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Subha Sinha v Duncans Industries

29-Dec-09

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLKATA, UNIT-II

8B, Nelie Sengupta Sarani, 7th floor, Kolkata – 700 087

Case No.CDF/Unit-II/C.C.No. 1191 of 2008                                             Date of Filing : 23-12-2008

Date of order : 29-12-2009

Complainants :                                                                 Vs.                O.P. /O.P.s

1) Subha Sinha w/o. Chandra Nath Sinha                                                 The Director,

2) Chandra Nath Sinha s/o. Bhupati Ch. Sinha                                          Duncans Industries Ltd.

Both residing at                                                                                     31, Netaji Subhas Road,

GC-202, Ground Floor, Sector-III                                                  P.S. Hare Street,

Salt Lake City, P.O. Purbachal, Kolkata – 700 106.                                  Kolkata-700 001.

Before :      HON’BLE PRESIDENT  :   SHRI S. BHATTACHARYYA

HON’BLE MEMBER :   SHRI S.K.DEB

ORDER

This is a case u/s.12 of the C.P. Act, 1986, as amended upto date alleging deficiency in service from the end of the OP.

This case arises out of the complaint filed on 23-12-2008.  The case of the complainants, in short, is that they invested Rs.5,000/- in two FDR no.203734 in cumulative scheme for 24 months of the OP Company.  The FDR matured on 20-11-2003.

The original FDR was deposited to the OP/Company in the year 05-02-2004.  As the OP Company defaulted to make payment, the complainants approached the respondent company for payment and several letters were also written, but to no effect.  Thereafter, a complaint was lodged in this Forum against the OP on 23-12-2008.  Prayer has been made for giving direction on the OP Company for making payment of the principal amount of Rs.5,000/- along with due interest on contractual rate and post maturity interest for withholding payment till recovered, cost and any other relief or reliefs as the complainants are entitled.

The OP contested the case denying deficiency of service.  According to it the complaint is time barred and the matter is subjudice in the Hon’ble High Court, Calcutta vide C.P. Case No.472 of 2003 and that it is a Sick Industrial Company within the meaning of Clause (o), Sub Section (1) of Section 3 of the Sick Industrial Companies (Special Provision) Act, 1985 (SICA) and a reference has been made to BIFR in terms of provision of Section 15(1) of the Sick Industrial Companies (Special Provision) Act, 1985 (SICA), which was duly registered as Case No.70/2006.  It has submitted that the Company was declared sick by BIFR on 21-02-2007 and the State Bank of India has been appointed as Operating Agency under SICA and directed to formulate a draft rehabilitation scheme.  It has been submitted that there is no deficiency of service on the part of the OP as repayment of the deposit to holder is under judicial process by BIFR.  The matter was heard on 02-12-2009 in presence of both the parties.

The documents as produced were perused and considered along with the respective submissions. Affidavit on Evidence has been filed by the complainant.  The complainants did not lodge any complaint in CLB. Considered the decision reported in I (2004) WBLR (CPNC) – 997.

Decision

The complainants invested Rs.5,000/- in  fixed deposit in their name to the OP/Company.  No portion of the principal amount was paid.  The OP was a reputed company previously and so it is expected that the complainants will wait to see as to how the assurance is honoured, because no one wants to be involved in a litigation.  Moreover, the fixed deposit was lying with the OP.  The Hon’ble West Bengal State Commission has held in the case of Narayan Kr. Khaitan vs. Duncan Industries Ltd. that there will be continuous cause of action as long as the fixed deposit is not repaid in full along with interest to the depositor.  We are, therefore, of the opinion that there was continuous cause of action.  The complaint which was lodged on 23-12-2008 and it is not time barred.

The fixed deposit holders have invested their life savings in F.D. of the OP with the hope that the maturity amount will be helpful to support them at the time of their need.  But their hope was shattered.  OP failed to produce any order of the Hon’ble High Court at Calcutta staying the proceeding of this Forum.  The Hon’ble National Commission has laid down in a ruling reported in 2006-CTJ-1008 that the complaint before District Forum is maintainable in spite of the fact that a reference has been made to the BIFR under provision of SICA, 1985.  Hence, the present complaint is maintainable in the eye of law.

