2. Mrs. Rekha Rajagopal, Advocate Partner, Rajagopal & Company 39-A, Mittal Chambers Nariman Point, Mumbai – 400021
3. Mr. Pradeep Rajagopal, Advocate Partner, Rajagopal & Company 39-A, Mittal Chambers Nariman Point, Mumbai – 400021
… Opp. Parties
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Complainant : Mr. Jayant K. Mehta & Mr. Shyam Kumar, Advocates
For the Opp. Parties 1 & 2 : Ms. Bina Madhavan, Advocate with Ms. Praseena Elizabeth Joseph & Ms. Vishaka, Advocates
For Opp. Party No. 3 : Mr. Prasanth P., Advocate
PRONOUNCED ON 4thJULY, 2014
O R D E R
JUSTICE J.M. MALIK
1. Kuwait Airlines Corporation, the complainant, filed this complaint in this Commission on 01.10.2000, against their Advocates, namely, Rajagopal & Co. and its two Advocate-Partners, namely, Ms. Rekha Rajagopal and Mr. Pradeep Rajagopal, wherein it was alleged that OPs have resorted to unfair trade practice and deceptive practice and demanded refund of money allegedly collected as taxes and their professional fees.
2. The relevant facts of this case are these. The complainant operates its office from a portion of the building known as Chateau Windsor at 86, Veer Nariman Road, Mumbai. The complainant took on lease, flat No.2 (right wing) on the first floor of this building vide a tenancy agreement dated 06.09.1967 from the erstwhile owners of the building. On 15.02.1998, the Assistant Engineer (Buildings), A-Ward, Centralised Ward Offices Building under Section 53 (1) of the Maharashtra Regional & Town Planning Act, 1966 (MR & TP Act) issued a notice against the complainant alleging that the
complainant, without taking the permission, necessary under the
MR & TP Act, had changed the use of the land from residential to commercial. A copy of the notice was placed on record as Annexure-A.
3. Thereafter, the complainant approached the OPs for legal advice and assistance in this matter. Ms. Rekha Rajagopal advised the complainant that this was in gross violation of MR & TP Act and they are also likely to receive a notice from the Bombay Municipal Corporation. They also advised the complainant to initiate and regularize at the earliest. They also advised the complainant that it would be wise to pay off the tax and penalty at the earliest in order to avoid any further levy of penalties, demolition and eviction. They also advised the complainant that it had an option to initiate legal proceedings and tried to obtain stay. Mrs. Rekha Rajagopal, OP2, opined that it would be a temporary relief and would involve lot of time and expenditure. She further informed that the rate of tax would be calculated on the rateable value tax from the preceeding year. A copy of the letter dated 09.02.1999 has been placed on record as Annexure-B. The relevant file was forwarded
to the OPs vide letter dated 19.02.1999. A copy of the said letter
has been placed on record as Annexure – C. A meeting was also held in Bombay office between the officials of the complainant and OP2. A copy of the minutes of the said meeting has been placed on record as Annexure – D.
4. Vide letter dated 17.03.1999, the OPs further advised the complainant that the Corporation was to in violation of : (A) MR & TP Act, 1996; (B) Bombay Municipal Corporation Act, 1888 (BMC Act) Section 167; and (C ) Maharashtra Tax on Residential Premises, 1974 and mentioned the period of violation as 1967-1999.
5. The OPs demanded the payment of Rs.33,00,000/- towards tax and professional fees for the regularization. The said amount was paid vide letter dated 17.03.1999, a copy of which was placed on record as Annexure – E. Annexure – E is a crucial document. Its original was not produced because the same was not available. However, the same is hereby reproduced as under :-
Rajagopal & Company
Pradeep Rajagopal Chambers:39-A,Mittal Chambers
Mrs. Rekha Rajagopal Nariman Point, Mumbai-400 021
Tel : 202 0303,Telefax:207 4771
March 17, 1999
Mr. Fahad Al-Ajmi
Lawyer – Legal Dept
Kuwait Airways Corporation
P.O Box 394, Safat – 13004, KUWAIT
Re : Chateau Windsor Premises –
Regularisation from Residential to
I am in receipt of your letter through fax transmission, dated 17.03.1999 bearing Ref. DL/DX/99.
