Summery –Important cases of 2021

National Consumer Disputes Redressal Commission

Punit Jain vs M/S. Ireo Grace Realtech Pvt. Ltd. ... on 31 August, 2021 CC/2236/2016 decided by NC on 31.08.2021

The present batch of Consumer Complaints has been filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short "the Act") by the Complainants, against the Opposite Party, M/s. Ireo Grace Realtech Private Ltd. (hereinafter referred to as the 'Developer') for refunding of money as the Opposite Party Developer failed to hand-over the possession of the Flats booked by them in the Project launched by the Developer in the name and style of "The Corridor " within stipulated period. 

Held that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer's Agreement. 

Hon'ble Supreme Court decisions on the issue "Whether the Apartment Buyers are entitled to terminate the Agreement, or refund of the amount deposited with Delay Compensation" was followed by the National Commission.  

 

Allottees at Serial Nos. 1 and 2 in Chart A are obligated to take possession of the apartments, since the construction was completed, and possession offered on 28.06.2019, after the issuance of Occupation Certificate on 31.05.2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from date of offer of 27.11.2018 till the possession was made to the allottees. 

The Developer has been directed by the NC to refund the entire amount deposited by the Complainants/Allottees enlisted in Chart B, along-with interest @9% S.I.

p.a. within 3 months from the date of this Order failing which the Developer shall be liable for payment of default interest @12% S.I. p.a. till the payment is made. The Opposite Party Developer shall not deduct the Earnest Money of 20% from the principal amount, or any other amount as mentioned in Clause 21.3 of the Agreement, on account of the various defaults committed by the Developer, including the delay of over 7 months in obtaining the Fire NOC. The Opposite Party Developer is directed to refund the entire amount deposited by the Complainants/Allottees enlisted in Chart B, along-with interest @9% S.I.

p.a. within 3 months from the date of this Order failing which the Developer shall be liable for payment of default interest @12% S.I. p.a. till the payment is made. 

The one-sided contract was held to be ‘unfair’.  

  

Supreme Court of India

 

Khatema Fibres Ltd. vs New India Assurance Company Ltd. 

Author: V. Ramasubramanian

Bench: Hemant Gupta, V. Ramasubramanian

Civil Appeal No. 9050 of 2018 decided on 28.09.2021

Aggrieved by the Judgment of the National Consumer Disputes Redressal Commission (for short “National Commission”) confining the compensation payable to them only to the extent of the assessment as made by the final Surveyor, the complainant before the National Commission has come up with the above appeal. 

The appellant took a “Standard Fire and Social Perils” policy for the period from 7.05.2007 to 6.05.2008, for a sum of Rs.42,40,00,000/. When the policy was in force, a fire broke out in the factory premises of the appellant on 15.11.2007.  Therefore, the appellant submitted a claim on 19.11.2007, estimating the quantity of waste paper destroyed by fire at 8500 MT and its value at Rs.13,00,00,000/. 

One M/S Adarsh Associates, appointed by the respondent Insurance Company, conducted a survey, sought documents from the appellant, raised queries and received clarifications from the appellant and submitted a final report dated 9.01.2009, assessing the loss suffered by the appellant on account of the fire accident as Rs.2,86,17,942/. 

Therefore, the appellant filed a consumer complaint before the National Commission under Section 21(a)(i) of the Consumer Protection Act, 1986, claiming: (i) compensation in a sum of Rs.1364.88 lakhs towards the loss suffered in the fire accident; (ii) compensation in a sum of Rs.2095.52 lakhs, for the financial stress caused by the respondent by delaying the processing of the claim; (iii) interest @ 18% p.a. on the compensation amount of Rs.1364.88 lakhs from November, 2007 till 31.12.2009; and (iv) the cost of litigation estimated at Rs.1,00,000/. 

