Avalon Resorts (P) Ltd. and Holiday Solutions = Although the word ‘Red’ has not been defined anywhere, yet according to the opposite party the word ‘Red’ means summer season commencing from 15th week of the year and continues till 33rd week of every year. - It is difficult to fathom as to why the petitioner should pay the maintenance allowance when he has not utilized such facility. One is supposed to pay the allowance when the thing is utilized by him. The termination of the notice on this ground is illegal. -The opposite parties are entitled to get the rent @10000/- per year from 2001 to 2012. The total comes to Rs.1,10,000/-. It is made clear that the complainant can avail the facility for the next 21 years from today. Before availing the opportunity, he can inform the opposite parties. The complainant is also entitled to rent out the said apartment for one week to any person for which the respondent will not raise any objection but in that case, the complainant shall be responsible for the maintenance. The complainant will not pay any maintenance allowance for the year when he does not utilized the facility for a particular year but otherwise he must pay the maintenance allowance. We, therefore, modify the judgment and direct the petitioner to pay Rs.11,000/- with interest at the rate of 9% from the date of filing of this complaint till its realization. The complainant can avail the facility for the next 21 years. Accordingly, both the revision petitions are disposed of.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO.  4318 OF  2012

 (Against the order dated 31.08.2012 in First Appeal No. 1280 of 2007 of the

Punjab State Consumer Disputes Redressal Commission, Chandigarh)

                                    

Shri Harwinder Singh Randhawa

S/o Shri Sohan Singh

R/o E/293, Ranjit Avenue

Amritsar (Punjab)                                              ... Petitioner

Versus

1. Avalon Resorts (P) Ltd.

    Empire Estate, Mehrauli-Gurgaon Road

    Sultanpur, New Delhi-110030

2. Holiday Solutions,

    GH-14/34, Ist Floor, Pashchim Vihar

    New Delhi-110063                                         ... Respondents

 

REVISION PETITION NO.  4624 OF  2012

 (Against the order dated 31.08.2012 in First Appeal No. 1280 of 2007 of the

Punjab State Consumer Disputes Redressal Commission, Chandigarh)

                                    

Avlon Resorts (P) Ltd.

Empire Estate, Sultanpur Mehrauli-

Gurgaon Road,

Sultanpur, New Delhi-110060                             ... Petitioner

Versus

Shri Harwinder Singh Randhawa

R/o E/293, Ranjit Avenue

Amritsar (Punjab)                                             

BEFORE:

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

  HON’BLE MR. VINAY KUMAR, MEMBER

       

For the Petitioner              :  Mr. Sumit Sharma, Advocate

For the Respondent         : Mr. M. K. Shah, Advocate with

                                              Mr. Nimmi Sharma, Advocate

                                           

Pronounced on :   1^st February, 2013

ORDER

JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      This order shall decide the above said two revision petitions which arise out of the same order dated 31.8.2012 rendered by the State Commission. 

2.      Mr. Harvinder Singh Randhawa, the complainant met the representative of Avalon Resorts (P) Ltd., opposite party No. 1 at its local office at Ritz Plaza, 45, The Mall, Amritsar.  

They represented that the complainant would be made member of the respondent-Avalon Resorts (P) Ltd. and Holiday Solutions, petitioners No. 1 and 2, respectively.  

The complainant was informed that he would get the best facilities for a continuous period of 33 years and occupation of one bedroom apartment during summer vacation every year under the category of ‘Red’.  

Orally, he was also informed that in case, he did not avail the facility during summer vacation, he would get the rent for one week. 

On 16.9.2000, the complainant became the member of petitioners.  He was informed that he will have to cuff out Rs.1,62,000/-.  

The complainant deposited the initial amount of Rs.74,000/- and the balance amount of Rs.88,000/- was paid through chequeon 17.9.2000, which was duly encashed by opposite party No. 1.  It is alleged that respondent No. 1 closed its office at Amritsar secretly and silently.  

The complainant could not contact any official at Amritsar.  The grouse of the complainant is that since 2001, no facility of reservation of the apartment was granted in his favour and whenever, he approached the official of respondent No. 1, the respondent No. 1 displayed their inability to provide their reservation during summer season.

3.      In June, 2005, and again in June, 2006, the complainant approached opposite party No. 1 at Delhi and requested him to give reservation for the last week of June, 2006 but the respondent No. 1 was unable to provide accommodation and informed the complainant to wait till the month of July, 2006.  

The opposite party No. 1 could not do the needful till the month of July, 2006.  This is an admitted fact that the complainant paid the maintenance charges without availing the facility for first two years.  

