The trade mark in question is GOPAL Chhap and the device of Lord Krishna and Cow. ( label/mark).= whether other traders are likely without improper motive to desire to use the mark in connection with their own goods. The correct test now is whether the mark itself (abscent use) distinguishes respondent’s goods from the applicant. If so, it has a distinctive character. For the forgoing reasons the impugned mark qualifies for registration. Hence, in our view the objection raised under section 9 is not well founded.- the competing products ‘snuff’ and ‘chewing tobacco’ are not a substitute of each other. Both are addictive by its nature but ‘snuff’ have less negative health consequences. They relate to completely two different markets and is not a substitute for each other. Thus the objection raised under Section 11 also fails.- impugned trademark cannot co-exist in the register. It has been in use for over four decades in the market and had made sale for over Rs.63 lacs in 2007-08. No concrete instance of confusion have in fact been proved. After four decades would it be just and necessary to throw out a mark from the register merely on the strength of great name and fame of applicant’s mark on the purported allegation that the applicant have willfully copied their mark? - questioning the ownership of the respondent’s mark under Section18(1). The aforesaid analysis adequately goes to show that no serious allegation of mala fide adoption has been made out. The fact remains that the applicant are still not in the business of ‘snuff’ trade as per record. It will be unethical to oust a small time bona fide trade mark owner dealing in unrelated goods albeit for identical marks over long period. In the instant case applicant’s might is of no avail as the respondent have every right to the use and continued registration of their mark. Trade marks protection under the statute is not meant to conquer all rivals. Each has a place under the sun, other things being equal. The plea under Section 18(1) consequently fails. 11. In the result, ORA/157/2009/TM/AMD is dismissed. The applicant are directed to pay a sum of Rs. 5,000/- to the respondent as costs of these proceedings.

      INTELLECTUAL PROPERTY APPELLATE BOARD

     Guna Complex Annexe-I, 2nd Floor, 443 Anna Salai,

       Teynampet, Chennai-600018

*****

            (CIRCUIT BENCH SITTING AT AHMEDABAD)

           ORA/157/2009/TM/AMD

      (MONDAY  THIS  THE  26^th  DAY  OF NOVEMBER 2012)

HON’BLE MS. S. USHA                                 …        VICE CHAIRMAN

HON’BLE SHRI V.RAVI                                  …        TECHNICAL MEMBER

M/s Hari Chand Shri Gopal,

12, Gagan Vihar,

Delhi 110 051.                                                                       …         Applicant

(Represented by  Advocate:  Shri Satish Kumar)

Shri Girishkumar Savailal Dani,

Tower Road,

Botad 364 710

Gujarat.                                                                           …        Respondent 

(Represented by  Advocates:  1.Shri Y.J. Trivedi

                                                             2.Shri Nakul Share Dalal

ORDER (No. 271 of 2012)

HON’BLE  SHRI V. RAVI, TECHNICAL MEMBER:

            The applicants herein are seeking the removal from the Register of trade marks of application No. 1457787 in Class 34.   The trade mark in question is GOPAL  Chhap and the device of Lord Krishna and Cow. ( label/mark).

The grounds for rectification are summarised below:-

2.         The applicants are the registered proprietors and the owner of the trade mark/label with the device of Lord Krishna which has been used since 1950.     They hold many registration with the device of Lord Krishna in Class 34.  It is  being used in respect of flavoured chewed tobacco,  pan masala and other tobacco products.  The word ‘Gopal’  is the permanent & essential features of the  trade mark of the applicant.  The applicants  have registered it both in English and Hindi along with device of Lord Krishna. 

            i)       They are also the owners of several copyright registration in respect of  GOPAL  ZARDA & GOPAL LABEL.

            ii)         To expand their business, the applicant entered into a Trade Mark & Copyright  Licence agreement in 2004 with M/s Flakes-N-Flavours and later in 2007 with M/s  Gopal Corporation Limited. 

            iii)        The applicant through its licensee have been continuously promoting its sale of the said goods and the business under the said trade marks/labels through different media such as trade journals, trade  literatures etc.

