Whether court can direct plaintiff to amend his pleading permitting defendant to file additional written statement?

The party which moves the forum is dominus litis and is entitled to decide whether or not to amend the pleading or to pursue the complaint, as it stands. 

11 To recapitulate, in the situation as it stands at present, the appellant could take recourse to either of three courses of action, namely:

(i) pursue the complaint as it stands; or

(ii) amend the complaint to challenge the letter of repudiation; or

(iii) withdraw the existing complaint with liberty to institute a fresh complaint to challenge the letter of repudiation.

12 The error in the order of the NCDRC was to compel the appellant to amend the complaint, as a consequence of which, it granted permission to the first respondent to file a written statement to the amended complaint. The effect of this would be to deprive the appellant of the benefit of urging that written statement cannot be filed at this stage in view of the judgment of the Constitution Bench in Hilli Multipurpose Cold Storage Private Limited (supra). The deprivation of the right to set up such a plea is a matter of prejudice to the appellant which is a result of the impugned order of the NCDRC. We clarify that we have not expressed any opinion on whether the respondent can file a written statement since this does not form the subject matter of the present appeal. We hold that the appellant could not have been directed to amend the complaint to challenge the repudiation of the contract of insurance.

The appellant has stated that it does not wish to do so. This is a decision which has to be taken by the appellant and it cannot be compelled to amend the complaint.

 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos 4476-4477 of 2021

M/s Acme Cleantech Solutions Private Limited  Vs M/s United India Insurance Company Limited 

Author: Dr Dhananjaya Y Chandrachud, J

Dated: December 09, 2021

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Supreme Court: Compensation for an accident should be calculated based on entitlement of employee without deduction of allowances

The consolidated amount is the amount annually borne by the employer

on account of the employment of the deceased. Hence, we are unable to accept the

reasons which weighed with the NCDRC in making a deduction of AED 30,000 from the

total CTC. Similarly and for the same reason, we are unable to accept the submission

of Air India that the transport allowance should be excluded. The bifurcation of the

salary into diverse heads may be made by the employer for a variety of reasons.

However, in a claim for compensation arising out of the death of the employee, the

income has to be assessed on the basis of the entitlement of the employee.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 2914 of 2019

Triveni Kodkany Vs  Air India Limited 

Dr Dhananjaya Y Chandrachud, J

Dated:March 03, 2020.

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Distinction between basement parking,parking area and garage

BASEMENT PARKING

19. The next question which arises for consideration is as to whether the basement parking

provided by the developer for the allottees qualifies as a garage or it qualifies as the basement or

parking areas, which are included in the definition of common areas and facilities in Delhi

Apartments Ownership Act. It is stated in a Note submitted by the Developer on parking that this

is a three level basement parking, which affords full protection and shelter to the car not only from

the top but also from the three sides and is equipped with security cameras and manned by

security personnel inside the basement, outside the basement and on the gates of the Complex and

therefore, the aforesaid place is much superior to a standalone garage, which is either open from

the front or is protected only by a lock. It was submitted on behalf of the complainants that to an

ordinary person a garage would mean a place, which is provided to a particular allottee, to the

exclusion of all others and which can be individually locked by him in order to ensure the

protection and safety of his vehicle. Both the parties have relied upon the decision of the Hon’ble

Supreme Court in Nahalchand Laloochand P. Ltd Vs. Panchali Co-Op. Housing Society Ltd.

(2010) 9 SCC 536 , in support of their respective submissions.

20. In Nahalchand (supra), the developer had provided stilt parking spaces / open parkings and

had declared that the said parking would belong exclusively to them. The question which arises

for consideration before the Hon’ble Supreme Court were as to (i) whether the standalone garage

provided by the developer as an independent unit by itself was a flat, (ii) whether stilt parking

space / open parking space of a building regulated by MoFA is a garage and (iii) whether the stilt

parking space / open parking in such a building is part of common areas and facilities. Having

examined the aforesaid questions in the light of the provisions of Maharashtra Ownership of Flat

Act (MOFA) and Development Control Regulation (DCR), the Hon’ble Supreme Court inter-alia

held as under:

“ 41. It is clear to us that stand alone “garage” or in other words “garage” as an

independent unit by itself is not a “flat” within the meaning of Section 2(a-1).

