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consumer disputes

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No medical negligence – complainant died – Lrs not paid any attention – expert doctor died – = After administration of the above injection, cold blood was transfused in flagrant violation of the basic medical norm or practice and within 2/3 minutes of pushing the injection this cold blood transfusion instantly had a cascading effect on his wife and she developed convulsion-condition. According to the complainant on 15.02.97, the patient developed restlessness, insomania, severe pains all over her body and also breathing trouble. Complainant alleged that no care was taken by the Staff Nurse or the doctor and when on 16.02.97 he went to the Hospital his wife was groaning and crying. Complainant further alleged that on 16.2.97, the Duty Medical Officer without consulting Dr. R.N. Duttainstructed the nurse to inject two injections namely Fortwin I vial and Calmpose I vial to the Refractory Anemia patient in total disregard of all medical norms and ultimately his wife expired.= A perusal of the impugned order shows that the State Commission, while allowing the complaint, has placed substantial reliance upon the expert opinion of Dr. S.K. DuttaChaoudhary, produced on behalf of the Complainant. The Commission has observed that:- “In paragraphs 9,10,11 of his Affidavit (page 92 & 93 of the Paper Book) this expert doctor has opined that a person suffering from ailment or having low blood pressure on poor heart condition is never administered two medicines namely injection Calmpose and injection Fortwin and according to his opinion the Cardiac failure as recorded in the Death Certificate of the patient was directly due to the administration of the said two medicines in such a physical condition of the patient as has been already described above. The doctor has further stated that supporting treatment by way of Oxygen and Saline could have saved her. With this opinion of expert is added the circumstances that there is no record forthcoming from the O.Ps to show that the blood pressure or pulse rate of the patient was ever checked by Dr.Halder during his period of crisis before the fatal injection was administered. It is also on record that this Dr. Halder who was In-Charge did not requisition any Oxygen cylinder or mask or saline to save the life of the patient.” 4. However, during the course of hearing of this appeal, it was observed that the above medial expert examined on behalf of the Complainant before the State Commission had died before the OPs had any opportunity to cross examine him. It was therefore, decided to refer the matter to the All India Institute Medical Sciences, New Delhi for opinion. Accordingly, a four member Medical Board was constituted by the Medical Superintendent, AIIMS. Its report has been received and perused. = In another significant development during the hearing of this appeal, the Complainant Shri N.C. Majumdar passed away. The application to bring the LRs on record was allowed on 26.7.2012. However, notices sent to the LRs on 27.4.2011, 14.9.2011, 01.10.2012 and on 14.5.2013 have not yielded any results. They have remained unclaimed. It is learnt from the Registry that this amount was not withdrawn by the respondent/Complainant and is still available as deposit in the name of the Registrar of this Commission.- In the reference made by this Commission to the AIIMS, specific opinion had been sought on four points. The expert report received is directly with reference to those four points. They are listed below:- “Question (i). Whether the reaction/convulsion which the patient developed immediately after transfusion of blood on 13.02.97 is attributable to the transfusion of cold blood without bringing it to the level of normal human body temperature? Answer: There is no evidence of any reaction/convulsion on 13.02.1997 after the blood transfusion as per given medical record. Question (ii).Whether the reactions/convulsions which the patient developed after transfusion of blood on 15.02.97, were managed properly? Answer: There is no record of any convulsion on 15.02.1997. Patient had rigors (shivering) on 15.02.1997, which was managed accordingly. Question (iii). Whether the administration of injections, Calmpose and Fortwin on 16.02.97 was contra-indicative keeping in view the health condition, including the cardiac condition, of the patient ? Answer: Medical records do not mention any details of patient cardiac conditions. According to medical records inj. Fortwin & inj. Calmpose were administered intramuscularly (I/M) due to restlessness and pain. However, the reasons of restlessness and pain is difficult to assess from the medical record. Question (iv) Whether the death of the deceased on 16.02.97 is directly or indirectly attributable to the said complications which followed after blood transfusion on 13.02.97 and after administration of injections on 16.02.97. Answer: It seems unlikely that the blood transfusion on 13.02.1997 resulting in the event of death on 16.02.1997. It also seems unlikely that intramuscular (I/M) administration of Inj. Fortwin and Inj. Calmpose would have caused the cardio-respiratory arrest. Her primary condition of refractory anaemia is also not recorded properly in the medical recortds.” 7. The complaint petition before the State Commission itself accepts that the deceased was suffering from the condition of ‘refractive anaemia’. As per the medical lexicon, it is a condition of unresponsiveness to treatment. Considering this in the light of the opinion categorically expressed in the report of the AIIMS, the finding of State Commission that it was a case of gross negligence cannot be sustained. 8. Consequently, the appeal of Mission of Mercy Hospital/OP-1 before the State Commission is allowed and the order of the West Bengal State Consumer Disputes RedressalCommission in Consumer Complaint No.339/0/1997 is set aside, qua the appellant. The deposit of Rs.1 lakh made by the Appellant together with the accrued interest and the statutory amount of Rs.35,000/- are directed to be released in favour of the Appellant.