The respondent No. 1 wrote letters dated 29.11.2004, 14.3.2005, 10.5.2005 and sent the final reminder dated 25.11.2005 for the payment of due annual maintenance charges and threaten to terminate the membership on account of non-payment of annual maintenance contract.  

Even after termination of the tenancy, the respondent No. 1 again issued letter dated 13.5.2006 and demanded Rs.21,635/-.

4.      In May, 2003, the complainant again met respondent No. 1 and made the request that the company was not giving reservation during summer, nor the rent was being paid.  An official of respondent No. 1 told the complainant to become a member of its concern, namely, Holiday Solutions, respondent No. 2.   

The respondent No. 2 asked the complainant to pay a sum of Rs.5500/- in lump sum and the respondent No. 1 shall provide the facility in the shape of giving on rent their apartment every year to third person and the rent will be paid to the complainant.  

The complainant paid Rs.5500/- to respondent No. 2 against receipt No. 1500 dated 24.05.2003.  Despite the payment, the respondent did not give facilities to him. 

5.      Thereafter, the complainant lodged a complaint under Section 12 of the Consumer Protection Act, with the prayer that the respondents be directed to return Rs.1,62,000, Rs.7320/- and Rs.5500/- and Rs.1500/- alongwith interest @18% from the date of deposit till payment because the appellant is not interested to continue as a member of the respondents and pay a sum of Rs.1 lakh as compensation and Rs.17,000/- as costs of litigation.

6.      The respondent No. 1 set up the following defences.  The respondent No. 1 did not open any office at Red Plaza and only part time business was carried out in Ritz Hotel for enrolling new numbers.  The complainant was explained full terms and conditions.  The petitioner entered into an agreement.  The agreement entered into between the parties is placed on record. 

 The relevant portion of the agreement is reproduced as follows

B) MEMBERSHIP CERTIFICATE: The Owner shall issue to    the Purchaser(s) a Holiday Certificate specifying the details of Timeshare ownership and such Certificate shall be conclusive evidence of legal right for the specified week of occupation.  Such certificate shall be issued by the Owner within 90 days of the Purchaser(s) paying the total amount of Ownership

C) GUARANTED OCCUPANY : In the event of Apartment   Occupancy not being available on the occupancy date (Time being the essence) for the entitled week.  The Owner will make available an equivalent or larger apartment at the Resort for the week owned for his right of occupancy without any extra charges.”

Both parties can enforce their authority:

A)  In the event of Purchaser(s) failing to make payment due thereunder on the specified date (time being of the essence) the Company shall be entitled to serve Notice requiring such payment to be made within seven days.  If the Purchaser(s) fails to make such payment, the Company at its option shall forfeit the amount paid by the Purchaser(s) and resell the week to any person.”

7.      The opposite party No. 1 has also placed on record membership certificate annexure R-5, which goes to show that 33^rd weekly period was earmarked for the complainant.  The relevant portion is reproduced as follows:-

       “2. APARTMENT :ONE BEDROOM   APARTMENT No. 3A

   Max. occupany :4(four)                 No. of Weeks    :01

 3. WEEKLY PERIOD(S)               SEASON   :RED

  Commencement & Termination day    : Saturday

4. MEMBERSHIP PERIOD(S)       :2001-2033 (33 YEARS)

5. DATE OF CERTIFICATE          : JANUARY 2, 2001”

8.      Although the word ‘Red’ has not been defined anywhere, yet according to the opposite party the word ‘Red’ means summer season commencing from 15^th week of the year and continues till 33^rd week of every year.  

It was stated that as the petitioner has opted for Red, therefore, he was granted the Red category.  

The opposite party No. 2 did not contest the case and was proceeded ex parte against the District Forum.

9.      We have heard the learned counsel for the parties.  

The District Forum dismissed the complaint but the State Commission accepted the appeal as well as the complaint and directed that amount of Rs.88,000/-, Rs.74,000/-, Rs.7350/- and Rs.5500/- be paid by the opposite party.

10.    Learned counsel for the opposite parties argued that their case is fully covered by the documentary evidence.  

The complainant did not avail the above said facility on 33^rd week of every year.  It was for the complainant to apply for the said facility but he did not take any direction in this context.  

He contended that his membership was terminated as he did not pay the maintenance allowance.

11.    It is difficult to fathom as to why the petitioner should pay the maintenance allowance when he has not utilized such facility.  

One is supposed to pay the allowance when the thing is utilized by him.  

The termination of the notice on this ground is illegal.  

33^rd week will come to an end in the year 2033.  

The complainant has signed the document with open eyes.  He should have opted for the availment of such facility.  

