Questions and Answers October 2023
1) Jitendra Yadav, Jhansi,UP
Question: Booking of land cancelled ,Refund of money paid to Builder
Facts: Agreed to sell document signed .Before registration terms were objected to and refused to register. Total money paid Rs 2, 96.000/-in instalments (1000 +99000/on -+96132/-)
Answer: If agreement not signed, no terms agreed .In case agreement as per law is to be necessary to registered, it is considered not signed .In the matter of immovable property, agreement getting registered is mandatory
Law on the point:
How buyer has 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) dated14/07/2023
- 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
- That Draft agreement is not submitted with allottees appearance for registration before the Sub-Registrar is also an integral part of this process. This process as per clause 20 of draft agreement is not completed ,hence there is no agreement between the parties Reasons quoted
- 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
- Not following the mandatory provisions of The Uttar Pradesh Real Estate (Regulation and Development) (Agreement for Sale) Rules, 2018 of RERA Act 2016 and crucial sections such as “21. Entire Agreement” have been omitted.
- Non Encumbrances Certificate and a No Objection Certificate (NOC) from relevant authority not received failing which no bank approves loan
- Land shown mortgaged to HDFC bank and for this reason required permission from bank not on record
- The verbal assurances provided by the Promoter’s representatives, differ significantly from the terms outlined in the Agreement for Sale (Plot). Such as demand for 90%payment without NOC and Non Encumbrances Certificate
Status of Contract
No complete agreement duly registered with sub registrar exists .It is just an offer /proposal but no acceptance to the contractual agreement before the eyes of law .It is a case of given money for the purpose of a contract which is incomplete and receiver of money is under debt to the homebuyer to return the money with interest and compensation for breach of contract leading to misrepresentation to the home buyer and wasting time, energy and other opportunities
2) Shubh Yadav 8726980953
Question: Can I go to High court for execution of consumer court order when appeal to state commission filed by OP?
Facts: Truck on loan, One month instalment not paid .Bank recovered vehicle and sold in auction. TRUCK not transferred as yet to buyer
Filed consumer copmplaint, OP did not appear, ex party order in favour of complainant. Execution stage Now OP goes in appeal. Can I go to HC for execution, let appeal go on in state commission
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.
3) Aniket Faridabad Haryana Ph. 8930284670
Question: phone got physically damaged, hence got repaired on my own cost during warranty can I ask for repair even out of warranty status
Now phone not working properly and service centre refused to repair 2-3 times .And now it has gone out of warranty, can I ask for repair even out of warranty status
Answer: Terms of warranty are important to understand .Generally during warranty period if someone other than authorised centre opens or repairs your product ,warranty does not work .But if the service centre has done repair ,you can always ask for repair .In your case product is damaged with your own fault ,there can be a problem .But law is if your complaint has been made during warranty and yet not repaired ,even after warranty lapses ,it is continuing cause of action .
4) Advocate :Raj Jain
Question: Can the LIC policy be questioned under section 45 of Insurance act after revival of policy by paying missed premium?
Facts: Fathers’LIC policy dated28.10.2016.Premium missed Revival on 16.7.2020 after proper health check-up again .Policy holder died on 18.2.2021.Three year period not completed. After revival, heart treatment .Claim rejected for Non-disclosure .Death not due to heart attack
Two questions involved –
- Within three years ,can 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 be 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 prove facts so not disclosed are not “material’ in your case
5) Abhishek Singh Rathore Pune
Question: Can my vehicle be changed or refund in case of feature missing?
Facts: Purchase of car from Tata Motors May 2023 .In July I realised one feature missing which was mentioned in Brochure (Dual function of DRL with indicator) when contacted showroom, stating this feature is meant for upper model and not in your model other complications also could not be repaired
Answer: If brochure confirms your version, they have to provide you feature if possible to be done .In case it is not possible and you are provided a model which is not having feature as promised, you are entitled to change car or refund.
Other complications if can be repaired, change part, everything must be tried .In case no repair possible in spite of change of parts, vehicle to be changed
6) Mr Bidhan Bouri, Bankura Calcutta
Question: How can I take legal action regarding a misdiagnosis in a medical negligence case?
- Diagnosed with grade 2 brain cancer, following radiation therapy and chemotherapy, the doctor verbally assured and committed that the cancer could be cured through a form of immunotherapy known as ‘Dendritic cell immune therapy’.
