National consumer disputes redressalcommission new delhi


FIRST APPEAL NO. 430 OF 2008



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FIRST APPEAL NO. 430 OF 2008

 (From the order dated 17.09.2008 in C-172/1997 of the State Consumer Disputes Redressal Commission, Delhi)

 

M/s. Rainbow International B-239, Vivek Vihar, Delhi



                                                                              …  Appellant

  Versus

M/s. M.M.T.C. Ltd. (Engineering Exports Division), SCOPE Complex, 7, Institutional Area, Lodhi Road, New Delhi- 110003

                              …  Respondent

 BEFORE

HON’BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 For the Appellant

:

Mr. Manoj R. Sinha, Advocate

For the Respondent

:

Mr. Sanat Kumar, Advocate

 

 

 

DATED: 24.07.2014

O R D E R 

JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

 

          The appellant entered into an arrangement/agreement with the respondent MMTC, whereby MMTC was to procure orders for export of scientific equipments by the appellant to Jordan.   A memorandum of understanding dated 06.05.1994 was executed between the parties in this regard whereunder the complainant/appellant was to pay 3% service charges on the F.O.B. value of the products to MMTC, out of the price of the export product realized by it.  The appellant submitted its tender alongwith catalogue etc. to MMTC. for onward transmission to the Ministry of Education, Jordan, which was the overseas buyer in this case.  The complainant/appellant also furnished a performance guarantee dated 22.02.1996 for a sum of Rs. 3,05,000/- to MMTC, for a period of 12 months.  MMTC in turn submitted a performance guarantee to the overseas buyer i.e. Ministry of Education, Jordan.  Since no order was placed with the complainant/appellant through MMTC, there was no occasion for it to supply the scientific equipments through the said agency.  The bank guarantee which the appellant/complainant had furnished to the MMTC was invoked by the said agency.  Claiming that it has made huge investment in procuring the scientific equipment, which it was to supply to Jordan and also aggrieved from the invocation of the bank guarantee, the appellant filed a complaint before the State Commission, Delhi, pleading deficiency in providing service on the part of the MMTC, and seeking the following amounts:-


(i)        Bank Guarantee amount                Rs. 3,05,000/-

(ii)       Bank interest @ 18% p.a. over

Rs. 3,05,000/-                                              Rs. 6000/-

(iii)      Legal notice charges                       Rs. 600/-

(iv)      Damages for financial loss

and mental torture                         Rs. 3,00,000/-

Total                                Rs. 6,11,600/-

 

(2)     The complaint was resisted by the MMTC, inter-alia, on the ground that the transaction between the parties being a commercial transaction, the appellant/complainant was not a consumer within the meaning of the Consumer Protection Act.  It was further stated that the appellant/complainant was directly in touch with the Ministry of Education, Jordan, which was contrary to the terms of the arrangement between the parties and it had succeeded in obtaining a purchase order directly in its name.  It was claimed by the MMTC that the appellant/complainant had suffered damages on account of its own lapses for which the MMTC could not be held responsible. 


(3)     The State Commission vide impugned order dated 30.04.2007, inter-alia, held as under:-

  “10.       The aforesaid conspectus of rival claims and contentions of the parties boils down to a point as to the loss suffered by the complainant towards interest part because of the invocation of Bank guarantee which the OP invoked presumably to reimburse the invocation of Bank guarantee by the Ministry of Education, Jordan.  Since the complainant had availed the services of the OP for procurement of order, the complainant had no business to enter into direct communication with the Ministry of Education Jordan and the question of the Ministry of Education having placed directly order upon the complainant without routing it through the Letter of Credit does not arise.


11.       At the same time the OP-MMTC was not entitled to invoke the Bank Guarantee if it had not procured the order through its services which it did by calling the complainant to furnish Bank Guarantee as the Ministry of Education, Jordan invoked Performance Bank Guarantee  which was more or less an interse dispute  with which the complainant had no concern.

12.       Taking over all view of the matter, particularly the limited deficiency on the part of the OP in not procuring order and invoking the Bank Guarantee is towards the loss of interest that was suffered by the complainant.  In our view for the aforesaid limited deficiency by directing the OP to refund the interest amount of the Bank Guarantee which was wrongly invoked from the date of invocation till the filing of the complaint shall meet the ends of justice.”

 

          It would thus be seen that not only did the State Commission accept the plea of the appellant/complainant that it was a consumer within the meaning of Consumer Protection Act, it also held that MMTC was not entitled to invoke the bank guarantee since no order has been procured by it for the complainant.  The aforesaid act of MMTC was held to be limited deficiency on the part of the said agency in procuring order and invoking bank guarantee leading to loss of interest suffered by the complainant.


