Apex Law Journal
Apex Law Journal
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Editor

Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Consumer Protection Act, 1986

Tuesday, September 06, 2011
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Sections 22(2) and 22-A — Power to review or recall — After the 2002 Amendment, the National Commission has specific power to  review or recall its ex-parte order — This power is vested with the National Commission only.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Sections 13(4), 13(4)(vi), 30(1) and Sections 12(3), 13, 14, 17, 17-A, 18, 22, 22-A — Consumer Protection Regulations 2005, Regulation 26(1) — The District Consumer Forums and the State Commissions do not have the power to set aside their own ex parte orders — In other words they do not have the power to recall or review their own orders — The decision in Jyotsana’s case (1999) 4 SCC 325 laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. (2000) 3 SCC 242 is untenable and cannot be sustained.

 
Tuesday, December 07, 2010
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(d)(ii) and Section 2(1)(c) — Chandigarh Allotment of Land to Co-operative House Building Societies Scheme, 1991 — Whether the members of the Societies were consumer of the service rendered by the Chandigarh Administration and the Board in the matter of allotment of land to the Societies under the 1991 Scheme — Held, yes — The complaints filed by the members were maintainable — Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 relied.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(o) — Consumer Protection (Amendment) Act, 1993 — Whether housing construction or building activity carried on by a private or statutory body was service within the meaning of Section 2(o) as it stood prior to inclusion of the expression ‘housing construction’ in the definition? — Held, yes — Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 relied.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(c) readwith Sections 11, 17 and 21 — Public authorities are amenable to the jurisdiction of the consumer foras — Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 relied.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(c) and Section 2(1)(o) — Deficiency of service in relation to immovable properties — Complaint — Whether maintainable? — Held, yes — The Act is not confined to movable goods only — The consumer foras have jurisdiction to deal with complaint of deficiency of service in relation to immovable properties — Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 relied.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(c) — Whether the consumer foras can entertain a complaint in the matter of allotment of plot or construction of a flat by statutory authority? — Held, yes — Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 relied.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(c) — Complaint against statutory body — Whether can be entertained? — The test to determine whether a complaint against a statutory body can be entertained, held,  is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility — Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 relied.

 
Saturday, September 25, 2010
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(k) readwith Section 20 — National Commission, held, is a high-powered adjudicating forum headed by a sitting or a retired judge of the Supreme Court.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 22(1) — A perusal of Section 22(1) would show that Sections 12, 13 and 14 of CP Act, with necessary modification, are applicable to the decision making process by the said Commission.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 13 — Under Section 13 of the CP Act, the District Forum has been vested, in certain matters, with the powers of a Civil Court while trying a suit.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 13(4) readwith Section 22(1) — Section 13(4) of CP Act, held, is applicable to the National Commission in view of Section 22(1).

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Sections 13(5), (6) and (7) readwith Section 22(1) — Held, Sections 13(5), (6) and (7) will apply to the National Commission in view of Section 22(1).

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 22 readwith Sections 13(4), (5), (6) and (7) — Held, on a perusal of Sections 13(4), (5), (6) and (7) of the CP Act, it is clear that the National Commission has been vested with some of the powers of a Civil Court.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Sections 21 and 22 — National Commission, held, has the trappings of a Civil Court and is a high-powered quasi-judicial forum for deciding lis between the parties.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 21(1)(b) — Revision petition — Dismissed by the National Commission without assigning any reason and by just affirming the order of the State Commission — Held, order passed by the NCDRC dismissing the revision petition is hereby set aside — Matter remanded back to the said forum for deciding the matter by passing a reasoned order.

 
Friday, July 16, 2010
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Evidence Act, 1872 — Complaints before consumer forum are tried summarily and Evidence Act in terms does not apply.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Expert evidence in cases relating  medical negligence — Held, the Fora is not bound in every case to accept the opinion of the expert witness — Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.   

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Expert evidence in cases relating  medical negligence — Before the consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case — The discretion in this matter is left to the members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively — Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence — When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions — The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man — The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence — In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated — In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness — Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Expert evidence in cases relating  medical negligence — A careful reading of the principles laid down by this Court in Indian Medical Association  [(1995) 6 SCC 651] makes the following position clear:-

 (a) There may be simple cases of medical negligence where expert evidence is not required. 