48. What is contemplated by a “garage” in Section 2(a-1) is a place having a roof and

walls on the three sides. It does not include an unenclosed or uncovered parking space.

51. For the purposes of MOFA, and particularly Section 2(a-I), the term “garage” must

be considered as would be understood by a flat purchaser and such person would

contemplate garage which has a roof and wall on three sides.

56. It was argued that under MOFA it is for the promoter to prescribe and define at the

outset the “common areas” and unless it is so done by the promoter, the parking area

cannot be termed as part of “common areas”. We are quite unable to accept this

submission. Can a promoter take common passage/lobbies or say stair case or RG area

out of purview of `common areas and facilities' by not prescribing or defining the same in

the `common areas'? If the answer to this question is in negative, which it has to be, this

argument must fail.

57. It was also submitted that by treating open/stilt parking space as part of `common

areas', every flat purchaser will have to bear proportionate cost for the same although he

may not be interested in such parking space at all. We do not think such consideration is

relevant for the consideration of term `common areas and facilities' in MOFA. It is not

necessary that all flat purchasers must actually use `common areas and facilities' in its

entirety. The relevant test is whether such part of the building is normally in common use.

58. Then it was submitted that if a parking space is sold to a flat purchaser, it is to the

exclusion of other flat purchasers and, therefore, logically also it cannot be part of

`common areas'. This submission is founded on assumption that parking space

(open/covered) is a `garage' and sellable along with the flat. We have, however, held in

our discussion above that open to the sky parking area or stilted portion usable as parking

space is not `garage' within the meaning of Section 2 (a-1) and, therefore, not sellable

independently as a flat or along with a flat.”

21. The following position emerges from the decision of the Hon’ble Supreme Court in

Nahalchand (supra):

a) The standalone garage is not a flat

b) Every space for parking motor vehicle is not a garage.

c) For the purpose of MoFA, the term “Garage” must be considered as would be

understood by a flat purchaser and

d) A garage must have a roof and wall on three sides.

22. As noted earlier, the basement is included in the definition of common areas and facilities

given in Section 3(j) of the Delhi Apartments Ownership Act. The parking areas are also

expressly included in the definition of common areas and facilities. The basements would mean

every basement provided in a multi-storeyed building irrespective of the use to which the

basement is put. Delhi Apartments Ownership Act does not exclude, from the purview of the

term common areas and facilities, a basement, which is used for car parking. Likewise, parking

areas, irrespective of whether such areas are open or covered, whether they are provided on the

surface or in the stilt area or in the basement would be a part of the common areas and facilities in

relation to a multi-storeyed building. A basement does not lose its character as such, merely on

account of use to which it is put. Similarly, a parking area is an area meant for parking of the

vehicles, wherever such areas may be located. As far as the term ‘garage’ used in Section 3(c) of

the Delhi Apartment Ownership Act is concerned, this in my opinion, contemplates a covered

space, which is provided for the exclusive use of a particular apartment owner and the other

apartments owner have no right in such a space, which necessarily needs to have roof and covered

atleast on three sides. To an ordinary apartment owner, a garage means a place where he can

safely park his vehicle under his own lock and key, to the complete exclusion of the other

apartment owners, though such garage need not necessarily be adjacent to the building in which

the apartment is located. The basement used for a parking the cars, in my opinion, does not

qualify as a garage since an individual allottee cannot put his own lock and key on it and despite

the security provided at the entrance of the basement and elsewhere in the building, it cannot be as

safe as an individual garage which can be locked by its allottee. If a standalone garage is

provided to an allottee, there is hardly any scope for an outsider accessing the said garage unless,

he breaks the locks put by the allottee on the garage. On the other hand, a basement used for car

parking of a large number of allottees is accessible to all of them and therefore, does not ensure

security and safety of the level available in a standalone.

