Narinder Chopra v/s Jaiprakash Associates (NC)

Narinder Chopra v/s Jaiprakash Associates (NC)

Narinder Chopra v/s Jaiprakash Associates (NC)

Consumer Complaint no 3258 0f 2017 along with IA 330 OF 2021 & IA 1130 OF 2021, Decided on 16.5.2021

Facts of the case

  • Consumer Complaint was instituted by Narinder Chopra on 7.11.2017 and admitted on 20.11.2017. Pleading completed ,evidence taken and matter comes to the  at the stage of argument.
  • Act 2019 came into force on  20.7.2020 repealing the earlier Consumer Protection Act 1986
  • Builder files interlocutory application no IA 5410 of 2020 for transferring the present complaint 3258 0f 2017 to appropriate commission. Application dismissed on 14.9.2020 stating therein that Act 2019 came into force with prospective effect and not retrospective in nature–transfer of case not allowed.
  • Builder files writ against the dismissal order of NCDRC.High Court of Delhi set aside order dated 14.9.2020 of NCDR with direction to commission to decide the issue on its own merits without influenced by administrative order dated 20 .7. 2020
  • Since no reason was given by the commission while dismissing interlocutory application ,NCDRS  on 22.12.2020 ordered to put the case before Hon’ble  President for necessary direction 15.1.2021 President rescues himself from the bench ,on 17.1 29021 directs the case to be put up before the bench on 2.7.2020 in which President J R K Agrawal is no more member
  • Now two more applications are clubbed with this application which were pending before this court against builder for dismissing his application for transfer of case.  

IA NO 330/12-CCNO 344/2019

IA NO 1190/21 FOR CCNO 2440/19

Bench heard the case on 29.1.2021,8.2.21,9.2/21&10.2.21

IA NO 5410/2020

Issues Raised

A matter involving question of law cannot be heard by a Bench with no judicial member.

Regulation 12 empowers the NCDRF President to constitute another bench with at least one judicial Member enabeling the bench to hear matter involving question of law

Pending matters be transferred to appropriate commission after enhancement of pecuniary jurisdiction 

Issue 1- A matter involving question of law cannot be heard by a Bench with no judicial member

It is basically a Two fold issue

  1. A) Can this bench hear about the question of validity of bench

The question is whether this bench can examine the competency under the law if has been unlawfully constituted.

  • No bench can examine validity of constitution of bench or compostion of bench
  • No one can question kind minuts of Presidents about constitution of bench

The Commission held that the Bench can not and should not examine whether or not it lacks competency under law or if has been unlawfully constituted

“No Tribunal can examine act of its parent statute. Specifically, no Bench can examine validity of provisions relating to composition of this Commission or relating to constitution of its Benches by the Hon’ble President of the Commission ” the Bench observed

  1. B) Whether a bench must comprise of one judicial member if matter involves  any question of law to be decided .

power and authority may be exercised by the benches ; fixes no bar to exercise power. The senior most member is to preside over the bench which makes further clear there is no special mention of judicial member to be there mandatory

Chandra Kumar V/S  Union of India 18.3.1997 in which this issue was taken up with great concern .It held –

 “since now selection committee is headed by judges of Supreme court and nominated by CJI we have reason to believe that the committee would take care to ensure that administrative members are chosen from among those who have some background to deal with such cases

ISSUE -2 Regulation 12 empowers the NCDRF President to constitute another bench with at least one judicial Member enabling the bench to hear matter involving question of law 

Pointed out important word is “MAY”  which calls for debate whether bench has mandate  to refer the matter to president to constitute another  bench with judicial member or is on wisdom of bench

The Bench observed that it is at the considered wisdom of the Bench whether or not it considers appropriate and necessary to refer a matter to the President under Regulations 12.

ISSUE NO 3 Pending matters be transferred to appropriate commission after enhancement of pecuniary jurisdiction

!) A similar question was dealt with by the NCDRC in its Judgment 8 April 2011 in Southfield Paints and Chemicals Pvt. Ltd. v. New India Assurance Co. Ltd. which construed Amending Act 62 of 2002 by which the pecuniary limits of jurisdiction were enhanced with effect from 15 March 2003. Relying on the earlier decision in Premier Automobiles Ltd. v. Dr Manoj Ramachandran, the NCDRC had held that the amendments enhancing the pecuniary jurisdiction were prospective in nature.

