Shalabh Nigam v Orris- Homebuyers have a right to seek refund of money if there is

inordinate delay in handing possession, particularly beyond one year.

Shalabh Nigam, the buyer of a flat, continued to pay instalments to the

developer (Orris Infrastructure) till the 7th stage, and thereafter stopped the
instalments as the buyer subsequently learnt about a huge sewage drainage
canal flowing through the middle of the land where the project was being
developed & which was in close proximity to the apartment booked by the
buyer. Also, the developer had changed the layout of the project wherein, the
club house which as per the original layout plan was meant to be near the
buyer’s apartment was moved to the other side of the sewage canal.

With this background, “the buyer sought refund of the amount paid which was
refused by the developer, and against such refusal, the buyer sought various
reliefs from NCDRC ranging from (a) directing the developer to give
possession of the flat within 6 months failing which to refund the entire amount
paid along with 18% rate of interest, (b) pay interest @ 12% for the period
from promised date of possession to actual date of possession on the amount
paid by the buyer, (c) deliver all the promised amenities and facilities promised
in the agreement, and (d) compensation of Rs 12.00 lakh to cover the mental
agony and litigation cost apart from other miscellaneous relief.

Buyer was paying the instalments to the land owner whereas the development
agreement was signed by the developer and the land owner. The land owner was
arguing that since it was not the developer, no relief can be sought from him.
Further, the developers argued that as per agreement, the buyer was entitled to
relief of Rs 10/- per sq feet per month for delay in possession beyond 9 months, and
hence no other compensation in terms of interest could be ordered.
Also, “it was argued that the consumer forum is authorized to order compensation as
per Section 14(i)(d) of the Consumer Protection Act, 1986 and the compensation has
to be based on the loss or injury suffered by the buyer due to negligence of the
developer. Since no case has been made out by the buyer that it has suffered any
loss due to payment of any rent or any such other thing, NCDRC cannot order any
compensation. The developer also argued that there was a force majeure condition
since the Hon’ble High Court of Punjab and Haryana imposed had a blanket ban on
the use of ground water in the region of Gurgaon and adjoining areas for the
purposes of construction, resulting in delay and as per agreement in case of a force
majeure condition, no interest is payable.
NCDRC partly allows the complaint- developer has been directed to:
(a) complete the construction work and hand over the physical possession of the flat
by 30th September 2019 after obtaining occupancy certificate;
(b) pay interest @ 6% p.a. on the amount (deposited till scheduled date of
possession) from the due date of possession till the actual date of possession. For
the amounts deposited after the due date of possession, the interest will be paid till
actual date of possession after ignoring the first 12 months. The interest so
admissible will be adjusted from the instalment due at the time of possession;
(c) If the possession of the flat is not delivered by the 30th September 2019, the
buyer shall be at liberty to take refund of the total deposited amount along with
interest @10% p.a. However, since the buyer had bought the flat from the secondary
market, the date of deposit will be counted from the date the buyer bought the unit
and not the date of deposit of the original buyer. The developer to refund the amount
with interest within 6 weeks of the demand made by the buyer;
(d) lastly, if the buyer does not ask for refund, he shall be entitled to get interest
@6% per annum as already ordered till possession is handed over.
Hopefully, experts believe, with such court rulings along with the implementation of
RERA, where the developers cannot change the plans without approval of the
buyers, and other policy changes, the real estate market in India will be as
disciplined as the markets in Singapore and other developed countries.
State of UP v UP consumer protection bar association- Deals with lack of infra in
consumer for a nationwide
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.
Sahara Prime v Sanghamitra Naresh-
clause No. 17 of the agreement.  It is reproduced as below:-
"(17) That the payment schedule is the essence of this agreement, failing which the
allotment can be cancelled and the deposited amount in case of cancellation under the
clause or otherwise shall be refunded as per the terms and conditions of the application
form as well as the allotment letter/form."
Allotment was cancelled due to default, and option was given to revive allotment but at
enhanced prices in terms of clause 17.

"We also perused the contents of letter dated 23/6/2009 addressed to the complainant by
the opposite party mentioning therein "due to defaults in payments, your unit has been
cancelled.  If you intend to revive your unit, the same may be revived (as per availability)
on the current prevailing prices."
In our view, clause No. 17 itself was an arbitrary provision and not legally tenable.  The
OP has cancelled the unit with the intention to get enhanced price from the complainants. 
It was an admitted fact that the complainants' loan was sanctioned by State Bank of India,
which was also known to the OP.  It is surprising to note that initially the OP wished to
cancel the booking of the unit and thereafter, made an offer to revive the said booking at
prevailing prices.  It was obviously an unfair trade practice.   In the present case, the
complainants have already paid 15% of the total cost of the unit and the remaining 85%
was to be paid as loan, which was sanctioned by the State Bank of India.   In our view,
the OP without any reason protracted the matter for six years since 2008.  It itself was a
deficiency in service. 

Allotment was revived, 50k compensation and 10k costs (as awarded by state commission)
was upheld by NCDRC.

Jagdev Gas service v Bansi Lal Taneja-

Authorised gas dealer of BPCL overcharges for safety pipe. (actual price is 60-70, but he asks
for 190.) He additionally charges 40 for some inspection. Consumer pays but no person visits
him for installation/checking connection. Complaint made to Food Supplies Controller.
Finally, consumer complaint seeking compensation of 50k. 10k costs ordered by the State
commission upheld by NCDRC.