The National Commission, by its Judgment dated 3.07.2018, rejected the claim of the appellant under various heads, but directed the respondent to pay only the amount of Rs.2,85,76,561/ as admitted by them. This amount was directed to be paid to the appellant with interest @ 9% p.a. from 15.11.2007, only till the date the Insurance Company had made the offer. It is against the said Judgment of the National Commission that the appellant has come up with the above appeal under Section 23 of the Consumer Protection Act, 1986. 

 

Hon’ble apex court found that all the objections of the appellant to the Surveyors’ Report were wholly unsustainable and the National Commission rightly rejected those objections. 

As a matter of fact, Hon’ble Bench took pains to go into elaborate factual details, as this was a first appeal under Section 23 of the Consumer Protection Act, 1986. As correctly pointed out by the National Commission, the appellant was not entitled to succeed unless they were able to establish any deficiency in service on the part of the Insurance Company. 

Held that this was not a case where the Insurance Company repudiated the claim of the appellant arbitrarily or on unjustifiable grounds. This is a case where the claim of the appellant has been admitted, to the extent of the loss as assessed by the Surveyor. In cases of this nature, the jurisdiction of the special forum constituted under the Consumer Protection Act, 1986 is limited. Perhaps, if the appellant had gone to the civil court, they could have even summoned the Surveyor and cross examined him on every minute detail. But in a complaint before the Consumer Forum, a consumer cannot succeed unless he/she establishes ‘deficiency in service’ on the part of the service provider.

A Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do. Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop. 

In the light of the above, Hon’ble Supreme Court was of the considered view that the Judgment of the National Commission did not call for any interference. 

Hence, the appeal was dismissed.

 

 

 

 

 

National Consumer Disputes Redressal Commission

M/S. Maruti Suzuki India Ltd. vs National Insurance Co. Ltd. & Ors.

decided on 10 September, 2021

                  CONSUMER CASE NO. 266 OF 2011 

Suzuki Powertrain India Limited (now merged with Maruti Suzuki India Limited) (the complainant/insured) filed the present complaint, for directing National Insurance Company Limited and others (the Insurer) to pay to the Insured (i) the claim of Rs.25,83,33,948/- under the Insurance Policy; (ii) interest @ 18% per annum from June, 2008 till actual date of payment; (iii) Rs. 50 lakhs as the compensation for mental agony and harassment; (iv) Rs. 50 lakhs as the damages for loss of business; and (v) such other or further order as this Commission may deem fit and proper in the circumstance of the case.

In present case, the claim of the Insured has not been repudiated rather it has been accepted as such the various grounds, raised in written reply/arguments for repudiation of the claim, have to be ignored. It is well settled that the authority cannot be permitted to raise a different ground, which was not a ground for passing the impugned order. Supreme Court in Galada Power and Telecommunication Ltd. Vs. United Insurance Company Ltd., (2016) 14 SCC 161, has held that the Insurer cannot be permitted to raise the grounds other than a ground taken for repudiation of the claim, in the complaint.  

This National Commission, relying upon the judgments of Privy Council in Forbs Vs. Git, AIR 1921 PC 209, Supreme Court in Radha Sundar Dutta Vs. Mohd. Jahadin Rahim, AIR 1959 SC 24, Hindustan Aeronautics Ltd. Vs. New India Insurance Company Ltd., 2019 SCC has held that if in a contract deed, the earlier clause is followed by a later clause, which destroy altogether the obligation created by the earlier clause, the later clause is to be ignored, being repugnant to earlier clause and the two clauses cannot be reconciled.

NC allowed the complaint. The Insurer was directed to reimburse the loss amount of Rs.16,65,95,843.74/- with interest at the rate of 9% per annum from 01.01.2009 till the date of its payment, after adjusting the amount as paid through settlement letter dated 24.09.2010. The complainant was also allowed cost of Rs. 1,00,000/-.