            iv)        The applicants have furnished sales turn over in respect of tobacco products under the trade mark GOPAL and the Lord Krishna device from 1995 to 2006 and also the advertisement expenses for the said period. 

            v)         In view of the foregoing, the applicants are the recognized owner & proprietor of GOPAL and the Lord Krishna Device ( in English and Hindi) in respect of tobacco related products serving as source of origins of their goods.

            vi)        Applicants are also very   vigilant in taking infringement action to protect their IP rights that vest in the trade mark GOPAL (English and Hindi) and the LORD KRISHNA LABEL.

            vii)       The respondent herein have adopted an identical/deceptively similar trade mark  GOPAL CHHAP (DEVICE OF KRISHNA & COW LABEL)  in relation to snuff, tobacco and tobacco articles.

            viii)      This adoption is dishonest as in each and every respect  the adopted mark is phonetically, visually, structurally identical.  Therefore the respondent cannot be proprietor of the impugned mark.

            ix)        The respondents trade mark which was advertised in the Trade Marks  Journal No.1373 escaped the notice of the applicant and hence the applicants are seeking the immediate cancellation of the impugned trade mark.

            x)    The dishonest adoption and registration of the impugned mark is actuated with a clear intention to encash  on the goodwill and reputation of the applicants trade mark.

            xi)        As the resemblance between the two marks are so close, the adoption and use is clearly a deliberate imitation. An unwary purchaser of  tobacco products from the lower strata of society and other gullible people are bound to be deceived while dealing with and purchasing the respondent’s goods and business under the impugned trade marks on the impression that it is emanating from the applicants source or that some vital links exist between the applicant and the respondent.  Innocent purchaser would be deceived and irreparable loss caused  to the trade and consuming public.

            xii)       In view of the prior adoption and registration of an identical mark for the same products,  the registration of the impugned mark is bad in law.    It is contrary to the provisions of Section 9, 11,12, 18, 47 and 57 the Trade Marks Act, 1999.  Therefore, the impugned registration of the respondent is void ab-initio.

            xiii)      In the light of the foregoing, the applicants pray that the impugned trade mark  be removed from the Register.   

3.         The case of the  respondent is as follows:-

(i)         The present rectification application is not  maintainable as the applicant is not a ‘person aggrieved’ within the meaning of the Section 57 of the Act.  There is no ground favourable to remove the impugned mark.  The respondents’ label/mark is totally different and distinct with its unique colour combination artwork, device of Lord Krishna and Cow packaging and overall get up  and, therefore, the impugned mark  is inherently distinctive of the respondent’s goods.    The respondent is in the business of  snuff whereas the applicant’s are into tobacco and zarda and there is no conflict   between rival mark and the goods.  

            ii)         The respondent is using the impugned mark since 1960 openly and extensively and  uninterruptedly without any objection. 

            iii)        There is no complaint of confusion or deception for the last four decades and the present petition is merely to harass the respondent.  The respondent has been using the trade mark GOPAL  since 1960 initially through its predecessor and subsequently by the respondent himself without any complaint  of confusion or objection from the market.  The applicant has not objected to the use and registration of the respondents mark Lord Krishna for more than four decades on account of confusion or deception.  The present application  is  therefore  barred by the principle of estoppel.    

            iv)     The impugned mark  is an auspicious symbol and  is used by many traders for different products and the applicant cannot claim exclusive rights over the  word mark GOPAL or the device of  Lord Krishna and the Cow  it  being publici  juris.

            v)         Documentary evidence produced by the applicant is full of discrepancies.   For instance,  there are different partners  in different applications sought by the applicant  and the ownership status is not clear.  Further, many invoices produced are illegible and not reliable.  Also a large number  of the invoices are hand-written.  Most of the invoices do not contain the word GOPAL and hence irrelevant and none of the invoices is for the goods in respect of which the respondent are the registered proprietor.  Also,  the licence agreements with the applicants are not reliable as they are in respect of different marks for totally different goods.

            vi)     The registered trade mark of the applicant is in respect of products other than ‘snuff’ and are easily distinguishable.

            vii)     The respondents predecessor M/s Jagjivandas Bhanji Dani & Co.,

(also known as J.B. Dani & Co.) had honestly coined and adopted the mark/label GOPAL in a special and particular manner along with a full picture of Lord Krishna with cow having a different and distinct colour combination and get up in the year 1960 .  Their predecessor were the owners of the registered  trade mark GOPAL label along with the device of  Lord Krishna and cow under application No. 415478 since  1984.    The respondents have applied for another application  under No. 1457787 in their own name being the impugned mark.  It is hard to believe that applicant’s are not aware of this.

