M/s U.P. Cooperative Federation Limited, who runs a cold storage at Semri, Jamalpur, Tehsil Ghosi, District Mau, U.P., has filed this complaint alleging deficiency in service on part of the National Insurance Company Limited, claiming a compensation of Rs.53,26,869.60 ps.=The only basis which in our view would be to base the quantum of loss on the basis of the ‘on the spot observation’ of the surveyor in his first report dated 10th of September, 1997, in which he has categorically mentioned that 1000 bags of potatoes were thoroughly damaged and were dumped outside in the compound. No doubt, the Manager of the cold storage had pleaded with him that the actual damage was more than 4000 bags. Be that as it may, however, in the claim it has been stated that 29593.72 quintals of potatoes were damaged, which cannot be believed, especially when one chamber was not affected and the surveyor had opined that even with respect to chamber no. I only 10% of the potatoes had been damaged. Thus, to strike a balance we may at the most take a figure of 4000 bags of potatoes as the loss, which would come to 3480 quintals and calculated @ Rs.180/- per quintal the total loss would come to Rs.6,26,400/-. This award of compensation to our mind would meet the ends of justice and we direct the opposite party-Insurance Company to pay this amount with interest @ 6% per annum from the date of filing of this complaint before this Commission within a period of six weeks, failing which it will attract interest of 9% per annum for the period of default

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 128 OF 2000 M/s U.P. Cooperative Federation Ltd. 32, Station Road, Lucknow, U.P. Through the Manager PCF Cold Storage Semri, Jamalpur, Tehsil Ghosi District Mau, U.P. ..... Complainant (s) Versus 1. National Insurance Company Limited Regd. Office Middleton Street Kolkata Through the Manager National Insurance Company Limited Divisional Office Near Jeevan Ram Inter College Maunath Bhanjan District Mau, U.P. 2. National Insurance Company Limited Branch Office, Azamgarh Office Marval Bhavan Civil Lines, Azamgarh ...... Opp. Party (ies) BEFORE: HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HON’BLE MR. S.K. NAIK, MEMBER For the Complainant (s) : Ms. Vibha Narang, Advocate for Mrs. Rani Chabra, Advocate For the Opposite Party (ies) : Mr. Maibam N. Singh, Advocate for Mr. Joy Basu, Advocate Dated: 4th January, 2012 ORDER PER S.K. NAIK, MEMBER 1. M/s U.P. Cooperative Federation Limited, who runs a cold storage at Semri, Jamalpur, Tehsil Ghosi, District Mau, U.P., has filed this complaint alleging deficiency in service on part of the National Insurance Company Limited, claiming a compensation of Rs.53,26,869.60 ps. 2. Facts culminating in the complaint stated briefly are that the complainant had purchased a Refrigeration Plant (Stock) Policy covering the period from 7th of April, 1997 to 6th of November, 1997 on payment of a premium of Rs.60,329/-. The policy was to cover the risk to 40,000 quintals of potatoes at the average price of Rs.180/- per quintal. Thus, the value of the insurance was 40,000 quintals x Rs.180 = Rs.72,00,000/-. While the cover note was issued on the 7th of April, 1997, the policy document laying down the terms and conditions was, however, received by the complainant only on the 13th of June, 1997. It so happened that because of fluctuation in the power supply and subsequent power failure, the compressor of the cold storage got damaged on the 24th of August, 1997. The opposite party-Insurance Company, though it is claimed by the complainant, was informed on the same very day on phone, however, were formally communicated in writing about the breakdown incident on the 27th of August, 1997. A surveyor on behalf of the opposite party-Insurance Company, however, visited the cold storage for the first time on the 9th of September, 1997. Meanwhile, the complainant had initiated various steps, including advertisement in the local Press, urging the potato growers, who had stored their crops, to remove their stock which was deteriorating very fast due to the breakdown. Because of the vagaries of weather and in the absence of any alternative arrangement to restore the power supply, the temperature in the cold storage chambers started rising significantly severely damaging the stored potatoes. All possible steps including segregation as advised by the surveyor in his report dated 10th of September, 1997 to minimize the loss were also taken by the complainant but the damage/loss had already occasioned beyond redemption. The surveyor made a second visit on 18th of September, 1997 but made no assessment of the loss despite having noticed that during his visit on the 9th of September, 1997, the stock in chamber no. 2 had deteriorated badly, apart from sprouting upto 8” in length. The potatoes in this chamber were rotting and fowl smelling. He had further taken note of the fact that approximately 1000 bags opened and damaged potatoes were dumped outside in the compound. 3. In his letter dated 22nd of September, 1997 addressed to the complainant regarding the outcome of his second visit, the surveyor impressed upon the complainant that irrespective of whether his claim is tenable under the policy conditions or otherwise, there was great urgency of disposing of the potato stock held in chamber no.I, as, according to him, except for about 10% stock, the rest of the potatoes in chamber no. I were in good condition. Additionally, he appears to have asked for some additional documents/papers perhaps to enable him to assess the correct quantum of damage/loss. While the complainant claims that the desired papers were duly forwarded but there was no response from the opposite party-Insurance Company with regard to any further visit by the surveyor and, therefore, the complainant had no other option but to file his claim as per his own assessment, which was done on the 8th of December, 1997. The opposite party-Insurance Company, however, failed to respond to the claim forcing the complainant to make several requests which also did not evoke any response. Distressed and disappointed with the conduct of the opposite party-Insurance Company, the complainant had no other option but to file this complaint on the 8th of March, 2000. During the pendency of the complaint, however, the opposite party-Insurance Company, have repudiated the claim of the complainant vide their letter dated 15th of September, 2000. 