 

 

 

 

Supreme Court of India

Ireo Grace Realtech Pvt. Ltd. vs Abhishek Khanna 

Decided on 11 January, 2021

Author: Hon’ble Ms. Malhotra

Bench: L. Nageswara Rao, Hon’ble Ms. Malhotra, Ajay Rastogi

 

                     CIVIL APPEAL NO. 5785 OF 2019

 

The present batch of Appeals has been filed by the Appellant - Developer, to challenge the judgment passed by the National Consumer Disputes Redressal Commission directing refund of the amounts deposited by the Apartment Buyers in the project ―The Corridors developed in Sector 67-A, Gurgaon, Haryana, on account of the inordinate delay in completing the construction and obtaining the Occupation Certificate. 

The Commission held that since the Developer had failed to deliver possession of the allotted flats to the Apartment Buyers, it amounted to deficiency in service, and the complainants were entitled to refund of the amount along-with appropriate compensation. 

Section 14 of the 1986 Act empowers the Consumer Fora to redress the deficiency of service by issuing directions to the Builder, and compensate the consumer for the loss or injury caused by the opposite party, or discontinue the unfair or restrictive trade practices. 

Hon’ble apex court is of the view that the incorporation of one-sided and unreasonable clauses in the Apartment Buyers Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the Consumer Fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An ‘unfair contract’ has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the Consumer Protection Act,1986. 

In view of the above, the Hon’ble apex court held that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyers Agreement. 

 

 

Supreme Court of India

Dr. Harsih Kumar Khurana vs Joginder Singh 

Decided on 7 September, 2021

Bench: Hon’ble Justice Surya Kant and Hon’ble Justice A.S. Bopanna

 

                                       CIVIL APPEAL NO.7380 OF 2009

The appellants are assailing the order dated 13.08.2009 passed by the National Consumer Disputes Redressal Commission, New Delhi in Original Petition No.289/1997. Through the said order, the NCDRC has held the appellants Vishal Anand guilty of medical negligence and has directed payment of Rs.17,00,000/ (Rupees Seventeen Lakhs) only with interest at the rate of 9 % per annum from the date of filing the complaint till the date of payment. The appellant in Civil Appeal No.7380/2009 (before Hon’ble Supreme Court) is the doctor who administered anaesthesia to the patient. The appellant in C.A. No.6933/2009 is the hospital wherein the operation was performed. The appeal bearing C.A. No.8118/2009 is filed by the New India Assurance Company Limited from whom the anaesthetist and the hospital had taken separate policy to the extent limited under the policy. 

On the principle of res ipsa loquitur, the NCDRC has taken note of an earlier case wherein the conclusion reached was taken note in a circumstance where the anaesthesia had killed the patient on the operating table. In the instant facts,  the patient had undergone the same process of being administered anaesthesia for the first operation and the operation had been performed successfully and the entire process was said to be uneventful. Though in the second operation, the patient had suffered a cardiac arrest, the subsequent processes with the help of the Boyle’s apparatus had been conducted and the patient had also been moved to the CCU whereafter the subsequent efforts had failed. The patient had breathed her last after few days. As already noted, there was no contrary medical evidence placed on record to establish that the situation had arisen due to the medical negligence on the part of the doctors.

The correctness or otherwise of the line of treatment and the decision to conduct the operation and the method followed were all required to be considered in the background of the medical evidence in the particular facts of this case. As indicated, the mere legal principles and the general standard of assessment was not sufficient in a matter of the present nature when the very same patient in the same set up had undergone a successful operation conducted by the same team of doctors. Held, the conclusion as reached by the NCDRC is not sustainable. 

The order dated 13.08.2009 passed in O.P. No.289 of 1997 is set aside. The appeals are accordingly allowed.

Note: Res Ipsa Loquitur is a Latin phrase that means the thing speaks for itself. In the law of torts, it is a very popular doctrine. In cases, where the evidence is itself sufficient to prove the guilt of the defendant, the maxim is used there. So, the maxim points out any circumstantial evidence or an object which itself shows that an act has been committed. It shows that if the defendant was not negligent, the accident would not have happened.

 

 

 

 

 

 

 

 

 

 

 

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