Laxmi Industries v PSG-

Laxmi Engineering Works (appellant) placed an order for supply of

PSG 450 CNC Universal Turning Central Machine with the respondent.
The respondent took 6 extra months to deliver. Once it was delivered
and installed, several defects of the machine came into light.

The appellant brought this to the notice of the respondent who sent
people to repair. However, the repair was not satisfactory and the
machine broke down again. The appellant then filed a case against
the respondent in the Consumer forum. 

The respondent succeeded in the lower forum on the grounds of

appellant not being covered under the definition of the consumer as
given under section 2 (d) of the Consumer Protection Act, because
Appellant bought the machines for commercial purposes.

The plaintiff filed an appeal in the SC to challenge the forum’s

decision.

SC held the following-

1. The explanation added by The Consumer Protection (Amendment)
Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from
18.6.1993 is clarificatory in nature and applies to all pending
proceedings.
2. The purpose for which an individual has purchased goods and if it is
for commercial purpose or within the meaning of the definition of
consumer given in Section 2(d) of the Act is always a question of
fact which will have to be decided in the circumstances of every
case individually.
3. An individual who purchases goods to use them by himself, and only
for the purpose of earning his livelihood, by means of self-
employment falls within the scope of definition of consumer under
the Act.
Concluded that machine does not fall under goods which the
appellant purchased to use by himself, exclusively for the purpose of
earning his livelihood by means of self-employment. Therefore, the
appeal was dismissed without any costs.

Lucknow Dev Authority v MK Gupta 1994 SC- (read this in contrast

with the bank case discussed in class, see how there is potential
divergence? Choose the case which convinces you most)
The Lucknow Development Authority, a statutory authority fails to perform its duties
satisfactorily. One aggrieved consumer filed a case against the Lucknow
Development Authority.

Can consumer fora entertain complaints against statutory body?

The Hon’ble Court noted that the word ‘consumer’ is a comprehensive expression. It
extends from a person who buys any commodity to consume either as eatable or
otherwise from a shop, business house, corporation, store, fair price shop, etc. to
the usage of private or public services. The definition of consumer deals in two
parts. The first deals with goods and the other with services. Both parts first declare
the meaning of goods and services by use of wide expressions. Their ambit is further
enlarged by the use of inclusive clause.

Can a complaint be filed under the Act against the statutory authority or a builder or
contractor for any deficiency in respect of a given property? The answer to all this
shall depend upon the understanding of the word ‘service’. The term has variety of
meanings. It may mean any benefit or any act resulting in promoting interest or
happiness. It may be contractual, professional, public, domestic, legal, statutory etc.
The concept of service is therefore very wide. How it should be understood and what
it means depend in the context in which it has been used in an enactment. The
definition of ‘Service’ under the Act is in three parts. The main part is followed by
inclusive clause and ends by exclusionary clause. The main clause itself is very wide.
It applies to any service made available to potential users. The words ‘any’ and
‘potential’ are significant. Both are of wide amplitude. The test 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. A government or semi-
government body or a local authority is as much amenable to the Act as any other
private body rendering similar service.

The entire purpose of widening the definition is to include in it not only day to day
buying of goods by a common man but also to such activities which are otherwise
not commercial but professional or service oriented in nature. The provisions in the
Acts, namely, Lucknow Development Act, Delhi Development Act or Bangalore
Development Act clearly provide for preparing plan, development of land, and
framing of scheme etc. Therefore, if such authority undertakes to construct building
or allot houses or building sites to citizens of the State either as amenity or as
benefit then it amounts to rendering of service and will be covered in the expression
‘service made available to the potential users’.

A person who applies for allotment of a building site or for a flat constructed by the
development authority or enters into an agreement with a builder or a contractor is
a potential user and nature of transaction is covered in the expression ‘service of
any description’. It further indicates that the definition is not exhaustive. The
inclusive clause succeeded in widening its scope but not exhausting the services
which could be covered in earlier part. So any service except when it is free of
charge or under a constraint of personal service is included in it. Since housing
activity is a service, it was covered in the clause as it stood before 1993.

HELD:-

Court held that Statutory Authorities such as Lucknow Development Authority is

liable for any deficiency in the services rendered by such statutory authority, and
will be amenable to the provisions of the Consumer Protection Act, 1986.

Rajesh Anand v Samsung-

AC purchased, complained of having manufacturing defect. Refuted by Samsung-

detailed technical report says no problem. Consumer still wants replacement-
consumer forum says no (balancing consumer rights with business interests?)

Raj Hans Tower v Anuradha Mishra- (interesting case in the sense that the OP-
opposite party- was not present during much of the hearing, and does not even file
the Written Statement)

Deficiency in service by handing over flat after inordinate delay.

complainant was provided with a flat with many deficiencies in its construction whereby
the OP committed deficiency in service.

 The complainant had to suffer financial loss because of the delay in giving the possession
as she had to spend rent @ Rs.8,000.00 per month amounting to Rs.1,20,000.00 but the
complainant has not filed any evidence in the form of rent receipt to substantiate her
claim in this regard. However, the complainant must have suffered mental and physical
tension for inordinate delay   in giving the possession and for getting the flat with defects,
therefore, she deserves compensation for the same and we consider a sum of
Rs.50,000.00 as adequate in the circumstances of the case. The excess amount of
Rs.2,24,182.00 paid by the complainant is also to be refunded to the complainant with
interest. Besides, Rs.5.00 per sq. feet for the delay in giving the possession should have
been paid by the OP to the complainant for the delayed period which comes to
Rs.1,03,125.00 (Rs.6875.00 for 15 months as per the agreement).

