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Kuwait Airways Held Responsible for Delay in Goods Delivery: Exploring the Theory of Vicarious Liability of Principal for the Agent’s Actions

by | Jan 13, 2024 | Legal

Kuwait Airways Held Responsible for Delay in Goods Delivery: Exploring the Theory of Vicarious Liability of Principal for the Agent’s Actions

Ordinarily, individuals aren’t held responsible for actions committed by others. Yet, Vicarious Liability allows one to be accountable for another’s conduct based on their relationship. In the context of Kuwait Airways, the airline is bound by its agent’s assurance of delivering goods within a week. However, the actual delivery transpired after one and a half months, leading to a breach of commitment. This instance exemplifies the legal principle of Vicarious Liability, holding Kuwait Airways responsible for the actions of its agent and underscoring the importance of contractual obligations and timely delivery in business relationships.

  Dr Prem Lata, Legal Head VOICE 

  • M/S. Rajasthan Art Emporium Versus Kuwait Airways & Anr
  • Civil Appeal No. 9194 Of 2012&Civil Appeal No. 9106 Of 2012
  • Decided on November 09, 2023. New Delhi NC

    • The facts leading to the above judgment by NC are as hereunder

    The complainant secured a contract with M/s. Williams Sonoma Inc., USA, for the supply of handicraft goods. Urgently, three shipments totalling 1538 packages were dispatched to the consignee, with the airways duly informed on 22.07.1996. The agent assured a 7 day delivery. The consignment, scheduled for Memphis by 31.07.1996, failed to reach its destination. Despite a revised delivery schedule on 05.08.1996, promising delivery on 06.08.1996, the goods did not arrive as scheduled. Even after rescheduling, some cartons remained missing, leading to a significant discrepancy in the consignment’s delivery and causing dissatisfaction with the service provided.

    Referred clauses from Contract act

    Section 188 of the Contract Act “An agent, having an authority to do an act, has authority to do every lawful thing which is necessary in order to do such act.” Section 237 of the Contract Act “When an agent has, without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations.”

    Arguments in Defence by OP Airways:

    Time was not the essence of contract entered into between the parties. The complainant sent the consignment through Kuwait Airways, knowing fully well that it has various stops over at Kuwait, Chicago and Memphis, which would consume a lot of time period to deliver the consignment.

    Commission observed and held- The fax message sent by agent through whom the consignment was booked to be shipped by the airways goes to show that the goods shall be delivered at Kuwait, Chicago and Memphis on 29.07.1996, 31.07.1996 and 31.07.1996. The airways never asserted that the agent lacked authorization or authority to provide the delivery schedule for the consignment. Consequently, the airways is vicariously responsible for the actions of its agent in this matter.

     The following relationships lead to Vicarious Liability:
  • Liability of the Principal for the act of his Agent
  • Liability of the Partners
  • Liability of the Master for the act of his Servant
    •

    Liability of the Principal for the act of his Agent

    When a principal authorizes an agent to carry out an act, the principal becomes liable for the agent’s actions if they are performed within the scope of duties. The determining factor is identifying the party who gave consent for the act to take place.
  • Insurance agents
  • Airlines Agents
  • Agents of Financing companies

    • Liability of the Partners

    For the tort committed by a partner of a firm, in the normal course of business of that partnership, other partners are responsible to the same extent as that of the partner who is in fault. The liability thus arising will be joint and several. General terms of partnership deed make both liable.

    Liability of the Master for the act of his Servant

    The legal principle “He who does an act through another is deemed in law to do it himself” underscores the concept that actions performed by an agent are imputed to the principal. This relationship is typically formed through employment or specific task contracts for the master’s benefit. In instances like Maruti Udyog and its dealers, the relationship is characterized as principle-to-principle, not that of an agent, even though the manufacturer remains liable for manufacturing defects, highlighting the nuanced nature of such legal relationships.

    Law laid down under Workman Compensation Act 1923

    The concept of vicarious liability holds an employer accountable for injuries, damages, or fatalities suffered by a worker during the course of employment. This liability is based on the condition that the incident must ‘arise out of and in the course of employment’. The “Doctrine of Notional Extension of Employer’s Premises”, as demonstrated in the case of Sourashtra Salt Manufacturing Company v Bai Valu Raju (1958 SC 881), further emphasizes the employer’s responsibility, extending the scope of the workplace to include situations that are reasonably connected with the employment, even beyond the physical premises.

    The commencement and termination of employment hinge on the specific circumstances of each case. Employment doesn’t necessarily conclude when the ‘down’ signal is given or when the worker physically departs the workshop. Instead, there exists a notional extension both at the entry and exit points, considering factors such as time and space. This perspective acknowledges that the boundaries of employment extend beyond immediate physical locations and specific signals, recognizing a broader context for the determination of the employment period.

    CCPA has jurisdiction to initiate proceeding suo moto against enterprise

    by | Dec 30, 2023 | Legal

    CCPA has jurisdiction to initiate proceeding suo moto against enterprise

    Case title:

     Cloudtail India Private Limited.Versus Central Consumer Protection Authority 

    CCPA Appeal No. 4 Of 2022

     (Against the Order dated 04/11/2022 in Complaint No. J-25/72/2021 of the CCPA DELHI) 

    CCPA directs Cloudtail India Private Limited to recall 1033 pressure cookers, sold by the company in the country, refunding its price to the consumers, within 45 days and imposed a penalty of Rs.100000/-, for selling the pressure cooker, in violation of Quality Control Order, 2020.