23. It is true that nothing in law prevented the developer form charging the cost of the club area

and basement parking from the allottees, who were to pay on the basis of the super area which

included not only the apartment area but also the common area of the building. But, having not

done that, the developer cannot be allowed to charge separately from the allottees for the club area

and the basements used for car parking. In Nahalchand (supra), the Hon’ble Supreme Court,

while observing that the promotor is not put to any prejudice financially by treating open parking

space / standalone parking spaces as part of the common areas since he is entitled to charge for the

same, held that if a promotor does not fully disclose the common areas and facilities he does so at

his own peril. It was further observed that the standalone parking space would not cease to be a

part of the common areas and facilities, merely because the promotor has not described the same

as such in the advertisement or agreement with the flat purchaser. Since, the developer herein, did

not include the club area and the basement designated for car parking, amongst the common areas

and facilities of the building at its own peril and must necessarily bear the consequences of the

such an act on its part. The developer cannot be allowed to charge for the common areas and

facilities which he deliberately did not include as a part of the said areas and facilities.

24. It was also submitted on behalf of the developer that had the club area and basement parking

been included while determining the sale price of the apartments, the cost to the allottees would

have been much higher. Even if that is so, the law did not permit the developer from excluding

the said areas, while determining the price of the apartment on the basis of its super area

comprising the apartment area as well as the common area.

25. For the reasons stated hereinabove, I hold that the developer is not entitled to recover the

charges for the club area and car parking from the allottees. The club Area and the Basement

Parking being common to all the allottees, it would be for the Association of Apartment Owners

to regulate use by the allottees.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

CONSUMER CASE NO. 351 OF 2015

CAPITAL GREENS FLAT BUYER ASSOCIATEION  Vs  DLF UNIVERSAL LIMITED & ANR.

BEFORE:

HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER

Dated: 3-1-2020

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Basic principles for determining whether an activity or transaction is for a commercial purpose

To summarize from the above discussion, though a straight-jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is 'for a commercial purpose':

(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, 'commercial purpose' is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.

(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity.

(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.

(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of 'generating livelihood by means of self-employment' need not be looked into.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 12322 of 2016

Decided On: 14.11.2019

 Lilavati Kirtilal Mehta Medical Trust  Vs.  Unique Shanti Developers and Ors.

Hon'ble Judges/Coram:

Mohan M. Shantanagoudar and Ajay Rastogi, JJ.

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Supreme Court: Government servant can not raise dispute about his service conditions or for service benefits before consumer forum

After considering relevant cases on the point, this Court

concluded as under:

“20. In view of the above, it is evident that by no

stretch of imagination can a government servant raise

any dispute regarding his service conditions or for

payment of gratuity or GPF or any of his retiral

benefits before any of the forum under the Act. The

government servant does not fall under the definition

of a “consumer” as defined under Section 2(1)(d)(ii)

of the Act. Such government servant is entitled to

claim his retiral benefits strictly in accordance

with his service conditions and regulations or

statutory rules framed for that purpose. The

appropriate forum, for redressal of any of his

grievance, may be the State Administrative Tribunal,

if any, or the civil court but certainly not a forum

under the Act.

21. In view of the above, we hold that the government

servant cannot approach any of the forum under the

Act for any of the retiral benefits.”

The decision of this Court rendered in Jagmittar Sain

Bhagat was holding the field when the matter was decided by

the State Commission and the National Commission. A plea was

squarely raised by the appellants about the inapplicability of

the provisions of the Act. However, that plea was not gone

into.

In keeping with the principles laid down by this Court in

the case of Jagmittar Sain Bhagat, we hold that the complaint

in the present case was not maintainable before the District

Forum under the provisions of the Act.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL N O.8472 OF 2019

MINISTRY OF WATER RESOURCES  Vs  SHREEPAT RAO KAMDE 

UDAY UMESH LALIT, J.
Dated:NOVEMBER 06, 2019

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Whether Consumer Forum Has Jurisdiction To Adjudicate Dispute Concerning Validity Of Statutory Due Arising Out Of Deficiency In Service?