(4)     The respondent MMTC has not challenged any of the finding returned by the State Commission.  It has not challenged the finding that the appellant/complainant was a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act; it did not challenge the finding that it was not entitled to invoke the bank guarantee as it had not procured any order for the complainant; it did not challenge the finding that there was limited deficiency on its part not only in invoking the bank guarantee but also in not procuring the order.  Therefore, the aforesaid findings of the State Commission have become final and can not be reopined into by us in the present appeal.

(5)     The learned counsel for the respondent submits that they did not challenge the findings of the State Commission either by filing an appeal or by filing cross objections as the State Commission had found only limited deficiency and only the interest on the amount of the bank guarantee was awarded.  The learned counsel wants us to go again into the question as to whether invocation of the bank guarantee was justified or not and whether MMTC can be blamed for not procuring the order for the complainant or not.  However, considering that the aforesaid findings of the State Commission have not been challenged either by filing an appeal or by cross objections, we are not inclined to allow the learned counsel for the respondent MMTC to dispute the said findings at this stage.

(6)     We also notice that the State Commission, despite recording the finding that there was a limited deficiency on the part of the MMTC in not invoking the bank guarantee but also not procuring the order, did not award any compensation to the complainant for the deficiency on the part of MMTC in not procuring the order for the complainant.  As far as the deficiency in invocation of the bank guarantee is concerned, once the State Commission had come to the conclusion that there was a deficiency, though a limited one, on the part of the MMTC, it was required to direct payment not only of the interest on the amount of bank guarantee but all of the principal sum as well.  We fail to appreciate how the State Commission could have declined to direct payment of the principal sum while directing payment of interest on the said sum.  We see no logic in denying the principal sum while awarding interest of that very sum.  Therefore, we can not sustain the order of the State Commission to the extent principal amount of the bank guarantee has been denied to the complainant/appellant.  Accordingly, we allow the appeal by directing the respondent MMTC to refund not only the principal amount of Rs. 3,05,000/- which it had recovered by invoking the bank guarantee but also the interest on the said amount. 

(7)     Mr. Sanat Kumar, Advocate on behalf of respondent requests that the respondent may be permitted to file cross objections.  Considering that this appeal is already more than 6 years old, we are not inclined to entertain the request.

(8)     We find that the order of the State Commission does not indicate as to what was the rate at which the interest was to be paid by MMTC, though in the complaint, the appellant/complainant had claimed interest on the said amount at the rate of 18% per annum.  In the facts and circumstances of the case, we direct MMTC to pay interest on the amount of Rs. 3,05,000/- at the rate of 12% per annum from the date, the money was received by it from the bank, till the date of actual payment to the appellant/complainant.  The appeal stands disposed of. The payment shall be made within six weeks from today, failing which MMTC shall pay interest at the rate of 18% per annum from the date of order till payment. 

  

………………………………


V. K. JAIN, J PRESIDING MEMBER

 

……………………………….



DR. B.C. GUPTA MEMBER

PSM/15


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO.2836 OF 2014
(From the order dated 11-04-2014 in FA No.302 of 2013 of Uttarakhand State Consumer Disputes Redressal Commission at Dehradun)

WITH I.A.No.4672 OF 2014 (For stay)

1.      Sr. Supdt. Of Post Offices Dehradun – 248081

2.      Post Master Sub – Post Office Mayapur, Haridwar

                                                          …..Petitioners

  Versus

1.      Smt. Lavanglata Sharma W/o Sh. Navin Chander Sharma R/o C/o


2.      Navin Chandra Sharma OSD, Central Control Room Kumbh Mela Haridwar

                                                                       …..Respondents

  

BEFORE:

HON’BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER


HON’BLE DR. B.C. GUPTA, MEMBER

 

For the petitioners       : Mr. Dulichand Ahlawat, Advocate with



                                        Mr. J.B. Mudgil, Advocate           

24-07-2014

ORDER

JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

1.      The complainants, Smt. Lavanglata Sharma and Shri Navin Chandra opened a term deposit account with Sub-Post Office, Mayapur, Haridwar and deposited a sum of Rs.50,000/- in the said account on 11-01-2005 for a period of two years. When the complainant submitted the pass-book to the post office on 03-02-2010, they were informed that the maturity amount of Rs.57,488/- had already been withdrawn on 13-03-2008 and the account has been closed. The complainants thereupon entered into repeated correspondence with several authorities of postal department for redressal of their grievance but the said correspondence did not yield any result. Having no other option left with them the complainants filed a complaint before the Haridwar District Consumer Disputes Redressal Forum (for short, the District Forum) on 04-01-2013 i.e. about three years after, the fraud was detected. Vide order dated 28-09-2013, the District Forum holding the post office negligent in rendering services to the complainants, directed it to pay a total sum of Rs.1,00,000/- which comprised Rs.57,488/- towards principal amount; Rs.12,514/- towards interest and Rs.30,000/- towards compensation.