published in http://164.100.72.12/ncdrcrep/judgement/00130816122903619FA56506%20.htm NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       FIRST APPEAL NO. 565 OF 2006 (Against the order dated 06.06.2006 in S.C.Case No.339/O/1997 of the State Commission, West Bengal) The Mission of Mercy Hospital & Research Centre, 125/1, Park Street, Town of Calcutta, Calcutta-700017                                                                                                                                               …..Appellant Versus 1. Shri N.C.Majumder S/o Late Surendra Kumar Majumder Residing at 89, S.G.D.Road, Birati, Post Office –Birati, … Continue reading

Fire accident= When there is no clause not to make any constructions to the building with out permission – No claim should be rejected when fire accident was occurred due to short – circute – not concerned with building works = the petitioner issued an insurance policy number 201002/11/03/00372 called ‘Standard Fire and Special Perils Policy’ in favour of the complainant / respondent for a sum of Rs.20.50 lacs for the period 17.3.2004 to 16.03.2005. Out of this amount of Rs.20.50 lacs, Rs.20 lacs was meant for stocks of all kinds of sofa material, curtains cloth, mattresses, pillows, cushions, towels, bed sheets, etc., and Rs.50,000/- was the coverage for furniture, fixtures, fittings and electrical items. During the currency of the policy, fire occurred on 19.09.2004 at about 3:30 a.m. and the respondent estimated the loss to be Rs.20,68,090/-. An intimation was given by the respondent to the local police on the date of the fire and the insurance company was also intimated. The petitioner insurance company appointed a surveyor to assess the loss. Vide his report dated 29.01.2005, the surveyor assessed the loss at Rs.10,80,770/-. The surveyor also pointed out that at the time of loss, there was construction going on in the shop on the first and second floors of the building. In order to supply electric current to first and second floor, electric wires had been put on the main electric meter for the shop, which resulted in probable short-circuiting, leading to fire. The petitioner repudiated the claim, saying that there was violation of conditions of the policy, because construction was going on in the premises. = construction activity was being carried out at the premises in question and as per the surveyor’s report, the probable cause of fire could be due to short-circuiting, but we agree with the findings of the District Forum and State Commission that in this case also, the insurance company cannot escape responsibility to pay the claim under the Policy. We do not agree with the contention of the petitioner that the construction activity had resulted in increased risk for the insured stocks in question. It has also been made clear that there are separate electric connections for the ground floor and first floor and there are separate electricity meters for the same. It is not clear anywhere that the insured was required to obtain permission of the insurance company before starting the construction. The District Forum in their order have rightly assessed the value of the total stocks, in question and the value of the stocks lying safe in the godown, and allowed the claim after taking into consideration both these values. We, therefore, find no illegality or irregularity in the orders passed by the District Forum and State Commission which reflect true appreciation of the facts and circumstances on record. These orders are, therefore, upheld and the present revision petition stands dismissed with no order as to costs.

published in http://164.100.72.12/ncdrcrep/judgement/00130807112019251RP23812012.htm NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   REVISION PETITION NO. 2381 OF 2012 (From the order dated 30.03.2012 in First Appeal No. 970/2008 of Punjab State Consumer Disputes Redressal Commission)   United India Insurance Co. Ltd. Regd. & Head Office 24, Whites Road Chennai – 600014 Through its Regional office No. 1 Kanchenjunga Building … Continue reading

