WITH TOKEN COURT FEE - NOT PROPER PRESENTATION OF CASE = whether the appellants are entitled to file an appeal on such a nominal and tentative token court fee of Rs.100/- when the actual Court fee comes to Rs.41,626/-?= Earlier when a somewhat similar case came up before this Court in A.S.M.P.No.1468 of 2010 in A.S.S.R.No.4881 of 2008, dated 21-12-2010, this Court, following the decision of a Division Bench of this Court and other several decisions as cited therein viz., Revenue Divisional Officer, Vijayawada v. T. Laxminarayana[1], Dr. D. Satyanarayana Raju v. State Bank of India[2] , Mohammad Mahibulla v. Seth Chaman Lal[3], Mannan Lal v. Mst. Chhotaka Bibi[4] and Nalluri Singaiah v. Bandlapati Kishore Babu[5], did not find favour with the petitioner since it has been held therein that such presentation of appeal with a token court fee would amount to non-presentation at all and consequently the said applications were dismissed. The issue involved in the present case is squarely covered by the issue involved in the above case as there also token court fee of Rs.10/- was paid, whereas the deficit court fee comes to Rs.46,426/-. The petitioner has not shown any valid reason for such non-payment. It dehors the consideration of proper presentation of the appeal admitting that there is no presentation at all in the eye of law. 5. Following principles laid down therein and in the aforesaid decisions, referred to above, we do not see any justification to grant indulgence in favour of the petitioner. As such, all the petitions are dismissed. Consequently, the appeal is rejected.

ASSR 11260 / 2010

ASSR 11260 / 2010

PETITIONER RESPONDENT THE A.P.E.P.D.C.LTD & 2 ORS   VS SMT.DASAR SARASWATHI REDDY PET.ADV. : JYOTHI ESWAR GOGINENI RESP.ADV. : GP FOR ARBITRATION SUBJECT: MONEY SUITS DISTRICT:  VISAKHAPATNAM

HONOURABLE SRI JUSTICE B.PRAKASH RAO

&

HONOURABLE SRI JUSTICE P.DURGA PRASAD

ASMP Nos.118, 132 of 2011, A.S.M.P.S.R.Nos.554, 556 and 809 of  2011 in AS (SR) No.11260 of 2010

&

A.S.(S.R.).No.11260 of 2010

ORDER (Per BPR,J):

            All these applications are filed one after the another by the appellants, who are the defendants in O.S.No.371 of 2004.  The appellant seeks to file the appeal as against the judgment and decree in O.S.No.371 of 2004, dated 25-02-2010 on the file of the II Additional District Juge, Visakhapatnam, decreeing the suit filed for claiming compensation of Rs.1.00 crore towards the injuries sustained due to electrocution.  Avoiding a sum of Rs.25,59,711/- in a suit claim which has been made for about one crore.  The decree was passed on 25-02-2010 by the Court below.  Whereas, the present appeal has been filed on 20-09-2010.  Curiously, the appeal has been filed on payment of tentative court fee of R.100/- whereas the memorandum of grounds which has been filed along with the appeal itself gives the particulars of valuation of Rs.25,59,711/- towards the suit amount, and Rs.12,46,992/- towards interest and Rs.1,05,278/- towards costs.  Total costs of the Court Fee also shown as per the very memorandum of grounds comes to Rs.41,626/-.  Since the proper Court fee was not paid, the papers were returned by the office.  Meanwhile, the appellants filed A.S.M.P.S.R.No.554 of 2011 seeking interim stay of all further proceedings and A.S.M.P.No.118 of 2011 seeking condonation of delay of 129 days paying deficit court fee of Rs.41,526/- and subsequently matters were adjourned.  Further, the appellants have also conveniently filed three more applications; A.S.M.P.No.132 of 2011 to grant leave to convert A.S.S.R.No.11260 of 2010, dated 20-09-2010 as fresh appeal, A.S.M.P.S.R.No.809 of 2011 seeking condonation of delay of 129 days in filing the appeal against the decree dated 25-02-2010 in O.S.No.371 of 2004 and A.S.M.P.S.R.No.556 of 2011 seeking condonation of delay of 129 days in representing the appeal

2.      After hearing the learned counsel for the appellants ultimately the question falls for consideration is as to 

whether the appellants are entitled to file an appeal on such a nominal and tentative token court fee of Rs.100/- when the actual Court fee comes to Rs.41,626/-?