Considering the documents and submissions of respective parties we are of opinion that the OP is liable in deficiency in service in not paying the principal amount as per its own assurance and interest at contractual rate.

Hence,

Ordered

1)      The complaint is allowed against the OP on contest.

2)      The OP shall pay to the complainants a sum of Rs.5,000/-(Rupees five thousand only) being the principal sum to the complainants along with due interest at the contractual rate upto the date of maturity against the FDR in question.  The OP is further directed to pay post maturity interest @ 8% p.a. (at the rate of eight per cent per annum) from the date of maturity till realization.

3)      The complainants are in urgent need of money to support themselves.  In consideration of the above, the OP is further directed to pay compensation of Rs.500/-(Rupees five hundred only) to the complainants for causing harassment, mental agony and dragging them to this Forum.

This order aforesaid is directed to be complied with by the OP within 30(thirty) days on and from the date of communication of this order.

The CDF-II Case No.1191 of 2008 is disposed of on contest.  There will be no order as to cost.

The complainants are directed to serve copy of this order upon the OP for compliance.

Supply copies to the parties free of cost as per rules.

Dictated & Corrected

by me

(MEMBER(M)

MEMBER(M)                                     PRESIDENT

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Suresh Kumar Agrawal v Indo Arya Central Transport

29-Dec-09

Date of filing:-18/05/2009

Date of Order:- 29/12/2009

OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM(COURT)

BARGARH.

CONSUMER COMPLAINT NO. 33 of 2009

Suresh Kumar Agrawal, aged about 44 (forty four) years, son of Late Badriprasad Agrawal, resident of Ward No.6, Naik Para, Bargarh at present residing in the C/o Premachand Beriwal at Bishi Para, Ward No.5, Bargarh, Po/Ps/Dist:- Bargarh.

… … … Complainant.

- V e r s u s -

1)             M/s Indo Arya Central Transport Ltd., 147, Transport Centre, Rohtak Road, New Delhi-110035.

2)             Manager, M/s Indo Arya Central Transport ltd., Bargarh Branch, in front of Mansingh Garage, Bhatli Road, Bargarh, Po/Ps and Dist. Bargarh.

3)             Kopran Pharmaceuticals Ltd., 1076, Dr. E. Moses Road, Worli, Mumbai-400018.

4)             Kopran Ltd., 1076, Dr. E. Moses Road, Worli, Mumbai-400018.

… … … Opposite Parties.

Counsel for the Parties:-

For the Complainant:-                                     Sri D. Mishra, Advocate with others Advocates

For the Opposite Party No.2(two) :-               Sri H. P. Agrawal, Advocate with other Advocates.

For the Opposite No.1(one)

No.3(three) and No.4(four):-                           Ex-parte.

-: P R E S E N T :-

Sri Gouri Shankar Pradhan ….. ….. ….. ….. ….. ….. ….. P r e s i d e n t.

Sri Binod Kumar Pati ….. ….. ….. ….. ….. ….. ….. M e m b e r.

Miss Bhagyalaxmi Dora ….. ….. ….. ….. ….. ….. ….. M e m b e r.

Dt.29/12/2009 -:                         J U D G E M E N T :-

Presented by Sri B.K.Pati, Member .

The present complaint pertains to deficiency of service as envisaged under the provision of Consumer Protection Act-1986 and brief fact and as follows:-

The Complainant, a dealer in cosmetic items working for the Opposite Party No.3(three) and No.4(four) had booked some short expiry and non saleable items to the Opposite Party No.3(three) and No.4(four) KOPRAN worth Rs.2,42,854.86/-(Rupees two lac forty two thousand eight hundred fifty four and eighty six paise)only with Opposite Party No.1(one) through Opposite Party No.2(two), its branch office at Bargarh on Dt.28/06/2006. The goods was to be delivered to KOPRAN on door delivery basis and accordingly the consignment note was issued by the Opposite Party No.2(two). After a pretty long time when the Complainant found the value of the goods so return by him has not been credited to his account by Kopran, he started inquiry. The Opposite Party No.1(one) vide its letter Dt.28/11/2007 informed that the said consignment was still lying with it, asking the Complainant to take delivery of the consignment sent to Kopran paying its dues and charges or it would be sold away. The Complainant informed the Opposite Party No.1(one) with a copy of the letter to Opposite Party No.2(two), that the consignment was issued door delivery basis and that it should have been delivered to the Consignee/Kopran at its place and that it is the Opposite Party No.1(one) who is responsible for the wastage of the goods worth Rs. 2,50,000/-(Rupees two lac fifty thousand)only. The Complainant has not yet received any communication from the Opposite Party No.1(one) about the fate of consignment and the value of the goods has not yet been credited to his account by Kopran. This amounts to gross negligence and deficiency of service by Opposite Party No.1(one) and No.2(two) towards the Complainant for which the Complainant claims Rs. 2,42,854.86/-(Rupees two lac forty two thousand eight hundred fifty four and eighty six paise)only the value of the goods, including interest over the same and Rs.50,000/-(Rupees fifty thousand)only towards mental agony and harassment along with litigation expenses.