   

            viii)       The present rectification suffers from delay, laches and acquiescence  and the applicant is estopped  by his own conduct from taking objection. The respondent  have been in the market for over four decades.  The respondent further states use of numeral is common to tobacco trade.  Thus the allegation of confusion or deception are totally baseless.  The respondent vehemently deny all statement, averment or claim of the applicant.  Thus application No. 268259, 331481 and 333612 of the applicant are for totally different goods bearing different mark.  The respondent is doing business  in  ‘SNUFFS’.  On the date of application respondent‘s mark was distinctive of his goods.  Any use or registration or reputation of applicants mark are irrelevant for the present proceedings.  It is in the interest of justice, equity and good conscience to dismiss the present rectification application.   

4.         From the record, it is obvious that the applicant hold more than 40 registration for the word Gopal in Class 34.  But not all is accompanied by the device of Lord Krishna or cow.  Yet at least 16 of these 40 are device mark containing the picture of Lord Krishna and Cow. However, one noteworthy feature of these registration is almost 37of 40 (over 92% of registered trade mark) is in respect of Chewing Tobacco (Zarda), the rest being for pan masala and betel spice and gutka.  The other point to note is the very vast and consistently  impressive annual sales figure of over Rs. 100 Crs  since 2000 achieved by the applicant for a whole range of tobacco products.  The applicant have proved the ability to protect statutory rights by securing injunction in several cases.  Further, their advertisement expenses in 2005 -06   for  instance was over Rs. 44 lakhs.   All these show the tremendous goodwill enjoyed by the applicant  in respect of his registered trade mark.

5.         In the light of the foregoing we need to examine the case at hand.  Let us depict  some of  the applicant registered trade mark.

  

                                   Applicant’s Trade Mark

 

Most of the other device marks of the applicant are similar.

Respondent’s Trade Mark

           

6.         Let us now examine the various objection raised by the applicant starting with Section 9.  Here the test to be applied has a very low threshold.  The issue can be formulated as – is the trade mark,  hypothetically at least, capable of performing the function of identifying all the goods for which it is registered – indicate that it comes from the control of the same undertaking.?     If the answer to this question is yes, the trade mark  can be considered further for registration.  Section 9 is neutral and there is no presumption in favour or  against registration.  The combined effect of Section  9(1)(a) and 9(1) (b) is to eliminate the discretion that the Registrar previously had to make a judgement, and now he has to act upon materials before him as to the registrability of the mark.  There is nothing in the nature of a burden for the Registrar to discharge   in order to refuse an application.

7.         Let us apply this test to the fact of this case.  The respondent are using an identical mark for ‘Snuff’.  It is their contention that the impugned mark can distinguish it from the products of the applicant i.e. chewing tobacco and ‘Zarda’ for which they too are registered.  We think that there is force and substance in the argument.  Past court  rulings have held that chewing tobacco and smoking tobacco (pipe) and cigarettes [ See – Thomas Bear and Sons (India) Ltd. Vs Prayag Narain (1941) 58 R.P.C. 25- Passing Off]  are goods of different description.   Similarly, cigarettes and Bidis too have been held to be goods of different description [See – ITC,India  v. Mullaji Jamaluddin –Appl.No. 549 of 1934 in Nagpur High Court ].   By the same logic the use of identical trade mark  ‘Gopal’ with device of Lord Krishna in respect of ‘Snuff’ is capable of distinguishing the product of the respondent, without any possibility of confusion, from those of the applicant.   The impugned trade mark does distinguish the origin of the respondent’s goods (snuff) even without recourse to use and so passes the test of Section 9 barrier.    The old test of distinctiveness under the repealed TMM Act, 1958 Act is no longer valid.  Previously, the test was whether other traders are likely without improper motive to desire to use the mark in connection with their own goods.  The correct test now is whether the mark itself (abscent  use)   distinguishes respondent’s goods from the applicant. If so, it has a distinctive character.   For the forgoing reasons the impugned mark qualifies for registration.    Hence, in our view the objection raised under section 9 is not well founded.