3.      Earlier when a somewhat similar case came up before this Court in A.S.M.P.No.1468 of 2010 in A.S.S.R.No.4881 of 2008, dated 21-12-2010, this Court, following the decision of a Division Bench of this Court and other several decisions as cited therein viz., Revenue Divisional Officer, Vijayawada v. T. Laxminarayana[1], Dr. D. Satyanarayana Raju v. State Bank of India[2] , Mohammad Mahibulla v. Seth Chaman Lal[3], Mannan Lal v. Mst. Chhotaka Bibi[4] and Nalluri Singaiah v. Bandlapati Kishore Babu[5], did not find favour with the petitioner since it has been held therein that such presentation of appeal with a token court fee would amount to non-presentation at all and consequently the said applications were dismissed.

4.      The issue involved in the present case is squarely covered by the issue involved in the above case as there also token court fee of Rs.10/- was paid, whereas the deficit court fee comes to Rs.46,426/-.  The petitioner has not shown any valid reason for such non-payment.  It dehors the consideration of proper presentation of the appeal admitting that there is no presentation at all in the eye of law.

5.      Following principles laid down therein and in the aforesaid decisions, referred to above, we do not see any justification to grant indulgence in favour of the petitioner. As such, all the petitions are dismissed.  Consequently, the appeal is rejected.

_______________________

 JUSTICE B.PRAKASH RAO

Date:  31^st January 2011

_________________________

         JUSTICE P.DURGA PRASAD

kvr

---

[1] AIR 1975 AP 109

[2] 1986(1) APLJ-SN.99

[3] (1991) 4 SCC 529

[4] 1970(1) SCC 769

[5] 2006-ALT-4-557

Medical negligence = The patient was a primigravida (pregnant with first child) She felt labour pains. She was admitted in the hospital/OP1 on 16.12.2007. The Doctor assured her that the delivery would be normal. Subsequently, she was told that cesarean operation was required. = “Negligence per se – Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes”.= The record from the Government Hospital reveals that the patient was diagnosed as acute peritonitis/post LSCS and septic shock. The deceased was transferred to surgery department for exploratory laparotomy. She was operated on 27.08.2007 and approximately 700 ml pus was drained from abdominal cavity and inter bowel loops pus was also present. She had been bleeding post-operatively for which she was operated again and bleeding was stopped. On 27.12.2007, she was shifted to ICU and put on ventilator. Her condition gradually deteriorated and she expired on 28.12.2007. Such a big quantity of pus cannot crop up in a jiffy.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 685 OF 2013

               (From  order dated 26.11.2012 in First Appeal No.1173 of 2011 of the

       State Consumer Disputes Redressal  Commission,  HARYANA, PANCHKULA)

1. Masih Hospital          

Through its Incharge, Dr.R.Masih

1, Sarojani Colony, Phase-I, Yamuna Nagar

2. Dr.R.Masih, Masih Hospital

1, Sarojani Colony, Phase-I, Yamuna Nagar

3. Dr.Suman Masih, Masih Hospital

1, Sarojani Colony, Phase-I, Yamuna Nagar                               … Petitioners

         

Versus

1. Kuleep, S/o. Sh.Mam Chand

2. Miss Kitu (Minor)

D/o Sh. Kuldeep

Both R/o

Village – Karerakhurd, Post Office – Karerakhurd

Tehsil – Jagadhri, District Yamuna Nagar

3. United India Insurance Co.Ltd.

Through its Divisional Manager

54, Janpath, Connaught Place, New Delhi               … Respondents

 

BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER

          HON’BLE MR. VINAY KUMAR, MEMBER

For the petitioner         s   : Mr. Naveen Pandey,  Advocate

                              

PRONOUNCED ON   01.04.2013

                                                O R D E R

JUSTICE J.M. MALIK

1.      In this revision petition, we are dealing with the allegation of medical negligence on the part of the petitioners/OPs, i.e. Masih Hospital through its Incharge, Dr. R.Masih, Yamuna Nagar, No.1, Dr.R.Masih, No.2 and Dr.Suman Masih, No.3.  For the purpose of reimbursement of any compensation amount, United India Insurance Co.Ltd. has been arrayed as Respondent No.3, in this case.