National Seeds v Madhusudan Reddy1 (Farmers are also consumers)

1 Remember that this is also an important case to settle the idea that opposite party can also seek testing if
they believe that their product is solid.
Emaar v Aftab Singh

The 3 Member bench presided by the President of NCDRC, passed a judgement dated July
13, 2017 inter alia holding that the arbitration clause contained in the Agreement cannot
circumscribe the jurisdiction of the Consumer Fora, notwithstanding the amendments made
to Section 8 of the Arbitration Act.   

Pursuant to the reference having been answered by the 3 Member bench, Complaint No.
701 of 2015 along with other applications was taken up for hearing by a Single Judge of
NCDRC.  By an Order dated August 28, 2017 the Application filed by the Appellant under
Section 8 of the Arbitration Act was rejected.  The Appellant thereafter filed F.A.O. No. 395 of
2017 before the Delhi High Court challenging the judgement dated July 13, 2017 and the
order dated August 28, 2017.  On November 7, 2017, the Delhi High Court refused to
entertain the appeals on the ground that the same have been wrongly brought before the
Delhi High Court and returned the same to be presented before the appropriate Appellate
Court.  

Against the order of the Delhi High Court dated November 7, 2017 the Appellant filed Civil
Appeal Nos. 23512-23513 of 2017 challenging the judgement dated July 13, 2017 and the
order dated August 28, 2017.  The said appeals were dismissed by the Hon’ble Supreme
Court on February 13, 2018. The Appellant thereafter, filed a review petition to review the
judgement dated February 13, 2018 inter alia praying for setting aside the judgement dated
July 13, 2017 and the order dated August 28, 2017. 

1. Whether by insertion of the words “notwithstanding any judgement, decree or Order of

the Supreme Court or any Court” under Section 8 (1) by the (Amendment) Act, 2015
legislature intended to do away with the decision of judgements of Supreme Court
laying down that Consumer Protection Act being special remedy can be initiated and
continued despite there being any arbitration agreement between the parties?

The Hon’ble Supreme Court has however clarified that in the event, a person is entitled to
seek an additional special remedy provided under the statutes does not opt for the
additional/special remedy and he is a party to an arbitration agreement, there is no
inhibition in disputes being proceeded to arbitration. It is only the cases where
specific/special remedies are provided for and which are opted by an aggrieved person that
judicial authority can refuse to relegate the parties to arbitration. 
Accordingly, the Hon’ble Supreme Court has upheld the judgement passed by the NCDRC
and dismissed the Review Petitions.

Dinesh Prasad Raturi v Bata

Bata charged 3 rupees for the bag. Unfair trade practice. Charged 9000 as penalty. Cant use
customers as ‘advertising agents’ and charge them for it.
Read this for more: https://www.scconline.com/blog/post/2021/02/22/charging-money-for-
carry-bags/

Ambrish Shukla v Ferrous Industries

To compute the question of pecuniary jurisdiction, we calculate on the basis of

compensation+consideration. Problematic.

We now see a shift towards just assessment based on compensation- see M/S Pyaridevi Chabiraj
Steels Pvt. Ltd. V. National Insurance Company Ltd. & Ors.” – (“From a reading of the aforesaid
provisions it is amply clear that for determining the pecuniary jurisdiction of the District
Commission, State Commission or National Commission the value of the goods or
services paid as consideration alone has to be taken and not the value of the goods or
services purchased/ taken.”)

 ICICI Pru v Dattatrey

Insurance claim repudiated and sus medical certificate provided by insurance company.
Insurance company produces certificate from paediatrician saying old man is diabetic. Saying
information not provided, terms violated and therefore, claim repudiated. UTP. NCDRC says
I will take care of you. Heavy penalty for suspicious medical certificate.

Miraj Medical Centre v Sunil Tukaram

X files complaint for negligence against doctors for death of new born. State commission
awards decision on merits and says no negligence. Appeal filed at NCDRC but withdrawn to
file a suit before civil court. Objection raised on res judicata, court says no. 227 application
filed, HC says it is res judicata- matter was same, parties were same, questions were same.
Answer was propounded on merits.

Today homes v Sanjay Ahuja

 Thus, the condition for pre-deposit of 50% awarded by the State Commission in
Complaint Case in an Appeal preferred before the National Commission is mandatory. As
held by the Hon'ble Supreme Court in the case of M/s. Shreenath Corp. & Others (Supra)
in paragraph 11 reproduced above condition of pre-deposit is there to avoid frivolous
appeals. This Commission cannot entertain any Appeal unless the concerned Appellant
has deposited 50% of the amount awarded by the State Commission.  There is no
provision in the 2019 Act, empowering the National Commission to waive, relax or
reduce the amount to be deposited under the Second Proviso, referred to above.  The
present First Appeals are, therefore, defective for want of pre-deposit of the fifty percent
of the amount directed by the State Commission in the impugned Order, which has not
been made by the Appellant.      
Karnataka Housing Board v Nagamani (SC)

The revisional jurisdiction conferred on the National Commission u/S. 21(b) is with
respect to a pending or disposed of ‘consumer dispute’ before the State Commission.

An Order passed for enforcement, would not be an order in the ‘consumer dispute’ since
it stands finally decided by the appellate forum, which has conclusively determined the
rights and obligations of the parties. 