The Opposite Party No.2(two) in its version contends that the Complainant doe not state that he had sent the original consignee copy to the consignee to take delivery of the goods. The goods sent were returned as (certain cosmetic and others semi perishable value goods/ expired cum rejected returned goods having no commercial value), the consignment on door delivery against “To pay” freight and original consignee copy of the consignment at destination. The consignee was contacted for door delivery on payment of the freight and production of the original consignee copy but the consignee, Opposite Party No.4(four) declined to do so and his staff questioned as to whether the consignee has granted any prior authority or certificate to the transporter Opposite parties to do so. In fact, the Consigner/Complainant had not given any such certificate or authority of the consignee to this Opposite Party transporter. The Consigneer was contacted but did not take any steps to take delivery of the goods and the goods remain in the godown, the same being semi perishable having no commercial value. As a result the Opposite Parties transporter were constrained to dispose of the same at the risk cost and consequences of the Consigner/Complainant. In the circumstances no case has been made out against the Opposite Parties/transporter by the Complainant and the complaint is liable to be dismissed with cost.

Opposite Party No.1(one), No.3(three) and No.4(four) have been set ex-parte.

Perused the complaint petition, Opposite Party’s version as well as the copy of documents filed by the parties and find as follows:-

The Opposite Party No.2(two) which is the local branch of the transporting company in its version admits the receipt of the consignee goods at destination. It takes the plea that the consignee/Opposite Party No.4(four) on contact for door delivery declined to pay the freight and produce the original consignee copy and also it did not take any step to take delivery of the goods and consequently the goods were kept in the gowdown and ultimately disposed of the same at the risk/cost of the consigneer/Complainant as the Complainant did not take delivery of the goods even after being contacted. Admittedly the goods was consigned on Dt.28/06/2006 for door delivery to the consignee at Bhiwandi. But the Opposite Party transport company has intimated the Compainant/Consigner about the non-delivery of the goods and to take immediate delivery thereof vide its letter Dt.28/11/2007 i.e. after an expiry of eighteen months from the date of consignment. This amounts to negligence and deficiency of service on the part of the Opposite Parties/transport company towards the Complainant. The copy of way bill which is a government document states the value of the goods to be Rs. 2,42,854.86/-(Rupees two lac forty two thousand eight hundred fifty four and eighty six paise) only. Naturally the Opposite Parties transport company is liable to make good the loss of the aforesaid amount to the Complainant.

No relief has been sought against Opposite Party No.3(thee) and No.4(four) who are the consignee Opposite Parties.

In the result, the Opposite Party No.1(one) and No.2(two) are directed, jointly and severally, to pay to the Complainant Rs. 2,42,854.86/-(Rupees two lac forty two thousand eight hundred fifty four and eighty six paise) only along with interest @ 9%(nine percent) interest per annum over the amount chargeable w.e.f. Dt.28/06/2006 to the date of this Order towards the cost of the goods/consigned, and Rs.5,000/-(Rupees five thousand) only towards cost/compensation within thirty days hence, failing which the entire amount shall carry 18%(eighteen percent) interest per annum till payment.

Complaint allowed accordingly.

Typed to my dictation

and corrected by me.

Sd/-

I agree,                                     I agree,                                    (Sri Binod Kumar Pati)

Sd/-                                        Sd/-                                                M e m b e r.

(Sri Gouri Shankar Pradhan)     (Miss Bhagyalaxmi Dora)

P r e s i d e n t.                               Member.

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Dullav Meher v National Insurance

29-Dec-09

Date of filing:- Dt.15/04/2009.