2.      The facts germane to the present case are these.  Smt.Geeta Devi, since deceased, was the wife of Sh. Kuldeep, complainant No.1.  Smt.Gita Devi  was in a family way.  The patient was a primigravida  (pregnant with first child) She felt  labour pains.  She was admitted  in the hospital/OP1 on 16.12.2007. The Doctor assured her that the delivery  would be normal.  Subsequently, she was told that  cesarean operation was required.  The patient was asked to deposit a sum of Rs.12,000/-  on account of operation fee and hospitalization.  The said amount was accordingly deposited. 

3.      On the same day, cesarean operation was conducted and Smt.Geeta Devi gave birth to a female child.  However,  the condition of Smt.Geeta Devi did not improve.  As per advise given by the OPs, Smt.Geeta Devi got the ultrasound of whole abdomen and X-Ray Ultrasound from Dr.Mehta’s X-Ray & Ultrasound, on 24.12.2007.  After perusing the ultrasound report, the OPs  referred Smt.Geeta Devi to Government Medical College & Hospital, Sector-32, Chandigarh, for further  treatment.  She was admitted in the Chandigarh Hospital  where operation was conducted again.  However, the condition of Smt.Geeta Devi did not improve and ultimately, she unfortunately, passed away on 28.12.2007.

4.      The Autopsy of the dead body was conducted and it transpired that the death was caused due to puerperal sepsis.  The Doctors at Chandigarh Hospital informed them that Smt.Geeta Devi was suffering from septic due to the negligence of the OPs while  conducting operation on her at the time of delivery of the child.  They also explained that the she was referred to them at a very late stage.

5.      The complainants spent an amount of Rs.24,000/- at the Hospital of the OPs and incurred a sum of Rs.30,000/- at Chandigarh Hospital. A complaint was filed by her husband Sh.Kuldeep and her minor daughter, Baby Kitu, with the District Forum that the OPs were negligent and deficient in discharge of their duty.

6.      The OPs enumerated the defences as follows. The patient was attended by a mid-wife who was trying to deliver her baby, but failed.  On 23.12.2007 at 11.00PM,  she was recovering, when she started having abdominal cramps, vomiting and loose motions after eating ‘paneer’, at night, from a ‘Dhaba’. Immediately, decision for LSCS was given to the patient. Moreover, the Husband of the patient wanted a normal delivery and so refused for cesarean operation and took away the patient for  2^nd opinion and came back after one hour, agreeing for the surgery as the other doctor also had given the same opinion.

7.      District Forum, after hearing the parties,  allowed  the complaint and granted compensation in the sum of Rs.9,11,000/-, jointly and severally against all the four OPs.

8.      Aggrieved by that order, OPs preferred          an appeal before the State Commission.  The State Commission too, dismissed the appeal vide order dated 26.11.2012.

9.      We have heard the learned counsel for the petitioners at the time of admission of this case who made the following submissions.  He stressed that Doctors were not negligent.   The above said incident took place because the deceased had taken ‘paneer’  from a ‘Dhaba’, which resulted in infection.  It is contended that the delivery was normally affected.  The deceased herself spoiled her condition which caused  all the problems.  The mid-wife had further increased the problems.  She handled her by doing multiple aseptic per vagina examination while trying to deliver her and immediate decision for LSCS was given.   A female baby was delivered at 1.29 PM weighing 1.75 Kgs.  It was argued that the wound was sutured, uterus sutured in two layers and visceral peritonisation was done. The abdomen sutured in layers and skin sutured with barber cotton thread.  LSCS operation was performed by Dr.Suman Masih and Dr.R.Masih with the help of Anaesthetist Dr.Shubham and other qualified and trained staff of the hospital. The baby was seen by Dr.Sachin Garg, Paediatrician. The post-operative condition of the patient was stable with BP 118/76, Pulse 114/minute and SPO2-99%, patient was alright and recovering well till 23.12.2007, 11.00PM, when she started having abdominal cramps, vomiting and loose motion after eating ‘paneer’ at night from ‘Dhaba’.  All the treatment was given.  Since the patient did not recover, she was referred to the Government Medical College Hospital, Chandigarh. 