Violation of provisions of law :
1. Maharashtra Regional Town Planning Act, 1966,
Sec. 63 (1)
2. Bombay Municipal Corporation Act, 1888, Sec. 167
3. Maharashtra Tax on Residential Premises, 1974.
Period of Violation – 1967 to 1999
The taxes payable are computed on the basis of area of flat as recorded in the Municipal Register.
a) Process for regularization would
incur payment of taxes .. INR 30,00,000/-
(to avoid demolition/eviction)
b) Professional fees inclusive of actuals .. INR 3,00,000/-
TOTAL INR 33,00,000/- --------------------------- Rates of taxes shall be calculated on the basis of rateable value for non-residential premises as per slab levied by State Government of Maharashtra for various periods inclusive of 1967 to 1999.
6. It is further explained that during the period 25.03.1999 to 24.04.1999, a total amount of Rs.33,00,000/- was paid to the OPs which was duly acknowledged by OP2 vide letter dated 11.03.2000, placed on record as Annexure – H, which runs as follows :-
Rajagopal & Company
Pradeep Rajagopal Chambers : 39-A,Mittal Chambers
Mrs. Rekha Rajagopal Nariman Point, Mumbai-400 021
1. A sum of Rs. 33 lacs inclusive of Professional fees (Thirty three lacs) was received by my office on behalf of
the Corporation towards obtaining regularization of flat No.2, 1st Floor of Chateau Windsor premises from residential to commercial for the period 1967 to 1999 onwards.
2. The receipts for all the moneys received have been signed for by my office staff at various dates.
3. Kindly note that said premises was valued at Rs.1,30,00,000/- (Rupees One Crore Thirty Lacs) on the said date. The Corporation would have incurred a penalty along with eviction totaling to about Rs.1,10,00,000/- (Rupees One Crore Ten Lacs).
It was in this background that the case was handed over to my office. Your former Solicitors, Mulla & Mulla had even opined that it would not be possible for them to have obtained the said regularization. The same has already been explained vide my letter dated 17.03.1999.
Your office letter dated 19.02.1999 authorised me in regularizing the user of the said premises from Residential to Commercial. I have already forwarded to you the BMC Inspection extract dated 15.05.1999 in this regard, wherein it is clearly stated that the above mentioned property, flat No.2, is used as an office. The same has been regularized and
is now legally in order.
Mrs. REKHA RAJAGOPAL”.
7. However, this document of infinite significance, is a photocopy simplicitor and not the main document. No information was received by the complainant about the payment of the said amount. On enquiry, the OPs forwarded two documents to the complainant. The first was the extract pertaining to the property tax and the second extract was a letter dated 19.05.1999, written by OP2 to the Ward Officer wherein a request was made that the notice should be withdrawn. The complainant thought that the OPs were taking action.
8. The complainant, vide letters dated 31.08.1999, 02.09.2000 and 10.11.1999 asked for original receipts for payment made to the authorities by the OPs. However, all those letters went unresponded. Thereafter, the complainant received the above said letter dated 11.03.2000 and correspondence went on between the parties. The OPs did not give the details of the taxes deposited by them. The complainant approached the Ward Officer but came to know that till that date, neither the user had been restored nor any document authorizing the commercial use had been submitted. Copies of these letters were annexed as Annexure – L, collectively. It is further averred that the Assistant Assessor & Collector of the A-ward was also asked to clarify the position but he could not. No specific reply was received from the OPs. On 13.05.2002, OP2 admitted of having taken no steps towards regularization of user.