4. In response to the notice issued by this Commission on the complaint, the opposite party-Insurance Company has filed its written version and have contested the claim. In their written version, the opposite party-Insurance Company have raised preliminary objections that the complaint was not maintainable being barred by limitation and that the complaint is not maintainable as the claim stands already repudiated vide their communicated dated 15th of September, 2000 and, therefore, there was no subsisting cause of action to the complainant. It was pleaded that while the alleged damage to the compressor occurred on the 24th of August, 1997, it was only on the 27th of August, 1997 that intimation with regard to the breakdown was given to them. Additionally and more importantly, they have also taken the plea that there has been gross violation of the terms and conditions of the policy, inasmuch as loading of potatoes started when the temperature was 38.5OC as against the maximum of 34OC in terms of warranty clause no.6. Further, the temperature all through after the loading remained well above the prescribed temperature and further that as against the stipulated condition that no stock of potato should have been accepted for storage after 15th of April, 1997 without their written permission, the complainant had continued loading of potatoes upto 27th of April, 1997. Thus, the thrust of the written version is on the breach/violation of the terms and conditions of the policy while some other grounds also have been taken that the complainant despite the advice from the surveyor did not take adequate action to minimize the loss specially when the surveyor had stated that only 10% of the stock in chamber no. I had been affected, the complainant took no step to sell or dispose of the stock of the balance stock of potatoes. Based on the report of the surveyor, they have justified their stand to repudiate the claim. 5. In the rejoinder to the written version, the complainant has strongly controverted the pleas and objections of the opposite party-Insurance Company and has reiterated its stand in the complaint. 6. In order to substantiate their respective pleas, affidavits on behalf of the complainant have been filed by Shri Tarunesh Kumar, District Manager/In-charge of cold storage and Shri Jawahar Lal Vishwakarma, the operator in the cold storage, besides some documents relating to the details of electrical breakdown, press release issued directing the farmers to lift the potatoes from the cold storage to minimize loss, some letters issued to the client potato growers, copy of the insurance claim etc. On behalf of the opposite party-Insurance Company, an affidavit by one Shri A.K. Gupta, Manager, National Insurance Company Limited, Delhi Regional Office has been filed. An affidavit from their surveyor Lt. Col. D.P. Jairath, Chartered Accountant, has also been filed. Parties have generally relied upon their respective documentary evidence in support of their case. 7. We have heard the learned counsel for the parties and perused the records of the case. It is not in dispute that the complainant M/s U.P. Cooperative Federation Limited had purchased two insurance policies, one for a sum of Rs.72,00,000/- for Refrigeration Plant (Stock) Policy covering the period from 7th of April, 1997 to 6th of November, 1997 and another for the Plant & Machinery. The dispute pertains only to the stock policy. It is also not in dispute that the compressor of the cold storage was damaged due to fluctuation in the power supply and subsequent power failure since this has not been challenged by the opposite party-Insurance Company. The claim of the complainant that information with regard to the incident was given on the same day on the telephone has not been denied or controverted by the opposite party-Insurance Company but they admit that a formal communication dated 27th of August, 1997 with regard to the damage to the compressor was received by them. Even though the opposite party-Insurance Company has tried to raise this as an issue of delay on part of the complainant, we are not inclined to accept their objection on this ground. 8. As per their own showing, the opposite party-Insurance Company appointed a surveyor Lt. Col. D.P. Jairath, who for the first time visited the premises of the cold storage on the 9th of September, 1997, a fortnight after the occurrence of the incident. With regard to this first visit, his report being relevant is reproduced below :- “The Manager 10.09.1997 P C F Cold Storage Semri Jallalpur Distt. Mau Nath Bhanjan (U.P.) Ref. : Your D.O.S. Claim – damage to Potatoes stock – Policy under Cover Note No. 252553 dated 07.04.1997. Dear Sirs, At the request of R.O. Lucknow of your underwriters National Insurance Co. Ltd. Mau Nath Bhanjan, I have taken up the survey of your above loss/claim. In this connection I visited your cold storage on 09.09.97 and carried out the survey with the assistance of Shri Hira Lal and Shri Kailash Rai. Both the chambers were inspected and it was noted that chamber No. 1 had potatoes stock in much better health but the stock in chamber No.2 had deteriorated badly. Apart from sprouting upto 8 in length, the potatoes in this chamber were rotting and badly smelling. Approx 1000 B/s opened and damaged potatoes were dumped outside in the compound. Shri Hira Lal stated that the actual damage may be much more than 4000 Bags reported earlier. He also stated that already Two Notices have been published in the local Newspapers requesting the farmer owners to unload and remove their potatoes from the cold storage. The undersigned had advised on the spot that immediate loss minimization steps be taken in consultation with your R.O. Azamgarh and local authorities to arrange unloading and removal of saleable potatoes. Also the segregation of damaged and undamaged potatoes be taken up on warfooting so that further damage can be avoided and actual loss may be assessed reasonably accurately. The above aspects were emphasized then and I take this opportunity to reiterate the same again. Please take immediate action to unload and dispose of saleable stock and also to segregate the damaged and undamaged potatoes. Also please inform me on telephone when can I come and verify the damaged potatoes. Even if complete segregation may not be possible immediately I would like to visit you at the earliest again when sufficient segregation is over. PLEASE INTIMATE WHEN CAN I VISIT YOU AGAIN for the above verification. You books have already been signed by me. The papers/information required from you will be intimated after my next visit. Thank you, Yours faithfully, Sd/- (D.P. JAIRATH) Copy to :- National Insurance Co. Ltd. D.O. : Mau The loading was continued upto 26.04.1997. Details of loss and liability will be sent to your office after my next visit which