Hot Off The PressNews

To dispose of pending consumer cases more smoothly, the Central Governement has notified a new model code of rules for appointment of Judges at various positions in consumer forums. It charts out ways by which vacancy can be filled on timely basis.

At present there are more than 5 lakh consumer disputes cases pending in India. In absence of the rules of appointment, as many as 400 vacancies have arisen due to which the pendency in consumer courts have increased.

The code also specifies that any consumer forum at any level won’t be able to keep more than 500 cases pending at a given time and necessary steps should be taken to minimise the pendency. In case average case filing goes above 1500 in a year in a district consumer forum, state government should establish an additional district court in the district. It was also laid down by the Department of Consumer Affairs that those positions that are likely to get vacant in case of retirement should be filled up immediately and this process should be completed in six months’ time in advance.

[Source: New Indian Express]

Hot Off The PressNews

The Supreme Court on 26-06-2018 declined to extend the term of three members in the National Consumer Disputes Redressal Commission (NCDRC) until all seven vacancies are filled up.

A Bench headed by Justice Arun Mishra, while refusing to give any relief said that there were many vacancies in the Supreme Court as well but they could not extend the term of Supreme Court judges like that.

The SC extended the tenure of president and other members of NCDRC twice in the past six months due to delay in completion of the selection process. Recently Justice R K Agrawal, who retired from the SC barely four weeks ago, was appointed as the new NCDRC president. However, he is yet to take over. The increasing vacancy has led to the rise in the average period between two hearings in the NCDRC, which increased to 94 days this year against 81 days in 2015.

[Source: New Indian Express]

Appointments & TransfersNews

The Central Government appointed Justice R.K. Agrawal (retired Judge of Supreme Court) as President of National Consumer Disputes Redressal Commission (NCDRC) w.e.f. date of joining the post, till attaining 70 years of age, i.e., on 04.05.2023. The appointment was in exercise of powers conferred by Section 22 E of Consumer Protection Act, 1986 read with Rule 4 and item No. (A) of column (4) of Sl. No. 16 of the Schedule of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members), Rules, 2017 along with approval of the Appointments Committee of the Cabinet, conveyed by Department of Personnel and Training.

[F. No. J-1/4/2017-CPU – S.O. 2942(E)]

Ministry of Consumer Affairs, Food & Public Distribution

Case BriefsSupreme Court

Supreme Court: In a decision, Indu Malhotra, J. speaking for herself and Dipak Mishra, CJ and Dr. D.Y. Chandrachud, J. gave directions to the State Governments to frame appropriate rules under Consumer Protection Act 1986, to address the issue of paucity of infrastructure in consumer fora all over the country.

In January 2016, Supreme Court constituted a three-member committee headed by (Retired) Justice Arijit Pasayat to examine various aspects relating to the issue as mentioned above. In November 2016, directions were issued to the Union Government to frame Model Rules under Sections 10(3) and 16(2) of Consumer Protection Act 1986, for the purpose of ensuring uniformity by the State Governments. In compliance with the said direction, Union of India filed final Draft Model Rules in March 2017, which have been accepted by all the parties concerned.

At this juncture, Supreme Court directed the State Governments to frame rules under Section 30 of the Act within three months in accordance with the Model Rules as framed by the Union. Further, directions were issued to the Union of India to address the matter of creation of additional posts in National Consumer Disputes Redressal Commission (NCDRC) as well as the expansion of its infrastructure. The matter was directed to be listed on August 28. [State of U.P. v. All U.P. Consumer Protection Bar Association, 2018 SCC OnLine SC 570, dated 18-05-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The perusal of the ‘Green’ guidelines for Haj-2008 in its clause 18 gave clarity on “Haj Committee of India not being in the purview of Consumer Protection Act 1986, which is not liable to compensate any pilgrims intending to go on ‘Haj’ pilgrimage.” The Bench comprising of V.K. Jain, J. (Presiding Member), dismissed the complaint on the above-stated basis.

The complainants were pilgrims intending to go for Haj pilgrimage and had applied accordingly. The procedure for the pilgrims to be chosen was done on the basis of draw of lots in which the complainants’ name appeared in a reserved quota and for that, they had paid an amount of Rs. 96,940/- which was the focal point of the complaint as the aggrieved had asked for the refund of the excess amount on not being accommodated in the ‘Green’ category and instead being placed in the ‘Azizia’ category but paying an amount equivalent to the same.