 (b) Those cases should be decided by the Fora under the said Act on the basis of the procedure which has been prescribed    under the said Act.

 (c) In complicated cases where expert evidence is required the parties have a right to go to the Civil Court.

(d) That right of the parties to go to Civil Court is preserved under Section 3 of the Act.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Expert evidence in cases relating  medical negligence — Directions given by the two-Judge bench in the case of Martin F. D’souza v. Mohd. Ishfaq, reported in 2009 (3) SCC 1 Paragraph 106, to the effect that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned, held, are contrary to  (a) the law laid down in paragraph 37 of Indian Medical Association [(1995) 6 SCC 651], (b) and paragraph 19 in Dr. J.J. Merchant [(2002) 6 SCC 635], (c) those directions in paragraph 106 of D’souza [2009 (3) SCC 1] equate medical negligence in criminal trial and negligence fastening civil liability whereas the earlier larger Bench in Mathew [(2005) 6 SCC 1] elaborately differentiated between the two concepts, (d) Those directions in D’souza (supra) are contrary to the said Act which is the governing statute, (d) those directions are also contrary to the avowed purpose of the Act, which is to provide a speedy and efficacious remedy to the consumer. If those general directions are followed then in many cases the remedy under the said Act will become illusory, (f) those directions run contrary to principle of ‘Res ipsa loquitur’ which has matured into a rule of law in some cases of medical negligence where negligence is evident and obvious.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Expert evidence in cases relating  medical negligence — Before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion — This Court makes it clear that in these matters no mechanical approach can be followed by these Fora — Each case has to be judged on its own facts — If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.

 
Sunday, February 28, 2010
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(c) read with Section 2(1)(b) — Complaint — Maintainability of — Whether the document executed by the assured in favour of the insurer is a subrogation simpliciter, or a subrogation-cum-assignment is relevant only in a dispute between the assured and the insurer — It may not be relevant for deciding the maintainability of a complaint under the Act — If the complaint is filed by the assured (who is the consumer), or by the assured represented by the insurer as  its attorney holder, or by the assured and the insurer jointly as complainants, the complaint will be maintainable, if the presence of insurer is explained as being a subrogee — Whether the amount claimed is the total loss or only the amount for which the claim was settled would make no difference for the maintainability of the complaint, so long as the consumer is the complainant (either personally or represented by its attorney holder) or is a co-complainant along with his subrogee — On the other hand, if the assured (who is the consumer) is not the complainant, and the insurer alone files the complaint in its own name, the complaint will not be maintainable, as the insurer is not a ‘consumer’, nor a person who answers the definition of ‘complainant’ under the Act — The fact that it seeks to recover from the wrongdoer (service provider) only the amount paid to the assured and not any amount in excess of what was paid to the assured will also not make any difference, if the assured–consignor is not the complainant or co-complainant — The complaint will not be maintainable unless the requirements of the Act are fulfilled — The remedy under the Act being summary in nature, once the consumer is the complainant or is a co-complainant, it will not be necessary for the Consumer Forum to probe the exact nature of relationship between the consumer (assured) and the insurer, in a complaint against the service provider.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(d) — Consumer — Interpretation of — Held, there is frequent misconstruction of para 23 of the decision in Oberai Forwarding Agency v. New India Assurance Co. Ltd. – 2002 (2) SCC 407 by some carriers — The said para does not mean that when the consignment is received by the carrier from the consignor and put it in the course of transportation, the carrier has provided the service and thereafter either ceases to be a service provider or ceases to be responsible for delivery of the goods, and that consequently, the consignor ceases to be a ‘consumer’ — All that para 23 of Oberai meant was that in a contract for carriage of goods between the consignor (assured) and the carrier, if the consignor assigns the right to claim damages to an assignee, after the goods are lost or damaged, the assignee cannot claim to be a “consumer” under the Act — It impliedly meant that if the assignment had been done before the loss or damage to the goods, then the assignment would have been in regard to ‘property’ and not a mere right to sue, and the assignee as consignee would be entitled to sue the carrier.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(c) read with Section 2(1)(b) — Complaint by insurer as subrogee — Maintainability of — The insurer, as subrogee, held, can file a complaint under the Act either in the name of the assured (as his attorney holder) or in the joint names of the assured and the insurer for recovery of the amount due from the service provider — The insurer may also request the assured to sue the wrong doer (service provider).