Date of Order:- Dt.29/12/2009.

OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM(COURT)

BARGARH.

CONSUMER COMPLAINT NO. 23 of 2009

Dullav Meher, S/o Jadu Meher, aged about 45(forty five) years, Occupation- Cultivation, R/o Barpali, Ward No.8(eight), Po/Ps/Tah. Barpali, Dist. Bargarh..

… … … Complainant.

- V e r s u s -

1)             Branch Manager, National Insurance Company Limited, Bargarh Branch Office, at- Canal Avenue, Bargarh-768028.

2)             Zonal Manager, National Insurance Company Limited, Regd and Head Office,3, Middleton Streat , Kolkata-700071.

… … … Opposite Parties.

Counsel for the Parties:-

For the Complainant:-                               Sri B. Behera, Advocate with other Advocates.

For the Opposite Parties:-                         Sri Hadu Dash, Advocate.

-: P R E S E N T :-

Sri Gouri Shankar Pradhan ….. ….. ….. ….. ….. ….. ….. P r e s i d e n t.

Sri Binod Kumar Pati ….. ….. ….. ….. ….. ….. ….. M e m b e r.

Miss Bhagyalaxmi Dora ….. ….. ….. ….. ….. ….. ….. M e m b e r.

Dt.29/12/2009. -:                                 J U D G E M E N T :-

Presented by Sri G.S. Pradhan, President:-

Brief fact of the case is that, the Complainant, a cultivator had insured his tractor and trailor bearing Regd. No. OR-17-D-2485 and OR-17-D-2486 with the Opposite Parties company vide policy No. 163483 /31 /86 /6388881157 by paying the required premium separately for the tractor and trailor and never defaulted in payment of premium. On Dt.11/10/2006 while the tractor and trailor was kept in front of the house of the Complainant the tractor was stolen and could not be traced out. The Complainant lodged complaint in the Barpali Police Station vide P.S. Case No.95 Dt.12/10/2006 while police submitted final report. As the trailor could not be trace out by the police, the Complainant filed insurance claim for the trailor before the Opposite Party No.1(one) who at the instant case opined the claim to be genuine one but deferred payment on some pretext or other and finally repudiated the claim on Dt.19/09/2007 on the ground that the trailor is a part of tractor and insurance can not be claimed for the theft of trailor only, which amounts to deficiency of service by the Opposite Parties towards the Complainant. The Complainant claims from the Opposite Parties Rs.64,888/-(Rupees sixty four thousand eighty hundred eighty eight)only towards the cost of the trailor, Rs.30,000/-(Rupees thirty thousand) only towards mental agony and Rs.5,112/-(Rupees five thousand one hundred twelve) only towards cost of the litigation.

The Opposite Parties in their joint version plead that the Opposite Party No.2(two), not being a necessary party be expunged from the proceeding. The Opposite Parties say that the policy number of the insurance stated by the Complainant is wrong. The Opposite Parties contend that the company shall not be liable to make any payment in respect of loss or damage accessories by burglary, house breaking or theft unless such insured vehicle is stolen at the same time. Since the claim is only for trolley, the claim is not admissible. This condition is as per section 1,2(a) of commercial vehicle package policy, under which the Complainant’s policy was issued. Hence the claim of the Complainant is liable to be dismissed.

Perused the Complainant’s petition, Opposite Parties’s version as well as the copies of documents filed by the Party and find as follows:-

The insurance of the tractor and the trailer by the Opposite Party company vide policy No. 163403 /31 /86 /630001157 is admitted. The Opposite Parties repudiated the claim on the solitary ground that as per their policy condition Under Section 1,2(a), the company shall not be liable to make payment in respect of theft unless such insured vehicle is stolen at the same time.

The schedule of premium under the policy package in question clearly mentioned that separate premium has been charged and received by the Opposite Party company in respect of the trailor and now denying the claim for the insured trailor on the ground that the tractor was not stolen along with the trailor, is against the principles of natural justice and equity. It also violates constitutional propriety and against the avowed public policy of affording justice under various sections of the fundamental rights particularly Under Section 14, that guarantees equality of treatment in equal position.

The above fact compels the Forum to conclude that the Opposite Parties by repudiating the insurance claim of the Complainant in respect of the stolen trailor, have committed deficiency of service towards the Complainant.