Therefore, the Commission on noting that the State Commission had allowed an appeal in favour of the complainants and the petitioner had filed a revision petition there against, concluded that the Haj Committee rendered its services without any profit motive and the pilgrims intending to go for the Haj pilgrimage, on their own, sign the declaration stating that they would not ask for any claims from the Haj Committee of India as it is not covered under Section 2(1)(d) of the Consumer Protection Act 1986 and thereby the consumer forum held no jurisdiction in the said case, which lead the NCDRC to set aside the impugned order and dismiss the complaint. [Haj Committee of India v. Abbas Ali,2018 SCC OnLine NCDRC 242, dated 04-06-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Resolution Commission (NCDRC): The appellant applied to the respondent bank for a loan of Rs 9,00,000, but only a loan of Rs. 5,25,000 was sanctioned. The appellant produced as evidence a letter signed by the Respondent-Branch Manager wherein the respondent expressed inability to sanction a loan of Rs. 9,00,000 at the moment due to unavailability of subsidy. The respondent assured to sanction a sum of Rs.5,00,00 and the balance amount after the subsidy amount was received.

The respondent produced the letter of arrangement, entered into4 days after the assurance received by the appellant, which clearly showed that the sanctioned amount was only Rs. 5,25,000, of which Rs. 1,94, 750 was as premium loan, Rs. 3,04,000 as working capital and Rs. 26,250 to be arranged by the appellant himself. This breakdown was according to the application cum receipt issued by the Khadi and Village Industries Commission which stated the cost of the project as Rs. 5,25,000.

The District Forum and State Commission both rejected the appellant’s stand, hence he approached NCDRC. The NCDRC was of the view that a mere assurance by the bank manager that a greater sum shall be sanctioned cannot be treated as a binding condition on the actual sanction of the loan. Since the letter of arrangement, which was issued on 30.06.2009, 4 days after the letter produced by the appellant, mentions the sanctioned amount as Rs. 5,25,000, the same has to be treated as final.

The counsel for the appellant drew the NCDRC’s attention to a nomination letter dated 31.03.2009 which stated the loan amount to be Rs. 9,50,000 and was duly attested by the respondent. However, more documentary evidence from July 2009, which admitted the actual amount to be Rs. 5,25,000 by the appellant himself was produced and hence the NCDRC held that a bank has to sanction loan by way of issuing a proper sanction letter and only the amount mentioned in the sanction letter can be said to be a loan amount sanctioned by the bank.

Having found no reason for interference with the decision of the lower authorities, the revision petition was dismissed. [Nisar Ahmed v. Branch Manager, State Bank of India, Revision Petition No. 2562/2017, decided on 24.05.2018]

Case Briefs

National Consumer Disputes Redressal Commission (NCDRC): The complainant is a Non-Resident Indian (“NRI”) residing in the USA. He booked a flat with the respondent which was duly allotted to him in August 2007. The agreement between the parties stated that the flat shall be delivered within three years of the allotment and a three-month grace period in case of force majeure subject to regular payment of instalments to the respondent. The flat booked was for a consideration of Rs. 98,13,760 of which Rs. 76,48,940 was paid by the complainant before he learnt that despite the expiry of the stipulated time period, no progress except a basic structure had been set up. He claimed a refund of deposited money with 18% interest. When the respondent failed to do so, the complainant approached the National Consumer Disputes Redressal Commission (“NCDRC”) claiming deficiency in service and unfair trade practices.

The respondent made a three-pointed objection to the same:

1. The NCDRC does not have pecuniary jurisdiction over this issue as it can only entertain complaints which involve a sum exceeding Rs. One crore.

2. Since the complainant is an NRI, he would have no intention of residing in the said property and would only sell it further for profit, hence he does not qualify as a ‘consumer’.

3. The delay in construction was due to force majeure as a stay order on the construction was passed by the High Court of Judicature at Hyderabad (“the High Court”), an interim stay order by the Andhra Pradesh Waqf Tribunal (“Tribunal”), and another order by the Tribunal restraining the respondent from alienating part of the property. These impediments could only be removed after an SLP filed in the Supreme Court vacated the stay and the construction was resumed.

The NCDRC referred to its previous decision in Ambrish Kumar Shukla v. Ferrous Infrastructure Pvt. Ltd., 2016 SCC OnLine NCDRC 1117 where it was held that “[I]t’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.”