The nature of execution proceedings is materially different from the nature of

proceedings for adjudication of a consumer complaint. Execution proceedings are
independent proceedings. Orders passed for enforcement of the final order in the
Consumer dispute, cannot be construed to be orders passed in the ‘consumer dispute’.

 There is no remedy provided under Section 21 to file a Revision Petition against an

Order passed in appeal by the State Commission in execution proceedings. Section
21(b) does not provide for filing of a Revision Petition before the National Commission
against an Order passed by the State Commission in execution proceedings. 

 The National Commission erroneously allowed the Revision Petition u/S. 21(b) which
was not maintainable in execution proceedings.

National Insurance Company v Hindustan Safety Glass (question of limitation in insurance)

Respondent, had taken out two policies with the appellant National Insurance
Company, both dated August 29, 1990, for a period of one year which were
subsequently renewed for another year. The first policy was for an amount of Rs. 4.9
lakhs to cover the risks on office building, residential quarters and canteen etc. in
Calcutta. The second policy was for an amount of about Rs. 5.7 crores to cover the risks
on building, machinery, finished and semi-finished stocks, store, furniture, wiring and
fittings etc. in its factory/works in Calcutta, wherein both the policies included damage
or loss due to flood and inundation.

On August 06, 1992, there was heavy incessant rain in Calcutta resulting in heavy
accumulation of rain water inside and around the factory/works of the insured, which
the respondent claimed had caused considerable damage to raw materials, stocks and
goods, furniture etc. As a result of the damage suffered by the insured and in terms of
the two policies taken out with National Insurance, claims were filed by the insured on
August 07 and 08, 1992, claiming a total amount of about Rs. 52 lakhs.

Pursuant to claims, National Insurance carried out two surveys wherein the reports
were submitted on November 11, 1993, and the second report was given on November
23, 1994, assessing the loss/damage suffered by the insured.

In spite of the two survey reports quantifying the loss or damage suffered at about Rs.
24 lakhs, nothing was paid to the insured by National Insurance. Pursuant to the same,
notices were served upon the insurer. However, to the utter shock and disappointment,
there was no response from the National Insurance. Hence, in view of such
circumstances, insured filed a complaint with the National Commission under the
provisions of the Consumer Protection Act, 1986 (for short 'the Act') claiming an amount
of Rs. 52.32 lakhs, along with an amount of about Rs.1.81 lakhs being the expenses
incurred for the purpose of loss minimization, further interest at 18% per annum was
also claimed by the insured with effect from December 06, 1992 i.e. four months after
the occurrence of the flood or inundation.

There were various objections raised by the National Commission as follows, wherein
one of the major objection, which is subject matter of the present article, is regarding
the complaint being barred by condition No. 6(ii) of the policies i.e Complaint was
barred by limitation as it was filed on August 13, 1996, while the loss/damage to the
insured properties had taken place in August, 1992.

Reliance on condition number 6(ii) of the insurance policies it is necessary to first

understand the scope of this condition which reads as follows:

In no case whatsoever, shall the company be liable for any loss or damage after the
expiration of 12 months from the happening of the loss or damage unless the claim is the
subject of pending action or arbitration: it being expressly agreed and declared that if the
company shall disclaim liability for any claim hereunder and such claim shall not within 12
calendar months from the date of the disclaimer have been made the subject matter of a
suit in a court of law and the claim shall for all purposes be deemed to have been
abandoned and shall not thereafter be recoverable hereunder.

A reading of the aforesaid condition leads to the conclusion that National Insurance
would not be liable for any loss or damage 12 months after the event that caused the
loss or damage to the insured unless the claim is the subject matter of a pending action
or arbitration. It was submitted by the learned Counsel for National Insurance that the
expression 'pending action' must relate to action instituted in a court of law.

However, the Hon'ble Court held that when a claim is made by the insured, that itself is
actionable, there is no question of requiring the insured to approach a court of law for
adjudication of the claim and that this would amount to encouraging avoidable
litigation, which certainly cannot be the intention of the insurance policies and which in
no case in public interest.

However, the learned Counsel vehemently argued that in terms of Section 24A of the
Act, the claim made by the insured was barred by limitation, since the complaint was
filed with the National Commission on August 13, 1996, while the loss or damage had
occurred on August 06, 1992. Therefore, the National Commission could not have
admitted the complaint since it was filed beyond the stipulated period of two years
from the date on which the cause of action had arisen.
The National Commission rejected all the contentions urged by National Insurance and
by the impugned judgment and order, the insured was awarded an amount of Rs.
21,05,803.89 with interest at 9% per annum from May 11, 1995, i.e three months after
the addendum issued by Seascan Services (WB) Pvt. Ltd. (the second surveyor),
furthermore even costs of Rs. 20,000/- were also awarded to the insured.

The Hon'ble Supreme Court of India held that the event that caused the loss or damage
to the insured occurred on August 06, 1992, was the heavy incessant rain in Calcutta in
which the raw materials, stocks and goods, furniture etc. of the insured were damaged.
It was observed that on the very next day, the insured lodged a claim with National
Insurance. In response, National Insurance first appointed N.T. Kothari & Co. to assess
the loss suffered by the insured and a report was given by this surveyor after more than
one year. Thereafter, for reasons that are not at all clear, National Insurance appointed
a second surveyor which also took about one year to submit its report, and eventually
gave an addendum to that report thereby, crossing one year in completion of its report
along with the addendum. It was observed and noted by the Hon'ble Court that
National Insurance itself took more than two years in surveying or causing a survey of
the loss or damage suffered by the insured and hence, the entire delay is attributable to
National Insurance which cannot prejudice the claim of the insured, especially when the
insured had lodged a claim well within time. Furthermore, to make matters worse,
National Insurance actually repudiated the claim of the insured only on May 22, 2001,
which was well after the complaint was filed with the National Commission.