In the result, the Opposite Parties are directed jointly and severally to pay to the Complainant the claim amount of Rs.64,888/-(Rupees forty four thousand eighty hundred eighty eight) only towards the cost of the trailor with 9%(nine percent) interest per annum chargeable w.e.f. Dt.19/09/2007, the date of repudiation of the claim till the date of this Order and Rs.5,000/-(Rupees five thousand) only towards cost, compensation, with in thirty days hence failing which both the amount shall carry 18%(eighteen percent) interest per annum till payment.

Typed to my dictation

and corrected by me.

Sd/-

Sri Gouri Shankar Pradhan,

I agree,                                       I agree,                                         P r e s i d e n t.

Sd-                                               Sd/

Miss Bhagya Laxmi Dora,             Sri Binod Kumar Pati,

M e m e b r.                                   M e m b e r.

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Alok Krmar Ghosh v Orinetal Insurance

29-Dec-09

CDRF, Unit-I, Kolkata

CDF, Unit-I, Kolkata, 8B, Nelie Sengupta Sarani, 4th Floor, Kolkata-87.

consumer case(CC) No. CC/08/169

Alok Krmar Ghosh
………..Appellant(s)

Vs.

Orinetal Insurance Co. Ltd. and 4 others
………..Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

OppositeParty/Respondent(s):

OppositeParty/Respondent(s):

ORDER

In  the  Court  of  the

Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, Kolkata-700087.

CDF/Unit-I/Case No.  169 / 2008

1)           Sri Alok Kumar Ghosh,

S/o. Late Subodh Kumar Ghosh, 42/82, New Ba!lygunge Road,

Kolkata-39, P.S. Kasba.                                                      ———- Complainant

—Verses—

1)           Oriental Insurance Company,

The Divisional Manager, Div-VI, Kolkata, Everest House,

2F, 46C, Chowringee Road, Kol-71, P.S. Shakespeare Sarani.

2)           Oriental Insurance Company,

The Senior Divisional Manager, Div-III, Kolkata,

Thapar House, 25, Biplabi Trailokya Maharaj Sarani,

Kolkata–700 001, P.S. Hare Street.

3)           Oriental Insurance Company,

Regional Manager, Div-VI, Kolkata,

4, Lyons Range, Kolkata-700 001, P.S. Hare Street.

4)           The Finance Officer, Jadavpur University,

186, Raja S.C. Muilick Road, Jadavpur,

Kolkata-700 032, P.S. Jadavpur.

5)           Paramount Health Services Ltd.,

ICMARD Building, 8th Floor,

14/2, C.I.T. Road, Scheme-VIII M, Ultadanga, Kolkata-67    ———- Opposite Party

Present :  Sri S. K. Majumdar, President.

Sri T.K. Bhattachatya, Member.

Order No.     1 4       Dated  2 9 / 1 2 / 2 0 0 9 .

The present case filed by the complainant Alok Kr. Ghosh on 27.5.08 against the o.p. oriental Insurance Co. and two others praying for issuing direction upon the o.p. no.1 Oriental Insurance Co. to pay a sum of Rs.166544/- and compensation of Rs.1 lakh and litigation cost of Rs.1 lakh.

Fact of the case in short is that the complainant for himself and his son andsife obtained Group Mediclaim Policy being policy no.PHS-01 KOL 6681216 JUY, 01 KOL 6681 217 JUY, 01 KOL 6681 218 JUY respectively through the o.p. no.4, the Finance Officer Jadavpur University from 1.3.1999 renewable every year. O.p. no.2 accepted his proposal and the complainant disclosed all material facts that the complainant was carrying a pace maker as per advice of the doctor which was implanted on 4.1.1992. The policy was renewed and o.p. no.2 assured insurance coverage to the extent of Rs.2 lakhs for the complainant, Rs.2 lakhs for his wife and Rs.1 lakh for his son and it was a cashless policy for all the times.