This is not the duty of the opposite parties to send the notice to avail the facility.  33^rd  week is earmarked for him.  

He cannot wriggle out of the contract at this stage.  

The contract entered into between the parties is binding one.  

None of the parties is authorized to cancel it for invalid reasons. 

12.    For the years which have elapsed, the opposite parties must have utilized it and earned profits.  

 No record saw the light of the day.  It was bounden duty of the opposite parties to approach the Commission with clean hands.  

They must show to the Commission to whom and for what amount the room was given. 

They have suppressed the record to the detriment of the complainant.  

The opposite parties are entitled to get the rent @10000/-  per year from 2001 to 2012. The total comes to Rs.1,10,000/-.  

It is made clear that the complainant can avail the facility for the next 21 years from today.  

Before availing the opportunity, he can inform the opposite parties.  

The complainant is also entitled to rent out  the said apartment for one week to any person for which the respondent will not raise any objection but in that case, the complainant shall be responsible for the maintenance.  

The complainant will not pay any maintenance allowance for the year when he does not utilized the facility for a particular year but otherwise he must pay the maintenance allowance.  

We, therefore, modify the judgment and direct the petitioner to pay Rs.11,000/-  with interest at the rate of 9% from the date of filing of this complaint till its realization.  

The complainant can avail the facility for the next 21 years.  

Accordingly, both the revision petitions are disposed of.

………………Sd/-…..………..

     (J. M. MALIK, J)

   PRESIDING MEMBER

………………Sd/-.……………

                                                        (VINAY KUMAR)

                                                                            MEMBER

                    

Naresh/             

whether petitioner could have laid a claim against respondent no. 1-the Insurance Co, as insurance on the date of the theft was not in the name of petitioner but respondent no.2.=“As we see the position that emerges on 7.10.2007 when the vehicle was stolen was that the insurance policy was in the name of respondent no. 2 and it was respondent no. 2 who could have laid a claim for the amount of insurance on account of theft of the vehicle. Respondent No. 1 did not have any insurable interest subsisting on 7.10.2007 and therefore, could not have made any claim from the Insurance Co. on account of theft of the tractor”. 9. Petitioner in its entire complaint has made no averment against respondent no. 1 that he has paid any amount to respondent no. 1 for the purpose of insurance of the vehicle or any insurance policy was issued in his name. Thus, admittedly there is no privity of contract between petitioner and respondent no. 1.

          NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

                   REVISION PETITION NO.   102    OF 2011

 (From order dated 25.10.2010 in  Appeal No. 2201 of 2009

  of the  State  Consumer Disputes Redressal Commission, Madhya Pradesh )  

Amar Singh Mandelia,

S/o Shri Bowad Singh,

R/o Village Janarpura,

Post- Bijauli,

District Gwalior (M. P.)

                                                                  …Petitioner

1.       ICICI Lombard General

          Insurance Company Ltd.,

          Through Manager,

          ICICI Bank, First Floor,

          Hotel Shelter Building,

Shastri Chowk, Padav,

Lakshar, Gwalior (M. P.)

2.          Samadhiya Finance Services Pvt. Ltd.

          Through Manager, Regd. Office,

          Naka Chandrabadani,

          Jhansi Road, Gwalior.

                                                                             ……Respondents 

BEFORE:

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

        HON’BLE  MR.JUSTICE K.S. CHAUDHARI, MEMBER

       

For the Petitioner      :     Mr. Prashant Shukla,  Advocate

For the Respondent  :     Mr. Nikita Parmar, proxy counsel

No. 1                   Mr. Anuj Chauhan, Advocate.

For the Respondent

No. 2                        :      Ex parte

Pronounced on:  1^st February,  2013

ORDER

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

          Brief facts are that

a vehicle (tractor) was purchased by Petitioner/Complainant from respondent No. 2/O.P.No. 1. It was registered in his name on 1.9.2007 and was insured for the period from 25.6.2007 to 24.6.2008. However, the policy was issued in the name of respondent no.2. 

In the meanwhile, the tractor was stolen on 7.10.2007.

2.          Consumer Disputes Redressal Forum, Gwalior (for short, ‘District Forum’) vide order dated 27.08.2009, allowed the complaint of the petitioner.

3.          Aggrieved by the order of District Forum, Respondent No. 1/ O.P. No. 2 filed an appeal before the State Consumer Disputes Redressal Commission, Bhopal(for short, ‘ State Commission’) which vide impugned  order dated 25.10.2010, allowed the appeal and set aside the order of District Forum. State Commission also held that so far the claim of respondent No. 2 is concerned, the same shall remain unaffected by its order.

