Case No -7

Gaurav Kumar Bansal v Union of India 30^th June 2021 W.P.(C) NO.539 OF 2021

(Ex-gratia to Covid victims)

Top Court's direction in the Judgement dated June 30th, 2021 in which the Court directed the NDMA (National Disaster Management Authority) to frame guidelines for grant of compensation to the dependents of those who died due to COVID,

Centre assured Supreme Court by filing affidavit that the families of those who die due to COVID will receive Rs 50,000 ex gratia from the State Governments.

"The ex gratia assistance to families affected by COVID 19 deaths will continue to be provided for deaths that may occur in the future phases of the CoVID 19 pandemic as well or until further notification," the affidavit also states.

 

Who will be the beneficiaries

·         State Govt. will grant compensation amount of Rs 50,000/-per deceased person to the dependents of those who died due to COVID the funds will be paid by the States from the State Disaster Response Fund ("SDRF"). DDMA/District Administration would disburse the ex gratia assistance to the next of kin of the deceased persons

·         It will also include those who were involved in relief operations or associated in preparedness activities subject to cause of death being certified as COVID 19.

·         Justice Shah suggests to include the persons who committed suicide while they were suffering from Corona and COVID was an accompanying condition. The family members of people committing suicide within 30 days from being diagnosed as COVID-19 positive should also be considered for ex gratia

Case -8

Manohar Infrastructure and Constructions Private Ltd v. Sanjeev Kumar Sharma & Ors.; Citation: LL 2021 SC 714]

Decided on December 2021

 

Legal Point

 

Whether NCDRC is within jurisdiction to order for deposit of enire amount Determined By SCDRC For Stay : Supreme Court ( Dec 2021)

 

Facts

An order was passed by the Construction company to deposit entire amount  Determined By SCDRC in their order. Builder pary to the dispute along with number of other builders including TDI against whom similar cases were also going on with NCDRC protested against this order stating 50% of decrial amount has already been deposited as per the provisions of the Act vide section …

Supreme court gave its verdict on two points;

1.      There is a mandatory provision in the act to deposit 505 of decrial amount which had been followed by the Builders and appeal had been accepted

2.      Construction company requested for stay on implememtation of the order by state commission. National commission looked into the facts and circumstances of the case and used its discretion   to impose a condition of depositing entire amount determined by state commission in its order for granting stay

 Supreme court held this was done under the discretionary power vested with NC and it has to do nothing with mandatory requirement of depositing 50% of determined amount by Stae Commition.Construction company cannot say that depositing 50% amount gives them write to get stay

Supreme court als referred to its earlier decided case wherein it was held that courts can impose any condtion to grant stay on implementation of order from lower court

 

Case-9

 

. M/s Sheth M L Vaduwala Eye Hospital Versus Oriental Insurance Company Limited and Others SC JUDGMENT  by J. Dr Dhananjaya Y Chandrachud, J. Dt 11 Dec 2021.,

 

These appeals arise from a judgment of the National Consumer Disputes Redressal Commission1 dated 26 February 2014. 3 The appellant is a charitable hospital registered under the Bombay Public Trust Act 1961. Between 21 and 23 June 2000, the appellant conducted an eye camp where cataract surgeries were performed on 112 patients.

Negligence in the performance of the surgeries by the use of non-sterilized appliances, contaminated medicines and lenses of an inferior quality resulting in eye infections and loss of vision. The State Government appointed a Committee to enquire into the causes which led, inter alia, to several patients having lost their eye-sight. twenty-four complaints were filed by a consumer organization, Jagrut Nagrik Trust. The consumer complaints were instituted against the hospital and the insurance company. The insurance policies were obtained by the doctors from the insurer to cover claims of professional negligence. The doctors were not parties to the proceedings before the District Consumer Disputes Redressal Forum, Vadodara2 , though affidavits were filed by them. The District Forum by its order dated 19 February 2010 awarded an amount of Rs 1,70,000 as compensation to each of the twenty-four complainants together with a refund of registration fees (Rs 250), compensation for mental agony (Rs 3000), costs (Rs 1500) and interest at the rate of 9% per annum. In arriving at its conclusion, the District Forum relied on the report of the Enquiry Committee appointed by the State Government, which had found that there was negligence. The operation theatre assistants were not qualified. There was lack of proper sterilization of instruments etc. used in operations. In the machines, OT tables instruments etc bacteria was found and the damage to the eyes of the patients was because of this bacteria […] was also found on Phacomachine. There was no proper fumigation and even after fumigation bacteria was found in OT and the operation table in O.T. The O.T staff was unqualified and it was not supervised by doctors. There were serious lapses in Autoclave. The patients ought to have been examined on the next day of operation. The Committee has held responsible the doctors and the staff for the damage to the eyes of the patient.” The NCDRC by its impugned order dated 26 February 2014, set aside the orders of the consumer fora The NCDRC held that this fact could not by itself fasten the liability on the insurer, particularly in the absence of any specific allegation of negligence against any of the doctors

legal issue &finding

From the record, it emerges that the insurance policies were obtained by the doctors. These were professional indemnity insurance policies which would cover a claim for professional negligence which was made against the doctors. Admittedly, the finding of negligence, as it appears from the order of the State Commission, is specifically against the hospital. The finding is that the hospital and its staff were negligent in the conduct of the cataract surgeries. The specific finding is that the hospital was not the beneficiary of the insurance policies which were obtained by the doctors to cover the discharge of their own professional obligations. There was a manifest error on the part of the District

In a medical Negligence case an insurance policy taken by doctors for professional indemnity can’t be used to make insurance Co  pay the liability of compensation to patients on behalf of the hospital. SLP against 2014 order of NCDRC dismissed. 