8.         The next objection is based  on relative grounds under Section 11  keeping in mind that the rival marks are identical even though the competing products are not so.      Can Section 11 be a bar to the impugned mark?  The test  involves looking at the category of goods; the average consumer of those goods; how the goods  are used; whether it is in competition or a substitute for each other and sold in the same market.     The respondent’s good ‘Snuff’ is made from  pulvarised  tobacco.    It is inhaled through the nose.  It is free from tar and harmful gases such as carbon monoxide and often considered acceptable substitute for  smoking.  Chewing tobacco for which the applicant hold a large number of  registration has direct  known health risk such as heart attacks,  strokes, chronic bronchitis, cancer etc.   Chewing tobacco generally has higher tar content and is carcinogenic in nature.    Chewing tobacco in particular is known to cause cancer of mouth and throat.   In our view the competing  products ‘snuff’ and ‘chewing tobacco’  are not a substitute of each other.   Both are addictive by its nature but ‘snuff’  have less negative health consequences.   They relate to completely two different markets and is not a substitute  for each other.    Thus the objection raised under Section 11 also fails.

9.         The next objection relates to  Section 12, in that the impugned trademark cannot co-exist in the register.      It has been in use for over four decades in the market and had made sale for over Rs.63 lacs in 2007-08.     No concrete instance of confusion have in fact been proved.      After four decades would it be just and necessary to throw  out a mark from the register merely  on the strength of  great name and fame of applicant’s mark on the purported allegation that the applicant have willfully copied their mark?     It has not been established by required evidence that the respondent’s were aware of the applicants trade mark that would perpetuate confusion.  There is nothing unique in adopting a device  trade mark  with image of Lord Krishna and Cow as to do hundreds of other traders for many products.  Further,  seeking removal of a registered  trade mark  after four decades puts the respondent to immense  hardship and the public to great inconvenience.   The respondent’s  trade mark is used only in respect of ‘Snuffs’ since long.      Their claim of acquiescence by the applicant  cannot be dismissed lightly.   On balance, we find no merit in evicting the impugned mark  under Section 9 or 11 and it has right to co-exist in the register under Section 12.    

                 

10.       The last point agitated was questioning the ownership of the respondent’s mark under Section18(1).  The aforesaid analysis adequately goes to show that no serious allegation of mala fide adoption has been made out. The fact remains that the applicant  are still not in the business of ‘snuff’ trade as per record.   It will be unethical to oust a small time bona fide trade mark owner dealing in unrelated goods albeit for identical marks over long period.  In the  instant case applicant’s might is of no avail as the respondent have every  right to the use and continued  registration of their mark.    Trade marks protection under the statute is not meant to conquer all rivals.    Each has a place under the sun, other things being equal.  The plea under Section 18(1) consequently fails. 

11.       In the result, ORA/157/2009/TM/AMD is dismissed.   The applicant are directed to pay a sum of Rs. 5,000/- to the respondent as costs of these proceedings.    

(V.RAVI)                                                               (S.USHA)

TECHNICAL MEMBER                                   VICE CHAIRMAN

         

(Disclaimer: This order is being published for present information and should not be taken as a certified copy issued by the Board.)

When they stored daily supply of fish in the said cooler, the fish got rotten at the end of the day. On very next day, they approached Petitioner’s show room and complained about the rotting of the fish for which they were assured by the petitioner to send a service mechanic to check out the problem. After that, respondents did not use the said cooler to store the fish. In the month of November, 2010, one service mechanic visited respondents’ house as well as the canteen and told that the said freezer is not a freezer which is used for storing fish but it is only a bottle cooler. This amount to unfair trade practice and deficiency of service. Request made by respondents to replace the bottle cooler and supply the freezer, vent in vain. Therefore, they filed complaints.

    NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

    REVISION PETITION NO.  3851 OF 2012

                                                                 Alongwith

   ( I.A. Nos. 1  & 2 of 2012)

 (Delay and Stay)

 (From order dated 3.11.2011 in Appeal No. 2496 and 2497 of 2011  of Karnataka State Consumer Disputes Redresdsal  Commission,  Bangalore)

M/s Agari Enterprises,

through its Proprietor

Sri Agari Raghavendra Rao

Having its office at Shibrikere Post

T. Yedapadavu 575164

Mangalore, Dakshina Kannada.

                                                .                                   …… Petitioner

         

                                                   Versus

              ( Appeal No. 2496 of 2011)

1.      Sesappa Saphaliga

aged 41 years

S/o Ramappa Saphaliga

R/at Cordel House Shibrikere Post,

Mangalore Taluk.                     …. Respondent No. 1

              ( Appeal No. 2497 of 2011)

2.     Bhujanga Amin

Aged 65 years

S/o Ramappa Saphaliga

R/at Kuppe Padavu,

Mangalore Taluk.                   ….. Respondent No. 2

BEFORE:

HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

For the Petitioners                        :    Mr. Anuj Kastelino, Advocate

 Pronounced on:   10^th  December,  2012

ORDER

PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

          Karnataka State Consumer Disputes Redressal Commission, Bangalore(for short, ‘ State Commission’) vide impugned order dated 3.11.2011,dismissed Appeal Nos.2496 and 2497 of 2011, filed by the Petitioner/OP. Petitioner ought to have filed two separate petitions or in the alternative Registry ought to have given two separate numbers to these petitions. Be that it as may, along with revision petition, an application seeking condonation of delay of 251 days has also been filed. 

2.       Brief facts are that 

respondents/complainants in both cases are self employed person who supply fish to canteens and individuals by using Air Conditioned Tempo. In November, 2010, they purchased a freezer to store fish at their residence and canteen for Rs.29,500/- from the Petitioner who promised to deliver the freezer within a week. 

But on 17.11.2010, Petitioner delivered a bottle cooler alleging it to be a freezer which could be used for the storage of fish.  Petitioner did not hand over the user manual, warranty card or delivery challan to them. However, respondents took delivery of the bottle cooler believing it to be a freezer.  

When they stored daily supply of fish in the said cooler, the fish got rotten at the end of the day. On very next day, they approached Petitioner’s show room and complained about the rotting of the fish for which they were assured by the petitioner to send a service mechanic to check out the problem.  

After that, respondents did not use the said cooler to store the fish. 

In the month of November, 2010, one service mechanic visited respondents’ house as well as the canteen and told that the said freezer is not a freezer which is used for storing fish but it is only a bottle cooler. 

This amount to unfair trade practice and deficiency of service. Request made by respondents to replace the bottle cooler and supply the freezer, vent in vain.  Therefore, they filed complaints. 

3.          Defence taken up by petitioner in its written statement is that, one Madhava had purchased two Blue Star Chest Cooler by paying Rs. 58,400/- in cash for which, petitioner had issued the Cash-memo to him. After purchase, said Madhava requested petitioner to deliver the chest coolers to the respondents. As such, petitioner issued the delivery challan in the name of the respondents and delivered the chest/water coolers to them. After using the said chest cooler for nearly 25 days, respondents came to his show-room and, made false allegations. Respondents have filed the complaints only to harass him.

4.          Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore, (for short, ‘District Forum’) vide order dated 15.7.2011, allowed  the complaint and passed the following order;

“ The complaints are allowed. Opposite Party is directed to refund Rs.29,500/-(Rupees twenty nine thousand and five hundred only) to each Complainants along with compensation of Rs.2,000/- (Rupees two thousand only) each and litigation expenses of Rs.2,000/- (Rupees two thousand only) each to the Complainants within one month from the date of receipt of this order”.