We may also refer to the case of Ghaziabad Development
Authority (supra) wherein this Court, relying upon Lucknow
Development Authority case (supra), held that the power of the
Consumer forum extends to redressing any injustice rendered upon
a consumer as well as over any mala fide, capricious or any
oppressive act done by a statutory body. The relevant para of the
judgment reads as under:

“6. ….Thus, the law is that the Consumer
Protection Act has a wide reach and the
Commission has jurisdiction even in cases of
service rendered by statutory and public
authorities. Such authorities become liable to
compensate for misfeasance in public office i.e. an
act which is oppressive or capricious or arbitrary
or negligent provided loss or injury is suffered by
a citizen.
…
Where there has been capricious or arbitrary
or negligent exercise or nonexercise
of power
by an officer of the authority, the
Commission/Forum has a statutory obligation
to award compensation. If the
Commission/Forum is satisfied that a
complainant is entitled to compensation for
loss or injury or for harassment or mental
agony or oppression, then after recording a
finding it must direct the authority to pay
compensation and then also direct recovery
from those found responsible for such
unpardonable behaviour.
(emphasis supplied)
22. Therefore, in line with the law laid down by us, we hold that the
determination of the dispute concerning the validity of the
imposition of a statutory due arising out of a “deficiency in service”,
can be undertaken by the consumer fora as per the provisions of
the Act. The decision of this Court in the case of Sunita (supra),
wherein it was held that NCDRC has no jurisdiction to adjudicate
the legitimacy of the aforementioned statutory dues, was rendered

without considering any of the previous judgments of this Court
and the objects of the Act. Consequently, the law laid down in the
aforesaid case does not hold good before the eyes of law, and is
thereby overruled.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SLP (C ) NO. 4272 OF 2015

PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY (NOW GLADA) Vs VIDYA CHETAL

N.V. RAMANA, J.
Dated:SEPTEMBER 16, 2019.

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NCDRC Directs Make My Trip To Pay compensation as they had changed tour package three days prior date of departure

 It is argued by learned counsel that the respondent had received the final itinerary before the

date of departure and thus, he was very well aware of the tour programme and since he has

availed the facility, he cannot now complaint about it. It is submitted that there was no deficiency

in service on their part and the findings are therefore perverse. On behalf of the respondent it is

argued that this final itinerary was given to the respondent after receipt of the entire tour amount

on the basis of the earlier itinerary given through email. It is submitted that the respondent

decided to avail the services of the petitioner only on the basis of the itinerary sent to him through

email dated 15.5.2018. It is further argued that as per the policy of the petitioner, the cancellation

is permissible ten days prior to the scheduled date departure, otherwise the deposited amount was

liable to be forfeited. It is submitted that had the respondent cancelled the tour after receiving the

final itinerary, the petitioner would have forfeited the entire amount deposited by the respondent.

It is further argued that this practice on the part of the petitioner, to induce its customer by sending

an itinerary which they alleges is a provisional one and later on completely changing the said

itinerary and supplying a totally different itinerary after receiving the entire tour amount and

leaving no option with the consumers for cancellation of the tour, and

threatening the customer with forfeiture of their entire amount, amounts to deceptive, restrictive

and unfair trade practices.

8. We have given thoughtful consideration to the argument. All these contentions have been

considered by the District Forum and on the basis of evidences led by parties, the District Forum

had given findings. These contentions of both the parties were again heard in appeal by the State

Commission and the State Commission after appreciating the evidences gave the finding on the

facts which has been impugned before us.

9. Admittedly a tentative itinerary was sent by the petitioner to the respondent on 19 th

September, 2015 on the basis of which the respondent booked the tour and paid the entire tour

amount. The schedule date of departure was 18 th October, 2015. Three days prior to the date of

departure, the so-called final itinerary was given to the respondent. It is also not disputed by the

petitioner that the brochure allows the petitioner to forfeit the entire tour amount submitted by the

respondent in case of cancellation of the tour between 10 days preceding the schedule date of

departure. It means that the respondent was left with no option but to avail the tour. This practice

or this act of the petitioner not only amounts to deceptive act but also amounts to unfair and

restrictive trade practice. Findings of the Fora below are thus based on the admitted facts. We find

no reason to interfere in the findings of the Fora below.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 1146 OF 2018