In the case at hand, the complainant had claimed a refund of the amount already deposited, i.e. Rs. 76,48,940 with 18% interest as compensation, which, in total, would amount to a sum above Rs One crore and hence would fall within the pecuniary jurisdiction of the NCDRC under Section 21(a) of the Consumer Protection Act, 1986 (“the Act”).

The NCDRC also held that the Act makes no distinction between resident citizens of India and NRIs and the presumption that the complainant would only sell the fat for profit was not founded on any logic.

With regard to the force majeure argument, the NCDRC observed that over six years had passed since the stay had been vacated and if the respondent actually had any intention of delivering the possession of the flat, he could have done so within two years from the date of the vacation of the stay. Since he did not do this, he cannot use the defence of force majeure to escape his liability for delay.

The NCDRC also expressed disapproval towards clauses in the sale agreement which provided measly compensation in case of delay and no interest if the buyer himself cancelled the contract as these oppressive conditions would give undue advantage to the builder. Hence the complaint was allowed and the respondent was direct to repay the amount advanced by the complainant with 10% interest. [Ram Balakrishnan v.  Somitri Das, Consumer Case No. 236/2011, decided on 24.05.2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The NCDRC recently rejected an appeal against the West Bengal State Commission’s judgment, stating that the Commission’s intervention is called for only where there is an evident instance of the jurisdictional error. If not, the scope for interfering with the State Commission’s order is limited.

A home loan was procured by depositing loan document, memo of title deed etc. with the bank. When these documents were demanded back by the customer upon repayment of the loan, the bank refused, saying that despite several requests, the customer had not deposited the sale deed with the bank.

The aggrieved customer approached the district forum which held in his favour and ordered the bank to return all documents with a sum of Rs 35,000 in compensation. The bank appealed with the state commission which upheld the district forum’s order, observing that the bank requested for the sale deed two years after furnishing the loan, and had, earlier, already issued a no dues certificate to the customer, which indicated that the bank accepted completion of formalities by the customer.

The bank then approached the Commission and contended that the customer has not produced any evidence to show that he has deposited the relevant documents, while the customer maintained that the bank would not have issued the loan in the first place in absence of securing possession of a collateral, and the no dues certificate proved that the bank accepted the deposition of the title deeds and other loan documents.

The Commission held that the correspondence between the bank and the customer revealed how the bank of its own accord furnished the loan and issued a no dues certificate to the customer without ensuring completion of formalities and two years after issuing the loan it dawned upon the bank that it needs to obtain the sales deed. This callous attitude by the bank was surprising and as a matter of equity, a person sleeping on their rights cannot be granted a remedy. Hence the Commission was of the view that the bank could not file frivolous claims arising out of its own faults.

The Commission also referred to Ruby Chandra Dutta v. United India Insurance Co. Ltd., (2011) 11 SCC 269 where the Supreme Court held that the revisionary powers of the NCDRC should be invoked only when there are glaring errors in the interpretation of the law by the lower fora and not otherwise. Relying on this, the Commission found no lacunae in the decision by the State commission and rejected the Bank’s revision petition. [Manager, Bank of Baroda, Jodhpur Park branch, Kolkata v. Susanta Saha, Revision Petition No. 676/2017, decided on 16.05.2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): In an appeal against an order passed by the State Commission West Bengal, the National Consumer Disputes Redressal Commission (“the Commission”) considered whether the period of limitation commences from the date of knowledge of the order or from the date of receipt of the free certified copy of the order appealed against.

The State Commission had rejected the petitioner’s appeal on grounds of limitation. The district forum’s order, which rejected the petitioner’s claim due to the expiry of limitation period, was passed on August 8, 2017, but the petitioner applied for a certified copy only on November 4, 2017, and appealed to the State Commission 115 days after the date of limitation for such appeal. The State Commission was not satisfied with the petitioner’s explanations for delays at every step and dismissed the petition.

The petitioner argued that the delay in filing for the appeal was an unintentional as the District forum had violated Rule 5(10) of the West Bengal Consumer Protection Rules, 1987 which reads:

“Orders of the District Forum shall be signed and dated by the members of the District Forum and shall be communicated to the parties free of charge.”

The District Forum failed to provide the petitioner with a certified copy of the order free of cost, and further owing to financial difficulties arising as a result of demonetization, there was a delay in filing for the certified copy.