is expected to be after about one week.” National Insurance Co. Ltd. R.O. : Lucknow (emphasis added) 8A. As can be seen from this letter addressed to the Manager of the complainant with a copy to the opposite party-Insurance Company, approximately 1000 bags of potatoes were already fully damaged and were dumped outside in the compound by the time the surveyor visited the cold storage. He had also taken note of the complainant’s efforts to minimize the losses by inserting two notices in the local newspapers requesting the potato owners to take away their stocks from the cold storage. Rather than assessing the loss in quantitative and financial terms, the surveyor thought it fit to only sign the books and go away with added sermons to take some more steps to minimize further loss. Even when he returned to the cold storage after a week on the 18th of September, 1997, he again did not undertake to assess the loss but advised the Manager of the complainant that irrespective of whether the claim is tenable under the policy conditions or otherwise, there was great urgency of disposing of the potato stock held in chamber no. I. However, vide his letter dated 20th of October, 1997 giving his final report to the opposite party-Insurance Company, the surveyor has made no mention of the damage of stock which he had personally seen and recorded earlier nor does he make any mention of the complainant having been asked/questioned with regard to the breach/violation of the terms and conditions of the policy. A reading of the final report leaves no manner of doubt that the surveyor was under some kind of a pressure to forward his final report only on the basis of the breach of terms and conditions. The stand taken by the complainant is that, while the cover note for the policy was issued on the 7th of April, 1997, which did not mention any terms and condition, the policy document containing the terms and conditions was issued by the opposite party-Insurance Company on the 11th of June, 1997, which was received by him on the 13th of June, 1997. This is a matter of fact which has not been denied by the opposite party-Insurance Company. Obviously, therefore, the complainant until the receipt of the policy document could not be expected to know the stipulation and terms and conditions incorporated in the policy. It is not the case of the opposite party-Insurance Company that it was a renewal of any earlier policy and, therefore, to say that there is a breach of terms and conditions which was not known to the complainant cannot be a ground for foisting the blame on the complainant. 8B. In this respect, we would respectfully rely on the judgment of the Supreme Court in the case of Modern Insulators Ltd. v. Oriental Insurance Co. Ltd. [(2000) 2 SCC 734], in which it has been held that :- “It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since the obligation of good faith applies to both equally (para 8). Since the terms and conditions of the standard policy wherein the exclusion clause postulating cesser of the insurance in case of second-hand/used property was included, were neither a part of the contract of insurance nor disclosed to the insured, the insurer could not claim the benefit of the said exclusion clause (Paras 9 and 5).” The principle enunciated in this judgment of the Hon’ble Apex Court is fully applicable to the facts of this case since the opposite party-Insurance Company had not informed/communicated the terms and conditions of the policy in time and the complainant oblivious of such terms and conditions had undertaken the loading operations. 9. Since the entire case of the opposite party-Insurance Company is based on the premise that the complainant has not adhered to maintaining the temperature prescribed at the stage prior to the loading of the potato stock, during the loading and in the post-loading phase, as prescribed in the terms and conditions of the policy, which was not known to the complainant, and especially when the complainant has argued that the representatives of the Insurance Company/surveyor were present at the time of loading and nobody ever informed that loading of potato after 15th of April, 1997 required their prior approval, we find substance in the said argument. It is not that loading after 15th of April, 1997 was totally prohibited but only it required the approval of the opposite party-Insurance Company, which in the present case can safely be inferred to be available to the complainant as their own representative was present at the premises when the loading was going on after the 15th of April, 1997. 10. The opposite party-Insurance Company has come out with another defence that even prior to the breakdown/damage to the compressor, there has been negligence on part of the complainant to maintain the temperature as per the requirement despite there being one or two compressors in working condition, due to lack of proper planning and diligence which had already raised the temperature in the chambers considerably and according to them it was not a breakdown on the 24th of August, 1997 that alone was the cause of rise in the temperature in the cold chambers and subsequent damage to the potatoes. We are not inclined to buy this argument as the opposite party-Insurance Company has failed to promptly depute their surveyor to visit the cold storage and a delay of about two weeks is a rather long period for the potato stock to deteriorate especially during the month of August/September. Thus, we are of the opinion that there has been negligence on part of the opposite party-Insurance Company and the deficiency in the service is apparent. 11. Now coming to the question of compensation, we find that despite an endorsement to the opposite party-Insurance Company in his letter dated 10th of September, 1997 (Annexure R-4) that details all loss and liability will be sent after his next visit which was expected to be after about a week, the surveyor after the second visit in his letter dated 22nd of September, 1997 has given no reason as to why he was not in a position to assess the loss. He had not detailed any requirement of documents/letters required from the Manager of the cold storage if they were very necessary for him to assess the total losses. Interestingly, within a month from this communication, he has sent his final report to the opposite party-Insurance Company without giving any intimation with regard to his mind to the complainant. Thus, we are now faced with a situation where there is no estimate of the loss by the surveyor. The complainant has, however, made a claim of Rs.53,26,869.60 ps. stating that 3523 bags of white potatoes and 