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Sec.138 ,sec.141 N.I.Act – Partnership Firm – issued cheque – cheque bounced – firm not made as accused – fatal to the prosecution – firm registration form filed by accused can be considered even at preliminary stage against the general rule no document filed by accused can be considered – non issue of reply notice is not fatal for receiving the document filed by accused – complaint was quashed as not maintainable = Smt. Bommidipati Madhavi….Petitioner/accused The State of Andhra Pradesh rep.by Public Prosecutor, High Court of A.P., Hyderabad and another….Respondents = published in judis.nic.in/judis_andhra/filename=10600

Sec.138 ,sec.141 N.I.Act – Partnership Firm – issued cheque – cheque bounced – firm not made as accused – fatal to the prosecution –  firm registration form  filed by accused can be considered even at preliminary stage against the general rule no document filed by accused can be considered – non issue of reply notice is not fatal … Continue reading

Vehicle theft – premium paid through cheque for renewal of policy was bounced due to bank fault – Refusal of granting insurance claim – not tenable = In the meanwhile, the vehicle, in question, was stolen on the mid-night of 09.07.2004. The complainant lodged an FIR with the Police and also informed OP No. 2 Insurance Company regarding the theft and requested for payment of insurance claim. However, the said claim was rejected by OP No. 2 and they informed the complainant that his cheque bearing number 282302 dated 16.06.2004 for Rs.9,623/- had been dishonoured by OP No.1 and hence the insurance policy could not be renewed. The complainant then contacted OP No. 1 bank, where it was found that there was sufficient balance in the account of the complainant. The bank authorities vide their letter dated 13.07.2004 sent to the OP No. 2 insurance company stated that their counter clerk / officer had inadvertently returned the cheque issued by the complainant by oversight on 18.06.2004 and there was sufficient balance in savings account no. 6148 of the complainant. They also issued a banker’s cheque dated 13.07.2004 for Rs.9623/- in favour of OP No. 2 but the OP No. 2 rejected the said request and also rejected the claim filed by the complainant as the vehicle had already been stolen by that time. It is further borne out from record that after receiving the cheque of Rs.9,623/-, the Insurance Company did issue policy in favour of the complainant which was valid for a period of one year till 15.06.2005 but the said policy was cancelled by the Company after the cheque was dishonoured by the Bank. In the said insurance policy the total Insured Declared Value (IDV) of the vehicle has been shown to be Rs.2,62,000/-. The complainant in his complaint and further in written submissions has stated that since the vehicle was purchased for a sum of Rs.3,45,959.40 and it was only 16 months old, when it was stolen. The complainant has demanded a sum of Rs.4 lakh as compensation for the value of the vehicle. However, from the IDV mentioned in the Policy issued by the insurance company, it can be safely presumed that the complainant is not entitled to get more than Rs.2,62,000/- for loss of the vehicle. However, looking at the negligence shown by the complainant in not pursuing this case after submitting cheque for the premium amount he needs to be penalised also to some extent. It is felt, therefore, that a sum of Rs.1,50,000/- as already allowed by the State Commission seems to be a reasonable amount for awarding compensation to the complainant for loss of the vehicle.

published in http://164.100.72.12/ncdrcrep/judgement/00130808105104311RP462109204810.htm NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   REVISION PETITION NO. 4621 OF 2009 (From the order dated 29.10.2009 in First Appeal No. 106/2007 of Andhra Pradesh State Consumer Disputes Redressal Commission) B. Shankar s/o B. Bhadru c/o B. Parasuram IInd Floor, H. No. 1-9-285/3A, Lalitha Nagar Ramnagar Gundu Hyderabad – 500 044.                              …  Petitioner   Versus   1.   Union Bank of India Chikkadapally Branch, 1-8-563/2 … Continue reading