The Commission referred to the Supreme Court’s judgment in Housing Board Haryana v. Housing Board Colony Welfare Association, (1995) 5 SCC 672), where it was held:

“The date of pronouncement of the order in the open Court by itself cannot be the starting point of determining the period of limitation under Section 15 of the Act. It has also to be shown that the order of the District Forum so pronounced was duly signed and dated by the members of the District Forum constituting the Bench and the same was communicated to the parties free of the charge.

[M]ere pronouncement of an order in the open Court will not be enough but under the scheme of the Rules a copy of the said order has also to be communicated to the parties affected by the aid order so that the party adversely affected therefrom may have a fair and reasonable opportunity of knowing that text, reasons and contents thereof so as to formulate grounds of attack before the appellant or higher forums. In the absence of such communication of signed and dated order, the party adversely affected by it will have no means of knowing the contents of the order so as to challenge the same and get it set aside by the appellate authority or the higher Forums.”

Hence the Commission reaffirmed the duty of District Fora to supply certified copies free of cost to the parties in interest of consumers. The revision petition was allowed and the State Commission was directed to decide the matter as per law. [Rita Kesh v. Biswanath Singha,2018 SCC OnLine NCDRC 120, decided on 07-05-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): An amount of Rs 1 lakh has been imposed upon Malaysian Airline System Berhad as compensation for delay and damages caused to a consignment which was airlifted by the Airlines from Los Angeles to India.

Facts of the case are that the complainant Firm had engaged the services of the Malaysian Airlines for airlifting of the consignment from Los Angeles to India on November 12, 1999 but only a part of the consignment arrived in India on its scheduled date of December 15, 1999, and the other part came on January 6, 2000, in a damaged condition. Alleging deficiency on the part of Malaysian Airlines, complainant Firm filed complaint before Delhi State Commission. After hearing both the parties and considering factual aspects of the case, State Commission partly allowed the complaint and directed the Airlines to pay Rs. 75,000/- towards loss incurred on account of damage and delay and Rs.1,00,000/- for harassment, mental agony etc. Against the said order, an appeal was filed before the National Commission by the Airlines.