30436 bags of red potatoes were totally damaged and has calculated the loss @ Rs.180/- per quintal. Details with regard to the actual stock in the cold storage on the date of the incident, the quantity segregated and salvaged and disposed of and the quantity taken away by the stockists have not been furnished. In the absence of any evidence with regard to the claim and for want of an assessment by the surveyor, we are in a somewhat piquant situation to award a compensation, which the complainant deserves. The only basis which in our view would be to base the quantum of loss on the basis of the ‘on the spot observation’ of the surveyor in his first report dated 10th of September, 1997, in which he has categorically mentioned that 1000 bags of potatoes were thoroughly damaged and were dumped outside in the compound. No doubt, the Manager of the cold storage had pleaded with him that the actual damage was more than 4000 bags. Be that as it may, however, in the claim it has been stated that 29593.72 quintals of potatoes were damaged, which cannot be believed, especially when one chamber was not affected and the surveyor had opined that even with respect to chamber no. I only 10% of the potatoes had been damaged. Thus, to strike a balance we may at the most take a figure of 4000 bags of potatoes as the loss, which would come to 3480 quintals and calculated @ Rs.180/- per quintal the total loss would come to Rs.6,26,400/-. This award of compensation to our mind would meet the ends of justice and we direct the opposite party-Insurance Company to pay this amount with interest @ 6% per annum from the date of filing of this complaint before this Commission within a period of six weeks, failing which it will attract interest of 9% per annum for the period of default. 12. The complaint, accordingly, is partly allowed in the above terms. However, there shall be no order as to cost. Sd/- ( R. C. JAIN, J. ) PRESIDING MEMBER Sd/- (S.K. NAIK) (MEMBER) Mukesh

developer’s deficiency service =the petitioner/developer had entered into an agreement for sale of a flat to be constructed by him to the respondent no.1/complainant for a cost of Rs.3,60,000/-. He had already received a sum of Rs.3,30,000/- and on account of the non-payment of the balance amount of Rs.30,000/-, the petitioner not only revoked the sale agreement but also sold the said flat to a third party. Obviously, being aggrieved the respondent no.1/complainant approached the District Forum, who, as stated above, not only directed the petitioner to refund the amount already paid by the complainant with interest but also awarded a compensation of Rs.3,00,000/- for the injustice and deficiency perpetrated by the petitioner. Aggrieved with the said decision of the District Forum, the petitioner had filed an appeal before the State Commission, which too, as stated above, has been dismissed with a cost of Rs.1000/-.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3279 OF 2011 [Against the order dated 11.08.2011 in Appeal No. 373/2010 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata] Chabi Das S/o Mr. Anil Das 66/H/4, Tiljala Masjid Bari Bye Lane Police Station Tiljala Kolkata-700039, West Bengal … Petitioner Versus 1. Ranjit Kr. Chowdhury S/o Ashok Kr. Chowdhury Police Station Tiljala Kolkata-700039, West Bengal 2. Ms. Priyabal Paul W/o Sri Kartick Chandra Paul 517, Laskar Hut Road Police Station Tiljala Kolkata-700039, West Bengal … Respondent BEFORE : HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HON’BLE MR. S.K. NAIK, MEMBER For the Petitioner : Mr. Sukalyan Sarkar, Advocate Pronounced on : 4th January, 2012 O R D E R PER S.K. NAIK, MEMBER 1. This revision petition has been filed by Mr. Chabi Das (the developer/builder), who was opposite party no.1 before the District Consumer Disputes Redressal Forum, Alipore, Kolkata (District Forum for short), aimed at challenging the order dated 11th of August, 2011 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (State Commission for short), dismissing his appeal with a cost of Rs.1000/-. The appeal had been filed by the petitioner against the order dated 25th of January, 2010 of the District Forum, vide which the petitioner has been directed to refund a sum of Rs.3,29,000/- to the respondent no.1/complainant within one month from the date of the order together with interest @ 10% per annum w.e.f. 1st of December, 2005 and also to pay a sum of Rs.3,00,000/- as compensation, besides Rs.1000/- towards the cost of litigation. 2. Facts of the case, in brief, are that the petitioner/developer had entered into an agreement for sale of a flat to be constructed by him to the respondent no.1/complainant for a cost of Rs.3,60,000/-. He had already received a sum of Rs.3,30,000/- and on account of the non-payment of the balance amount of Rs.30,000/-, the petitioner not only revoked the sale agreement but also sold the said flat to a third party. Obviously, being aggrieved the respondent no.1/complainant approached the District Forum, who, as stated above, not only directed the petitioner to refund the amount already paid by the complainant with interest but also awarded a compensation of Rs.3,00,000/- for the injustice and deficiency perpetrated by the petitioner. Aggrieved with the said decision of the District Forum, the petitioner had filed an appeal before the State Commission, which too, as stated above, has been dismissed with a cost of Rs.1000/-. 3. We are surprised that the petitioner/builder is yet not convinced with the justice imparted by the two fora below and has ventured to file this revision petition. 4. We have heard the learned counsel for the petitioner on admission of this revision petition. 5. The only ground advanced by the learned counsel is that the complainant had not taken any steps to pay the balance consideration within the stipulated period and further that the District Forum had decided the matter in their absence, which has resulted in the miscarriage of justice. We summarily reject this argument for the simple reason that the petitioner having received Rs.3,30,000/- against a total consideration of Rs.3,60,000/- could not be expected to say that the complainant was at fault for not paying the balance amount of Rs.30,000/- and take possession of the flat. Learned counsel has failed to produce any communication/letter addressed by him to the complainant demanding the payment of the balance amount of Rs.30,000/- or having issued any notice stating therein that failure of the payment of Rs.30,000/- will entail cancellation. It is clear from the orders of the fora below that notice on the complaint had been duly served on the opposite parties but for reasons, which is now clear as the petitioner/builder had already sold out the flat, they did not appear before the District Forum deliberately having disposed of the flat meant for the complainant to a third party. It is not difficult to guess as to why the petitioner was in such great hurry to dispose of the flat constructed on the money received from the complainant and greed appears to be the main motive since price of real estate escalate very fast. 6. In this case, both the fora below have delivered a concurrent finding and in that background our role in exercise of Section 21(b) of the Consumer Protection Act, 1986 is very limited. The Hon’ble Supreme Court in the case of Mrs. Rubi (Chandra) Dutta v. M/s United India Insurance Co. Ltd. [II (2010) CPJ 19 (SC)], on this subject has held as under :- “23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora” . 