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(c) read with Section 2(1)(b) — Complaint by insurer — Maintainability of — Even if the letter of subrogation executed by the assured in favour of the insurer contains in addition to the words of subrogation, any words of assignment, the complaint would be maintainable so long as the complaint is in the name of the assured and insurer figures in the complaint only as an attorney holder or subrogee of the assured.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(c) read with Section 2(1)(b) — Complaint by insurer — Maintainability of — The insurer cannot in its own name maintain a complaint before a consumer forum under the Act, even if its right is traced to the terms of a Letter of subrogation-cum-assignment executed by the assured.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(c) read with Section 2(1)(b) — Complaint by insurer — Maintainability of — Decision in Oberai Forwarding Agency v. New India Assurance Co. Ltd. – 2002 (2) SCC 407, to the extent that an insurer alone cannot file a complaint under the Act, held, is correct.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(c) and Section 14(1)(d) — Carriers Act, 1865, Section 9 — Complaint against carrier — Contention of the appellant that the presumption under section 9 of Carriers Act is not available in a proceeding under the Consumer Protection Act and that therefore, in the absence of proof of negligence, it is not liable to compensate the respondents for the loss — Held, not tenable — Section 14(1)(d) of the Act does not operate to relieve the carrier against the presumption of negligence created under Section 9 of the Carriers Act.

 
Friday, December 04, 2009
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 17(2) — Expression ‘branch office — Held, the expression ‘branch office’ in the amended Section 17(2) would mean the branch office where the cause of action has arisen — No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singh’s Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79].

 
Wednesday, December 02, 2009
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(d)(g) & (o) and Section 11 — Telegraph Act, Section 7-B — Dispute in respect of telephone bills — Whether Consumer Forum has jurisdiction to decide such dispute? — Held, no — When there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. 

 
Wednesday, October 14, 2009
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 12 — Petition under — Petitioner appellant an auction purchaser of truck — Made full and final sale consideration in compliance of sale — Sale confirmed in favour of appellant — Possession of vehicle not delivered to the appellant for about 6 months and the documents thereof withheld  for more than five years — Petition u/s 12 of the Act filed before District Consumer Forum which is dismissed on the ground that the appellant is not ‘consumer’ within the definttion of the Act — Appeal before State Commission also dismissed with certain observation — Appeal before National Consumer Redressal Commission was partly allowed and granted damages to the extent of Rs. 25,000/- along with cost of Rs. 5,000/- payable by the respondents to the appellant — Feeling aggrieved auction purchaser Madan Kumar as well as respondents preferred SLP — Appeal arising out of the CLP filed by Madan Kumar allowed with cost and the appeal by other party is dismissed with cost — Held — In this case also, keeping the circumstances under which appellant was made to run from pillar to post, to get the documents of the truck from the respondents, we are of the opinion that ends of justice would be met if interest at the rate of 6%p.a. from the date of the original application till actual payment of the aforesaid enhanced awarded amount is made by the respondents. We accordingly do so. The appeal arising out of SLP(C) No.20515 of 2005 is allowed with costs and Appeal arising out of SLP (C) No.11210 of 2006 is dismissed with costs. Counsel fee assessed at Rs.10,000/- each.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2 (1) (d) — “Consumer” — The appellant/auction purchaser bought the truck in question for plying it for his livelihood — Whether  the appellant can be said to be ‘consumer’ within the definition of Section2(1)(d) of the Act; — Held, yes. “It may also be seen that the purchase of the truck by the appellant would also be covered under explanation to Section 2(1)(d) of the Act. The appellant had mentioned categorically that he had bought the said truck to be used exclusively by him for the purpose of earning his livelihood, by means of selfemployment. Even if he was to employ a driver for running the truck aforesaid, it would not have changed the matter in any case, as even then appellant would, have continued to earn his livelihood from it and of course, by means of selfemployment. Furthermore, there is nothing on record to show that he wanted to use the truck for any commercialpurpose”.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2 (1) (g) (o) — “Deficiency in service” — The respondents withheld the possession of the truck for six month and documents thereof for more than six year despite confirmation of sale in favour of appellant/auction purchaser — Whether it can be said that there has been deficiency in the services committed by respondents as contemplated under Section 2(1)(g) of the Act — Held, yes.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 12 — Petition under — Quantum of damages — National Consumer Redressal Commission in impugned judgment has awarded the damages of Rs 25,000/- with cost of Rs. 5,000 — Whether the amount of compensation awarded to the appellant is just and proper or deserves to be enhanced — Observed — Even though the appellant claimed damages @ Rs.500/- per day and interest at 5% on the amount of Rs.70,000/- deposited by him for the price of the truck in addition, he further claimed damages for mental and social injuries to the tune of Rs.50,000/- + litigation expenses but in absence of any cogent and valid evidence available on record, it is not proper to consider the reliefs as claimed by the appellant. However, there is no doubt that the appellant suffered loss of earning firstly due to non-delivery of vehicle and then due to highly belated supply of requisite documents. Moreover, the value of the truck also depreciated resulting in further loss to him. Thus, in our opinion, the amount awarded by National Commission is too meager and deserves to be enhanced. Held, taking the totality of the situation as it exists, we are of the opinion that a total amount of Rs. 1,00,000/- payable by respondents jointly or severally to the appellant would subserve the justice.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 12 — Petition under — Award of interest — Held — Even though the Act specifically does not authorise to grant interest but inappropriate cases, grant of interest on the facts and circumstances of the case is permissible. The same has been done by this Court in long catena of cases — In this case also, keeping the circumstances under which appellant was made to run from pillar to post, to get the documents of the truck from the respondents, we are of the opinion that ends of justice would be met if interest at the rate of 6% p.a. from the date of the original application till actual payment of the aforesaid enhanced awarded amount is made by the respondents. We accordingly do so.