    This is the first order of its kind by CCPA after CP Act 2019 enforced  which has been challenged before the apex consumer commission questioning the jurisdiction of CCPA.Since this is the new entity established under the Act 2019 ,this order holds significant importance. 

    Dr Prem Lata ,Legal Head

    Issue -Mandatory BIS Mark

    Bureau of Indian Standards Act, 2016, issued Notification dated 21.01.2020, making it mandatory for domestic pressure cooker to bear Standard Mark under a licence from Bureau of Indian Standards 

    Facts:

    1. Cloudtail India Private Limited was doing e-commerce through Amazon website and listed ‘Amazon Basics Stainless Steel Outer Lid Pressure Cooker, 4 Litre’ on above website and sold 1033 pressure cookers in India after 01.02.2021. These pressure cookers were manufactured by “Zhejiang Supor Company Limited, Damaiyu Economic Investment Zone, Yuhuan, Taizhou, Zhjiang, China” and bears “European Commission Standard” mark as established in the European Union and were imported into India, prior to issue of the Order.
    2. Central Consumer Protection Authority is a statutory authority constituted under Section 10 of the Consumer Protection Act, 2019 and under the power Section 18 of the Act, issued notice dated 29.11.2021 to the company to show cause as it were selling pressure cooker in violation of the Order, which was liable to be held as defective, violative of consumer right and amounts to unfair trade practice, within the meaning of the Act.
    3. The Cloudtail India Private Limited submitted its reply dated 11.01.2022, stating
    • That the pressure cookers in question were manufactured by “Zhejiang Supor Company Limited, Damaiyu Economic Investment Zone, Yuhuan, Taizhou, Zhjiang, China” and conforms to the “European Commission Standard” mark as established in the European Union Directives-2014/68/EU granted by TUV SUD, valid up to 13.12.2030 and holds a valid certification of conformance
    • That the product is of requisite quality, pre-shipment inspection by a nominated third party inspection agency is carried out and product is imported after satisfaction There was no complaint, related to safety of the pressure cooker, since its introduction in the market.
    • That  import of this product in India was suspended prior to 01.02.2021, i.e. enforcement of the Order. 
    • The Order mandates domestic pressure cooker to bear BIS mark by the manufacturer and is not applicable for an importer.
    • Frequently Asked Questions, as answered by Bureau of Indian Standard (uploaded in February, 2019 and (uploaded on 14.11.2019) clearly provided that if product had been imported to India before last date of implementation or manufactured by domestic manufacturers before the last date of implementation, then such product can be sold
    • The pressure cooker is neither ‘defective’ within the meaning of Section 2(10) nor the appellant has committed any ‘unfair trade practice’ within the meaning of Section 2(47) of the Act. The product meets all objective criteria of Bureau of Indian Standards Act, 2016 and Consumer Protection Act, 2019 and the notice is liable to be discharged.
    • That a Test Report dated 15.02.2022, from Delhi Test House, (a National Accreditation Board for Testing and Calibration Laboratory) and Certificate of the “European Commission Standard” mark as established in the European Union Directives2014/68/EU granted by TUV SUD. T

    Action by CCPA -.

    Authority Called for reports in connection with sold cookers without BIS Mark 

    •  Director General Investigation, vide its report dated 04.07.2022 confirmed that product sold without mark after enforcement of the Order, manufacture, import, sell, distribution, hire, lease, store or exhibit for sale is violative of Section 17 of Bureau of Indian Standards Act, 2016.
    • Department for Promotion of Industry and Internal Trade, vide its report dated. 28.09.2022  confirmed that no such exemption was issued by it, permitting sale of pressure cooker in the country, imported prior to the date of enforcement of the Order, which has no BIS mark.

    Order by CCPA –

    • Central Consumer Protection Authority, vide its order dated 04.11.2022, held that after enforcement of the Order on 01.02.2021, any domestic pressure cooker, offered for sale in India, is required to conform IS 2347 :2017 and if violative ,it is 
    • The pressure cookers which do not conform IS 2347 :2017 are liable to be held as defective within the meaning of Section 2(10) of the Act and violative of the consumer’s right as defined under Section 2(9) of the Act.
    • Admittedly, the appellant had sold 1033 pressure cookers after 01.02.2021, which did not conform IS 2347 :2017. The Cloudtail India Private Limited is directed to recall 1033 pressure cookers, sold by the company in the country, refunding its price to the consumers, within 45 days and a penalty of Rs.100000/-, has been imposed upon it for selling the pressure cooker, in violation of Quality Control Order, 2020

    Hence the present appeal has been filed before Apex Commission (NC) for adjudication 

    Stand of appellant company before NC 

    Company reiterated its stand in appeal as stated above  However appellant company also added Finding of Central Consumer Protection Authority that pressure cooker was ‘defective’ raising presumption due to not having ISI mark is illegal. In any case, violation of Domestic Pressure Cooker (Quality Control) Order, 2020 may attract the provisions of Bureau of Indian Standards Act, 2016 and not the Consumer Protection Act, 2019..