MEDICAL NEGLIGENCE – The State Commission, therefore, directed the Appellants to jointly and severally pay the Respondent (i) Rs.77,023/- towards expenditure upto 30.05.2001; (ii) Rs.70,000/- as damages; and (iii) Rs.10,000/- as litigation costs within a period of 45 days from the date of the communication of the order.- It is an admitted fact that the Respondent was admitted for gallbladder surgery in Appellant/Institute and as a part of the anesthesia procedure a cylindrical pipe was inserted inside his throat and since it could not be placed in the desired position despite several attempts, the operation had to be abandoned. It was later confirmed that the intubation was unsuccessful because of a jutting cartilage inside the throat which was a pre-existing structural problem in the Respondent’s throat. = it was for the Appellants as medical professionals to have got all the tests done and once there was a problem with the intubation, they should not have made repeated attempts to thrust the pipe, which resulted in serious injuries leading to other complications. – the Respondent had developed a life threatening condition because of the pharyngeal tear close to larynx and multiple air filled cavity in Appellant No.1/Institute – the due and reasonable care was not taken by the Appellants in the treatment of the Respondent while intubating the cylindrical pipe in connection with the anesthesia. While the problem was apparently caused because of a structural defect in the Respondent’s throat, severe damage could have been averted or minimized if the Appellants had been more sensitive and careful and not insisted in pushing the tube several times despite knowing that there were problems. There is no other explanation for the extensive and severe injuries caused inside the Respondent’s throat. We are also unable to accept the contention of the Appellants that the onus was on the Respondent to have disclosed the relevant facts regarding structural defects since there is no evidence that he was aware of this problem. If indeed he had been aware, there was no reason for him to have withheld this fact.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 114 OF 2009 (Against the order dated 16.02.2009 in SC Case No. 100/O/2001 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata)   1. ILS Hospital Previously known as Institute of Laparoscopic Surgery Jeewansatya, DD-6 Salt Lake City, Sector-1 Kolkata-700064 2. Dr. Om Tantia Director … Continue reading

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 1st Floor, Mahalaxmi Engineering Estate L.J. Road No.1, Mahim Mumbai- 400016, Through Jyoti Ravi Sachdeva, Company Secretary and Associate Director Legal Authorized Signatory                                                                                                              ……….Petitioner Versus … Continue reading

Insurance policy claim – The appellant’s father lodged a claim for compensation by asserting that his son had suffered loss of vision due to accidental fall. After long correspondence, the respondents rejected the claim on the ground that the same was not covered by the policy. = Phthisis Bulbi is the endstage anatomic condition of the eye in response to severe ocular disease,infection, inflammation, or trauma. Clinically, it is categorized by a soft strophic eye with disorganization of intraocular structures. Phthisis Bulbi can be caused due to ocular injury, radiation, infection, or diffusion disease. Initial damage to intraocular structures either from penetrating trauma or inflammation can eventually lead to widespread atrophy and disorganization of the eye – Dictionary of Cell and Molecular Biology and Radiology of the Orbit and Visual Pathways, by Jonathan J. Dutton, Prof. of Ophthalmology, University of North Carolina at Chepal Hill, USA.= it is clear that the State Commission and the National Commission committed serious error by dismissing the complaint of the appellant by assuming that his right eye was afflicted with the disease of Phthisis Bulbi and the same was the cause of loss of vision. They completely ignored the report of the Medical Board which had opined that Phthisis Bulbi can be caused due to injury caused due to fall. Before the State Commission, sufficient evidence was produced by the appellant to prove that he had an accidental fall on 22.10.1999 and as a result of that, right side of his head and the right eye were injured. Therefore, there is no escape from the conclusion that the appellant’s case was covered by the policy issued by respondent No.1 and the State Commission and the National Commission committed serious error by rejecting his claim. – In the result, the appeal is allowed, the impugned order as also the one passed by the State Commission dismissing the complaint filed by the appellant are set aside and the respondents are directed to pay compensation of Rs.7,00,000/- to the appellant with interest at the rate of 6% per annum from the date of filing the complaint. 16. The respondents are directed to pay the aforesaid amount to the appellant within a period of eight months from the date of receipt/production of copy of this judgment.

Page 1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2759 OF 2013 (Arising out of SLP(C) No. 25991 of 2008) Sandeep Kumar Chourasia …Appellant versus Divisional Manager, the New India Insurance Company Ltd. and another …Respondents J U D G M E N T G. S. Singhvi, J. 1. Leave granted. … Continue reading