7. Respectfully, drawing support from the observation of the Hon’ble Apex Court as above, we do not find that there is any prima facie jurisdictional error or miscarriage of justice in the impugned order, warranting our interference. On the contrary, any interference may result in miscarriage of justice to the complainant. 8. The revision petition, accordingly, is dismissed at the stage of admission itself with a cost of Rs.5000/- to be deposited by the petitioner/developer in the legal aid account of this Commission within a period of four weeks. Sd/- ( R. C. JAIN, J. ) PRESIDING MEMBER Sd/- (S.K. NAIK) (MEMBER) Mukesh

MEDICAL NEGLIGNECE = there was no medical negligence committed by respondent No. 1 in treating the patient. It was the heart failure which led to the death of the patient. However, respondent No. 1 has committed unfair trade practice in employing the untrained and unqualified staff in his hospital. In these circumstances, the appellants are awarded compensation to the extent of Rs.50,000/- which will be payable by respondent No. 1 alone.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2629 OF 2011 [Against the order dated 06.04.2011 in First Appeal No. 1452/2005 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh] Jassi Hospital & Heart Care Centre College Road, Fazilka Through Dr. Yashpaul Jassi … Petitioner Versus 1. Bhupinder Singh Brar S/o Shri Chanan Singh R/o Radha Swami Colony, Fazilka District Ferozepur 2. Nirvair Singh S/o Bhupinder Singh Brar R/o Radha Swami Colony, Fazilka District Ferozepur … Respondents Before : HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HON’BLE MR. S.K. NAIK, MEMBERS For the Petitioner : Mr. Kamleshwar Gumbar, Advocate Pronounced on : 4th January, 2012 O R D E R PER S.K. NAIK, MEMBER 1. Jassi Hospital & Heart Care Centre, College Road, Fazilka, who were the opposite party no.1 before the District Consumer Disputes Redressal Forum, Ferozepur, have filed this revision petition seeking to challenge the order dated 6th of April, 2011 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh passed in First Appeal No. 1452 of 2005. The operative part of the said order reads as under :- “51. In view of the discussions held above, we reach the conclusion that there was no medical negligence committed by respondent No. 1 in treating the patient. It was the heart failure which led to the death of the patient. However, respondent No. 1 has committed unfair trade practice in employing the untrained and unqualified staff in his hospital. In these circumstances, the appellants are awarded compensation to the extent of Rs.50,000/- which will be payable by respondent No. 1 alone.” 2. Since both the District Forum as well as the State Commission, on appreciation of the evidence adduced by both sides by their detailed orders have arrived at the conclusion that the line of treatment adopted by the treating doctors cannot be said to be a deviation from normal medical practice and, therefore there was no medical negligence; there is no need for us to go into the details of the treatment regimen followed by the doctors, especially when the complainant has not challenged the findings before us. The limited question that remains for adjudication is as to whether the petitioner/opposite party no.1/Jassi Hospital & Heart Care Centre had indeed employed certain staff to take care of its patients, who were not fully qualified and trained to be entrusted with the care of such patients. 3. Suffice it to say that petitioner/opposite party no.1 has not denied the allegation of the complainant that Rajinder Singh @ Raja was working as the compounder in its hospital. In the affidavit, filed by the said Rajinder Singh, albeit before the State Commission, he has deposed that injection Dopamine was administered by him on the deceased patient. Further, in the absence of any denial/rebuttal by the petitioner/opposite party no.1 that the qualification of Rajinder Singh was merely that of a 10+1 and that he had no qualification or training of a compounder, there is no escape from the conclusion that the petitioner/opposite party no.1 had engaged the unqualified and untrained Rajinder Singh and had entrusted him with the care of the patients. Mere claim by Dr. Jassi that he had administered the injection Dopamine, on the face of deposition made by said Rajinder Singh cannot be believed. The State Commission has rightly discarded the technical plea of the petitioner/opposite party no.1 that the affidavit of Rajinder Singh could not have been admitted at the stage of appeal. 4. We find that the State Commission has very correctly taken the view that proceedings under the Consumer Protection Act, 1986 being summary in nature, strict adherence to the provisions of the Evidence Act would not be applicable. What would be of relevance in the dispensation of substantive justice in a case of this nature would depend more on the preponderance of evidence and probability. In this case, para 43 to para 46 deal at length the evidence on the engagement of untrained/unqualified staff by the petitioner/opposite party no.1/Jassi Hospital & Heart Care Centre and, therefore, we do not find any merit in this revision petition, which calls for interference in our supervisory jurisdiction under Section 21(b) of the Consumer Protection Act, 1986. 5. The revision petition, accordingly, is dismissed, however, with no order as to cost. Sd/- ( R. C. JAIN, J. ) PRESIDING MEMBER Sd/- (S.K. NAIK) (MEMBER) Mukesh

the Hon’ble Supreme Court reported in the case of National Insurance Company Ltd. v. Swaran Singh and others[1] and found that even if the driver of the vehicle does not have a valid driving license so far as the third parties are concerned, the insurance company is liable to pay the same.

