Questions and Answers January 2024
Question 1: Is it possible to include pertinent legal provisions in the petition or complaint? (A. Kapur, Advocate)
Answer: Typically, a petition or complaint entails presenting factual details supported by relevant documents. Legal precedents, citations, and judgments are usually attached and discussed during oral arguments. However, in the initial drafting of a complaint, particularly when asserting a deficiency in service, it is beneficial to reference specific provisions. This may include defining the complainant as per statutory definitions, citing product liability clauses, invoking express warranty terms, and addressing unfair trade practices or misleading advertisements as defined within the applicable legal framework.
Question 2: In a scenario where the builder is insisting on taking possession without obtaining the completion certificate, what recourse or actions can I take? (Rajput Baghela)
Answer: Initially, you have the option to decline taking possession in the absence of a completion certificate, as there could be unfinished work or unfulfilled administrative/legal prerequisites for which the certificate may have been rejected or not applied for by the builder.
Alternatively, if there is significant delay and the homebuyer decides to accept possession without the completion certificate, there is a possibility that the local authorities may impose additional taxes as a consequence of this default. Legal precedent suggests that such penal taxes should be the responsibility of the builder, and seeking legal recourse through the court system may be necessary.
Another avenue is to approach consumer commissions or the Real Estate Regulatory Authority (RERA) at this stage. Seeking possession with a completion certificate and claiming compensation for the delay can be pursued through these channels.
Question 3: Following a 45-day notice period, the opposing party (OP) presents the excuse that the policy record of the complainant is not traceable, requesting additional time to locate the records. The commission has requested evidence of the service made. Is it the consumer’s responsibility to track the service of the notice in this situation? (Advocate Raj Jain)
Answer: Beyond the 45-day period following the issuance of a proper notice with accompanying documents, the excuse provided by the opposing party becomes untenable. The commission’s request for proof of service aims to verify that the notice was served appropriately. Once confirmation of proper notice is established, the commission can utilize its authority to proceed against the opposing party through expert means.
While it is not the complainant’s obligation to track the service of the notice, the complainant can assist the court when seeking ex parte proceedings against the opposing party.
Question 4: Can we ask for govt. documents also through RTI? (Dilip Kumar)
Answer: Yes, you can request government documents through the Right to Information (RTI) Act. The RTI Act allows citizens to seek information from public authorities, including government departments and agencies. The Act aims to promote transparency and accountability in the functioning of government organizations.
To request government documents through RTI:
- Identify the Public Authority: Clearly identify the government department or public authority from which you want to obtain the documents.
- Draft an RTI Application: Prepare a formal RTI application stating your request for specific documents. Be clear and specific in your request.
- Provide Contact Information: Include your name, postal address, and contact details in the application. This information is crucial for the public authority to communicate with you.
- Pay the Prescribed Fee: In many cases, there is a nominal fee associated with filing an RTI application. The fee amount varies and is specified by the relevant government rules.
- Submit the Application: Submit the RTI application to the designated officer of the concerned public authority. This can often be done through post or online, depending on the procedures in your region.
- Follow up on the Request: Keep track of the progress of your RTI application. Public authorities are generally required to respond within a specified time frame, typically 30 days, though this can vary by jurisdiction.
Remember that there are certain exemptions and limitations to the information that can be provided under RTI. Additionally, the process may have some variations depending on the specific rules and regulations of the country or region you are in. Check the local RTI guidelines for more details.
Question 5: How does the procedure for execution differ between a civil court and a consumer commission? Please elaborate on the distinctions. (Smitha, Bangalore)
Answer: The execution procedure for orders by a consumer commission is identical; both locations adhere to the provisions outlined in Order XXI of the CPC (Code of Civil Procedure) 1908. Consumer commissions are endowed with the authority of a First-Class Magistrate to employ this procedure, as stipulated by Sections 71 and 72 within the Act. The procedure remains consistent, encompassing steps such as issuing notices, issuing warrants, initiating non-bailable warrants through the police, effecting arrests by the police, imposing fines by the commission, and issuing orders for property attachment.
Question 6: What is the process for pursuing and establishing medical negligence cases? (Vinod Yadav)
Answer: The process remains consistent for all cases brought before consumer commissions, especially in medical instances where medical literature, expert opinions, and treatment records are essential. The significance of multiple affidavits for evidence cannot be understated. Courts may accept or solicit more than one expert opinion, contributing to a prolonged process.