According to the advice of the doctor he had to undergo replacement of pace maker during the period from 2.7.07 to 5.7.07 at Woodland Nursing Home and incurred expenses to the extent of Rs.183944.85 including the cost of pace maker. He is a beneficiary under CHNHB Association now merged with GIC wherefrom he realized the part amount of Rs.17400/-. But most arbitrarily o.p. no.2 did not reimburse  the amount in favour of the nursing home in spite of repeated demands and the complainant accordingly had to pay in cash to the nursing home and the pace maker company. He submitted all his necessary documents to o.p. no.5 (TPA) through o.p. no.4 on 15.8.07. He informed all about the facts to the o.p. nos.4 and 5 but they repudiated his claim on the plea of pre existing disease. O.p. no.2 also most arbitrarily and illegally repudiated his claim which amounts to deficiency of service and finding no other alternative he has filed this case against the o.ps.

On 4.8.08 o.ps. by filing a written statement have contested this case, contending interalia that the case is not maintainable in its present form and law and they have thoroughly denied the allegations of deficiency of service on their part. They have admitted that the complainant is the insured and the o.p. Oriental Insurance Co. is the insurer of the complainant and submitted the claim for reimbursement of the medical expenses incurred by him for his medical treatment for the replacement of pace maker implanted in 1992 in his chest long before the inception of the insurance policy and they have repudiated his claim on the ground of pre existing disease and according to the mediclaim the insurance company can take into account provided “the renewals have been continuous and without any break” and accordingly, the claim of the complainant is not admissible and payable under the policy-conditions. They have alleged that it is the wrong interpretation that the insurance company accepted his premium knowingly the implantation of his pace maker. He also discontinued his policy for 2004-05 but re-entered from 1.3.05. The Oriental Insurance Co. has given him continuity benefit of the existing group mediclaim and his claim for hospitalization etc. and they have also alleged as the disease is pre existing, therefore repudiation is justifiable and as CHNHBA has already been given the requisite reimbursement against the claim any other claim showing the same policy is unjustified and accordingly it falls within the exclusion clause no.4.1 and accordingly, the claim of the complainant is liable to be dismissed.

Decision with reasons : -

It appears on perusal of the record that on 11.8.08 this forum passed an order directing the o.ps. to make payment a sum of Rs.166544/- and Rs.5000/- as compensation and litigation cost of Rs.1000/- and unpaid cost of Rs.8000/- vide order dt.4.8.08. An appeal was preferred against the impugned order passed by this forum wherein the Hon’ble State Commission has been pleased to set aside the impugned order of this forum and allowed the appeal with a direction to proceed and decide the case considering the evidence of both the parties because it appears that both the parties submitted their pleadings and BNA but did not adduce any evidence.

The complainant on 13.4.09 has filed his evidence on affidavit wherein he has stated about the facts which has been impleaded in his petition of complaint with regard to his mediclaim and payment of the same and implantation of pace maker and repudiation of his claim by the o.ps. on the ground of pre existing disease. The o.ps. have also filed their evidence on affidavit on 18.4.09 wherein the agreement entered between Jadavpur University for continuation of group mediclaim policy of the university with the o.ps. dt.17.2.05 and the terms and conditions of the policy w.e.f. 1.3.08 as modified on 22.1.08 and they have also taken into consideration of repudiation of mediclaim on the basis of the letter dt.8.4.08 of TPA Paramount Health Services Pvt. Ltd. and reply of Jadavpur University.

In view of adducing evidence by both the parties the conditions of observations laid down by the Hon’ble State Commission in their order has been complied with. Either of the parties did not file any questionnaire and accordingly, the question of giving reply against the questionnaire does not arise at all. We have perused he documents filed by both the parties viz. the policy, exhibit-1 and realization part amount ofRs.17400/- by the complainant from CHNHB exhibit-1 and the letter of repudiation on the plea of pre existing disease, exhibit-3 etc. O.p. no.4 has only filed w/v.

Admittedly, the petitioner is a policy holder of the mediclaim as referred to herein above and further admitted position is that he replaced the pace maker on the advice of the doctor. Only claim of the o.ps. is that as the disease is pre existing they repudiated the claim. It is now a settled principle of law as the mended given by the Apex Court of India that the plea of pre existing disease is no ground for repudiation of mediclaim.