    Analysis by National Commission 

     “consumer rights” as defined under Section 2 (9) includes,—

    1. the right to be protected against the marketing of goods, products or services which are hazardous to life and property;
    2.  (ii) the right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices;
    3.  (iii) the right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices;
    4.  (iv) the right to be heard and to be assured that consumer’s interests will receive due consideration at appropriate fora;
    5.  (v) the right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers; and 
    6. (vi) the right to consumer awareness.

     “defect” as defined under Section 2(10) of the Act is quoted below: 

    “defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression “defective” shall be construed accordingly.”

    Observations by Commission :

    1. Section 16 of the Bureau of Indian Standards Act, 2016 directs compulsory use of standard mark. Since the Quality Control Order, 2020 has been enforced, then it has become compulsory for using the standard mark. In spite of the fact that it bears the European Commission Standard Marks or in any subsequent test report it has satisfied the norms of Bureau of Indian Standard. The right of the consumer has also to be looked into. The consumer has right to purchase the product bearing BIS mark only after 01.02.2021. If BIS mark is not fixed or certified and the product is sold then the right of the consumer has been violated and   Standard mark after enforcement of the Domestic Pressure Cooker (Quality Control) Order, 2020, it was mandatory.

    Supreme Court verdict  

    Various earlier judgments on the issue :

    Sumat Prasad Jain vs. Sheojanam Prasad (Dead) & Ors (1973) 1 SCC 56

    Delhi High Court in Bottled Water Processor Association vs. Union of Inida, 2010 SCC Online Delhi 2038 and Andhra Pradesh High Court in Sri Seetharamanjaneya Swamyvari Seva Sangam vs. Superintending Engineer, APSPDCL, 2015 SCC Online Hyd. 335 

    Above judgments  Highlighted the significance of BIS standards and held that people at large will be put to risk and public interest would be jeopardised if the safety standards are not complied with.

    CCPA holds power under Section 18 of the Consumer Protection Act, 2019 and  Authority can exercise its power suo moto and to protect the consumers’ interest it can pass any suitable order. It cannot be said that it was without jurisdiction.

    No procedural irregularity is found in passing the order by CCPA After initiation of the proceeding, report dated 04.07.2022 has been obtained from Director General (Investigation). The appellant has been given full opportunity of hearing by giving  the notice as well as the report.

    Order by CCPA confirmed

    How to Choose the Best Mutual Fund for Investment

    How to Choose the Best Mutual Fund for Investment

    by | Dec 17, 2023 | mutual-funds

    How to Choose the Best Mutual Fund for Investment

    The popularity of investing in mutual funds has been steadily growing in India as individuals aim to achieve their financial goals and grow their wealth. Mutual funds offer a professionally managed and diversified investment option, which can be instrumental in building wealth over time. However, with a vast array of mutual funds available in the market, selecting the best one can be a daunting task. In this comprehensive guide, we will explore the key factors to consider when choosing the ideal mutual fund for your investment needs in India.

                                                                                                                             Subas Tiwari

    Understanding Mutual Funds

    Before embarking on the selection process, it is essential to have a clear understanding of what mutual funds are and how they operate. A mutual fund is essentially a pool of funds collected from numerous investors with the objective of investing in a diversified portfolio of assets, which may include stocks, bonds, or other securities. These funds are managed by professional fund managers who make investment decisions on behalf of the investors.

    Mutual funds offer various advantages, including diversification, professional management, liquidity, and accessibility, making them an appealing choice for both novice and experienced investors. However, it is important to acknowledge that not all mutual funds are created equal, and choosing the right one is crucial for achieving your financial goals.

    Determine Your Investment Goals and Risk Tolerance

    The first step in selecting the best mutual fund for investment is to define your financial goals and ascertain your risk tolerance. Your investment objectives will dictate the type of mutual funds that align with your needs. Here are some common investment goals and the types of mutual funds that are suitable for them:

    1. Wealth Creation (Long-Term Growth): In this scenario, Equity Mutual Funds are appropriate. These funds primarily invest in stocks and are well-suited for investors with a long-term horizon (typically five years or more). They offer the potential for higher returns but come with higher volatility.
    2. Capital Preservation (Low Risk): If your objective is capital preservation with low risk, Debt Mutual Funds are the right choice. These funds invest in fixed-income securities like government bonds, corporate bonds, and money market instruments. They are relatively less risky and are ideal for conservative investors looking for stable returns.
    3. Income Generation (Regular Income): Hybrid Mutual Funds, also known as balanced funds, are suitable for those seeking regular income and capital appreciation. These funds invest in a combination of equity and debt instruments.
    4. Tax Saving: For tax-saving purposes, consider ELSS (Equity Linked Savings Scheme) Mutual Funds. ELSS funds offer tax benefits under Section 80C of the Income Tax Act and predominantly invest in equities. They come with a lock-in period of three years.

    Understanding your risk tolerance is equally important. Your risk tolerance depends on factors such as your age, financial situation, and your willingness to endure market fluctuations. Generally, younger investors with a longer investment horizon can afford to take on more risk, while older investors may prefer more conservative options.