The Hon'ble Court was of the view that in a dispute concerning a consumer, it is
necessary for the courts to take a pragmatic view of the rights of the consumer
principally since it is the consumer who is placed at a disadvantage vis-a-vis the supplier
of services or goods. It was further held that the very purpose of a beneficent
legislation, in the form of the Consumer Protection Act, is to overcome this
disadvantage. The provision of limitation in the Act cannot be strictly construed to
disadvantage a consumer in a case where a supplier of goods or services itself is
instrumental in causing a delay in the settlement of the consumer's claim. The Court
observed that this being the underlying principle, it had no hesitation in concluding that
the National Commission was quite right in rejecting the contention of National
Insurance in this regard.

VOICE v Registrar, TNSCDRC

Complainant appoints agent X (non advocate) to take complaint forward.

A complaint was filed before the State Commission by the widow mother and two minor
children of deceased K.N. Subramaniam. The complaint relates to medical negligence of
Dr. Rangabashyam and the Apollo Hospital, Chennai. The complaint was filed through
Shri N. Chandrasekaran as an authorized agent. He is the Secretary of Consumer Welfare
Foundation Chennai. State Commission noticed that the complaint was signed only by the
widow and Shri N. Chandrasekaran also signed the complaint as a Counsel for the
complainant. A vakalat has also been filed in the name of Mr. S. Natarajan, Advocate and
Mr. N. Chandrasekaran as Counsel for the complainant. It appears at a later stage on
14.2.2002, Mr. N. Chandrasekaran suo motu revoked the vakalat in favour of Mr. S.
Natarajan. Mr. N. Chandrasekaran has also filed an authorization letter from the widow to
represent her case before the State Commission. This authority was not signed by the
widow as the guardian of her minor children. Mother of the deceased did not give any
authority in favour of Mr. N. Chandrasekaran to represent her case.

According to the State Commission, the Act itself did not contain any statutory provisions
at all empowering the parties to engage an authorized representative on their behalf to
represent their case. In this view of the matter the State Commission felt that such an
authorized representative of the litigant complainant-consumer not being an Advocate
could not at all be given the right of audience though there was no prohibition for the
party himself to represent his own case under the Act. 

Quoting Sanjay Kothari v Mumbai Consumer Dispute Redressal Forum: ‘Once the
complaint is filed by aggrieved consumer through recognized consumer association, the
authorised agent appearing for such recognised consumer association is expected to take
the complaint to logical conclusion by full participation in the complaint proceedings
which may include addressing the Forum, examining and cross-examining the witnesses
etc. Observation of principles of natural justice alone is sufficient in rendering justice to
consumers.’

Noting the written submission of Mumbai Grahak Panchayat where question has been
raised whether a person who is neither a part of consumer organization nor related to the
consumer in any manner nor a practicing lawyer can appear on a regular basis before a
Consumer Forum as an authorized person, Mr. Subramaniam submitted that there was
considerable merit in the submission that such a practice might be detrimental to the
working of the Consumer Forum as such person not having any linkage with a consumer
organization may become parallel body which might in fact exploit a consumer rather
than subserve his interest as there was no accountability attributable to such persons.

While a Consumer Forum will permit an authorised agent to appear before it but
authorised agent will not be one who has used this as a profession to earn his livelihood.
A Consumer Forum has to guard itself against unscrupulous authorised agents who
exploit the consumer for their own benefit and have no interest of the consumer to his
heart and stranger to consumer movement. A Consumer Forum can certainly examine the
qualification, relationship and antecedent of an authorised agent when he represents a
consumer. It can certainly forbid such an authorised agent for appearing before it in any
particular complaint, appeal or revision. While Bar Council of State or Bar Council of
India exercise control over the conduct of a lawyer there is no such control over a
'professional' authorised agent and even in the case of voluntary consumer organization
Code of Conduct has been formulated by Government of India. Complainants are
certainly pouring in regarding exploitation of consumers by some of the voluntary
consumer organizations. That certainly cannot be permitted and in that eventuality
Regulations to be framed has to be prescribed for blacklisting of such a voluntary
consumer organization, A Consumer Forum has to guard itself from touts and busybodies
in the garb of attorney holders or authorized agents in the Consumer Forums exploiting
the already harassed gullible and innocent consumer. 
A voluntary consumer organization can certainly engage a Counsel or it can itself
represent through its office bearer as per the rules governing it. A question may arise
where a consumer himself is a complainant along with a voluntary consumer organization
and the complainant may choose to withdraw from the complaint. Can voluntary
organization be allowed to proceed with the complaint ? If a dispute affects the
complainant individually perhaps not, but if the issue involved concerns unfair trade
practice or restrictive trade practice it may be so.