5.          Aggrieved by order of District Forum, respondents filed appeals before the State Commission, which were dismissed at the admission stage itself.

6.          Hence, this revision.

7.       I have heard learned counsel for the petitioner and gone through the record.

8.          Grounds on which condonation of delay has been sought read as under; 

“ a This Revision petition impugns the common final   order and judgment dated 03/11/2011 of the Hon’ble State Commission in Appeal No.2496/ 2011 and 2497/2011, wherein the Hon’ble State Commission dismissed the Appeal filed by the petitioner.

  b. That the contents of petition are not repeated herein for the sake and brevity. Hence same may  be read as part of the present application.

   c. The petitioner approached the Hon’ble High Court to set aside the order of the Hon’ble State Commission and the writ petition was disposed off by the Hon’ble High Court with the finding that the remedy lies with the Hon’ble National Commission. Hence the petitioner approached this Hon’ble Commission. That the Petition was disposed off by the Hon’ble High Court on 21.6.2012 and the Certified Copy was ready on ____hence the 251 days delay in filing this petition”.

9.    It is well settled that ‘sufficient cause’ with regard to condonation of delay in each case, is a question of fact.

10.       In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361,  it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant ”.

11.            Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence”.

12.       In  “R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108”,  it has been observed ;

        “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

13.    Supreme Court in “Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC)” laid down that;

                  “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras.”

14.     Further, Hon’ble Supreme Court in “M/s Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal (Civil) Nos. 17068-17069/2010, decided on 9 July 2010) wherein it observed inter alia, as under;

“ ……We are further of the view that the petitioners’ venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction”

15.   In view of decision in M/s Advance Scientific Equipment Ltd.(supra) High Court ought not to have entertained the writ petition filed by the petitioner, since petitioner had an effective alternate remedy available under the Act. Under these Circumstances, the act of petitioner in approaching a wrong forum, shall not entitle him to have the delay condoned. 

16.  Under these circumstances, no sufficient cause is made out for condoning the long delay of 251 days in filing the present petition.  Accordingly, application for condonation of delay is not maintainable. Consequently, the present revision petition being hopelessly barred by limitation is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand Only).

17.    Petitioner is directed to deposit the cost by way of demand draft in the name of “Consumer Legal Aid Account” within eight weeks from today.

18.   In case, petitioner fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

19.     List on 15.02.2013 for compliance.

                                                ……………………………J.

                                                                                            (V.B. GUPTA)                           PRESIDING MEMBER  

SSB/                                                      

                                     

The visa card carried a personal accident cover, with risk coverage of Rs.4 lakhs.= even though the visa card was issued, however till declaration of assignment was not filled in, the deceased cannot be regarded as their customer. Therefore the question of payment of any amount does not arise. ? = it is clearly stated that the card issued only with personal accident benefit and he is entitled to the amount for an accident on road or in air travel. Therefore on reading the instruction under “Insurance benefit on you card” it cannot be said that the benefit commences only after filling of declaration of assignment. The evidence put before us do not show that such a condition was put forth by the opponent that the benefit under the card will not be available unless declaration cum undertaking was filled in.”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 1902 OF 2011

(Against the order dated 16.09.2010 in  Appeal No.1297/2006 of the State Commission, Gujarat)

Standard Chartered Bank

5^th Floor, Sakar -3,

Income Tax, Ashram Road

Ahmedabad                                                                                                                                             ……….Petitioner

Versus

Mr. Naran Bhai ShamjiBhai Bhandari

R/o Tarwade, TA Distt. Amreli,

Ahmedabad, Gujarat                                                                                                                                  .....Respondent   

                                                                         

BEFORE

HON’BLE MR. JUSTICE  J. M. MALIK,

                              PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner                        :  Mr. Ateev K Mathur, Advocate

                                                       Mr. Ajay Monga, Advocate

                                                       Mr. Devmani Bansal, Advocate

For the Respondent                   :   Mr. Gunjan Malhotra, Advocate

                                                       Mr. Sahil Alvia, Advocate 

PRONOUNCED ON: 10.12.2012.

