110 092                                   …  Respondent/OP

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          For the Petitioner                 :     Mr. G.M.V. Ramana, Advocate

          For the Respondent             :     Mr. Shweta Kapoor, Advocate

         

PRONOUNCED ON   31^st January,  2013

 

O R D E R

 PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          This revision petition has been filed by the petitioner against the impugned order dated 28.08.2011 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in Appeal No. 2010/827 – G.M. Satyapriya vs. Bank of India by which while dismissing appeal and confirming order of District Forum imposed Rs.5,000/- as cost.

2.       Brief facts of the case are that complainant/petitioner withdrew Rs.41,000/- from OP/Respondent Bank on 24.1.2009 from her saving bank account.  The amount withdrawn included 82 currency notes of Rs.500/- denomination.  Soon after withdrawal, Rs.17,000/- were robbed by three miscreants at the counter of the bank from the complainant and she reported incident to Hall In charge and the Branch Manager and also lodged FIR.  As she was robbed in bank premises, it was alleged that bank was responsible for its negligence and filed complaint.  OP/respondent contested claim and submitted that some third person in the Hall pointed out to the complainant that one of the notes  in her hand was fake and in that process first took the note from the complainant’s hand and then handed back the currency notes to her and left bank hall. Complainant did not raise any alarm about this incident and she was also shown CCTV recording from which it appeared that the main miscreant was accompanied by two persons.  Complainant identified the miscreant who had taken currency notes from her.  OP further submitted that there were 8 CCTV cameras installed in the banking hall covering all important functions and there was also a security guard present on the main gate at the time of occurrence and denied negligence on its part and prayed for dismissal of the complaint.  Learned District Forum after hearing both the parties dismissed complaint on the ground that police investigation was still pending and matter requires evidence as witnesses have to be examined and complainant was advised to approach appropriate Court of law.  Against this order, appeal filed by the complainant was dismissed by impugned order, hence, revision petition was filed.

3.       Hard learned Counsel for the parties and perused record.

4.       It is admitted fact that complainant received money from the bank counter and during the curse of counting Rs.17,000/- were robbed from her by miscreants.  CCTV cameras were also in working condition in the hall from where money was snatched and security guard was also on the gate.  In such circumstances, no negligence can be attributed on the part of OP/respondent. Learned State Commission while dealing this aspect held as under:

“10.    From the side of the Bank it has been averred in their affidavit that there are CCTV camera fixed in the Branch of the Bank at appropriate places and are functional.  It has also to be noticed that during the course of police investigation in the replay of CCTV camera the picture portrayed the person who took the notes from the complainant was available and the complainant identified him and his accomplices. That will show that there was proper affixation of CCTV cameras in the bank and there was no negligence in respect of this matter on the part of the Bank.  There was also security guard available at the door but the security guard did not come into picture because the lady did not raise an uproar and did not shout.  It appears that it was only after the tricksters had left the bank that the lady awoke to the situation. The lady is herself responsible for the loss because she handed over the notes to an unknown person and that she has therefore been herself negligence and is responsible for the consequences”.

Thus, it becomes clear that there was neither any deficiency nor any negligence on the part of respondent and learned State Commission has not committed any error in dismissing appeal, though, on other counts.

5.       Learned Counsel for the petitioner has placed reliance on (2004) 6 SCC 113 – Sumatidevi M. Dhanwatay Vs. Union of India in which compensation awarded by State Commission was upheld by Hon’ble Apex Court as complainant was travelling in 1^st class air-conditioned berth and a violent crowd entered the compartment, broke the doors, windows, etc., and assaulted the complainant and other persons and took away ornaments and other valuables of the complainant.  This judgment does not help to the petitioner in the case in hand because in aforesaid case, complainant was travelling in air-conditioned coach after purchasing ticket and it was obligatory on the part of railway authorities to provide safety to the passengers till destination, whereas in the case in hand it was not obligatory on the part of bank authorities to provide extra-ordinary safety to bank customers as bank authorities had already installed 8 CCTV  cameras in the hall and had  security  guard on the gate.  Learned Counsel for the petitioner also placed reliance on the judgment of this Commission in R.P. No.1690 of 2000 – Union of India (UOI) and Ors. Vs. Sanjiv Dilsukhrai Dave and Anr. in which baggage was stolen of the passenger from sleeper coach and awarded compensation was upheld by the National Commission.  This judgment also does not help to the petitioner in the aforesaid case.  Negligence on the part of railway administration was proved and negligence was observed as under:

“10. As regards the issue of negligence of the railway administration, a list of duties prescribed by railway administration "TTE for Sleeper Coaches" is brought on record. Of these, duties prescribed at Sl. No. 4, 14, 16 and 17 are very relevant. These read as follows:

"4. He shall check the tickets of the passengers in the coach, guide them to their berth/seats and prevent unauthorised persons from the coach. He shall in particular ensure that persons holding platform tickets, who came to see off or receive passengers do not enter the coach.