2.      Being aggrieved from the order passed by the District Forum, the petitioners preferred an appeal before the Uttarakhand State Consumer Disputes Redressal Commission (for short, the State Commission). Vide impugned order dated 11-04-2014 the State Commission partly allowed the appeal filed by the petitioners and directed the petitioners to refund Rs.57,488/- to the complainants at the rates applicable to savings bank account for the period from 10-01-2007 till the date of actual payment. However, the direction for payment of Rs.30,000/- as compensation was maintained.

          Being still dissatisfied the petitioners are before us by way of this revision petition.

3.      It is an admitted case that an internal inquiry conducted by the post office had revealed that the maturity amount of the complainants was fraudulently withdrawn in connivance with an official of the post office. An inquiry in this regard was also conducted by the post office and legal and departmental action was initiated. Thus, it can hardly be disputed that it was the post office which was solely responsible for the aforesaid amount disappearing from the account of the complainants.

4.      It is not in dispute that the complainants approached the post office on 03-02-2010. What is painful and agonizing is that for almost three years the post-office did not bother to refund even the maturity amount of the complainants, not to talk of interest on that amount or any compensation to the complainants. Even if the post office wanted to conduct an inquiry, to verify the circumstances in which the money got withdrawn from the account of the complainants that should have been done at best within a few weeks of the complainants bringing the matter to its notice on           03-02-2010. Probably, but for the intervention of the District Forum, the complainants would not have got back even the principal sum they had deposited with the post office. The conduct of the concerned officers of the post office in our opinion has been highly reprehensible and irresponsible. The order passed by the State Commission is the most favourable order which the petitioner could possibly have expected in the facts and circumstances of the case. The complainants had kept their money in a fixed deposit and not in a savings bank account. Therefore, had the money been paid to them on maturity, in all probability, they have invested the same in a fixed deposit, thereby earning interest much higher the interest applicable to savings bank accounts. But that the State Commission had awarded interest only at the rates application to the savings bank accounts. Despite getting such a favourable order from the State Commission, the officers of the post office were not satisfied and chose to challenge the said order, without any justification and at the cost of the exchequer. We do not approve of the way the officers of the post office conducted themselves in the present case. We, therefore, dismiss the revision petition with cost assessed at Rs.25,000/- and direct that the said cost be recovered from the salary of the officers/officials who recommended challenge to the order of the State Commission.

..…………………………..

(V.K. JAIN, J.) PRESIDING MEMBER
……………………………..
(DR. B.C. GUPTA) MEMBER

rk.1


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO.2959-2960 OF 2013

 (From the order dated 17.4.2013 in Appeal Nos.252 & 608 of 2012 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

 

G. Subramania Pillay 21A, 2nd Street, Santhoshpuram,  Balaji Nagar, Chennai-600073



                                                                              … Petitioner

                                  Versus

1.         M. Unnikrishnan, Partner Bagavathy Constructions, Near B.S.N.L., Telecom Centre, Post Office Junction, Chittur-678101 

2.         M. Ananthakrishnan, Partner Bagavathy Constructions, Near B.S.N.L., Telecom Centre, Post Office Junction, Chittur-678101

                                                                    ...  Respondents

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner                  :     In person

For the Respondents           :     Mr. Nishe Rajen Shonker, Advocate

PRONOUNCED ON   24th    JULY, 2014

ORDER

PER SURESH CHANDRA, MEMBER

This revision petition challenges a common order dated 17.4.2013 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in appeal Nos.252/2012 & 608/2012 whereby the State Commission partly allowed the appeal No.252/2012 filed by the respondents/opposite parties and dismissed the other appeal No.608/2012 filed by the petitioner/complainant.