10.    All these arguments lack conviction.  This is an admitted fact that in the record produced before the District Forum by the OPs, nowhere it is mentioned that the patient was carrying any genito urinal infection or bad pelvic hygienic and it is not mentioned in the record  that Smt.Geeta Devi  was examined by a mid-wife, before she was admitted in the OPs Hospital.  The cesarean operation was conducted on the same day.  A healthy female child was delivered.  The treatment record shows that the patient was recovering normally till 23.12.2007, but suddenly became serious.  It is not understood why the patient was allowed to take ‘paneer’ from a ‘Dhaba’.  The patient was not still discharged.  She was supposed to take the food from the Hospital itself.  There is no proof that she had consumed ‘paneer’ as alleged.  There is no such report.  In case the allegation made by the OPs is correct, then they should have  shown to the Fora that the ‘paneer’ contained same bacteria,  which was found in the body of the deceased.  The pieces of ‘paneer’ should have been examined and preserved,  in order to save their own skin.  As per the orders passed by the Fora  below,  it is also difficult to understand as to how ‘paneer’ can cause frank pus in the abdominal cavity,  in such a short period.  It is clear that the deceased suffered post-operative excessive bleeding resulting into septicemia shock, resulting into renal functional impairment along with liver damage.  The record from the Government Hospital reveals that the patient was diagnosed as acute peritonitis/post LSCS and septic shock.  The deceased was transferred to surgery department for exploratory laparotomy.  She was operated on 27.08.2007 and approximately 700 ml pus was drained from abdominal cavity and inter bowel loops pus was also present.  She had been bleeding post-operatively for which she was operated again and bleeding was stopped.   On 27.12.2007, she was shifted to ICU and put on ventilator.  Her condition gradually deteriorated and she expired on 28.12.2007.   Such a big quantity of pus cannot crop up in a jiffy.  

11.    The District Forum has placed reliance on the Hon’ble Apex Court’s authority reported in  V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., 2010 (5) SCC, 513.  The facts speak for themselves and there is no need to call for an expert evidence.

12.    Res Ipsa Loquitor is one form of circumstantial evidence that permits a reasonable  person to surmise that the most probable cause of an accident was the OPs negligence.  Negligence is a breach of duty to take care resulting in damage to one’s person or property.  

However, the Black’s Law Dictionary defines negligence as under:-

“Negligence per se – Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it.  As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes”.

13.    The District Forum has meticulously kept in mind that the patient died when she was young.  She left behind her, a small baby who was just 3 months’ old, at the time of filing of this  complaint.  Keeping all the facts and circumstances of the case, the compensation was rightly granted.

14.    The State Commission has also placed reliance on Achutrao Haribhau Khodwa & Ors. Vs.State of Maharashtra & Ors. 1 (1996) CLT 532 (SC). 

15.    The revision petition is without merit and the same is dismissed with costs in the sum of Rs. 10,000/-, to be deposited with the Consumer Welfare Fund established by the Central Government under Section 12 (3) read with Rule 10 (a) of the Consumer Protection Act, 1986, of the Central Excise Act, 1944, within one month from the date of the order, otherwise, it will carry interest at the rate of 10% p.a.

         

.…..…………………………

(J. M. MALIK,J.)

                                                                                      PRESIDING MEMBER        

.…..…………………………

                                                                                                (VINAY KUMAR)

                MEMBER

dd/11

“34. Civil court not to have jurisdiction. – No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)”.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 721 OF 2013

(From  order dated 26.11.2012 in Appeal No. 201/2012 of the

               State Consumer Disputes Redressal  Commission,  Uttar Pradesh, Lucknow )

With

IA/1315/2013

(STAY)

Standard Chartered Bank

Through its Authorised Officer, Mr.Ajay Rana

10, Parliament Street, New Delhi                                … Petitioner

 

Versus

Virendra Rai, S/o Late Sh.Patu Rai

R/o 3/83, Sanjay Gandhi Nagar

P.N.Road, Tehsil & Dist. Lucknow                                      … Respondent

 

BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER

          HON’BLE MR. VINAY KUMAR, MEMBER

For the petitioner            : Mr. Sanjeev Sagar,  Advocate

            

For the Respondent :  N E M O

                    

PRONOUNCED ON  01.04.2013

                                                O R D E R

JUSTICE J.M. MALIK

1.      The Civil Court or any other authority can not arrogate to itself  the right to make decisions or interfere with the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short ‘SARFAESI Act’).  Here lies the rub in Section 34 of SARFAESI Act  which reads as follows:-

 “34. Civil court not to have jurisdiction. – No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action  taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)”.