!!)The transitional provisions contained in Sections 31, 45 and 56 expressly indicate that the adjudicatory personnel who were functioning as Members of the District Commission, SCDRC and NCDRC under the erstwhile legislation shall continue to hold office under the new legislation. Such provisions are necessary because persons appointed to the consumer fora under the Act of 1986 would have otherwise demitted office on the repeal of the legislation.Similar intend can be presumed for transfer of cases also when it is specifically mentioned in section 107 to continue with the same arrangement so far it is not inconsistent to the new act

!!!)At the end this commission also discussed that issue of pecuniary jurisdiction is “abeling as well disabeling” because criteria to calculate pecuniary jurisdiction is also changed in the new act . In earlier act criteria was cost paid plus compensation to be calculated where sa in the present act only cost paid is to be considered . With this calculation total amount to be considered will be Rs 9731017  and entitlement will be District commission It will gravely prejudiced to consumer as they will lose valuable statutary right to appeal/revision allowed to them under the act .

With the above view IA 5410-2020 DISMISSED by the bench

Related

SC Re-affirms Stand on Healthcare Service under Consumer Law

SC Re-affirms Stand on Healthcare Service under Consumer Law

SC Re-affirms Stand on Healthcare Service under Consumer Law

The Supreme Court in the case of Medicos Legal Action Group v Union of India said, “We are of the clear opinion that the contention raised by the learned counsel for the petitioning Trust, of the Hon’ble Minister having made certain statements in course of parliamentary debates on the Bill that preceded the 2019 Act, is of little relevance.” From the pleadings it was found that ‘health care’ was initially included in the definition of the term ‘service’ appearing in the Bill but after extensive debates, the same was deleted. Mere repeal of the 1986 Act by the 2019 Act would not result in exclusion of ‘health care’ services rendered by doctors to patients.

                           Dr Prem Lata Legal Head VOICE

In the context of the 1986 Act and the 2019 Act, the definition of “service” having been read, understood and interpreted by the Supreme Court in Indian Medical Association (supra) to include services rendered by a medical practitioner to his patient upon acceptance of fees/charges. However, an organization “Medicos Legal Action Group”, had filed a writ petition before the High Court of Bombay as  Public Interest Litigation No. 58 Of 2021  and prayed before the court to declare  that services performed by healthcare service providers are not included within the purview of the Consumer Protection Act, 2019 and also  for mandamus directing all consumer fora within the territorial jurisdiction of this Court not to accept complaints filed under the 2019 Act against healthcare service providers.

Grounds for such an appeal were given as:

  • That parliamentary debates on the Consumer Protection Bill, 2018 preceding the 2019 Act led to exclusion of ‘healthcare’ from the definition of the term “service” as defined in the Bill.
  • That the Hon’ble Minister for Consumer Affairs, Food and Public Distribution, had stated on the floor of the Parliament that ‘healthcare’ had been deliberately kept out of the 2019 Act for the reasons cited therefore. This clearly indicates the parliamentary intent of not including ‘health care’ within the definition of “service” in the 2019 Act.
  • That the 2019 Act having been brought into force upon repeal of the Consumer Protection Act, 1986 registration of complaints, which are filed against doctors, by the consumer fora in the State of Maharashtra is illegal and should be declared as such.

On the above points raised by the trust, a detailed discussions were held in the high court and definition of service in both the acts was re-examined to make the things clear. Reading the two definitions, court did not see any material difference between the two. Except inclusion of ‘telecom’ in section 2(42) of the 2019 Act, the terms of the definition were identical.

Section 2(1)(o) of the 1986 Act did not in terms include services rendered by doctors within the term “service”, but such definition was considered by the Supreme Court in its decision in Indian Medical Association Vs. V. P. Shantha & Ors., and it was held-

  • Service rendered to a patient by a medical practitioner charging fee by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1)(o) of the Act.
  • Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.
  • Services rendered free of charges to some but charged from other patients by the same hospital /nursing home is also covered as rendering service.
  • Where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members also falls under these services.