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. No. 2681 of 2011 JUDGMENT: The appeal is filed against the judgment dated 23.04.2004 in M.O.P.No.1274 of 2001 on the file of the Motor Accident Claims Tribunal-cum-I Additional District Judge, Visakhapatnam questioning the liability of the insurance company. A claim for compensation was made for the injuries received by the petitioner in a motor accident on 02.02.2001 while he was going on foot, a goods auto bearing No.AP-31-V-7353 driven by its driver in a rash and negligent manner and dashed against the petitioner, as a result of which, he received multiple injuries. The appellant herein is said to be 3rd respondent, with whom the vehicle was said to have been insured and the 3rd respondent contended that there is no valid driving license for the driver of the auto and apart from that the petitioner is put to strict proof of rashness and negligence. The lower Tribunal after considering the evidence on record, accepted the cause of action and granted a compensation of Rs.75,000/- but did not exonerate the liability of the appellant. Hence, the present appeal is filed. The point for consideration is whether the appellant is not liable to pay compensation? POINT: The lower Tribunal has relied upon the decision of the Hon’ble Supreme Court reported in the case of National Insurance Company Ltd. v. Swaran Singh and others[1] and found that even if the driver of the vehicle does not have a valid driving license so far as the third parties are concerned, the insurance company is liable to pay the same. The lower Tribunal in para 11 has considered this aspect and considering the evidence of R.W.1 and also the Motor Vehicle Inspector’s report Ex.A-2, it was held that the driver has no driving license. However, the material on record does not show that it is not a case of the driver of the vehicle, who was not having a license at all. The driver of the vehicle was said to be having a non-transport license while driving a goods vehicle. In fact, in the counter, it was pleaded that the petitioner is put to strict proof of the driver holding a valid driving license to drive the goods auto and the evidence of R.W.1, which is relied on and also the First Information Report shows that the driver had no valid driving license to drive the auto at the material point of time. Consequently, it clearly goes to show that the driver of the vehicle was having a particular license and by applying the decision stated supra in Swaran Singh’s case the lower Tribunal has rightly accepted the contention of the petitioner and the insurance company cannot avoid the liability. Therefore, the appellant is at liberty to recover the amount from the owner of the vehicle. Accordingly, the appeal is dismissed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 11-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. No. 2681 of 2011 DATE: 11-11-2011 MR [1] 2004 SCCL COM 22

V.D.Rajgopal=Finally, it is said that an unscrupulous politician in a position of authority finds willing accomplices even in the top echelons of administration who will go to any length of making or braking rules or law as may be necessary to oblige them or curry their favour or personal gains and it is this scenario which is most disturbing and needs to be tackled with seriousness. 14. In view of the circumstances stated above, it will be an adventure to grant a bail to the respondent at this stage.

*THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO + CRIMINAL PETITION NO.13303 OF 2011 % 26-12-2011 # State rep. by Central Bureau of Investigation, Anti Corruption Branch, Hyderabad, ….Petitioner Vs. $ V.D.Rajgopal son of D.Narasimhulu …. Respondent !Counsel for the Petitioner: Sri P.Kesava Rao, SPL.SC FOR CBI Counsel for the Respondent: Sri C.Padmanabha Reddy, Senior Counsel Head Note: ? Cases referred: (2005) 8 SCC 21 = AIR 2005 SC 3940 (2011) 5 SCC 296 THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.P.No.13303 OF 2011 ORDER 01. This is an application filed under Section 439(2) read with Section 482 of the Code of Criminal Procedure, 1973 to cancel the bail granted to the respondent herein who is arrayed as Accused No.3 in the charge-sheet filed by the C.B.I. 02. The identity of this case is known because of its publicity and also the magnitude of fraud and huge gains involved in illegal mining. The respondent/A-3 is said to be the Director of Mining and Geology of Government of Andhra Pradesh, who worked in that capacity from 01-08-2005 to 20-03-2010. Obulapuram Mining Company (O.M.C)/A4 is said to be owned by a powerful politician and influential person by name Gali Janardhana Reddy and his brother, who claims to have acquired the rights in that Company. More details of his acquisition are not very much necessary for the purpose of this case. There has been consistent complaints of illegal mining and also illegal activities of the O.M.C. which obtained the lease and the Government itself had to issue G.O.Rt.No.723 dated 25-11-2009 on the basis of report of a Committee which has gone into the allegations of illegal mining and found prima facie violations and the respondent herein, who was the Director of Mining and Geology, was also directed to take immediate action. It is also to be noted for a brief reference that the Supreme Court has also on complaint of large scale violations and involving huge financial gains has appointed a Committee, which is known as “Empowerment Committee” and the Empowerment Committee has submitted its report finding prima facie and almost conclusive material about the illegal activities in the mining area owned by the O.M.C. The C.B.I has registered a case in R.C.17(A)/2009 on 07-12-2009 and as against that O.M.C. has gone in Writ and the proceedings were stayed for some time and ultimately investigation was permitted to be taken up by virtue of the orders dated 16-12-2010 in Writ Appeal No.532 of 2010. Thereafter, in the course of investigation the C.B.I has arrested Accused Nos.1 and 2 representing O.M.C. and the respondent herein was arrested on 12-11-2011 and was taken to police custody for a period of one week and thereafter the charge sheet was filed on 03-12-2011. Subsequently, the respondent has filed the application for bail in Crl.M.P.No.2368 of 2011 and the learned C.B.I. Judge by his order dated 15-12-2011, which is under appeal, granted bail. The grievance of the C.B.I is that the reasons given by the learned Judge are not at all valid and reliance of the judgment of the Supreme Court pertaining to 2-G Scam wherein some of the accused by name Sanjay Chandra and others were said to have been released, has no application to the facts of this case. It is also further pleaded that the learned Judge has not taken into consideration the basic principles of grant of bail before applying the above judgment and the learned Judge also did not consider any of the objections which are valid and in the interest of justice to deny the bail and consequently the order of bail suffers from arbitrariness, non-application of mind and giving scope for defeating the cause of further investigation and justice. 