Punjab Urban Planning and Dev Authority v Vidya Chetal (kind of an extension of MK
Gupta v LDA- heavily relied upon)

HUDA v. Sunita, held that, the National Consumer Disputes Redressal Commission
("NCDRC") had no jurisdiction to adjudicate the legality behind the demand of
"composition fee" and "extension fee" made by HUDA, as the same being statutory
obligation, does not qualify as "deficiency in service". Issue contested. SC- SLP

Sovereign functions like judicial decision making, imposition of tax, policing etc, strictly
understood, qualify for exemption from the Act, but the welfare activities through
economic adventures undertaken by the Government or statutory bodies are covered
under the jurisdiction of the consumer forums. Even in departments discharging
sovereign functions, if there are sub units/wings which are providing services/supply
goods for a consideration and they are severable, then they can be considered  to come
within the ambit of the Act. [refer to Standard Chartered Bank Ltd. v. Dr. B. N. Raman,
(2006) 5 SCC 727]
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.

Rajinder Chawla v Make My Trip

Jurisdiction of courts posed a great challenge in the early years when e-commerce cases were
brought before consumer forums. Many cases were struck down due to uncertainty of
jurisdiction, given the virtual nature of e-commerce. One such instance was the case of
Rajinder Singh Chawla v. makemytrip. com7 where the Consumer Court rejected a consumer
complaint for lack of jurisdiction. The reason was that the online transaction was spread
across various geographical areas. The Court could not make out a reason for entertaining the
complaint.

To remove the arbitrariness in Jurisdiction clause, a recent judgement of the National

Commission in Marwar Engineering College and Research Centre v. Hanwant Singh, IV
(2014) CPJ 582 (NC) has made it clear that Consumer’s place of e-commerce transaction is
the jurisdiction to file a complaint.

Amway v 1MG

On November 08, 2017 the plaintiff was given the news that his products are being sold
without authority. Therefore, on 9th November the Plaintiff gave out a statutory warning
in the newspaper regarding the same. Later in May, 2018 the plaintiff got to know that
their products are being sold by medical shops without the written permission of the
plaintiff. As a result of which an investigation started in which it was found out that
these medical shops are selling the products illegally and without authorization after
removing the unique codes placed on the lid of the products, also without issuing
invoice and not providing benefit of Plaintiffs Return/Refund Policy.

Alleged that such a sale by these medical shops was a direct infringement of the Direct
Selling Guidelines, 20161 by the government of India. The plaintiff's prayed that the
defendants were making profits out of the product of plaintiff illegally and hence the
defendants should be restrained from carrying out such illegal activities. Amway also
gathered information about various products of theirs being advertised and sold on
various e-commerce platforms without their consent which was in violation of the
guidelines. The plaintiff contended that the way their products were being sold could
also mean that the products are not genuine and may in fact be tampered. Plaintiff
even addressed these e-commerce entities with cease and desist letters. 

Del HC- Use of the Plaintiffs' marks and the sale of the products without the consent of
the Plaintiffs is in violation of the Plaintiffs' trademark rights and results in passing off,
misrepresentation and dilution. The sale of the Plaintiff's products also violates the
Direct Selling Guidelines, which are valid and binding.

The Direct Selling Guidelines are law. While the Defendants' platforms and sellers insist
on their Article 19(1)(g) rights being jeopardised, what is lost sight of is the fact that the
Plaintiffs’ right to carry on business is being affected. It is being jeopardized in view of
the large-scale violations on the e-commerce platforms. There is a reasonable
apprehension that the direct distribution network of the Plaintiffs may be affected. As
per their own policies, sale on e-commerce platforms of unauthorised, tampered
products is impermissible. The same could also completely destroy the goodwill of the
Plaintiffs.

Can only be sold with consent of producer.

Afcons v Cherian Varkey

Section 89, existed in the Code of Civil Procedure (CPC) which empowered the court to refer any
matter to arbitration or other forms of Alternate Dispute Resolution if they feel like the dispute
would be suitable for it. The problem with this Section was that it was unclear as to whether an
arbitration agreement must be present between parties for the court to recommend the dispute
to arbitration. The matter was left unresolved and to the courts’ discretion until the judgement in
the case of Afcons Infrastructure Ltd. which ended the anomaly and made Alternate Dispute
Resolution what it is today.

“The following categories of cases are normally considered to be not suitable for
Arbitration or Conciliation [ADR process]:

i. Representative suits under Order 1 Rule 8 CPC which involves public interest or
interest of numerous persons who are not parties before the court. (In fact, even
a compromise in such a suit is a difficult process requiring notice to the persons
interested in the suit, before its acceptance).
ii. Disputes relating to election to public offices (as contrasted from disputes
between two groups trying to get control over the management of societies,
clubs, association etc.).
iii. Cases involving grant of authority by the court after enquiry, as for example,
suits for grant of probate or letters of administration.
iv. Cases involving serious and specific allegations of fraud, fabrication of
documents, forgery, impersonation, coercion etc.
v. Cases requiring protection of courts, as for example, claims against minors,
deities and mentally challenged and suits for declaration of title against
government.
vi. Cases involving prosecution for criminal offences."

"All other suits and cases of civil nature in particular the following categories of cases
(whether pending in civil courts or other special Tribunals/Forums) are normally suitable
for ADR process:
 i. All cases relating to trade, commerce and contracts,
ii. All cases arising from strained or soured relationships,
iii. All cases where there is a need for continuation of the pre-existing relationship
in spite of the disputes;
iv. All cases relating to tortious liability; and
v. All consumer disputes."

"the above enumeration of 'suitable' and 'unsuitable' category of cases is not intended
to be exhaustive or rigid. They are only illustrative."