 
Wednesday, March 11, 2009
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(d) read with Section 2(1)(m) — Is a private limited company a ‘person’ as contemplated under Section 2(1)(d) ? — Held, yes.  

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(m) — Held, Section 2(1)(m) which enumerates four categories namely, (i) a firm whether registered or not; (ii) a Hindu undivided family; (iii) a co-operative society; and (iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not while defining ‘person’ cannot be held to be restrictive and confined to these four categories as it is not said in terms that ‘person’ shall mean one or other of the things which are enumerated, but that it shall ‘include’ them.

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(m) — While defining ‘person’ in Section 2(1)(m), the Legislature never intended to exclude a juristic person like company.  

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Section 2(1)(m) — The definition of ‘person’ in Section 2(1)(m) is inclusive and not exhaustive. 

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Sections 2(1)(d)(ii), 2(1)(o) & 2(1)(g) — For the purposes of the maintainability of the complaint, what is important to be seen is whether there is deficiency in service within the meaning of Section 2(1)(d)(ii). 

 
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Sections 2(1)(o) & 2(1)(g) — Supply of electricity — Held, supply of electricity by the Board or for that matter KPTC to a consumer would be covered under Section 2(1)(o) being ‘service’ and if the supply of electrical energy to a consumer is not provided in time as is agreed upon, then under Section (2)(1)(g), there may be a case for deficiency in service.  

 
Friday, February 13, 2009
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Accident — Claim petition — Rejected by the District Consumer Disputes Redressal Forum on the ground that vehicle was being used as a commercial vehicle and the driver did not have a valid driving licence — Appeal against — Allowed on the ground that even though the vehicle was being used as a commercial vehicle and the driver did not have a valid driving licence, there was no fundamental breach of the terms of the policy — Held, the State Commission and the National Commission have not practically indicated any reason for coming to the conclusion that there was no fundamental breach of the terms of the policy — Orders of the State Commission and the National Commission are unsustainable, deserve to be set aside — Orders set aside.

 

 
Wednesday, August 13, 2008
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — In case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.

 
Tuesday, July 15, 2008
Consumer Protection Act, 1986

Consumer Protection Act, 1986 — Whether Consumer Forums have jurisdiction to entertain the dispute between a chit fund and one of its prized subscribers or between the prized subscribers? — Held, in M/s Dwarkadish Chits Pvt. Ltd. and Anr. vs. Sanju Ram Aggarwal, in First Appeal No.590 of 1992 decided on 13th January, 1995 reported in (1986-96) National Commission and SC on Consumer Cases 2469 (NS), the National Commission has held that Consumer Forums have no jurisdiction to entertain the dispute between a Chit fund and one of its prized subscribers or between the prized subscribers.

 
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