- Initially, six doses were prescribed, followed by three more doses, but after a total of nine doses, the cancer spread throughout the body.
- I paid over 5 lakhs for the treatment, but when I raised concerns about the incorrect treatment, I received a legal warning notice from the doctor. Reply by doctor through legal notice:
- Treatment given with consent after explaining that effects on different bodies shown in different manner.
- Client discontinued treatment after 9 doses without advice.
- Therapy has proved effects on many patients.
- Wait for order by HC.
- You have choice to go back to Consumer Commission for compliance at Commission itself and surrender recovery certificate, also withdraw writ from HC if feel it was longer way.
- Can also go to nearby civil court for compliance of the District Commission order.
Question 7. (Connecting matter explaining law)
When there can be a case of Medical Negligence and when Not (Six Points)
1. When doctor is negligent
i. Damage to organ due to negligence
ii. Wrong treatment due to wrong diagnosis
iii. When treatment not chosen as per accepted and established norms / medical research/available medical literature.
2. When doctor is not negligent
i. If five methods available for treatment, one chosen, doctor not negligent
ii. Doctor not guarantor for curing the ailment.
iii. Error of judgement different from wrong diagnosis
3. Three steps to be observed by the doctor
i. To decide whether he must take up the case or not.
ii. If taken up the case, he is to decide what treatment is to be given.
iii. Whether the treatment given as per the diagnosis made.
4. Complaint for deficiency in Paramedical services
i. Money receipt if refused
ii. Prescription or case history if refused on request
iii. Discharge summary or test reports when not provided
iv. Equipment’s short causing damage to patient or interrupt medical services
v. Infrastructure not up to mark
vi. Staff, doctors, nurses not available
5. Theory of res ipsa loquitur [ a thing speaks of itself]
In cases where the deficiency is apparent, such as the removal of the wrong limb, performing an operation on the incorrect patient, administering an injection without an allergy test, prescribing the wrong medication, or leaving surgical items inside the body during a procedure, there is no requirement for additional proof of negligence. This principle is acknowledged as “res ipsa loquitur.”
6. Payment theory
Where medical services are rendered by receiving payment as part of the terms and conditions of the services, this would amount to rendering services as defined under the Consumer Protection Act and patient is a consumer for filing case of medical negligence before the Consumer Forum.
i. All private hospitals, clinics, doctors are service providers when receive payment.
ii. All charitable hospital, clinics are service providers when hospitals/clinics are funded by some persons in charity.
iii. All Government hospitals are service providers when receive money from employer for providing medical facility to their employees.
iv. All government hospitals are service providers if they receive money from insurance company and not from the patient.
v. All Government hospitals are service provider if receive payment from some private persons for providing private services but not receiving from all patients.
vi. Government hospital is not a service provider if not charging from anyone.
8) Advocate Sagar Rohtagi in case of Madhu Aggrawal v/s Sampurna Plantation Pvt Ltd at Hardwar Uttrakhand
Question: What action is suggested under these circumstances?
Ex parte order by District Commission
In execution, Recovery Certificate issued, nothing done by DM, writ before Chandigarh HC for directions to DM for compliance.one such order passed by Delhi HC in similar case.
i. Wait for order by HC.
ii. You have choice to go back to Consumer Commission for compliance at Commission itself and surrender recovery certificate, also withdraw writ from HC if feel it was longer way.
iii. Can also go to nearby civil court for compliance of the District Commission order.
9. Advocate Madhuri Lata, Telangana
Question: Can two members issue Boilable warrants in execution of Consumer Commission order?
Can two Members, in the absence of the President, issue bailable warrants against the opposing party (OP) when there’s proof of personal service filed before the commission, and the complainant was not present on the day the proof of service was submitted? Is there any issue with such an order?
Indeed, the complainant’s absence is a significant issue, as the commission may potentially dismiss the application by default. In the context of execution petitions, commissions are granted the authority of a First-class magistrate, specifically for execution purposes and not for other proceedings within the commission. Execution of an order is considered a criminal procedure, and any order can typically be issued by the President, unless a member is specifically authorized, through notification, to act as the President in their absence. However, if both the complainant and the President are absent, the resulting order may not withstand legal scrutiny due to the criminal nature of the procedure.