Court on the basis of definition above examined held that, “Merely because of enactment of the 2019 Act upon repeal of the 1986 Act as well as the parliamentary debates, the efficacy of the law laid down in the decision in Indian Medical Association (supra) as a binding precedent would not stand eroded. This is a thoroughly misconceived Public Interest Litigation and we have no doubt that it deserves outright dismissal”.

Medicos Legal Action Group had approached the Supreme Court through a Special Leave Petition challenging the Bombay High Court’s judgment delivered in October 2021. The Supreme Court on Friday held that doctors and healthcare services are not excluded from the ambit of the Consumer Protection Act 2019.

A bench comprising Justices DY Chandrachud and Hima Kohli affirmed the petitioner based its case on a statement reportedly made by the Union Minister while introducing the Consumer Protection Bill 2018 that health care services are not covered under it. The bench said that the Minister’s statement cannot restrict the ambit of the statute.

Justice DY Chandrachud remarked, “The definition of ‘Service’ is wide enough under the Act. If the Parliament wanted to exclude, they would have said it expressly. The reason why healthcare was deleted was because the definition of the expression of service was wide enough. The Minister’s speech in the house cannot restrict the ambit of the Act while laying emphasis on the word ‘Service of any description’.”

He also added, “We will affirm the judgment of the High Court. It’s a very guarded statement of the Minister also. The Minister is also saying that we have included but not expressly included in it.” 

Relevance of Speeches in the Parliament

Supreme Court cited earlier cases wherein parliamentary speeches were in question.

 In the case of State of Travancore-Cochin vs. Bombay Co., SC Hon’ble Patanjali Shastri, CJI held, “A speech made in the course of debate on a bill could at best be indicative of the subjective intent of the speaker, but it would not reflect the inarticulate mental process lying behind the majority vote which carried the bill, nor is it reasonable to assume that the minds of all those legislators were in accord.”

Aswini Kumar Ghose vs. Arabinda Bose, ruled, “Speeches made on the floor of the Parliament are not admissible as extrinsic aids to the interpretation of statutory provisions.”

State of West Bengal vs. Union of India, Hon’ble B.P. Sinha, CJI held, “A statute is the expression of the collective intention of the Legislature as a whole and any statement made by an individual, albeit a Minister, of the intention and object of the Act, cannot be used to cut down the generality of the words used in the statute.”

While concluding, the SC in clear terms indicated that the parliamentarians might have thought of not including `health care’ as that would have amounted to a mere surplus.

“If at all the Parliament while repealing and replacing the 1986 Act with the 2019 Act had intended to give a meaning to the term ‘service’ different from the one given by the Supreme Court, such intention ought to have been reflected in clear words by a specific exclusion of ‘health care’ from the purview of the 2019 Act. While construing a statute, what has not been said is equally important as what has been said.”

 

Related

Whether medical examination is compulsory for issuance of Policy to take place prior to accepting premium

Whether medical examination is compulsory for issuance of Policy to take place prior to accepting premium

Whether medical examination is compulsory for issuance of Policy to take place prior to accepting premium, was the question before the Hon’ble Supreme Court Bench in view of the facts and circumstances of the case that the insurance company accepted the premium, waived the condition precedent of medical examination. In such circumstances, the Respondent Insurance Company could not reject the claim on the ground that the medical examination of insurer was not done and  the Contract of Insurance was not complete.

Dr Prem Lata (Legal Head VOICE)

 

Supreme Court had held in the above case 

“In the instant case there was a complete contract as there was clear presumption of the acceptance of the proposal in favour of the proposer”

SC further observed 

“The specific condition in the policy was that in case the loan amount exceeds Rs.7.5 lacs the medical examination was compulsory. That if the medical examination was compulsory for such cases it should have been done along with filing of the proposal form before the payment of the premium. If the proposal was not accepted for any reason the premium would have been credited to the account of the proposer. The premium has not been refunded. From this, it is clear that the insurance company had not rejected the proposal.”

Facts leading to dispute 

Brief Facts of the case:

Consumer, his wife and son Mr. D. Venugopal had obtained a housing loan of Rs.30,00,000/- from Life Insurance Company for construction of a house in Hyderabad. The proposal was accompanied by good health declaration by the insured. D. Venugopal expired in 2009. Consequently, the said life insurance obtained in his name came into force, obligating the insurer to pay the outstanding amount in their loan account. The consumer approached the insurer and the bank informing them about the demise of D. Venugopal and requested them to settle the insurance claim and to discharge the outstanding loan amount in their house loan account. Since the insurer did not accede to his request, he filed a consumer complaint before the State Commission.