14. He shall ensure that the doors of the coach are kept latched when the train is on the move and open them up for passengers as and when required.

16. He shall ensure that the end doors of vestibuled trains are kept locked between 22.00 and 6.00 hrs. to prevent outsiders entering the coach.

17. He shall remain vigilant particularly during night time and ensure that intruders, beggars, hawkers and unauthorised persons do not enter the coach".

11. The above duties clearly show that there is a responsibility cast on the TTE attached to the second class sleeper coach to be very vigilant about anyone other than the reserved ticket holders entering the compartment, to such an extent that he is required to prevent even a relation of the passenger holding a platform ticket who comes to see off a passenger from entering a coach. The TTE is particularly required to take special care in the night as brought out in Sl. No. 16 and 17. Sl. No. 14 clearly casts a responsibility on him to ensure that the doors of the coach are kept latched when the train is on the move. In the case before us, it is the contention of the Respondent that the intruder came when the train was on the move in the night and this has not been seriously challenged. Admittedly, the TTE has failed in the performance of his duties which lead to the incident of theft. The arguments of the Petitioner that the rules nowhere provide that there should be a TTE for each sleeper coach cannot be accepted because, then, the impressive list of duties which would remain only on the paper, since they cannot be effectively enforced”.

6.       In the case in hand there appears to be neither any negligence nor any deficiency on the part of respondent and in such circumstances, learned State Commission has not committed any error in affirming judgment of District Forum dismissing complaint. Apparently, there is neither any jurisdictional error nor any illegality or material irregularity in the impugned order and in such circumstances, revision petition is liable to be dismissed.

7.       Learned State Commission while dismissing appeal and affirming order of District Forum imposed Rs.5,000/- as cost to be payable to respondent bank.  Learned State Commission did not agree with the finding of District Forum and dismissed appeal on other counts.  In such circumstances, it was not warranted to impose cost on the petitioner and in such circumstances, order imposing cost is to be set aside.

8.       Consequently, revision petition is partly allowed and order imposing cost of Rs.5,000/- by impugned order is set aside and rest of the impugned order is affirmed with no order as costs

..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER

When rarest of rare can be attributed to offence

Panchhi & Ors. v. State of U.P. [AIR 1998 SC 2726] a three-Judge Bench of Supreme Court has held:

“Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the “rarest of rare cases” as indicated in,  Bachan Singh’s case, (AIR 1980 SC 898), in  a  way  every  murder  is  brutal,  and  the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder.”

.... SANAULLAH KHAN Vs. STATE OF BIHAR. Coram: A.K. PATNAIK, MADAN B. LOKUR. Dt.15/02/2013 

Conduct of an accused must have nexus with the crime committed

Supreme Court of india has held in Vikramjit Singh alias Vicky v. State of Punjab  [2006 (12) SCC 306] at page 314:  

“…..Conduct of an accused must have nexus with the crime committed.  It must form part of the evidence as regards his conduct either preceding, during or after the commission of the offence as envisaged under Section 8 of the Evidence Act….”


The general good behaviour of the appellant and the fact that he had no bad habit have no nexus with the offence alleged against the appellant and are not relevant when other circumstances have established beyond reasonable doubt that it is the appellant and the appellant alone who has committed the murder of the deceased.

.....VIVEK KALRA Vs. STATE OF RAJASTHAN. Coram: A.K. PATNAIK, CHANDRAMAULI KR. PRASAD. Dt.15/02/2013.

High Court is not proper forum in Consumer Cases

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

    REVISION PETITION NO.  3851 OF 2012

                                                                 Alongwith

   ( I.A. Nos. 1  & 2 of 2012)

 (Delay and Stay)

 (From order dated 3.11.2011 in Appeal No. 2496 and 2497 of 2011  of Karnataka State Consumer Disputes Redresdsal  Commission,  Bangalore)

M/s Agari Enterprises,

through its Proprietor

Sri Agari Raghavendra Rao

Having its office at Shibrikere Post

T. Yedapadavu 575164

Mangalore, Dakshina Kannada.

                                                .                                   …… Petitioner

         

                                                   Versus

              ( Appeal No. 2496 of 2011)

1.      Sesappa Saphaliga

aged 41 years

S/o Ramappa Saphaliga

R/at Cordel House Shibrikere Post,

Mangalore Taluk.                     …. Respondent No. 1

              ( Appeal No. 2497 of 2011)

2.     Bhujanga Amin

Aged 65 years

S/o Ramappa Saphaliga

R/at Kuppe Padavu,

Mangalore Taluk.                   ….. Respondent No. 2

BEFORE:

HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

For the Petitioners                        :    Mr. Anuj Kastelino, Advocate

 Pronounced on:   10^th  December,  2012

ORDER

PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

          Karnataka State Consumer Disputes Redressal Commission, Bangalore(for short, ‘ State Commission’) vide impugned order dated 3.11.2011,dismissed Appeal Nos.2496 and 2497 of 2011, filed by the Petitioner/OP. Petitioner ought to have filed two separate petitions or in the alternative Registry ought to have given two separate numbers to these petitions. Be that it as may, along with revision petition, an application seeking condonation of delay of 251 days has also been filed. 

