Important Judgments of the Year 2022

PART-1

1.      

Samruddhi Co-operative Housing Society Ltd V/S  Mumbai Mahalaxmi Construction Pvt.Ltd( SC)

Civil Appeal No 4000 of 2019

Decided on January 11, 2022

Head Note Failure to obtain the occupation certificate , ‘consumers’ are to be paid compensation for the consequent liability.

Appeal arising against the order from NCDRC and was decided on 11^th of Jan 2022

It’s a common grievance of home buyers that builder fails to complete the construction work including amenities as per plan and agreed terms. With the result occupancy certificate is not issued by the concerned authorities. In some cases home buyers take possession under compelling circumstances with incomplete work and occupancy certificate still remains a problem. Here is a unique case decided by the Hon’ble Supreme Court on 11^th January 2022 which gives a new dimension to the issue of fixing liability of Developer when occupancy certificate not provided to the home buyers.

Supreme Court made following Observation

That Complainant Society is entitled to file complaint on behalf of Home buyers under Section 2(1) (d) of the Consumer Protection Act for inadequacy in the quality of service

The failure of the respondent to obtain the occupation certificate is a deficiency in service ‘consumers’ are to be paid compensation for the consequent liability ,such as payment of higher taxes and water charges by the owners arising from the lack of an occupancy certificate

Looking into the peculiar facts and circumstances Supreme Court allowed the appeal filed by the Society on behalf of Home buyers and held that the complaint is maintainable. SC direct the NCDRC to decide the case on and dispose the complaint within a period of three months from the date of this judgment.

                                                            2       

Sunil Kumar Maity V/s State Bank of India and Anr. SC

Civil appeal 432 of 2022

 Decided on 21^th Jan 2022

Head Note - Concept of  Revisional Power to the Consumer Commissions

 

SC made a very strong comment against the order of NCDRC  and explained the concept of  Revisional Power to the courts

“It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity

SC explains where National Commission was in error

·         The National Commission had called for a report on the whole matter from the SBI in the form of six more evidences at the stage of revision which was not justified and not a procedure in revision matters

·         Reports were sought from the officers who were already given an opportunity at both the levels below

3

Jaina Construction CompanyVersus The Oriental Insurance Company Limited & Anr Civil Appeal No. 1069 Of 2022;

Decided on 11.02.2022

Bela M. Trivedi, J.

 Head Note -Insurance Company cannot repudiate claim merely on the ground of delayed information when FIR had been lodged

Facts :The vehicle of the complainant (the insured) which was insured with Insurance Company was robbed. The next day, an FIR was registered by him. Accused were arrested and challan filed.Thereafter, the complainant lodged the insurance claim. The same was repudiated on the ground that there was a delay in intimating the Insurance Company about the occurrence of the theft.

Though District Forum and State Consumer Commission allowed the complaint-

NCDRC dismissed it by allowing insurer's revision petition. Allowing the appeal, the Supreme Court set aside the NCDRC order and upheld the State Commission order.

Insurance Law - Theft of Vehicle - Repudiation of Claim –

“The Insurance Company cannot repudiate claim merely on the ground that there was a delay in intimating the Insurance Company about the occurrence of the theft, when the insured had lodged the FIR immediately after the theft of the vehicle.”

disowned their liability on the claim of the complainant.

The three Judge Bench in case of Gurshinder Singh vs. Shriram General Insurance Company Ltd. & Another reported in 2020 (11) SCC 612 in similar case also held

 “ We are of the view that much would depend upon the words “cooperate” and

“immediate”, in Condition 1 of the standard form for commercial vehicles package

policy. Before we analyse this case any further, we need to observe the rules of

interpretation applicable to a contract of insurance. Generally, an insurance

contract is governed by the rules of interpretation applicable to the general

contracts. However, due to the specialised nature of contract of insurance,

certain rules are tailored to suit insurance contracts.

4.

ECGC Limited Versus Mokul Shriram Epc Jv

I.A. NO. 99210 OF 2021 In Civil Appeal No. 1842 Of 2021

Decided On February 15, 2022

Head Note - Condition of payment of  the amount for filing appeal shall be governed by the act under which complaint was filed.

Consumer Protection Act, 2019 - Section 67 Proviso - Onerous condition of payment of 50% of the amount awarded will not be applicable to the complaints filed prior to the commencement of the 2019 Act.

1986 Act	2019 Act
23. xx	67. xx
Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited in the prescribed manner fifty per cent of that amount or rupees fifty thousand, whichever is less.	Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited fifty per cent of that amount in the manner as may be prescribed

 

The question now being examined here is as to whether the present appeal would be governed under the Consumer Protection Act, 2019 [For short, the ‘2019 Act’] or under the erstwhile 1986 Act.

 

In terms of Section 67 of the 2019 Act, no appeal against the order of National Commission shall be entertained by the Supreme Court unless the person has deposited fifty per cent of the amount required to be paid. Whereas, under the 1986 Act, by virtue of a proviso inserted vide Central Act 62 of 2002 w.e.f. 15.3.2003, the condition was that no appeal shall be entertained by the Supreme Court unless the person who is required to pay the amount deposits fifty per cent of the amount or fifty thousand, whichever is less.

 

SC Held

“In view of the binding precedents of the Constitution Bench judgments referred to above, we hold that onerous condition of payment of 50% of the amount awarded will not be applicable to the complaints filed prior to the commencement of the 2019 Act. Therefore, the I.A. is allowed.”

5.  

Vodafone Idea Cellular Ltd. Versus Ajay Kumar Agarwal

Case No Civil Appeal No 923 of 2017

Decided on 16the  Feb 2022

Head Note -1) Existence of an Arbitral clause under the Indian Telegraph Act, 1885, will not oust the jurisdiction of the consumer forum

2)Consumer Protection Act is a Specific act and not a General act.

3)Telecom services are the subject matter of Consumer Protection Act

 

It was a historic day when the Hon’ble Apex Court after long thirteen years declared on 16the  Feb 2022 in Civil Appeal No 923 of 2017 (Arising out of SLP (C) No 28615 of 2016) Vodafone Idea Cellular Ltd. Versus Ajay Kumar Agarwal that Consumer Protection Act is a Specific act and not a General act. The three judge’s bench comprising Justices DY Chandrachud, Surya Kant and Vikram Nath further observed that the existence of an Arbitral clause under the Indian Telegraph Act, 1885, will not oust the jurisdiction of the consumer forum

This judgment is not the result of incorporating word telecom in the Consumer Protection Act 2019 but a revisit by the apex court three judges bench on the merit of the case as it stands under earlier Consumer Protection Act 1986 also. Apex court reversed the order finding it erroneous in view of the applicability of then prevailing law

The above order was in appeal arising out of judgment dated 26 May 2016 of the National Consumer Disputes Redressal Commission

It was as back as in 2009 till the latest judgement pronounced by the Honorable  Supreme Court on 1.9.2009, Consumer foras had been dealing with all telecom matters filed by consumers.

 Supreme in civil appeal no 7687 of 2004 in the case of GM Telecom V M Krishanan barred the jurisdiction of consumer foras and held that  such disputes will be decided by arbitrator under section 7B of Indian Telegraph Act .The award so made shall be final and not open to challenge before any court /forum The arbitrator shall be appointed by the Central Govt either specifically for determination of referred dispute or generally for the determination of disputes under this section.

Apex court has further remarked that it is a well settled law that special law overrides the general law

In that context, a two-Judge Bench of this Court thus held

“In our opinion when there is a special remedy provided in Section 7-B of the Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred”

 

 

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