9. It is alleged that even after the period of fifteen months, the OPs actually had not rendered any service for which they had already obtained professional remuneration in advance. They could not account for the said amount. The OP2 deliberately misinformed the complainant that a notice under the BMC would be received shortly. A study of these acts and sections clearly indicate that they are independent and the valuation for property tax or the nature of tax paid, whether, residential or commercial, has no bearing on regularization of user. All those regulations and sections were wrongly interpreted by OP2. The justification regarding the penalty to the tune of Rs. 1,10,00,000/- (Rupees One Crore Ten Lacs ) along with eviction based on valuation of premises at Rs. 1,30,00,000/- (Rupees One Crore Thirty Lacs) was a deliberate lie to suppress further queries from the complainant. Copy of letter dated 15.05.2000, copy of representation to the Municipal Commissioner, BMC, copy of letter from the landlord addressed to the BMC were also placed on record, as Annexures Q, R and S, respectively. Vide letter dated 12.08.2000, the complainant made a demand on the OPs for refund of Rs.33,00,000/-. Copy of the said letter has been placed on record as Annexure T.
10. Ultimately, this complaint was filed with the following prayers :-
a) direct the opposite parties to return to the complainant an amount of INR 33 lacs being the total amount charged and received by the opposite parties from the complainant.
b) direct the opposite parties to pay to the complainant interest @ 24% on INR 33 lacs calculated from 25.03.1999 till the date of payment.
c) direct the opposite parties to pay the costs of these proceedings to the complainant ; and
d) pass any other or further orders as this Hon’ble Commission may deem fit and proper in the facts and circumstances”,
11. The OPs have denied all these allegations. During the arguments, the learned counsel for the complainant admitted that
he was unable to produce the original documents. Since the original documents have not seen the light of the day, therefore, no value can be pinned with the photocopies/true copies, simpliciter. Such like evidence is of frail character. As a matter of fact, there is not a rag of evidence to implicate them in this matter. We do not have even a shred of proof . The complainant has failed to produce the receipts of the amount of Rs.33,00,000/-, allegedly signed by the staff of OPs. It is difficult to fathom as to why the amount was sent in cash. Kuwait Airlines Corporation should have sent the money through Cheque instead of sending the same in cash. No explanation is forthcoming. There is no other evidence which may go to bolster the case of the complainant.
12. We have perused Annexure – H (quoted above) which purports to have been signed by Mrs. Rekha Rajagopal. Mrs. Rekha Rajagopal has categorically denied her signatures on this document. The possibility of its being manipulated cannot be ruled out. No application was moved for leading secondary evidence. Even if it is assumed that all the moneys were received and signed by office staff of Mrs. Rekha Rajagopal, those receipts were withheld for the reasons best known to the complainant, the production of the receipts would have gone a long way to elicit the factual position of this case. In their absence, the position does not begin to jell. It would have gone a long way to animate life in this dead case. In order to prove the case, the complainant should have produced solid and unflappable evidence. The complainant has made a vain attempt to make bricks without straw.
13. It must be mentioned here that the complainant has wasted fourteen years’ of time of this Commission, on one pretext or the other. The main reason for the delay is that the original documents were reported to be untraceable. Due to lack of submission of original documents, the case of the complainant goes in a tizzy and the same is hereby dismissed. No order as to costs.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI.