    Evaluate Fund Performance

    Once you’ve identified your investment goals and assessed your risk tolerance, the next step is to evaluate the performance of mutual funds. Past performance can offer insights into how a fund has historically performed, but it should not be the sole basis for your decision. Here are some key factors to consider when evaluating fund performance:

    1. Historical Returns: Examine the fund’s historical returns over different timeframes, including one year, three years, five years, and ten years. Compare these returns to relevant benchmark indices to gauge how well the fund has performed.
    2. Risk-Adjusted Returns: Take risk-adjusted measures like the Sharpe ratio and the Sortino ratio into account. These metrics consider the level of risk a fund has taken to generate its returns, with a higher ratio indicating better risk-adjusted performance.
    3. Consistency: Look for funds that have demonstrated consistent performance over multiple market cycles. Funds that consistently outperform their peers may be a good choice.
    4. Fund Manager’s Track Record: Assess the track record and experience of the fund manager. A skilled and experienced fund manager can significantly impact a fund’s success.
    5. Expense Ratio: Pay attention to the fund’s expense ratio, which represents the annual fees and charges deducted from the fund’s assets. Lower expense ratios can translate to higher returns for investors.

    Understand Fund Categories and Objectives

    Mutual funds are categorized into various types based on their investment objectives and asset allocation. Understanding these categories can help you narrow down your options. Here are some common mutual fund categories in India:

    Equity Funds

    1. Large-Cap Funds: These funds invest in large-cap stocks.
    2. Mid-Cap Funds: Focus on mid-sized companies.
    3. Small-Cap Funds: Invest in small-cap stocks.
    4. Sectoral Funds: Concentrate on specific sectors like technology, banking, or healthcare.

    Debt Funds

    1. Liquid Funds: Invest in very short-term debt instruments for liquidity.
    2. Income Funds: Focus on generating regular income.
    3. Gilt Funds: Invest in government securities for stability.
    4. Credit Risk Funds: Invest in lower-rated corporate bonds for potentially higher returns.

    Hybrid Funds

    1. Balanced Funds: Maintain a balance between equity and debt.
    2. Aggressive Hybrid Funds: Have a higher allocation to equities.
    3. Conservative Hybrid Funds: Have a higher allocation to debt.

    Other Funds

    1. Index Funds: Mirror the performance of a specific market index.
    2. Fund of Funds: Invest in other mutual funds.
    3. International Funds: Invest in foreign markets.

    Understanding the category and objective of a fund will help you align it with your investment goals. For example, if you want exposure to international markets, you may consider international funds, while if you seek regular income, income funds may be more suitable.

    Assess Fund Size and Asset under Management (AUM)

    The size of a mutual fund and its assets under management (AUM) can provide insights into its popularity and liquidity. A larger AUM can indicate investor trust and stability, but it’s essential to strike a balance. Extremely large funds may face challenges in deploying capital effectively, potentially leading to diluted returns.

    On the other hand, very small funds may lack the resources and expertise to manage assets efficiently. It’s advisable to consider funds with a reasonable AUM that aligns with your investment objectives. Smaller investors may find smaller funds more accessible, while larger investors may prefer funds with substantial AUM.

    Analyse Fund Expenses

    Mutual funds come with various expenses, and it’s essential to understand how these costs can impact your returns. The two primary expenses associated with mutual funds are:

    1. Expense Ratio: The expense ratio represents the annual fees and charges deducted from the fund’s assets. It includes management fees, administrative expenses, and other operational costs. Lower expense ratios can lead to higher returns for investors, so it’s wise to compare expense ratios within the same category.
    2. Exit Load: An exit load is a fee charged when investors redeem their units before a specified holding period. Different funds have different exit load structures, so be aware of these fees, especially if you might need to access your money in the short term.

    Additionally, some funds charge load fees when you invest (entry load), but these have become less common due to regulatory changes in India.

    Consider Tax Implications

    Tax efficiency is a crucial factor when choosing a mutual fund in India. Different types of mutual funds have varying tax implications. Here’s a brief overview:

    1. Equity Funds: Long-term capital gains (LTCG) from equity funds are tax-free if the holding period is more than one year. However, a 10% LTCG tax is applicable on gains exceeding Rs 1 lakh.
    2. Debt Funds: LTCG tax on debt funds is applicable after three years, and it is taxed at 20% with indexation benefits. Short-term capital gains are taxed as per the individual’s tax slab.
    3. ELSS Funds: ELSS funds offer tax benefits under Section 80C of the Income Tax Act, with a lock-in period of 3 years.

    Understanding the tax implications can help you optimize your investment strategy and minimize tax liabilities.

    Review Fund Holdings and Portfolio

    Examining a mutual fund’s portfolio and holdings can provide valuable insights into its investment strategy. Key points to consider include:

    1. Asset Allocation: Determine the fund’s allocation to different asset classes (equity, debt, and cash) and sectors. Ensure it aligns with your risk tolerance and investment goals.
    2. Top Holdings: Review the top holdings of the fund. Are they in line with your expectations? Assess the quality and diversity of these holdings.
    3. Portfolio Turnover: Higher portfolio turnover can lead to higher transaction costs and tax implications. A fund with a low turnover may be more tax-efficient.
    4. Concentration Risk: Be cautious of funds with high concentration in a few stocks or sectors, as they may be riskier.