2.      The State Commission, Lucknow, presided over by S/Sh. Rampal Singh, Presiding Member and Jugal Kishore, Member, passed the following order:-

          “… The petitioner states that in order dated 24.07.2011 the Consumer Forum has ordered the petitioner bank that during the pendency of this case, the petitioner shall not take possession of property of complainant bearing No.Plot No.14, Gaurbhith,Fazulahganj, Lucknow. The Consumer Forum has also given next date as 25.08.2012 for further proceedings.

The petitioner has prayed before this Forum for setting aside of order dated 24.07.2012 by this Forum. Further, after the passing of the date fixed by the Consumer Forum, i.e. 25.08.2012, the petitioner has not informed us about the orders passed by the Consumer Forum.  After hearing the counsel for petitioner in detail, it is found that the appeal of the petitioner is merit-less and hence liable to be dismissed.

                                         ORDER

          Present appeal does not have any force and hence is dismissed. The order passed by the Consumer Forum dated 24.07.2011 in case No. 780/11 is hereby confirmed. The cost of this appeal shall be borne by the petitioner himself.

          The certified copy of the order be supplied accordingly to rules”.

3.      We  have  also  seen  the order  passed  by the District Forum-II, Lucknow, which has  observed as under :-

          “…… The complainant on the other hand objected to objection of respondent and stated that this Forum has jurisdiction to hear the present case.  From their side an order passed by Hon’ble State Consumer Disputes Redressal Forum, U.P. in appeal No.694/09 titled “Gaya Prasad Vs. GIC Housing Finance Limited”  and order dated 01.05.09 has been relied upon, we have gone through the said order from which it is clear that only the Civil Court has been barred from hearing and thus only civil court does not have jurisdiction to hear the present case and not the consumer fourm.  Into this order, the Hon’ble State Consumer Forum, U.P. has also mentioned Section 3 of the Consumer Protection Act, 1986, wherein it has been specifically stated that the provisions of this Act shall be in addition to and not in derogation of provisions of any other law for the time being in force. Referring to this provision, the Hon’ble State Consumer Forum, U.P. has stated that the powers given to the Consumer Court are not in derogation of the provisions of SARFAESI Act.  Hon’ble State Consumer Forum, U.P. and its order in case titled “Kishori LalVs. ESI Corporation has stated clearly that the Consumer Forum has the jurisdiction to hear such cases and section 34 of the SARFAESI Act does not bar the said jurisdiction and in such circumstances, the objection of respondent bank does not have any force”.

4.      Counsel for the petitioner present.  Respondent has not appeared.  However,  his written submissions have been placed on record.  We have gone through the same.  Instead of touching the heart of the problem, the complainant has just skirted it.  He has countenanced the deficiency on the part of the Bank.  He has not spoken about the jurisdiction of this case. 

5.      The learned counsel for the petitioner  vehemently argued that the Bank had cited before the State Commission, the order passed by this Bench, titled as “Bank of Baroda Vs. M/s. Geeta Foods”, decided on 08.11.2012 (RP No. 3499 of 2012).  The counsel for the petitioner alleges that this order was not discussed by the State Commission. He contended that the State Commission should have mustered the courage to mention about this order which otherwisetantamounts to Contempt of Court.

6.      We have already held that as per Section 34 of the SARFAESI Act, 2002, the District Forum or the State Commission have no power to interfere with the SARFAESI Act. The District Forum and State Commission are under the misconception that the Consumer Court is not a civil court.  In Patel Roadways Vs. Birla Yamaha Limited, 2000 (4) SCC 91, AIR 2000 SC 461, the Hon’ble Apex court has held :

“The contention that the use of the term ‘suit’ in Section 9 of the Carriers Act shows that the provision is applicable only to the cases filed in a civil Court  and does not  extend to proceedings before the National Commission which is a forum to decide complaints by Consumers following a summary procedure cannot be accepted. The term ‘suit’ is a generic term taking within its sweeps all proceedings, initiated by,  a party for realization of a right vested in him under law.  The meaning of the term ‘suit’ also depends on the context of its use which in turn, amongst other things, depends on the Act or the rule in which it is used.  No doubt the proceeding before a National Commission is ordinarily a summary proceeding and in an appropriate case where the Commission feels that the issues raised by the parties are too contentious to be decided in a summary proceeding it may refer the parties to a civil Court.  That does not mean that the proceeding before the Commission is to be decided ignoring the express statutory provisions of the Carriers Act (Section 8) in a proceeding in which a claim is made against a common carrier as defined in the said Act.  Accepting such a contention would defeat the object and purpose for which the Consumer Protection Act was enacted.  A proceeding before the National Commission comes within the term ‘suit’.