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 … Continue reading

In the given facts and circumstances of the case, we partly allow the appeal, by setting aside the direction to replace the defective car with a new car and direct the appellant to refund to the respondent the entire cost of the car minus depreciated value at 10% as the consumer has used the car for more than two years, and pay Rs.50,000/- as compensation as to the mental agony, harassment, physical discomfort and emotional suffering suffered by the appellant. This compensation shall include the cost of litigation.”In conclusion, we partly allow the revision petition and set aside the impugned order of the State Commission and that of the District Forum. However, in view of the foregoing discussion, we deem it appropriate to direct the petitioner to pay to the complainant/respondent 1 compensation of Rs.40,000/- for the harassment, mental agony and expenditure suffered by him since the purchase of the car till the replacement of the engine assembly and cost of Rs.10,000/-, including these proceedings. This payment may be made within four weeks of the date of this order.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   REVISION PETITION NO. 2207 OF 2007 [Against the order dated 22.12.2006 of the Delhi State Consumer Disputes Redressal Commission, Delhi in First Appeal No. 771 of 2006]   Tata Motors Limited Passenger Car Business Unit No. 402 4th Floor, Tower A, Signature Towers                              Petitioner South City I, N.H. 8 … Continue reading

“(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case, WLR at p.586 holds good in its applicability in India.”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   FIRST APPEAL  NO.115 OF 2005 (From the order dated 02.03.2005 in Complaint No.70/2000 of the State Commission, M.P.)   Prem Bala                                                                                                                                                                                …Appellant Versus Dr.(Mrs.) Satinder Saluja & Ors.                                                                                                                                            …Respondents   BEFORE :             HON’BLE  MR. JUSTICE  ASHOK  BHAN,  PRESIDENT           HON’BLE  MRS. VINEETA RAI,  MEMBER   For the Appellant                            :         Mr. D.S. Chauhan, Advocate   For the Respondents                       :         NEMO.   Pronounced … Continue reading

The complainant does not qualify to be a ‘consumer’ as defined in Section 2(1)(d) of the Consumer Protection Act, 1986. We say so because as per his own admission the complainant is a resident of Delhi and he intends to purchase some permanent accommodation at Mumbai for his stay during his business visits to save on the expenditure incurred in hotels. For that purpose, he has booked not one but two flats. Clearly, the transaction is relatable to his business activity and, therefore, it will fall in the category of commercial purpose, which has been taken out of the purview of the Consumer Protection Act, 1986 vide Amendment Act No. 62 of 2002 effective from 15th of March, 2003.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   CONSUMER COMPLAINT NO. 296 OF 2011     Satish Kumar Gajanand Gupta S/o Late Shri Gajanand Gupta R/o F-4, Nice Apartment 17/41, West Punjabi Bagh New Delhi-110026                                            …      Complainant Versus 1.      M/s Srushti Sangam Enterprises (India) Ltd. Through its Chairman & Managing Director Flat No. 5, Kalpana Srushti Plot No. 99, … Continue reading

After completing the entire transaction of purchasing a car for 11 lakhas and add, the subsequent price decrease offer to the public is not amount unfair trade practice and it is not deficiency of service the price of the car is declared as Rs.9,99,999/- in the special offer. Despite that opponent No. 2 has recovered Rs.11,63,876/- from the complainant. The Opponent No.2 has usurped the benefit of special offer and has recovered excess amount of Rs.1,38,877/-. The complainant No.2 has usurped the same. Agreement is over on 3.9.08. Car is delivered to the complainant. Amount has been paid. Full and final payment has been made. Thereafter if any advertisement has been published between 6.9.08 to 9.9.08, the complainant is not entitled to get the benefit. Because the agreement was over and price was paid before that. No special offer was published in newspaper on the dates on which agreement of car was over. The complainant is therefore not entitled to get benefit of offer. It is the say of the complainant that had the Opponent No.2 informed about such offer, the complainant would not have purchased the car as is purchased. He would have purchased the car at a lesser price under the offer. So we do not agree with the contention of complainant that opponents have resorted to unfair trade practice. Because the seller is not bound to declare the secrets of his trade. Again the seller is not bound to inform the consumer about the date of advertisement of the scheme. There are no such rules. If the seller is kept in ban like this then seller cannot do business before the scheme. Under these circumstances, we do not agree with the contention of complainant that Opponent No.2 is bound to inform about future scheme and by not doing so, opponent No.2 has resorted to unfair trade practice.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   REVISION PETITION NO. 94  OF  2012 (From the order dated 22.09.2011 in Appeal No.491/2010 of Gujarat State Consumer Disputes Redressal Commission, Ahmedabad) Shri Shankerlal L. Sachdev, Advocate Meera, 36/C/A, Bhuj – Kachchh, Gujarat                                                                                               …….. Petitioner Vs. 1. The Managing Director, Skoda Auto India Pvt. Ltd. A/1/1, M.I.D.C., Five Star Industries Area, Shendra, Aurangabad – 431 201 2. The … Continue reading

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