    Evaluate Fund Management Team

    The fund manager plays a pivotal role in the performance of a mutual fund. Here’s how to assess the fund management team:

    1. Track Record: Research the fund manager’s past performance and experience in managing similar funds.
    2. Investment Philosophy: Understand the fund manager’s investment approach and philosophy. Does it align with your investment goals?
    3. Fund Management Changes: Check if there have been recent changes in the fund management team. Frequent changes can be a red flag.

    Review Fund House Reputation

    The reputation of the mutual fund house is another crucial factor to consider. Look for a fund house with a history of ethical practices, transparent reporting, and investor-friendly policies. Research the fund house’s overall performance and credibility in the market.

    Consider Systematic Investment Plans (SIPs)

    Systematic Investment Plans (SIPs) are a popular way to invest in mutual funds regularly. SIPs allow investors to invest fixed amounts at regular intervals (e.g., monthly) and benefit from rupee cost averaging. SIPs can be an excellent strategy for long-term investors looking to mitigate market volatility.

    Seek Professional Advice

    Choosing the best mutual fund for your investment needs can be complex, and seeking professional advice can be beneficial. Financial advisors can help assess your financial situation, risk tolerance, and investment goals to recommend suitable mutual funds.

    Monitor Your Investments

    Once you’ve selected a mutual fund, your job doesn’t end there. Regularly monitor your investments to ensure they align with your objectives. Review your portfolio periodically and make adjustments if necessary. Avoid making impulsive decisions based on short-term market fluctuations.

    Conclusion

    Choosing the best mutual fund for investment in India requires careful consideration of your financial goals, risk tolerance, and various fund-related factors. It’s essential to conduct thorough research, evaluate fund performance, assess expenses, and consider tax implications. Additionally, stay informed about market developments and seek professional advice when necessary. By taking a disciplined and informed approach to mutual fund investing, you can work towards achieving your financial objectives and building long-term wealth in India’s dynamic investment landscape.

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    Questions and Answers December 2023

    by | Dec 17, 2023 | Legal

    Questions and Answers December 2023

    Question 1: The land booking has been cancelled, and there is a request for a refund of the money paid to the builder. The agreed-to-sell document was signed, but objections to the terms arose before registration, resulting in a refusal to register. The total amount paid is Rs 2, 96, 00,000, distributed across installments of Rs 1,000, Rs 99,000, and Rs 96,132. (Jitendra Yadav, Jhansi, UP) 

    Answer: If the agreement remains unsigned, no terms have been agreed upon. In situations where legal requirements dictate that an agreement must be registered to be valid, failure to register renders it as unsigned. This is particularly applicable to agreements involving immovable property, where registration is deemed mandatory.

    How buyer has the right to cancel the booking, as per agreement 

    • Buyer can cancel the booking within the stipulated time frame of one month from the receipt of the Unregistered Agreement for Sale (Plot) dated 14/07/2023.
    • That the agreement between the promoter and the allottee becomes binding only after the allottee signs and delivers the agreement along with the necessary schedules and payments within 30 days from the date of receipt.
    • The submission of the draft agreement with the allottee’s appearance for registration before the Sub-Registrar is a crucial step in this process. As per clause 20 of the draft agreement, since this process remains incomplete, there is no formal agreement established between the parties.
    • Promoter has also not taken initiative to get the document registered to make it complete contract, hence the application of the allottee shall be treated as cancelled as per draft agreement clause 20 & 22.
    • The sums deposited by the allottee, including the booking amount, are to be returned without interest or compensation.

    Reasons for cancelling the deal: Legal issues

    • Failure to adhere to the obligatory stipulations outlined in The Uttar Pradesh Real Estate (Regulation and Development) (Agreement for Sale) Rules, 2018, as per the RERA Act of 2016, including the omission of critical sections such as “21. Entire Agreement.”
    • Non-receipt of the Non-Encumbrance Certificate and a No Objection Certificate (NOC) from the relevant authority, a prerequisite for loan approval from any bank.
    • Indication of the land being mortgaged to HDFC Bank, necessitating permission from the bank, with no recorded evidence of such approval.
    • The verbal assurances given by the representatives of the promoter substantially deviate from the terms specified in the Agreement for Sale (Plot), particularly in relation to the insistence on a 90% payment without obtaining the necessary No Objection Certificate (NOC) and Non-Encumbrance Certificate.

    Status of Contract 

    There is no fully registered agreement with the sub-registrar; what exists is merely an offer or proposal. Without formal acceptance, there is no legally recognized contractual agreement. This situation involves the provision of funds for a contract that remains incomplete, placing the recipient of the funds in debt to the homebuyer. The obligation is to refund the money along with interest and compensation due to the breach of contract, which has led to misrepresentation to the homebuyer and the squandering of time, energy, and other potential opportunities.

    Question 2: Is it possible for me to approach the High Court for the enforcement of the consumer court order while the opposite party’s appeal is pending before the State Commission?

    Background: The truck, financed through a loan, had one instalment unpaid. The bank repossessed and sold the vehicle at auction. However, the truck has not yet been transferred to the buyer. A consumer complaint was filed, and since the opposite party did not appear, an ex-parte order was issued in favour of the complainant. The case has now reached the execution stage, but the opposite party has filed an appeal. Can I seek execution in the High Court while allowing the appeal to continue in the State Commission? (Shubh Yadav) 

    Answer: After appeal is filed, execution shall be stayed. Court may order the lower commission to hear the case on merits and send back to the District commission for trial. High court has no jurisdiction to enter into the matter. In some cases where execution by revenue department is delayed, HC in writ has ordered to speed up execution but not in cases of appeal. 