(Against the Order dated 03/01/2018 in Appeal No. 668/2016 of the State Commission West

Bengal)

 MAKEMYTRIP (INDIA) PVT. LTD. Vs  MANABENDRA SAHA ROY

BEFORE:

HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER

HON'BLE MR. C. VISWANATH,MEMBER

Dated : 05 Jul 2019

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Leading judgment on compensation for medical negligence

 In P.B. Desai vs State of Maharashtra & Anr. (2013)15 SCC 481 , the ‘Duty of Care’

which a doctor owes towards his patient has been clearly explained as follows:-

“Once, it is found that there is ‘duty to treat’ there would be a corresponding ‘duty to

take care’ upon the doctor qua/his patient. In certain context, the duty acquires

ethical character and in certain other situations, a legal character. Whenever the

principle of ‘duty to take care’ is founded on a contractual relationship, it acquires a

legal character. Contextually speaking, legal ‘duty to treat’ may arise in a contractual

relationship or governmental hospital or hospital located in a public sector

undertaking. Ethical ‘duty to treat’ on the part of doctors is clearly covered by Code

of Medical Ethics, 1972. Clause 10 of this Code deals with ‘Obligation to the Sick’

and Clause 13 cast obligation on the part of the doctors with the captioned “Patient

must not be neglected”.

Having regard to what the Hon’ble Supreme Court has laid down about the ‘Duty of Care’ to be

followed by a medical professional viewed from any angle, it cannot be construed that ‘Duty of

Care’ of a treating doctor ends with the ‘Surgery’. (Emphasis Supplied)

22. This Commission has also held in P.D. Hinduja National Hospital & Medical Research

Centre Vs. Mrs. Veera Rohinton Kotwal, II (2018) CPJ 342 (NC), that the ‘Duty of Care does

not end with the Surgery’.

23. We find it a fit case to place reliance on the judgement of the Hon’ble Supreme Court in

Arun Kumar Manglik Vs. Chirayu Health And Medicare Private Limited & Anr., 2019 (3)

in which the Hon’ble Apex Court has laid emphasis on ‘Patient SCALE 333, Centric Approach’

and observed that the ‘Standard of Care’ as enunciated in the Bolam Case must evolve in

consonance with its subsequent interpretation by English and Indian Courts.

24. In Halsbury’s Laws of England the degree of skill and care required by a medical

practitioner is detailed as follows:-

“The practitioner must bring to his task a reasonable degree of skill and knowledge,

and must exercise a reasonable degree of care. Neither the very highest nor a very

low degree of care and competence, judged in the light of the particular

circumstances of each cases, is what the law requires, and a person is not liable in

negligence because someone else of greater skill and knowledge would have

prescribed different treatment or operated in a different way; nor is he guilty of

negligence if he has acted in accordance with a practice accepted as proper by a

responsible body of medical men skilled in that particular art, even though a body of

adverse opinion also existed among medical men.

Deviation from normal practices is not necessarily evidence of negligence. To

establish liability on that basis it must be shown (1) that there is a usual and normal

practice; (2) that the defendant has not adopted it; and (3) that the course in fact

adopted is one no professional man of ordinary skill would have taken had he been

acting with ordinary care.”

A doctor has a legal duty to take care of his patient. Whenever a patient visits a

doctor for treatment there is a contract by implication that the doctor will take

reasonable care to treat him. If there is a breach of that duty and if it results in injury

or damage, the doctor will be held liable. The doctor must exercise a reasonable

degree of care and skill in his treatment; but at the same time he does not and cannot

guarantee cure.

(Emphasis Supplied)

25. The Hon’ble Supreme Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009)

9 SCC 221, case has preferred Bolitho test to Bolam test . The Supreme Court redefined medical

negligence saying that the quality of care to be expected of a medical establishment should be in

tune with and directly proportional to its reputation. The decision also says that the court should

take into account patient’s legitimate expectations from the hospital or the concerned specialist

doctor.