2.       Briefly stated, the facts of this case are that the revision petitioner herein who is the original complainant had entrusted the work of constructing a residential building with a plinth area of 600 sq. ft. @ Rs.750/- per sq. ft. to the respondents/opposite parties on 23.6.2008. As per the agreement between the parties, the construction of the building was to be completed by January, 2009. The opposite parties had also agreed to construct a compound wall at a cost of Rs.20,000/-. The period of construction was extended for another six months in February, 2009. As per the allegation in the complaint, the complainant had paid Rs.6.2 Lakhs against the cost of construction which came to Rs.4.55 Lakhs. Since there was delay in the completion of the construction within the stipulated time, the complainant filed a consumer complaint claiming Rs.1,65,000/- being the excess payment to the opposite parties and Rs.20,000/- for the depreciation of the building and Rs.45,000/- as rental value for 15 months and Rs.60,000/- by way of compensation for the damages with interest.

3.       The opposite parties contested the claim. Both the parties filed their evidence in support of their claims. The District Forum vide its order partly accepted the complaint in terms of the following reliefs: -

 “We direct the opposite parties jointly and severally liable to pay to the complainant an amount of Rs.50,000/- as compensation for mental agony and pay Rs.3,000/- as cost of the proceedings.


Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization”

 

4.       Both the petitioner/complainant and the respondents/opposite parties had challenged the order dated 28.1.2012 passed by the District Forum, Palakkad before the State Commission. While the respondents/opposite parties had approached the State Commission for setting aside of the order of the District Forum, the petitioner/complainant had appealed against the order of the District Forum and prayed for higher compensation.


5.       By its aforesaid impugned common order the State Commission reduced the amount of compensation awarded by the District Forum in favour of the complainant/petitioner from Rs.50,000/- to Rs.30,000/- but confirmed the rest of the order.

6.       Aggrieved of this order of the State Commission, the petitioner/complainant has now filed the present revision petition in which he has prayed for increasing the amount of compensation keeping in view the alleged excess payment of Rs.1,65,000/- made by him to the opposite parties/respondents by setting aside the impugned order and modifying the relief.

7.       We have heard the petitioner who has appeared in person and learned Shri Nishi Rajen Shonker, Advocate for the respondents.

8.       We may note that two points had arisen before the State Commission for consideration, namely, whether the petitioner/complainant has paid excess amount to the respondents/opposite parties and whether the compensation awarded in the matter by the District Forum is excessive. Perusal of the orders of Fora below shows that both the Foras have returned their concurrent finding on the first point and have concluded that the claim of the complainant/petitioner regarding excess amount is not established. Regarding the second point the State Commission has modified the amount of compensation by reducing it from Rs.50,000/- to Rs.30,000/-. The State Commission has passed this order keeping in view the report of the Local Commissioner, terms & conditions of the agreement between the parties and other evidence adduced by them before it. The State Commission has recorded reasons in support of its impugned order. There is no other legal issue involved for our consideration in this revision petition. In the circumstances there is no case for our interference under Section 21 (b) of the Consumer Protection Act, 1986 under which we can interfere with the impugned orders of the Fora below only in case there is jurisdictional error on the part of the Foras below while returning their findings or they have acted in the exercise of their jurisdiction illegally or with material irregularity. Since we find no such instance which would justify our interference with the impugned order, we do not find any merit in this revision petition which is liable for dismissal. The revision petition is, therefore, dismissed but with no order as to cost.

 

………Sd./-………..………..


(AJIT BHARIHOKE, J.)PRESIDING MEMBER

 

……Sd/-…………..………..



(SURESH CHANDRA) MEMBER

Raj/


 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO. 2493 OF 2012

(From the order dated 10.4.2012 in Appeal No.773/2009 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)

 

 



Bajaj Allianz General Insurance Co. Ltd. 1, DLF Industrial Plot 2nd Floor Near Metro Station Moti Nagar Delhi-110015

… Petitioner

  Versus

 

1. Shri Jayantibhai Nathanbhai Monpara



2. Minor Mihir Jayantilal Monpara

LRs. of Late Manishaben Jayantilal Monpara At Post – Jamvadi, Tal. Gondal District Rajkot, Gujarat 

3. The New India Assurance Co. Ltd. Divisional Office Above Bank of India Jubilee Chowk, Rajkot (Gujarat) 

4.Rajkot District Co-op Bank Ltd. At Post Hirak Tal. Gondal Distt. Rajkot, Gujarat 

5. Shri Jamvadi Juth Seva Sah. Mandali At Post Jamvadi, Tal. Gondal Distt. Rajkot, Gujarat

...  Respondents

 BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON'BLE MR. SURESH CHANDRA, MEMBER 

For the Petitioners                : Mr. K.L. Nandwani, Advocate

For the Respondent  Nos. 1,2,4 & 5 :          : Nemo

For the Respondent No.3   : Mr.Sudhir Bisla, Advocate

 Pronounced on :  24th  July, 2014 





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