 

Case-10

M/S. Newtech Promoters And Developers Pvt. Ltd.Versus State Of Up & Ors.

Civil Appeal No(S). 6753 Of 2021 (Arising Out Of Slp(Civil) No(S). 3426 Of 2021)

Judgment  Dt 11 Nov 2021. 

The common issues is regarding certain provisions of The Real Estate(Regulation and Development) Act, 2016(hereinafter being referred to as “the Act”), The Uttar Pradesh

Facts

·         The promotors failed to hand over possession of a unit/plot/building in terms of the agreement and complaints were instituted by the home buyers for refund of the investment made along with interest. Orders was passed by the single member of the authority after hearing the parties with the direction to refund the principal amount along with interest

·         the order passed by the authority is appealable under Section 43(5) of the Act provided the statutory compliance of pre­deposit being made under proviso to Section 43(5) before the Appellate Tribunal but the promoter/real estate developers approached the High Court by filing a writ petition under Articles 226  and 227 of the Constitution questioning the order passed by the authority holding it to be without jurisdiction it has been passed by a single member of the authority who according to the appellants holds no jurisdiction to pass such orders of refund of the amount as contemplated under Section 18 of the Act They also challenged the condition of pre­deposit as envisaged under proviso to Section 43(5) of the Act

·         High Court of Allahabad dismissed their writ for want of jurisdiction,hence  the present batch of appeals have been preferred by the promoters

Legal points

1.      Whether the Act 2016 is retrospective or retroactive in its

2.      Whether the authority has jurisdiction to direct return/refund of the amount to the allottee under the Act or the jurisdiction exclusively lies with the adjudicating officer under Section 71 of the Act?

3.      Whether Section 81 of the Act authorizes the authority to delegate its powers to a single member of the authority to hear complaints instituted under Section 31 of the Act?

4.      Whether the authority has power to issue recovery certificate for recovery of the principal amount under Section 40(1) of the Act?

SC holds

Issue -1. Retrospective application of the Act Regarding the retroactive application of the provisions of the Act 2016 with reference to the ongoing projects ,Court held   that the Parliament in its wisdom after holding extensive deliberation on the subject thought it necessary to have a central legislation in the paramount interest for effective consumer protection, uniformity and standardisation of business practices and transactions in the real estate sector, to ensure greater accountability towards co.

Issue -2 Jurisdiction of authority  to direct return/refund of the amount to the allottee under Sections 12, 14, 18 and 19 of the Act. 

Refereed law In terms of Section 18 of the RERA Act, if a promoter fails to complete or is unable to give possession of an apartment duly completed by the date specified in the agreement, the promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the Project. Such right of an allottee is specifically made “without prejudice to any other remedy available to him”. The right so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed.However question of compensation is to be determined by judicial tribunal

Referred case Imperia Structures Ltd. Vs.  Anil Patni and Another held that Section 18 confers an unqualified right upon an allottee to get refund of the amount deposited with the promoter and interest at the prescribed rate, if the promoter fails to complete or is unable to give possession of an apartment as per the date specified in the home buyer’s agreement

Issue-3 Regarding delegation of power o single judge

“21. The Authority shall consist of a Chairperson and not less than two whole time Members to be appointed by the appropriate Government.

29. (1) The Authority shall meet at such places and times, and shall follow such rules of procedure in regard to the transaction of business at its meetings, (including quorum at such meetings), as may be specified by the regulations made by the Authority.

(2)               If the Chairperson for any reason, is unable to attend a meeting of the Authority, any other Member chosen by the Members present amongst themselves at the meeting, shall preside at the meeting.

In the instant case, the authority by a special order dated 5^th December, 2018 has delegated its power to the single member for disposal of complaints filed under Section 31 of the Act.  So far as refund of the amount with interest is concerned, it may not be considered strictly to be mechanical in process. If power has been delegated by the authority, to be exercised by the single member of the authority in exercise of its power under Section 81 of the Act, that cannot be said to beagainst  the provisions of the Act.

Issue -4 Whether the authority has the power to issue recovery certificates for recovery of the principal amount under Section 40(1) of the Act?

40 . Recovery of interest or penalty or compensation and enforcement of order, etc.—

(1)               If a promoter or an allottee or a real estate agent, as the case may be, fails to pay any interest or penalty or compensation imposed on him, by the adjudicating officer or the Regulatory Authority or the Appellate Authority, as the case may be, under this Act or the rules and regulations made thereunder, it shall be recoverable from such promoter or allottee or real estate agent, in such manner as may be prescribed as an arrears of land revenue.

(2)               If any adjudicating officer or the Regulatory Authority or the Appellate Tribunal, as the case may be, issues any order or directs any person to do any act, or refrain from doing any act, which it is empowered to do under this Act or the rules or regulations made thereunder, then in case of failure by any person to comply with such order or direction, the same shall be enforced, in such manner as may be prescribed.”

the principal sum with interest has become a composite amount to be recovered as arrears of land revenue under Section 40(1) of the Act.

Dr Prem Lata

 

 

 

 

 

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