(Emphasis Supplied)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO. 101 OF 2016

(Against the Order dated 27/11/2015 in Complaint No. 87/2006 of the State Commission

Maharashtra)

 PANKAJ R. TOPRANI  Vs BOMBAY HOSPITAL 

BEFORE:

HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT

HON'BLE MRS. M. SHREESHA,MEMBER

Dated : 04 Jul 2019

Per Mrs. M. Shreesha, Member

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How to prove loss and damage due to excessive rainfall and water logging for getting insurance claim?

 That apart, as we have noted from the findings of the NCDRC, the dates on which the alleged damage is stated to have occurred had not witnessed excessive rainfall and the rain was within normal parameters. The failure of the Appellant to examine any expert in regard to the cause of the damage is a significant omission which has been correctly relied upon by the NCDRC. The insurance policy specifically excluded normal wear and tear. In order to establish that this was not a case involving normal wear and tear, the Appellant sought to rely upon what it described as abnormal rainfall and water logging. The evidence on the record did not sustain the basis of such a claim.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7315 of 2016

Decided On: 25.03.2019

 Mahavir Road and Infrastructure Pvt. Ltd. Vs.  IFFCO Tokio General Insurance Co. Ltd.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and Hemant Gupta, JJ.

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Whether Order refusing to refer a matter to arbitration by National Consumer Commission can challenged only before supreme court?

 The remedy of appeal was provided in Section 37(1) till 2015 Amendment against orders of a court with reference to the jurisdiction conferred on the “court” (as defined in Section 2) for “interim measures” (under Section 9) or to consider “setting aside an arbitral award” (under Section 34) only. The law then did not conceive of appeal against order making or refusing a reference to arbitration (under Section 8). This is why the provision in Section 37(1) prior to its amendment was not concerned with act of any forum except a “court”. After 2015 amendment, when the reference or refusal to make over to arbitration has been additionally made subject to appeal, the words “the court passing the order” appearing in Section 37(1) acquire new dimension and need to be properly construed so as to harmonise them with Section 8 which confers the jurisdiction to pass the order that may be challenged in appeal. Since Section 8 does not restrict such a power to a “court” but extends it to every “judicial authority”, the forum conceived by the expression “the court passing the order” under the amended law - Section 37(1)(a) - has to be read contextually and understood to connote “the judicial authority” which passed the order making or refusing the reference. The reference to “original decrees” in the opinion of this court, is meant to convey a decision taken by a court of first instance in exercise of its original jurisdiction.

14. If construed as above, the appeal against the order of NCDRC (making or) refusing the reference of the dispute to arbitration cannot be brought before this court since appeals against orders of said forum lie before the Supreme Court. NCDRC is a tribunal and not a court. This court is not authorised by the law to hear appeals from the orders passed by NCDRC in exercise of its original jurisdiction. By virtue of Section 23 of the Consumer Protection Act, 1986, such appeal is available under the said law, as noted earlier, only before the Supreme Court. Therefore, the words “the court authorised by law to hear appeals” in present cases essentially mean “the Supreme Court”.

15. For the foregoing reasons, this court holds that these appeals under Section 37(1) of the Arbitration and Conciliation Act, 1996 have been wrongly brought before this court. The same, therefore, cannot be entertained here and are consequently hereby returned to be presented before the appropriate appellate court.

In the High Court of Delhi at New Delhi

(Before R.K. Gauba, J.)

FAO 395/2017 & CM No. 37063-37064/2017

Emaar MGF Land Ltd. & Anr. v. Aftab Singh 

Decided on November 7, 2017.

Citation:2017 SCC OnLine Del 11437

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Whether Second Complaint to Consumer forum is maintainable?