Proving negligence is based on a comprehensive examination of facts, circumstances, treatment records, medical literature, and expert opinions. The actions of paramedical staff, the presence of necessary infrastructure in the hospital or nursing home, and the availability of requisite facilities are also taken into account to arrive at a reasoned conclusion.
Question 6: Flipkart deficient in services for sending improper order item. Can I file FIR against Flipkart?
Facts :Placed an order for value Rs 7983 on 30.11.2023Flipkart confirms delivery on 25.12.2023 but product never received
Answer: Allahbad HC quashed fir filed FIR filed against Flipkart finding him not guilty under criminal law Section 79(2) or 79(3)of Indian Technology Act 2000(amended 2008)exempt from liability if act done exercising ‘due diligence ‘
Section 85 and 86 of CP Act 2019 finds the intermediary responsible to receive notice on behalf of sellers on their web,facilitate in providing all information and whereabouts known to them for consumers and courts
Flipcart is not inventory based e commerce entity ,its marketbased platform ,hence not liable for product defect.
Question 7: Do I have to pay full year fee when studied for half year.( Amit Parmar)
Admission in LLB in private college Due to tragedy in family left after half year.College insisting for full year fee.
Answer: As per Supreme Court Judgment in case of Usmania Islamia Academy v State of Karnataka
- Institute can take fee for one semester and not for full course or full year.Accordingly college cannot ask to pay more even if they show rules. Any undertaking if not legal or against the SC orders has no value before the law.College cannot retain original certificates
- College cannot hold original certificates of the candidate if one leaves the college or course. UGC Circular 2007 issued Following above judgment
Question 8: Can a single member file case consumer complaint against co-operative society. ( Harsh Tripathi )
- Yes single member or more than one members can file consumer complaint against Co operative society.
- Consumer Commissions are additional remedy to consumers though co-operative society issues are resolved through Registrara of Societies as an Arbitrator.But Arbitration clause inCo-operative Societies act does not bar Consumer Commissions
Question 9: Builder constructed small market complex adjacent to Residential complex and calls it Dispensary &Gym Room.Can there be a consumer complaint. (Mr Pramod)
- Yes, Homebuyers of the society can file complaint for wrongly stating small market complex as dispensary & Gym Room. Approval of such complex from the authorities can be checked and complained.
- In case no formal information of such complex displayed on their web with the housing project ,it is unfair and misleading under CP Act 2019.
Question 10: My evidence is over before the court, matter is fixed for OP evidence. Not coming for last three dates.(Guddu Sasaram Rohtas)
Answer: Submit an application before the court praying to proceed ex party against OP.
Question 11: What is the difference between written Arg and oral arg?( Mittar Pal Sharma)
Answer: Written Arguments are written submission of your entire case including reference to OP’s your stand with given evidence etc. You can refer case law also favoring your case and also enclose citation/case law.
Verbal is the same thing you put before the court and court may ask anything while you argue your case related to your case and argument.
Question 12: In one case order has been passed in favor of my client but the same case is going on before civil court also. Will this order be valid and what will happen to civil case. ( Advocate )
Answer: Withdraw civil case immediately, then this order is final. One cannot enrich oneself by claiming for the same thing at two places.
Question 13: Admission in two courses but now pursuing only regular, not appeared in any exam or practical in distance course at IGNU.Any problem? (Vivek Anad)
Answer: As long as two courses or degrees both are not regular, you can maintain both. It’s your outlook how you manage exams scheduling If already pursuing one, other is no more on your cards.
Question 14: I have lost job due to OP conduct but having no proof of job, appointment letter or salary slip .How to prove incidental loss ,matter in the court? ( Ph. 9921560386 No Name)
Answer: It’s difficult to prove without documents. Your affidavit alone will not work as secondary evidence unless some substantial facts can be proved.
Question 15: Am I eligible for PGT teacher/Completed MA distance in year 21-23 and also B.Ed. regular in the same session 21-23? (@abhizarasizindagi8871)
Answer: Two things to be seen –both degrees are not done in regular mode because you cannot be present at two places at the same time. UGC guidelines do not permit. Another point is if you meet the qualifying criteria for the post, you are eligible. But we cannot spell out other rules or criteria set by your selection board.