“Supreme Court clearly held that it is not mandatory to refer the Parties to any ADR
process in all cases. Where the case falls under an excluded category there need not be
reference to ADR Process. In all other cases reference to ADR process is a must."
(section 89 of CPC emphasized)

Reliance on Jagdish Chander v. Ramesh Chander 2007 (5) SCC 719, where Supreme
Court had held as follows:"It should not also be overlooked that even though Section 89 of
CPC mandates courts to refer pending suits to any of the several alternative dispute
resolution processes mentioned therein,  there cannot be a reference to arbitration even
under Section 89 of CPC, unless there is a mutual consent of all parties, for such
reference."

if an arbitration agreement does not exist but the courts feel that the dispute would be best
settled by arbitration, the dispute can be referred to arbitration but only if the parties consent to
it. The Supreme Court read the provision in line with the Arbitration and Conciliation Act, 1996
and held that the courts have no authority, power or jurisdiction to refer unwilling parties to
arbitration if there is no arbitration agreement

applauded by many pro-ADR advocates, judges and common folk as it reinforces the voluntary
nature of Alternate Dispute Resolution and it is also in consonance with the scheme of the
Arbitration and Conciliation Act, 1996 which mandates an arbitration agreement.

Nutan Batra v Buniyaad- Delhi High Court

Section 16 of the Court-fees Act, 1870

16. Refund of fee.- Where the Court refers the parties to the suit to any one of the mode
of settlement of dispute referred to in Section 89 of the Code of Civil Procedure, 1908 (5
of 1908), the plaintiff shall be entitled to a certificate from the Court authorizing him to
receive back from the collector, the full amount of the fee paid in respect of such plaint.

(Delhi amendment)--Section 16A of the Court-fees Act, 1870 16A. Refund of fees on
settlement before hearing.- Whenever by agreement of parties-
i) Any suit is dismissed as settled out of Court before any evidence has been recorded on
the merits of the claim; or
ii) Any suit is compromised ending in a compromise decree before any evidence has
been recorded on the merits of the claim; or
iii) Any appeal is disposed of before the commencement of hearing of such appeal;
half the amount of all fees paid in respect of the claim or claims in the suit or appeal
shall be ordered by the Court to be refunded to the parties by whom the same have
been respectively paid.

11. On a literal reading of Section 16, a plaintiff would be entitled to the refund of the
court fees on a mere reference to ADR, under Section 89 of the Code, regardless of
whether the reference ended in a successful settlement or not. This has come in for
criticism from the Law Commission of India.

12. This Court agrees with the observations of the Commission regarding the
incongruous and unreasonable consequences that would follow upon a literal
interpretation of Section 16 of the Act. The purpose of refunding the court fees is to
encourage parties to resort to means of dispute resolution, other than adjudication by
the courts, even after the civil courts have been approached for relief. The provision
acknowledges that payment of court fees is meant to support the adjudication of
disputes by the court in which proceedings have been instituted. It entitles litigants to a
refund thereof in the event of the court's process is not in fact used to arrive at a final
resolution of the dispute, but is not intended to apply in the event that the matter does
not attain finality in the settlement process. On a proper construction, therefore, this
Court is of the considered view that Section 16 can be made applicable only when
parties are able to reach a settlement after a reference to ADR under Section 89 of the
Code.

13. As far as the NCT of Delhi is concerned, the Legislative Assembly of NCT of Delhi has
also intervened and inserted Section 16A into the Act.

The intention of the Delhi Amendment was to provide for some relief in cases which are
not covered by Section 16, perhaps because Section 89 of the CPC had not been
invoked. Section16A is conditional upon the suit being at a pre-evidence stage; then too,
it provides for refund of only 50% of the court fees paid.

Reference to ADR under 89 is covered by s16- full refund

A compromise entered out of Court, whether resulting in a compromise decree, or in the
suit being dismissed as settled out of Court, is covered only by Section 16A, provided it is
in the pre-hearing stage- half refund

It is clear that parties were referred to mediation under the aegis of the Delhi High Court
Mediation and Conciliation Center by an order dated 08.09.2017. The mediation was
successful and the parties arrived at a settlement, which was incorporated in a decree by
an order dated 13.12.2017. As the conditions of Section 16 of the Act are thus satisfied,
the plaintiff (appellant herein) is entitled to a refund of the entire court-fee paid.

For insurance, I found this ppt to be concise

https://nja.gov.in/Concluded_Programmes/2016-17/P-1008_PPTs/1.MOTOR
%20ACCIDENTS-COMPENSATION%20NO%20FAULT%20LIABILITY.pdf
(Rylands is mentioned as Rynalds and there are some other cosmetic mistakes, but a good
basic rundown)

I have informed concerned authorities that I have not been able to cover insurance in detail.
Quite possibly, there should not be a question on it, but for your sake, no harm in being
aware of the law.

Shanmugan v Krishnamurthy and United Insurance Company

S, who was in a drunken state, was riding his motorcycle. The ambassador car
owned by K, which was driven by his driver, came at a high speed and hit the
claimant. Due to the accident, S fell down and sustained fracture on his left
ankle besides receiving multiple injuries all over his body.

He filed a petition before the Trial court claiming a compensation of Rs.

2,00,000. The tribunal held that the accident was caused due to rash and
negligent driving of the driver of ambassador car insured with UIC. The Trial
court decided that the accident was the result of contributory negligence of
driver and that of S. Hence, the total compensation was decided to be Rs.
65,880 out of which 60% was to be paid by UIC and 40% to be paid by S. S
appealed.