    Question 3: My phone sustained physical damage, and I personally arranged and paid for the repairs within the warranty period. Currently, the phone is malfunctioning, and the service centre has declined repair requests multiple times. Now that the warranty has expired, can I still request repairs despite the device being out of warranty? (Aniket, Faridabad, Haryana) 

    Answer: It’s crucial to grasp the terms of the warranty. Typically, if an unauthorized entity performs repairs during the warranty period, it may void the warranty. However, if the service centre conducts the repair, you generally have the right to request further repairs. In your situation, where the damage is a result of your actions, there might be complications. Nonetheless, legally, if you reported the issue during the warranty and it remains unresolved even after the warranty has expired, it can be considered a continuing cause of action.

    Question 4: Is it possible to scrutinize the LIC policy under Section 45 of the Insurance Act after the policy is revived by paying the missed premium? 

    Background: The LIC policy was initiated on 28.10.2016 by my father. A premium was missed, and revival occurred on 16.7. 2020 after a thorough health check-up. The policyholder passed away on 18.2.2021, and the three-year period had not elapsed. Post-revival, the policyholder underwent heart treatment. The claim was declined due to non-disclosure, despite the demise not being attributed to a heart attack. (Raj Jain)

    Answer: 

    Two questions involved –

    Within three years, can the company cancel the policy ?YES Section 45 (2) A policy can be called  in question at any time within three years from the date of commencement of the policy or the date of revival of the policy or from the date of rider of the policy…..

    But it should have been communicated in writing to insured about the reason and decision and opportunity to explain. If cause of death is not the non-disclosure of material fact, in your case heart attack, you need to specifically disclose with evidence the cause of death and proved facts so not disclosed are not ‘material’ in your case.

    Question 5: Is it possible to exchange my vehicle or receive a refund if a feature is absent?

    Background: I bought a car from Tata Motors in May 2023. In July, I discovered that a feature mentioned in the brochure (Dual function of DRL with indicator) was missing. Upon contacting the showroom, they explained that this feature is intended for a higher model and is not available in my model. Additionally, other complications could not be rectified. (Abhishek Singh Rathore, Pune) 

    Answer: If the brochure affirms the inclusion of a particular feature in your version, the dealership is obligated to provide that feature if it is feasible. If it turns out that the promised feature cannot be implemented in your model, you have the right to either exchange the car or receive a refund.

    For any additional complications that can be addressed through repairs or part replacements, every effort should be made to rectify the issues. If, despite attempting repairs and changing parts, the problems persist and cannot be resolved, the next step would be to consider exchanging the vehicle.

    Question 6: S.Dass – Execution against Jiva club issue.

    Facts -Execution petition filed, OP not appearing before the court. Available address rented. I have no property details but bank account details 

    Can account be attached?

    Answer:

    Two issues involved –a) Notice not served 

    • Notice can be sent to available address last known to the court and you.
    • Can send through E-mail also
    • Can do substituted service through publication in the local paper where OP office/branch, application to court for permission and notice matter.
    1. b) Attachment of property stage comes only after notice served property and still OP does not appear.
    2. c) Account cannot be attached without taking all steps as it leads to many complications, other business /personal activities of a person get affected 
    3. c) You can get address and other details from the bank, can request court to direct bank to do so.

    Question 7: Rajnikanth Panigrahi :Procedure in Appeal before state commission

    Facts: Complaint before District commission for defective paper cup machine making three parties-Dealer Rashmi Enterprises, Manufacturer Aman Impex and SBI General Insurance for loan 

    Only Rashmi Enterprise appeared, order against Rashmi Enterprises and in my favour 

    I appealed for not giving compensation

    SBI &Rashmi Enterprises also challenge the order

    State commission finds district order erroneous because Aman impex was not served and manufacturer is not liable now 

    State commission suggests to attract Product liability clause for execution of order in the absence of manufacturer .

    Answer:

    • In the absence of any order against manufacturer, you can catch hold dealer only under product liability clause section 85,86 

    Question Sanchay Deshmukh :Property issue 

    Facts ;Purchased a land which belonged to Govt(school &garden land) but colonizer and sarpanch illegally sold to me.They were sent to jail for crime.Now not getting any approvals for construction 

    Answer; this is not your land now, its declared Govt. land .You can file case for refund of your money in civil court as recovery suit and compensation also for unfair dealing

    Can also file before consumer court/RERA for unfair trade practices and refund with compensation 

    Question 8: Builder issue 

    Fact: complaint filed before consumer forum against DHFL which was dismissed approached NLCT &copy to president, nothing has happened 

    Ans :

    • NCLT is not appellant court for consumer matters ,hence if filed appeal,it will not work 
    • In case case dismissed because OP Is Declared Insolvent ,Then You Have Become financial creditor and file claim before NCLT for refund or any other solution as per resolution passed by NLCT 

      Question 9: Imran khan builder issue

      Facts; Booked flat in 2017, 3 years’ time for construction 

      After 6 year’s now flat ready but asking for increased cost. 