03. However, Sri C.Padmanabha Reddy, the learned Senior Counsel representing the respondent strongly contends that the personal liberty of the respondent is a primary consideration and the investigation so far as the respondent is concerned, even according to the C.B.I., is over and his detention in the prison is not warranted. According to him, the constitutional right of freedom has to be protected and he reiterated the principles which were exhaustively referred to by the Supreme Court in the above case of Sanjay Chandra. 04. Before considering the rival contentions, I am aware of the limitations that the cancellation of the bail by a Court is a power to be exercised sparingly and generally the interference is not called for. But, however, the power to consider the validity of the order and the non-application of mind and arbitrariness of the court in granting the bail cannot be ignored and if such order is passed, it is the duty of this Court to correct it. 05. The learned Judge has not evidently considered any of the objections seriously raised by the C.B.I. about its apprehensions. The learned Judge has taken the case of Sanjay Chandra and this present case as similar and consequently on the principle laid down in that case as to the grant of bail when investigation is completed, so far as this accused is concerned, the benefit of bail was granted. 06. It is quite clear that the learned Judge has not gone into the facts of Sanjay Chandra’s case. There cannot be any dispute about the legal principles about the right of bail enunciated in the above case with reference to the several decisions referred therein. It is also to be noted that no two cases will be similar and it is for the Judge to assess and find out the relevancy of the cases. The law also recognizes the power of Court to withhold bail in particular cases. In Sanjay Chandra’s case it was not one where the accused were arrested during the course of investigation. It was a case where the accused were summoned after filing of the charge sheet and on the date of their appearance, they were remanded to judicial custody. The substantial question raised was about the legality of such remand. Added to that, in that case applications were repeatedly filed and dismissed and after commencement of the trial and examination of some of the witnesses, the court was inclined to grant bail since they are not public servants and their custody was not required. The petitioners in those applications were the representatives of the Companies who got some benefit. It is to be noted that still in 2-G Scam the principal accused who was erstwhile Minister and his Private Secretary, who is a public servant, are not yet released by the Court. The learned Judge has failed to take into consideration these facts and failed to note as to at what stage the Supreme Court has applied the principles of liberty and right to bail in that case. Therefore, the sole ground on which the learned Judge has granted bail is not tenable and though there cannot be any dispute about the principle of right to bail, the question is whether the case on hand warrants release at this stage. It is also to be noted that the bail application of one of the public servants who was involved in that case was denied by the High Court, making a clear distinction between the case of a public servant and the case of Sanjay Chandra and others. It will be relevant to refer to the decision in State of U.P Vs. Amarmani Tripathi[1] wherein the accused was a minister, accused of murder, the Supreme Court has held in para.18 as under:- “it is well settled that the matters to be considered in an application for bail are (1) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati Vs. NCT, Delhi and Gurcharan Singh Vs. State (Delhi Admn.). While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant of bail stated in Kalyanchandra Sarkar v. Rajesh Rajan: “11. The law in regard to grant or refusal is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas.)” 07. Keeping in view the above law, it is important to note that the respondent was the Director of Mines and Geology and being a public servant, his brother-in-law by name D.Rajasekhar was inducted as a Director of O.M.C. w.e.f. 11-07-2005, though he is said to have submitted resignation as Director on 17-02-2007, he is said to have filed the application on 23-07-2007 for grant of lease. The principles of law and duties of the public servants are quite clear to the effect that whenever a close member of the family is associated with any business, firm or any activity, he shall distance himself and disassociate from any of the decisions benefiting the said Company. But, however, in this case the respondent has not done so. The material collected by the investigating agency clearly goes to show that he was instrumental in processing and granting of lease to O.M.C. under his supervision only and when he is accountable for checking the illegalities of the subject of mining under his control, he has not taken any action. At this stage, it is suffice for me to say that he was a mute spectator of the illegalities in mining which was found true by the Empowerment Committee of the Supreme Court and also the Three-member Committee constituted by the Government of A.P. A reasonable inference of collusion or conspiracy can be prima facie drawn. Though the respondent may take a defence that the permits for transportation of the ore was only issued by his subordinate, it is difficult to believe that by due exercise of care and taking note of the complaints which were pouring in, the respondent could not have prevented the illegalities. Therefore, this is a case where the respondent consciously and knowingly allowed the illegalities in mining, evidently, to benefit O.M.C. in which his brother-in-law was a Director. The question as to whether the respondent has ignored the valid applications of others who gave complaints is a matter to be decided after the trial. Therefore, there is sufficient material of involvement of the respondent in conspiracy and the investigation done by the C.B.I is to that effect only. This accusation, if proved, is punishable. 