Question 16: Allured by Country Vacation club stating I have won a gift, paid 10,000/- in 2010 for becoming member. Later realized my mistake, they are not refunding money? (@mirmasarathali4922)
Answer: Check the terms you have signed while becoming member. If membership was yearly then it goes by now. But surely you have saved yourself by not losing more.
Question 18: Builder not refunding maintenance I paid in advance for 5 years after society is formed, purchased flat 7 months back ? (@vihardayala3104)
Answer: Maintenance is done by builder till possession given to society ,thereafter society is to look after maintenance affair.In future you have to pay to society. You can claim if some amount given which was not as per your agreement.
Question 19: I am PVR Privilage plus Member of latest and updated version of Cinema App. Privilege voucher section found blank while making payment for snackes? (Raj Maykar)
- Contact Authorities at cinema hall for clarification and rectification
- Write to NCH about your issue and help in solution
- You have a consumer issue for deficiencies in services,/for misleading information through apps and alluring which amounts to unfair trade practices Option open to you for legal notice or consumer complaint
Question 20: Difference between information under RTI & Under CP Act 2019.(Guru Kripa)
Have Two fold query-
(a) If Information not received through RTI ,Can I file appeal against it to Consumer Commission
(b)When you have not filed any application under RTI,hence want to get direct through CP Act Because consumer protection Act gives right to the consumers to be informed.
Answer: Understand the difference between information through RTI and information through CP Act.
Under RTI you may apply to any ministry ,office ,organisations covered under RTI for any information if you are entitled to get that/directly concerned with the information you want
Under CP Act information word has come under the definition of services .While filing case for deficiency in services, you will have the right to know everything about the services you have hired by making payment. Consumer commission is a court and decides the cases filed before it and its scope is to deal with goods ,services and unfair trade practices. While dealing with these areas every information court gets from OP related to that particular case and provide you .
Question 21: Can there be a second appeal in Consumer commissions.( H.K Tripathi)
Answer: There can be only one appeal before consumer commissions under consumer protection Act. However there can be a revision petition challenging that the particular commission has either not exercised the jurisdiction or exceeded its jurisdiction while deciding the cas.Any other point regarding jurisdiction can be raised through revision petition .
Question 22: Want to do two regular courses .One diploma and one degreeat the same time from different universities.One is attending and another is non-attending mode. (Debotree)
check with following guidelines for your answer.
UGC Guidelines issued on April 2022 for Pursuing Two Academic Programmes Simultaneously
- A student can pursue two full time academic programmes in physical mode provided that in such cases, class timings for one programme do not overlap with the class timings of the other programme.
- A student can pursue two academic programmes, one in full time physical mode and another in Open and Distance Learning (ODL)/Online mode; or up to two ODL/Online programmes simultaneously.
- Degree or diploma programmes under ODL/Online mode shall be pursued with only such HEIs which are recognized by UGC/Statutory Council/Govt. of India for running such programmes.
- Degree or diploma programmes under these guidelines shall be governed by the Regulations notified by the UGC and also the respective statutory/professional councils, wherever applicable.
- These guidelines shall come into effect from the date of their notification by the UGC. No retrospective benefit can be claimed by the students who have already done two academic programmes simultaneously prior to the notification of these guidelines.
The above guidelines shall be applicable only to the students pursuing academic programmes other than Ph.D. programme.
Question 23: I have been selected for Govt jobbut my Btechis going on ,its 8th semester In our college there are no classes are held.If I join job ,will my degree become invalid (Jeet Roy)
Your question is not about guidelines but your decision under a peculiar circumstances.
Reasonably you cannot be present at your job as well as college. If college is not conducting classes, you can with your common sense join job. Other option is join job and take some leave. I don’t find any risk but take decision at your own risk , its not legal advise without checking documents and details.
Question 24: My sister has done Regular B.Ed in 2010-2011.Also MA from distance during 2010-2012. Are both these degree valid. ( Allhuakbar)
1. Check with UGC Guidelines April 2022
2. A student can pursue two academic programmes, one in full time physical mode and another in Open and Distance Learning (ODL)/Online mode; or up to two ODL/Online programmes simultaneously.