      Answer:

      • File complaint before consumer commission and ask for some interim order for possession at agreed cost till matter is decided on merits 
      • Claim for compensation for delay before the court 
      • Contest the issue of cost increase because delay was due to builder and homebuyer had agreed for cost which was at the time of three years of construction period.  

        Question 10: Purchase of vehicle

        Facts: Purchase vehicle, delivery due on 6.12.2023 .At the time of delivery sunroof not working, promised to give on 11/12/2023 neither delivery nor changing vehicle.

        Refusing cancelling Registration 

        Answer: 

        Can file complaint before consumer commission you have options to repair, change, refund etc. depending on merit of the case 

        Question 11: Complaint ;Radhey Gupta ,Education issue 

        Facts; Case filed against University. Court asks for some document or proof to show you are a consumer in education matter 

        Answer:

        Student is not consumer against University 

        Bihar examination board case 2009 

        Question 12: Sandeep Arora 

        Facts: New Bike with starting problem .Service centre failed to remove the defect .Now case filed before consumer commission and service centre refused to give any service. Next date is 19.2.24

        Any way to get bike repaired or early date possible .What application can be filed before court.

        Answer:

        • You can file an application stating your this problem and ask for early date 
        • You can also file an application during hearing next time for interim order do get vehicle repaired till case decided on merits 
        • You can also request court to obtain expert opinion about the defects in the vehicle and decide the relief on merits 

          Question 13: Electricity Bill 

          Facts: Getting huge bill of Rs 25000/- for four months due to fast meter

          Answer:

          Application to electricity department for checking meter, you need to pay some fee for it 

          In case meter found fast /defective, billing shall be done on the basis of earlier billing pattern calculating average during the last six months  

          Question 14: Purchase of vehicle 

          Facts :Purchase Yamaha Aero ON 5TH Oct 023 Engine stops after driving 1364 Km ,repaired after 4 days Again after 3200 km same problem 

          Can I get vehicle changed 

          Answer:

          Not a case of change unless declared beyond repair or having manufacturing defect .May go to consumer court, ask for obtain expert opinion and order on merits

          Question 15: Construction issue 

          Facts Collaboration with dealer for construction .Work not completed, Lift not made functional .Given us fourth floor 

          Answer: Explore any payment issue .Can go to consumer commission /RERA

          Question 16: A.Kapur Advocate 

          Can relevant law be incorporated in the petition/complaint?

          Answer:

          Generally petition /complaint is narration of facts with relevant documents. Case law, citation and judgments are attached with written arguments and discussed at the time of oral arguments 

          But while drafting complaint when you allege for deficiency in service, you can refer to relevant provisions such as how you become complainant as per definition of complainant, product liability clause, express warranty, unfair trade practice or misleading ads defined in the act. 

          Question 17: Rajput Baghela 

          Builder has not obtained completion certificate but forcing to take possession.

          Answer:

          First, you can refuse to take possession without completion certificate because there might be some incomplete work or administrative/legal requirement for which Completion certificate is either rejected or not applied by builder 

          Second: sometimes due to so much delay, homebuyer accepts possession without completion certificate, in such situation corporation may ask for extra taxes for this default. There are judgments that such penal taxes are to be borne by builder only for which you may have to go to court

          Third, you can go to consumer commission or RERA at this stage also for possession with completion certificate and compensation for delay.  

          Question 18: Advocate Raj Jain

          After 45 days of notice, OP comes with excuse that policy record of complainant not traceable, time be given to trace records.Commission asked to submit proof of service made .Is this the duty of consumer to track service of notice?

          Answer: After 45 days from proper notice with documents, this excuse cannot work. Commission asking you to provide proof of service is to confirm that service is made in proper manner. After confirmation of notice served, commission can exercise its power to go expert against OP.

          It’s not duty of complainant to track service of notice but you can facilitate the court when you press for proceeding ex party against OP.

          Question 19: Dilip kumar 

          Can we ask for govt. documents also through RTI ?

          Answer:

          Yes, you can ask for documents also if you are an interesting party. You need to prove how you are entitled to get information or documents. Further under RTI you can be given information only but cannot reply as to why no action/or un- favouring action has been taken 

          Question 20: Smitha Bangalore 

          What is the difference between execution through civil court and consumer commission, explain procedure. 

          Answer: There is no difference in procedure for execution of order by consumer commission. In both places order xx1 Ist schedule of CPC 1908 is to be followed. Consumer commissions are given power of Ist class Magistrate to follow this procedure within the Act under sec 71&72

          Procedure is the same –Notice, BW, NBW through police, Arrest by police &fine by commission, order for attachment of property. 