HC dismissed the appeal filed by the claimant and set-aside the decree passed by
the trial court insofar it fastened the liability on respondent 2 at 60%. It was held
that the claimant himself was the tort-feasor and was responsible for the
accident. As such, the question of fastening liability either on the owner or on
the Insurance Company does not arise. The court upheld the upper limit of
30mg per 100 ml as outer limit of alcohol consumption fixed under Section 185
of the Motor Vehicles Act, 1988.

NIC v Pranay Sethi

The calculation of future prospects for the purpose of compensating victims should be
extended to persons who are self-employed or earn a fixed salary, and not just those
having a permanent job. The Court, in this regard, reasoned that:

"To have the perception that he (self-employed person) is likely to remain static and his
income to remain stagnant is contrary to the fundamental concept of human attitude which
always intends to live with dynamism and move and change with the time."

The Court also remarked that different tribunals calculating compensation differently
on the same facts leads to a lack of uniformity and consistency in awarding
compensation. Therefore, in order to regulate the calculation of compensation and
keeping in view the principle of certainty, stability and consistency, the Court agreed to
the "principle of "standardization" so that "a specific and certain multiplicand is determined
for applying the multiplier on the basis of age" for claims where the deceased had a
permanent job.

Further, the Court, considering various factors such as the passage of time, escalation of
prices, human attitude to follow a particular pattern of life, and the change in price
index, among others, observed that, the principle of standardisation should be applied
for a person with a fixed salary or a self-employed person as well.

The Court has therefore laid down a computation of fixed percentage for addition to the
actual salary of a self-employed person or a person earning a fixed salary. It has also
introduced such calculation for victims between the ages of 50 to 60 years, which was
not previously available under the guidelines laid down by Sarla Verma.

In summary, the Court has determined the applicable percentages for determination of
future prospects, in case of deceased with a permanent job, and has also added the
category where the deceased was self-employed or on a fixed salary, to be as follows:

The Court has also laid down reasonable compensation figures for conventional heads
in the following terms:

a. ₹15,000 in case of loss of estate;

b. ₹40,000 in case of loss of consortium, and

c. ₹15,000 for funeral expenses.

These amounts are to be enhanced at the rate of 10% with every three-year period.

This development and the slabs laid down above would go a long way in standardising
the mode of computation of compensation in fatal accident cases, and shall help in
eliminating ambiguity in future cases. It shall also save judicial time by eliminating the
need for detailed calculations by various courts/tribunals.

UIC v Sunil Kumar

A Two-Judge Bench of this Court in National Insurance Company Limited v. Sinitha and
others [(2012) 2 SCC 356] examined the scope of  Section 163-A of the Motor Vehicles
Act and took the view that  Section 163-A of the Act has been founded under “fault
liability principle”.
Interpreting  Section 163-A of the Act, the Judges in Sinitha’s case (supra) held that it is
open to the owner or the insurance company, as the case may be, to defeat a claim
under Section 163-A of the Act by pleading and establishing through cogent evidence a
fault ground (wrongful act or neglect or default). The Court concluded that Section 163 of
the Act is founded under the fault liability principle.
5. We find difficult to accept the reasoning expressed by the Two-Judge Bench in
Sinitha’s case 
Liability to make compensation under Section 163-A is on the principle of no fault and,
therefore, the question as to who is at fault is immaterial and foreign to an enquiry
under Section 163-A.  Section 163-A does not make any provision for apportionment of
the liability. If the owner of the vehicle or the insurance company is permitted to prove
contributory negligence or default or wrongful act on the part of the victim or claimant,
naturally it would defeat the very object and purpose of  Section 163-A of the Act.
Legislature never wanted the claimant to plead or establish negligence on the part of the
owner or the driver. Once it is established that death or permanent disablement occurred
during the course of the user of the vehicle and the vehicle is insured, the insurance
company or the owner, as the case may be, shall be liable to pay the compensation, which
is a statutory obligation.
9. We, therefore, find ourselves unable to agree with the reasoning of the Two-Judge
Bench in Sinitha’s case (supra). Consequently, the matter is placed before the learned
Chief Justice of India for referring the matter to a larger Bench for a correct interpretation
of the scope of Section 163- A of the Motor Vehicles Act, 1988
Union Carbide (Bhopal Gas) and MC Mehta v UOI

It is seen that MC Mehta was used as a tool to influence the Bhopal gas case.
Absolute liability innovated here in Shriram fertilisers case (MC Mehta) to
invigorate claims of compensation in Bhopal tragedy. Case briefs are easily
available for this.

Generally,

Be aware of:

Role of CCPC, differentiate with CCPA.

complaint-21days to accept/reject (else, deemed acceptance)-opportunity to reply (30+15

days)- if it can be tested, then test, otherwise skip to the good part- framing of issues-
maybe mediation-hearing, evidence-conculsive determination of matter in controversy- how
the commission functions
class action- read Bhopal gas, MC Mehta, upohar, (good article
https://www.mondaq.com/india/dodd-frank-consumer-protection-act/1031896/class-
action-complaints-under-the-consumer-protection-law-in-india, Godfrey v Ajay Kumar etc)

product liability (refer to fallback liability cases I had shared with Archita)

Be generally confident about drafting- make sure to show your locus, jurisdiction when you
set out the content of your draft, write the cause of action cogently and follow the best
practice model in the template shared with you.

I will share more if I feel like you must know more.