7.      In S.James Vincent Vs. Greater Cochin Development Authority, 1994 (1) CPJ 174 (NC), this Commission held that “a complaint filed by the complainant suppressing the fact that the matter was already sub judice in the Sub-Court, Ernakulam, was dismissed by the State Commission as the case was already sub judice before a Civil Court.  In appeal, the National Commission upheld the order of the State Commission holding that the complaint was gross abuse of the Consumer Protection Act”.                 

8.      In Oswal Fine Arts Vs. H.M.T., 1991 CPC 43: (1991) 1 CPJ 330: 1991 (1) CPR 386 (NC), this Commission upheld the important principle that when a matter is sub judice before the ordinary Civil Courts of the land, the Consumer Commission cannot and will not entertain any claim for compensation in respect of the same subject matter.

9.      It must  be borne in mind that under Section 6 of the Indian Post Office Act, the Consumer Fora  have got limited jurisdiction. 

10.    Again,  in Southern Railways Vs. M.Chidambaram, 2002 (1) CPJ 34: (2002) 1 CPJ 342 (NC),  it was held that since it was not disputed that untoward incident as mentioned in Section 124-A of the Act has occurred the proper forum of  adjudication would only be before the Railway Claim Tribunal under Section 15 of the Railway Claims Tribunal Act, 1987.  The consumer court had no jurisdiction in this respect. 

11.    The consumer court cannot deal with the directions given to a Company declared ‘sick’ by BIFR.

12.    In Dinesh Kumar Vs. Railway Station Master, Raipur Station, IV (2004) CPJ 136 (Chhattisgarh), it was held that as Section 15 of the Railways Act, clearly bars jurisdiction of any other Court authority, consequently, remedy under Consumer Protection Act, 1986 stands barred and was not available to the complainant.

13.    Last, but not the least, this Commission clearly, specifically and unequivocally  held  in Traxpo Trading Co. Vs. The Federal Bank  Ltd, I (2002) CPJ 31 (NC)  that under Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, jurisdiction of  this Commission has been barred, where the Bank has filed ‘suit for recovery’,  before DRT. 

14.    Under these circumstances, the proceedings pending before the District Forum are hereby quashed and the revision petition is accepted.  The complaint is dismissed. Copy of this order be sent to the State Commission and District Forum to follow the order passed by this Commission, time and again, without caring whatever their personal views are.

    ...…..…………………………

(J. M. MALIK,J.)

                                                                                       PRESIDING MEMBER       

…..…..…………………………

(VINAY KUMAR)

                MEMBER

dd/7

On line business through Rediff.com - The main allegation of the complainant against the opposite party is that the opposite party failed to inform the complainant as to how the items received by the complainant are to be returned to the seller. Since the opposite party was facilitator between the seller and buyers as mentioned in the terms and conditions for Rediff Shopping Anneure-OP1 in the column “online Shopping Platform” Annexure-OP1-A, so it was the duty of the opposite party to inform the complainant as to how the goods are to be returned to the seller. A letter was issued through the opposite party to the complainant Annexure-C1 according to which the seller had undertaken to replace the produce at no cost to the buyer if the buyer inform the seller within 30 days of the delivery of the order, which shows that had the opposite party informed the complainant about the procedure and from the goods purchased by the complainant through the opposite party are to be returned, the complainant would have taken the benefit of the facility given by the seller under Annexure-C1. Although the opposite party did not charge any price from the complainant from mediating between the seller and the complainant yet it is implied that the opposite party which was giving service to the seller to invite buyers to purchase the goods is a service as contemplated under the provisions of Consumer Protection Act and the complainant has locus standi to file the complainant against the opposite party.”= “Admittedly, the opposite party was facilitator between the seller and buyers (complainant) as mentioned in the terms and conditions for Rediff Shopping Annexure OP-1 in the column “Online Shopping Platform” Annexure OP1-A. It was the duty of the opposite party to inform the complainant as to how the goods could be returned to the seller. As per letter Annexure C-1, which was written by the seller to the complainant through the opposite party, the seller had undertaken to replace the product at no cost in case the buyer informed the seller within 30 days of the delivery of product.”= it is clearly stated that the respondent company is engaged in business of providing services through its internet portal (www.rediff.com) to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sale and purchase of movable goods. If this is the declared business interest of the RP/OP it cannot be permitted to claim that it is providing purely gratuitous service to its customers, without any consideration. It is certainly not the case of RP/OP that it is a charitable organisation involved in e-commerce, with no business returns for itself. We therefore, reject the contention of the revision petitioner that the respondent/Complainant is not a consumer of the revision petitioner within the meaning of Section 2(1) (d) of the Consumer Protection Act, 1986.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO.4656  OF 2012