REVISION PETITION NO.2370 OF 2012
(From the order dated 07.02.2012 in First Appeal No. 3775/2010 of State Consumer Disputes Redressal Commission, Karnataka, Bangalore)
1. Abdul Latheef Aged about 53 years S/o Late Bavunhi
2. Miss Ayeesha Shabeera Aged about 16 years
3. Master Muhammed Shahir Aged about 13 years
4. Miss Saara Shameel Now aged about 10 years
Petitioner No.2 to 4 are Minors represented By their natural Guardian Father, Petitioner No.-1
Permanent address at Nehru Nagar, Naricombu Village, Pane Mangalore-574231
1. The Life Insurance Corporation of India Rep. By its Chairman, Claims Department, Central Office, Yoga Kshema, JB Marga, PB No. 19953, Mumbai-400 021
2. The Senior Divisional manager The Life Insurance Corporation of India Divisional Office, Jeevan Krishna, P. B. No. 8, Udupi-576101
3. The Branch Manager, LIC of India Branch Office, Bantwal P.O. Jodumarga-574219
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner : Mr. C. B. Gururaj, Advocate
For the Respondent : Mr. Roopansh Purohit, Advocate
PRONOUNCED ON 04th JULY, 2014
ORDER PER DR. S.M. KANTIKAR, MEMBER
1. The present Revision Petition has been filed before this Commission under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 07.02.2012 in Appeal No. 3775 of 2010 passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’). The State Commission dismissed the Appeal. The Appeal was filed against the orders passed by the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’) in Complaint No. 234/2009, whereby the complaint was also dismissed.
2. The relevant facts in brief are that, on 28.03.2006, the deceased Zeenath obtained a Bima Gold Policy from the LIC of India (OPs) bearing No. 624377885 for Rs.2,00,000/-. She paid the 1st and 2nd premium. During the subsistence of the policy, she died on 12.11.2007 due to Carcinoma Larynx. The Petitioners/Complainants No.-1 to 4 are the nominees and beneficiaries under the said policy, and the Complainant No. 1 lodged a claim with the LIC of India (OP-2). The claim was repudiated by OP-2 stating that, the deceased had withheld material information regarding her health at the time of filling up the proposal form. Alleging that, repudiation of claim by the OPs was not correct which amounts to deficiency, the Complainant filed a complaint before the District Forum seeking direction against the Opposite Parties to pay Rs.2,00,000/-, the sum assured, along with interest @ 18% p.a.
3. The District Forum dismissed the complaint. An appeal was filed by the complainants, which too, was dismissed by the State Commission.
4. Against the impugned order of State Commission, this revision petition arose.
5. We have heard the counsel for both the parties, perused the medical records on file. The counsel for OP contended that, while obtaining the policy, the policy holder suppressed the material facts, while answering all the questions in the proposal form. In fact, just 15 days’ prior to filling the proposal form, Smt Zeenath, the deceased, was suffering from Bipolar Mood Disorder for which she had consulted doctors in KMC Hospital Attavar, Mangalore, Venlakh Hospital Bangalore, Justice K. S. Hegde Charitable Hospital Deralakatte, Mangalore and further stated that, she was admitted to the KMC Hospital with a history of aggressiveness and agitation. The deceased was treated with appropriate medication and Counselling. It is argued that, had the life assured declared the particulars of treatment taken at the time of obtaining the policy, the OPs would not have issued the policy. Hence, the counsel for OP contended that the repudiation is just and valid, because material fact has been deliberately suppressed relating to her health at the time of filling her proposal form.
6. The counsel for the petitioner argued that, Zeenath died due to Cancer, and there is no nexus between the Bipolar Mood Disorder and the cause of death. It is not a disorder; it is trivial in nature, which appears during pregnancy and abnormal menstruation, hence it is not a material fact, which need any disclosure. It is further contended that, the deceased, Zeenath, never required treatment for more than a week. There was no abnormal behaviour. The life assured was medically checked by the doctor of OP, and the proposal form was filled up at the instance of the LIC agent. Policy holder, Zeenath had a lower educational level and unable to understand the questionnaire in the proposal form. She never knew about the ailment of the carcinoma, it was the 1st time when she was informed by the doctors at KMC on 22.5.2006. The present cause of death is no way having nexus with the earlier treatment taken by the policy holder Zeenath.