ORDER

PER MR.VINAY KUMAR, MEMBER

The present revision petition is filed by Standard Chartered Bank, Ahemdabad against the original complainant Naran Bhai Shamjibhai Bhandari.  It is filed against concurrent orders of the Additional Consumer Disputes Redressal Forum, Ahemdabad in Complaint No.824/2001 and the order of the State Commission, Gujarat in Appeal No.1297/2006.

2.      In filing the revision petition, there is  delay of 156 days, which is sought to be explained in an application for condonation, filed on behalf of the petitioner. The knowledge of the impugned order of 16.9.2010, came came to the petitioner on 22.9.2010, when he was admittedly informed about it by his counsel. However, it is claimed that the certified copy was received from the Commission on 30.12.2010.  The relevant paragraph reads:-

“That it is submitted that the Petitioner was informed about the passing of the impugned order by its counsel on 22.09.2010.  However, the copy of the order was not forwarded and the same were stated to have been applied.  The Petitioner continued to follow up with the counsel and requested to provide the certified copy of the order for filing the appeal/revision before this Hon’ble Commission.  Various mails were sent by the Petitioner in this regard.  Soft copy of the order was provided to the petitioner on 10.12.2010.  It may be noted that since the order was in vernacular, the Petitioner requested for English translation of the order.  Eventually, on 30.12.2010 the Petitioner received the certified copy of the order along with related papers of State Commission.  Vide email dated 18.02.2011 the Petitioner sent the mail to the under signed counsel to share their views.”

3.      The revision petition was filed in this Commission on 26.5.2011, which is nearly eight months from the date of knowledge as seen from the para cited above.  The application states that this time was spent in getting the documents translated from Gujarati language to Hindi, consultation with their counsel in Delhi and in obtaining necessary approvals.  We have also perused the copies of correspondence through E-mail, submitted with the application for delay condonation.  All pertain to the period between 18.2.2011 and 23.5.2011.  This would clearly mean that between 22.9.2010 and 18.2.2011 i.e. for a period of nearly five months, no action was taken to ensure that the revision petition is filed within the permissible period of 90 days.  We therefore, hold that the delay of 156 days has not been sufficiently explained.   The revision petition is therefore, liable to be dismissed on the ground of delay alone.

4.      Coming to the merit, the case of the Complainant is that his son Rameshbhai had obtained a credit card from the OP/Bank valid for the period 1.10.2000 to 31.10.2002.  The visa card carried a personal accident cover, with risk coverage of Rs.4 lakhs.  Rameshbai was killed in car accident and therefore, the father/Complainant, as his legal heir, sought the benefit under the insurance cover.  Despite correspondence, the claim form was not given to him and therefore a consumer complaint was filed before the District Forum, claiming relief of Rs.4,95,501,  with costs and interest.

5.      As seen from the written statement filed by the OP/revision petitioner, the claim of the Complainant would lie against Insurance Co. and not against the OP/Bank.  It was admitted that a person holding visa card as on the date of his death in a road accident would be entitled to receive Rs.4 lakhs under the Free Personal Accident Insurance Cover.  However, it was contended that:- 

“That before the commencement of the services the person has expired and the expenses of the card are also not paid.  Even otherwise the card holder is bound to send the declaration of assignment duly filled to the insurance company which has not been complied with.  That when the card is received in the post/courier there is a starter’s pack in which certain documents are required to be filled and sent to the company and only then would the facility of the card start.  That in the present case the deceased was yet to become a member of the Bank and had still not complied with all the requirements for starting the facilities.” 