(Against the order dated 19.09.2011 in First Appeal No.1568 of 2007 of the State Commission, Haryana )

Rediff.com India Limited

1^st Floor, Mahalaxmi Engineering Estate

L.J. Road No.1,

Mahim (W) Mumbai- 400016,

Through Jyoti Ravi Sachdeva,

Company Secretary and Associate Director Legal

Authorized Signatory                                                                                                              ……….Petitioner                                      

Versus

Ms. Urmil Munjal

C/o  Gurgaon Gramin Bank

Head Office, Sector 4,

Gurgaon                                                                                                                                        .........Respondent

BEFORE

HON’BLE MR. JUSTICE J.M . MALIK,

                              PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner        :   Ms. Sangeeta Sondhi, Advocate

               

PRONOUNCED ON: 11 APRIL 2013      

ORDER

PER MR.VINAY KUMAR, MEMBER

M/s Rediff.com India Limited has filed this revision petition against concurrent orders of the District Consumer Disputes Redressal Forum, Gurgaon and Haryana State Consumer Disputes Redressal Commission.  The revision has been filed with a delay of 327 days.  In explanation of the same the application seeking its condonation says:

        “5. That it is pertinent to mention that the petitioner never received copy of the order and the same was never served upon the petitioner. It was only on 15.10.2012 that the petitioner received show cause notice from the District Court, Gurgaon for non-compliance of the order of the Hon’ble State Commission.  Upon receipt of the same, the petitioner followed up with its counsel and got the certified copy of the order only on 18.10.2012.

    6.  It is respectfully submitted that the limitation to file the present petition would commence from 15.10.2012 when the petitioner came know that impugned order, however, as an abundant caution, the petitioner has filed the present application for condonation of delay in filing the present revision petition from the date of the order.

    7. That the order of the Hon’ble State Commission is dated 19.09.2011, the certified copy of the same received by the petitioner on 18.10.2012.  The petitioner was never delivered the copy of the order.  Even the respondent never took any steps to serve the petitioner.  It is only when the respondent filed the execution petition and the petitioner received the certified copy of the order only then, he came to know about the impugned order.”

2.      Thus, according to the revision petitioner, he came to know of the existence of the impugned order on 15.10.2012 and obtained a certified copy thereof on 18.10.2012.  The copy of the impugned order filed before this Commission does show that the certified true copy was issued on 18.10.2012. Presumably, it will have been applied for sometime between the 15^th and 18^th of October, 2012.  However, neither the condonation application nor the certified copy show the date on which it was applied for.  Significantly, the endorsement on the same copy of the impugned order also indicates that free of cost copy of the impugned order dated 19.9.2011 was already supplied on 17.10.2011. The copy supplied on 18.10.2012 was a duplicate copy.  It is therefore clear that the claim of the petitioner that he came to know about the existence of the impugned order one year later, on 15.10.2012 has no factual basis.   

3.      The certified copy of the impugned order also shows that the order was pronounced on 19.9.2011.  This date is carried at the beginning as well as at the end of the order.  In the face of this, the claim in para 3 of the condonation application that the appeal was last heard on 19.9.2011 and was kept pending for orders, becomes a blatant lie.  Moreover, the revision petitioner was not ex-parte before the State Commission and should therefore have been fully aware of the proceedings before the State Commission including when the case was reserved for orders and when was the order pronounced. We therefore have no hesitation in rejecting the application of this inordinate delay 327 days as totally unacceptable.  The revision petition is therefore liable to be dismissed on the ground of delay alone. 