7. We have perused the documents, the Hospital records from Venlakh Hospital, KMC Hospital and find that the deceased life assured had consulted the doctor in a Psychiatric Department of KMC Hospital on 11.03.2006 and had taken treatment from 13.03.2006 to 16.03.2006 for Bipolar Mood Disorder (Mania) and thereafter took a policy on 28.03.2006. She had paid second premium and thereafter, within one year she died due to Carcinoma Larynx, which was also confirmed by Dr. Suresh Mankar. We have perused the proposal form, the question under item 11 was answered as “during the last years 5 years did you consult a Medical Practitioner for any ailment requiringtreatment for more than a week, the answer given was “No”. To the question at item no. 11(b) that have you ever been admitted to any hospital or nursing home for general check up, the answer is “No”.
8. The next very important question which decides the fate of this Revision Petition is, “Whether, the non-disclosure of bipolar mood disorder was a material fact? And whether it has any relevance with the Carcinoma Larynx which was the cause of death? We have referred the medical literature upon the bipolar mood disorder; accordingly it is seen commonly in women, during abnormal menstrual cycles or during pregnancy. Therefore, as such, it is a condition of mind and not to be called as disease. The Doctor’s CertificateExbs. at C-26, dated 05.12.2009 clarifies this matter. This certificate by the Doctor’s view is reproduced as follows:
“Doctor Certificate- Highland Hospital Research & Diagnostic Centre
Mrs. Zeenath w/o Abdul Latheef died on 12.11.2007 at 3.15 p.m. due to carcinoma of larynx and secondaries on the neck.
She was treated for aggressiveness and irritability during 2004 & 2006 during her pregnancy and menstrual cycle. These symptoms can occur during stress conditions like pregnancy and menstrual cycle. She recovered well with the treatment.
The above mentioned symptoms have no relations to carcinoma of Larynx.
She died due to carcinoma of Larynx with secondaries and not due to behavioral disorders.”
9. Admittedly, the life assured took treatment just 15 days before taking the proposed policy. Even otherwise, this view of the OP is not supported by the answer given under the Item 11 (a) of the proposal form, the patient was admitted for only 3 days and not for more than a week. Also, the question in item 11 (b) the patient answered “No”, because the bipolar mood disorder was a frequent and repeated episode, which appears to be a trivial one. Therefore, it was not a material fact and not a fraudulent suppression. Therefore, the Judgment of Hon’ble Supreme Court in Satwant Kaur’s case is not applicable in this case.
10. It will be unfortunate, if the insurance companies try to repudiate genuine death claims on such technical and flimsy grounds. Most of the innocent insured will be victims and the beneficiaries will be deprived of the fruits of life insurance. Therefore, we are of the considered view that the deceased, Zeenath, an illiterate woman, did not suppress any material fact with any fraudulent intention. There is no nexus at all between the bipolar mood disorder and the carcinoma of larynx. No doubt, the bipolar mood disorders may lead to suicidal tendencies and the death, but, it will never be a cause for any cancer in the human body. It is unfortunate that on one hand the LIC raises the voice of “Utmost good faith” but, in contrast, the faith will be lost while not settling the genuine claims for some or other reasons. It is the exploitation of the policy holders. The consumers are literally under fear or dilemma that, whether, after death, the beneficiaries ever certainly get any fruits from the LIC.….!!!.
11. Therefore, we set aside the orders of both the Fora and allow this Revision Petition and direct the OP to pay a sum of Rs.2,00,000/- with interest @ 9% p.a. from the date of death of Smt. Zeenath, within 90 days, from the date of receipt of this order, otherwise, it will carry interest @ 18% p.a., till its realization. No order as to costs.
(J. M. MALIK, J.)