Implantation of pace maker to the complainant as he was suffering from heart disease is known to the o.ps. It is not understood that why the o.ps. did not inform the complainant that claim for change of pace maker is neither permissible nor acceptable to the o.p. Petitioner’s claim is that as the pace maker was required to be changed as it was not functioning properly and on that point his claim is not unjustified. We have also perused the memorandum of understanding (MOU). Apex Court of India has decided that Public Sector Insurance Co. cannot refuse to provide mediclaim cover policies on the ground of pre existing disease and if it is so denied it amounts to illegal and unconstitutional activity. In view of this position, we find merit in the case of the complainant and as such, complainant is entitled to get relief as ordered hereunder.

Hence,

Ordered,

That the o.ps. are directed to make payment of Rs.1,66,544/- (Rupees one lakh sixty six thousand five hundred forty four) only to the complainant as cost incurred by the policy holder for implantation of the pace maker. The o.ps. are also directed to pay Rs.15,000/- (Rupees fifteen thousand) only as compensation and cost of Rs.5000/- (Rupees five thousand) only. The o.ps. are also directed to pay unpaid cost of Rs.8000/- (Rupees eight thousand) only in terms of the previous order dt.4.8.08 passed by this forum. So, the grand total of Rs.1,94,544/- (Rupees one lakh ninety four thousand five hundred forty four) only must have to be paid by the o.ps. positively within thirty days from the date of communication of this order, failing which it will carry interest @ 10% p.a. till full realization. Fees paid are correct.

Supply certified copy of this order to the parties on payment of prescribed fees.

____Sd-______                                                _____Sd-_______

MEMBER                                                       PRESIDENT

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Rampal Singh v BSES Yamuna Power

29-Dec-09

CONSUMER DISPUTES REDRESSAL FORUM, DISTRICT NORTH-EAST

D.C. OFFICE COMPLEX, NAND NAGRI, DELHI

No.150/08

Sh.Rampal Singh

B-274, Kabir Nagar,

Shahdara,

Delhi-93                                              :        Complainant.

Versus

BSES Yamuna Power Ltd.

Distt. Nand Nagri, Tahirpur,

Shahdara, Delhi.                                  :        Opposite Party

Order

Shri U.C.Tiwari, President

According to the complainant, he had obtained an electric connection  1260V485 0171 for commercial purposes and for a load of 0.50 kw after completing commercial formalities. The OP had installed meter no. 12356410 against the above noted electric connection and the OP has raised the bill upto the reading 6111 corrected and there after the bill was raised upto there reading 6730 and subsequent bill was raised upto the reading 6896 and in this way 619 units were added twice.  The OP did not withdraw the consumption of 619 units which were added into subsequent bills.    Not only this an inspection was carried out on the premises on 6.3.2007 by the officials who were not competent to inspect and report regarding misuse of electric connection as the designation of this official was AG-3.  The official of the company had sent a show cause notice dated 22.3.2007 alleging therein the commercial  connection is being used for industrial purposes.  This allegation is wrong, frivolous and vexatious  as no industry was going on but only machinery was lying in the premises as unusable and the premises was used only as godown.  In response to the above show cause notice, a reply was delivered on 3.4.2007 requesting therein that the premises may kindly be got rechecked to verify the facts stated in the reply by

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the complainant and it was also requested to withdraw the show cause notice.  The photocopy of the reply is attached herewith as Annexure-‘A’.  The OP neither reinspected  the premises nor withdraw the show cause notice but the provisional order of assessment were passed and convey to the complainant vide letter dated 1.5.2007.   It was also admitted in the said order that the inspecting official was Shri Surender Kumar and having the designation as AG-III.  The photocopy of the order dated 1.5.2007 is attached herewith as Annexure-‘B’.  The reply to this order dated 1.5.2007 was personally delivered in the tariff affiliation cell of the company on 15.5.2007 whereby OP was again requested not to raise the bill on the basis of the inspection dated 6.3.2007.  The photocopy of the reply is attached herewith as Annexure-C.   Instead of withdrawing the illegal demand, the OP had sent the disconnection notice dated 16.7.2007 for Rs.18447/- it was also directed in case the complainant wish to provide any clarification then contact Shri Dilip Aggarwal Commercial Officer on any working day.  The photocopy of the said disconnection notice as Annexure-D. The complainant had contacted Shri Aggarwal Commercial Officer and he has directed to pay a sum of Rs.2000/- in case he wants to get his bill corrected.  The complainant did not made the payment and therefore the bill of the complainant was not corrected.  That at the instance of the above said officer, the supply of the complainant electric connection of the complainant was disconnected on 8.1.2008.  The photocopy of disconnection is attached herewith as Annexure-E.   The complainant was not option but to make the payment of Rs.10000/- on 7.2.2008 to get the supply restored.  The official of the OP are again visited the premises of the complainant to disconnect the supply due to non payment of the balance amount.  Hence, the present complaint is filed by the complainant who prayed to draw the cost of 619 units charged two times in two subsequent bills.  Direct the OP not to withdraw misuse charges levied on the basis on inspection dated 6.3.2007.  Direct the OP to withdraw amount of late payment surcharges and also prayed for Rs.5000/- compensation for physical harassment & mental agony and Rs.5000/- cost of litigation.