Unfortunately, on 25th July 2003, around 4.0 A.M., there was a strong storm and heavy rain-fall due to which the roof of Rice Mill collapsed and the water entered into the Rice Mill due to which the raw material, furnished stock, machinery, tin shed and other articles got damagedwhether the complainant/petitioner after accepting the amount in the sum of Rs. 3,27,000/- as full and final settlement is entitled to have the residue amount claimed in the sum of Rs. 2,50,000/- at the initial stage? It is note-worthy that the petitioner has not set up the plea of fraud, misrepresentation, undue influence or coercion in his pleadings. In the case of “United India Insurance versus Ajmer Singh Cotton & General Mills & Ors. [II (1999) CPJ 10 (SC) the apex court was pleased to hold: -, “4. ………………… The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise or undue influence or by mis-representation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, mis-representation, under influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting the appropriate relief under the circumstances of each case. The mere execution of the discharge voucher and acceptance of the insurance claim would not estopple insured from making further claim from the insurer but only under the circumstances as noticed earlier. The Consumer Disputes Redressal Forums and Commissions constituted under the Act shall also have the power to fasten liability against the Insurance Companies notwithstanding the insurance of the discharge voucher. Such a claim cannot be termed to be fastening the liability against the Insurance Companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance. The claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act. 5. In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, mis-representation or the lie. In the absence of pleadings and evidence the State Commision was justified in dismissing their complaints…………………………” 10. This view was also followed in a case reported in the case of “Raj Kumar versus United India Insurance Co. Ltd. [III (2011) CPJ 354 (NC)]” 11. It is also difficult to fathom as to why the first letter was written 10-11 months, thereafter, this objection was never taken at the earliest possible opportunity. 12. The learned State Commission rightly held that the original complaint filed by the petitioner was barred by time. The same was filed on 20th January 2007 i.e. two years 11 months and 10 days after cheque of Rs. 3,27,230/- had been issued and accepted by the complainant. The petition is without merit and the same is, therefore, dismissed.

NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION NEW DELHI   REVISION PETITION NO. 3689 OF 2009  (From the order dated 24.07.2009 in Appeal No. 2065/2008 of the State Consumer Disputes Redressal Commission, Uttar Pradesh) M/s Shiv Ram Gramodyog Sansthan                          …  Petitioner Through its Secretary Shivanant Agrahari Basaipur Distric Chandauli U.P.   Versus   1.  United India Insurance Co. Ltd.                             …  Respondents Thorugh … Continue reading