The insurer contested the complaint mainly on the ground that the proposal for the policy was not accepted as the insured did not present himself for medical examination in spite of repeated requests made by the insurer. Thus, the insurer pleaded no deficiency in service and denied its liability in connection with the payment to the insured. The State Commission allowed the complaint. However, the National Commission, by majority, allowed the appeal. Aggrieved by the National Commission’s order, the Appellant approached the Supreme Court

The respondents company  have contended that there is no concluded contract between the parties. Therefore, the insurer was not bound to discharge loan merely on the ground of receipt of premium for issuing policy. The deceased did not appear for medical examination. Therefore, the policy could not be completed on receipt of the death intimation.

But Supreme Court did not agree to he contention of Insurance company and concluded-

  1. The insurance contract being a contract of utmost good faith, is a two-way door. The standards of conduct as expected under the utmost good faith obligation should be met by either party to such contract.
  2. The condition precedent for acceptance of the premium was the medical examination. It would be logical for the insurance company  to accept the premium based on the medical examination and not otherwise. Therefore, by the very fact that they accepted the premium waived the condition precedent of medical examination.
  3. The rejection of the policy must be made in a reasonable time so as to be fair and in consonance with the good faith standards. In the case, it could not be held that such enormous delay was reasonable. With reference to the facts of the present case, the Court remarked that the premium was paid in 2008. That it was only in 2011 that the respondent insurance company informed the appellant that the policy was not accepted by them.

Supreme Court made a law by this judgment that Insurance company is equally under obligation to follow their terms and rules while issuing the policy only then they should expect insured to follow rules. In case they ignored some procedure they are bound to approve the claim 

QUOTATIONS FROM LANDMARK JUDGMENTS (June-2022)

QUOTATIONS FROM LANDMARK JUDGMENTS (June-2022)

1. “We are of the clear opinion that the contention raised by the learned counsel for the petitioning Trust, of the Hon’ble Minister having made certain statements in course of parliamentary debates on the Bill that preceded the 2019 Act, is of little relevance. From the pleadings it is found that ‘health care’ was initially included in the definition of the term “service” appearing in the Bill but after extensive debates, the same was deleted. Mere repeal of the 1986 Act by the 2019 Act would not result in exclusion of ‘health care’ services rendered by doctors to patients from the definition of the term ‘service’”Held by Supreme Court 

2. “Merely because of enactment of the 2019 Act upon repeal of the 1986 Act as well as the parliamentary debates, the efficacy of the law laid down in the decision in Indian Medical Association (supra) as a binding precedent would not stand eroded.”

3. “The definition of “Service” is wide enough under the Act. If the Parliament wanted to exclude, they would have said it expressly,” “Reason why healthcare was deleted was because the definition of the expression of service was wide enough. The Minister’s speech in the house cannot restrict the ambit of the Act. while laying emphasis on the word, “Service of any description.”

Medicos Legal Action Group v Union of India| SLP (Civil) 19374/2021

4. “ a speech made in the course of debate on a bill could at best be indicative of the subjective intent of the speaker, but it would not reflect the inarticulate mental process lying behind the majority vote which carried the bill, nor is it reasonable to assume that the minds of all those legislators were in accord.”

State of Travancore-Cochin vs. Bombay Co. 11-PIL-58-2021 8 Ltd., reported in AIR 1952 SC  Hon’ble Patanjali Shastri, CJI held

5.  “Speeches made on the floor of the Parliament are not admissible as extrinsic aids to the interpretation of statutory provisions

Aswini Kumar Ghose vs. Arabinda Bose, reported in AIR 1952 SC 369 Ruled

6. “A statute is the expression of the collective intention of the Legislature as a whole and any statement made by an individual, albeit a Minister, of the intention and object of the Act, cannot be used to cut down the generality of the words used in the statute”

State of West Bengal vs. Union of India, reported in AIR 1963 SC 1241, Hon’ble B.P. Sinha, CJI 

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