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On filing of the complaint, notice was issued to the OP who filed his WS and alleged that K.No.1260V4850171 is registered in the  name of complainant residing at B-274, Kabir Nagar, Delhi which was sanctioned for non-domestic purpose i.e. commercial purpose only, and on inspection, it was found that the connected load was found at  2.678 KW instead of sanctioned load 0.50 kw and the connection sanctioned for commercial category was being used for industrial purpose.  It is also submitted that complainant is not a consumer under section 2(1) (d) (i) & (ii) of the Consumer Protection Act, 1986.  Because the connection regarding which the complaint has been filed is of commercial purpose.  Hence this forum has got no jurisdiction to decide the complaint of the complainant.  Further alleged that the show cause notice under Section 126 of Electricity Act was issued as the complainant was found indulging in unauthorized use of Electricity and this Hon’ble Forum as no jurisdiction to entertain the present complaint.  And the reply was filed by the complainant  u/s 126 and detailed order was passed, hence he can only prefer an appeal u/s 127 of the Electricity Act.  That is why this forum has got no jurisdiction to decide the case which is referred to Assessing Officer u/s126 of the Electricity Act.  Further, it is contended by OP that it was wrong and denied that OP has raised the bill upto the reading 6111 corrected and thereafter the bill was raised upto there reading 6730 and subsequent bill was raised upto the reading 6896 and in this way 619 units were added twice.  That further submitted that when 619  were not added twice or thrice but only once then the question of the withdrawing the bill by the OP does not arise at all.    The bills issued to the complainant was on the basis of actual reading and tariff which was correct and as per rule.  It is pertinent to mention herein that as per statement of account of the month of December, 2006, bill raised to the complainant till reading 6730 having consumption 619 units and in the month of  February, 2007 till reading 6896 having consumption 785 units, therefore, the contention of the complainant that 619 units were added twice is completely baseless and highly denied.  It is wrong and denied

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that when inspection was carried out on the premises on 6.3.2007 by the official who was not competent to inspect, as such the complaint should be dismissed.

The Complainant has filed  his rejoinder and denied the averments made by the OP in his WS.  The complainant has also filed his formal affidavit in support of his case.

We have heard the arguments of both the parties and gone through the records carefully.  The record shows that it is admitted by the complainant himself that he has filed the complaint regarding the meter which is installed by the OP for commercial purpose.  Therefore, this forum has got no jurisdiction to decide the dispute regarding the billing if any of the commercial connection.  However, if the commercial connection is for livelihood of the complainant, the forum may decide the case being the connection for commercial purpose also.  But here  the complainant has not filed any evidence that his commercial connection is for his livelihood therefore, on this ground  alone, the complaint is liable to be dismissed having no jurisdiction to forum to decide the case.

Besides the above, the inspection of the connection is made by the OP which is also admitted by the complainant and it was found that the commercial meter of the complainant was used for industrial purpose and show cause notice was issued  to the complainant u/s. 126 of the Electricity Act 2003.  It is also admitted by the complainant.  A detailed order has been passed under section 126 of the Electricity Act by Assessing Authority.  It is also admitted by the complainant.  Hence the complainant should prefer and appeal u/s 127 of the Electricity Act, 2003.  He is not entitled to file the complaint before this forum.  Therefore, on this ground also, the forum has got not jurisdiction to decide the case.

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Thus, as we discussed above, we are of the view that the forum has got not jurisdiction to decide the above case.  As such the complaint  is hereby dismissed.

Announced ______   day of __________________, 2009.

(U.C.Tiwari)                            (Asha Kumar)

President                                Member

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