Consumer Protection Act, 1986 – ss.2(1)(d),(g) & (o) and 12 – Consumer – Deficiency in service – Claim for damages – Truck purchased in auction sale – Respondents authorities delayed delivery of the truck to appellant- auction purchaser and also, despite efforts made by him, did not hand over necessary papers of the truck to him for long number of years – Appellant could not ply the truck for such long number of years – Petition by appellant u/s.12 claiming damages – Held: Buyers of goods/commodities for “self consumption” in economic activities in which they are engaged would be consumers as defined in the Act – Appellant was ‘consumer’ within meaning of s.2(1)(d) as he purchased the truck for earning his livelihood by means of self-employment – Conduct, behaviour and attitude of respondents was highly reprehensible – There was deficiency in services on their part – Rs.1 lakh with 6% interest p.a. directed to be paid by respondents jointly or severally to the appellant. A truck was put in auction sale, on account of default in payment of instalments by its previous owner towards the loan taken by him from bank. Bid of the appellant was the highest. In 1999, the auction was confirmed and treated to be a final sale in favour of the appellant. Appellant deposited the requisite money consideration, however, the respondents authorities handed over the truck in question to the appellant only after six months from the date of auction. Even after getting delivery of the truck, the appellant could not start plying the same as he was not delivered the relevant papers thereof for long number of years despite efforts made by him. The relevant papers of the truck were handed over to the appellant six years after the date of auction. Meanwhile, the appellant filed petition Section 12 of the Consumer Protection Act, 1986 claiming damages. The appellant claimed damages @ Rs.500/- per day and interest at 5% on the amount of Rs.70,000/- deposited by him for the price of the truck and in addition, further claimed damages for mental and social injuries to the tune of Rs.50,000/- plus litigation expenses. The questions which arise for consideration in the present appeals were (i) whether the appellant was a ‘consumer’ within the definition of Section 2(1)(d) of the Act; and (ii) whether there was deficiency in services committed by respondents as contemplated under Section 2(1)(g) of the Act. Disposing of the appeals, the Court HELD:1. Appellant would be deemed to be a consumer within the definition as contained in Section 2(1)(d) of the Consumer Protection Act, 1986. A plain reading of Section 2(1) (d) of the Act makes it abundantly clear that appellant would fall in the category of a ‘consumer’ as he had bought the truck for a consideration which was paid by him. It was bought to be used exclusively for the purpose of earning his livelihood by means of self- employment. A further reading of the aforesaid definition of ‘consumer’ makes it clear that Parliament wanted to exclude from the scope of the definition the persons, who obtain goods for resale and also those who purchase goods with a view to use such goods for carrying on any activity for earning. The immediate purpose as distinct from the ultimate purpose of purchase, sale in the same form or after conversion and a direct nexus with profit or loss would be the determinants of the character of a transaction- whether it is for a “commercial purpose” or not. Thus, buyers of goods or commodities for “self consumption” in economic activities in which they are engaged would be consumers as defined in the Act. The purchase of the truck by the appellant would also be covered under explanation to Section 2(1)(d) of the Act. The appellant had mentioned categorically that he had bought the said truck to be used exclusively by him for the purpose of earning his livelihood, by means of self-employment. Even if he was to employ a driver for running the truck aforesaid, it would not have changed the matter in any case, as even then appellant would have continued to earn his livelihood from it and of course, by means of self-employment. Furthermore, there is nothing on record to show that he wanted to use the truck for any commercial purpose. [Paras 23, 24, 25 and 26] [1195-H; 1196-H; 1196-A-G] 2. There is nothing on record to show that any stay was granted in favour of any party, restraining the respondents not to deliver the papers of the truck to the appellant. It would go to show that respondents were unlawfully holding back the papers with them, for which, otherwise they were not entitled to do so. The truck in question was actually handed over to the appellant almost after six months from the date of auction in his favour. Even after getting delivery of the truck he could not have started plying the same unless he was delivered the relevant papers thereof. There is no dispute, which even otherwise stands proved from the voluminous material available on record that despite best efforts made by the appellant, the relevant papers of the truck were handed over to him only after six years from the date of the auction. No plausible or convincing reasons have been assigned by the respondents for not doing so. From the narration of the aforesaid facts, it is clearly made out that respondents were at fault in performance of the services which was otherwise required to be performed by them. What more could be the deficiency in service cannot be described. The respondents were certainly imperfect and the same would amount to shortcoming in quality in providing the service to the appellant. Thus, all the ingredients, to enable the appellant to claim damages under the Act were made out. This has in fact been found by the National Commission also, that is why it proceeded to award compensation of Rs. 25,000/- to the appellant. [Paras 21, 28, 29 and 30] [1194-H; 1195-A; 1197-F-H; 1198-A-C] 3.1. The appellant suffered loss of earning firstly due to non-delivery of vehicle and then due to highly belated supply of requisite documents. Moreover, the value of the truck also depreciated resulting in further loss to him. Thus, the amount awarded by National Commission is too meagre and deserves to be enhanced. [Para 32] [1198-E-F] 3.2. The conduct, behaviour and attitude of the respondents, throughout, has been highly reprehensible. When the bank had issued a Fard Nilami and respondents were entrusted with the job of auction then the said auction should have been implemented fully in letter and spirit. Once the highest bid of the appellant was knocked down in his favour, pursuant thereto, he had deposited the requisite amounts, then as a necessary consequence thereof he should have been delivered the truck immediately along with the necessary documents. For the reasons best known to the respondents they had not only delayed delivery of the truck but had also, despite the efforts made by the appellant, not handed over the papers of the truck to him for long number of years. Any explanation offered during the course of the arguments is not acceptable, which certainly shows their malafide intentions. [Para 34] [1199-B-D] 3.3. Even assuming for a moment that bank had not delivered the papers of the truck to the respondents then it was the duty of the respondents to have insisted the bank for delivery of the papers which they had failed to do. Thus, in any case, there cannot be any escape of the respondents from shaking off the liability fastened on them by the National Commission. [Para 35] [1199-E] 3.4. Taking the totality of the situation as it exists, a total amount of Rs. 1,00,000/- payable by respondents jointly or severally to the appellant would subserve the justice. [Para 36] [1199-F] 4. Even though the Act specifically does not authorise to grant interest but in appropriate cases, grant of interest on the facts and circumstances of the case is permissible. In this case also, keeping the circumstances under which appellant was made to run from pillar to post, to get the documents of the truck from the respondents, ends of justice would be met if interest at the rate of 6% p.a. from the date of the original application till actual payment of the aforesaid enhanced awarded amount is made by the respondents. [Paras 37 and 38] [1199-G-H; 1200-A-B] CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5165 of 2009. From the Judgment & Order dated 18.5.2005 of the National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 929 of 2003. WITH C.A. No. 5166 of 2009. R.K. Kapoor, Gunjan Sinha, H. Pant, Anis Ahmed Khan for the Appellants. R.K. Gupta, Manoj Dwivedi, Gunnam Venkateswara Rao for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5165 OF 2009 [Arising out of S.L.P.(C)No.20515 of 2005] Madan Kumar Singh (D) Thr. LR. ….Appellant Versus Distt. Magistrate, Sultanpur & Ors. …Respondents WITH CIVIL APPEAL NO. 5166 OF 2009 [Arising out of S.L.P.(C)No.11210 of 2006] J U D G M E … Continue reading

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