While most Courts and major Tribunals in the country quickly adapted to the new normal and shifted to video hearings in the first phase of the lockdown itself, the Hon'ble National Consumer Disputes Redressal Commission ["NCDRC"] has been slightly slower to adapt and started video hearings of matters only from 15th June, 2020. However, all notices issued on the website of the NCDRC during the lockdown do indicate that litigants / counsels were allowed to mention urgent matters at the residential office of the President, even prior to the video hearings having been initiated.
Further, several counsels have often faced the issue of judgments being reserved by the NCDRC for long duration of time. However, it seems that the lockdown time has been utilized by the Hon'ble Members to clear the backlog and accordingly, over 100 judgments have been pronounced and published on the NCDRC's website during this phase. While most judgments pronounced have been completely factual in nature, below are a list of certain judgments which discussed the laws in consumer matters and may hold a precedential value as well:-
INTERPRETATION OF "CONSUMER" AND "COMMERCIAL PURPOSE"
The Complainant filed a Complaint seeking refund of amount due to delayed possession of flat. Whilst holding the Complainant to be a Consumer as per the definition under the Consumer Protection Act, 1986 ["CPA"], the NCDRC held that merely because the Complainant had bought 2 flats in the same project, does not mean that he has bought the same for investment purpose. The NCDRC reiterated that if the complainant is not in the business of sale of plots / flats, he shall be treated as a consumer.
In a case filed by a student's father against a school for allegedly tampering with his son's report card, the NCDRC, while relying on various Supreme Court precedents, held that for the purpose of standard of teaching and examination etc., recognised educational institution is not a service provider and the student is also not a consumer under the purview of CPA.
The Bench set aside the Order of the State Commission dismissing the Complaint at the threshold by determining the Complainants were not "Consumers" as per CPA. The question whether the car purchased by the Complainants was being used for commercial purpose or for the personal use of its partners required to be established during trial of the Complaint. Thus, the consumer complaint was remitted back to the State Commission to be continued from the same stage.
Respondent No.2 i.e. a security agency submitted that the Complainant, proprietor of a factory for assembling wrist watches had obtained its services for commercial purpose, thus not falling under the definition of Consumer as per CPA. Post reiterating the law laid down by the Hon'ble Supreme Court, the Bench held that the dominant factor for the purpose of deciding whether the services were hired or availed for a commercial purpose or not is the purpose for which the services were hired or availed. If the services were hired or availed for a purpose which forms an integral part of the business of the complainant, it would be difficult to dispute that the services are hired for a commercial purpose. On the other hand, if the services are hired or availed for a purpose which has no direct nexus or connection with the business activity of the complainant, it would be difficult to say that the services are hired or availed for a commercial purpose. As a security agency is not integral for a wrist watch assembling business, the security agency's services could not fall under the purview of commercial purpose.
SCOPE OF POWERS OF NCDRC IN A REVISION PETITION
The Bench held that when there were concurrent findings by the District Commission as well as the State Commission, the question of reassessing facts did not arise in the limited jurisdiction of Revision Petitions. Further, the Bench also followed the decision in Harshad Chiman Lal Modi v. DLF Universal and Anr. [Reported in AIR 2005 SC 4446] and held that the issue of territorial jurisdiction cannot be taken up directly in a Revision Petition and ought to be taken at the earliest possible opportunity.
The Bench reiterated that in case of concurrent findings of the fora below, the NCDRC cannot reassess the facts in a Revision Petition. Further, the Bench also condemned the approach of the Petitioner, a Government Insurance Company, for continuing frivolous litigation for a non-substantial amount, thus increasing the load of the Courts.
The Bench summarily dismissed the Revision Petition whilst following the judgment of the Hon'ble Supreme Court in Karnataka Housing Board v. K.A. Nagamani [Civil Appeal No.4631 of 2019] by holding that a revision petition against an order passed in execution proceedings is not tenable.
MEDICAL NEGLIGENCE AND INSURANCE
The Complainant's husband, who succumbed to a liver disease, was denied the insurance claim amount on the ground of non-disclosure of medical history. The Complainant claimed that the deceased had signed a blank proposal form and had shown all medical reports to the insurance agent, who intentionally did not fill the details of the same. The NCDRC, while following the principles laid down in Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. [Reported in (2009) 8 SCC 316] and Reliance Life Insurance v. Rekhaben Nareshbai Rathod II [Reported in (2019) CPJ 53 (SC)] stated that insurance is governed by the doctrine of uberrima fidei, which postulates that there must be complete good faith on the part of the insured. Thus, the Complainant's contention that the deceased insured signed blank proposal form was not found acceptable by the NCDRC as the insured having signed the proposal form, was bound by the information contained therein. The complaint was accordingly dismissed.
On the question of medical negligence, the Bench held that merely because a patient has not favorably responded or surgery has failed, the doctor cannot be held straightway liable for medical negligence. However, the Respondent No.1, the referring hospital was held liable for deficiency of service for its failure to provide the complete medical record of the patient and was thus directed to pay lump sum of Rs.1,00,000/- to the Petitioners.
BUILDER - BUYER DISPUTES AND RATE OF INTEREST
The Bench held that a buyer cannot claim 18% interest on the defaulted amounts on the ground of maintaining parity with interest being charged by the builder under the agreement. In the absence of any clause in the agreement to that effect, it is the discretion of the NCDRC to award interest keeping in view the facts of each case.
The Bench reduced the interest awarded to the buyer from 9% to 5%, keeping in view of the principles laid down in Ghaziabad Development Authority v. Balbir Singh [Reported in (2004) 5 SCC 65] to state that a person who does not get the unit and refund is ordered, is entitled to higher interest rather than a person who has got the possession of the unit and only delay is to be compensated.
Since the justification given by the Complainants for refusing possession was not found feasible by the Bench, the Respondent Builder was allowed to forfeit the earnest money and return the principal amount with the rate of interest at which the Complainant had availed a loan from the Bank and the rest of the amount with 10% simple interest. The Builder was not allowed to deduct any amounts other than the earnest money, as had been contemplated in the Agreement between the parties. The Bench reiterated the view taken in Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan [Reported in (2019) 5 SCC 725] that such buyer-builder agreements being wholly one sided constitutes an unfair trade practice and, therefore, cannot bind the flat buyer.
While taking the decision passed in Kolkata west International Pvt. Ltd. v. Deva Asis Rudra 11 [Reported in (2019) CPJ29 (SC)] as a precedent, the NCDRC deemed it appropriate to direct the Opposite Party to refund the money with 9% interest, as opposed to the prayer of 18% made by the Complainant.
EXPERT OPINION ON ADMISSION OF COMPLAINTS
The Bench, apart from giving the decision pertaining to the scope of powers of NCDRC in its revisionary jurisdiction, also interpreted scope of Section 13(1)(c) of the CPA i.e. obtaining expert opinion on admission of complaint by District Forum. The Bench held that District Forum is required to obtain the expert opinion only when it is of the opinion that the defects as mentioned in the Complaint could not be ascertained without proper analysis or test of the goods. As in the instant case the Complainant had to visit the service centre of the car 25 times within 3.5 years, there was defect prima facie and no expert opinion was thus required.