2.       Brief facts are that respondents/complainants in both cases are self employed person who supply fish to canteens and individuals by using Air Conditioned Tempo. In November, 2010, they purchased a freezer to store fish at their residence and canteen for Rs.29,500/- from the Petitioner who promised to deliver the freezer within a week. But on 17.11.2010, Petitioner delivered a bottle cooler alleging it to be a freezer which could be used for the storage of fish.  Petitioner did not hand over the user manual, warranty card or delivery challan to them. However, respondents took delivery of the bottle cooler believing it to be a freezer.  When they stored daily supply of fish in the said cooler, the fish got rotten at the end of the day. On very next day, they approached Petitioner’s show room and complained about the rotting of the fish for which they were assured by the petitioner to send a service mechanic to check out the problem.  After that, respondents did not use the said cooler to store the fish. In the month of November, 2010, one service mechanic visited respondents’ house as well as the canteen and told that the said freezer is not a freezer which is used for storing fish but it is only a bottle cooler. This amount to unfair trade practice and deficiency of service. Request made by respondents to replace the bottle cooler and supply the freezer, vent in vain.  Therefore, they filed complaints. 

3.          Defence taken up by petitioner in its written statement is that, one Madhava had purchased two Blue Star Chest Cooler by paying Rs. 58,400/- in cash for which, petitioner had issued the Cash-memo to him. After purchase, said Madhava requested petitioner to deliver the chest coolers to the respondents. As such, petitioner issued the delivery challan in the name of the respondents and delivered the chest/water coolers to them. After using the said chest cooler for nearly 25 days, respondents came to his show-room and, made false allegations. Respondents have filed the complaints only to harass him.

4.          Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore, (for short, ‘District Forum’) vide order dated 15.7.2011, allowed  the complaint and passed the following order;

“ The complaints are allowed. Opposite Party is directed to refund Rs.29,500/-(Rupees twenty nine thousand and five hundred only) to each Complainants along with compensation of Rs.2,000/- (Rupees two thousand only) each and litigation expenses of Rs.2,000/- (Rupees two thousand only) each to the Complainants within one month from the date of receipt of this order”.

5.          Aggrieved by order of District Forum, respondents filed appeals before the State Commission, which were dismissed at the admission stage itself.

6.          Hence, this revision.

7.       I have heard learned counsel for the petitioner and gone through the record.

8.          Grounds on which condonation of delay has been sought read as under; 

“ a This Revision petition impugns the common final   order and judgment dated 03/11/2011 of the Hon’ble State Commission in Appeal No.2496/ 2011 and 2497/2011, wherein the Hon’ble State Commission dismissed the Appeal filed by the petitioner.

  b. That the contents of petition are not repeated herein for the sake and brevity. Hence same may  be read as part of the present application.

   c. The petitioner approached the Hon’ble High Court to set aside the order of the Hon’ble State Commission and the writ petition was disposed off by the Hon’ble High Court with the finding that the remedy lies with the Hon’ble National Commission. Hence the petitioner approached this Hon’ble Commission. That the Petition was disposed off by the Hon’ble High Court on 21.6.2012 and the Certified Copy was ready on ____hence the 251 days delay in filing this petition”.

9.    It is well settled that ‘sufficient cause’ with regard to condonation of delay in each case, is a question of fact.

10.       In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361,  it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant ”.

11.            Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence”.

12.       In  “R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108”,  it has been observed ;

        “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

13.    Supreme Court in “Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC)” laid down that;

                  “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection 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.”

14.     Further, Hon’ble Supreme Court in “M/s Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal (Civil) Nos. 17068-17069/2010, decided on 9 July 2010) wherein it observed inter alia, as under;

“ ……We are further of the view that the petitioners’ venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction”

15.   In view of decision in M/s Advance Scientific Equipment Ltd.(supra) High Court ought not to have entertained the writ petition filed by the petitioner, since petitioner had an effective alternate remedy available under the Act. Under these Circumstances, the act of petitioner in approaching a wrong forum, shall not entitle him to have the delay condoned. 

16.  Under these circumstances, no sufficient cause is made out for condoning the long delay of 251 days in filing the present petition.  Accordingly, application for condonation of delay is not maintainable. Consequently, the present revision petition being hopelessly barred by limitation is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand Only).

17.    Petitioner is directed to deposit the cost by way of demand draft in the name of “Consumer Legal Aid Account” within eight weeks from today.

18.   In case, petitioner fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

19.     List on 15.02.2013 for compliance.

                                                ……………………………J.

                                                                                            (V.B. GUPTA)                           PRESIDING MEMBER  

SSB/