4.          Hence, this revision.

5.       It is argued by learned counsel for the petitioner that 

respondent no. 2 was never the owner of the vehicle and issuance of insurance policy in its name by the insurance company is an act of the unfair trade practice. 

Petitioner has paid Rs.4,566/- to the respondent no. 2 towards insurance of the vehicle. Under these circumstances, respondent no.1 could not have issued the policy in the name of respondent no. 2.

6.    On the other hand, learned counsel for respondent no.1 argued that

 petitioner himself has stated that insurance of the tractor is not in his name. 

As such in the absence of any insurance in the name of petitioner, he has no locus-standi to file the complaint.

7.    The question that arises for consideration is as to 

whether petitioner could have laid a claim against respondent no. 1-the Insurance Co, as  insurance on the date of the theft was not in the name of petitioner but respondent no.2.

8.        State Commission while allowing the appeal observed ;

                    “As we see the position that emerges on 7.10.2007 when

the vehicle was stolen was that the insurance policy was in the name of respondent no. 2 and it was respondent no. 2 who could have laid a claim for the amount of insurance on account of theft of the vehicle. Respondent No. 1 did not have any insurable interest subsisting on 7.10.2007 and therefore, could not have made any claim from the Insurance Co. on account of theft of the tractor”.

9.    Petitioner in its entire complaint has made no averment against respondent no. 1 that he has paid any amount to respondent no. 1 for the purpose of insurance of the vehicle or any insurance policy was issued in his name. 

Thus, admittedly there is no privity of contract between petitioner and respondent no. 1.

10.    Present revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986(for short, ‘Act’). 

It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order. No jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act. Present petition being without any legal basis is hereby dismissed.

12.     No order as to cost.

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

     (V.B. GUPTA)

     ( PRESIDING MEMBER)

                                                                   …………………………J

                                                        (K.S. CHAUDHARI)

                                                                            MEMBER

SSB/

                                                                                   

                                                                           

negligence of the doctors - shock and multiple organ failure, =The Complainant had fractured his hip which was fixed at OP hospital by the concerned doctors with screws. On 12.1.2004 he came to the hospital for removal of his screws for which an operation was performed under the supervision of an anaesthetist. The Complainant allegedly, suffered septicaemic shock and multiple organ failure, due to negligence of the doctors at OP hospital. = the infection occurred during the stay of the Complainant at the hospital. On the other hand, there is nothing to show that the source of infection lay outside the hospital. Thus, there is preponderance of possibilities of the infection having been acquired in the hospital itself. We therefore, do not accept the contention that it was necessary for the Complainant to produce expert evidence to prove negligence on the part of the concerned doctors in the hospital.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 3698 OF 2012

(Against the order dated 12.06.2012 in First Appeal

No.644 of 2010 of the A.P. State Consumer Disputes Redressal Commission)

The Apollo Emergency Hospital

Near Old MLA Quarters, Hyderabad,

Rep. by its Chief Executive Officer                                                                                                     ……….Petitioner

                                                                            

                                              Versus

1. Dr. Bommakanti Sai Krishna

   S/o Jagannadharao

   Occ: Doctor, Sai Orthopedic

   And Maternity Hospital

   Palakole, West Godavari District

   Andhra Pradesh

2. United India Insurance Company

    Rep. by its manager, H. No. 2-4-1/4,

    M.G. Road, Secunderabad

   Andhra Pradesh                                                                                                                              .......Respondents

REVISION PETITION NO. 3699 OF 2012

(Against the order dated 12.06.2012 in First Appeal

No.862 of 2011 of the A.P. State Consumer Disputes Redressal Commission)

The Apollo Emergency Hospital

Near Old MLA Quarters, Hyderabad,

Rep. by its Chief Executive Officer                                                                                                   ……….Petitioner

                                                                            

Versus

1. Dr. Bommakanti Sai Krishna

   S/o Jagannadharao

   Occ: Doctor, Sai Orthopedic

   And Maternity Hospital

   Palakole, West Godavari District

   Andhra Pradesh

2. United India Insurance Company

    Rep. by its manager, H. No. 2-4-1/4,

    M.G. Road, Secunderabad

   Andhra Pradesh                                                                                                                              .......Respondents

BEFORE

HON’BLE MR. JUSTICE  J. M. MALIK,

                              PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner         :   Mrs. K. Radha Rao, Advocate

PRONOUNCED ON:  05.02.2013.