After perusal of material on record and hearing the submissions of both the parties, NCDRC modified the order passed by the State Commission and observed that as complainant Firm had not adduced any evidence to prove damage by pleading what was the price on the due date of delivery and what was the price on the actual date of delivery, it is appropriate to reduce compensation to Rs. 50,000/- against Rs. 75,000/- allowed by the State Commission towards damage caused to the goods as well delay in delivery of consignment. While partly allowing the appeal, National Commission further noted that as no reasons have also not been given by the State Commission for allowing compensation of Rs. 1,00,000/- towards harassment, mental agony, etc., it would be appropriate to reduce aforesaid amount of Rs. 1,00,000/- to Rs. 50,000/- to meet the ends of justice, as admittedly there was delay in delivery of consignment. [Malaysian Airline System Berhad v. Dentply India (P) Ltd., 2017 SCC OnLine NCDRC 3, decided on January 5, 2017]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): While rendering relief to a woman who failed to procure back her gold ornaments from Muthoot Finance Pvt. Ltd., which were pledged while taking a loan, NCDRC directed the Finance Company to reimburse the woman with the current value of 52 grams gold pledged in 2003 with it. Earlier, in Year 2003, the complainant pledged 52 grams of gold for Rs 21,000 with the Paravoor branch of Muthoot Finance Pvt. Ltd. When she approached the concerned branch in April 2004 to take back the ornaments by paying the loan amount with interest, they refused, saying that the ornaments had been transferred to their head office by mistake. Thereafter, she left the town where she was then living and settled in Ernakulam. In May 2011, she approached the Finance Company again to redeem the ornaments pledged, but the said ornaments were not returned to her. Being aggrieved, she approached District Forum with a complaint. Before the Forum, Company contended that the complaint was barred by limitation and it was also alleged that the complainant had not turned up after pledging the gold ornaments. The District Forum dismissed the complaint and an appeal in the matter was also rejected by Kerala State Commission. Hence, complainant filed revision petition before NCDRC. After hearing the parties and perusal of record, NCDRC rejected the contention of Muthoot Finance that the revision petition was barred by limitation and observed that in a case where the goods are held in trust for the depositor, the owner of the gold ornaments has a recurrent / continuing cause of action against the pledgee, till either the gold ornaments are returned to her or the pledgee refuses to return the said ornaments. NCDRC held that being a pledgee, Muthoot Finance is duty bound to either return the jewellery pledged by the complainant against payment of the principal amount with interest or to produce the proof of having sold the same, in case the jewellery stands sold on account of non-payment of the loan taken by the complainant but Muthoot Finance failed to do so. While rendering relief to the complainant, Commission noted, “If the ornaments were sold, there has to be proof of sending notice to the complainant, as well as proof of the actual sale. Since no such record is available with the respondent, it must necessarily tell us, where the jewellery of the complainant is. That having not been done, the respondent must necessarily pay the current value of the gold ornaments which was stated to be Rs.1,14,400/- to the petitioner / complainant, after adjusting the principal amount lent to the complainant, along with the agreed interest.”[Lathika C. v. Muthoot Finance Pvt. Ltd., 2016 SCC OnLine NCDRC 279, decided on July 4, 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC):While observing that damage to the goods caused due to moisture content following heavy rains would be covered under loss due to natural calamity, NCDRC set aside the order of Chattisgarh State Commission, affirming the repudiation of claim by Insurance Company in the matter and directed the Insurance Company to pay claim amount also with costs to the complainant. The facts of the case are that the complainant A.R. Trading Company, whose main occupation was to purchase Tendu leaves from the Government and sell it to Bidi manufacturing Companies, got the bags of Tendu Leaves insured under ‘Standard Fire and Special Perils Policy’ from Oriental Insurance Company Ltd. The bundles of dried Tendu Leaves were kept in bags safely in the godown. In December, 2007, at the time of selling the Tendu leaves, the Complainant observed that the leaves had turned black due to natural calamity, on account of excessive rain fall in that area and hence had become unfit for making Bidis. Therefore, the Complainant submitted claim before the Insurance Company which was repudiated on the ground that leaves were contaminated on account of absorption of moisture from the atmosphere, which is not covered under the Policy. Four separate complaints filed before Chattisgarh State Commission by the complainant in the matter were dismissed on the ground that the Standard Fire and Special Perils Policy covers the risk of fire, lighting, storm, cyclone, tempest, hurricane, tornado, flood and inundation, and as per the General Exclusion Clause No. 4 of the insurance policy, loss, destruction or damage caused to the insured property by pollution or contamination if loss to the insured property is due to natural rains or moisture , then it was not covered. Feeling aggrieved, complainant challenged the orders of Chattisgarh State Commission before NCDRC and filed four appeals. After perusal of material on record and hearing both the parties, NCDRC observed that admittedly, direct and proximate cause in this case for the rotting of Tendu leaves was the rainfall which had occurred during the same period. “In a number of cases under almost identical circumstances where claims had been repudiated under the Fire and Special Perils Policy on the ground that the damage caused to the insured stocks/ premises had been caused because of seepage caused due to heavy rains and not due to inundation, floods etc., we had concluded that the claim was wrongly repudiated since flood/inundation also means outpouring of water. On this analogy loss caused due to moisture content following heavy rains would be covered and the claim should in such circumstances be indemnified,” noted the Commission. While partly allowing all the four appeals, the Commission ordered payment of 50% of the claim amount along with costs of Rs. 10,000 in each case. [A.R. Trading Company v. Oriental Insurance Company Ltd., 2016 SCC OnLine NCDRC 270, decided on June 17, 2016]

Tribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): While taking note of enormous delay by builders in handing over the possession of the premises and rendering relief to flat buyers, NCDRC has directed a developer firm of Greater Noida to return the money of flat buyers with 18 percent interest. The court was hearing complaints filed by two flat buyers who contended that they had booked a three-bed room residential flat in the Parsvnath Privilege Complex situated in Greater Noida and the builder had promised to handover possessions of their flats within 36 months. It was alleged in the petitions that even after full payment and a huge delay of four years, Parsvnath Developers failed to deliver the possession of the flats. While rejecting the contention of Parsvnath Developers that NCDRC had no jurisdiction in the matter and the case comes within the jurisdiction of the State Commission, NCDRC ordered Parsvnath Developers to return Rs 50,78,998 and Rs 56,02,399 respectively, to both the flat buyers with 18 percent interest. Apart from the said amount, developer firm was also directed to pay the buyers Rs 7 lakh for causing mental torture, anxiety and frustration and Rs 2 lakh as costs for litigation. (Subhash Chander Mahajan v. Parsvnath Developers Ltd., Consumer Complaint No. 144 of 2011, decided on May 5, 2014)

To read the full judgment, click here