          Question 21: Vinod Yadav 

          How medical negligence cases are proceeded and proved 

          Answer:

          Procedure is same for all cases coming to consumer commissions since in medical cases, medical literature, expert opinion etc. are required. Treatment record is also important factor, Sometimes more than one affidavits are needed for evidence. There may be more than one expert opinions are accepted or sought by courts. Hence process becomes lengthy

          Negligence is proved on the basis of entire facts, circomstances, treatment record, medical literature and medical expert opinion. Activities of para medical staff, required infrastructure in the hospital /nursing Home and requisite facilities are also considered for reaching to some logical end

          Food Contact Materials and Your Health: Tips for a Safer Approach

          Food Contact Materials and Your Health: Tips for a Safer Approach

          by | Dec 17, 2023 | Guest Column

          Food Contact Materials and Your Health: Tips for a Safer Approach

          Recently, the Food Safety and Standards Authority of India (FSSAI) issued a strong advisory urging both consumers and food vendors to refrain from using newspapers in any capacity related to packing, serving, or storing food items. The FSSAI emphasized the potential health hazards associated with the ink used in newspapers, citing its composition of bioactive materials known to have adverse effects on health when ingested. Additionally, these printing inks may contain chemicals such as lead and heavy metals, which can leach into the food, posing serious long-term health risks. The FSSAI is actively collaborating with state food authorities to enforce a ban on the use of newspapers for packaging or wrapping food items. Besides newspapers, there are many other food contact materials we encounter daily that can significantly influence our health. In this article, we will delve deeper into some of these materials, discuss how their usage can affect our health, and provide tips on safeguarding our health against their potential risks.

          Richa Pande

          What are Food Contact Materials?

          Food contact materials encompass items directly or indirectly interacting with food. This includes any material intentionally or likely to come into contact with food, packaging materials, cleaning agents, cutlery, dishes, containers, cutting boards, and more. 

          Watch Out for ‘Forever Chemicals’ in Your Food Packaging and Everyday Environment

          “Forever chemicals” refer to a group of synthetic chemicals known as PFAS (per- and polyfluoroalkyl substances), notorious for their long-lasting nature. These chemicals earned the nickname “forever chemicals” due to their remarkable durability. According to the Centre for Disease Control and Prevention, PFAS are utilized in nonstick cookware, disposable take-away food packaging, pizza boxes, burger wrappers, water-resistant clothing, stain-proof fabrics, microwave popcorns bags, some cosmetics and various other items designed to repel grease, water, and oil. Unfortunately, these chemicals have been associated with heightened risks of thyroid disease, cancer, liver diseases, decreased fertility, low birth weight, non-communicable diseases, and other significant health issues.

          How can you avoid PFAs/ Forever Chemicals?

          It is very difficult to avoid forever chemicals but there are some steps you can take to reduce exposure to PFAS via everyday products:

          • Reverse osmosis systems can eliminate PFAs in water. Replace filters as required.
          • Avoid using non-stick cookware and choose stainless steel utensils.
          • Avoid picking microwave popcorns. 
          • Store your food in glass containers not in plastic or cardboard containers. 
          • Limit eating foods packed in take-out containers.
          • Use BPI certified compostable food wraps as they do not have PFAs.

          Reducing Plastic Contact with Food

          Minimizing food’s contact with plastic is critical due to potential health risks associated with chemicals like BPA (bisphenol A) and phthalates, as well as the presence of microplastics in food and water. However, it’s important to note that certain food-grade plastics deemed safe for use have undergone rigorous testing to meet specific safety standards. Nonetheless, continuous exposure to even food-grade plastics may carry risks, prompting a need to limit reliance on plastic in food storage and preparation.

          Tips to Minimize Food’s Contact with Plastic

          • Prefer Alternatives: Prioritize materials like glass, stainless steel, or silicone for storing and heating food, minimizing reliance on even food-grade plastics. Storing kitchen staples in steel and glass containers provides a safer alternative to plastic. Opt for glass bottles to store cold-pressed cooking oils instead of plastic containers, as glass prevents potential chemical interactions with the oil, maintaining its quality and purity. Steel containers serve as excellent options for preserving grains, pulses, and spices, ensuring a safer and healthier environment for your kitchen essentials.
          • Choose Non-Plastic Chopping Boards: Use chopping boards made from wood, instead of plastic boards to avoid potential chemical leaching and microplastic contamination.
          • Verify Labels: Choose food storage containers specifically labelled as BPA-free or made from safer plastics like high-density polyethylene (HDPE) or polypropylene (PP) to reduce potential chemical leaching.
          • Use Plastic Sparingly: Whenever possible, opt for non-plastic alternatives such as glass jars, stainless steel containers, or silicone bags for storing and transporting food to mitigate exposure to any potential risks associated with prolonged plastic usage.
          • Avoid using plastic-based food blenders; opt for steel or glass-based blenders instead.

          Plastic Chopping Boards

          Wood Chopping Boards

          Plastic Containers

          Steel & Glass Containers

          Dishwashing Liquids & Bars (Laced with chemicals)

          Natural Alternatives

          Refined Cooking oil in Plastic Pouches or Containers

          Cold-pressed cooking oil in glass bottles

          Easy Swaps for Better Health

           

          Safeguarding Health and the Environment: Choose Chemical-Free Alternatives for Dishwashing

          Common dishwashing liquids, promising effective grease removal and pleasant scents, often hide a range of active ingredients that pose risks to both your well-being and the environment. Ingredients like Disodium EDTA, phosphates, triclosan, and SLES are frequently found in these products. Even after a thorough cleaning, remnants of these liquids persist on our dishes, entering our bodies with every subsequent meal. This can potentially disrupt the gut microbiome, affecting our overall health and leading to various diseases and metabolic disorders.

          What are the alternatives?

          Consider opting for natural ingredient-based alternatives. Not only are these alternatives effective for cleaning, but they also reduce exposure to potentially harmful chemicals. This eco-friendly approach to dishwashing ensures a safer and healthier environment for you and the planet.

          All Editorials

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