08. The bail was claimed and granted on the ground that the investigation is completed and charge sheet is filed so far as the respondent is concerned. It is to be noted that crime as it was registered relates to the complicity of several persons having acted in conspiracy. If such is the case, it is the liability of all the conspirators that has to be investigated into and investigation in a crime is said to be completed only when the entire final report is submitted in the registered crime against all the accused persons. In fact, it is the claim of the C.B.I. that the investigation is not yet completed and against the co-conspirators the charge sheet is not filed. In fact, the charge sheet filed in the Court clearly shows that there was active involvement of another public servant against whom the investigation is to be completed. Apart from it, it is the objection of the C.B.I. that ill-gotten wealth has to be traced since there are allegations of demand of money. Therefore, the learned Judge has erred in coming to an opinion that the investigation in this case is completed. 09. Added to that the matter is before Supreme Court with regard to gravity of illegal mining by the Accused No.1 with O.M.C and other Companies in Bellary. It will be apt here to extract the order dated 18-11-2011 of the Supreme Court in S.L.P.7366-7367/2010 as under:- “In the Status report filed in C.B.I case No.R.C.17(A)/2009, Hyderabad (Obulapuram Mining Case) it has been stated that C.B.I will complete the investigation and file the charge sheet on or before 04-12-2011, after taking into account the stipulated period of 90 days. The investigation is being carried out on day-to-day basis under the supervision of Joint Director, C.B.I, Hyderabad. Place the matter on 20-01-2012, on which date this Court would like to see the charge sheet which the C.B.I proposes to file.” 10. If one goes by experience, such an order passed by the Supreme Court to go through the charge sheet is a rare order. One should understand the severity of the crime and the concern of the Court. Nobody knows as to what direction the Supreme Court may give after going through the said charge-sheet to the C.B.I. This should not have been ignored by the learned Judge. Not only that even today the learned Judge has not applied his mind and taken charge-sheet on file. That being the situation, a judicious mind should be over-cautious in dealing with the cases of this nature. 11. When the case itself is at preliminary stage and investigation is not completed, it is a far cry to consider that the trial may not be completed early and the accused has to languish in jail for a longer time. This is not a practical factor to be considered at this stage. In fact, so far as the apprehensions with regard to delayed trial and also granting of bail to the other accused persons is concerned, the Supreme Court has considered these aspects in Central Bureau of Investigation, Hyderabad Vs. Subramani Gopalakrishnan and another[2]. At this stage, it is too early to decide as to whether trial will take long time and if there are any undue delays. 12. So far as the apprehension of the C.B.I about the interference with the further investigation by the respondent is concerned, it cannot be easily ignored. The reason is investigation against the co-conspirators is not completed and in fact there seems to be a blame game between the public servants and when the respondent has got personal interest in O.M.C. where his brother-in-law was Director and association of the respondent with Accused Nos.1 and 2 is said to be close, then there is every possibility of tampering with the investigation or influencing the investigation involving the co-conspirators. That is the reason as to why in the decision referred above, the Supreme Court has stated that while granting the bail the Court has to take into consideration the character, behaviour, means, position and standing of the accused and also the danger of justice being thwarted by grant of bail. It can be said that these considerations are applicable to the facts of this case. 13. Therefore, I have no hesitation in holding that the order of bail granted by the learned Judge is arbitrary without applying the principles of law concerning case of this nature and drawing unnecessary inferences from other cases. The bail granted therefore is liable to be cancelled for the following reasons:- 1. There is more than sufficient and conclusive material gathered about the illegalities and illegal mining when the respondent was in control of the Mining Department as per the report of the Empowerment Committee of the Supreme Court and also the Three-member Committee appointed by the Government of A.P. Further the investigation has also establishes serious offences; 2. The respondent being public servant has got personal and undue interest in O.M.C in which his brother-in-law was Director and thereby the theory of conspiracy to benefit A-4 cannot be said to be ill-founded; 3. The theory that the investigation is completed is not correct since the investigation in the entire crime is not completed and as against the co-conspirators the investigation is still in progress and at a vital stage; 4. When the respondent has got personal interest and when the investigation against the co-conspirators is not yet completed, if he is to be on bail, taking into consideration his character, power etc., the interference with the investigation and influencing it cannot be ruled out when witnesses are coming forth to give the evidence which is vital. 5. The Court itself has not applied its mind and not yet taken the charge sheet on file; 6. Last but not the least is the fact that the Supreme Court itself intended to see the charge sheet, posted the matter to 20-01-2012, the purpose of it can only be known only on the date of hearing of the case and the orders to be passed by the Supreme Court; 7. Finally, it is said that an unscrupulous politician in a position of authority finds willing accomplices even in the top echelons of administration who will go to any length of making or braking rules or law as may be necessary to oblige them or curry their favour or personal gains and it is this scenario which is most disturbing and needs to be tackled with seriousness. 14. In view of the circumstances stated above, it will be an adventure to grant a bail to the respondent at this stage. 15. Accordingly, the Criminal Petition is allowed and the order in Crl.M.P.2368 of 2011 is set aside and petition is dismissed. _______________________ N.R.L. NĀGESWARA RĀO,J 26-12-2011 Note: L.R. Copy to be marked: YES (B/O) TSNR [1] (2005) 8 SCC 21 = AIR 2005 S.C.3940 [2] (2011) 5 S.C.C. 296