ORDER

PER MR.VINAY KUMAR, MEMBER

The Apollo Emergency Hospital, Hyderabad has filed two identical revision petitions No.3698 and 3699 of 2012. Both are against FA Nos.644 of 2010 and 862 of 2011 decided by the AP State Consumer Disputes Redressal Commission, decided in a common impugned order.

2.      The matter arose out of a consumer complaint filed by 

Dr.Bommakanti Sai Krishna (hereinafter referred to as Dr. BSK) alleging negligence in his treatment at OP hospital.  

The Complainant had fractured his hip which was fixed at OP hospital by the concerned doctors with screws.  

On 12.1.2004 he came to the hospital for removal of his screws for which an operation was performed under the supervision of an anaesthetist.  

It is alleged that he was not properly attended to by the duty doctors and nurses.  

Therefore, his condition worsened and on 14.1.2004 he was shifted to the ICU in critical condition.  

The Complainant allegedly, suffered septicaemic shock and multiple organ failure, due to negligence of the doctors at OP hospital. 

On 16.1.2004, he was shifted by the OP to Apollo Hospital Jubilee Hill where he remained under very expensive treatment till his discharge on 15.2.2004.  

Considering the high expenditure on his treatment, loss of medical practice of himself (an orthopaedic surgeon) and his wife (a practising Gynaecologist) and the suffering undergone by him, total compensation of Rs.15.25 lakhs was claimed.     

3.      The District Forum held that it was a clear case of deficiency of service and negligence on the part of the OP and its doctors, which were the cause for the infection, bed sores and resultant discomfort and suffering undergone by the Complainant.  

The District Forum allowed the complaint with compensation of Rs. 5 lakhs and cost of Rs.10,000/-.  The award of the District Forum was challenged by both parties in two appeals, as already noted. 

4.      The appeal of the OP was dismissed and in the appeal filed by the Complainant Dr. BSK, the State Commission additionally awarded 9% interest from the date of the complaint observing that:-

“Now coming to the F.A. No.862/2011 filed by the complainant for enhancement of compensation and for awarding of interest on the awarded amount by the District Forum, we do not find any material much less sufficient material for enhancement compensation awarded by the District Forum holding that it is inadequate.  However regarding awarding of interest, the District Forum ought to have granted interest on the awarded amount at least from the date of the complaint.  Therefore we are inclined to granted interest at 9% p.a on the awarded amount of Rs.5,00,000/- from the date of the complaint i.e. 21.09.2005.”

5.      We have carefully considered the records submitted by the Apollo Emergency Hospital in the two revision petitions and have heard their counsel, Mrs. K.Radha Rao, at length. 

6.      The main contention of the revision petitioner is that a very high level of cleanliness and hygiene is maintained in the hospital and the performance is reviewed every 15 days.  

The floors, operation theatre and the rooms are cleaned and disinfected every day.  

Further, there is no evidence showing that the Complainant suffered infection due to unhygienic and improper maintenance of the hospital equipment. However, we find that simultaneously, the possibility of infection is also admitted in the revision petition in the following words:-

          “it is submitted that it is a basic principle that infection can happen due to improper sterilization surgical equipment which does not mean that has been occurred in the case of the respondent in the petitioner’s hospital.(Ground F)...........the medical record suggests that Pseudomonas is also present in the healthy body/patient.  Steps can be taken only minimize the infection but not total eradication of it.  Every hospital acquired infection does not presuppose the improper and unhygienic maintenance of the hospital. (Ground   G)”

7.      The fact remains that the infection developed while the complainant/Dr. BSK was at OP hospital for his treatment.  

The possibility of infection occurring is not denied and is, in fact admitted in the revision petition, though very indirectly.  

Neither the revision petition nor the counsel point to any evidence placed before the fora below and ignored by them which could have shown that the cause/source of the infection lay not in the treatment in the OP hospital, but elsewhere.  

Therefore, we reject this contention of the revision petitioner.

8.      It is also alleged that there is no direct evidence against hospital to show that the infection was acquired at the hospital.  As already observed, the infection occurred during the stay of the Complainant at the hospital.  On the other hand, there is nothing to show that the source of infection lay outside the hospital. Thus, there is preponderance of possibilities of the infection having been acquired in the hospital itself. We therefore, do not accept the contention that it was necessary for the Complainant to produce expert evidence to prove negligence on the part of the concerned doctors in the hospital.  

9.      In view of the details considered above, we do not find any merit in this revision petition. The same is dismissed for want of merit. No orders as to costs.

.………………Sd/-…………

(J. M. MALIK, J.)

PRESIDING MEMBER

……………Sd/-…………….

(VINAY KUMAR)

                                                                                                                                                                                                            MEMBER

s./-