(S. M. KANTIKAR)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4440 OF 2013
(Against order dated 04.04.2013 in First Appeal No. 1545/2001 of the State Consumer Disputes Redressal Commission, Circuit Bench, Maharashtra)
For the Petitioner : Mr. Santosh M. Jain, Advocate
For the Respondent/Caveator : In person
PRONOUNCED ON 04th JULY, 2014
ORDER PER DR. S.M. KANTIKAR, MEMBER
1. The present Revision Petition has been filed before this Commission under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 04.04.2013 in Appeal No. 1545 of 2001passed by the State Consumer Disputes Redressal Commission (in short, ‘State Commission’). The State Commission dismissed the appeal which was filed against the order passed by the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’) in Complaint No. 149/1996, whereby it allowed the complaint.
2. Brief facts of this case are: The Complainant had purchased a display monitor on 10.02.1995 for her STD/PCO shop at the cost of Rs.21,000/- from the Opposite Party, Mr. Satish Maniklalji Baheti, who is a dealer of DIGI Control Northern Pvt Limited. The STD/PCO was allotted under Educated Un-employed Scheme. After one month, the OP took the display monitor from the Complainant’s STD/PCO with a promise to return the display monitor to the Complainant, with same number. The OP informed the Complainant that the said monitor has been called by the Company. The OP kept the old monitor model CPD. The said old monitor was not working properly. Even after lapse of one year, with the repeated requests, the OP did not return the original monitor model TCBSI. The Complainant had spent Rs.4,000/- for repairing the old monitor, which also went out of order. Thus, on 17.04.1996 the Complainant served a registered notice to the OP to return the TCBSI monitor, with Rs.10,000/- towards the loss and Rs.5,000/- towards mental torture. But the legal notice was returned back with the remarks, “Not available, for 7 days”.
3. Hence, the Complainant approached the District Forum, Amravati with the prayer directing OP to supply a brand new original TCBSI monitor or to pay Rs.21,000/- with the interest @ 24% p.a., Rs.25,000/- as damages with Rs.5,000/- for mental agony. The District Forum allowed the complaint and ordered the OP to refund Rs.21,000/- with interest @ 12% per annum from 03.06.1996 plus Rs.5,000/- towards mental agony and Rs.2,000/- as costs.
4. Aggrieved by the order of the District Forum, an Appeal was filed in the State Commission by the Petitioner/OP which too, was dismissed. Hence, this Revision Petition.
5. Heard arguments on behalf of both parties and perused the orders of both the fora below. The Counsel for the Petitioner vehemently argued that the State Commission and District Forum have passed the orders without any evidence on the allegations of the Complainant.
6. This case pertains to the year 1995, about 2 decades have passed, and the case is still being unnecessarily dragged on, to harass the Complainant. The observations of the District Forum clearly goes to show as follows:
“That from this Forum has come to the conclusion that, the OP has intentionally avoided to remain present before the Forum in spite of several opportunities given to him to plead and considering this circumstantial evidence Forum has come to conclusion that, the OP has given promise to give new Monitor with Display of same number instead of new Monitor with display, because the said Monitor was demanded back by the company and till then in exchange gave old Monitor No. CPD to the Complainant to meet the requirement, this say of Complainant is accepted and OP is held guilty of adopting un-fair trade practice under section 1(1) (r) (vi) of Consumer Protection Act, 1986 and committed fraud, on this conclusion the Forum has reached.”
7. Therefore, it is clear that the OP was shirking away from its responsibility by not accepting legal notices and also avoiding to change the monitor or refund the amount. It amounts to unfair trade practice. Both the Fora taken similar views. The facts cannot be agitated now again. The factual position stands proved. Hence, the Complainant deserves proper compensation because she is an educated unemployed lady who suffered due to unfair practices of OP. Both the Fora below have passed well considered order, which do not need any interference. Therefore, this Revision Petition is dismissed. No orders as to costs.
(DR. S. M. KANTIKAR) PRESIDING MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 189 OF 2009
(From the order dated 27.01.2009 in Complaint No. 298 OF 2000 of the Delhi State Consumer Disputes Redressal Commission at New Delhi)
Space Overseas Pvt. Ltd., G-1314, Chitaranjan Park, (Basement), New Delhi – 110019