6.      District Forum rejected the contention of the OP holding that:-

“Considering the objections in writing submitted by the opponent it is the say of the opponent that even though the visa card was issued, however till declaration of assignment was not filled in, the deceased cannot be regarded as their customer.  Therefore the question of payment of any amount does not arise.  There is no dispute in respect of other facts.  Opponent have submitted copy of card member rules and regulations.  Behind Annexure-C under the title “Insurance benefit on you card” there is a request to visa card holder that he must urgently send declaration of assignment to be helpful in settlement of claim.  But if we read the whole paragraph then on the page behind Annexure-C it is clearly stated that the card issued only with personal accident benefit and he is entitled to the amount for an accident on road or in air travel.  Therefore on reading the instruction under “Insurance benefit on you card” it cannot be said that the benefit commences only after filling of declaration of assignment.  The evidence put before us do not show that such a condition was put forth by the opponent that the benefit under the card will not be available unless declaration cum undertaking was filled in.”

7.      While dismissing the appeal of OP/Standard Chattered Bank, the State Commission has observed that the credit card with validity from 1.10.2000 to 30.1.2002 was received by Rameshbai Bhandai.  Even in case he has not received the card the bank would still be liable to pay the insurance amount, as it had already issued the credit card in his favour.

8.      We have perused the records as submitted by the revision petitioner.  This includes the following additional document filed on 2.4.2012, 27.8.2012 and 28.8.2012 by the petitioner—

“Additional document filed on 02.4.2012

1.   Certified Copy of receipt of the District Forum in compliance of the order for Rs.3,61,270/- (Rs. Three Lacs Sixty One Thousand TwoHundered Seventy Only) with typed copy.

2. Copy of order dated passed by Addl. Consumer Dispute Redressal Forum at Ahmedabad in Complaint No.824/2001.

3. Copy of order dated 01.12.2001 passed by National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.1902/2011.

Additional document filed on 27.8.2012

1. Order dated 23.07.2012 passed by the Hon’ble National Consumer Disputes Redressal Commission.

2.  Copy of Order dated 08.09.2006 passed by the Hon’ble Additional Consumer Disputes Redressal Forum, Ahmedabad (in Gujarati)

3.  Translated Copy of Order dated 08.09.2006 passed by the Hon’ble Additional Consumer Disputes Redressal Forum, Ahmedabad (in English) duly notorised.

4. Proof of service.

Additional document filed on 28.8.2012

1. Order dated 23.07.2012 passed by the Hon’ble National Consumer Disputes Redressal Commission.

2. Pay order No.00616 dated 27.08.2012 drawn on Standard Chartered Bank, New Delhi towards cost.”

9.      It was specifically argued by the learned counsel for the revision petitioner that on the question of claim under the personal accident insurance cover, the Complainant is a consumer of the insurance company not of the Bank.  This contention was raised in the written response of the OP before the District Forum as also before the State Commission.  The State Commission has observed that the Complainant was unable to join the insurance company as a party to the complaint for want of information regarding insurance details of the deceased.  It needs to be noted here that there is nothing in the written submissions of the OP before the District Forum to show that any part of the arrangement was directly required to be entered into between the deceased and the Insurance Company. Secondly, in the revision petition the issue is raised once again.  It is claimed that the State Commission should have examined the record placed in this behalf before it.  But, there is no mention of the exact record which was submitted by the Standard Chatered Bank and ignored by the State Commission. We therefore, deem it proper to reject this contention at the threshold itself. 

10.    In the same manner the revision petition seeks to re-agitate the grounds, which have been considered and rejected by the fora below without specifically pointing out the evidence led by the petitioner/Bank and not considered but ignored by the fora.  We therefore, hold that the revision petitioner has completely failed to make out any case against the impugned order. 

11.    Accordingly, the revision petition is dismissed for want of merit as well as on the ground of limitation.  Further, considering the conduct of the revision petitioner, we also deem it proper to award additional cost of Rs.25,000 (Rupees Twenty Five Thousand),  which shall be paid to the respondent/Complaint within a period of three months.  Failing this, the amount shall carry interest at 9% for the period of delay.  The amount, if any, deposited by the revision petitioner with the District Forum, in compliance with the order of this Commission made on 22.7.2011, shall be released in favour of the respondent/Complainant, in part fulfilment of the award made in his favour by the fora below.  No order as to costs.     

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(J. M. MALIK, J.)

PRESIDING MEMBER

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(VINAY KUMAR)

                                                                                            MEMBER

s./-