4.      Coming to the merits of the matter, we have carefully perused the records and heard Ms. Sangeeta Sondhi Advocate on behalf of the revision petitioner. The main urged on behalf of the revision petitioner is that the respondent/Complainant is not a consumer of the revision petitioner within the meaning of Section 21 (d) of the Consumer Protection Act, 1986.  It is alleged that dissatisfaction of the Complainant, if any, was with the goods delivered by their vendor, who has not been joined as a necessary party before the consumer fora.  The revision petitioner, it is claimed, was mere facilitator of the transaction between the seller and buyer and cannot be held liable for any deficiency of service. 

5.      Nevertheless, the above contention, the revision petition does admit “that the petitioner is only an intermediary who facilitates the sellers and buyers through its online portal and once the offer is made by the buyer and it is accepted on payment of consideration by the seller the role of the intermediary is over.”   

6.      In the Written Response filed before the District Forum (para 3), it is claimed that as the information and service provided to the buyer on this website by the respondent company are gratuitous or without consideration therefore, no contract for supply of any good or service ever came into existence between the complainant and the respondent in the present case.  That the complainant does not have any legal rights against the respondent and there can be no question of any deficiency of service or defect in goods supplied.

7.      In the background of the  above contention, it needs to be noted that the District Forum did not hold the RP/OP liable for any defects in the goods supplied, but for failure to inform the Complainant about the manner in which defective goods were to be returned to their seller.  The District Forum has observed:-

      “4. The main allegation of the complainant against the opposite party is that the opposite party failed to inform the complainant as to how the items received by the complainant are to be returned to the seller.  Since the opposite party was facilitator between the seller and buyers as mentioned in the terms and conditions for Rediff Shopping Anneure-OP1 in the column “online Shopping Platform” Annexure-OP1-A, so it was the duty of the opposite party to inform the complainant as to how the goods are to be returned to the seller.  A letter was issued through the opposite party to the complainant Annexure-C1 according to which the seller had undertaken to replace the produce at no cost to the buyer if the buyer inform the seller within 30 days of the delivery of the order, which shows that had the opposite party informed the complainant about the procedure and from the goods purchased by the complainant through the opposite party are to be returned, the complainant would have taken the benefit of the facility given by the seller under Annexure-C1.  Although the opposite party did not charge any price from the complainant from mediating between the seller and the complainant yet it is implied that the opposite party which was giving service to the seller to invite buyers to purchase the goods is a service as contemplated under the provisions of Consumer Protection Act and the complainant has locus standi to file the complainant against the opposite party.”

 8.     The State Commission fully endorses the view of the District Forum when it holds that:-

        “Admittedly, the opposite party was facilitator between the seller and buyers (complainant) as mentioned in the terms and conditions for Rediff Shopping Annexure OP-1 in the column “Online Shopping Platform” Annexure OP1-A.  It was the duty of the opposite party to inform the complainant as to how the goods could be returned to the seller.  As per letter Annexure C-1, which was written by the seller to the complainant through the opposite party, the seller had undertaken to replace the product at no cost in case the buyer informed the seller within 30 days of the delivery of product.”

9.      We find that the view taken by the fora below is completely in line with the admitted position of the RP/OP.  

In para 2 of its written response before the District Forum, 

it is clearly stated that the respondent company is engaged in business of providing services through its internet portal (www.rediff.com) to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sale and purchase of movable goods.

 If this is the declared business interest of the RP/OP it cannot be permitted to claim that it is providing purely gratuitous service to its customers, without any consideration.  

It is certainly not the case of RP/OP that it is a charitable organisation involved in e-commerce, with no business returns for itself.    

We therefore, reject the contention of the revision petitioner that the respondent/Complainant is not a consumer of the revision petitioner within the meaning of Section 2(1) (d) of the Consumer Protection Act, 1986.

10.    We find no merit in this revision petition.  It is accordingly dismissed on the grounds of limitation as well as on merit.  No order as to costs.         

.……………Sd/-……………

(J.M. MALIK,J.)

PRESIDING MEMBER

……………Sd/-…………….

(VINAY KUMAR)

                                                                                                                                                                                                          MEMBER

s./-