These Rules do not provide that if
a complaint is dismissed in default by the
District Forum under Rule 4(8) or by the State
Commission under Rule 8(8) of the Rules, a
second complaint would not lie. Thus, there is
no provision parallel to the provision
contained in Order 9 Rule 9(1) CPC which
contains a prohibition that if a suit is
dismissed in default of the plaintiff under
Order 9 Rule 8, a second suit on the same cause
of action would not lie. That being so, the
rule of prohibition contained in Order 9 Rule
9(1) CPC cannot be extended to the proceedings
before the District Forum or the State
Commission. The fact that the case was not
decided on merits and was dismissed in default
of non-appearance of the complainant cannot be
overlooked and, therefore, it would be
permissible to file a second complaint
explaining why the earlier complaint could not
be pursued and was dismissed in default.”
We have also not been shown any rule similar to Order
IX, Rule 9(1) of the Code of Civil Procedure, 1908. That
being so, and in view of the decision rendered by this
Court, with which we have no reason to disagree, we are
of the opinion that the second complaint filed by the
appellant was maintainable on the facts of this case.
Under the circumstances, we set aside the order
passed by the National Commission and remit the matter
back to the National Commission for adjudicating the
disputes on merits.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.557 OF 2016

INDIAN MACHINERY COMPANY V M/S. ANSAL HOUSING & CONSTRUCTION LTD.
Dated:JANUARY 27, 2016

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Whether civil suit will be barred by Res judicata if judgment in that respect is given by state consumer forums?

Having respectfully gone through the cited decisions, in
my opinion, the State/National Forums have trappings of
Courts and are adjudicatory bodies, though not in strict sense
Courts, which decide and settle the consumers disputes and
matter connected therewith by adhering to the provisions of
Civil Procedure Code and these consumer Courts arejudiciary set up by the government to protect the consumer
rights and would fall within the meaning of Section 3 of Indian
Evidence Act.
 It is admitted fact that refund vouchers were similar to
Cheques and like Cheque books, refund vouchers printed in
the specialized format were given by the defendant bank to the
plaintiff for issuance thereof as is reflected in the answer to
question No. 21 and 25 given by the sole witness of the
plaintiff. In the particular period of time since there was no
system of payment of Cheque at par in all the branches of the
country, instrument of refund voucher payable at par all the
branches in the country was introduced by the defendant bank
and such facility was given to the plaintiff by the arrangement.
 It is well settled that in order to decide whether a
decision in an earlier litigation operates as res judicata, the
Court must look at the nature of the litigation, what were the
issues raised therein and what was actually decided in it.
In the present case having gone through the pleading of
the parties and the evidence-on-record and the judgments
rendered by the said forums, in unequivocal term it is clear
that the issues involved in this suit were substantially the
issues before the State Consumer Disputes Redressal
Commission which stood decided by the judgment dated31.3.2008 which attained its finality with the merger of
judgment and order of the National Consumer Dispute
Redressal Commission.
In the context of the foregoing discussions, on critical
examination of the judgments of the said forums and
considering the nature of the litigation and the issues raised
and decided therein being similar to the facts and
circumstances of the instant case, the issues now cannot be
reopened and re-agitated as in my opinion the suit is barred by
the principle of res judicata within the meaning of Section 11 of
Code of Civil Procedure.
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present: The Hon’ble Justice Shivakant Prasad
CS 175 of 2010
M/s. Kesoram Industries Limited V Allahabad Bank

Judgment on : 03.04.2017

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NCDRC directed bank to pay compensation of Rs fifty thousand for delay in processing of cheque

Having heard Learned counsel for the Petitioner and the Complainant, who is on caveat, we are of the view that the Revision Petition is without any substance. On appraisal of the evidence adduced by the parties, particularly the pay-in-slip, both the Fora below have recorded a concurrent finding of fact that the Petitioner had failed to substantiate its stand that the delay in credit of the said amount was because of the reason that the Complainant had failed to mention the Account Number and the account holder's name on the pay-in-slip, at the time of deposit of the cheque. Both the Forums have rejected the stand of the Petitioner that the said particulars were filled up later. The said finding having not been specifically challenged as being perverse, we do not find any jurisdictional error in the impugned order, warranting our interference in Revisional jurisdiction, more so when the total amount involved in the case is a meagre sum of 50,000/-, which includes the litigation cost.

National Consumer Disputes Redressal Commission, New Delhi

(Before D.K. Jain, President and M. Shreesha, Member)

Indian Overseas Bank

V

 R.K. Sharma 

Revision Petition No. 3414 of 2016

Decided on January 2, 2017

Citation: 2017 SCC OnLine NCDRC 2

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Whether insurance company can repudiate insurance claim for theft of vehicle if theft is not promptly intimated?

 We have considered the rival contention and perused the record. On perusal of complaint we find that it is the case of the complainant that he reported the theft of subject vehicle to the concerned Police Station on the same day and gave oral information of theft to the petitioner insurance company. It is not the case of the complainant that he gave immediate intimation of theft of vehicle in writing to the insurance company. Thus, the question is whether the Fora below were justified in allowing in the consumer complaint ignoring condition no. 1 of the insurance contract, which reads as under:

“1. Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.”

 8. Similar issue came up before the Coordinate Bench of this Commission in the mater of Reliance General Insurance Co. Ltd. v. Jai Prakash, Revision Petition No. 2479 of 2015 decided on 11.01.2016. In the said matter, the Coordinate Bench of this Commission took the view that on account of failure of the complainant to perform his contractual obligation to intimate the theft of vehicle to the insurer, repudiation of contract was justified. Similar view was taken by Bench No. 4 of this Commission in Revision Petition No. 2391 of 2015 titled Reliance General Insurance Co. Ltd. v.Harbhajan Khaira.

 9. We do not find any reason to differ with the aforesaid view taken by Coordinate Benches. Accordingly, we hold that Fora below have committed a grave irregularity by passing the impugned order in utter disregard of law laid down by the Supreme Court of Parvesh Chander Chadha (supra). Thus, we have no hesitation in holding that as the insured has failed to fulfil his obligation to intimate the theft of vehicle to the insurer in writing immediately after the theft, insurance company was justified in repudiating the insurance claim.

National Consumer Disputes Redressal Commission, New Delhi

(Before Ajit Bharihoke, Presiding Member and S.M. Kantikar, Member)

Reliance General Insurance Co. Ltd.

V

Arun Kumar Singh & anr.

Revision Petition No. 1054 of 2016

Decided on January 3, 2017

Citation:2017 SCC OnLine NCDRC 1

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NCDRC imposed compensation of Rs one lakh on Airlines for delay and damages caused to consignment

Complainant also claimed loss on account of delay in receipt of consignment to the tune of Rs. 79,793/-. It is not disputed that there was delay in delivery of second consignment. Learned Counsel for appellant submitted that complainant could have taken at least delivery of first consignment just after its receipt and as he himself failed to take delivery in time. OP cannot be burdened for any liability. On the other hand, learned Counsel for the respondent rightly argued that as he submitted consignment in only one parcel and as OP suo moto converted into two packets, complainant could not have taken delivery of first lot and in such circumstances, it becomes clear that OP was responsible for causing delay in delivery of consignment.

 10. Learned Counsel for appellant submitted that complainant has 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 and without that compensation could not have been granted. I agree to some extent with the submission of learned Counsel for the appellant and I deem it appropriate to reduce compensation to Rs. 50,000/- against Rs. 75,000/- allowed by learned State Commission towards damage caused to the goods as well delay in delivery of consignment.

 11. Learned Counsel for the appellant further submitted that no reasons have been given for allowing compensation of Rs. 1,00,000/- towards harassment, mental agony, etc. Learned State Commission in the impugned order after referring judgment of Hon'ble Apex Court in Ghaziabad Development Authority v. Balbir Singh- (2004) 7 CLD 861 (SC) allowed compensation of Rs. 1,00,000/- without giving any reason for awarding huge compensation when only Rs. 75,000/- were allowed for damages and delay in consignment. In such circumstances, 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.

National Consumer Disputes Redressal Commission, New Delhi

(Before K.S. Chaudhari, Presiding Member)

 Malaysian Airline Systems 

V

Dentply India Pvt. Ltd.

First Appeal No. 883 of 2013

Decided on January 5, 2017

Citation:2017 SCC OnLine NCDRC 3

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